Gillie & Fellowes
[2022] FedCFamC1F 466
•4 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gillie & Fellowes [2022] FedCFamC1F 466
File number(s): BRC 18092 of 2020 Judgment of: CAREW J Date of judgment: 4 July 2022 Catchwords: FAMILY LAW – Parenting – Where an order is made by consent of the parents – Where the independent children’s lawyer concurs Number of paragraphs: 11 Date of hearing: 29 June – 4 July 2022 Place: Brisbane Counsel for the Applicant: Ms Pendergast Solicitor for the Applicant: Cherry Family Lawyers Counsel for the Respondent: Ms Oakley Solicitor for the Respondent: Cudmore Legal Counsel for the Independent Children’s Lawyer: Ms McArdle Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 18092 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GILLIE
Applicant
AND: MR FELLOWES
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
order made by:
CAREW J
DATE OF ORDER:
4 July 2022
THE COURT ORDERS BY CONSENT:
1.That the father shall have sole parental responsibility for X born in 2017 (“the child”).
2.That the child shall live with the father.
3.That the child shall spend time and communicate with the mother as follows;
(a)From the date of these orders until Friday 30 September 2022 the child shall spend no time and have no communication with the mother;
(b)From Saturday 1 October 2022 until Friday 29 September 2023 the child shall spend time with the mother for a period of between 2 and 4 hours each week, provided that time,
(i)is supervised, and
(ii)takes place at the D Services (or such other centre or supervision service that may be agreed between the parties in writing), and
(iii)the mother is responsible for the costs of any contact centre or service, and
(iv)takes place on Saturday or Sunday unless otherwise agreed between the parties in writing.
(c)From Saturday 30 September 2023 until Friday 29 March 2024,
(i)the child shall spend time with the mother for a period of 4 hours on a Saturday or Sunday in each week at times to be agreed by the parties in writing and failing agreement on each Sunday from 10am to 2pm, with handovers to occur at the D Services or such other centre or service agreed to by the parties in writing, the cost of which is to be borne equally by the parties.
(d)From Saturday 30 March 2024 to Friday 27 September 2024,
(i)the child shall spend time with the mother for a period of 6 hours on a Saturday or Sunday in each week at times to be agreed by the parties in writing and failing agreement on each Sunday from 10am to 4pm, with handovers to occur at the D Services or such other centre or service agreed to by the parties in writing, the cost of which is to be borne equally by the parties, and
(ii)the child shall have communication with the mother by a telephone/video call each Wednesday for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing), and
(iii)the child shall have communication with the mother by a telephone/video call on the child’s birthday, Mother’s Day and Christmas day (in the event the child is not spending time with her) for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing).
(e)From Saturday 28 September 2024 to Friday 28 March 2025,
(i)the child shall spend time with the mother for a period of 8 hours on a Saturday or Sunday in each week at times to be agreed by the parties in writing and failing agreement on each Sunday from 10am to 6pm, with handovers to occur at the D Services or such other centre or service agreed to by the parties in writing, the cost of which is to be borne equally by the parties, and
(ii)the child shall have communication with the mother by telephone/video call each Wednesday for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing), and
(iii)the child shall have communication with the mother by a telephone/video call on the child’s birthday, Mother’s Day and Christmas day (in the event the child is not spending time with her) for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing).
(f)From Saturday 29 March 2025 to Friday 27 March 2026,
(i)the child shall spend time with the mother from 9am Saturday until 12 noon Sunday in each alternate week, with handovers to occur at the D Services or such other centre or service agreed to by the parties in writing, the cost of which is to be borne equally by the parties, and
(ii)the child shall have communication with the mother by telephone/video call each Wednesday for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing).
(iii)the child shall have communication with the mother by a telephone/video call on the child’s birthday, Mother’s Day and Christmas day (in the event the child is not spending time with her) for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing).
