Wyona and Cartwright & Anor

FAMILY COURT OF AUSTRALIA

WYONA & CARTWRIGHT AND ANOR

[2014] FamCA 781

FAMILY LAW – CHILDREN – Best interests – with whom the child shall live and spend time with – where the Secretary, Department of Family and Community Services (the Department) intervened and soon after assumed parental responsibility for the children – children’s views – where the children have meaningful relationships with the mother and she has been the primary carer – where the children have had a meaningful relationship with the father but at present, there is no way for that relationship to continue safely – where the father was provisionally diagnosed by the Ch 15 expert psychiatrist as having Paranoid Delusional Disorder – where the father is not focused on the needs of the children and lacks insight into his own mental health – where the father presently represents an unacceptable risk of harm to the children – children to live with the mother – father to spend no time or have any communication with the children – father restrained by injunction from approaching the mother and/or the children.

FAMILY LAW – CHILDREN – Parental Responsibility – where the mother and children have been exposed to serious family violence and need protection from further incidents – the mother to exercise sole parental responsibility for the children subject to her acceptance of reasonable directions and supervision of the Department for a period of 12 months.

FAMILY LAW – PRACTICE & PROCEDURE – Where the father made an oral application for an adjournment without notice – where none of the grounds the father relied on in support of his application justified the adjournment of a five day trial – application declined – where the father left the court room on the first day of the trial and did not return.

FAMILY LAW – PRACTICE & PROCEDURE – where the mother was granted leave to file an application seeking two orders – Where the mother sought leave for the release by this Court for use in an anticipated Apprehended Violence Order application, copies of the family report and Ch 15 Report – where releasing such documents, or part thereof, is fraught with risk of misunderstanding and publication – where orders are made pursuant to the Act restraining the father from approaching the mother or the children – where the mother can still seek assistance from State authorities – no such order made – where the mother sought that the father be restrained from filing any further applications without leave of the Court.

FAMILY LAW – CHILDREN – Where the mother has suffered considerable stress and needs some respite from court appearances and preparation – orders made for father to seek leave for further proceedings accordingly – application in a case dismissed.

Family Law Act 1975 (Cth) ss 60CC, 64B, 68B, 68C, 114, 121

APPLICANT:

Ms Wyona

RESPONDENT:

Mr Cartwright

INTERVENER:

Secretary, Department of Family and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Family Law Firm

FILE NUMBER:

(P)NCC

991

2012

DATE DELIVERED:

16 September 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

18, 19 and 20 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Mason Lawyers

RESPONDENT:

In person but left the Court room on first day

COUNSEL FOR THE INTERVENER:

Mr Boyd

SOLICITOR FOR THE INTERVENER:

Crown Solicitor’s Office

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Family Law Firm

(Mr Coyle)

Orders

That all previous orders regarding Y Cartwright-Wyona born … 2001, C Cartwright-Wyona born … 2005 and L Cartwright-Wyona born … 2009 (“the children”) are discharged.
That the mother exercise sole parental responsibility for the children subject to her acceptance of reasonable directions and supervision of the Secretary, Department of Family and Community Services (“the Secretary”) or his delegate for a period of 12 months from the date of these Orders and such supervision shall include, but is not limited to:
(a)permitting the Secretary or his delegate to conduct random home visits to the mother’s residence or any residence where the children live;
(b)accepting all reasonable directions by the Secretary or his delegate regarding the care of the children, including reasonable referrals for the children;
(c)continuing to engage with support services recommended by the Secretary or his delegate; and
(d)accepting all reasonable directions of the Secretary or his delegate to attend regular and/or random drug urinalysis testing.
The children shall live with the mother.
The father shall spend no time with or have any communication with any of the children.
Pursuant to s 68B(1)(a) of the Family Law Act for the personal protection of the children and s 68B(1)(b)(i) of the Act for the personal protection of the mother, the father is hereby restrained by injunction from entering or approaching:
(a)within 200 metres of any place where the mother and/or the children are living;
(b)within 200 metres of any educational institution attended by any of the children;
(c)within 200 metres of any venue where any of the children are participating in extra-curricular activities.
NOTING s 68C of the Family Law Act as follows:
(1)If:
(a)an injunction is in force under s 68B for the personal protection of a person (the protected person); and
(b)a police officer believes, on reasonable grounds, that the person against whom the injunction is directed has breached the injunction by:
(i)causing, or threatening to cause, bodily harm to the protected person; or
(ii)harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
(2)For the purposes of subsection (1), an injunction granted under s 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.
(3)Subsections 114AA(3), (4), (5) and (7) apply in relation to a person arrested under this section as if:
(a)the person has been arrested under subsection 114AA(1) because he or she was believed to have breached an injunction granted under section 114; and
(b)the person on whose application the injunction was granted under s 68B were the person on whose application the injunction under s 114 had been granted.
The father shall not, without leave of the Court, bring any proceedings in this Court.
In the event that the father is granted leave to bring proceedings in this Court, or files a further application in any other Court exercising the Family Law jurisdiction, in relation to the children or any of them, he shall ensure that such application is served within seven days of filing on the Director, Legal Services Department of Family and Community Services.
In the event that the mother files a further application in this Court or any other Court exercising the Family Law jurisdiction, in relation to the children or any of them, he shall ensure that such application is served within seven days of filing on the Director, Legal Services Department of Family and Community Services
The mother shall within 28 days file a written Undertaking to the Court that she will not:
(a)Denigrate the father or any member of the paternal family to or in the presence of the children or any of them and will not permit any other person to do so.
(b)Willingly expose or allow the children to be exposed to family violence, including but not limited to abusive language and to behaviour which is violent, threatening and/or coercive.
That the Application in a Case filed on behalf of the Mother on 18 August 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wynona & Cartwright and Anor 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 NEWCASTLE

FILE NUMBER: (P)NCC991 of 2012

Ms Wyona

Applicant

And

Mr Cartwright

Respondent

And

Secretary, New South Wales Department of Family and Community Services

Intervener:

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These are proceedings for parenting orders in respect of three children, sons, aged 12, almost nine, and five (“the children”). The children were born to a relationship between the parties which commenced in 1998 and ended in 2011.
The applicant, aged 31, is the mother of the children (“the mother”). The mother’s household consists of herself, the children, and her youngest child, from a recent relationship, aged nine months. The father of that child, who had been living with the mother, died in mid-2013 as a result of injuries from an assault.
The respondent, aged 36, is the father of the children (“the father”). The father’s household is unknown to the Court.
The Intervener is the Secretary, Department of Family and Community Services (“the Intervener”). The Intervener became a party in February 2014 and soon after assumed parental responsibility for the children.
The trial commenced on 18 August 2014. All parties were present, the father alone was unrepresented. The father made an unsuccessful application for an adjournment, after which he left the Court room and did not return. The matter proceeded in his absence.

