Dempsey and Cane

[2013] FamCA 980

FAMILY COURT OF AUSTRALIA

DEMPSEY&CANE [2013] FamCA 980

FAMILY LAW – CHILDREN – best interests – where the father has been convicted of a sexual offence against a minor – where the father has withdrawn from the proceedings on the day of hearing
FAMILY LAW – ORDERS – Final parenting orders – mother to exercise sole parental responsibility – father to spend no time with nor be permitted to communicate with the children – passport order

Family Law Act 1975 (Cth)

APPLICANT: Ms Dempsey

RESPONDENT: Mr Cane

INDEPENDENT CHILDREN’S LAWYER: Glezer Lanteri & Associates

FILE NUMBER: MLC 11031 of 2008

DATE DELIVERED: 15 April 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Glezer Lanteri & Associates

ORDERS

IT IS ORDERED THAT

1. All previous parenting orders be discharged.

2. The children of the marriage B born … 2005 and C born … 2007 (“the children”) live with the mother.

3. The mother exercise sole responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975) for the children, save that the mother shall, prior to the making of the sole ultimate decisions about any long term issue:

   a.use her best endeavours to advise the father in writing of any decision intended to be made (to be communicated by letter or email);

   b.seek the father’s written response in relation thereto;

   c.consider, by reference to the best interest of the children, any such response prior to making any decision; and

   d.advise the father in writing as soon as reasonably practicable of her ultimate decision.

4. The father spend no time with nor be permitted to communicate with the children.

5. The mother advise the father via email, letter or SMS text message, upon becoming aware of any significant injury or illness affecting the children or either of them.

6. The mother send to the father copies of school reports twice yearly in respect of each child.

7. Each party keep the other advised as to their mobile telephone numbers and notify the other of any change to such details within 72 hours of such change.

8. As soon as practicable the Independent Children’s Lawyer serve a sealed copy of this order upon the father by pre-paid post addressed to D Street, Suburb E.

9. As soon as practicable after publication the Independent Children’s Lawyer serve a copy of the reasons for judgment upon the father by pre-paid post addressed to D Street, Suburb E.

10.The mother have leave to apply for a passport for the children notwithstanding the father’s lack of consent thereto.

11.All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

12.The Independent Children’s Lawyer be discharged.

13.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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders. 

AND IT IS DIRECTED THAT

14.All subpoenaed and exhibited documents be returned on the usual basis to the person producing same.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cane & Dempsey 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 MELBOURNE

FILE NUMBER: MLC 11031 of 2008

Ms Dempsey

Applicant

And

Mr Cane

Respondent

REASONS

1. The matter is listed before me this day for the final hearing of competing applications for parenting orders.  There is a long history of litigation between the parties in relation to the two children of the relationship, who are now aged seven and five respectively.  In August 2009, following the preparation of a family report, the parties consented to final parenting orders, including an order that they have equal shared parental responsibility for the children, that the children live with the mother, and that the father spend time with the children increasing to a regime of each alternate weekend and during school holidays.

2. In April 2011 the father’s time with the children was suspended by the mother on the advice of the Department of Human Services as a result of the father being investigated by police in relation to the sexual abuse of a minor.  Although the father was charged with a number of serious offences, he was ultimately found guilty and convicted on one charge of committing an indecent act with a child under the age of 16.  The allegation was that he touched his stepdaughter on her breast.  The father was convicted, fined $1,300, and placed on the Register of Sexual Offenders for what he said was the minimum period of eight years.  It is his case that he has appealed that conviction.  The father has, in any event, not spent any time with the children since April 2011.

3. The father had undertaken a sexual assessment by Dr F who assessed him to be of a low to moderate risk of sexual offending.  The parties and the children attended upon Dr G for the preparation of a family report.  Dr G recommended that the mother should have sole parental responsibility for the children and that, although it appeared premature to remove completely any mechanism for the children to have a relationship with the father, that any time the father spent with the children be supervised, and that, prior to the recommencement of any time with the children, the father continue his treatment with Dr H or such other suitably‑qualified professional, around issues of his emotional regulation and other personality features, attend a parenting skills program, and engage with a forensic practitioner in relation to his sexual risk.

4. Notwithstanding those recommendations, it was the Independent Children’s Lawyer’s case that, subject to the testing of the evidence, the children should not spend any time with their father.  The father appeared in person today, as did the mother.  I was advised by Ms Agresta that the father wished to say something to the Court, following which the father handed a letter to the Court in which he said as follows:  

   To Her Honour Justice Macmillan,

   After extensively reading the ICL recommendations I have decided to submit this letter and leave it all at that.

   The profession of the DR’s, writers and the experience of the barrister representing my children, all believe that as a ‘father’ I am not suitable.

   I feel that that lack of representation in this complex matter will leave me at a complete disadvantage.  I don’t feel that I have the skills or strength to fight this matter when it seems I will be behind the eight ball so to speak from the beginning.

   I dearly love and care for my two beautiful children and at no point ever not wanted to be a part of their lives.

   I sincerely feel great sorrow and grief for not only my 2 daughters and my extended family, but also for my partner [Ms I] and her family with the loss of their daughter [J] completely.

   If in time either [B] or [C] decide to seek out their father, my address and contact details will always be made available.  They will be welcomed with open arms and my heart filled (sic) joy.

   I hope the court, Her Honour, ICL and others waiting for family court (sic) time appreciate my early decision

   Many Thanks

   [Mr Cane]

5. Having handed me the letter, the father then left the Court.  The matter was stood down temporarily and the father was then called again but did not appear.  In all of the circumstances, I propose to proceed with the matter on an undefended basis.

6. I am satisfied in all of the circumstances of this case, and having read the affidavits upon which both parties and the Independent Children’s Lawyer rely, the report prepared by Dr F, and the report prepared by the family consultant, that the orders proposed by the Independent Children’s Lawyer, to which the mother consents, are in the best interests of these children.

7. The mother also seeks an order in relation to her being able to obtain a passport for the children without requiring the father’s consent to do so. Whilst she does not have any definite plans for overseas travel, she does foresee that she may wish to travel overseas with the children at some time in the future.  I also propose to accede to that application.

8. I want the order to be served upon the father as soon as possible.  My reasons  will take longer, and I propose to order that the Independent Children’s Lawyer serve a copy of my reasons upon the father by prepaid post as soon as practicable after they are available. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 15 April 2013.

Associate:

Date:  16 December 2013