Turnley and Gibb

[2016] FamCA 53

FAMILY COURT OF AUSTRALIA

TURNLEY & GIBB [2016] FamCA 53

FAMILY LAW – CHILDREN – Review of a decision of a Senior Registrar – Interim parenting – Where there is one child who is ten years of age – Where final parenting orders had been made in April 2015 that the father have sole parental responsibility of the child, that the child live with him and spend time with the mother – Where the Senior Registrar made an order that the child be returned to his father’s care and a recovery order issued – Where the mother seeks orders on an interim basis for sole parental responsibility, that the child live with her and spend time with the father – Where it was found that to make orders for the child to live with the mother would be likely to expose him to an unacceptable risk of family violence – Where the behaviour by the father is inconsistent with what the Court would expect from a parent in whom it has placed sole parental responsibility – Where there is no alternative than to leave the child in the care of the father – Where the Court requests the Secretary, Department of Family and Community Services to intervene in these proceedings – Orders made that pending further order the father have sole parental responsibility, that the child live with the father and spend time with the mother each alternate Saturday.

Family Law Act 1975 (Cth) ss 4AB, 60CC

APPLICANT: Ms Turnley

RESPONDENT: Mr Gibb

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney Central Family Law

FILE NUMBER: PAC 4764 of 2009

DATE DELIVERED: 5 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 4 & 5 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Giacomo (4 February)
Ms Adams (5 February)

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kelly (4 February)

Ms Houston (5 February)

SOLICITOR FOR THE RESPONDENT: Derham Houston Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Handebo, solicitor of Legal Aid NSW Sydney Central Family Law

Orders

1. That a copy of these Reasons and the orders made today be forwarded by Johnston J’s Associate to the Secretary, Department of Family and Community Services and that the Secretary is requested to consider as a matter of urgency to intervene in these proceedings in circumstances where the Court has found that the child B born on … 2006 is at risk of exposure to family violence in the household of his father with whom he is residing.

2. That orders are made in accordance with the Minute of Order Proposed by the Independent Child Lawyer filed in Court today signed by Johnston J and placed with the Court papers as set out hereunder:-

   PENDING FURTHER ORDER IT IS ORDERED THAT:

   1.All existing parenting orders in respect of the child [B] born … 2006 (“[the child]”) are discharged.

   2.The father shall have sole parental responsibility for the child.

   3.[B] shall live with the father.

   4.[B] shall spend time with the mother as follows:

   4.1.Each alternate Saturday between 10.00 am and 5.00 pm (or such shorter period between those times as the mother may nominate);

   4.2.On Mother’s Day from 10.00 am until 5.00 pm;

   4.3.On Boxing Day from 10.00 am until 5.00 pm;

   4.4.For one additional period not exceeding 96 hours during each school holiday as nominated by the mother no later than one week prior to the commencement of the school holiday and with such time being conditional on the mother furnishing upon the father evidence of booked accommodation on the NSW Region G prior to the commencement of time.

   4.5.Such other times as the mother and the father may agree to in writing; and

   4.6.[B’s] time with the mother shall take place in the Region G area unless the mother and the father otherwise agree in writing.

   5.Both the mother and the father are entitled to attend all events involving the child that parents are invited to attend, including:

   5.1.Sporting fixtures;

   5.2.Extra curricular activities; and

   5.3.School functions and events that allow for parental attendance including but not limited to interviews, canteen duties and social functions.

   6.For the purposes of facilitating Order 4 above, unless otherwise agreed between the mother and the father in writing, changeovers shall occur as follows:

   6.1.The father’s nominee will deliver the child to the mother or her nominee (who shall not be [Mr C Turnley]) at [D Town] Railway Station at the beginning of the child’s time with the mother;

   6.2.The mother or her nominee (who shall not be [Mr C Turnley]) will deliver the child to the father’s nominee at [D] Town Railway Station at the end of the child’s time with the mother; and

   6.3If practicable the father shall avoid coming into the sight of or making personal contact with the mother at changeovers.

