Gordon & Gordon - [2015] FamCA 616

FAMILY COURT OF AUSTRALIA

GORDON & GORDON

[2015] FamCA 616

FAMILY LAW – CHILDREN – Ex parte – Family Violence – Best Interests – Order that the mother have sole parental responsibility – Order that the children live with the mother and spend no time with the father.

FAMILY LAW – PRACTICE AND PROCEDURE – Service – Requirement for service of the application and supporting affidavit on the father is dispensed with.

FAMILY LAW – PRACTICE AND PROCEDURE – Publication Orders – Suppression and non-publication Orders made.

Family Law Act 1975(Cth)

APPLICANT:

Ms Gordon

RESPONDENT:

Mr Gordon

FILE NUMBER:

BRC

4477

2014

DATE DELIVERED:

29 July 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

16 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms McDiarmid of Counsel

SOLICITOR FOR THE APPLICANT:

Condon Charles Lawyers

THE RESPONDENT:

No Appearance

Orders

These Orders are made on an ex parte basis, the requirement for service of the application and supporting affidavit evidence on the father having been dispensed with.
All previous parenting Orders are discharged.
The mother shall have sole parental responsibility for the children, B born … 2001 and C born … 2002 (“the children”).
The children shall live with the mother and not spend time with the father.
The children’s expired passports previously in the safe keeping of the Court be returned to the mother.
The mother is permitted to remove the children from the Commonwealth of Australia for the purposes of international travel.
The mother is authorised to apply for new Australian passports for each of the children and any requirement for the consent of the father to be obtained for the issue of such passports is dispensed with.
The Court requests that the Australian Federal Police remove the names of the children from the Airport Watch List at all points of international arrivals and departures in Australia should the name of either or both the children, B born … 2001 and C born … 2002, be currently on such List.
An extra sealed copy of these Orders in which the mother is referred to by the name disclosed by her in her affidavit filed by leave in these proceedings on 15 July 2015 be prepared, with a sealed copy to be provided to the mother through her solicitors who are on the record as at the date hereof.
Pursuant to the provisions of Part XIA of the Family Law Act 1975 (Cth), the Court’s sealed copy of these Orders issued in the mother’s name disclosed by her in her affidavit filed by leave in these proceedings on 15 July 2015 that is retained on the Court’s file be subject to suppression and retained, along with the affidavit filed by leave in these proceedings on 15 July 2015 in which the mother discloses her new name, in a separate file, with no copy of any of those documents or any details of the contents of those documents or any part of these proceedings that identifies the mother by her new name to be published, provided, shown to, or discussed with any other person outside the administration of the Court without the written consent of the mother or earlier Order of the Court.
Pursuant to s 102PF(2) of the Family Law Act 1975 (Cth), the suppression and non-publication Order made in the previous paragraph is made because it is determined necessary to protect the safety of the mother and/or the children.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4477 of 2014

Ms Gordon

Applicant

And

Mr Gordon

Respondent

REASONS FOR JUDGMENT

The Applicant is the mother of two girls aged 14 and 12. She seeks a parenting Order in respect of the girls. She asks the Court to make an Order that confers sole parental responsibility for the two girls on her, for them to live with her, to be able to apply for and obtain passports for the girls without the need for the father to sign the application and for an Order that she be at liberty to travel with the children out of the Commonwealth of Australia.
The Applicant seeks such a parenting Order in circumstances where the father was not served with the application or affidavit material filed to support the application, where he was not aware of the hearing before me, where service is sought to be dispensed with, where the proceedings were heard in a closed Court and where an Order is also sought supressing publication of certain aspects of the matter including parts of the Court’s Orders that are sought.
Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.
This matter is, in my judgment, one of those exceptional matters.