The adjournment application on the first day of trial

An application by the father was made orally and without notice. The main grounds for the application were as follows, although interspersed with complaint and information.
The first ground related to the psychiatrist, Dr R, who had prepared the Chapter 15 expert report on the mental health of the father. The father had requested that Dr R be made available for cross-examination in Newcastle, rather than by telephone link from Sydney. No other party required him.
The Independent Children’s Lawyer tendered into evidence the letter which he sent to the father,[1] with a copy to all other parties, on 22 May 2014, setting out the projected costs for Dr R to give evidence from Sydney.
[1]Exhibit 1 (tendered 18.08.2014) **NB there are two Exhibit 1
The father submitted that Dr R should have been asked to give evidence in Newcastle, and complained that he had not been given the opportunity to find out the costs of the expert giving evidence in Newcastle. If the father appreciated that the costs had been calculated on the less expensive basis of the expert him giving evidence from Sydney, he did not acknowledge it.
The father denied receiving the letter from the Independent Children’s Lawyer, but I am satisfied that he did, mainly because he referred to the figures which were contained in that document.
The father did not pay any costs to the Independent Children’s Lawyer on account of the costs of the expert. The father had not communicated in writing or at all with the Independent Children’s Lawyer over the issue of Dr R. Although, the Independent Children’s Lawyer had been compelled to put restrictions on the way in which the father could communicate with him due to “The aggression and unpleasantness that you routinely inflict on other parties involved in these proceedings, myself included”.[2] Nevertheless the Independent Children’s Lawyer had made provision for communication to be able to take place and the father had not done so.
[2]Exhibit 1 (tendered 18.08.2014), Letter from the Independent Children’s Lawyer to father dated 30/01/2014
An indication was given by counsel for the Intervener that Dr R could be available by telephone, probably on Wednesday at 1.00 pm.
During the father’s interview with Dr R, the father had raised his suspicions as to why he had been compelled to travel from Newcastle to Sydney for the interview for the report. The father asked him whether he was involved in the conspiracy against him.
There was no basis for adjournment arising from this ground.
A second ground was that the father said had wanted to know the name of the counsellor who was seeing the children. The father had spoken to the solicitor for the mother about that, about two to three months prior, and was therefore not a basis for the granting of an adjournment
A third ground was that the father wished to know more about the criminal trial of the man charged with the “bashing murder” of the mother’s late partner in 2013. The father also raised the issue of whether the trial should be delayed until after that criminal trial.
None of those matters justified the adjournment of a five day trial.
The father was unable to restrain his language. He had come to Court without any of his documents, perhaps anticipating that an adjournment would simply be granted on his application. At 10.35 am, the father, in apparent anger and agitation, left the Court, having declared before doing so that if the outcome was unsatisfactory to him he would be back with further applications. The paternal grandmother, who had been sitting in the court room, also left. The father did not return to the Court room.
The father’s application for an adjournment was declined.

The applications

The mother

In her Amended Initiating Application filed 31 January 2014, the mother sought orders that the children live with her, that she have parental responsibility for them and that the father spend no time with them. She also sought an injunction restraining the father from contacting or communicating with the children.
On 18 August 2014 leave was granted to the mother to file and serve an Application in a Case. That application sought orders as follows:
(1)That the father be restrained from filing any further proceedings concerning the mother or the children;
(2)That copies of the family report and the psychiatric assessment of the father prepared by Dr R be released to the mother in support of a proposed application for an Apprehended Violence Order (“AVO”).
The Application was supported by an affidavit of the mother, in which she stated that the application was in response to the father’s remarks about continuing to make applications if he was unhappy with the outcome. Leave was granted for the filing of the Application, but the order sought for release of the two reports was denied. The restraint on the father making further applications without leave of the court was dealt with during the course of submissions on the second day.

The father

The father, in his Amended Response filed 23 July 2013, sought orders that the children live with him and spend time with the mother at a contact centre. The father had not taken up the direction to file a further amended response. He did, however, file a Notice of Discontinuance in relation to the property orders he had previously sought.

The Intervener

The Intervener, by application filed 5 June 2014 and amended by a subsequent minute of order, sought orders that the children live with the mother and that she have sole parental responsibility for them, subject to a period of 12 months supervision by the Department of Family and Community Services (“the Department”) on certain conditions. The Intervener also sought orders that the father spend no time with nor have any communication with the children and be restrained by injunction from approaching the mother or the children. Restraining orders on the mother’s conduct and in respect of certain specific issues were also sought.

The Independent Children’s Lawyer

The Independent Children’s Lawyer supported the position of the Intervener. He also made an application for the father to pay the costs of his representation of the children.

The issues

The issues which arose for consideration were as follows:
a)Drug use by each of the parties;
b)The mental health of the father in the context of his capacity to meet the needs of the children;
c)The mental health of the mother;
d)The extent and impact of family violence on the mother and children;
e)The extent and nature of the ongoing role of the Intervener;
f)Whether it was appropriate to release the family report and expert report to police for the purposes of the mother seeking an AVO.