   7.Within 21 days of these orders the father will attend upon a general practitioner and obtain a referral to a therapist with experience in family therapy and anger management, and the father will then make an appointment with the therapist.  Such appointment is to take place no later than within 12 weeks of the date of these orders.

   8.The father will attend the first appointment, and continue to attend all subsequent appointments made with his therapist in accordance with the therapist’s recommendations, including recommendations as to frequency of such appointments.

   9.On or before his first appointment with the therapist, the father shall give to the therapist (or cause to be given) a copy of these orders, the Family Report of [Ms H] dated 25 June 2014 and a copy of the reasons for judgment dated 9 April 2015 and 5 February 2016.

   10.The father will ensure that the therapist understands the purpose of the therapy is to address the issues raised by [Ms H] in her report and in particular the issues mentioned at paragraph 74 to assist the father to develop insight into his contribution to the dysfunction the co-parenting relationship between the mother and the father and his propensity to engage in behaviour that either is or can be perceived as violent or intimidating.

   11.Within 24 hours of the father obtaining an appointment with the therapist in Order 7 the father will notify the mother and the Independent Children’s Lawyer of the name and full contact details of the therapist.

   12.The Mother will continue to attend a domestic violence counsellor of her choosing, and will continue to attend upon that counsellor until such time as the counsellor advises that it is no longer necessary or beneficial for her to attend.

   13.The father will ensure the attendance of the child for ongoing counselling with an appropriate counsellor as agreed to or recommended by the Independent Children’s Lawyer regarding the child spending time with the Mother, the parental conflict and the child’s relationship with each of the parents.

   14.In the event that the child’s counsellor recommends the involvement of one or both of the parents in the child’s counselling, each parent will do all acts and things necessary to participate in the child’s counselling to the extent recommended by the child’s counsellor.

   15.For the purposes of Orders 7 to 14 above, leave is granted to the mother, the father and the Independent Children’s Lawyer to provide a copy of these orders, the Family Report of [Ms H] dated 25 June 2014 and a copy of the reasons for judgment dated 9 April 2015 and 5 February 2016, to any professional consulted by either party to carry out an obligation under these orders.

   16.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide information about the family and treatment to other medical or psychological professionals engaged by that parent or by/with the family.

   17.These orders authorise any therapist or counsellor engaged by either parent to speak with and provide the Independent Children’s Lawyer with information about the family and treatment, and the Court requests that therapists engaged by the father and the mother pursuant to Orders 7, 12 and 13 to notify the Independent Children’s Lawyer should the father and/or mother and/or the child miss, cancel or reschedule more than two appointments in a row.

   18.The mother will continue to engage with Brighter Futures until such times that the mother’s Brighter Futures Caseworker considers the mother’s engagement to not be required or the mother ceases to be eligible to participate in the Brighter Futures program.

   19.The mother will ensure that the father is kept informed of:

   19.1.Any medical problems or illnesses suffered by the child while in the mother’s care;

   19.2.Any medication that has been prescribed for the child;

   19.3.The residential address and contact telephone numbers of the mother and particulars of the others who may reside or stay with the child; and

   19.4.Any other matter relevant to the child’s welfare.

   20.The father shall ensure that the mother is kept informed of:

   20.1.Any medical problems or illnesses suffered by the child while in the father’s care;

   20.2.Any medication that has been prescribed for the child;

   20.3.The contact telephone numbers of the father and particulars of the others who may reside or stay with the child; and

   20.4.Any other matter relevant to the child’s welfare, including notice as far as practicable in advance of any major decisions required about his education, health and change of residence and timely notice of the ultimate decision.

   21.The mother is restrained from allowing the child any contact with [Mr C Turnley] and her time with the child pursuant to these orders is conditional upon her not allowing the child to come into contact with [Mr C Turnley].

   22.The mother and the father will not expose the child to or allow him to be subject to family violence or abuse, and should a situation develop, that constitutes family violence under the Family Law Act 1975, the parent in whose care the child is will forthwith remove the child from that situation.

