Bronte and Bronte and Anor

[2009] FamCA 826

FAMILY COURT OF AUSTRALIA

BRONTE & BRONTE AND ANOR [2009] FamCA 826

FAMILY LAW – CHILDREN – best interests of the child – prior history of sexual abuse – with whom a child lives – with whom a child spends time

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004

APPLICANT: Ms Bronte

FIRST RESPONDENT: Mr Bronte

SECOND RESPONDENT: Mr Driscoll

INDEPENDENT CHILDREN’S LAWYER: Ms Keyworth

FILE NUMBER: BRC 1355 of 2008

DATE DELIVERED: 25 August 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 25 August 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms King
Rhonda Sheehy & Associates

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Billimoria, Town Agent for

Ward Keller Lawyers

NO APPEARANCE BY THE SECOND RESPONDENT

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Keyworth, Family Law Doyle Keyworth & Harris

Orders

UPON THE UNDERTAKING by the Applicant Mother MS BRONTE that:

(a)She will not physically discipline A born … April 1994, B born … February 1995, C born … April 1998 and D born … June 1999 (“the children”);

(b)She will use her best endeavours to ensure that MR F will not physically discipline the children;

(c)She will attend a Triple P Parenting or similar course with a focus on teenagers and/or abused children and also an Anger Management court, within 6 months; and

(d)She will use her best endeavours to ensure that MR F will attend both a Triple P Parenting or similar course with a focus on teenagers and/or abused children and also an Anger Management Course within 6 months

IT IS ORDERED THAT

1. All previous parenting orders are hereby discharged.

2. The children A born … April 1994, B born … February 1995, C born … April 1998 and D born … June 1999 (“the children”) live with the Mother.

3. The Mother have sole parental responsibility for the children.

4. The Father spend no time with the children.

5. The Independent Children's Lawyer shall be discharged on 30 April 2010.

IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC1355 of 2008

MS BRONTE

Applicant Mother

And

MR BRONTE

First Respondent Father

And

MR DRISCOLL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In May 2009 the father in these proceedings pleaded guilty to a four count indictment, charging him with indecently dealing with his child.  In May 2009 the father was sentenced in respect of those four serious criminal offences. 

2. He was sentenced to a total period of imprisonment of three years and six months, backdated to the second week of May 2009, which is the date he was first taken into custody in respect of the offences.

3. The orders of the Supreme Court of the Northern Territory in Darwin make it clear in respect of that sentence that, after the father serves eight months, the balance of that sentence will be suspended. 

4. On the last occasion that the matter was before the court I received information from the bar table that the effect of that will be that the father will be released on a date eight months after May 2009, and thereafter be subject to the suspended sentence, which has an operational period of two years and 10 months from the date of release.

5. At the time of passing sentence the sentencing Judge of the Supreme Court of the Northern Territory said this:

   While I make note of these [mitigating] factors, and the personal pressures you were under at the time of the offending, the fact remains that you have sexually interfered with your biological daughter.  This conduct violates one of society’s most fundamental taboos, and constitutes a gross violation of your daughter’s trust.  Your actions have, and most likely will, continue to affect your daughter’s life in a detrimental way.  She has stated that her life will never be the same because of your actions.  Your offending calls for a gaol sentence to reflect society’s abhorrence of what you have done. 

6. Unsurprisingly, the sorts of impacts that his Honour there refers to are reflected in reports which this court has before it from Dr M, who is a consultant psychiatrist who has seen both A and B, and in a report prepared by a family consultant attached to this court, Ms T, which was released on 17 December 2008. 

7. On 13 August 2009 I gave leave to the father to withdraw his application for parenting orders, which was contained in a response filed by him on 3 October 2008.  At that time I also ordered that a copy of the report prepared by the Department of Communities (Child Safety Services) pursuant to section 69ZW of the Act be provided to each of the parties. 

8. I ordered the Independent Children’s Lawyer to serve by post a copy of the order made that day on the solicitors for the father, and on the father personally.  The reasons for that are obvious.  He is incarcerated, and should know the fact that the mother seeks parenting orders in his absence, and have an opportunity to respond. 

9. No response in any form has been received from the father by the court.

10. The orders made by me on that date noted that the mother sought to obtain orders in default today, and also noted that the independent children’s lawyer intended conducting further investigations with respect to the best interests of the children prior to the hearing today. 

11. The independent children’s lawyer, Ms Keyworth, informs me that, pursuant to the indication given to the court on that occasion, she has inspected a significant quantity of subpoenaed documents. They are somewhat voluminous, unsurprisingly, given the nature of the allegations and what has occurred in this clearly dysfunctional family.

