VINCENT & REEVES

[2015] FCCA 616

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINCENT & REEVES [2015] FCCA 616

Catchwords:
FAMILY LAW – Interim hearing regarding child aged approximately one year of age – serious allegations made of family violence and sexual abuse of another child made by mother concerning father – father denies allegations and asserts mother is mentally unstable and vindictive – domestic violence order sought by mother dismissed by state court following full hearing – unilateral relocation of child from rural location – father seeks to spend time with child – since dismissal of interim domestic violence order mother asserts father has stalked her – should earlier order for professionally supervised time take place – best interests.

Legislation:  

Family Law Act 1975, ss.4AB(1); 4AB(2); 60CC

Applicant: MR VINCENT

Respondent: MS REEVES

File Number: ADC 2822 of 2014

Judgment of: Judge Brown

Hearing date: 6 February 2015

Date of Last Submission: 6 February 2015

Delivered at: Adelaide

Delivered on: 6 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Carlin

Solicitors for the Applicant: Carlin Lawyers

Counsel for the Respondent: Mr Hemsley

Solicitors for the Respondent: SE Lawyers

Counsel for the Independent Children’s Lawyer: Mrs Read

Solicitors for the Independent Children’s Lawyer: Legal Services Commission of SA

ORDERS

1. The father spend time with the child X born (omitted) 2013 on such occasions as the Director of the (omitted) Children's Contact Centre or his/her nominee can accommodate the parties subject to the following:

   (a)There be no more than one session per fortnight which is not to exceed two (2) hours in duration;

   (b)Each period is to be subject to the supervision of the Director of the Centre or his/her nominee;

   (c)the visits are to be at the expense of the father;

   (d)after the visits the father is to obtain a report from the Director of the Centre regarding the child’s reactions to the visits; and

   (e)The first visit is to occur on Saturday, 7 February 2015 and fortnightly thereafter.

UNTIL FURTHER ORDER THE COURT ORDERS THAT:

1. The parties be restrained and an injunction is hereby granted restraining them from posting any inflammatory material concerning the other or any material in relation to these proceedings and any children affected by them on facebook or any other form of social media.

2. Each party be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so.

3. During the period of adjournment the parties each participate in one (1) random urine drug screen testing as directed by the Independent Children’s Lawyer on twenty four (24) hours written notice and at the expense of each party.

4. Further consideration of the matter be adjourned to 30 April 2015 at 9.30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 2822 of 2014

MR VINCENT

Applicant

And

MS REEVES

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally immediately following the interim hearing.  As will become apparent, the issue at large needed to be resolved expeditiously and was also one of significant controversy between the parties.  In these circumstances, it is appropriate that the reasons be transcribed and released to the parties.

2. This afternoon, I have to deal with a difficult matter in which Mr Vincent is the applicant and Ms Reeves is the respondent. 

3. They are respectively the father and mother of X, who was born on (omitted) 2013.  Accordingly, X has just had her first birthday. 

4. This was a significant event, not only for X herself, but also for the course of these proceedings, which have been marked by a significant level of tension between the parties, including on X’s birthday.   I will return to what has recently happened on X's first birthday in a moment.

5. I am delivering the reasons for judgment in the matter today immediately after each of the parties concerned, through their lawyers, has each made forceful submissions to me.  As I said earlier it is a difficult matter, but circumstances compel that I deliver the reasons straight away today.  I do not have the luxury of being able to go away and reflect on the very many documents which have already been filed in the case.

6. The reason for that is that tomorrow, following a longstanding order, it has been arranged that Mr Vincent will start to spend time, with X, at the (omitted) Children's Contact Centre, subject to supervision.  It is Ms Reeves' position that the relevant order should be discharged or, at the very least suspended, and that Mr Vincent should not spend any time whatsoever, with X, at this stage.

7. It is her position that the Court needs further assurances, from Mr Vincent, that he is addressing serious issues to do with what Ms Reeves would categorise as his violent and angry disposition, which she alleges has and continues to pose a significant level of threat to both her and X. 

8. It is her assertion that Mr Vincent needs to undergo some form of anger management, or some other course of therapy, regarding behaviour management, before he has any time with X.  In addition, Ms Reeves wishes Mr Vincent to assure, both her and the Court, that he is not currently using illicit substances, particularly amphetamines. 

9. It is Mr Vincent's position that it would not be in X's best interests for her not to spend time with him, at this stage.  It is his position that the child will be completely safe at the (omitted) Children's Contact Centre, as will Ms Reeves. 

10. I have to decide this afternoon whether to allow Mr Vincent to spend time with X tomorrow.  There have already been significant delays arising in the case, including the late enrolment of Ms Reeves at the contact centre.

11. As a consequence, although it would have been my preference to have thought very carefully about the case, which as I say is a complicated one, it is necessary that each of the parties concerned, and indeed the authorities at the children's contact centre, know whether to expect Mr Vincent and X tomorrow or not.

