Clery & Clery

Case [2022] FedCFamC1F 99

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Clery & Clery [2022] FedCFamC1F 99

File number(s): PAC 3118 of 2019
Judgment of: RIETHMULLER J
Date of judgment: 3 March 2022
Catchwords: FAMILY LAW – CHILDREN – Orders as to with whom children should live – Whether children to spend supervised time with or have supervised contact with father – Relevant Considerations – Family violence or risk of harm – Where father sentenced as a result of possessing child sexual abuse material – Where supervised time with father causes mother significant fear for children – No order for supervised time – Orders for gifts or cards on special occasions
Legislation: Family Law Act 1975 (Cth) ss 4(1AB), 4(1AC)(c), 4AB, 60B, 60CA, 60CC, 61DA, 65AA, 65D, 65DAC
Cases cited:

Garrod & Davenort [2018] FamCA 825

Keane & Keane [2021] FamCAFC 1

Kirby v Phelan [2003] VSC 43

YY v ZZ & Anor [2013] VSC 743

Number of paragraphs: 129
Date of hearing: 31 January 2022 to 4 February 2022
Place: Parramatta
Counsel for the Applicant: Mr Hill
Solicitor for the Applicant: Inner West Solicitors
Counsel for the Respondent: Mr Kelly
Solicitor for the Respondent: Nash Allen Williams & Wotton
Counsel for the Independent Children's Lawyer: Mr Francis
Solicitor for the Independent Children's Lawyer: Claremont Legal

ORDERS

PAC 3118 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CLERY

Applicant
AND:

MS CLERY

Respondent
AND:

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

3 MARCH 2022

THE COURT ORDERS THAT:

1.The mother have sole parental responsibility for the children X born 2010 and Y born 2016 (“the children”).

2.The mother shall inform the father in writing of any major decision that she makes in relation to the children’s medical treatment, education, and religion.

3.The children live with the mother.

4.The father be at liberty to communicate with the children in writing on the children’s birthdays, Father’s day, and Christmas.

5.Such communication, referred to in order 4, may be by a letter or a card and/or a gift (not electrical or electronic) on each occasion subject to the following conditions:

(a)the father shall ensure at all times:

(i)that the contents of his communications with the children and gift for the children are age-appropriate; and

(ii)that he not refer in such communications to the mother or any member of  the mother’s family.

6.The mother shall be entitled to read any written communication and examine any gift sent by the father herself or by arrangement with any adult nominated by her (“her nominee”) and have that person review correspondence and gifts and, in the event that the mother considers the communication does not comply with these orders, shall return the material to the father and the father may resend an alternate letter or gift within a further 7 days, to be examined by the mother or her nominee in the same way as stipulated here within.

7.The father is restrained from contacting the children other than as provided…

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Clery & Clery [2022] FedCFamC1F 99
Case
[2022] FedCFamC1F 99
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CaseChat Overview and Summary

In the Family Court of Australia, Clery v Clery was a case concerning contact orders sought by the father for his two children. The mother opposed these orders, asserting that the father posed an unacceptable risk to the children. The father's past includes being sexually abused by Mr B, engaging in sexual activity with a 7-year-old sister, and possessing child sexual abuse material (CSAM). The mother discovered CSAM on the father's computer, leading to their separation and the father's conviction for possessing CSAM. The father appealed his sentence, but he remained on the Child Protection Register.

The court was tasked with deciding whether the presumption of equal shared parental responsibility, as outlined in s 61DA(1) of the Family Law Act 1975 (Cth), applied in this case. The court also had to determine if the father's past conduct, including his abuse of his sister and possession of CSAM, justified not applying the presumption. The court considered the objects and principles of the Act, as well as the relevant considerations for determining the best interests of the child.

The court found that the father's abuse of his sister satisfied s 61DA(2)(a), which excludes the presumption of equal shared parental responsibility when there are reasonable grounds to believe a parent has engaged in abuse of a child or another child who was a member of the parent's family at the time. The court held that the phrase 'member of the family' in s 61DA should be interpreted to include relatives living in the same household. As a result, the presumption of equal shared parental responsibility did not apply in this case. The court's decision was based on the need to protect the children from potential harm and the importance of considering the father's past conduct when making parenting decisions.

The court did not make specific contact orders in this case, but it did clarify the legal principles that would apply in determining the appropriate parenting orders in the future. The court emphasized the importance of considering the best interests of the child and the need to protect children from potential harm when making decisions about parental responsibility and contact.

