Children and Domestic Violence – breaking the cycle
An interesting case where the Court (at the Mother’s request) restrained the Mother from living with any male persons for three years to aid the breaking of the cycle of the children being exposed to domestic violence while in the Mother’s care.
Williams & Morton [2015] FamCA 1068 (2 December 2015)
Last Updated: 15 December 2015
FAMILY COURT OF AUSTRALIA
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Family Law Act 1975 (Cth)
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REPRESENTATION
ORDERS
IT IS ORDERED BY WAY OF FINAL ORDER THAT
(1) All previous orders and parenting plans are discharged.
(2) The children B, born … 2006, and C, born … 2008, live with the mother.
(3) The father and mother have parental responsibility for the major long term issues for the children in the following manner:
<li “=””>(a) the parents shall have shared parental responsibility for the children in relation to major long term issues about:
<li “=””>(i) the children’s names; and<li “=””>(ii) changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent; and<li “=””>(iii) the children’s religious and cultural upbringing; but
<li “=””>(b) the mother shall solely have parental responsibility for the children in relation to all other major long term issues including:
<li “=””>(i) the children’s education (both current and future); and<li “=””>(ii) the children’s health.
(4) Before making a decision about any issue falling within the purview of Clause (3)(b), the mother shall:
<li “=””>(a) inform the father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and<li “=””>(b) allow the father twenty-eight (28) days after the provision by her of the information referred to above to respond to the same in writing; and<li “=””>(c) consider the father’s response, if any, when coming to her decision about any such issue; and<li “=””>(d) make a genuine effort to come to a joint decision with the father about any such issue but, if no agreement is reached, then she shall make the final decision about such issue; and thereafter<li “=””>(e) inform the father of the final decision she has made with respect to that issue as soon as practicable thereafter.
(5) The mother shall be responsible for the daily care, welfare and development of the children when they are living or spending time with her.
(6) The father shall be responsible for the daily care, welfare and development of the children when they are spending time with him.
(7) The children shall spend time with the father at all times as may be agreed between the parents in writing but, failing agreement as follows:<li “=””>(a) from 9.00 am until 4.00 pm on the first, second, third and, if it occurs, fifth Saturday of each calendar month; and<li “=””>(b) from 9.00 am until 4.00 pm on the third and, if it occurs, fifth Sunday of each month; and<li “=””>(c) from 9.00 am Christmas Day until 4.00 pm Christmas Day in even numbered years; and<li “=””>(d) from 9.00 am Boxing Day until 4.00 pm Boxing Day in odd numbered years; and<li “=””>(e) from 9.00 am until 4.00 pm on Father’s Day; and<li “=””>(f) from 9.00 am until 4.00 pm on each Tuesday and Thursday of any school holiday period if the father gives the mother no less than 28 days’ notice in writing of his intention to spend time with the children on these occasions.
(8) If the mother gives the father notice in writing by 4.00 pm on 6 December in any year of a period not exceeding fourteen (14) consecutive days between 27 December that year and the recommencement of the first school term the following year, the operation of Clause (7)(a), (b) and (f) of this Order shall be suspended during that period.
(9) If the children would not otherwise be spending time with their mother on Mother’s Day, they shall remain in her care that day and shall spend time with their father from 9.00 am until 4.00 pm on the next Sunday on which they would not otherwise be spending time with him in accordance with this Order.
(10) The father and mother shall conduct all changeovers:<li “=””>(a) until 31 May 2016: at the E Town Contact Centre; and<li “=””>(b) thereafter: unless otherwise agreed by the parents in writing – at the carpark of the D Town Shopping Centre.
(11) Each party shall be entitled to have another person attend changeover on their behalf, provided that such person is known to the children.
(12) If they have not already done so, each parent shall, within seven (7) days, do all acts and things necessary to enrol at the E Town Contact Centre.
(13) The costs of the E Town Contact Centre in facilitating changeovers shall be paid as follows:<li “=””>(a) until the father discharges the amount currently owing by him in respect of child support assessed as payable to the mother: the father shall be totally responsible for paying such costs; and<li “=””>(b) after the father discharges the amount currently owing by him in respect of child support assessed as payable to the mother: each party shall be responsible for paying half of such costs.
(14) The father shall not consume or be under the influence of alcohol at any time when the children are spending time with him.
(15) Within fourteen days (14) of the date of this Order, the mother do all things necessary to ensure that the children start to attend upon a counsellor or psychologist specialising in supporting children who have been exposed to domestic violence and abuse and, thereafter, ensure that they attend upon such counsellor or psychologist for as long as that counsellor or psychologist reasonably considers beneficial for them.
(16) The mother has liberty to provide a copy of the Family Report prepared by Mr F (dated 3 November 2014) and a copy of the Reasons for Judgment delivered in support of this Order to any counsellor or psychologist upon whom the children attend.
(17) At any time when the children are in their care, neither parent shall:<li “=””>(a) use illicit or illegal drugs or allow the children to be in the presence of persons using illicit or illegal drugs; nor<li “=””>(b) perpetrate acts of domestic violence upon the children or allow the children to be exposed to persons committing acts of domestic violence against others.