12. Having given that brief background, it is now necessary for me to outline, as best I can, the factual circumstances which bring the parties to this point. 

13. Mr Vincent was born on (omitted) 1976.  He has lived in (omitted) for many years, where he is employed in the (omitted) industry.  Ms Reeves was born on (omitted) 1984.  She met Mr Vincent towards the end of 2011 in (omitted) where she was then living.  The parties began to live together in the (omitted) area in the early part of 2012.

14. There is no dispute between them that they finally separated on 11 July 2014.  It is also, I think, clear that their separation was traumatic and difficult for each of them.  As a consequence of this, at the present time, the parties have no facility whatsoever to discuss issues to do with X or to interact with each other in a civil fashion. 

15. For reasons, which I will explain in a moment, it is hard to conceive of a parental relationship, between the mother and the father in this case, which is more conflicted and more difficult.  These difficulties are compounded by the tender years of X herself and her obvious vulnerability.

16. A few weeks after the parties separated, the father commenced these proceedings.  He did so on 7 August 2014.  At that early stage he wished an order to be made, by the Court, the effect of which would have been to restrain Ms Reeves from leaving (omitted) with X. 

17. However, it is, I think, now common ground that when Mr Vincent had made this application Ms Reeves had left (omitted) and had relocated with X and a number her other children to emergency accommodation on the (omitted), near (omitted).

18. Besides the parties and X herself there are many other individuals who are affected by an interest in these proceedings.  The father has three other children.  They are Y who is aged about 16, Z who is aged about 12 and W who is 11.  Ms Reeves has two other children besides X.  They are her daughter U who is aged about 9, and her son V who is aged about five. 

19. As I understand matters, when the parties were living together, as a family in (omitted), they formed a large blended family of six children, it being the case that U and V lived with Ms Reeves and Y, Z and W lived with Mr Vincent. 

20. The father's application was first listed before Kelly J on 10 September 2014.  I am not sure what material Kelly J had, but it seems clear that her Honour was aware of what the mother's position was at that stage.  In summary, Ms Reeves asserted that she had been compelled to flee (omitted) to escape a violent and abusive relationship with Mr Vincent.  It was her case that she was fearful of returning to (omitted). 

21. It is implicit in the orders, which her Honour made on 10 September 2014, as her Honour, I think, was required to do, that she placed a great deal of emphasis on the serious allegations of family violence raised by the mother. 

22. Her Honour ordered that during the period of the adjournment, which was to be to 17 October, X should live with her mother.  By necessary implication that was not to be in (omitted).  Essentially Kelly J did not order Ms Reeves and X to return to (omitted) nor did her Honour consider it to have been in the child’s best interests to live with her father.  In the difficult circumstances prevailing, I can well understand why this would be so. 

23. It was further ordered that X spend supervised time with the father at such times and in the presence of such supervisors as agreed between the parties.  With the greatest respect to her Honour in the circumstances then prevailing that order was unlikely to lead to any time commencing between X and her father, as it was highly improbable that the parties, in their difficult circumstances, would be able to agree on any supervisor.

24. The parties were also ordered to attend a child dispute conference, which was arranged for 8 October, and the father was to file a response to the matters raised in the mother's material within 21 days. 

25. Shortly prior to 17 October Mr Vincent's solicitor, Mr Carlin, filed an application that this matter be transferred to me.  The rationale for this application was that, at the time, I was dealing with other proceedings in which Ms Reeves was a party. 

26. Those proceedings essentially centred on arrangements for Ms Reeves’ middle child, V.  V’s father is a gentleman by the name of Mr J.  Ms Reeves and Mr J have been involved in some longstanding proceedings, with which I have dealt, which concern arrangements for V’s care. 

27. The main issue in V’s case has been the fact that Mr J lives in suburban Adelaide, whilst Ms Reeves has been living in the south east of the state for some years.  Ms Reeves and Mr J do not have the easiest of relationships with one another.  As a consequence, it has been difficult for V to see his father regularly because of the distance and other issues to do with parental conflict. 

28. In the past, in addition, as I recall, Ms Reeves has asserted that Mr J is a violent and controlling person, who posed a threat to V.  As a consequence, she has withheld V from spending time with Mr J, alleging that Mr J had on one occasion head-butted V, an allegation which was supported, to some extent, by evidence provided by Mr Vincent. 

29. Anyway, once Mr J had learnt that Ms Reeves had fled from (omitted) because Mr Vincent was alleged to be a violent and controlling person, he had his own concerns about the safety of V.  He was particularly concerned that V might have been exposed to violence occurring between Mr Vincent and Ms Reeves and this might have had a deleterious psychological effect upon him. 

