Durrant & Durrant
[2021] FedCFamC1F 366
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Durrant & Durrant [2021] FedCFamC1F 366
File number(s): PAC 765 of 2020 Judgment of: HANNAM J Date of judgment: 1 October 2021 Catchwords: FAMILY LAW – Interim parenting – Where an application is made for short-term interim parenting orders – Where orders are made for the children to live with the mother and spend no time with the father – Where orders are made for the children to be returned to the mother – Where an order is made for a Recovery order to issue in default of the children being returned Legislation: Family Law Act 1975 (Cth) 1975 Cases cited: Deiter & Deiter [2011] FamCAFC 82 Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 1 October 2021 Place: Parramatta Solicitor for the Applicant: Barkus Doolan Counsel for the Respondent: Mr Schnoell Solicitor for the Respondent: O’Sullivan Legal Solicitor for the Independent Children's Lawyer: Legal Aid NSW Parramatta Family Law ORDERS
PAC 765 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DURRANT
Applicant
AND: MR DURRANT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT ORDERS THAT:
1.Pending further order the children Z born in 2005, X born in 2007 and Y born in 2009 (“the children”) live with the mother and spend no time with the father.
2.The children are to be delivered by the father or his agent to the mother at the maternal grandmother’s home at C Street, Suburb B by 5pm today.
3.In the event the children do not pass into the care and control of the mother by 5pm today, pursuant to section 67U of the Family Law Act 1975, a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the children Z born in 2005, X born in 2007, and Y born in 2009 (“the children”) and to deliver the said children to MS DURRANT and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
4.Pursuant to s 68B of the Act the father is restrained from having any contact whatsoever with the children or any of them including through a third party and from taking any steps to have the children or any one of them returned to his care, to live with him or spend time with him including through a third person. This is an order for the protection of the children to which a power of arrest pursuant to s 68C of the Act attaches.
5.The ICL is to explain the orders to the children as soon as can be practicably arranged and the mother is to take all steps to make the children available to the ICL for that purpose.
6.The proceedings are listed for an interim hearing on 15 October 2021. More directions including in relation to the filing of documents and other directions in relation to the interim hearing will be made in chambers.
7.An order for short return of service of documents for all subpoenas issued for the interim hearing is made requiring that all documents be returned prior to that date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Durrant & Durrant is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
This is an application for a review of interim orders in respect of the parties’ three children: Z (16), X (14) and Y (11).
I describe them as short-term orders as they are specifically orders that will be in place for two weeks when the substantive interim application is listed on 15 October 2021.
The orders fall within three categories. Firstly, there are parenting orders, in particular orders about where the children are to live and with whom and the arrangements for them spending time with the other parent. Such orders are to be as the Court considers proper governed by the best interests of the children being the paramount consideration.
Secondly, there is an application for a recovery order which is sought by the mother in the event that the orders she seeks are made but are not implemented and the children do not pass into her care this afternoon as she proposes. Such orders are made pursuant to section 67U of the Act which says that subject to 67V the Court may make such recovery order as it thinks proper. Section 67V provides that in deciding whether to make a recovery order the Court must regard the best interests of the children as the paramount consideration.
The third type of order sought is a restraint pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) to which a power of arrest under section 68C attaches. Under 68B of the Act the Court is empowered to grant such injunctions as it considers appropriate and necessary for the welfare of the child.
Given the truncated nature of these proceedings today and the time period in which they are to operate, it is only necessary to set out the facts in very brief form. Very briefly, those background facts are that the parties separated in 2019, initially within their former family home but subsequently some months later they physically separated and this was following a 17-year marriage.
Initially following physical separation, the children, who were then aged 14, 12 and nine, lived in what is colloquially called a nesting arrangement in which each parent moved in and out of the family home where the children continued to live and had equal-shared care of the children under this arrangement. That arrangement came to an end some time ago. There have not ever been orders with respect to the parenting arrangements for these children made by a court.
By April 2020, when the family was seen by a Family Consultant for the Child Responsive Program, the children were living with the father and spending five nights per fortnight with the mother, so far as I understand. So far as the older child was concerned that was as a result of her wishes about that arrangement, whereas for the younger children it was pursuant to the parents’ agreement about that arrangement.
At the time that the Family Consultant saw the children in April 2020 they appeared to the Family Consultant to be aligned with the father and content with their then living arrangements. The Family Consultant considered that this could either be due to their lived experience with the mother, as alleged by the father, or the father not supporting the children’s relationship with the mother and affecting the children’s views about that relationship, as alleged by the mother, or due to some other cause. That arrangement of nine nights with the father and five nights with the mother each fortnight continued until fairly recently.