(g)From Saturday 28 March 2026 until the commencement of school term 1 in 2027,
(i)the child shall spend time with the mother from 9am Saturday until 5pm Sunday in each alternate week, with handovers to occur at the D Services or such other centre or service agreed to by the parties in writing, the cost of which is to be borne equally by the parties, and
(ii)the child shall have communication with the mother by telephone/video call each Wednesday for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing), and
(iii)the child shall have communication with the mother by a telephone/video call on the child’s birthday, Mother’s Day and Christmas day (in the event the child is not spending time with her) for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing).
(h)From the commencement of school term 1 in 2027 and thereafter, the child shall spend time and communicate with the mother as follows;
(i)During each school term, on every alternate weekend from after school Friday until 5pm Sunday with the child to be collected by the mother at the conclusion of school on Friday and returned to the father’s care on Sunday at the D Services or such other centre or service agreed to by the parties in writing, the cost of which is to be borne equally by the parties, and
(ii)In each school holiday period, on each alternate weekend from 10am Friday until 5pm Sunday with handovers to occur at the D Services or such other centre or service agreed to by the parties in writing, the cost of which is to be borne equally by the parties, and
(iii)By telephone/video call each Wednesday for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing), and
(iv)the child shall have communication with the mother by a telephone/video call on the child’s birthday, Mother’s Day and Christmas day (in the event the child is not spending time with her) for a period of no more than 30 minutes between the hours of 5pm and 6pm (or such other time as may be agreed between the parties in writing).
4.That the father be at liberty to nominate up to 3 one (1) week periods which may occur consecutively or separately in 2023 and in each year thereafter during which the child will not be required to be made available to spend time with the mother, that nomination to be provided in writing 4 weeks in advance of each relevant period.
5.That the time the child spends with the mother provided for in this order is conditional upon the mother’s compliance with paragraph 6 herein.
6.That the mother shall,
(a)attend upon a psychiatrist for a period of not less than 2 years,
(b)attend the psychiatrist at a frequency of not less than every 2 months or as such other frequency as recommended by the psychiatrist,
(c)such psychiatrist to be as agreed by the parties in writing, and
(d)such psychiatrist to be provided by a joint letter of instruction by the parties, with leave to the parties to publish to the psychiatrist the affidavit of Dr B filed 16 May 2022 and the Reasons for Judgement of the Honourable Justice Carew, and
(e)provide the father with written confirmation by way of letter signed by the psychiatrist or invoice to substantiate her attendance upon the psychiatrist within 7 days of each session.
7.That pursuant to section 68B of the Family Law Act 1975 (Cth), the mother be and is hereby restrained from;
(a)Talking to the child about the allegations of the child having been allegedly abused by the father, or
(b)Providing with or exposing the child to documents filed in this proceeding, or
(c)Making derogatory comments about the father to or in the presence or hearing of the child, or
(d)Taking the child to or causing the child to be taken to any therapist, counsellor, psychologist, clinical psychologist, psychiatrist (including but not limited to Ms C) or any other health care professional (subject to paragraph 11), or
(e)Publishing on any social media platform any comments directly or inferentially about this proceeding or the outcome of the proceeding, or
(f)Publishing on any social media platform any comments directly or inferentially about the father, or
(g)Publishing on any social media platform any photographs of the child or the father, or
(h)Attending at any school at which the child is a student save for her attendance at the school to collect the child pursuant to paragraph 3.h.i on a Friday afternoon or as agreed by the father in writing.
8.That pursuant to section 68B of the Family Law Act 1975 (Cth), the father be and is hereby restrained from;
(a)Providing with or exposing the child to documents filed in this proceeding, or
(b)Making derogatory comments about the mother to or in the presence or hearing of the child, or
(c)Publishing on any social media platform any comments directly or inferentially about this proceeding or the outcome of the proceeding, or
(d)Publishing on any social media platform any comments directly or inferentially about the mother, or
(e)Publishing on any social media platform any photographs of the child or the mother.
9.That the parents shall communicate with each other only concerning matters relevant to the child and shall use the parenting application Talking Parents (or other parenting application they may agree on from time to time) unless it is an emergency.