History of the matter

The parties separated in mid to late 2011. The children remained living with the mother.
On 17 April 2012 the mother filed the first application in the Federal Circuit Court which proposed equal shared parental responsibility, residence for the children with her and alternate weekends and half school holidays with the father. She also sought a recovery order; the children were at that time with the father.
On 27 April 2012 a family consultant prepared a Memorandum to the Court, noting that the father did not attend and that the youngest child was two and primarily attached to the mother. An Independent Children’s Lawyer was appointed.
A further Memorandum to the court was prepared by the family consultant on 16 May 2012. The family consultant expressed concerns about the father’s mental health.
On 16 May 2012 the father did not appear in Court. Orders were made for the children to be returned to the mother to live and for the father to have supervised time with them. The father was not in Court due to having been taken into custody by police on outstanding warrants.
On 15 June 2012 the father filed a Response proposing that the children live with him, that he have sole parental responsibility for them, and that they spend alternate weekends and half school holidays with the mother.
On 3 August 2012 orders were made by consent for the father to undergo drug testing.
On 23 October 2012 an AVO was made against the mother for the protection of the father and children, despite orders made in the Federal Circuit Court that the children live with her.
On 7 December 2012 the father filed an Amended Response that the children live with him and the mother have supervised time at a contact centre.
On 14 December 2012 further interim orders were made, expanding the time the father spent with the children.
In January 2013 the mother says she was served with an application for an AVO for the protection of the father. During January and February 2013, the children mostly stayed with the father.
On 23 January 2013 the father filed a Contravention Application and Notice of Abuse (Form 4) alleging that the mother had assaulted the oldest child on 9 January 2013.
On 8 February 2013 the father filed an urgent Application in a Case asking for the children to live with him, in the knowledge that the mother had gone away on a booked cruise.
On 11 February 2013 the mother returned from her cruise.
On 26 February 2013 the mother filed an Application in a Case seeking recovery of the children from the father.
On 4 March 2013 the father did not attend at Court; a Recovery Order issued and the father’s time with the children was suspended for a period of time. A Limited Issues Report was ordered and on 12 March 2013, it was released. As a result of that report, further interim orders were made on that day for the children to live with the mother and spend time with the father at a contact centre once a fortnight.
On 30 May 2013 the father’s urinalysis tested positive for amphetamine and methamphetamine.[3]
[3]Exhibit 9
On 1 July 2013 an order was made for the appointment of a single expert psychiatrist to prepare a report on the father’s mental health.
On 23 July 2013 the father filed an Amended Response seeking the same parenting orders that he had sought in his previous application and also seeking de facto property orders.
On 9 September 2013 the father filed an Application in a Case for recovery of the children and for the Orders, which were made only six months previously, to be set aside.
On 24 September 2013 further interim orders were made. There was a request by the Federal Circuit Court for the Department to intervene and a suite of other orders restraining parental conduct, providing for parenting testing of the middle child, ongoing urinalysis by both parents, for the father to obtain a referral to drug and alcohol counselling and other orders.

On 25 October 2013 the mother appeared before the Local Court charged with assault of the oldest child. This arose from the incident in January 2013, when the father alleged that the mother had assaulted the child. The mother had conceded that she flicked her hand past the child’s face and her fingertips brushed his nose, scratching it, after he had threatened to break the maternal grandmother’s glasses.
On 27 November 2013 the Department declined to intervene in the proceedings.
On 18 December 2013 the proceedings were transferred from the Federal Circuit Court to this Court and further orders were made adjusting arrangements for time between the children and the father.
On 22 January 2014 the oldest child gave evidence in the Local Court regarding the alleged assault on him by the mother. The mother was not convicted.
On 23 January 2014 the Chapter 15 report was released. Dr R diagnosed the father, on a provisional basis, as having paranoid delusional disorder, which he described as “a psychiatric disorder which is extremely difficult to treat”.[4] The final proceedings were expedited. Also on this date, the Department removed the oldest child from the father.
[4]Chapter 15 expert report dated 16/11/2013, p 11, line 387
On 28 January 2014 the Department filed an application in the Children’s Court at Broadmeadow for an emergency care and protection order.
On 31 January 2014 the mother filed an Amended Initiating Application seeking sole parental responsibility and no time for the children with the father.
On 13 February 2014 orders were made in the Children’s Court
On 14 February 2014 the Department filed a Notice of Intervention. The matter was given an urgent listing.
On 24 February 2014 the following events occurred:
1.      The father filed:
(i)an Application in a Case seeking an order that the children be returned to him, with the mother limited to supervised phone contact and restrained from approaching the father’s home;
(ii)a further Notice of Abuse (Form 4), alleging that the mother was violent and abusive to the children and allowed the oldest child to go with criminals who were planting drugs. He referred to the children as having observed a violent attack on the mother’s former partner; that attack having taken place in mid-2013 and leading to his death a few days later.
2.      The Secretary was joined as an Intervener.
3.      All previous parenting orders were suspended and upon the expiry of the order made in the Children’s Court, parental responsibility was allocated to the Minister with the children to live as directed and the father to spend time as supervised by the Department. There were other orders restraining conduct. The matter was expedited.
On 5 March 2014 the father appeared before a Registrar of this Court and requested an adjournment on the basis that he was seeking legal representation. A short adjournment was granted.
On 12 March 2014 the father was interviewed at the offices of the Department.
On 21 March 2014 the father appeared and advised the Court that he may not be pursuing residence in respect of the children and would be interested to pursue negotiations with the other parties and the Department.
On 30 April 2014 the Court was advised by the Department that the father had not responded to the letter sent to him by them on 14 April 2014. The father was given additional time to respond to that letter and engage in settlement discussions. The Court also noted the intention of the father to discontinue property proceedings.
On 16 May 2014 the father indicated that he was no longer interested in negotiation. Trial directions were made confirming the expedited hearing dates.
On 5 June 2014 the Intervener filed a Response.
On 25 June 2014 the father filed, late, a Notice of Discontinuance in relation to his proposed property settlement. All outstanding financial proceedings were terminated.
The father did not file any further amended response and further, did not file a trial affidavit by himself or any other person.
On 10 July 2014 a family risk assessment was undertaken by Ms M, a case worker from the Department who was allocated to the children and the mother.[5] The outcome of that risk assessment was a high level of risk of neglect and abuse. The main source of risk identified was the father.
[5]Affidavit of Ms M filed 12/08/2014, par 57
On 18 August 2014 the trial commenced before me. On that day the father appeared representing himself. He made an application for an adjournment of the proceedings then ceased to participate in the hearing of the matter.
On that day leave was granted to the mother to file an Application in a Case which was subsequently filed and later served on the father.
The mother, Ms M and Dr R were cross-examined.
On 20 August 2014 judgment was reserved.

The evidence

The documents relied upon are as follows:
a)Limited Issues Report by family consultant dated 12/03/2013;
b)Report of Dr R dated 16/11/2013, released 23/01/2014;
Mother
c)Amended Initiating Application of mother filed 31/01/2014;
d)Affidavit of mother filed 16/07/2014;
e)Affidavit of Ms W (maternal grandmother) filed 16/07/2014;
f)Application in a Case of mother filed 18/08/2014;
g)Affidavit of mother filed 18/08/2014;
Father
h)Amended Response of father filed 23/07/2013;
i)Notice of Risk of Abuse (Form 4) filed by father on 24/02/2014;
j)Notice of Risk of Abuse (Form 4) filed by father on 23/01/2013;
The Intervener
k)Response to Initiating Application filed 05/06/2014;
l)Affidavit of Ms M filed 12/08/2014.