12. Amongst significant concerns expressed by Ms T, and clearly evident from Dr M’s report, are a number of positives which allow this court to make orders in the form sought by the mother and supported by the independent children’s lawyer, and neither consented to nor opposed by the second respondent. 

13. In particular, the subpoenaed material inspected by the independent children’s lawyer indicates that, in the midst of significant issues with respect to the family, the mother has evidenced good protective behaviours, and the Department came to the view that the good protective behaviours exhibited by the mother outweighed any risk to the children which might otherwise have been indicated from the Department’s investigation.

14. A similar theme can be seen evident in the report of Ms T.  In particular, at paragraph 20 of her report Ms T refers to the fact that the mother has:

    ...demonstrated a capacity to seek help for her children when she is experiencing difficulties with their behaviours, or when she becomes aware of issues that have arisen with them.  Examples include her placing [A] into voluntary foster care for a week to give both [A] and the family some respite.

15. Ms T goes on to say:

    In recent years she has arranged professional ongoing counselling for [B], and is liaising with the school to support her quest to encourage [A] to attend professional counselling.

16. During the course of the proceedings before me this morning, given the concerns that have been expressed in the reports to which I have made reference and the subpoenaed documents, I asked Ms Keyworth to outline those matters evident from the subpoenaed documents and each of the reports which had been considered by her in arriving at her assessment that the orders sought by the mother (and not opposed by the second respondent, or, for that matter, the father) were in the children’s best interests.

17. In that respect it should be noted that Ms Keyworth sought from the mother, and the mother readily provided, undertakings which have been given in a formal way, and which will form part of the orders made by me. 

18. Those undertakings refer to physical discipline of the children, in particular by her current partner, Mr F, and an undertaking by the mother to attend a Triple P or similar parenting course, and to use her best endeavours to ensure that Mr F will also attend such a course within six months of the date of these orders. 

19. It seems to me that if the mother conscientiously and sincerely participates in such a program, it is highly likely to be of significant benefit to her parenting. I do not say that in any sense in a patronising way. It is well known, and I can take notice of the fact, pursuant to section 144 of the Evidence Act, that those courses are availed of by a significant cross-section of the community, and, in turn, that significant cross-sections of the community (many of whom do not experience difficulties of the sort experienced by the mother in this case) have found such courses to be significantly beneficial to their parenting.

20. That undertaking by the mother, together with the other undertakings given, seem to me to provide the sort of protection that the circumstances of this case might envisage. 

21. Rule 10.15A of the Family Law Rules 2004 provides for what a court must do in circumstances where consent orders are sought in circumstances where allegations of abuse have been made. In this case, strictly speaking, the Rule does not apply. Nevertheless, it seems to me appropriate that I take into account the sorts of matters that are contemplated by that rule.

22. Within its terms, it seems to me that, in this case, where allegations of abuse have been made, the orders seek to protect the children by reference to two things. 

23. The first and most obvious is that part of the orders is that the father shall spend no time with the children.  That reflects not only the fact that he is currently incarcerated, but also the serious matters the subject of the abuse found against him.  The children are accordingly protected by that order. 

24. Furthermore, as I have already indicated, the undertakings sought by the independent children’s lawyer, and given by the mother, are likely to provide the mother and her partner, should he choose to avail himself of the course, with the sorts of skills that are likely to assist them in their parenting and dealing with the ramifications for the children of the abuse that I have earlier referred to, and that were referred to by the sentencing Judge of the Supreme Court of the Northern Territory.

25. In all of the circumstances, and in the difficult circumstances of this particular family, it seems to me that the orders sought, which contain the undertakings to which I have earlier referred, best meet the best interests of these particular children and their particular circumstances, and I make orders accordingly. 

26. I have also included an order that the independent children’s lawyer be discharged, but only on 30 April 2010.  Ms Keyworth did not seek to be heard in opposition to that order. 

27. The reason for it is that the orders contemplate the mother, and hopefully her partner, undertaking the courses referred to in the undertakings within a period of six months. 

28. I have chosen a period of eight months to allow the independent children’s lawyer to ascertain whether the mother has, in fact, complied with that undertaking, and a period of approximately two months for the independent children’s lawyer to take such action as she might consider appropriate, if any, in the circumstances then pertaining in relation to the undertaking and orders otherwise made. 

29. For those reasons, I make the orders already indicated. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate:     

Date:  4 September 2009