30. He also alleged, as I recall, that he had some concerns that Ms Reeves had not been able to protect V from exposure to what he understood to have been severe and endemic family violence.  In these circumstances, he commenced his own proceedings, against Ms Reeves, seeking an urgent change in living arrangements for V.

31. It was Mr J’s position that there was much for the court to be concerned about in Ms Reeves having to flee (omitted), with V, to escape Mr Vincent, when previously, in the earlier proceedings with him, Ms Reeves had said that the relationship she had with Mr Vincent was a happy and stable one. 

32. It has consistently been Mr J’s view that Ms Reeves is an unreliable witness, who has made false allegations of violence against him.  Anyway, it was thought expedient that the two files be heard by the one judge and this matter of Vincent & Reeves has come to me.

33. It is the case that Ms Reeves and Mr J have settled the proceedings concerning V.  V will continue to live with his mother, in the (omitted) area but see his father more regularly than previously.  Mr J, in general terms, is pleased that V is living much closer to him in suburban Adelaide.  He had employment in Adelaide, which made it very onerous for him to drive regularly to (omitted) to collect V. 

34. So that brings me back to these proceedings and what occurred on 17 October 2014.  That was a day that must have been an emotional day for the parties concerned.  It was on that day that the report came back from the family consultant who had seen the parties on 8 October, I think. 

35. During the conference, Ms Reeves disclosed to the family consultant concerned that her daughter U had disclosed to her, a few days earlier, that Mr Vincent had been interfering with her in a sexual way. 

36. This serious issue of sexual abuse was also raised in court on 17 October.  Mr Vincent was apparently not aware that the allegation was to be made.  It had not been raised in any other material filed by Ms Reeves earlier.

37. Anyway, Kelly J ordered that the mother file an affidavit setting out, with some precision, what was the nature of the disclosure made to her by U so that Mr Vincent could have an opportunity to respond to it.  Needless to say, this issue did nothing to relieve the significant tensions implicit in the case relating to Ms Reeves’ unilateral move of X away from (omitted).

38. Notwithstanding these difficult circumstances, her Honour also made an order that each party register, with the (omitted) Children's Contact Centre, within seven days, noting that the father had already so registered.  So, on 17 October 2014, an explicit order was made that Ms Reeves was to enrol at the (omitted) Children's Contact Centre and it was to occur within seven days.

39. So what discussions had occurred earlier, with the parties and the court about (omitted), I do not know as the order of 10 September 2014, regarding time between X and her father is, as I have indicated already, somewhat amorphous. 

40. The mother did file a further affidavit, as she had been directed to do, about the issue of sexual abuse.  She did that on 31 October.  In this affidavit, she indicated that she had been at home with her three children, on 4 October, with her sister Ms J and Ms J’s two children. 

41. There was some talk going on between Ms Reeves and her sister Ms J about the difficulties of raising children without a reliable partner. In the conversation, Ms Reeves apparently alluded to what she saw as her difficulties with Mr Vincent.   In this context, it was apparently said by Ms Reeves or someone to U that she did not have to worry about Mr Vincent, any more. 

42. A little later U apparently made a disclosure that, before the last day of school of term 2, she had been asleep in her bed, when she had woken up to find Mr Vincent had his hands down the front of her pants playing with her vagina.  The child is reported to have had tears in her eyes, when she made this disclosure.

43. As a consequence of this disclosure, the next day, Ms Reeves telephoned the (omitted) police and made a complaint that U had been assaulted.  Ms Reeves further deposes that U has been interviewed by a police officer - Ms T - on video, and that Families SA have also been advised of the incident.

44. A police file has been created, which was initially in the oversight of (omitted) police.  Ms Reeves herself has been interviewed by police.  Detectives in (omitted) are apparently involved now and Ms J is also going to be interviewed.  As at the date of this affidavit, which is 31 October 2014, Ms Reeves said she herself had not as yet been contacted by Families SA.

45. So obviously these were very significant allegations indeed and no doubt they precipitated a significant level of emotion in all parties concerned, particularly Mr Vincent.  Subpoenas have been issued to police by the father's solicitors.  What are the contents of any documents produced, I do not know, as no documents have been tendered. 

46. The child dispute conference was an important court event.  Each party was given an opportunity to outline their views of the case to the family consultant convening the meeting.  Mr Vincent attended the conference, in Adelaide, personally; whilst the mother attended by telephone.  A memorandum of what occurred was produced.

47. Significantly, in the child dispute conference memorandum, the mother outlined her concerns about the father's behaviour during the relationship particularly that Mr Vincent had been coercive and controlling of her throughout it.

48. Examples of this behaviour were said to be that he had attempted to isolate her socially; convince medical practitioners and others in the area that she had mental health issues; and suggested that her associates were drug dealers.