   22.The father and the mother are each restrained from discussing these proceedings with or in the presence or hearing of the child or showing the child any of the affidavits, reasons for judgment, orders, applications or reports prepared for the purpose of these proceedings.

   23.The mother and father are each restrained from making critical, offensive and derogatory remarks about the other parent, or any person in the other parent’s household, in the presence or hearing of the child and they shall do all things necessary to ensure that no third party makes critical, offensive and derogatory comments about the other parent, or any person in the other parent’s household, in the presence or hearing of the child.

   24.That the father shall do all acts and things necessary to ensure that the child is enrolled at and attends N Town Public School in the 2016 school year.

   25.That in the event that changeover cannot be effected as provided for in Order 6 herein due to the child playing football changeover shall instead be effected, as nominated by the mother no later than 5.00pm on the day prior to the scheduled changeover, by either the mother attending the child’s football game, or as provided for in Order 6 herein as soon as practicable following the conclusion of the child’s football game, and no later than one hour after the conclusion of the game.

   26.That each parent shall use their best endeavours to ensure that the child attends any scheduled football game whilst in that parent's care.

   27.In the event that the father receives a custodial sentence the mother or the Independent Children’s Lawyer shall be at liberty to have the matter relisted on twenty four hours’ notice.

   28.Other than as provided for at Order 24, the Independent Children’s Lawyer shall be at liberty to have the matter relisted on seven days’ notice.

   29.The Independent Children’s Lawyer shall have leave to issue any subpoena he considers relevant in these proceedings.

3. That the father notify the mother’s solicitor not later than 48 hours prior to changeover the identity of his nominee for changeover.

4. That these proceedings are otherwise adjourned to ascertain particularly the response of the Department of Family and Community Services to 10.00 am on 21 March 2016.

IN CHAMBERS

1. That the listing at 9.00 am on 21 March 2016 is vacated.

2. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet [attached to the engrossed orders] and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Turnley & Gibb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4764 of 2009

Ms Turnley

Applicant

And

Mr Gibb

Respondent

REASONS FOR JUDGMENT

1. On 10 December 2015 Senior Registrar Campbell made an order that the child the child B born in 2006 be returned to his father’s care immediately. 

2. The learned senior registrar also made an order for a recovery order which would empower the police to locate and recover the child and for such recovery order to lie in the registry. 

3. The senior registrar’s expectation was that the child’s mother, Ms Turnley (“the mother”), would return the child to his father, Mr Gibb (“the father”) and that it would be unnecessary to subject the child to police involvement.

4. But the mother did not return the child.  She decided that she could not do so.  The recovery order issued and the police recovered the child on 18 December 2015 and delivered him to his father.

5. What is before me for determination is an application by the mother for review of the order of the learned senior registrar.  The mother seeks orders on an interim basis as follows:

   1.        That she have sole parental responsibility for the child;

   2.That the child live with her;

   3.That the child spend time with the father in accordance with any order that the Court sees fit to make.

6. The mother makes no challenge to orders of the learned senior registrar which were for appointment of an independent child lawyer (“ICL”) for the child. 

7. Review of a registrar’s decision is by a hearing de novo.  In other words, the Court “starts again” and the parties may put before the Court whatever evidence is relevant.

8. This is the manner in which the review proceedings were presented. 

9. The father has sole parental responsibility for the child and the child is to live with the father and to spend time regularly with his mother on certain conditions. 

10. Orders to this effect were made on a final basis on 9 April 2015 following a hearing over some days before Loughnan J.  I shall return below to the orders, and particularly to parts of his Honour’s judgment, which set out the very carefully considered reasons for the orders. 

11. The events which ultimately culminated in the orders of the senior registrar on 10 December 2015 go back some months.

12. The father has been in a de facto relationship with Ms O for many years.  They have two children, a son S who was born in 2010, and a daughter U born in 2012.  Their relationship has broken down.  This happened in approximately July 2015. 