So far as I understand, in around August 2021 the eldest child stopped spending time with the mother altogether and in relation to the two youngest, they have ceased spending time with the mother since 17 September 2021. That followed an incident in which the two younger children effectively absconded from their mother and were collected by the father, where they have remained ever since. The date, 17 September 2021, is significant because the day before the mother had become aware that the father had been charged just over two weeks previously with a serious offence, being grooming of a child under the age of 14 for unlawful sexual activity.
In brief, the allegations so far as that offence is concerned is that the father when babysitting a four year old child of a family friend with whom the father appears to have had quite an established social relationship exposed the child to pornographic material and asked the child to show him her private parts. That is an offence that the father denies emphatically and to which he has entered a plea of not guilty. Prior to the mother filing her application the father had not disclosed to any person in these proceedings the fact or the nature of the charge that he faced and only provided material requested by the mother through her solicitors very recently.
It also came to light subsequent to the mother becoming aware of the criminal proceedings that the father was also a defendant named in an application for an apprehended domestic violence order for the protection of his partner which was put in place and sought as a result of a domestic incident on 27 June 2021. Documents in relation to that matter have also not ever been provided by the father to the mother or in these proceedings except to the extent that he provides an explanation from his own perspective and all the material that was put before police who subsequently withdrew that application that they had made on behalf of the protected person.
It also came to light, I believe only today when material was made available to the parties, that police had also attended a domestic incident between the father and the same partner in December 2019; although they attended no AVO or further action was taken. It also came to light, again I believe today or certainly in very recent times, that in addition to complaints made by it would appear each of the parents to two different police stations on 17 September about the incident on that date, on 18 September the children were taken to a third police station by a person which can be inferred was the father in an attempt to obtain an AVO against the mother for the protection of the children and, in particular, on the basis that the children did not want to see the mother and such AVO was declined by police as they said there were no grounds.
In the mother’s Application in a Case she also relies on many contentions which are in dispute and they include – and I only mention matters that are included – that the father was in the parents’ relationship the perpetrator of coercive and controlling violence and that the father has caused the children to become aligned with him in these proceedings.
On the part of the father, his contentions in dispute include that the mother has mental health difficulties, or did have at particular times, and that she also has relational and parenting short comings, which, in effect, make it reasonable for the children to have rejected her or expressed their difficulties with her in the way they have.
Of course, findings in relation to risk will not be made until the final hearing. An assessment of risk in relation to the contentious matters, will be undertaken, as is required in interim hearings. On the next occasion when there will be a more fulsome opportunity and when all relevant material will have been obtained and there can be a more full hearing in relation to those matters.
Today I am only dealing with the undisputed and recent matters and, in particular, the fact and the nature of the offence with which the father has been charged. The fact that police were called to his home for the domestic violence incident involving his partner in June and the father’s presentation of the children to police in an effort to obtain an AVO on their part against the mother, but with particular emphasis on the first two matters.
The mother’s contention in these proceedings today is that the children are at an unacceptable risk of harm living with the father, and for this reason it is proper and their best interest for them to live with her, and to spend no time and have no contact with the father, and that he be restrained from, in effect, allowing them to place themselves back living with him.
The mother also seeks the order that the father deliver the children to the mother but because the mother essentially lacks confidence in the father’s either capacity or willingness to do so, she seeks a recovery order.
The Independent Children’s Lawyer (“ICL”) supports the position of the mother in all respects in relation to the two younger two children. Initially the ICL had some reservations about some of those matters, in particular the commencement date of those orders, but in the course of the proceedings ultimately supports the mother in all regards in relation to the younger children.
Although the ICL agrees that the father does pose some risk to the older child, the ICL contends that it’s not unacceptable. Given that child’s age and together with her expressed strong wishes and current fractured relationship with the mother, the ICL submits that it’s in the best interest of that child to, in effect, have her own wishes govern her live with and spend time with arrangements, which the ICL appears to indicate, as I understood it, inevitably will mean that the eldest child will choose to live the father and it’s unlikely that she will spend time with the mother.
The father opposes the orders sought by the mother, in effect, entirely. He opposes the application for the recovery order, and he expresses on the record through his counsel that he has the capacity to facilitate the orders being implemented in respect of all of the children.
