Corlis and Pepy

[2012] FamCA 247

FAMILY COURT OF AUSTRALIA

CORLIS & PEPY [2012] FamCA 247

FAMILY LAW - CHILDREN – parental responsibility – with whom a child shall spend time and communicate with – unacceptable risk – personal protection orders - the parties have two children aged twelve and eight - where father has been charged with indecent assault of the youngest child – where the father is still serving a four year sentence for a sexual offence committed on the youngest child although the father is now on parole in the community – where the father poses an unacceptable risk of harm to the children – orders for the father to have no contact with the children – orders allocating sole parental responsibility to the mother

Family Law Act 1975 (Cth) ss 60B, 60CC & 68B

M v M (1998) 166 CLR 69

APPLICANT: Ms Corlis

RESPONDENT: Mr Pepy

FILE NUMBER: BRC 11963 of 2010

DATE DELIVERED: 24 April 2012

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 23 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Burke Elphick & Mead
Mr Bithrey

RESPONDENT: Appeared in person although matter proceeded on an undefended basis

Orders

1. That the children S born … November 1999 and J born … April 2004 (“the children”) live with the mother.

2. That the mother has sole parental responsibility for the children.

3. That the father be restrained from approaching within 20 kilometres of either of the children.

4. That the father be restrained from attending any house in which the children reside.

5. That the father be restrained from attending any house in which the mother resides.

6. That the father be restrained from contacting the children or the mother other than via the mother’s legal representative by any means including written correspondence, telephone and electronic communication.

7. The father is restrained from attending any school, sporting or after school activity that either of the children participate in.

8. It is noted that Orders 3 to 7 are for the personal protection of the children S born … November 1999 and J born … April 2004 and MS CORLIS any breach of which attracts the power of arrest warrant pursuant to s 68C of the Family Law Act 1975.

9. That the mother notify the father as soon as practical and in any case within

   
   

   24 hours of any serious medical condition or injury suffered by the children.

10. The mother has leave to provide a copy of these Orders to any school/s at which the children attend.

11. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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 by this Court under the pseudonym Corlis & Pepy 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 NEWCASTLE

FILE NUMBER: BRC11963 of 2010

Ms Corlis

Applicant

And

Mr Pepy

Respondent

REASONS FOR JUDGMENT

Introduction  

1. This was an undefended hearing.  The applicant is Ms Corlis aged 45 years, the mother of two children, S born in November 1999 (12) and J born in April 2004 (8).  The two children live with their mother.

2. The father of the children, Mr Pepy, is aged 46 years.  He lives in Queensland.

3. The parties have been separated since November 2008. 

4. The father was convicted on in July 2010 of a sexual assault on his daughter; and since release from prison, has had no contact with his children.

History of litigation

1. An Initiating Application seeking property orders was filed on 22 December 2010 by the mother in the Federal Magistrates Court at Brisbane. Subsequently the parties reached agreement about division of property. 

2. On 22 August 2011 an Amended Application including parenting orders was filed together with an Application in a Case.

3. On 9 September 2011 the proceedings were transferred by consent to this Court in Newcastle with a request that the matter be considered for inclusion in the Magellan list.

4. On 9 November 2011 the matter came before a Registrar.  By then the solicitors for the father had filed a Notice of Discontinuance and a Notice of Ceasing to Act.  As was to be expected in those circumstances, there was no appearance by the father. 

5. On that day Orders were made:

   ·Dismissing the respondent’s applications.

   ·Setting the matter down for an undefended hearing.

   ·Requiring the applicant to notify the respondent of the orders and “that the case may be heard in his absence without further notice to him”.

6. On 23 March 2012 the matter came before me.  The father was present at Court.  He asked for leave to read a statement.  This course was not opposed by the solicitor for the mother, provided that the father was not seeking to rely on any fresh application.

7. I explained to the father that what he said in his statement from the Bar table was not sworn evidence and that although he was present at Court, the matter would proceed undefended.

8. There were then submissions on behalf of the applicant mother and the father read out his statement.

9. The mother sought the following orders[1]:

   ·Sole parental responsibility;

   ·Residence;

   ·Restraint on the father’s contact with the children;

   ·Personal protection orders; and

   ·Authorisation by the mother of release of documents and information from schools to father.

   [1]  Amended Initiating Application filed 22/8/2011

10. The mother relied on the following material:

    1.Amended Initiating Application filed 22 August 2011;

    2.Affidavit of the mother sworn 9 March 2012; and

    3.Two exhibits – a letter from Queensland DPP and a copy of a final Apprehended Violence Order (AVO) issued at a Local Court.

History of events

1. The parties had been living together for 12 years before they separated in dramatic, traumatic circumstances.

2. J made statements to her mother on 5 November 2008, which if true, amounted to serious sexual abuse of J by her father.[2]

   [2]  Affidavit of mother sworn 09/03/2012, par 13, Annexure A

3. The mother confronted the father who denied wrong doing.  Subsequently there was an inconclusive medical examination of the child and a referral to the children’s hospital.  Joint Investigation Response Team (JIRT) became involved.  J did not repeat her allegations.  The JIRT team concluded sufficient evidence of emotional abuse but not sexual abuse.