10.That the father be at liberty to provide a copy of this order to
(a)the Queensland Police Service, and
(b)the Department of Children, Youth Justice and Multicultural Affairs, and
(c)any health care professional attending upon the child, and
(d)any school or day care centre attended by the child.
11.That in the event the child requires urgent medical treatment during any period she is in the care of the mother, the mother shall;
(a)take the child to the nearest public hospital, and
(b)notify the father immediately of the child’s attendance there, and
(c)provide the hospital with a copy of this order.
12.That all previous parenting order be discharged.
13.That the child shall be delivered to the father’s care by the mother on a specified date in July 2022 at the Commonwealth Law Court Building, Brisbane.
NOTATIONS:
A.The mother acknowledges that the father does not present a risk of sexual harm to the child.
B.The mother acknowledges that the father does not present a risk of psychological/emotional harm to the child.
C.The mother acknowledges that at this point in time she does present an unacceptable risk of psychological/emotional harm to the child.
D.The mother acknowledges that her attendance upon a psychiatrist as provided for in this order is to assist her to gain insight into her behaviour as acknowledged in these notations and the unacceptable risk she presently poses to the child.
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 Gillie & Fellowes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J:
X is a five year old child, whom her mother (Ms Gillie) believed (according to her evidence throughout these proceedings) had been sexually abused by the child’s father (Mr Fellowes). Not only that, Ms Gillie said during cross-examination that she believed Mr Fellowes was a paedophile who had actively prostituted his daughter online to other paedophiles for payment.
Today, being the fourth day of the trial, I am presented with a Minute of Consent signed by the parents and the independent children’s lawyer (“ICL”) providing for a change in living arrangements for the child i.e. to live with her father and not see her mother until September and thereafter to spend time with her mother on a very gradually increasing basis, although initially supervised. The mother has agreed to undergo psychiatric treatment and a notation to the proposed order records the following:
(a)The mother acknowledges that the father does not present a risk of sexual harm to the child.
(b)The mother acknowledges that the father does not present a risk of psychological/emotional harm to the child.
(c)The mother acknowledges that at this point in time she does present an unacceptable risk of psychological/emotional harm to the child.
(d)The mother acknowledges that her attendance upon a psychiatrist as provided for in this order is to assist her to gain insight into her behaviour as acknowledged in these notations and the unacceptable risk she presently poses to the child.
I note that the parties are each represented by very experienced counsel.
The allegations made by the mother in the proceedings are very serious and, had this trial concluded in the normal course, would have required very careful examination and analysis of all of the evidence and specific findings made addressing the issues identified by the parties for my determination, including whether the mother had fabricated the allegations.
Despite the parties’ agreement, I nevertheless must be satisfied before making the proposed order that it is in the best interests of the child in the circumstances of this case.
The agreement reached between the parents, with the concurrence of the ICL, occurs before the father or any of his witnesses were cross-examined and before cross-examination of any of the experts.
However, it would be fair to observe (and no doubt led to the agreement now reached) that the mother’s case entirely collapsed during her cross-examination, and the cross-examination of the maternal grandmother and the child’s treating psychologist, Ms C.
The mother conceded during her evidence that she had told numerous untruths during these proceedings, although the mother attempted to minimise the significance of some of her concessions by contending that she had not intended to lie. As the parties have reached agreement, it is not necessary for me to detail the extent of those concessions but they were numerous.
The agreement now reached will require the child to move immediately to live with the father and to change schools. However, all of the independent evidence persuades me that the child has a close and loving relationship with her father and that she will cope with the transition.
The proposed order includes a number of conditions intended to maximise the protection afforded to the child, including that the mother undergo psychiatric intervention. The time the child spends with the mother initially will be supervised at the contact centre with which the child is now well familiar, having spent supervised time with her father there since September 2021.
In the particular circumstances of this case, I am satisfied that the proposed order is in the child’s best interests and I propose to make an order in those terms.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 4 July 2022
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