49. In addition, to the family consultant, Ms Reeves reported that the father had been physically violent towards her on a number of occasions and, in particular, that she had sustained a black eye, and had been punched in the abdomen, when she was pregnant with X, but had not reported this to police or sought medical treatment because she was too frightened to do so. 

50. The father denied this behaviour on his part and asserted, to the family consultant that the mother had made most of it up.  It was his view, as expressed to the family consultant that the mother, regrettably, had had a difficult childhood which he believed that may have contributed to what he described as her mental health problems. 

51. The father did, however, indicated to the family consultant that he had been incarcerated, in the past, for about three months, which related to an incident of family violence.  This matter was of concern to the family consultant, for obvious reasons.

52. However, on the father's account, there had been an appeal in respect of the incident and it was Mr Vincent's evidence that the original sentence had been imposed, not for an actual assault, but for the breach of an intervention order.  Again, what were the circumstances of that incident, I do not know.

53. After the parties separated, in July of 2014, the mother applied for a domestic violence order through the police at (omitted) and an interim order was granted on 7 August 2014.  That order named both Ms Reeves and, I think I am right in saying this, the children as well as protected persons. 

54. Mr Vincent, as he is entitled to do, denied that he had ever assaulted Ms Reeves and, as a consequence, there was, from his perspective, no need for the order.  As a consequence of that denial there was a hearing.

55. The hearing took place before a magistrate, I think from memory at (omitted), but I may be wrong about that.  The presiding magistrate was Magistrate Fisher, and the hearing took place over some time and was concluded on 24 December 2014.  I have been provided with a copy of Magistrate Fisher's decision in the case which resulted in her dismissing the interim intervention order and declining to make a final order. 

56. Magistrate Fisher was critical of Ms Reeves’s evidence in the case.  The magistrate summarised the mother's case as follows.  She alleged that Mr Vincent was an alcohol and methamphetamine user.  She provided a number of specific incidents of violence, which she asserted justified the granting of a final intervention order.

1. Firstly, on 12 December 2012, Mr Vincent had punched her in the face really hard loosening her front teeth.  Secondly, on 4 March 2013, he had punched her numerous times to the head causing bruising to the ears, a fat lip and a black right eye, and the police had been called to that incident. 

2. Thirdly, in November 2013, when she was eight months pregnant the defendant in a rage strangled her for about 30 seconds.  Fourthly, it was further alleged that, in April 2014, Mr Vincent had smashed holes in the bathroom door and wardrobe while in a rage. 

3. It was further alleged that on 21 June 2014 at the (omitted) hotel, Mr Vincent had grabbed Ms Reeves by the hair and jacket, and dragged her from the hotel.  Further, on 10 July 2014 Mr Vincent had smashed a hole in the bedroom door, frightening Ms Reeves, and when she had wanted to leave had disconnected her car battery.  Later after she had got her car started Mr Vincent had pursued her and elbowed her trying to get hold of X. 

4. And, finally, on 11 July, which is the date of the parties' final separation, the defendant again had removed the battery to her car and had wound up the window of her car on her arm, and tried to drive off, which had caused bad bruising to her arm.

5. So, as I understand it, those matters remain alleged by Ms Reeves, and it is the mother's case that those are incidents of significant coercive and controlling violence against her.

6. I will come in a moment to the legal definition of family violence, but clearly the allegations which Ms Reeves makes are of very serious violence which has resulted in a significant level of injury to her, most particularly on 4 March 2013, when she sustained a black eye. 

7. Each party gave evidence before the magistrate and an affidavit of Senior Constable Ms C was tendered by consent.  Magistrate Fisher indicated - and I think there is no controversy about that - that if the allegations which had been made by Ms Reeves were true, the Court should have had absolutely no hesitation in making a final intervention order, however, the magistrate declined to do so. 

8. The magistrate accepted Mr Vincent's evidence, which was essentially that he was a good father and had been concerned about Ms Reeves at the time of the parties' separation, particularly that she was drinking to excess and neglecting X who, at the time, of course, was a very small infant.

9. The magistrate was impressed with the demeanour of Mr Vincent and she believed him.  She did not, it would seem, accept Ms Reeves' evidence which, from the magistrate's perspective, was significantly undermined by two main factors. 

10. Firstly, the incident on 4 March 2013 when she had complained of a black eye the police officer who attended, who was Senior Constable Ms C, deposed that he had not observed any injury on Ms Reeves.  In addition, it was his statement that Ms Reeves had not made any reference at that time to an altercation with Mr Vincent.

11. In addition, the magistrate was influenced by a Facebook posting, which had been made on 17 October 2014.  That, of course, was the day on which the parties had been in this court and on which the formal allegation had been ventilated regarding the sexual abuse of U.  The alleged posting was as follows: 

    "How do you like that, you fucking cunt?  That will teach you for trying to control me.  Now I'm controlling you.  LMFOA" - which is apparently an acronym for the expression ‘laughing my fucking arse off’ - You are going to prison and I couldn't give a fuck if you die there.  All you men are just the same, just like my fucking father, a cunt.  No good for nothing prick."

