Venture and Venture

[2014] FCCA 3069

FEDERAL CIRCUIT COURT OF AUSTRALIA

VENTURE & VENTURE [2014] FCCA 3069

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – relocation – allegations of family violence – where family violence order in force – best interests of the children – need to protect children from harm – benefit of meaningful relationship with each parent – appointment of Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68L

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
McCall & Clarke [2009] FamCAFC 92; 41 Fam LR 483; FLC 93-405
Re K (1994) 17 Fam LR 537; FLC 92-461

Applicant: MR VENTURE

Respondent: MS VENTURE

File Number: SYC 433 of 2013

Judgment of: Judge Scarlett

Hearing date: 10 October 2014

Date of Last Submission: 10 October 2014

Delivered at: Sydney

Delivered on: 21 October 2014

REPRESENTATION

Counsel for the Applicant: Mr Sansom

Solicitors for the Applicant: Doolan Wagner + Callaghan

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: Byrnes Lawyers

ORDERS

UNTIL FURTHER ORDER

1. All earlier parenting Orders are suspended.

2. The Respondent mother is to have sole parental responsibility for the children X born (omitted) 2000, Y born (omitted) 2004 and Z born (omitted) 2007.

3. The children X, Y and Z are to live with the Respondent mother.

4. The mother is to be at liberty to reside with the children in the (omitted) area.

5. The interests of the children X born (omitted) 2000, Y born (omitted) 2004 and Z born (omitted) 2007 are to be independently represented by a lawyer and Legal Aid New South Wales is requested to arrange this representation.

6. Within fourteen (14) days from the date of this Order the parties must forward to Legal Aid New South Wales for the use of the Independent Children’s Lawyer when appointed copies of all Applications, Responses, affidavits and other relevant documents.

7. The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.

8. The issue of the time that the children spend with the father is to be adjourned until such time as an Independent Children’s Lawyer has been appointed and is in a position to make a submission to the Court about matters concerning the care, welfare and development of the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 433 of 2013

MR VENTURE

Applicant

And

MS VENTURE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the father of three children aged between 14 and 7 years, originally for orders restraining the mother from relocating the children’s residence from the Central Coast of New South Wales to the (omitted) area but, due to the changed circumstances, for orders requiring the mother to relocate the children’s residence back to the Central Coast of New South Wales.

2. The mother opposes the Application, citing violence by the father towards the two older children and herself and opposition by the two older children to spending time with the father.   

Background

1. The father was born on (omitted) 1971. He is now 43 years of age.

2. The mother was born on (omitted) 1977. She has recently attained the age of 37 years.

3. The parties commenced to live together in 2003 and married on (omitted) 2005.

4. There are three children of the marriage. X was born on (omitted) 2000. Y was born on (omitted) 2004. Z was born on (omitted) 2007.

5. The parties’ relationship was marked by discord and there are allegations of family violence. On 4 January 2013 the mother left the matrimonial home with the three children and went to live at her parents’ home at (omitted), near (omitted), New South Wales.

6. The mother returned to live in the former matrimonial home with the children about the middle of January 2013, but left again on or about 22 January.

7. The father commenced proceedings by filing an Initiating Application on 31 January 2013, seeking various parenting orders including a Recovery Order.

8. On 4 March 2013 the parties entered into Interim Consent Orders, which were made by Federal Magistrate Walker, as her Honour then was. Those orders provided relevantly:

   a)The parties were to have equal shared parental responsibility for the children;

   b)The children would live with the mother;

   c)The children should spend time with the father on a four weekly cycle, being:

   i)The first weekend from after school on Friday until 5:00 pm on Sunday;

   ii)The third weekend of the cycle from after school on Friday until 5:00 pm on Sunday;

   iii)The fourth weekend of the cycle from after school on Friday until 5:00 pm on Sunday;

   iv)Half of all school holidays; and

   v)Such other times as the parties agreed.

   d)The parties were to attend a marriage counselling service; and

   e)The matter was to be adjourned for a period of six months.