13. It is common ground that on Friday, 11 September 2015 (although the father was emphatic in his affidavit that it was Wednesday, 9 September 2015) Ms O called at the caravan park at N Town where the father and child reside to collect the children for a dental appointment.  Ms O alleged that the father had a knife in a sheath hanging from his neck on a rope and that he also had a fillet knife in his hand.  Ms O said they started to have an argument and the father removed the knife from the sheath and made a slicing motion across his neck.  Ms O said that she became very scared for her safety.  She said the father then pointed the knife towards her neck and made the same slicing motion.  Ms O said she thought she might be stabbed by the father.  Ms O recorded the conversation on her mobile phone.

14. The police facts statement that day stated that during the last five minutes of the recording the father can be heard making threats, there is an argument regarding possession of a knife and subsequently the father could be heard saying, “Open it up or I’m going to cut your throat right now”, “I’ll kick it out of your hand” (during which the children could be heard knocking on the door), “Walk over me all the time and [Ms JJ’s] going to get it too”, “Every cunt involved in this I’m going to fuck up”, “Fucking betrayed us all you dog”.  There were many other references in the fact statement, including the father saying, “You are scum, don’t come back” and “Say goodbye to your mother”.

15. The fact statement records the father, when presented with this material, having denied any incident regarding knives or threats to Ms O, having admitted saying, “I could kill you but you are their mother” and “I could kill [Ms KK]” in an aggressive tone, but said he had no intention of physical harm or genuine threat.  (I note that Ms KK was a woman with whom the father alleged the mother was having an affair.)  The father admitted to police that his aggression and anger were excessive.

16. Ms O informed police that she was extremely intimidated and fearful by the father’s actions. 

17. The police charged the father with an intimidation offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and I note that an Apprehended Violence Order (“AVO”) issued.

18. The father said that this was a set-up by Ms O.  He conceded that he and Ms O became involved in heated argument and that each was yelling at the other.  He said he heard Ms O say, “What are you doing with that knife?”  He said he said, “What knife?  If I had a knife I’d cut your fucking throat.”  He said she said, “No.  Stop.  Don’t do that” and he yelled, “Don’t you tell me what to do.  Just go.  Get out.” 

19. The father said that Ms O then walked outside and down the driveway.  He saw her wave her mobile phone at him.  He did not know what this meant but later ascertained that she had recorded their argument on her mobile phone and gave this to the police.

20. It is impossible, given the confined nature of this hearing which is on the papers, to form a view about where the truth probably lies here.  The father said that he proposes to defend the charge.  An AVO issued for the protection of Ms O.

21. In any event, the following week, that is on 16 September 2015, the police arrested the father and took him to the police station, where he was detained until approximately 4.30 pm.  When the father returned home, the children including the child were not at home.  As I shall soon observe the mother removed the child from school and maintained him in her care.

22. It is clear that the mother and Ms O have been in close communication over this relevant period.  Ms O told the mother about the above events.  The mother said that Ms O said that the father had pulled knives on her and that she had recorded their argument.  The mother said that on 16 September 2015 Ms O’s partner Ms KK telephoned her and indicated that the father had been arrested and charged that day.  The mother also said that Ms O also rang her and indicated that the police had informed her to go to the father’s residence at the caravan park and collect the children.  She said she went to the caravan park but someone had locked themselves in the father’s home with their two children and the caravan park owner told her to remove herself from the caravan park.

1. The mother said she then contacted the Department of Family and Community Services (“DFACS”)and spoke with a Senior Child Protection case worker, Mr LL.  She said that Mr LL said she should collect the child from school because if his father was not released on bail the child would have nowhere to stay that night.  She said that Mr LL also suggested she really needed to have the court orders varied.  The mother said that DFACS supported her collecting the child and that Mr LL rang the child’s school principal, who arranged for the mother to take him from school.

