Allery & Florence

[2021] FCCA 785

FEDERAL CIRCUIT COURT OF AUSTRALIA

Allery & Florence [2021] FCCA 785

File number:	DNC 479 of 2018
Judgment of:	JUDGE YOUNG
Date of judgment:	15 March 2021
Catchwords:	FAMILY LAW – parenting – where the mother alleges the child has been sexually assaulted by the father – where the evidence relied upon is hearsay – where the allegation requires proper investigation – where the children’s time with the father is suspended in the interim due to the serious nature of the allegation.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	9
Date of hearing:	15 March 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Holtham of Story & Associates
Solicitor for the Respondent:	Ms Bowen of Bowen Lawyers

ORDERS

DNC 479 of 2018

BETWEEN:

MR ALLERY

Applicant

AND:

MS FLORENCE

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	15 MARCH 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That orders 5, 6, 7, 8, 9, 10 and 11 of the orders made on 3 July 2020 be suspended until further order of the Court.

2.That the children X born in 2011 and Y born in 2012 (“the children”) shall live with the mother.

3.That the mother is restrained and an injunction is hereby granted restraining the mother from discussing these proceedings or the allegations set out in the Application in a Case filed on 15 March 2021 with any person except for her legal representative, Northern Territory Police, Territory Families, and any medical practitioner involved in investigating the allegations.

4.That the father is restrained and an injunction is hereby granted restraining the father from approaching or communicating with the children.

AND IT IS ORDERED:

5.That the father is to file and serve a Response, a Notice of Risk and an Affidavit in support within 21 days of the date of this Order.

6.That the applicant has leave to serve a subpoena upon Dr B and the primary school where the children are enrolled and attend.

7.That leave is granted to the parties to inspect only and the parties’ legal representatives (and to include the Independent Children’s Lawyer, any family consultant and family report writer) to inspect and copy any subpoena material produced in these proceedings (SAVE AND EXCEPT for those marked confidential).  Information cannot be disclosed to persons not a party to these proceedings, save and except for expert witnesses NOTING leave is granted on the condition that all copies are destroyed at the conclusion of the matter and that the legal representatives keep the copies in their possession until that time.

8.In the event any party (or the Independent Children’s Lawyer) in these proceedings seeks to rely upon any material produced pursuant to subpoena then such documents shall be put before the Court by way of affidavit to be filed and served on or before the next court date as follows:

(a)setting out short reasons for the inclusion of each set of documents, including  reference to any current pleadings; and

(b)annexing such material as is considered relevant; with

(c)the affidavit to be paginated, indexed and exhibits tagged.

9.Pursuant to section 69ZW of the Family Law Act 1975 (Cth) Territory Families, Housing and Communities provide the Court with the following documents or information from the period of 7 February 2020 to the present date:

(a)copies of any notifications regarding abuse allegations arising or relating to the children X born in 2011 and Y born in 2012;

(b)any assessments or investigations into such abuse allegations;

(c)the outcome or findings of any such assessments and  investigations;  and

(d)copies of any reports received by Territory Families, Housing and Communities in the course of investigating any such notifications.

10.That neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon Territory Families, Housing and Communities without the Courts leave.

11.That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born in 2011 and Y born in 2012 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.

12.That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

13.That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and/or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

14.That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

15.That this matter be adjourned to 16 April 2021 at 9:30am (NT Time) for further consideration.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

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 a matter where there are existing interim orders concerning two children:  X, who is almost ten years old and Y who is eight years old.  The mother has filed an Affidavit and an Application in a Case which insinuates that the father has sexually assaulted X.

3. The mother relies on a piece of hearsay evidence, namely that X said words to the effect – “I think Dad is doing something to me” – to a gynaecologist, Dr B, during an appointment at the private hospital on 12 March 2021. That alleged statement occurred in the context where the child was taken to the gynaecologist to, apparently, investigate what appeared to be pre-pubertal vaginal bleeding.  The mother’s affidavit states that the matter was reported to the police and Territory Families for investigation. The report was, apparently, made on the same day the child is alleged to have made that statement to Dr B. 

4. There are some other hearsay remarks alleging that the child’s aunt and cousin had recorded disclosures by the child that her father touched her “boo boo” which was the word used in the family for vagina.

5. There was, apparently, another report made last year. It was not explained if this report concerned sexual assault.  Those matters, in my view, do not take the matter anywhere. 

6. The child was, however, subsequently taken to the sexual assault referral centre at Darwin Hospital where she was medically examined.  Dr C examined the child and he, in short, noticed nothing unusual.  He said, however, that the child was pre-pubertal so any vaginal bleeding would not be explained by menstruation. The vaginal bleeding is, therefore, quite unexplained.  The child reported to Dr C that the bleeding only occurs when she is in her father’s care and occurs about every three weeks.  It is noteworthy that the child made no complaint of sexual assault to Dr C. 

7. Nevertheless, the allegation of sexual assault is an extremely serious allegation. It is one that is in a series of allegations made over the years between the parties, including other allegations of sexual assault which were previously investigated and found to be without substance. It should be noted, however, that in one of those investigations Territory Families concluded that the child was suffering emotional harm at the hands of her mother. There are many reasons to be cautious about this matter but nevertheless the allegation has been made, albeit in very vague terms.

8. In the circumstances until the matter can be properly investigated I will suspend the spend time orders for both children with the father.

9. I also propose to make the following orders:

   (1)That the father is to file and serve a Response, Notice of Risk and Affidavit in support within 21 days.

   (2)A section 69ZW order;

   (3)That an Independent Children’s Lawyer be appointed;

   (4)That the parties legal representatives be permitted to inspect and copy any subpoena material produced; and

   (5)That the matter be adjourned for further consideration to 16 April 2021 at 9.30am.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       20 April 2021