Oral Evidence

Ms Wyona, the applicant mother

The mother chose not to disclose her residential address. She had until recently been living with her parents, but is now in rental accommodation with her four children. The mother was pregnant when her late partner was assaulted and later died. Her baby son was born about four months after the death of his father. The mother has experienced family violence in her relationship with the father and now more recently, the traumatic experience of losing her partner to a violent assault.
She presented in the witness box as straightforward and balanced. She expressed her wish to live independently of supervision by the Department but acknowledged her willingness to cooperate if ongoing supervision was ordered by the Court. She also stated in a genuine way that she had been assisted by the Department, both by advice and as a buffer against the father’s conduct.
The Department conducted a safety assessment of the children’s placement with the mother and found that they were safe in her care. Unsurprisingly, given the turmoil in her life in recent years, she has experienced depression. In April 2014, the mother engaged with a psychologist and implemented a mental health plan with her general practitioner, which included prescribed anti-depressant medication.[6]
[6]Affidavit of Ms M filed 12/08/2014, pars 40, 41
The mother candidly conceded that she had used illicit drugs in the past. I have no reason to doubt that she has ceased such use. The mother has cooperated with random urinalysis and all screens returned a negative result with one test displaying a low level of creatinine perhaps raising a doubt, but no negative outcome following.
The mother seemed to be fully engaged with the children; she has kept them in the same schools despite her recent move and they participate in weekend activities such as football and swimming. The mother has actively sought the advice of the Department and followed it. She was asked what she would do if the children asked to see the father, and I accept her statement that she would tell the children that the father was still not well and that he was not able to do the things he needed to do and so would not be able to see the children because of that.
The mother uses smacking as a means of discipline, although I accept she understands that at a certain age, that method is less effective.
I accept her evidence that she is still frightened of the father, based on his conduct during the relationship and since. Records from Queensland Police reveal violent and coercive conduct by the father towards the mother, in particular in an incident where police were called to the caravan where the parties were living. The father lied to police, stating that the mother had left with the children. In fact the mother was hiding under a mattress as she had been directed to do by the father when she was found by police. She is described as “cowering”[7]. The police observed bruising to the mother’s left elbow and arm. The mother reported to police that the father had punched her at least four or five times around the shoulder or arm area.
[7]Exhibit 8, tag F3
Police were called out on more than one occasion in response to calls from members of the public about screaming and yelling between the parties.
I accept the unchallenged evidence of the mother that there were, throughout the relationship, instances of violence, where the father hit her, pushed her and “spoke down to her.” I also accept that she made complaints to New South Wales police from time to time, which she withdrew, in response to the father’s pleas for her to do so and his apologies for his conduct: “Please don’t go through with the charges”[8].
[8]Affidavit of mother filed 16/07/2014, par 9
The mother describes the father as having smoked marijuana during the relationship, which she did not seem to be inordinately concerned about. However on the first occasion she found him using the drug ice, she became very upset and what is described as a “large argument” followed.
Post-separation, the mother says that the father hit her at least 12 times in the days immediately following, after which he would be very remorseful and apologise. Those incidents occurred while the children were at home.
The mother appears to understand that although the children loved and admired the father, they were confused about why the father would treat her that way. I note her statement that the children showed support for the father when there was conflict, which is a matter of considerable concern for their own future development. To her credit, the mother continued to make arrangements for the children to see the father post-separation, with him travelling down from their last residence in Queensland to her new residence in New South Wales. The father very regularly changed his mind about arrangements at the last moment. The mother was flexible in arrangements because, “I know that the children loved spending time with him”.
Unfortunately after the mother moved to New South Wales, the father began an immensely abusive level of communication. The mother said she was receiving phone calls and text messages from the father “every five to 10 minutes for stretches of many hours.” These communications included inquiries about the children, requests to reconcile and sometimes rude, abusive, obscene comments and name calling. The mother suffered from the father’s change of mood, which was reflected in these various communications.
The parties came to an “in principle agreement” that the children would spend alternate weekends with the father from Friday to Sunday. There is a strong inference that once the father was living in the local area of the mother, he was both watching and following her.
In late March 2012 the mother delivered the children to the father and then went on to a friend’s place. The father contacted her wanting to talk; the mother told him she was at a friend’s place and his response was, “I know I just saw you walk in. Are you going to come and talk to me?”
The father thereafter contacted the mother a dozen times by phone or text message, telling her on each occasion who he could see coming in and out of the friend’s home. The mother reported the father’s behaviour to police, but decided not to pursue the advice about an AVO.
At Easter 2012, the father made a request to see the parties’ youngest child; the mother agreed. She and the child stayed with the father and the following morning, the father, who was clearly hoping for reconciliation made a sexual advance towards her. When the mother rejected the father’s advances, he assaulted her with a push which resulted in a split lip. The paternal grandmother intervened to assist the mother to leave. The father then insisted on keeping the children and for a couple of days, the mother allowed it to go on, including what she described as a barrage of text messages during those days.
There was then an event which suggests that the father was speaking to the children in a way which undermined their relationship with the mother. The oldest child left a message on the answering machine of the maternal grandparents as follows: “Dad said mum is a pro and she works at [a brothel] in Newcastle.” Ultimately, the mother was unable to see two of the children for almost seven weeks. The father enrolled the oldest child in a different school without reference to the mother. The mother was forced to file and urgent application for recovery, which was granted.
In early January 2013 the mother was served with an AVO filed in October of the previous year, for the protection of the father and all three children. This AVO was taken out by the father himself and not by police. It did not give any specifics of apprehended violence, but a generic statement of the existence of escalating behaviour. The children’s respect for the mother appeared to diminish at this time.
In January 2013 there was a scene between the oldest child and the maternal grandmother. He was threatening to break her glasses and the mother challenged his behaviour; she says this[9]:
I flicked my hand past his face and my fingertips brushed the bridge of his nose. His nose did not bleed and there was no redness, bruising or other mark on his face.
[9]Affidavit of mother filed 16/07/2014, par 61
A few days later, the mother reluctantly agreed to pressure from the older child that he spend a bit more time than a weekend with his father during the summer school holidays. During this extended time with the father, the father advised the mother that the oldest child would no longer be speaking to her, that he had taken him to police to make a statement and to report the incident involving that child and the maternal grandmother’s glasses. The mother was charged with breach of AVO, assault occasioning actual bodily harm and common assault domestic violence related. The oldest child remained with the father.
The mother went to the home of the father to collect the oldest child ready to return him to school. The father spoke to her in extremely insulting language in a loud and angry tone in front of the children.[10] Unfortunately police took the view that they could not assist the mother, despite the mother having orders that the child live with her and she was advised that he would continue to go to the school that the father had enrolled him in. The mother decided not to put the child under pressure and allowed the situation to continue until the next court event. The mother continued to make the two younger children available to the father pursuant to court orders.
[10]Affidavit of mother filed 16/07/2014, par 75
In February 2013 the mother received a message to say that both the younger children would not be returned and that the middle child feared for his safety, by inference, at the hands of the mother. The father declared that he would not return any of the children to the mother’s care, just before she was going away on a pre-booked cruise. She made the decision to go as arranged.
On her return the mother became concerned about the welfare of the children and the volatile mood of the father led to a fear on her part that he was using the drug ice again. The mother also became increasingly concerned about the father’s mental health. He was posting abusive material about his mother and brother on Facebook.[11]
[11]Affidavit of mother filed 16/07/2014, par 95
The father relied on the AVO to encourage the school to refuse to allow the mother to see the children, despite the court orders. Unfortunately that is what occurred. The father told the mother that he had been advised by the Department not to return the children. The mother investigated that situation directly with officers of the Department, who assured her that it was not true.
In late February 2013 the mother rang the school the children were attending and spoke to an Assistant Principal, who advised that the children had not been at school for three days and that the middle child had been admitted to hospital for reasons that he was unaware of and that he had not been able to contact the father. The mother went straight to hospital and found the middle child there. The hospital room was in a state of disarray. The father and the other two children were present and a young woman in her early twenties, who the mother did not know. She described the room in the hospital as a “mess with chip packets and other refuse around the room; the children looking unkempt.” The father reacted with considerable aggression to the mother being at the hospital; the youngest child began crying and begged to go with the mother.
The mother was advised that the middle child was in hospital with an infection in his leg, identified as scabies. Further, the mother was advised by a hospital social worker that the father and the three children had actually been living at the hospital because the father said they were all homeless. The mother explained that she had a home for the children, she was there with her partner and they could take them home at that time. The hospital refused.
Finally on 4 March 2013 orders for recovery of the children were made in the Federal Circuit Court. The children’s time with the father was suspended for a short time and thereafter the order was for all time to be supervised.
The mother then participated in interviews with the family consultant and on the release of the report, the children were confirmed to live with the mother and to spend supervised time with the father. Soon after, the father tested positive for amphetamine and methamphetamine. The concerns raised by the family consultant about the statements and presentation of the father led to the commissioning of a Chapter 15 expert to inquire into the father’s mental health.
Almost simultaneously with that order being made, there was the violent assault on the mother’s partner. He died of his injuries in hospital a few days later. The mother alleges that the father was somehow involved or knowledgeable about the attack that led to her partner’s death.
At that point the father filed an Amended Response, again seeking that the children live with him, but also making a property claim said to arise from the de facto relationship between the parties.
In September 2013 the father filed an Application in a Case seeking a recovery order and that the children live with him.
In October 2013 the mother gave evidence in the Local Court in relation to the prosecution of her alleged assault on the oldest child. At that time she was approximately eight months pregnant.
Dr R’s expert report was finalised in November 2013 and the mother gave birth to her youngest child soon after.
The father took the opportunity to raise concerns with the Court about family violence in the mother’s household; specifically he was referring to the assault on the mother’s partner and his death.
In January 2014 the mother again appeared in the Local Court in relation to the charge of assault on the oldest child. The child himself also gave evidence on that day. The mother describes the child giving evidence with the father as a support person, looking very uncomfortable and not wanting to be there. All charges against the mother were dismissed.