9. The Application was then adjourned to 17 September 2013 for mention.

10. On 17 September 2013, according to the court file, the father attended Court in person. He advised the Court that the mother was returning to the family home and he was considering filing a Notice of Discontinuance. He also said that the children were already back in the family home with him. The Court then made an order, or rather did not make an order, that “There be no orders made” and the matter was removed from the list.

11. The mother returned to the matrimonial home.

12. The mother again left the matrimonial home with the children on 22 August 2014.

13. On 24 August the father was served with a Provisional Apprehended Domestic Violence Order, naming the mother and three children as the protected persons. The Order required him to attend the Gosford Local Court on 26 August.

14. On the morning of 25 August 2014 the father was charged by Court Attendance Notice with the following offences:

    a)Common assault on the child X between 1 February and 28 February 2014;

    b)Common assault on the child Y on 7 August 2014;

    c)Intimidating the child Y on 21 August 2014 with the intention of causing her to fear physical or mental harm; and

    d)Contravening a prohibition or restriction in an apprehended domestic violence order on 24 August 2014.

15. The father appeared at Central Local Court that same day and was granted bail.

16. On 26 August 2014 the father attended the Gosford Local Court, where additional orders were made in respect of the interim Apprehended Domestic Violence Order. The matter was adjourned to 14 October 2014.

17. On 4 September 2014 the father applied for an Apprehended Domestic Violence Order against the mother, alleging that she had assaulted him on 14 August 2014. He also alleged that the mother had assaulted him on 13 June 2014 and 22 January 2010.

18. The Application was returnable at Gosford Local Court on 9 September 2014.

19. On 8 September 2014 the father recommenced proceedings in this Court, as he had never discontinued his Application made on 31 January 2013. In his Application in a Case, the father sought Orders that the mother be restrained from relocating with the children from the Central Coast region of New South Wales and that he should spend time with the children as the Court saw fit.

20. The Application was originally returnable on 20 October 2014 but, after a review, was brought before the Court on 17 September 2014.

21. On 17 September 2014 the parties were directed to attend a Child Inclusive Child Dispute Conference with a Family Consultant and the Application was adjourned to 9 October 2014.

22. On 30 September 2014 in the Gosford Local Court the father’s bail conditions were altered, as were the conditions of the interim Apprehended Domestic Violence Order.

23. The parties and the children attended the Child Dispute Conference on 7 October.

24. The Application before this court on 9 October was adjourned until the following day for an interim hearing.        

Evidence relied upon

1. The father sought to rely on the following affidavits:

   a)his original affidavit of 30 January 2013;

   b)his affidavit of 5 September 2014;

   c)the affidavit of Ms K of 5 September 2014;

   d)the affidavit of Mr G of 5 September 2014;

   e)the affidavit of Ms A of 5 September 2014; and

   f)his affidavits of 16 September and 9 October 2014 about change of bail conditions and associated matters.

2. The mother sought to rely on the following documents:

   a)her affidavits of 16 September and 30 September[1] 2014;

   b)Notice of Child Abuse, Family Violence or Risk of Family Violence filed on 30 September 2014; and

   c)the Child Inclusive Conference Memorandum to Court of 7 October 2014.  

   [1] Which does not appear to be on the Court file

The parties’ proposals

1. The father sought an order that the mother return the children to the Central Coast of New South Wales. The mother sought to remain living in the (omitted) area with the children.

2. The father sought orders that he should spend time with the children as the Court saw fit. The mother did not seek any order for the father to spend time with the children.

Agreed or uncontested relevant facts

1. As Counsel for the father put in his Outline of Case Document, there are very few agreed or uncontested facts. However, it seems uncontroversial that:

   a)The mother previously moved away from the NSW Central Coast with the children in 2013 without the father’s consent;

   b)The children returned to live with the father in about September 2013;

   c)The mother returned to live with the father not long afterwards;

   d)There were interim parenting orders made by consent on 4 March 2013;

   e)The mother left the matrimonial home with the children in August 2014;

   f)The mother moved to (omitted) with the children on or about 9 September 2014, without the consent of the father.

   g)The children were enrolled in different schools.

   h)The children had not seen their father since they moved away.