12. Ms Reeves denies sending that posting or having anything to do with it, but from the perspective of Magistrate Fisher it had a significant influence on her assessment of Ms Reeves' credibility.  Essentially it would seem to be the case that the magistrate accepted submissions that Ms Reeves was capable of manipulation when it suited her and by implication of acting in malice. 

13. Anyway, the order of 7 August 2014 was discharged.  Accordingly, there was no formal restraint preventing Mr Vincent going about his business, including potentially coming into contact with Ms Reeves.

14. It is also Mr Vincent's evidence that a sign has been attached to a road sign in (omitted) which alerts the residents of (omitted), who are parents, to the fact there is a paedophile living in the vicinity of (omitted).  It is Mr Vincent's view, I think, that the sign refers to him, and is related to Ms Reeves, or somebody associated with her, and is an attempt to besmirch his name and reputation, and up the ante against him. 

15. In summary the father has not seen X since 11 July 2014, when the parties separated in (omitted) and after which Ms Reeves relocated to (omitted).  An order was made, at a fairly early stage, for Ms Reeves to enrol at the (omitted) Children's Contact Centre.

16. However, it seems to be the case that it is only comparatively recently, that is on 30 December 2014, that Ms Reeves has actually completed the enrolment process.  This has occurred only after the intervention of the Court.  This has added to further delay.  Very recently, the protracted intervention order proceedings have concluded with the dismissal of the application brought on behalf of the mother.

17. So, given that summary, it is obvious, I think, that the parties have a very difficult relationship with one another.  They have completely polarised views about the nature of that relationship.  From the mother's perspective she has been the consistent victim of quite serious violence, which has been fuelled by alcohol and methamphetamines. 

18. From the father's perspective the mother has fabricated these allegations.  He asserts that it is she, not he, who has issues to do with alcohol abuse, which have led her to neglecting X in the past and that, due to her difficult background, Ms Reeves has a propensity to fabricate allegations, most recently in terms of the sexual abuse of U, which he strenuously denies.

19. It is his position that he has not been formally interviewed in respect of that matter and he does not know what the intentions of the police or Families SA are, in regards to the allegations made against him.  Clearly, that is a significant matter indeed if true, but from the father's perspective he asserts that the mother has made the allegation to make things as difficult as possible for him and to cause him the maximum upset.  He would, I think, characterise it as a highly provocative incident.

20. The matter has been further complicated by what has happened after the dismissal of the domestic violence order.  On 9 January 2015 Ms Reeves brought an application in which she seeks that the father's time with X be suspended. 

21. From Mr Vincent's point of view, the irony of the situation is that he has not, as yet, had any time with the child and so there is nothing to be suspended.  However, the import of the mother’s application is that there should not be any supervised time between Mr Vincent and X at the (omitted) Children's Contact Centre.

22. The matter was listed before me urgently, as Ms Reeves requested, on 13 January 2015.  Mr Carlin appeared for the father on that occasion and Ms Du Barry appeared for the mother.  Mr Vincent had not had an opportunity to formally respond to that application, but Mr Carlin had filed the magistrate's decision in respect of the dismissal of the intervention application. 

23. In this context, I was informed that the father was due to spend time with X on 7 February, which is tomorrow, from 3.15pm to 4.15pm, and at the (omitted) Children's Contact Centre.  This explains the urgency in which these reasons are being delivered.

24. Mr Carlin has provided me with the letter from the contact centre, which has been provided to Mr Vincent.  The letter details how much each session is going to cost him, and also, insignificantly, the waiting time that Mr Vincent will have to stay at the children's contact centre once the child goes –  it is 15 minutes.  The letter also indicates that there are to be further visits on 21 February, 7 March, 21 March, 4 April and 18 April. 

25. At that stage, given the dismissal of the domestic violence application, I was not inclined to suspend that arrangement, but I did give Mr Vincent an opportunity to file further affidavit material and the proceedings were adjourned to 23 January 2015.

26. Mr Vincent was apparently ill between 13 January and 23 January.  I may have got those dates wrong.  Anyway, the matter could not proceed on 23 January and was adjourned until today, and Mr Vincent has filed a further affidavit. 

27. It is necessary for me to outline the circumstances which lead Ms Reeves to assert that Mr Vincent should not have any time with X.  As I have said, the parties were in court on 17 December 2014. 

28. At that stage, I made an order that X be independently represented.  I am grateful to the Legal Services Commission that Mr Seymour has been appointed and he has briefed Ms Read today.

29. That order was made because of the allegation involving sexual abuse of U and also because of the significant issues of family violence raised in the case.  It was also made prior to the dismissal of the intervention order, although those proceedings were part heard and no doubt emotions were still fairly significant. 