On leaving the court the father took the child with him, went to the police and wanted to lodge a further complaint. The pressure on the child at that time must have been crushing.
A few days later, the Department made an application in the Children’s Court; the mother was present. Since then, the mother has been pursued by credit collection agencies in respect of a car which was subject to finance. The father had had an accident in the car and he disposed of the wreck. The loan was not repaid. The mother has relied on her family to assist her with legal fees in defending the charge of assault in respect of the oldest child and defending and obtaining AVO’s. Ultimately, she obtained a grant of legal aid.
I accept the evidence of the mother that she feels both that she will never be able to communicate with the father again and that she worries constantly that he will take the children. Her fears are reasonable and justified given the conduct of the father. There is a strong suggestion that the oldest child was rejecting the mother and had aligned himself with the father, especially because of the court proceedings where the mother was charged with an assault on him.
The mother appears now to have reached a point of stability, particularly with the ongoing advice and assistance of the Department, therapy through a psychologist, anti-depressant medication and a mental health plan established with her general practitioner. She describes the children as having settled and being happier since they ceased seeing the father earlier this year. They all enjoy the experience of playing with and helping to care for their new brother.
The mother has shown impressive resilience in all that she has experienced and had to contend with, as a result of the father’s aggressive and abusive campaign against her.
The Department proposes parental responsibility for the mother with ongoing supervision by the Department for 12 months. In the circumstances, I regard this as a supportive measure for the mother. I accept that she feels that she would like to be independent and raise the children without further formal connection to the Department. However, I also accept the submission of the Intervener that the father’s reaction to whatever orders are made, if they are not favourable to him, is something that the mother and children may need protection from and the Department can offer that.

Ms W, the maternal grandmother

The maternal grandmother was not required for cross-examination. I accept her evidence that the behaviour of the children was very challenging in 2013. The oldest child in particular threatened to report the mother and maternal grandmother to police most days and was using foul language. He was being supported by the father at that time to report the mother.
The maternal grandmother also gave evidence in the local Court in respect of the charges against the mother arising out of the incident with her glasses. I accept that she found the experience “daunting and horrible”.
She observed that the court processes have taken “an enormous toll” on the mother who has been stressed and worried.
The maternal grandparents have provided solid emotional and financial support to the mother at considerable cost to them.

