Farley & Duke (No 3)
[2024] FedCFamC1F 819
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Farley & Duke (No 3) [2024] FedCFamC1F 819
File number(s): PAC 6596 of 2020 Judgment of: HOGAN J Date of judgment: 27 November 2024 Catchwords: FAMILY LAW – PARENTING – Where orders were made by consent on the third day of trial for reunification between the child and the father – Where the child has not spent time with the father in four years – Where if reunification between the father and the child is successful it will be followed by a moratorium of time with the mother for a period of 120 days – Where the mother asserts the father has sexually abused the child – Where the mother’s evidence during the trial was that she believed the father had sexually abused his other child and two of her other children despite there being no evidence to support that – Where the mother contended that nothing could convince her otherwise – Where the mother contended she would never support a relationship between the child and the father – Where the mother expressed her belief that the father had manipulated a number of professionals – Where the mother is convinced the father is stalking her and the child and no evidence could convince her otherwise – Where the mother is to seek therapeutic support – Where it is ordered by consent that if reunification is unsuccessful the child will spend no time with the father Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 11 Date of hearing: 25, 26 & 27 November 2024 Place: Brisbane Counsel for the Applicant: Mr Drysdale of King’s Counsel with Ms Ingenito of Counsel Solicitor for the Applicant: King & York Lawyers Counsel for the Respondent: Ms Smith of Counsel Solicitor for the Respondent: Mitchell Playford & Radburn (Now Trading As MPR Solicitors Pty Ltd) Counsel for the Independent Children's Lawyer: Mr Cooper of Counsel Solicitor for the Independent Children's Lawyer: Berck Solicitors ORDERS
PAC 6596 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FARLEY
Applicant
AND: MR DUKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
27 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Until the commencement of the Reunification Intensive referred to in Order 2 of this Order in January 2025:
(a)the child, X, born 2015 shall live with the mother; and
(b)the mother shall have sole decision-making responsibility; and
(c)the mother is restrained and an injunction issue restraining her from changing the child’s residence from that indicated on Exhibit 4 in the proceedings; and
(d)the mother be further restrained by injunction from changing the child’s enrolment at school.
IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT:
Reunification Intensive
2.The father and the child, X, born 2015, shall undertake a four (4) day Reunification Intensive (Reunification Intensive) with Ms E commencing January 2025, or other such dates as Ms E advises are available.
3.The father shall be responsible for all costs associated with the Reunification Intensive.
4.For the purposes of the Reunification Intensive, the father’s lawyer shall forthwith provide Ms E a copy of these Orders.
5.On the 4th day of the Reunification Intensive, Ms E shall advise the mother and father in writing, copying to the legal representatives, whether the Reunification Intensive has been deemed by Ms E to have been successful (the Written Notification).
6.In the event that the Reunification Intensive is deemed successful, the Moratorium (as referred to below) shall commence immediately.
7.As soon as is practicable following the Reunification Intensive, Ms E shall provide to the legal representatives for the parties and the Independent Children’s Lawyer, a report, which shall include:
(a)the program in which the child and the father participated during the four (4) day intensive;
(b)the results of the reunification intensive; and
(c)her opinion as to whether the reunification intensive has been successful in repairing the relationship between the child and the father.
8.In the event the Reunification Intensive is deemed by Ms E to have been unsuccessful, the mother shall make arrangements to collect the child, at the address advised by Ms E to the mother.
Handover Arrangements
9.The mother shall deliver the child to Ms E at such place as nominated by Ms E for the purpose of the Reunification Intensive, commencing in January 2025, or such other date as is required by Ms E and the mother shall then immediately leave the vicinity.
10.The mother is restrained by injunction from making any comments to the child regarding the Reunification Intensive, these Orders or the father prior to or during the handover.
11.The mother is restrained by injunction from contacting or attempting to contact the child during the Reunification Intensive or causing anyone else to do so on her behalf and shall actively discourage anyone from doing so.
Moratorium on Contact
12.In the event the reunification intensive is deemed by Ms E to be successful (per her written notification), there shall be a moratorium on contact between the child and the mother for a period of 120 days (Moratorium Period).