30. Anyway, on that occasion (17 December) Ms Reeves' barrister was Mr Childs.  Mr Childs has asserted that Mr Vincent assaulted him outside the courtroom.  Mr Childs asserts that he felt a firm bump "to my upper right shoulder blade area" and he saw Mr Vincent walking away from him. 

31. Mr Childs yelled something, but he cannot recall exactly what he said and Mr Vincent said words to the effect of “it was an accident.”  The incident was reported and, apparently, there was close-circuit television footage of the incident. 

32. It is a significant thing for anybody to be assaulted in a court building.  People are entitled to be safe everywhere but, particularly, in courtrooms and court precincts where they come to have their cases sorted out sensibly and respectfully.  The people who work in such an environment are also entitled to be safe.

33. I said, when the matter first came before the Court, that I would not tolerate anybody behaving badly in Court and, from the mother’s perspective, it is evidence that Mr Vincent, if things do not go his way, is incapable of keeping his temper. 

34. In any event, the police have seen the CCTV security footage and they have not elected to charge Mr Vincent with assaulting Mr Childs and they are, apparently, viewing the matter as an accident. 

35. In his affidavit, Mr Vincent says he felt emotional after the hearing, which involved an allegation against him of sexual abuse.  He says he walked past Mr Childs, who was standing on the first floor.  Thereafter, Mr Childs, on Mr Vincent’s evidence, stepped backwards and he asserts that “my right forearm made minimal contact with his back area.”  

36. Thereafter it is Mr Vincent’s recollection that Mr Childs apparently said “excuse me” and Mr Vincent said “I’m sorry” and continued walking on.  I have not seen the CCTV footage and nor have the parties’ lawyers.  As I understand it, the police, at this stage at least, are not going to charge Mr Vincent.

37. Ms Reeves further deposes that she was not aware that the domestic violence proceedings had been concluded with the discharge of the interim order on 24 December.  It is her evidence that after the dismissal of the intervention order, Mr Vincent has embarked upon a campaign of intimidation against her. 

38. She says, on Christmas Day when she was at her home, the father drove slowly past her home.  The following day, Boxing Day, he followed her to the residence of some friends on (omitted) and surveilled her, and on the third occasion, threw some papers on to the front lawn of the property, which related to the dismissal of the charges against him.

39. More significantly, on 28 December 2014, she was at her home in (omitted).  As I indicated at the outset, that was X’s birthday.  There is no dispute between the parties that Mr Vincent attended.  The police were called.  Mr Vincent agrees that he did go to the mother’s home. 

40. It was his position, as expressed in his affidavit which was filed, or handed to me today, that he wanted to see X, or X, on her first birthday.  He said there was no intervention preventing him from going to Ms Reeves’ address.  He wanted to give his daughter two teddy bears for her birthday.

41. He says that when he got there, the house was full of people.  V answered the door and said, “Daddy, daddy” whilst running up to him and then giving him a cuddle.  He says that he did not do any harm or want to cause any upset by attending at Ms Reeves’s home. 

42. I have already observed that it probably was not a very sensible thing for him to do, given the problems in the parties’ relationship.  Anyway, it is the mother’s view that this was a further example of the father’s campaign of intimidation against her.

43. On 29 December, Ms Reeves was, again, with her sister, Ms J.  She asked Ms J to check Mr Vincent's Facebook page.  There was a posting on the page, which Ms Reeves asserts can only be a reference to her and be designed for her to discover as, indeed, it was by her sister Ms J.  The posting, amongst other things, says:

    “You think I was a cunt in 2014.  2015 is going to be a whole new level, and I’m not going to stop until you’re completely insane.”

    On the Facebook page is a picture of a skull smoking - I think it is a joint - with a jaunty hat on and the posting is shared with somebody called (omitted). 

44. There is an earlier posting, which makes reference to Mr Vincent’s apparent disgust that the police, following what has happened following the dismissal of the earlier intervention order, have apparently filed a further interim restraining order against him.  More significantly is the suggestion in the posting that the poster of it might either commit suicide himself out of frustration or, and this is the quote:

    “Just delete both problems and let the kids grow up better.”

    From Ms Reeves’ perspective, this is a veiled threat of violence against her.

45. From Mr Vincent’s perspective, these are further mechanisms – that is the word he uses – to keep him from having any form of relationship with X.  He says that there was material on his Facebook page.  Some of it had been found loaded from a support group for men.  He says he did not send anything to Ms Reeves and he did not want her, or anyone associated with her, to access his account which, he says, happened without his consent. 

46. So I think it is the underpinning of his position that if Ms Reeves has read something unflattering about herself, she did that only because she illegally, or unlawfully in some way, accessed his account.  The precise mechanics of that I do not know.