2. The following day, 17 September 2015, the mother arranged for the child to go to MM Town and stay with her sister, Ms NN.  The mother arranged for the child to attend OO School in MM Town.  The child lived with the mother’s sister at MM Town until the mother commenced living there with them on 20 November 2015.  The mother obtained accommodation at MM Town on 7 December 2015.

3. As indicated above, the recovery order was executed on 18 December 2015 and the child was restored to his father’s care.

4. The governing principle in parenting proceedings is the best interests of the child. 

5. Both counsel and the ICL have submitted that this is a case about risk and child protection.  It is submitted that what the Court needs to do in this case is to weigh the risks for the child in each of the competing households. 

6. I pause to make some observations about the difficult task which was before Loughnan J when he was considering what parenting orders would be appropriate for the child.

7. His Honour appeared to me to have some reluctance about the possibility of removing the child from the primary care of his mother who had always been the child’s primary parent.  But the mother’s husband, Mr C Turnley, appeared to have an ongoing problem of alcohol abuse.  His Honour was satisfied that the child had been exposed to family violence from Mr Turnley and from his mother.  His Honour was satisfied that Mr Turnley offered no proposal to address his problems with alcohol and violence and that the mother would not and could not isolate the child from Mr Turnley.  Accordingly, his Honour found that for the child to live with his mother would involve an unacceptable risk to the child.

8. Turning to the father’s household, his Honour noted that the father denied having perpetrated family violence on the mother.  His Honour noted that such was possible.  But his Honour found that there was not an unacceptable risk of exposure of the child to family violence if he was to live with his father. 

9. His Honour noted that the family consultant, Ms H, had said that Ms O had said that the father was not abusive of her, that he was a great father and was “now” a law-abiding citizen.  His Honour found that there was no probative evidence about violence in the relationship between Ms O and the father.

10. His Honour observed that the father conceded that he had behaved in a violent manner in the past and that he had a violent temper.  He conceded on one occasion he kicked his flatmate in the ribs. 

11. His Honour also observed that the father had suffered incidents of depression, self-harm and suicide attempts when he was in prison in 2008.  A Dr GG had diagnosed the father as having a Borderline Personality Disorder.

12. But his Honour said that the father had come a long way since his violent and abusive past and there was no recent evidence of any violent incident, that the father had been compliant with medication and that he was supported by Ms O, whom Ms H described as “a conscientious mother and loyal to [the father]”.

13. Although Ms O was not living with the father at the time of the hearing, his Honour was fairly confident that they would co-habit within a short time.  His Honour also noted that the father had been seeing a psychologist. 

14. During her evidence, Ms O rejected the suggestion that she had told Ms H that she had lived in an abusive relationship with the father.  Ms O deposed that no violence had occurred between the father and her. 

15. So, his Honour determined that the mother could not provide a safe home for the child and that, with support, it appeared that for the child to live primarily with his father would not constitute an unacceptable risk.  As indicated above, his Honour ordered the father to have sole parental responsibility and for the child to live with the father with regular time spent between the child and the mother.

16. Unfortunately, in my view, the father has not been able to fulfil the perhaps somewhat optimistic responsibility his Honour placed in him.  Within a few months of the child going to live with his father, the relationship between the father and Ms O started breaking down to the point where they separated in July 2015.  This appears to have placed great strain on the father. 

17. Whereas before his Honour, Ms O presented a picture of peace and settled family life with the father, with no violence, on 10 August 2015 she informed police that her relationship with the father involved a violent history involving physical abuse on 5 – 10 occasions and ongoing verbal abuse.  The police notes record Ms O as having always been too scared to say anything out of fear of further abuse and intimidation.  She said when she left the father he hit her across the head.  She said that the father tried to strangle her.  The father conceded that during an argument in approximately June 2015, he became upset and angry and “put his hands on (her)”. 

18. It is clear that the father has become very upset with both the mother and with Ms O.  He has sent many text messages to each of them in which he has referred to them in the most offensive and derogatory terms. 