Ms M, Case Worker for the Intervener

Ms M conducted the risk assessment for the parents and has a good knowledge of the family.
The father expressed quite elevated ideas of himself as a parent to Ms M. He was able to list the things he felt he did well as a father, but when asked what he felt he could do better he stated:
I wish I could have picked a better mother [for the children]. I really wish I didn’t do some things with you guys like bringing them in here or calling the police cause you guys are against me.
The father was not candid with Ms M, denying drug use, other than as a teenager, despite his conviction in 2007 of possession of a prohibited drug.
The father was dismissive of the concerns about his mental health, despite the provisional diagnosis by Dr R made in November 2013 and the concerns raised by the Department about the father’s conduct with the children.
Ms M has been providing support for the family since January 2014.
Ms M was clear to say that although there had only been one random home visit, there was nothing untoward in the mother’s household and that the mother had been proactive with getting help from the Department in relation to the oldest child’s behaviour, which had been difficult to manage after the events of late 2013, early 2014. Ms M also stated that the mother had readily attended for drug tests and she was not critical in any way of the mother’s efforts to parent the children.
I infer from Ms M’s evidence that the good state of the children’s current functioning is attributable to the support and assistance that has been provided to the mother by the Department and as such, they are hesitant to withdraw that support, and indeed protection, prematurely. The Department is to be commended for this attitude, given the pressures on resources for other families.
Ms M connected the oldest child to a course of therapy which commenced on 1 August 2014. Although those sessions can continue, whether or not the Department has parental responsibility, they can only continue if there is an order for supervision. The need for the oldest child to have that ongoing therapy is evident, given the extreme pressure that was put on him to report on the mother, reject her and instead support the father. It has led him to disrespectful and challenging behaviour in relation to the mother and maternal grandmother and it may well be many months before he fully stabilises in his behaviour. He is 12 and due to start high school next year. It is most appropriate for supervision and support by the Department to continue and does not represent to any extent criticism of the mother’s parenting of the children.

Dr R, Single Expert psychiatrist

Dr R was positive about ongoing assistance by the Department for the mother, especially after he learned about the traumatic events in her life, including the death of a well-loved partner and the subsequent birth of their child. Further to that, that the mother has made a statement in respect of those criminal charges and is likely to have to give evidence again.
With great clarity Dr R set out the steps that the father would need to take in order to address his delusional thinking. He sounded a note of caution, however, about increased risks for the children if they became included in the father’s delusional and paranoid belief system. The evidence tends to support that at least the oldest child has been involved in that way.
I accept the assessment by Dr R that the father presently represents an unacceptable risk to the children, which accords with my own analysis of the evidence.

The law

The objects of the Act in relation to parenting Orders are to ensure that:
a)     children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)     to protect children from physical and psychological harm;
c)     to ensure that children receive adequate and proper parenting to help them achieve their full potential;
d)     to ensure that parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the child’s parents

The children have had a meaningful relationship with the father. As described by the mother, they love him and have greatly enjoyed his presence in their life in the past. However, at present, there is no way for that relationship to continue safely. The father is focused in an aggressive and vengeful way on the mother and also on them, as tools for that revenge. The mother says he warned her when the litigation began “I will win or send you bonkers in the process”
The children do have a meaningful relationship with the mother, who has been their primary carer through their lives.
In the event that the father recognised that his mental health was a detriment to the children and that he could function differently with treatment, then a meaningful relationship may be able to be restored. There is no present indication that the father recognises or acknowledges to any extent that he has a problem with mental illness or psychological function.
In those circumstances the need to keep the children safe outweighs the benefit of maintaining a relationship with the father.

Additional considerations

Section 60CC(3)(a) – any views expressed by the children and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

There are some worrying aspects of the views expressed by the children to the family consultant.
Early in 2013 the oldest child tended to minimise family violence, in what appeared to the family consultant to be an attempt to protect the father, “It was great when we all lived together we were all really happy” and when asked how his parents were post-separation, “Yeah they were good they had disagreements but I wasn’t really scared or anything.” He went on to describe what he would do if the arguing went from yelling to hitting and he described “running away to a friend’s house and trying to help his brothers take their mind off what was happening.” Tellingly, he said that he did not want to talk about what he had seen and heard between his parents, but he added this, “If I could turn into the Hulk I’d stop him [the father] but I don’t butt in”.
The oldest child has taken considerable responsibility for trying to solve family problems and for protecting his younger brothers. The child described himself as worrying about the father and knew that his presence, and that of his brothers, cheered the father up. He expressed a very strong wish to live with the father, whilst continuing to say he was happy to live with the mother; this was before the death of the mother’s partner. The child had liked his step-father and has no doubt been sad and traumatised by what happened.
The parties’ middle child was clear to say he felt safer with the mother. He also liked his late step-father. He was able to describe the abusive language that the father directed at the mother. He also described his older brother taking him and his younger brother to the park, in order to avoid the conflict between the parents and that he had felt very scared, especially when the father yelled loudly, “He scared me lots and lots”.
The middle child described the father as “Good, but he’s mostly a half a cranky dad. I get really frightened of dad’s angry face.” He described the mother as “good and happy, she gets really sad sometimes because she gets upset about us. She just gets worried and she cries.” He wanted the Court to know that he wanted to live with the mother. He also expressed fear that the father would come looking for them and take them again. It was a significant fear for him; not only being taken, but that there would be another fight.
The youngest child, who was not quite four when interviewed, spoke positively about the mother, his step-father, the maternal grandmother, but was able to say that the father had hit the mother and that he was scared. He felt safe in the mother’s home.
The views of the children expressed could be seen as the usual longing that children often express for their family to be together, but these children are significantly affected by the violence in their home and the angry abusive scenes caused primarily by the father.
In a situation such as this, where the children’s safety is the primary consideration, to the extent that their views are inconsistent with that, their best interests require that safety prevail.
All parties other than the father agree that the mother should have parental responsibility and I am confident that the mother will engage with the Department for assistance and for the safety of herself and her children for 12 months, until her situation has further stabilised.
This is a relationship that was characterised by mood changes in the father, which had violent consequences for the mother. All three children have been exposed to serious family violence and need protection from further incidents.
Accordingly the most appropriate course is for them not to have any contact or communication with the father growing up, unless and until he can address his behaviour, mental health and psychological function in a way that makes it possible for healthy relationships with the children to be restored.
Orders have been made accordingly.