47. So that is what brings us today. Mr Seymour’s view as expressed by Mrs Read, today, is that the Court should permit the time long envisaged between X at the Children’s Contact Centre occur tomorrow.

48. She would further propose that each party be restrained from posting anything about the other on Facebook or any other social media sites.  In addition she asks the Court to investigate whether it would be helpful to get Mr Vincent psychiatrically assessed to see if he is a pathologically violent person or has any insight into his behaviour. 

49. Essentially, Ms Read submitted, I think, that Mr Vincent had not helped his case by what had occurred after the dismissal of the intervention order and she was concerned as indeed, is Ms Reeves, about his apparent lack of insight into how he is perceived by others.

50. Mr Hemsley, on behalf of Ms Reeves, has made very forceful and persuasive submissions.  It is his submission that it is clearly the case, on the evidence available to me, that Mr Vincent has serious anger management problems. 

51. In support of that submission, he asserts that the Court must have very serious concerns about a person who interferes with a barrister outside Court.  In addition, he would categorise Mr Vincent’s behaviour since, as a campaign of terror against his client whom he would categorise as being vulnerable. 

52. From Mr Hemsley’s perspective, the envisaged process of supervision is an open-ended process, which has no clear objective in sight because it cannot, at this stage, be seen to be a prelude to any other form of time, given the uncertainty about Mr Vincent, raised by his recent behaviour.  Supervision cannot continue indefinitely but ideally must progress to something else, which is uncertain in this case. 

53. In those circumstances, Mr Hemsley asserts it is not prudent for the Court to embark upon the process, until it has evidence that Mr Vincent has done something about his temper, or there is some assessment as to whether anything, indeed, can be done about his apparently impaired level of insight.  Necessarily, that would take some time and therefore Mr Hemsley has submitted that the court should not embark upon the process of supervised time at this juncture.

54. Mr Carlin has, similarly, made an impassioned statement on behalf of his client and points to the fact that Mr Vincent has not seen X since 11 July 2014.  I am not particularly adept at arithmetic but that must be either close to, or over, half of the child’s life.  It, of course, was moving, I think, to think of him having the two teddy bears at his daughter’s birthday party although, perhaps from the mother’s perspective, that was a sinister piece of behaviour.  I do not know.

55. Anyway, that is the background which brings us to this point. I have to closely consider allegations of family violence. Family violence is defined in section 4AB(1) of the Family Law Act. It means:

    “…violent, threatening or other behaviour by a person that coerces or controls a member of a person’s family, or causes the family member to be fearful.” 

    Interestingly, in section 4AB(2) the legislature has given examples of behaviour that may constitute family violence. They include the following:  stalking, derogatory taunts, damaging property as well as assaults.

56. So the mother would assert that she has, in effect, since 25 December, been stalked by Mr Vincent, whose behaviour has frightened her.  She asserts that his behaviour is a means of threatening or controlling her and falls within the definition of family violence contained in the Act.

57. In my view, it is difficult to conclude anything other than that, given the history of the parties’ relationship, the arrival of Mr Vincent unannounced and unbidden at her home, driving a car and even appearing with gifts at a birthday party, given the parties’ relationship with one another, is likely to cause Ms Reeves to be frightened.

58. This is also a case involving an allegation of sexual abuse of a nine year old child.  I am duty bound to take such allegations seriously.  It is abhorrent that any adult would sexually interfere with a child of nine years of age.  It is very serious.  One’s natural inclination is to be revolted and think it cannot possibly be true but the sad reality is that children are sexually abused.

59. In addition, however, it is not completely unknown for allegations of abuse to surface in vitriolic proceedings such as these, and for the allegations to be made for tactical reasons or as a result of an innocent mistake.

60. Whether that is so with U and what she has said or not, I do know, but naturally a person who is accused of child abuse is likely to be very upset and may react in ways that are not strictly predictable or even acceptable, I suppose. That is, to a certain extent, the nature of such allegations.

61. At this stage, although the allegation has been outstanding for some time, the police investigation has not completed and necessarily it must continue to inflame the parties’ difficult relationship with one another.

62. In determining what arrangements should be made in respect of X, I must remember that her best interests are the paramount, or most important, consideration. 

63. In determining what is to be the outcome best for X, I must pay attention to a long list of matters in section 60CC of the Family Law Act. That creates two categories of matter. Firstly, primary considerations and then a longer list of what are termed additional considerations.

1. There are two primary considerations.  Firstly, the benefit to the child concerned of having a meaningful relationship with both of the child’s parents and, secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

2. However, as a result of an amendment to the Act which was made in 2012, I am directed to give pre-eminence to the protective concerns relating to physical or psychological harm. 

3. Accordingly, I have to make some sort of assessment of the risk which may come to X of spending time with her father at the (omitted) Children's Contact Centre.  