13.The mother is restrained by injunction from contacting or attempting to contact the child during the Moratorium Period or causing anyone else to do so on her behalf and shall actively discourage anyone from doing so.
14.If the mother, any acquaintance of the mother or any member of the child’s extended maternal family initiates contact with the child during the Moratorium Period, the Moratorium Period shall be extended for a further 30 days for each incident of contact.
Psychiatric assessment
15.The mother attend upon a psychiatrist as nominated by the Independent Children’s Lawyer at times nominated by the Independent Children’s Lawyer for the purposes of an independent psychiatric assessment of the mother and the psychiatrist shall provide a report to the Independent Children’s Lawyer and the parties.
16.The mother shall pay the cost of the psychiatric assessment.
17.These Orders shall operate as the letter of instruction to the psychiatrist.
18.The psychiatrist shall report on the following:
(a)the mother’s presentation to the psychiatrist;
(b)what testing, psychometric or otherwise, is undertaken of the mother, and the results of such testing;
(c)whether the mother has a diagnosable mental illness or mental health disorder, as identified in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5);
(d)whether any mental health condition would, or could, impact the mother’s parenting capacity;
(e)what treatment plan, including medications, inpatient care or other treatment is recommended for treatment of the mother;
(f)what prognosis the mother can expect should she follow such treatment plan; and
(g)any other matters which ought to be raised in relation to the mother’s mental health diagnosis, prognosis, or any other relevant issue.
19.The Psychiatrist shall receive from the Independent Children’s Lawyer, and the Independent Children’s Lawyer shall be given leave to provide the psychiatrist with:
(a)a copy of these Orders;
(b)the mother and father’s affidavits relied upon in this trial;
(c)a copy of the report of Dr G;
(d)a copy of the report of Dr H; and
(e)the Transcript of Hogan J’s summary on 27 November 2024 of aspects of the mother’s evidence when cross-examined on 25, 26 and 27 November 2024.
Therapeutic Support for the Mother
20.The mother shall, at her own expense, engage in therapeutic support as recommended by Ms E to assist in shifting her negative beliefs about the father.
20A. By 4.00 pm on Friday, 29 November 2024: the mother shall contact the therapist recommended by Ms E and make the first available appointment and shall advise all other parties in writing of that appointment within 24 hours of it being made and thereafter shall attend such appointments as directed by that therapist.
20B.The person providing therapeutic support shall receive from the Independent Children’s Lawyer, and the Independent Children’s Lawyer shall be given leave to provide the person providing therapeutic support with:
(a)a copy of these Orders;
(b)the mother and father’s affidavits relied upon in this trial;
(c)a copy of the report of Dr G;
(d)a copy of the report of Dr H; and
(e)the Transcript of Hogan J’s summary on 27 November 2024 of aspects of the mother’s evidence when cross-examined on 25, 26 and 27 November 2024.
21.The mother shall provide written confirmation from her therapist of her attendance, participation and progress in the recommended therapeutic support to the father’s solicitor at 60 days, 90 days and at the conclusion of the Moratorium Period.
22.At the conclusion of the Moratorium Period, the mother shall obtain a report from the therapist who has been providing therapeutic support for the mother which report shall advise the mother and the father whether the Therapeutic Support to shift the mother’s negative beliefs about the father has been successful.
23.In the event that the mother is not able to obtain a report that the therapeutic support is deemed successful, pursuant to the previous Order, the mother may continue therapy until such time as she obtains a report from her treating practitioner that the treatment to shift the negative beliefs about the father has been deemed successful.
24.The mother’s therapy shall be deemed to be successful in the event that she receives a report which indicates that she has shifted her negative beliefs about the father.
25.In the event that the mother receives a report pursuant to the above paragraphs, deeming the therapeutic support successful, then upon receipt by the parties of such report, the Orders under the heading, If the Reunification Intensive and the mother’s therapy are both deemed successful shall forthwith apply.
26.The mother shall have until 27 November 2026 to receive a report advising that therapeutic support has been deemed successful, and thereafter, the mother’s therapeutic support shall be deemed to have been unsuccessful.