4. The father moved out of the family home on the critical day and the parties have not lived together since.

5. The parties undertook counselling and contemplated supervised contact.

6. In July 2009, a neighbour expressed concerns to the mother about statements made to him by his young daughter about the father’s conduct.  The mother and the neighbour confronted the father who admitted to behaving inappropriately with his daughter but not the neighbour’s daughters.  In her statement to police the mother says this[3]:

   He explained it as an unusual love that he had developed for J (which he said had started when he began) viewing pornography on the internet (in January 2008).

   [3]  Affidavit of mother sworn 09/03/2012, Annexure ‘A’ 

7. These admissions provided a further traumatic shock to the mother.  Her neighbour was distressed that he had not known of the events which gave rise to the separation of the parties.  Subsequently other neighbours and parents of school mates became aware of the father’s conduct with J[4].

   [4]  Annexure ‘A’ to mother’s affidavit sworn 09/03/2012

8. On 7 August 2009 the father was charged with indecent assault of his daughter.

9. In September 2009, feeling both isolated from her community and fearful of the impact on both children, the mother gave up her job in Queensland and moved with the children to the town in New South Wales where her family lives.

10. The mother prepared a Victim Impact Statement for the sentencing hearing of the father[5].

    [5]  Affidavit of mother sworn 09/03/2012, Annexure ‘B’

11. The mother permitted two periods of supervised contact between both children and their father in mid 2010.

12. After the father was imprisoned in July 2010[6], the mother accepted his telephone calls until April 2011.  By then she had become uncomfortable with the father’s “demands to speak to the children” and ceased accepting the calls.  The father wrote to the children every week.  After the first six letters, no others were read.

    [6]  Letter from Queensland DPP – Exhibit ‘1’

13. In July 2011 the father was released.  He was unrestricted in where he could be.  The mother believed that he may have intended to move to live near her.  She sought an Apprehended Domestic Violence Order (ADVO) restraining the father from approaching her home.  The father defended the application. 

14. On 10 October 2011 a final order was made for the protection of the mother and children, restraining the father from coming near the family.  The order will expire in October 2012.

Evidence of current situation

1. The mother consulted both children about seeing their father.  S was adamant that he did not wish to.  J was pleased and “animated” by the idea.  The mother is concerned about the reactions of both children.  J has referred more than once to being shown “naughty pictures on the computer with Dad”[7].  She is, in her mother’s assessment, sexually aware and seeks attention from adult males[8]. 

   [7]  Affidavit of mother sworn 09/03/2012, pars 28 & 54

   [8]Affidavit of mother sworn 09/03/2012, par 42

2. S has been bullied and is socially isolated.  The mother fears he too may have been abused by the father.  During her early counselling the mother recalled an incident between the father and son which concerned her greatly in retrospect.

3. Annexed to the affidavit of the mother are three handwritten documents of the father[9].  I do not know how these documents came into the possession of the mother.  The documents appear to be a response at least to some extent to the matters raised by the mother in her Victim Impact Statement.  The document titled “A letter to [J]” apparently responds to the statement of the mother.

   She is confused as to what is normal behaviour …. and can’t understand why her father exposed her to child pornography and his sexual needs.

   [9]Annexure ‘C’ to mother’s affidavit sworn 09/03/2012  

4. The letter of the father was apparently written for J to read “in future years”.  However, there is a postscript:

   Whilst you may read this in future years, I will try to explain how sorry I am for what I have done to you soon.

5. There is a lack of humility in the letter which suggests that the father has a wish and intention to explain himself to his daughter, even to justify himself, in the near future.  The risk of such an intrusion into her life is unacceptable.

6. Of even greater concern is the document titled “Taking responsibility”.  The father sets out in detail the sexual acts he performed for and on his daughter.  He also particularises sexual actions he did not perform.  This document creates the impression that the father believes he should be given credit for not performing the stated sexual acts.

7. I also accept that the mother is genuinely worried about his statement which is the first of the things the father said he didn’t do “thankfully I have never forced [J] to do anything”[10].

   [10]  Annexure ‘C’ to mother’s affidavit sworn 09/03/2012

8. J was four years of age when her father was assaulting her.  To the extent that there is an inference that she was a willing participant, there exists an unacceptable risk to J from spending time with her father under any circumstances and from being in communication with him at all.

9. These themes were repeated in the statement read out by the father in court.  In particular this passage:

   I still fight the fantasies that come to me occasionally but know how to starve them of their energy and ensure they do not remain to haunt me.  Your Honour I have always accepted my guilt for what I have done and know the trauma that those actions will have on my family.  But I have also been equally adamant of my innocence for what I have not done and I know that my children also know what I have and have not done and believe that the children will be more traumatised if I am removed from their lives entirely than if they are allowed to rediscover and re-establish a relationship with me as a separate parent.

10. I had the strong impression that the father held the view that having served one year of imprisonment of his four year sentence, it was time to allow him to restore his relationship with the children.  He appeared to lack insight even in deciding to attend and seek leave to make such statements.

