Duffield & Carlon

Case [2021] FedCFamC1F 344

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Duffield & Carlon [2021] FedCFamC1F 344   

File number(s): SYC 8265 of 2018
Judgment of: MCCLELLAND DCJ
Date of judgment: 24 December 2021
Catchwords: FAMILY LAW – PARENTING – Magellan – Unacceptable risk – Where the father has previously been convicted of child sex offences – Where the father failed to disclose his previous convictions – Where it is alleged that the father sexually and physically abused the mother – Where it is alleged that the father has engaged in acts of excessive discipline with the children – Where the mother has engaged in alcohol abuse – Where the father engaged in manipulative behaviour to promote his relationship with the children at the expense of the children’s relationship with the mother –  Best interests of the children in maintaining meaningful relationships with both parents – Mitigation of risks associated with respective parents – Mother to have sole parental responsibility with supervised spend time orders for the father – Children to be advised of the father’s convictions
Legislation:

 Crimes Act 1900 (NSW) ss 61J(1), 61M(1)

Criminal Appeal Act 1912 (NSW) s 5(1)(b)

Child Protection (Offenders Registration) Act 2000 (NSW) s 12C

Family Law Act 1975 (Cth) ss 4AB, 43(1)(c), 61DA, 61DA(2)(b), 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DAC(2), 65DAC(3)

Evidence Act1995 (Cth) s 140(2)

Cases cited:

 B & B (1993) FLC 92-357

Blinko & Blinko [2015] FamCAFC 146

Dundas & Blake (2013) FLC 93-552

Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249

Johnson & Page (2007) FLC 93-344

Mr Duffield v R

M and M (1988) FLC 91-979

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski v Albright (2007) 37 Fam LR 518

McCall and Clark [2009] FamCAFC 92

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Russell v Close [1993] FamCA 62

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance
Number of paragraphs: 399
Date of hearing: 12–16 July 2021
Place: Sydney (via videolink)
Counsel for the First, Second and Third Applicants: Mr Livingstone
Solicitor for the First, Second and Third Applicants: David H Cohen & Co
Counsel for the Respondent: Ms Knight
Solicitor for the Respondent: Legal Aid NSW
Counsel for the Independent Children's Lawyer: Ms Messner
Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors

ORDERS

SYC 8265 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DUFFIELD

First Applicant

MR B DUFFIELD

Second Applicant

MS C DUFFIELD

Third Applicant
AND:

MS CARLON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

24 DECEMBER 2021

THE COURT ORDERS THAT:

Parental Responsibility

1.That the mother shall have sole parental responsibility for the children.

Live with

2.That the children shall live with the mother.

Spend time

3.That the children shall spend time with the father as agreed between the parties in writing, and failing agreement, during school terms as follows:

(a)Each…

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AGLC
Duffield & Carlon [2021] FedCFamC1F 344
Case
[2021] FedCFamC1F 344
Decision Date

CaseChat Overview and Summary

In the case of Duffield & Carlon, the court was presented with a complex dispute concerning the care and custody of children in the context of allegations of past sexual abuse by the father. The parents, who are the primary parties involved, have been in conflict throughout the proceedings, with significant issues surrounding the father's past criminal conduct and its impact on the children's welfare. The court's role was to determine the appropriate care arrangements for the children, considering the risk of harm and the suitability of the parents as caregivers.

The primary legal issues that the court had to address were the risk of sexual abuse posed by the father to the children and the need for supervision during any contact. The court also had to consider the mother's allegations of the father's manipulative conduct towards the children, as well as the impact of alcohol consumption on the parents' ability to care for the children. Furthermore, the court had to determine the appropriate allocation of costs related to the Independent Children’s Lawyer and other legal expenses.

In its reasoning, the court found that the father's past convictions for sexual abuse of a minor presented an unacceptable risk to the children. The court accepted that there was a significant likelihood that the father had engaged in such conduct, despite the father's denial. The court also found that the father's manipulative conduct and lack of acknowledgment of his past offenses posed a risk to the children's welfare. Consequently, the court determined that the children should remain under loose supervision when spending time with the father, primarily by the paternal grandparents, until the child turns 16 years old. The court further noted that the father could apply for a variation of this arrangement if he engaged in appropriate therapy and encouraged the children to do the same.