Parental Responsibility, pending therapeutic support success
27.During the Moratorium Period, and until the mother receives a report deeming her therapeutic support is successful, the father shall hold sole parental responsibility for decision-making of long-term issues.
If the Reunification Intensive is deemed successful but the mother’s therapy is not
28.If the Reunification Intensive is deemed successful by Ms E, but the mother’s therapeutic support is deemed unsuccessful, then:
(a)the child, X, born 2015, shall live with the father;
(b)the father shall have sole decision-making responsibility for long-term decision-making; and
(c)the child shall spend time with the mother as agreed between the parties.
If the Reunification Intensive and the mother’s therapy are both deemed successful
Parental Decision Making
29.The mother and father have joint decision-making responsibility for major long-term issues for the child, X, born 2015.
30.The parents are to consult with each other about decisions to be made in the exercise of their joint parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree; and
(c)they shall make a genuine effort to come to a joint decision.
Live with
31.The child shall live with the father during school term from after school Friday (or 5.00 pm in the event the child is not attending school) until before school the following Friday (or 5.00 pm in the event the child is not attending school) on a week about basis.
32.Otherwise, the child shall live with the mother during school term.
33.This Order shall be suspended for the weekends during any school holiday period (which shall be deemed to include the first weekend after the school term ends and the weekend before school recommences) and to recommence on the weekend after the school term recommences determined as if the sequence had not been interrupted.
School holidays
34.Notwithstanding the preceding order the child shall live with her parents for school holiday periods as follows:
(a)being the first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years with the father and in odd numbered years with the mother; and
(b)the second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years with the father and in even numbered years with the mother;
(c)for the purpose of these Orders, the school holiday time shall commence:
(i)when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00 pm on the day calculated to be half of the holidays;
(ii)when a parent’s time falls in the second half of the holidays from 5.00 pm on the day calculated to represent half of the holidays when contact shall end at 9:00 am on the day the school term recommences;
(iii)school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00 am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night in even years and the mother in odd years.
Special Occasions
35.Notwithstanding any previous orders, the child shall spend time with her parents on special occasions as follows:
(a)for Christmas Day:
(i)from 5.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years with her mother and in odd numbered years with her father; and
(ii)from 2.00 pm Christmas Day until 5.00 pm Boxing Day in odd numbered years with her mother and in even numbered years with her father;
(b)on the birthday of the child (with the parent she is not living with on the day):
(i)if a school day, from after school until 6.00 pm;
(ii)if a non-school day, from 1.00 pm until 6.00 pm;
(c)on the birthday of each parent (if the child is not living with that parent on the day):
(i)if a school day, from after school until 7.00 pm;
(ii)if a non-school day, from 1.00 pm until 6.00 pm;
(d)for Father’s and Mother’s Day:
(i)with her father on Father’s Day weekend (if a non-contact weekend) from 5:00 pm Saturday until 5:00 pm Sunday;
(ii)with her mother on Mother’s Day weekend (if a non-contact weekend) from 5:00 pm Saturday until 5:00 pm Sunday.
Telephone/Video Communication
36.The child shall communicate with her parents on the telephone/video call at such times as the child reasonably requests but otherwise between 7:00 pm and 8:00 pm each Tuesday and Thursday and in relation to such communication each parent shall:
(a)ensure that the child is available to receive the telephone call;
(b)arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance, the child misses the telephone call from that parent; and
(c)ensure that the child has privacy during the conversation.
Collection and Delivery
37.Changeover shall occur as follows:
(a)the father and mother shall collect the child from and return the child to school during times the child lives with them; and
(b)if the child is not attending school, changeover shall occur at the Service Station Town J.
Specific Issues
38.During any time that the child spends with either parent, she shall reside within 100 km of K School, or any other school she shall attend by agreement between the parties.
39.The mother and father shall:
(a)keep the other parent informed at all times of their contact telephone number and email address;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child and to avoid doubt, this order authorises any treating medical practitioner or other health practitioners to release the child’s medical information to the other parent. This order authorises any treating medical practitioner to release the child’s medical information to the other parent;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and the details of any specialist health care appointment; and
(d)authorise all schools or day-care centres attended by the child to give each parent, at that parents cost, any information he/she may require about the child’s educational progress and supply them with copies of school reports, photographs, certificates and awards obtained by the child and to avoid doubt, this order authorises the child’s school from time to time to release information about the child’s educational progress to the parents.