11. In the absence of solid evidence of extensive therapeutic intervention by a psychiatrist or psychologist with expertise in the area of confronting perpetrators of sexual abuse/incest as to their behaviour and thinking, the father, in my view, remains a risk to both his children.  Given his past conduct and the express letters referred to above, that risk is unacceptable.  M v M (1998) 166 CLR 69.

Application of the law

1. The object of the law relating to the children within the Family Law Act 1975 (Cth) is to ensure that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and to[11]:

   (a)Protect them from exposure to abuse, neglect or family violence;

   (b)Ensure adequate and proper parenting; and

   (c)Ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development.

   [11]  Family Law Act 1975 (Cth) s 60B

2. In this matter, the children have experienced psychological harm from being subjected to and exposed to abuse.  The father is still serving a four year sentence for a sexual offence although he is on parole in the community. 

3. The presumption of equal shared parental responsibility is therefore rebutted. 

4. His actions have had an adverse impact financially, emotionally and educationally on the children and their mother.  They have required counselling, changed schools, lost friends, been bullied and moved interstate.  Their mother is their sole support and earns less than she did previously.

Additional considerations

1. There are some additional considerations.

Section 60CC(3)(a) – The views of the children

1. S is a 12 year old boy.  He has struggled with the changes in his family.  He has found the change of home and school difficult.  He is quiet and polite at school.  He has been bullied.  He has expressed a strong clear view that he does not wish to see his father.  This year he will have started high school.  His wishes should be given considerable weight.

2. J is an eight year old girl.  She knows she was drawn into sexual conduct with her father directly and through the viewing of adult pornography.  She knows he went to gaol.  She may feel guilty.  J expressed a strong wish to see her father.  J has had counselling which has been helpful, but the behaviour observed by her mother suggests that more will be needed. 

3. She does not have the maturity to understand the implications of restoring a relationship with her father.  She has lost her friendship with a neighbouring child in Queensland who complained to her own father about the father’s conduct.  She is unlikely to understand the ostracism she and her family could again experience if she spent time with or communicated with her father.

4. Most importantly, it is possible that she is still an object of fantasy for her father.  He is a proven risk to her.

Section 60CC(3)(b) - The nature of the relationship of the children with each of their parents and other persons

1. The children have strong, loving and trusting bonds with their mother and maternal family. They are protected and supported.

Section 60CC(3)(c) – The willingness and ability of parents to facilitate relationships

1. The mother does not trust the father and there is a solid basis for her position.  She does not wish for there to be any continuing relationship.  The father is apparently supportive of the mother’s good work as a parent.

Section 60CC(3)(d) – likely effect of any change of circumstances

1. The children have made a new life.  Contact with their father of any kind would be destabilising to their family and friendships at school and in the community.

Sections 60CC(3)(f) & 60CC(3)(i) – The capacity of each parent and attitude to the children and responsibility of parenthood

1. The mother is meeting the needs of the children well.  The father has given priority to his personal needs at the expense of the children.  He used his then four year old daughter as an object of sexual gratification.  His capacity as a parent is severely impaired.

Sections 60CC(3)(j) & 60CC(3)(k) – Any family violence involving the children & any family violence orders

1. There is a protective order in place applied for to prevent the father from moving into the local area and making contact with the children.

2. An order has now been made under the Family Law Act 1975 (Cth) for the personal protection of the children.[12]

   [12]  Family Law Act 1975 (Cth) s 68B

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant

1. The mother has proposed orders creating obligations on herself.[13] 

   [13]  Orders 9, 10 & 11 of Amended Application filed 22/08/2011

2. Order 9 is to authorise the children’s schools to allow direct contact from the father to: 

   (i)obtain documents about the children’s progress and welfare at school;  and

   (ii)to discuss those matters directly with their teachers.

3. This order, however well intentioned, sits uncomfortably with the orders for personal protection of the children and the risk of the father coming into contact with the children, their family members and friends at school.

4. I do not consider there is any benefit to the children in their father having this parental role at their schools.  The school would have to be made aware of the father’s present status and conviction with all the negative consequences for the children of such knowledge circulating.  I do not propose to make that order.

5. Order 10 provides for advising the father of medical matters.  I have made an order that the mother advise the father of any serious medical conditions or injury suffered by the children.  There is some potential medical benefit to the children in such circumstances.

6. Order 11 is a non-denigration order.  I am confident that the mother will be protective of the children and their self-esteem.  She should not be restrained from being open and honest with the children over the coming years and in a counselling context for fear of breaching such an order.

7. The mother went to great lengths to protect the children’s relationship with their father in the early months of separation.  It is improbable that she would criticise or ridicule him to the children for her own gratification. 

8. It is important in my view for the father to understand that the most important thing he can do for his children is to respectfully stay away from them.  His presence in their lives would be disruptive and adverse, even if there was no risk of further offending.

9. The father is an intelligent, well-educated person.  He is no doubt well aware of the reactions in the community to those who have been convicted of sexual offences against children.  That reaction also affects the families and victims of offenders.

10. For the reasons stated, I have made orders in accordance with the Application of the mother other than as specifically set out above.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 April 2012.

Associate:    

Date:  24 April 2012