19. The father denies any violence towards Ms O. 

20. It is clear that in October 2015, in the aftermath of the mother having removed the child and of Ms O having left him, the father became very depressed.  On 7 and 8 October, he posted information on his Facebook page, which I interpret to be a threat to commit suicide.  Even more worrying is that the father tagged this threat to the children, including the child, and indicated that he hoped one day they would understand and forgive him. 

21. The father admitted making the Facebook entries, but he denied that what he wrote was a suicide note.  He said he was very upset and thought that the mother, Ms O and Ms KK had conspired against him to remove the children from him.  He said he is not and never has been suicidal, which appears to me to be inconsistent with him having committed self-harm years ago in prison. 

22. But this is not the only worrying behaviour by the father.  A couple of weeks later, namely on 20 October 2015, the father telephoned the Principal of the child’s school in MM Town, Ms PP, and threatened her.  The father agreed that he did have a telephone conversation with Ms PP, but denied that he threatened her.  He said he informed her that the child had been kidnapped and that he was not giving her permission to enrol the child.  He said he informed Ms PP that if she enrolled the child, he would sue her for it. 

23. Ms PP informed the police about the father’s telephone call.  The police record notes that Ms PP said that the father was very angry and upset that the child was at the school, and that it was a one-sided tirade from the father.  The father said words to the effect of “I’m going to sue you.  I’m going to get you.  You better watch out.”.

24. I must say I prefer the version in the police record to the father’s denial.  In my view, it is more probable than not that the father threatened the school principal.  I also accept that as a consequence of the father’s threat, the Principal placed the school into a state of semi-lockdown until the end of term in December 2015, with the gates being locked in an endeavour to prevent the father entering the school.

25. It was submitted on behalf of the mother that whereas previously she had difficulty providing a safe home for the child because of her relationship with Mr Turnley, her relationship with him concluded for the final time in November 2015, as evidenced by her going to MM Town, and particularly obtaining her own accommodation at MM Town.  It is said that she has no intention of resuming her relationship with Mr Turnley. 

26. I must say the mother has a history of separating from Mr Turnley and reconciling with him.  I have referred to Loughnan J’s concern in finding that the mother was unable to protect the child from Mr Turnley.  I am far from persuaded that on the basis of the mother’s assertion that she has been separated from Mr Turnley and living independently from him for some weeks that this would be a proper basis for turning right around the very strong concerns this Court previously had that the mother would not be able to finish her relationship with Mr Turnley. 

27. None of what the mother says gives me any confidence that the risk of the child’s exposure to family violence in the household of the mother is any less than at the time Loughnan J was considering the parenting arrangements.  Perhaps if the mother was able to maintain a situation over some time in which she could demonstrate clearly that Mr Turnley has no part in her life, this Court might be persuaded to a more favourable view to her about this. 

28. In my view, to review the Senior Registrar’s decision and to make orders that the child live with his mother would be likely to expose him to an unacceptable risk of being exposed to family violence. 

29. On the other hand, the expectations that this Court had in making the final orders that the father have sole parental responsibility for the child and that the father would be able to provide an appropriate home situation for the child have, in my view, been disappointed. 

30. Unfortunately, in my view, whereas Loughnan J had found that there was no evidence of any recent violence by the father, this is no longer the case. 

31. Justice Loughnan set out in his judgment the details of what is defined in the Act as family violence, and I set this out here for convenience. Family violence is defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”) as follows:

    4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

    4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):

    (a)      an assault; or

    (b)      a sexual assault or other sexually abusive behaviour; or

    (c)      stalking; or

    (d)      repeated derogatory taunts; or

    (e)      intentionally damaging or destroying property; or

    (f)      intentionally causing death or injury to an animal; or

    (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

    (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

    (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

    (j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

32. Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:

    4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

    4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

    (a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

    (b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or

    (c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

    (d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

    (e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

33. There is no question that the father in his text messages to both the mother and Ms O was abusive, insulting and disrespectful. In my view, his text messages contain repeated derogatory taunts, as referred to in subsection 4AB(2)(d) of the Act.