40.During the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d)not publish by any means including social media any comments derogatory of the other parent.
41.Each parent shall deliver and return the child’s clothing, school supplies and belongings and the child’s clothing shall be returned in a clean condition.
42.Unless for an urgent health matter concerning the child all communication between the parents shall be in writing via the My Family Wizard Application. Such communication shall be restricted to matters relating to the child.
If the Reunification Intensive is deemed not successful
43.If the Reunification Intensive is deemed not successful by Ms E, then:
(a)the child, X, born 2015 shall live with the mother;
(b)the mother shall have sole decision-making responsibility; and
(c)the child shall spend no time with father.
Procedural
44.The Independent Children’s Lawyer be discharged following 12 months from the date of these Orders.
45.The parties have liberty to apply to the Court in relation to any opinion or reports prepared pursuant to these Orders, upon three (3) days’ notice.
AND IT IS ORDERED THAT:
46.The original Minute of Consent Orders signed by the parties be placed and kept on the Court file.
47.The final hearing dates of 28 November 2024 and 29 November 2024 are vacated.
48.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 and these particulars are included in these Orders.
NOTATION:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Farley & Duke has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
I have before me orders signed by each of the parents of X, who has been the subject of this litigation for a number of years. Those orders have the imprimatur of the Independent Children's Lawyer. The Court is asked to make them in circumstances where X has not seen her father since November 2020 and has not spent any time at all with him since then.
The mother, whose case before the Court has been that, for a variety of reasons (including allegations of sexual abuse by the father toward X and other children, including his own biological child) the father posed an unacceptable risk of harm to X, now accepts, it seems – by asking that the Court make orders in the terms sought – that the father does not pose an unacceptable risk to X.
I said I would include in these Reasons, when they issued, my summary of the mother's evidence which concluded shortly before I was asked to stand down earlier today – as it turns out, to enable the parties to engage in discussions which have resulted in the drafting of the orders that I am asked to make by consent.
The mother’s evidence in the trial included that:
(a)she said she believes the father raped Ms L – despite the absence of evidence of that; and
(b)she said she believes the father sexually abused X on the basis of her evidence and disclosures by the child and the evidence of others about subsequent disclosures made by the child; and
(c)she said she believes the father sexually abused Mr M – despite the absence of evidence about that issue; and
(d)she said she believes and has concerns that the father has sexually abused N – despite the absence of evidence about that issue; and
(e)she has said to me that nothing anyone could do would convince her otherwise in relation to those beliefs; and
(f)she has said that, irrespective of what the Court finds, she will continue to promote the view that the father has sexually abused X and, I infer, the others whom she has said she believes have been the victims of sexual abuse by him and that she will continue to say this out loud; and
(g)she has said that, no matter the Court’s findings, she will not support X having a relationship with her father ever; and
(h)she has said that she believes that X fears that the father will kill her; and
(i)she has told me that she believes the father threatened X that he would tie her up with ropes and put duct tape over her mouth; and
(j)she has told me that she believes the father has raped X via penile penetration; and
(k)she has said she believes it is possible that N may sexually abuse X or physically abuse her and that it is possible that the father may have groomed N to act like this or, I infer, just groomed him; and
(l)she has said she believes that it is not in X’s best interests to spend supervised time with N because he would possibly manipulate her and also because X has expressed fear of him after seeing him at the family report interviews and had told her that he was one of “Dad’s people” and that she was scared of him; and
(m)she has said she believes that none of the extended paternal family would act protectively toward X and would not report any abuse by the father and that they themselves represent a risk to X; and
(n)she has said she does not want X to ever spend time with the father; and
(o)she has said she believes that the father, in essence, systematically stalked her and has continued to do so and to facilitate this he has, amongst other things, had someone else drive around with his phone at areas distant from where she was physically located to, in essence, cover up that asserted stalking conduct; and
(p)she has said to me that there is no evidence the father could provide to her to convince or persuade her that he has not been stalking her; and
(q)she has said she believes that the father has been tracking and monitoring her and, I infer, X and believes that he had her followed to find out (as I understood her evidence) that she had moved from Town O in New South Wales early this year to Victoria; and
(r)she has said that nothing could ever change her belief that the father has engaged in threatening and coercively controlling behaviour toward her after their separation; and
(s)she has said she believes that Dr H (a forensic and clinical psychologist who authored a sexual risk assessment report in relation to the father) and the principal of the P School have been manipulated by the father to:
(i)in the case of Dr H: remove pages from his report – despite his assertion that they had been included in that report in error; and
(ii)insofar as the principal of the P School is concerned: lie to her (the mother) when she denied the mother’s assertion that the school had provided the father with personal details about herself and X.