(18) During the time the children are with either parent, that parent shall:
<li “=””>(a) respect the privacy of the other parent and not question the children about the personal life of the other parent; and<li “=””>(b) speak of the other parent respectfully; and<li “=””>(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
(19) The mother and father shall:
<li “=””>(a) keep each other informed at all times of their residential address and landline and mobile contact telephone number; and<li “=””>(b) keep each other informed of the names and addresses of any treating or other health practitioners who treat the children; and<li “=””>(c) inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children; and<li “=””>(d) keep each other informed of any school or educational facility at which the children attend.
(20) By this Order, any doctor, health care and other treatment provider upon whom the children attend is hereby authorised to provide each parent, at that parent’s request and cost, with all such information as they are lawfully able to provide about the children.
(21) By this Order, any school or educational facility at which the children attend is hereby authorised to provide each parent, at that parent’s request and cost, with such information as they are lawfully able to provide about the children.
(22) Subject to any conditions imposed by the children’s schools, each parent is at liberty to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
(23) The father shall:<li “=””>(a) attend upon and complete an anger management course; and<li “=””>(b) participate in and complete a programme designed to assist perpetrators of domestic violence to refrain from violent behaviours,
with such organisation/s as notified by the Independent Children’s Lawyer in writing within twenty-eight (28) days of the date of this Order.
(24) The father has liberty to provide a copy of the Family Report prepared by Mr F (dated 3 November 2014) and a copy of the Reasons for Judgment delivered in support of this Order to any counsellor, therapist or psychologist upon whom he attends as required by Clause (23) of this Order.
(25) The Independent Children’s Lawyer has liberty to provide the Chief Executive of the Department of Communities, Child Safety and Disability Services with a copy of the following documents:<li “=””>(a) affidavit of Mr Williams filed 8 October 2014;<li “=””>(b) affidavit of Mr Williams filed 17 August 2015;<li “=””>(c) affidavit of Mr Williams filed 3 September 2015;<li “=””>(d) affidavit of Ms Morton filed 8 October 2014;<li “=””>(e) affidavit of Ms Morton filed 6 August 2015;<li “=””>(f) affidavit of Ms Morton filed 4 September 2015;<li “=””>(g) Family Report by Ms G dated 13 March 2014;<li “=””>(h) Family Report by Mr F dated 3 November 2014.
(26) The mother shall deliver the children to Child Dispute Services, Family Court Australia Brisbane Registry at 4.00 pm on 3 December 2015 for the purposes of enabling Mr F to explain this Order to them.
IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT
(27) For a period of three (3) years from the date of this Order, the mother is restrained and an injunction issue restraining her from leaving the children in the care of any male person other than:
<li “=””>(a) educational and health care professionals; and<li “=””>(b) a parent of any of the children’s friends in whose care they may be for the purpose of events like sleepovers and/or camping trips; and<li “=””>(c) the maternal grandfather, Mr H Morton; and<li “=””>(d) her brother, Mr I Morton; and<li “=””>(e) her brother-in-law, Mr J.
(28) For a period of three (3) years from the date of this Order, the mother is restrained and an injunction issue restraining her from sharing her accommodation with any male person other than:
<li “=””>(a) the maternal grandfather, Mr H Morton; and<li “=””>(b) her brother, Mr I Morton; and<li “=””>(c) her brother-in-law, Mr J.
(29) The mother will attend upon a general practitioner within seven (7) days of the date of this Order for the purpose of obtaining a referral to a clinical psychologist for the purpose of undertaking psychotherapy in respect of:
<li “=””>(a) the impact of domestic violence upon her and her children; and<li “=””>(b) understanding why she has repeatedly entered into abusive relationships; and<li “=””>(c) developing and implementing strategies to improve her confidence; and<li “=””>(d) developing strategies to ensure the children are protected from domestic violence and abuse.
AND IT IS FURTHER ORDERED THAT
(30) For the purposes of Clause (29) of this Order, the mother has liberty to provide her general practitioner and any clinical psychologist, upon whom she attends for the purpose of undertaking the psychotherapy referred to above, with a copy of:
<li “=””>(a) the Family Report prepared by Mr F, dated 3 November 2014; and<li “=””>(b) this Order; and<li “=””>(c) the Reasons for Judgment delivered in support of this Order.
(31) The mother shall attend all appointments and interviews and follow all reasonable instructions provided by the clinical psychologist upon whom she attends for the purpose of undertaking the psychotherapy referred to above.
(32) The process used for resolving future disputes about the children or the terms or operation of these Orders shall be as follows:<li “=””>(a) the parents shall consult with an agreed Family Dispute Resolution Practitioner at a Family Relationship Centre to assist with resolving any dispute in relation to the children; and<li “=””>(b) the parents shall pay the costs of the Family Dispute Resolution Practitioner equally; and<li “=””>(c) in the event that, for any reason, they are unable to have an appointment with the agreed Family Dispute Resolution Practitioner or cannot agree on an alternate Family Dispute Resolution Practitioner, the father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability; and<li “=””>(d) the mother shall choose one of the listed practitioners with seven (7) days of the receipt of the list; and<li “=””>(e) if the mother fails to choose one of the listed practitioners within the prescribed time, then the father may choose one of the listed practitioners.
(33) Unless there are some emergency circumstances, before an application is made to a Court for a variation of this Order to take into account the changing needs of the children, each parent is to take the steps referred to in Clause (32) of this Order.
(34) The Independent Children’s Lawyer is discharged upon compliance with the terms of Clause (23) of this Order.
(35) All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
(36) Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.
FULL CASE: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2015/1068.html?stem=0&synonyms=0&query=hogan