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Change of Residence Due to Family Violence






ADC 1304 of 2016











Ex Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. This is an application concerning a child, X, who is four and three quarter’s years old.  Consent orders were made between the parties on 3 December 2018 that the child live with the mother and spend time with the father three nights a fortnight, essentially, plus some other time. 
3. On 24 June, the father commenced proceedings seeking an order that the child live with him until further order and seeking orders that the child spend supervised time with his mother.  The father’s affidavit alleged that the child had been exposed to family violence in the mother’s home and further, has alleged that the child was displaying bruises and the child had complained that he had been hurt by the mother’s partner, Mr B.
4. The father has said that he has reported those matters to the Department of Child Protection and the police, though I had noticed there is no evidence that the child was taken to a doctor to be examined.  If he was displaying bruising, I would have that that would be something that was most important.  If it’s now too late, that becomes a problematic issue concerning the evidence.
5. The father made various other allegations that the child was showing an untreated staph infection and so on.  He also alleged that the mother uses methamphetamine though he didn’t identify methamphetamine as the illicit drug in question, he certainly, was implying that the mother was using methamphetamine, based on her appearance.  He also said that she was presently homeless and transient and living in emergency accommodation provided by a family violence or women’s safety service in South Australia.
6. The father belatedly tendered in evidence a text message dated 22 June from the mother’s partner, Mr B, which will become exhibit A1.   That text message reads as follows, and it referred to a period when the father had decided to retain the child in his care.  The text message sent on 22 June says as follows, and I quote:

Oi, why won’t you give X back to us? Ms Callery is at mine now saying you won’t hand him back.

Ms Callery, of course, is the mother.

7. The counsel for the mother confirmed some part of the father’s allegations.  He confirmed that on the weekend of 30 or 31 May 2020, there was an incident at the mother’s home between her and Mr B.  Following that, Mr B was taken into custody, it would appear by the police and kept in jail for a period.  The mother was unclear how long. 
8. I asked that the mother be called to give evidence about some of these issues and she was, and she was asked questions.  She said that she did not wish to say what had happened between her and Mr B on 31 May, if that’s the date it was.  And she declined to provide any details of what had occurred between her and him. 
9. She had also instructed Mr Koziol, who appeared for her today that she had had no contact with Mr B following that episode of what I would take to be family violence.  A family violence order was made on a date that’s unclear but appears to be about 5 June 2020, arising out of that incident.  The terms of the family violence order are unclear to me.  But as I understood the submission from the mother’s counsel, the family violence order prohibited any contact between the mother and Mr B and that order has been in place since 31 May 2020.
10. I asked the mother how it was if there was a family violence order in place, Mr B would have sent a message to the father in the terms that I have quoted above?  The mother gave a very long and convoluted answer.  As far as I could make out, the gist of it was that the father was subject to a home detention order.  Why he would be subject to a home detention order was not stated.  I suspect, the reason is that the family violence episode on 31 May was not the first such episode and there was an existing family violence order in place against Mr B.  And that whatever happened on 31 May was a breach of that existing order.  I don’t know, that is speculation, because I’m satisfied, I was given minimal assistance by the mother to set out what had occurred. 
11. She said, as I say, in her convoluted answer, that she and Mr B were required to negotiate about the use of their shared motorcar.  She said that she negotiated with Mr B through Mr B’s father.  She said that Mr B pursuant to a home detention order was living at his parent’s home.  She did not tell me that, initially, but after some questioning. 
12. She said that, as I understood her evidence, that she had been at that home at some point on 22 June.  She told me in response to a direct question that she had not seen Mr B on that date, nor had she spoken to him on that date.  She said that Mr B must have got his information from his father.  She said that she did not, later in her evidence, which appeared to me to be possibly inconsistent with what she had earlier said, she said that she didn’t go to the house on that day where Mr B was living but went and stayed down the road somewhat.  Or as she said, “I was down the road.”
13. She said that when the message was sent, she was back at her emergency accommodation which, of course, would not explain why Mr B would have said, as he did, “Ms Callery is at mine now.”  Having heard Ms Callery’s evidence, I am far from satisfied that it is safe to send this child back into her care.  It appears that the child may have been exposed to a very significant episode of family violence.  On the basis of what I’ve heard from Ms Callery today, I am not satisfied that she is being frank with the Court. 
14. In the circumstances, I am satisfied there is an unacceptable risk of harm to this child, in particular, of being exposed to further episodes of family violence if the child resides with the mother.   
15. In relation to time, the father is seeking an order that the child spend time with the mother on two occasions a week, Tuesday and Thursday from 1 to 5 and that the time be supervised by the father’s partner.  I am not entirely satisfied that that is appropriate as I know nothing about the partner or her relationship with the mother. 
16. The mother proposes any order for supervision and seeks an order that the child spend three days a week from 9 or 10 am to 5 pm with her, unsupervised.  Having regard to the unsatisfactory nature of the mother’s evidence, I do not propose to make that order.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Young.




Date: 23 July 2020

Posted in: Derek Legal Blog at 01 September 20

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