The court also addressed the issue of alcohol consumption by the parents, imposing restrictions on their drinking when the children are in their care. Additionally, the court ordered that the father should meet a quarter of the costs associated with the Independent Children’s Lawyer, with a three-month grace period to allow for payment. This decision was influenced by the father's failure to acknowledge his past criminal conduct and the likelihood that the paternal grandparents would bear the financial burden.

In conclusion, the court made orders to mitigate the risk of harm to the children, including the continuation of supervised visits with the father and restrictions on alcohol consumption by the parents. The court emphasized the importance of the paternal grandparents' role in supervising the children during their time with the father and highlighted the need for the father to engage in therapy to address his past offenses and manipulative conduct. The court also confirmed the appropriateness of a non-denigration order and the allocation of costs, ensuring that the financial burden was fairly distributed among the parties involved.

Orders

Orders of the court

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Background

Background to the litigation

For reasons relating to the fact that the children are at an unacceptable risk in the care of the father I have made orders consistent with the proposals of the Independent Children’s Lawyer and the mother.BACKGROUND I will now set out background facts and where controversial, the parties’ respective factual contentions. I have done so primarily to give context to the nature of the history of the parental conflict in this matter. I will subsequently set out my findings in respect to material factual contentions, that is, where the factual finding is relevant to the issues requiring determination in these proceedings. In 1943, the paternal grandfather was born. He is currently aged 78 years. In 1944, the paternal grandmother was born. She is currently aged 77 years. From 1964 until 2012, the paternal grandfather was engaged in part-time employment with the Australian Defence Force. In or about December 1966, the paternal grandfather commenced his employment with the VV Group in Australia. In 1975, the father was born. He is currently aged 46 years. In 1980, the mother was born. She is currently aged 41 years. The father acknowledges that he did smoke marijuana “very” intermittently when the parties first met, but denies consuming marijuana since in or about 1998. In 1999, the parents commenced their relationship. This occurred in or around July 1999, whilst the father was employed in hospitality and the mother was employed by the H Company. The father contends that, in or about 2000, the parents commenced cohabitation. Comparatively, the mother contends that, in or around 2001, the parents commenced cohabitation. That difference is not material to this decision. There is a dispute between the parties as to the extent to which they have, in the past, consumed alcohol. It has not been necessary to resolve that controversy. For reasons which I explain, I am satisfied that the mother currently has a problem with binge drinking. The father contends that, in or about 2000, the mother informed him that she had been asked by her mother, the children’s maternal grandmother, to leave after raising the issue of child sexual abuse by her stepfather’s employer at age 14 years and then lived with her grandmother and maternal uncle and aunt in the subsequent years. It has not been possible to determine whether this occurred. I accept, however, that there have been periods where the mother has had a strained relationship with members of her family. In approximately 2003, the parents moved from the caravan park into a property located at Suburb J in New South Wales (“the Suburb J property”). From 2003, shortly after moving into the Suburb J property, the father invited the child residing in the neighbouring property (“the neighbour’s son”), then aged 11 years, to come into the parents’ home. On these occasions, the father played cricket in the backyard or on gaming consoles in the lounge room with the neighbour’s son. The father contends that, in or about 2003, the mother increased her consumption of alcohol. He further contends that, during this time, an incident occurred wherein the mother became intoxicated with alcohol to the point of throwing his work laptop into a nearby creek.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties also agree that a restraint should be imposed on the consumption of alcohol when the children are in the care of the parties and, in respect to the mother, for a 24-hour period prior to the children being in her care.CONCLUSION For all these reasons, I make orders in accordance with those set out at the commencement of these reasons for judgment.COSTS The Independent Children’s Lawyer sought costs against the Applicants on the basis that each of the Applicants pays one third, such that the total paid for the Independent Children’s Lawyer’s costs amount to two thirds of the total amount of $19,000. This is in circumstances where the mother is legally aided in these proceedings. Counsel for the father submitted that the second and third respondents, that is, the paternal grandparents, should not be ordered to pay the costs of the Independent Children’s Lawyer in the sense of the grandparents have been “removed from the proceedings in the strict sense and they only offer themselves as a last resort or backup.” Further, it was contended that their participation in these proceedings did not add to the cost or complexity of the proceedings. Counsel for the father further submitted that if an order is not made against the second and third respondents, it would be inappropriate to effectively single out the applicant father as the party responsible for paying the costs of the Independent Children’s Lawyer. In that context, it was noted that the father has received assistance from his parents to meet his own legal costs in circumstances where his own finances have been insufficient. Nevertheless, it is the case that the father has failed to frankly acknowledge a central issue in these proceedings, namely, the fact that he has engaged in past sexual abuse of a minor and been subsequently convicted of that conduct. The father’s failure to acknowledge and address that issue has been a significant issue in these proceedings. In those circumstances, I propose to make an order that the father meet one quarter of the costs of the Independent Children’s Lawyer, in circumstances where there are three other parties who are not the subject of an order for costs. The father is also to be given credit for those costs which he has already paid to the Independent Children’s Lawyer. Further, in circumstances where I accept that there is every likelihood that the burden of paying the father’s costs will fall upon the paternal grandparents, who are themselves pensioners, I will provide a period of grace of three months for those costs to be paid. To avoid uncertainty, I confirm that the order for costs against the father will also include an obligation to meet his share of the cost of the single expert attending to give evidence in these proceedings, being the sum of $935.

