Fleet & Fleet

[2021] FamCA 367

FAMILY COURT OF AUSTRALIA

Fleet & Fleet [2021] FamCA 367

File number(s):	NCC 3642 of 2017
Judgment of:	CLEARY J
Date of judgment:	14 May 2021
Catchwords:	FAMILY LAW – PARENTING – Interim Orders – Where the mother seeks orders in respect of two youngest of parties’ seven children – Where no time and communication with the father and restraints on conduct of father are proposed –  Where the father proposes supervised time for himself with the children – Where there are criminal charges against the father relating to the relationship between the parties themselves with a trial pending – Where there are allegations by one of the subject children of sexual abuse by the father – Where the father was previously charged and convicted of actual bodily harm of one of the parties’ other children –Where the evidence requires caution by the Court at this interim stage – Orders made as sought by the mother.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	29
Date of hearing:	12 May 2021
Place:	Newcastle
Solicitor for the Applicant:	Steven Young Lawyers
Solicitor for the Respondent:	Gus Farland Pty Ltd
Solicitor for the Independent Children's Lawyer:	Foat Roberts Lawyers

ORDERS

NCC 3642 of 2017
BETWEEN:	MS FLEET Applicant
AND:	MR FLEET Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	14 MAY 2021

THE COURT ORDERS THAT:

1.All parenting orders made in the Federal Circuit Court and in this Court in relation to X born … 2010 and Y born … 2013 (“the children”) are discharged.

PENDING FURTHER ORDER OF THIS COURT:

2.The children shall spend no time and have no communication with the father.

3.The father is restrained from approaching and/or attending at any school, work place, sporting event or other extra-curricular activity which the children may be attending and/or in which they are participating.

4.The father is restrained from locating or attempting to locate the address of the residence of the Applicant mother and the residence and school of the children.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fleet & Fleet has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

ORAL REASONS FOR JUDGMENT

CLEARY J:

INTRODUCTION

1. By her Amended Application in a Case filed on 24 March 2021, the mother seeks orders in respect of the two youngest of the parties’ seven children. They are X, aged 11, and Y, aged seven. The orders proposed by the mother are that the children spend no time with the father pending further order, and that there be restraints on the father approaching the children at any location, or attempting to locate the mother’s current address.

2. The father, by his Amended Response to an Application in a Case filed 10 March 2021, proposes supervised time for the children with him, and that the parents keep each other advised of contact details including residential address.

3. Material was tendered into evidence by the Independent Children’s Lawyer and on behalf of the father from police records[1] which will be referred to in these reasons. There were other documents, provided to the legal representatives for the father in the context of a criminal trial, which were rejected for tender in this Court.

   [1] Exhibits 1 and 2.

   BRIEF HISTORY OF RELEVANT EVENTS

4. The parties separated on a final basis in 2014 in the context of an assault by the father on the parties’ daughter Ms B, now aged 20; thirteen at the time of the assault. The father was charged and convicted of actual bodily harm, placed on a bond and an Apprehended Domestic Violence Order was put in place for the protection of the mother and the children.

5. On behalf of the father, it is submitted that the relationship between the father and Ms B has been fully restored, and Ms B has forgiven the father for those events.

6. These proceedings were commenced three years later by an application to the Federal Circuit Court by the father. In the two and a half years since that application was filed, information has emerged as follows:

7. First, that the police were investigating the criminal nature of the relationship between the parties themselves. The parties apparently began that relationship in 1995. If so, the mother was then 14 and the father 40; he had six children from two prior relationships. Charges have been laid of aggravated indecent assault on a child under 16 years and sexual intercourse with a person older than 10 and younger than 13. In that regard, the Court was advised that there would likely be a criminal trial for the father in October 2021.

8. Second, that the oldest of the parties’ children, Mr C, now aged 23, allegedly raped two of his brothers (Z and W) when they were young children. Mr C is presently in a correctional centre, and it appears to be the case that his two children are in the care of the mother in these proceedings as a result of a Children’s Court order.