Section 60CC(3)(f) – the capacity of the children’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The father

A most significant factor in this case is the mental health of the father, as a limiting factor, and his capacity to meet the needs of the children.
When the parties were interviewed on 7 March 2013, the family consultant flagged concerns about the father’s presentation, including the following:
-    his belief that the family consultant “had an agenda and could not be trusted”[12];
-    his references to the media becoming involved after which “everyone involved would be exposed and the truth will come out”[13];
-    his initial presentation as “defensive, agitated, avoidant and suspicious” followed soon after by a tearful level of distress[14];
-    his allegation that the middle child (then aged seven and a half years) had information regarding the mother dealing drugs and where she hid her drugs[15];
-    his reference to suing his mother and brother for forging his signature[16];
-    his assertion that the mother is a prostitute working in a brothel owned by police[17];
-    his stated belief that “everyone was against him and wanted him to die” but it was his job to “protect the children from the mother”[18];
-    his behaviour at an earlier child dispute conference in May 2012 “noticeably agitated; very vocal in the waiting area; and thought disordered with grandiose ideas”[19];
-    his denial of use of illicit drugs despite convictions for same[20];
-    his report of “lack of sleep, significant weight loss and distressed state [crying]”[21].
[12]Family Report dated 11/03/2013, par 30
[13]Family Report dated 11/03/2013, par 31
[14]Family Report dated 11/03/2013, pars 32 & 114
[15]Family Report dated 11/03/2013, par 37
[16]Family Report dated 11/03/2013, par 41
[17]Family Report dated 11/03/2013, par 44
[18]Family Report dated 11/03/2013, par 45
[19]Family Report dated 11/03/2013, par 104
[20]Family Report dated 11/03/2013, par 109
[21]Family Report dated 11/03/2013, par 114
The family consultant recommended a transfer of the proceedings to the Family Court and a report by a Chapter 15 expert in psychiatry. Further, the family consultant included in her report telephone numbers for mental health services that the father could access.

Appointment of Chapter 15 Expert

Subsequently an order was made for a Child and Family Psychiatrist to report on the father’s mental health.
On 31 October 2013 the father was interviewed by Dr R. During the course of providing a family history, the father is reported to occasionally “derail” and then start talking about “judges and solicitors collaborating against him”.[22]
[22] Ch 15 report dated 16/11/2013, p 5, line 143
Under the heading “Current Symptoms”, the psychiatrist referred to the father as having “grandiose ideas about being able to use mind games.”[23] Of particular concern is the production by the father during this interview of a tape of himself questioning the oldest child (then aged 11 years). Dr R described what he heard as “[the child] trying to give him [the father] answers to questions.” The father stated that he had “hours and hours of these tapes”.
[23] Ch 15 report dated 16/11/2013, p 6, line 189
The father stated to Dr R, as he had to the family consultant, his belief that the mother was working as a prostitute. He went on to say that there was a conspiracy involving “the judiciary, legal profession, police, paedophiles, prostitutes and bikies”.
The father expressed suspicion about having to travel from Newcastle to Sydney to be interviewed; he queried whether Dr R was “involved in the conspiracy.” This concern was raised by the father in support of his application for an adjournment. He wanted the expert to be available in person in Newcastle for cross-examination. Unfortunately he failed to respond to the information provided to him by the Independent Children’s Lawyer about the quantum of costs for him to appear in Newcastle. Likewise, he did not pay any funds in order to ensure his attendance.[24]
[24]Exhibit 1 (tendered 18/08/2014)
The father was quite agitated about this topic, especially as the Court had expressed a preference for the expert to be in person if he were to be required for cross-examination.
Under the heading “Mental State Examination”, Dr R observed the father to be:[25]
Rather suspicious and anxious.
His talk was normal in form and sequence. There was no abnormality of perception. However he did appear to have paranoid delusional ideas about there being a conspiracy from all of the constabulary and the legal profession as well as the ex-partner and all of her family.
His affect was anxious but showed normal reactivity. There was no cognitive disturbance. His insight into his situation and condition appears to be poor.
[25] Ch 15 report dated 16/11/2013, pp 9-10, lines 315-323
The ultimate opinion of Dr R was that the father was preoccupied with the mother and with “investigating this conspiracy.”[26] He was not focused on the needs of the children and lacked insight into his own thinking (described by the expert as “bizarre thinking”).
[26]Chapter 15 report dated 16/11/2013, p 10, line 352
Dr R expressed a strong concern about the “erratic presentation” of the father. He diagnosed a mental disorder described as Paranoid Delusional Disorder, noting it is an extremely difficult psychiatric disorder to treat. This was a provisional diagnosis based on the interview. The expert gave an unqualified opinion that the father presented an unacceptable risk to the children.
The central concern was that the father, by pressuring the children to make statements to support his beliefs about the mother’s alleged prostitution, was placing the children in a position of reporting to the mother.
Dr R went on to describe an outcome for the father, which involved intensive psychiatric treatment, including anti-psychotic medication and perhaps psychotherapy. Such treatment would ideally be in hospital. This could be achieved by cooperation and insight of the father, or involuntary treatment if he were a significant risk to himself or to others.