Ratio Decidendi

Legal Principle Established

Both parties also agree that a non-denigration order is appropriate and that the orders should also apply to the grandparents.[90][90] Transcript 13 July 2021, p.135 line 37.EVALUATION OF SECTION 60CC CONSIDERATIONS AND SUMMARY OF ORDERS I have determined that there is an unacceptable risk of the children being subject to sexual abuse at the hands of their father, and that such risk needs to be mitigated by a continuation of the loose supervision arrangements that currently apply to the children spending time with the father. Additionally, I have had regard to the fact that the children will be advised of the fact of the father’s sexual misconduct convictions and, as they grow, they are gaining a level of maturity which itself provides some protection against potential inappropriate sexual conduct on the part of their father. I am also satisfied that the father has engaged in manipulative conduct in respect to the children and that the children would be subject to ongoing conduct of that nature in the event that they spend extensive periods of time with the father, or in circumstances where that time is unsupervised. The risk is not such, however, that I find it is necessary for that supervision to be provided by a professional agency. The supervision which has occurred to date primarily by the paternal grandparents is, in my view and on the basis of evidence presented, adequate. I therefore propose making orders in terms of Order 7 of the Independent Children’s Lawyer’s minute of order. That order would also permit the parties agreeing to another adult being present to provide supervision. In that context, during the course of the proceedings, the mother indicated that she would not have any difficulty with the children being present with the father in the company of a paternal aunt, Ms SS. The mother indicated however, that she would not like that to be a regular situation in circumstances where there have been issues of tension between herself and Ms SS and where Ms SS lives in Suburb TT, New South Wales. For reasons which I have set out previously, I am satisfied that the supervision should occur until Y turns 16. The orders will provide, by way of notation, that the father may consider making an application for variation of that arrangement in the event that he genuinely engages in therapy to address his past offending and develop an appropriate safety plan, together with the father acting in good faith in encouraging and assisting the children to also engage in therapy to repair their relationship with their mother. A positive which occurred during the course of these highly contested proceedings was the impressive evidence given by the paternal grandmother. She answered each question asked of her in a clear and direct manner. Her focus appeared to be on assisting the Court to determine what was in the best interests of the children and, to that extent, unlike the father himself and the paternal grandfather, accepted the reality that, as a matter of probability, the father had engaged in the acts of sexual abuse of which he was convicted.