Boston and Boston (No. 2)

[2013] FamCA 831

FAMILY COURT OF AUSTRALIA

BOSTON & BOSTON (NO. 2) [2013] FamCA 831

FAMILY LAW – CHILDREN – Interim Orders – where the father made an oral application seeking injunctive orders against the mother’s current partner in relation to the children – best interests – orders made restraining the mother from permitting her partner from being present when the children are present in any premises where they are residing or attending and from otherwise having any communication with them.

Family Law Act 1975 (Cth)
Summary Offences Act1953 (SA) s 26D

M & M (1988) 166 CLR 69

APPLICANT: Mr Boston

RESPONDENT: Ms Boston

INTERVENOR:

FILE NUMBER: ADC 1946 of 2012

DATE DELIVERED: 17 October 2013

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hurley

SOLICITOR FOR THE APPLICANT: Stevanja & Associates

COUNSEL FOR THE RESPONDENT: Mr Eid

SOLICITOR FOR THE RESPONDENT: Kelly & Co

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The mother is restrained and an injunction is granted restraining her from permitting MR A being present when the children L born on … 1996 and R born on … 2002 are present in any premises where they are residing or attending and from otherwise having any communication with them.

1. Both parties are restrained and an injunction is granted restraining them from discussing the Family Court of Australia proceedings or the possible criminal proceedings with either of the children in the presence or hearing of the children or permitting any other person do so or otherwise making denigrating remarks of the other parent.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boston & Boston (No. 2) 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 ADELAIDE

FILE NUMBER: ADC 1946 of 2012

Mr Boston

Applicant

And

Ms Boston

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the matter concerning the children’s issues, I have permitted an oral application to be made seeking injunctive orders in relation to the welfare of the children because of the unusual circumstances of this matter.  Although there is no current Application in a Case specifically seeking the injunction now sought, the matters contained in the annexure to the husband’s affidavit (being annexure 24 to the affidavit of the husband filed on 11 October 2013) clearly raises significant issues concerning the welfare of the child, R born in 2002 and therefore indirectly, the welfare of the two children (the other being L born in 1996) who are now under the age of 18. 

2. I note that the child R is referred to as “RR” in the documents filed by the father and has been so referred as RR in submissions.  I shall refer to him as RR for the purposes of these remarks.  He was born in 2002 and has only just turned 11.  The events to which the father makes reference in annexure 24, all happened before his eleventh birthday, when RR was 10 or younger.  When I say younger, I refer to the number of “film clips” which the father observed on the iPad which was brought by the child to the father’s premises.

3. Annexure 24 refers to viewing the contents on 9 August 2013.  Thereafter, it refers to the incidents of RR being filmed.  He refers to the first clip of RR appearing totally naked in his daughter’s bedroom at the Suburb K address (which is the mother’s address) executing a cartwheel with his genitals clearly visible;  completing the cartwheel and then disappearing out of the room.

4. It is alleged that the clip then allows the person viewing the clip to hear Mr A’s voice laughing.  Mr A has been described as the mother’s partner, but it is put to me this morning that he does not reside permanently at the mother’s address.  The annexure then continues to refer to another family clip when RR appears, clothed, partially pulls down his pants and exposes his buttocks.  The material suggests from the father’s remarks that the film was being carried out by Mr A or at least in his presence.

5. There is another clip with the child breaking wind into the camera and another clip in which it is alleged that Mr A made offensive swearing remarks. The material, to which I have referred at annexure 24, is then also referred to by way of letter from the father of 23 August 2013.  There are suggestions that the police have started inquiries and there is a dispute as to whether the police have completed their inquiries concerning possible charges against Mr A.

6. This is material which was in the affidavit of the husband filed on 11 October 2013.  I allowed an oral application to be brought concerning the injunctions today.  I have stood the matter down for counsel for the mother to take instructions and have heard some submissions from the bar table that the mother considers the behaviour to have been teenage foolery or “tomfoolery” and asserts that she was in the house at the time of the films being made.

7. The Court’s obligation is clearly set out in the Family Law Act 1975 (Cth). That is to ensure that the best interests of the children are the paramount consideration. One of the primary considerations is to protect the children from harm and that includes psychological and emotional harm. I have also been referred to the Summary Offences Act1953 (SA) s 26D, in relation to the offense of indecent filming.

8. I am not in a position to make, and certainly would not, at an interim stage, without hearing the evidence and having evidence tested, make any conclusion as to whether any criminal offence has occurred.  I am concentrating solely upon what I consider to be the orders which are necessary to ensure that the best interests of the children are protected.  The behaviour described in the husband’s annexure, is behaviour which in no doubt could be described as a child behaving stupidly or carrying out some “tomfoolery”.

9. What is the concern however, is not the child behaving in that manner, but the fact that an adult has participated in filming that behaviour and apparently not discouraging the child behaving in that manner for the purposes of being filmed carrying out those activities.  At this interim stage, therefore the best interests of the child require steps to be taken to protect the children in that household from any risk of abuse.

10. As the High Court said in M & M (1988) 166 CLR 69:

    If there is a risk of abuse then at the existence of that risk and the possible harm to the child, is one of the fundamental matters to be taken into account in deciding matters concerning the children.

11. I am therefore of the view that in order to maintain what would be proper arrangements for the child, it is appropriate to make an injunction preventing the children, at this interim stage, from having any further direct contact with Mr A.  In making that decision, I have weighed up the submissions on behalf of the mother, which indicate that the mother is in a relationship with Mr A and that this would impact upon her relationship.

12. However her responsibility as a mother and the Court’s responsibility to protect the children, outweigh those factors and that it is in the best interests of the children that an injunction be made on this interim basis directing the mother not to permit the children to have any further contact with Mr A. 

13. One of the other features is the fact that there may still be outstanding criminal proceedings pending in which Mr A may be charged with an offence concerning the child as a victim.

14. That is another factor which would promote the child, RR, not having any contact with the alleged offender.  It is necessary to protect the child from coming into contact with a person who has on more than one occasion, filmed the child behaving in that inappropriate way.

15. The allegation that is made and is on this interim basis, although yet to be tested, is a significant allegation which requires the orders sought by the father.  I therefore order that the mother is restrained and an injunction is granted restraining her from permitting Mr A from being present at any premises where the children are residing or attending and from otherwise having any communication with the children.  That is an order until further order. 

16. There is a request that there be an injunction preventing the mother from discussing legal matters with RR and denigrating the father to the children.  On many occasions I make an order that would restrain both parties from discussing the Family Court proceedings or any possible criminal proceedings with either of the children or from denigrating the other party.  That is appropriate in this case.

17. I make an order that both parties are restrained from discussing the Family Court proceedings or the possible criminal proceedings with either of the children or permitting anyone so to do in the children’s presence or from otherwise making denigrating remarks concerning the other parent.  The exception to that would be the proper investigations carried out by the police department. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 October 2013.

Associate: 

Date:  29 October 2013