9. Z told his father about events involving both him and his brother, W. The father’s statement to police came into evidence.[2]  The statement painted a picture of a transient life for both parties and the children over the years, and also the fact that the father rang the hotline to report what he had been told by Z, and made the relevant statement to police. Z said that the assaults had stopped after the parties separated in 2014.

   [2] Exhibit 1 – Police Statement dated 23 May 2019.

10. Third, there are allegations raised by one of the subject children, X, that the father, to summarise, groomed her through shared viewing of adult pornography and has had sexual intercourse with her.

11. Her interview with police is yet to be understood in context. However, the record reveals that at age 10 her language suggested she was familiar with the mechanics of sexual intercourse and the language used to describe it.

12. The history of the proceedings is that interim orders were made on 21 May 2018 which provided for residence for these subject children and an older child to live with the mother and spend supervised time with the father. Further interim orders were made on 14 May 2019 by consent for the children to live with the mother and spend unsupervised time in blocks of up to five hours with the father.

13. The police records reveal that in May 2020 there was an allegation raised by the mother of the father kissing X on the lips and causing her discomfort.

14. On 2 June 2020, X was interviewed by police.

15. On 12 June 2020, Y was interviewed about conduct at his former preschool. Y failed to disclose any complaint. Subsequently, Y was found to have been offended against at preschool and the police obtained video footage of the abuse occurring. It is of concern to police that Y has, at no stage, made any statement of complaint about his abuse.

16. In June 2020, the mother ceased making the children available for time with the father.

17. On 21 August 2020, there was a further interview with X. Her mobile telephone, which the mother had been in the habit of providing for her when she spent time with her father, was seized. There was found to be no images, all searches had been deleted. The mother has annexed photographs of what she says she found on the phone, which appear to depict adult pornography.

18. On 27 August 2020, X gave the interview where she describes visiting the father at his house with her younger brother. It is at this interview that she made disclosures about sexual touching by her father and, to use the words of the child, “s-e-x” by her father while Y was outside.

19. She was quite explicit about what she said happened in the house. The dates, times and details given by the child did not appear to accord with known contact visits.

20. On 28 August 2020, Y was interviewed. He could not relate or was unable to remember many details. He agreed there had been a house, there was a fire outside it, and sometimes he knocked on the house door when X and the father were in it. That was the extent of his information.

21. On 31 August 2020, the mother filed an Application in a Case in the nature of the orders now sought that all time between these two children should cease.

22. On 9 December 2020, Order 3 for time and communication made in the Federal Circuit Court was, by consent, suspended.

23. On 18 December 2020, X is reported to have said, during the counselling she has been receiving:

    Mum, you know stuff happened to Y as well … with dad.

24. On 15 February 2021, there was a further interview with X where allegations were raised by X and the outcome was no charges on current evidence.

    CONCLUSION

25. I accept the submission of the Independent Children’s Lawyer and the mother that there is sufficient information to justify there being no time or communication or attempts to make contact on an interim basis. During the period before and during the trial itself, tensions are likely to escalate and the children need to be protected. I accept the recommendation of the family consultant in that regard, that there should be an inquiry into the circumstances of the parties’ original relationship before final orders are made about the two younger children.

26. The mother herself, almost certainly, would be a witness in the trial in October and could not reasonably be expected to provide the children for supervised time, even if the Court considered that it was in the best interests of the children to spend time. The Court does not consider that it is. The dynamics of the relationship of the parties, whether or not crime is established, suggest a power imbalance through age at the very least.

27. The Court is obliged to follow the statutory pathway. The state of the relationships between the two subject children with their parents and their older siblings is unclear. However, the evidence of the father is that Y greatly enjoys spending time with him, fishing and just being in his company. That may well be the case.

28. However, the parties have agreed more than once that the subject children live with the mother which represents an acceptance by the father that the mother has the capacity to care for them. I accept the submission made on his behalf that the relationship between the children and the father may weaken during the long period of no contact, but on balance, the evidence demands caution by the Court at this interim stage.

29. Accordingly, orders are made as sought by the mother.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary.

Associate: 

Dated:       14 May 2021