Dr R expressed two clear views. First, that if the mental state of the father improved so that he was no longer delusional, then he could recover well enough to have a healthy relationship with the children. Second, that if the father refused treatment or if treatment were unsuccessful, such that he continued to have a paranoid disorder with delusions, then his paranoia would continue. The expert predicted that this would mean that the father would continue to function in an irrational way with:
An ongoing drive to pursue evidence to support his fears that the ex-partner is a sexual abuser and that authority figures in Newcastle are attempting to undermine him.[27]
[27]Chapter 15 report dated 16/11/2013, p 12, line 417
Under those conditions, Dr R was concerned that unsupervised contact would expose the children to ongoing pressure from the father to say negative things about the mother. Therefore in that context, he recommended limited supervised contact.
Dr R attended by telephone for cross-examination. Prior to the commencement of questioning, I advised him that the father had attended Court representing himself; he had applied for an adjournment and had left the Court after about 30 minutes in an agitated and angry state, when it must have been apparent to him that the application would fail.
Dr R was asked about the significance of a statement made by the father during an interview with the Departmental case worker for the family. When asked about his relationship with the children, the father stated that he was “their whole world” and they trust him.[28]
[28]Affidavit of Ms M filed 12/08/2014, Exhibit AM-2, p 56, point 2
Dr R did not accept that this was evidence of a narcissistic personality. He said this:
Delusional Disorder overshadows personality factors. His delusional beliefs are likely causing such paranoid thinking.
He expressed the view that:
Contact with their father by the children would be risky for them if they become involved in the father’s belief system.
And:
That if the father continued to be as ill as he was when I saw him (October 2013), he constitutes an unacceptable risk to the children.
There is no evidence before me that the father took any step to address the provisional diagnosis made by Dr R, either by way of obtaining a further forensic assessment, or by engaging in treatment. Indeed, the father did not prepare an affidavit by himself or any person in support of his application for parenting orders. Accordingly there was no evidence of his current residence, employment, relationships or plans for the children and psychiatric treatment, if any.
Accordingly, I take the conservative approach of concluding that the father has remained ill with the disorder provisionally diagnosed by Dr R in October 2013.
I also take into account that of the 11 requests for the father to undertake urinalysis, only three tests were completed; two were clear and one on 30 May 2013 tested positive for amphetamine and methamphetamine.[29] The father was apparently using illicit drugs at a time when:
(a)the state of his mental health had been raised as an issue by the family consultant two months previously; and
(b)he denied to the family consultant ever using illicit drugs.[30]
[29]Exhibit 9
[30]Family report dated 11/03/2013, par 34
That the father would do so is a strong indicator that he was not focused on the interests of his children but on self-protection.
Accordingly, having accepted the expert evidence which accords with the concerns of the family consultant and the behaviour of the father during his brief attendance at Court, I conclude that the father presently lacks capacity to meet the needs of his children.

The mother

The mother has suffered depression for which she has sought treatment and advice. She takes prescribed medication and consults with a psychologist. She has also experienced high levels of stress and grief. Despite that, she remains attuned to the needs of the children and has accepted advice and referrals from the Department when she has asked for help.
I am satisfied that the mother has the capacity to adequately meet the needs of the children, supervised and assisted by the Department for a further year, in order to enable the children to settle and adjust, and then independently.
Those considerations have informed my decision to make the parenting orders sought by the Intervener and largely consented to by the mother and the Independent Children’s Lawyer.

Section 60CC(3)(j) & (k) - any family violence involving the child or a member of the child’s family and if a family violence order applies, any relevant inferences that can be drawn from the order

The mother and children have experienced severe traumatic family violence during the relationship and post-separation. It is a significant factor.
There is an unacceptable risk of further exposure to assault and threatening controlling behaviour by the father if he comes into contact with the mother and the children.

Further application by the mother

On the first day of hearing the mother was granted leave to file and serve an Application in a Case with two orders sought.

Release of reports to police/Local Courts

The order sought was for leave to file (by inference in a Local Court) as part of any application for an AVO, copies of family reports and psychiatric reports filed in these proceedings.
Counsel for the mother conceded that the protection of s 121 of the Act would be lost if such an order was made. The proposed order was modified to seek the release of only those pages containing recommendations at the end of the two relevant reports.
In my view, to release partial documents in that way is fraught with the risk of misunderstanding by police and judicial officers, as well as of publication.
The application was apparently provoked by the rude and aggressive presentation of the father in Court and the manner in which he left it. There was also some fear expressed on behalf of the mother about the reaction of the father to the Orders and Reasons for judgment when delivered in due course.
The application was opposed by the Intervener. Whilst not also opposed by the Independent Children’s Lawyer, both of those parties supported the current interim orders being made final. All parties present were effectively asking the Court for protective orders for the mother and children.
I do consider that it is a benefit for the children and the mother, who has sole parental responsibility for them, to have injunctions made restraining the conduct of the father in very similar terms to those sought by the Intervener.
The reasons for doing so relate to protecting their safety and stability under the supervision of the Department and thereafter. The mental health of the mother is well managed but she is vulnerable due to past traumatic events. The father is focused on critical attack on the mother, and the oldest child in particular was used by the father for this purpose. The children have been assessed to be at risk from the father’s actions. They require protection.
Orders have been made pursuant to s 68B of the Act accordingly. The power of arrest by police in the event of breach of the injunctions is a notation to those orders.
I note there is no evidence before me of a current AVO, although such orders have been made in the past in this State and Queensland.
Section 114AB(1) of the Act provides that s 68B and s 68C are not intended to exclude or limit the operation of a prescribed State law capable of acting concurrently with the section. To the extent that a situation arose not covered by the Orders made here, the mother is not constrained from seeking further assistance from State authorities.
Accordingly, I decline to make the order sought.

Restraint on further proceedings without leave

The original order sought was that the father be restrained from filing any proceedings in this or any other Court of competent jurisdiction concerning the mother or the children. The application was modified to refer only to this Court and the Federal Circuit Court.
The application was further modified to include provision for the restraint to be “without leave of the Court”.
The application was, on that basis, supported by the Intervener and the Independent Children’s Lawyer.
The history of filings by the father since the Initiating Application of the mother in April 2012 has been a Response, two Amended Responses and the following applications:
a)      23 January 2013 - Contravention Application and Notice of Abuse alleging assault of a child by the mother;
b)     8 February 2013 - Application in a Case for residence;
c)      9 September 2013 - Recovery Order and interim orders to be set aside;
d)     24 February 2014 - Recovery Order and restraint on mother and Notice of Abuse alleging violence and abuse by the mother on the children and involving them in illicit drug trade; supervision of her time with the children.
These applications were unsuccessful and the allegations not established.
The mother has also been charged by police with assault of a child, given evidence, watched the oldest child give evidence against her and had all those charges dismissed.
Whilst I consider that the applications of the father have been at least to some extent punitive and certainly ill-considered, they have not been frivolous.
However, they have caused the mother considerable stress and she needs some respite from court appearances and preparation.
Counsel for the mother properly accepted that if the father took up the recommendation of the psychiatrist to seek medical treatment and was assessed to have regained child focus, a further application would be inevitable and appropriate. However, I accept his submission that positive psychiatric evidence supporting such an application would easily see leave granted.
I do take into account the father’s statements made on the first morning of trial that if he did not get what he was seeking there would be more applications. Especially as he then left the Court when it became obvious that the matter would not be adjourned.
For those reasons an order has been made for leave to be required for further proceedings to be brought by the father.
An order has been made accordingly.

I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 16 September 2014.

Associate:

Date: 16 September 2014

[2014] FamCA 781

16 September 2014

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness

Remedies

Standing