Applications for parenting orders

1. When the Court is considering making parenting orders, whether final orders or orders until further order (i.e. interim orders) it must have regard to the matters contained in Part VII of the Family Law Act 1975 (Cth). In particular, the Court should have regard to the provisions of:

   a)Section 60B, which contains the objects of Part VII and the principles underlying those objects;

   b)Section 60CA, which requires the Court to regard the best interests of the child (or in this case, children) as the paramount consideration;

   c)Section 60CC, which sets out the way that the Court determines what is in a child’s best interests;

   d)Section 61DA, which deals with the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   e)Section 65DAA, which requires the Court to consider equal time or, failing that, substantial or significant time, with each parent where an order has been made that the parents should have equal shared parental responsibility for the child.

2. All of those matters have been considered, insofar as they are relevant.

Relevant matters in section 60CC of the Family Law Act 1975

1. The Full Court of the Family Court in Goode & Goode[2] has held that a court at first instance must consider the matters in s.60CC that are relevant and, if possible, make findings about the, noting that:

   …in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.[3]

   [2] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

   [3] [2006] FamCA 1346 at [82]; (2006) 36 Fam LR 422 at 445 [82]; FLC 93-286 at 80,903 982]

2. This would appear to be such a case. As their Honours stated in Goode & Goode at [68]:

   Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.

3. The issues in this matter really concern the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the children of having a meaningful relationship with both of their parents and, on the other, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court is required by s.60CC(2A) to give greater weight to the latter consideration.

4. As Mr Sansom of Counsel put for the father, it is to the children’s benefit in the medium to long term to have a meaningful relationship with both parents where possible, and this is mandated by authority (see McCall & Clarke[4] ).

   [4] [2009] FamCAFC 92; (2009) 41 Fam LR 483; FLC 93-405

5. There are serious allegations of violence by each parent against the other in relation to assaults, not only in respect of each parent but also in respect of the two older children.

6. There is an Interim Apprehended Domestic Violence Order against the father naming the mother and all three children as protected persons. That mater was due back before Gosford Local Court on 14 October.

7. There are also charges against the father, relating to assaults on each of the girls and intimidating the younger girl.

8. The father has also applied for an Apprehended Domestic Violence Order against the mother.

9. All of those matters remain unresolved.

10. There was a most telling piece of evidence presented to the Court at the interim hearing, being video evidence from a closed circuit television camera at the former matrimonial home. That footage was played in Court and showed the father and the youngest child, the parties’ son, on a patio. The mother entered from the left of the screen and struck the father several times.

11. Based on that evidence, the mother was clearly the aggressor.

12. Of the additional considerations under s.60CC(3), it would appear that the most pressing matter to be taken into account is the views expressed by the children and factors, such as their maturity or level of understanding, that the Court thinks relevant to the weight that should be given to the children’s views.

13. Another telling piece of evidence was the Child Inclusive Conference Memorandum to Court dated 7 October 2014. The Memorandum shows that the parties attended the Conference with all three of the children.

14. The Family Consultant recorded that there were serious allegations and counter allegations of family violence of a long standing and physically and verbally abusive nature. The Family Consultant stated that both parents seemed to agree that the children had potentially been exposed to a high degree of family violence, although they each attributed responsibility for this to the other parent. In addition, the father claimed that the children had been alienated from him by their mother, essentially in response to her concerns that he would report her physical abuse of him to the police.

15. The Family Consultant reported this of the elder daughter, X:

    While X’s comments generally supported Ms Venture’s claims, X did not present as a typically “brainwashed” child (as Mr Venture suggests) but rather as a young person [who] has been, and is, in the midst of potentially traumatic family circumstances.

    X generally presented her view of her father as being an aggressive person who has verbally and physically abused her, Y, and her mother. X said that there has been no abusive treatment by her father towards Z.

    …X said that, in 2013, she had sustained a black eye when her father had punched her in the face twice and has also caused her to fall over. X said that, at that time, she had asked her mother if they could go to the police but that her mother had not taken her to the police. X indicated that she had also not been taken for any medical attention on this occasion, which is a concern.

    … X denies the suggestion that she has been possibly brainwashed by her mother. She said that she is currently “happy” with her “Mum”.