(t)she has said that it is “suspicious” that her former husband died, that the father’s current partner’s former husband died and that the husband of another woman whom the father knows has died – even though the evidence establishes:
(i)in relation to her former husband (the father of Ms L, Mr M and Mr Q) – that he died in an accident; and
(ii)that she did not know (when she said it was “suspicious” that the father’s partner’s former husband had died) when or how he had died – and the evidence is that he died from an illness; and
(iii)in relation to the third person – the evidence is that she did not know how or why that person’s former husband or partner died.
(u)she has said to me she believed that the father tampered with her vehicles to cause them to break down and deliberately risked X’s safety by doing so and that he is capable of doing that; and
(v)she has told me that she thinks X’s distress over time has grown because she is very fearful of the father and that he would come and take her and continue to hurt her; and
(w)she has said to me that she finds that pretty much everything the father does is suspicious and she accepts that she holds negative beliefs about him; and
(x)she has told me she thinks X hates living in Town O and is terrified or scared of living there and that she (the mother) will not move back to the property she owns in that town; and
(y)she has told me in her evidence, under cross-examination, that nothing could satisfy her that the father is not a risk to X and that she would not support X spending time with him and she believes he is, amongst other things, a sexual predator and everyone in his family is a threat to X; and
(z)she has also told me in her evidence, under cross-examination, that she does not support Ms E attempting the reunification process between X and the father vis-à-vis their relationship and that, irrespective of whatever process might be implemented, she does not think it is in X’s best interests to be reintroduced to the father.
The submissions made on behalf of the father by Counsel who appeared for him, in essence, are that, given the circumstances in this case, he accepts that the reunification process the parents have – by asking that the Court make these orders – indicated they agree to and support is really all that remains, realistically, as an attempt to have X resume having the relationship with him that she had prior to November 2020.
I accept the submissions made on his behalf by Ms Smith, who appeared for him, about his motivations in seeking that the Court make the orders in the terms that he does – namely, that he is concerned to alleviate any further damage to X that may be occasioned should the reunification process not be put into effect but orders be made for her to move to live with him. The submissions made make it clear, and I accept, that the father's focus has been upon ensuring, in the circumstances in which X finds herself, that there is no further damage caused to her.
I note for the record that, when the matter was before me in August of last year, I was asked to make (and did make, by consent) interim parenting orders which included Notations to the effect that each of the parents accepted that the evidence may not provide a basis for findings of unacceptable risk.
In seeking that I make these orders for reunification, with the potential consequences set out in them, I record that I consider the mother to have gone further than that and to accept that the evidence does not establish that the father poses an unacceptable risk to X.
Whether these orders give effect to a reunification of X's relationship with her father is, of course, something that remains to be seen.
I accept the submissions made on behalf of the Independent Children's Lawyer, in essence, that, in the circumstances, the orders represent the best possible chance of achieving a reunification of the relationship between X and her father in a way that seeks to minimise any further impact upon her of the consequence of not having that relationship for the last four years.
In the circumstances and given the consent of the parties and the support of the Independent Children's Lawyer, I make orders in terms of the Minute signed by the parents (as amended by me during the course of discussions with Counsel) on the basis that, in the circumstances and having regard to the reality for X, such orders are now in her best interests.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 3 December 2024
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