4. The time there will be supervised by an independent and trained person. It will take place at a facility, which is designed to ensure that children and their time with a parent is properly supervised. The Centre will also have been constructed to deal with situations where the users of the centre concerned have difficult relationships with one another, including in situations where there have been both allegations of family violence and cases where there has been an actual finding of family violence.

5. As I have indicated, the note that Mr Vincent has received from Anglicare (omitted) is that he has to wait 15 minutes once the child has left the centre and it is, of course, routine for the arrivals and departures of parents to be staggered at such centres, so that the parties concerned do not come into direct contact with one another. 

6. So it would seem, in objective terms, the child is likely to be safe within the centre itself.  Of course, there are other issues in regards to family violence.  I have to think about the mother’s safety getting to and from the centre, and it is in that context that the allegations which are made assume some significance. 

7. The mother asserts, I think, firstly that the father cannot be trusted.  If he stalked her after Christmas, why would he not stalk her again outside the Children’s Contact Centre, notwithstanding the staggered arrival and departure times and the expertise of the operators of the service itself. Secondly, she would assert that Mr Vincent is a person whose level of violence is pathological, which calls for special measures.

8. Thirdly, I have to think about how Ms Reeves will cope with the time in an emotional sense.  Is she emotionally robust enough to deal with this regime?  She is X’s undisputed primary carer.  If she is upset, that may have implications for her ability to properly care for X.

9. On the other hand, I also have to think about X herself.  She is a little girl.  She is just over one.  She has an entitlement to have a proper level of relationship with her father, and I have no reason to think anything other than Mr Vincent cares about her. 

10. There are risks in the Court severing a potentially worthwhile relationship between a child and a parent.  From Mr Vincent’s perspective, the years of early childhood are the important ones in which he will form a bond with X.

11. He is anxious to start spending time with his daughter.  It may be the case, for all I know, that X has, because of the time which has passed, a very rudimentary understanding of who Mr Vincent is.  I do not know.  It is a significant period of time.

12. There are risks, I think, in allowing the supervised time to occur.  The situation between the parties is volatile.  It seems to be likely that both parties have contributed to this level of volatility from time to time.  Neither party, I think, is likely to be reluctant to be critical of the other. 

13. However, balancing all the risks concerned, I have come to the conclusion that it would not represent an unacceptable risk to this child, if the supervised time is allowed to occur.  I am satisfied that this case is within the management potential of the contact centre, and X and Ms Reeves will be objectively safe.

14. In those circumstances, I think I have to give close considerations to the benefit X will have from beginning to know her father.  I am also concerned that further delay will inflame the parties’ relationship and make it even more difficult.  But the parties need to be under no illusions.  They are both going to be under very close scrutiny. 

15. If there are any more inflammatory postings on Facebook, I will have no alternative but to stop any interaction between X and her father.  Facebook is a fairly contemporary and recent phenomenon, the societal effect of which continue to play out. 

16. I do not know what anybody is thinking at any one time.  Nobody does.  We only know what somebody is thinking if they say something or behave in a particular way.  One of the consequences, I think, of Facebook is that people are inclined to share their spontaneous and unfiltered thoughts with the world, at large, instantly through media such as facebook.  They do not necessarily consider that such thoughts have the potential to be frozen forever on the internet for all to see.

17. The process has a spontaneity about it but, unlike thoughts which appear in the mind and then disappear and do not go anywhere else and are forgotten, what is put on Facebook does not disappear.  It stays there forever. 

18. Both parties, I think, would be wise to think about that.  They may want to share their frustration with this process, their antipathy about the other party with their friends, associates, and even with the world in general but they are not, I think, free to do so.

19. In all these circumstances, I confirm that the father is have supervised time with the child commencing on 7 February 2015 at the (omitted) Children's Contact Centre, at the times specified by the director of the centre and subject to his or her supervision.  The visits are to take place at the expense of Mr Vincent.  As I understand matters, those visits will conclude on 18 April and it will take some little time for there to be a report prepared.  The effect of these orders is to confirm the earlier orders of Judge Kelly.

20. Until further or other order, each party is restrained and an injunction is issued restraining each of them from posting any inflammatory material concerning the other, or any material in relation to these proceedings and any children affected by them, on Facebook or any form of social media.

21. In addition, each party is restrained and an injunction issued restraining each of them from abusing or denigrating the other, or permitting any other person so to do, in the presence or hearing of the child.

22. During the period of the adjournment the father is to undergo any random drug screen test as directed by the Independent Children’s Lawyer on being given 24 hours written notice, but there are to be no more than two such drug screen tests within the period of the adjournment and they are to take place at the expense of the father.

23. I will make the orders as set out at the commencement of these reasons for judgment and adjourn the further hearing of the matter to 9.30 am on 30 April 2015.  The import of the orders is that the process of supervised time will commence as originally ordered by Judge Kelly.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  24 April 2015