34. He posted to the child and the other children his threat to commit suicide.  He says it was not a suicide threat.  On a plain reading of his written words, I cannot interpret it in any other way.  In my view, this has exposed the child to violence. 

35. Ms O said that the father hit her on the face.  I am unable to make this finding at this point. 

36. There is also a record of an entry in notes made by MM Town Hospital that on 14 December 2015 the child informed a nurse that he did not wish to return to his dad because he is violent.  He said that he had been head-butted by his Dad and that his Dad does hurt him.  This matter was highly contentious, particularly because this nurse and the mother went to school together albeit many years ago.  Without any criticism of the nurse, I am unable to form a view about this matter at this stage. 

37. I am also satisfied that the father threatened the school principal.  While not falling strictly within the definition of family violence, in my view, it is violent behaviour. 

38. All this behaviour by the father is completely inconsistent with what the Court would expect from a parent in whom it has placed sole parental responsibility for a child. 

39. Accordingly, I propose to request the Secretary, Department of Family and Community Services to intervene in these proceedings. 

40. The ICL has suggested that because the mother is not a viable parent with whom the child could live because of her relationship with Mr Turnley, there is really no alternative than to leave the child in the care of his father.  I accept this with considerable reservation. 

41. The ICL also said that he had met with the child who presents as well-adjusted and is excited about the prospect of returning to his old school. 

42. Be that as it may, in my view there is an urgent need for the Secretary, Department of Family and Community Services to intervene in these proceedings.  I note in this regard that Loughnan J arranged for a copy of his Reasons for Judgment to be forwarded to the Department.

43. Turning to the requirements of Part VII of the Act, as Loughnan J found, the presumption of equal shared parental responsibility does not apply because this case involves considerable family violence.

44. In my view, as was found by Loughnan J, there still appears to be no sensible or practical alternative than to leave parental responsibility with the parent with whom the child would be primarily living, namely, the father.

45. In relation to the primary considerations I have to give greater weight to the protective consideration in s 60CC(2)(b) of the Act. And I have done so. As was said at the outset, this is a case about weighing risk.

46. So far as the additional considerations are concerned, not a lot has changed since Loughnan J considered these.  But so far as violence is concerned, whereas his Honour was not persuaded that some level of allegations that the father had been violent had been made out, I have a different view and find that on a balance of probabilities this is no longer the case and that it is more probable than not that in fact there have been acts of violence by the father, as I have referred to above. 

47. The mother will be able to have time with the child, but some changes will need to be made to the relevant orders. 

48. So far as the additional consideration referring to the practical considerations is concerned, the circumstances have changed to some extent.  I am not aware where the father is currently living.  I understand it is on the Region G.  The mother is still living in M Town in the accommodation where she was previously.  So there were practical considerations based on distance, which his Honour was at pains to endeavour to deal with in the detailed orders that his Honour made in the substantive proceedings.  Such matters will also have to be grappled with.

49. I have the benefit of a draft order, which was presented by the ICL, which proposes that the Court discharge the current orders and that interim parenting orders be put in place.  It is interesting that a similar submission was made to his Honour in the substantive proceedings.  His Honour was at pains to endeavour to try and spare the parties further litigation by putting in place final orders.  Unfortunately what his Honour endeavoured to bring about by very carefully drafted orders and a package of parenting orders designed to try and bring about stability and safety for the child, has not been able to be achieved.  These orders included many supportive orders including for the parties to be assisted by counsellors and therapists and for the father to embark on an anger management course, which I understand he has not done.  He has, however, involved himself to an extent with a psychologist whom he has been seeing for quite some time.

50. The ICL proposes that some interim orders be put in place under which the child would continue to live with his father in the absence of the mother being a better proposition at this point.  With considerable reservation I accept this submission and shall make such orders but on the basis that I regard it as urgent that the Secretary, Department of Family and Community Services be requested to intervene in the proceedings because the child is exposed to a risk of violence in his father’s home.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 5 February 2016.

Associate:     

Date:              10 February 2016