Orders

Orders of the court

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Background

Background to the litigation

The applicant father seeks contact orders with respect to the two children of the parties (X, born in 2010, and Y, born in 2016) who live in the primary care of the respondent mother. The mother opposes orders for contact on the basis that the father presents an unacceptable risk to the children.BACKGROUND The father was born in 1976 and the mother in 1975. The father and his family came to Australia from City O, United Kingdom in 1982. In late 1989 the father was sexually abused by Mr B (“Mr B”) (from when the father was 13 years of age and continuing until he was 17 years old). By late 1993 Mr B lost sexual interest in the father, but they maintained a friendship. In early 1997 Mr B was charged with child sexual contact offences against another boy, and then subsequently charged with child sexual contact offences against the father. In May of 1997 Mr B wrote to the father excoriating him for not supporting him, inferring that the father liked what Mr B did to him. Shortly after Mr B committed suicide, which brought the Police action to an end and consequently supports for the father also ended. In early 1991 the father, who was then 15 years old, sexually assaulted his sister who was then around seven years of age. The extent of that assault is in dispute and discussed below. During the period from 1996 to 1999 the father had a relationship with Ms C (“Ms C”). The extent of that relationship and the age of Ms C at the time are in dispute. In early 1999 the parties met. At the time the father was a professional and the mother was a casual part time office worker. In 2002 the parties married. The parties later had the two children who are the subject of these proceedings. In April 2018 the mother had seen the father operating his computer and the mother saw a number of sites for child sex abuse material (“CSAM”) on the father’s computer. When the mother asked the father about the CSAM the father told the mother he was “hacked”. In July 2018, the mother discovered CSAM on the father’s computer when the youngest child was playing with the computer. The file names seen by the mother included titles such as “10 year old loses virginity to father” and “13 year old raped by father”. The police became involved and the parties separated thereafter. The father pleaded guilty to possession of CSAM and was sentenced on the basis of having six files on his computer. In 2019 the Local Court recorded a conviction, and imposed a three year supervision order, a $2,000 fine, and 300 hours Community Service, and placed the father on the Child Protection Register. The father appealed the sentence, and in late 2019 the District Court set aside the order recording a conviction (not the finding of guilt) and reduced the bond period to two years. However, the father remains listed on the relevant Child Protection Register. Thereafter the Police withdrew the Apprehended Domestic Violence Order (“ADVO”) application (the mother saying this was done without the police contacting her).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Having regard to the events that the mother has experienced, it is not surprising that some degree of alignment has developed, nor that the mother would be particularly protective of the children. This forms part of the overall circumstances of the case that I take into account.THE RELEVANT CONSIDERATIONS UNDER THE ACT Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the relevant provisions governing parenting decisions. Section 65D provides for a court to make “such parenting order as it thinks proper”. Whilst this section provides a broad discretion, there are many other relevant provisions in Part VII that require consideration. First, the objects and principles of the Part are set out in s 60B. Section 60CA makes clear that the best interests of the child are the “paramount consideration” (which is repeated in s 65AA), and s 60CC provides a lengthy list of relevant considerations when determining the best interests of a child. Issues relating to parental responsibility are dealt with in Division 2 of Part VII of the Act. Section 61DA relevantly provides:61DA Presumption of equal shared parental responsibility when making parenting orders (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or (b) family violence. Section 61DA(2)(a) does not focus only upon abuse of a child the subject of the proceedings but includes any other child who was a member of the parent’s family ‘at the time’ of the abuse. The phrase ‘member of the family’ is defined in s 4(1AB), although, only for the purpose of a limited number of other sections of the Act (ss 4AB, 60CC(3)(j) and (k), 60CF, 60CH and 60CI). If the definition in s 4(1AB) applied to s 61DA, then the father and his sister were members of the same family at the time of the abuse as they are relatives as defined in s 4(1AC)(c). Reading the phrase with its ordinary meaning, having regard to the context of the section in the Act, I am satisfied that the father and his sister were members of the same family at the time the abuse occurred as they were siblings living in the one household. The question then arises as to whether s 61DA is limited to abuse or family violence within the family the subject of the current proceedings, or covers any abuse or family violence within any family of which the parent has been a member. The section is not a penal provision, but part of a legislative scheme to effect the objects set out in s 60B of the Act. The operation of the presumption is clearly designed to reduce disputes in cases where there is no history of abuse, violence or controlling behaviour. Whilst such conduct in other relationships would not usually be admissible in criminal law proceedings, it is relevant in determining the risks to children in family law proceedings. Where the presumption does not apply it remains for the Court to determine the appropriate orders for parental responsibility based on the best interests of the child. The presumption is a procedural advantage designed for cases without the risks raised by the behaviours listed. An interpretation that limits the presumption to cases without evidence of any of the behaviours encompassed in with s 61DA(2) appears to be the appropriate reading of the section within the context of Part VII of the Act. As a result I am satisfied that the father’s abuse of his sister satisfies s 61DA(2)(b) and as a result the presumption of equal shared parental responsibility does not apply in this case.