He seeks a return to the previous arrangement in place before 17 September, specifically that the two younger children live with him and spend five days in block period, and under his orders sought they would start spending time with the mother today. And so in other words, on both the orders sought, the children will be living with and spending time with the mother from 4 pm today, and that is to be effected by the father delivering the children to the maternal grandmother’s home. In relation to the oldest child, the father takes the same position as the ICL. That is that that child should live with and spend time with the parents as she wishes.
The father denies that he poses any risk of harm to any of the children, and says that his concerns about the strength of the children’s views are based in the reality of their lived experience in the mother’s care. He does agree that (as far as I understand it) potentially a risk of harm arises from the undisputed facts that are cited, being the criminal charge, the family violence complaints and his presentation of the children to the police. In relation to those matters he makes various contentions about why, in fact, they don’t amount to an unacceptable risk of harm such that it’s in the best interest of the children for their arrangements to change dramatically.
In my view the undisputed facts do give rise to such a level of risk as can be assessed at this stage, and in the limited particular circumstances with which I am dealing, and in the particular timeframe of 14 days, that it is proper for the children to live with the mother and spend no time with and have no communication with the father. Both the alleged incident of family violence said to have been perpetrated by the father and the offence with which he has been charged, in my view, give rise to potentially significant domains of harm for the children and I attach weight, in addition to these matters, to the fact it is the mother who brought these matters to the Court’s attention.
It is the mother who made application for orders in circumstances where clearly the current arrangement was not meeting the children’s needs in the sense that they were not spending time with their mother following that incident. The father could be described as being somewhat resistant and not forthcoming about the details in relation to these two matters. The matters which are not in dispute which give rise to these issues of concern must have been seen by their very nature as relevant to the welfare of the children and the father really has not explained his position. In all of those circumstances, in my view, it is appropriate to err on the side of caution and in a protective sense.
In the context of this limited application, I do not accept the proposition put on behalf of the father that because the victim of the alleged grooming was four years old and it happened four years ago (but particularly because she was four years old) that that of itself does not mean that harm does not arise. Of its very nature, grooming involves building trust for the purposes of then sexually abusing a person and in terms of the nature of the offence and the risk that arises, I do not accept the proposition that because the child was four, that that does not give rise to a risk of harm for these children.
In my view, I consider that too much weight, even in these limited circumstances, has been given both by the ICL and the father on Z’s capacity and in the father’s case, the children’s capacity to protect themselves. The entire issue of both the risks arising from the father’s criminal charges and from the question of the exposure to family violence, together with the other contentions that the parents raise, which each go to other significant matters of risk in each parent’s care, will be able to be more extensively pursued at the interim application. Some of the questions will also be better informed on the next occasion, such as the question of the reason for the children’s presentation in terms of their attitude towards their mother in particular. This may be informed by the Family Consultant’s report, albeit that that would not be tested, but it certainly will be – there will be a better forum and a better opportunity to explore that.
The principal issue for the father’s counsel, apart from addressing the risk of harm, relates to the nature of the children’s relationship with their mother, their expressed views, including the strength of their views and their age, and in particular, the age of the oldest child; and in terms of the section 60CC, the likely effect upon them if they are separated from their father entirely, as under the mother’s proposal.
In my view each of these matters, such as the presentation of the children and expression of their views, could equally be consistent with either party’s contentions about the origin for that attitude and expressed views, and that will have to again be a matter that will involve further exploration. In the case of Deiter & Deiter[1], one of the matters that the Full Court said in terms of children having to endure unsatisfactory circumstances, is the length of the order under consideration and the length of this order under consideration is two weeks.
[1] [2011] FamCAFC 82
Given that the father at this stage appears to have the apparently stronger relationship with the children (it certainly is not fractured like the mother’s is), given their age and given the pattern of care, I think it is unlikely that there will be any harm done to that relationship in a two-week period, even if such absolute orders are made. In my view, it is necessary to make the restraint that is sought. I do consider that in the circumstances of this case that such a restraint is appropriate and necessary for the welfare of the children because the period of time will only be effective to protect the children if they are able to completely disengage from their father.
The ICL in the course of her submissions referred to these children being empowered. They certainly do appear to be empowered. Another perhaps more child-focused way of describing it is that these children need to be relieved of what may has become the work that they find necessary to do in their circumstances. And only say that at this stage for what I am talking about is a two-week period.
For all of those reasons, I consider the orders necessary and appropriate as far as restraint goes and in the best interests of the children and proper so far as the other orders are concerned.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 1 October 2021
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