    …X was very clear that she wants to spend no time with her father.[5]

    [5] Child Inclusive Conference Memorandum  to Court 7.10.2014 pages 2 and 3

16. The Family Consultant had this to say of the parties’ second child, the younger daughter Y:

    Y (aged 10 years) seemed aware that she was being interviewed “about what has been going on with Dad” and about what has been happening in her family. Y impressed as a young child who has not been adequately protected by disturbing adult dynamics.

    Y said that what has been happening in her family is “bad”. She said that her father has been “very violent towards us” and “verbally abusing”. With regard to the alleged verbal abuse, Y said that her father calls her “ugly”, “fat”, “stupid” and “dumb”. She said that he also call (sic) her Mum “fat” and says that “Mum’s a bad mother”.

    Y explained that her father has given X a black eye and she also referred to the occasion in which her father had allegedly hit X on the thumb with a wooden spoon. Y seems aware of the incident when X allegedly said that she wanted to commit suicide and her father reportedly having given X a knife.

    …Y said that she experiences nightmares and that she has had nightmares “all my life”. Y said that, on the Monday prior to these interviews, she had had a dream that the family had moved to Sydney and “her Dad had come to the house and attempted to murder us”.[6]

    [6] Child Inclusive Conference Memorandum 7.10.2014 pages 3 and 4

17. In respect of the parties’ third child, their son Z, the Family consultant stated:

    Z (aged 7 years) expressed reluctance to be interviewed on his own and he wanted X to also be present.

    ...While Z initially seemed unsure about how he might feel if the Court said that he was to see his Dad, in that he said “maybe he would and maybe he would not”, he also indicated that the “best thing” would be if the judge decided for him to “hang out with my Dad”. With regard to this, Z explained that he wants to live with his Mum but he also wants to “hang out with my Dad sometimes”. When questioned about the “worst thing” that the judge might do, Z said that this would be if he did not get to see his Dad.[7]

    [7] Ibid page 4

18. The Family Consultant expressed concern about the serious family violence allegations, noting that “the children in this family have been exposed to a high degree of family violence and have lived in frightening and traumatic circumstances. It seems clear that the children have not been adequately protected.”[8]

    [8] Ibid page 5

19. The Family Consultant that she intended to make a child protection report to the Department of Family and Community Services. She also suggested that an Independent Children’s Lawyer be appointed to represent the children during the proceedings and that a child and family psychiatric assessment may be warranted.

Section 61DA – equal shared parental responsibility

1. Subsection 61DA(1) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, subsection 61DA(2) specifies that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or other person) has engaged in:

   a)abuse of the child; or

   b)family violence.

2. In this case, I am satisfied that the presumption does not apply and an order will be made that until further order the children’s mother will have sole parental responsibility for the children.

Section 65DAA of the Family Law Act

1. As I do not intend to make an order that the parties should have equal shared parental responsibility for the children, section 65DAA does not apply.

Orders that are in the children’s best interests

1. The allegations of family violence are very concerning, and it would appear from the video evidence that the violence between the parties is not all one-sided.

1. The Family Consultant has recommended that the Court should appoint an Independent Children’s Lawyer to represent the children’s interests. The decision of the Full Court of the Family Court in Re K[9] provides a useful guide to the Court in deciding whether to appoint an Independent Children’s Lawyer, and in this case there seem to be a number of factors that point to the need for such an appointment:

   a)The allegations of family violence, particularly where it is directed towards two of the children;

   b)The apparently intractable conflict between the parents; and

   c)The fact that at least one of the children, X, appears to be alienated from her father. It is possible that Y is also alienated to some degree.

   [9] (1994) 17 Fam LR 537; FLC 92-461

2. I propose to make an order that the children’s interests be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975.

3. The children are to live with their mother at this stage. I am not prepared to make an order requiring her to relocate the children’s residence back to the Central Coast, and the children can remain living with their mother in the (omitted) area for the time being.

4. The issue of the time that the children should spend with their father will be revisited once the Court has the assistance of the Independent Children’s Lawyer.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  20 January 2015