Background

The Applicant mother was born in Country D in 1966. She grew up there and obtained a Degree in that country. In 1999, she began internet correspondence with the father of the two girls. He was born in Country E but was living and working in F Town in Western Australia. He had been married before and had a daughter of that relationship. That daughter lived with him and her mother had returned to live in the Country G where she had come from.
The mother and the father met in person in 2000 and married that year. The mother returned to Country D for a few months before moving to live in Australia with the father and his daughter. Their relationship began to deteriorate in late 2002 early 2003. Of course, the two children of the marriage were born during these few short years.
The mother, in her evidence, described how possessive and controlling the father was. According to the mother, the father was also verbally and physically abusive of her and of his own daughter, as well as being sexually inappropriate in front of the children. I accept that evidence.
The mother finally separated from the father in 2004 when their two girls were three and two years old respectively. After some difficulties with the father in respect of their parenting relationship, the mother obtained an interim parenting Order from a Magistrate in F Town. That Order provided for the girls to live with her and to spend time with their father.
The mother purchased a home in the F Town area around that time and the father then, against the mother’s wishes, bought his own home one street away from hers.
Then began an escalating series of events that culminated in the father being charged and convicted after a jury trial. The father was sentenced to 4 years and 10 months imprisonment by a Western Australian District Court Judge. His appeal against the severity of the sentence was subsequently dismissed by the Western Australian Court of Appeal.
It is sufficient, in my judgment, to observe that included in the criminal behaviour for which the father was imprisoned was a litany of unacceptable, criminal behaviour guaranteed to strike fear into the targeted individual – in this case, the mother.
In addition, when police executed a search warrant on the father’s car they found part of what the Magistrate who initially heard the charges against the father described as an “abduction kit”. As I understand the evidence, the father was refused bail from the time he first appeared in Court on the charges until he was convicted and imprisoned. That Magistrate was reported to have observed of the father:
Such is his depth of obsession with [the mother] there is no order I could make to ensure her protection.
The conviction for attempting to pervert the course of justice arose from the father attempting to persuade his neighbours to give a false alibi for him in the event that they were questioned by police about his whereabouts on one of the nights when more serious aspects of the stalking offence were committed by him.
The mother also obtained a lifetime protection Order under Western Australian State family violence protection legislation at that time.
I am satisfied of these matters not simply by the things the mother herself deposes to in her affidavit, but also having regard to documents, including court transcripts and judgments, that she adduced into evidence attached to her affidavit.
The girls last saw, spoke with and spent time with their father just prior to June 2005, which was around the time the father was charged. The father’s daughter of his previous marriage left Australia at the same time and went to live with her mother in the Country G. She has had no contact with her father since then either.
In September 2006, in the Family Court of Western Australia, an Order was made that permitted the mother to take her daughters on a trip to Country D for up to two months. She did that and they all enjoyed spending time with the mother’s family, including her parents who are both still alive. They returned to Australia and have not been back to Country D since.
In May 2007, the Family Court of Western Australia reimposed restraint on the mother taking the children from Australia without an Order of the Court and ordered her to deliver up to the Court for safekeeping the passports of the children. At the same time though, the Court suspended all existing orders for the children to have contact with the father.
Sometime thereafter, the mother moved with the two girls to another part of Australia. She also lawfully changed her name.
The child support the mother was receiving from the father for the two girls through the Child Support Agency ceased in 2011 with the CSA informing her that there was nothing it could do to assist her to get any from then on. She was informed that the child support the father’s first wife in the Country G was receiving from the father for their daughter also ceased at the same time. The mother speculates that the father might very well have left Australia and returned to live in the Country E at that time, just a short period of time after he would have been released from prison. That may or may not be correct.
At some time, the Family Court of Western Australia transferred the file in the matter to this Court for determination of the mother’s application for final orders and the matter was listed for hearing before me.
The mother deposes to ongoing, constant fear of the father locating her and coming after her to do her harm. She takes numerous ongoing precautions to protect and defend herself against this eventuality. She fears the consequences of him locating her or her daughters.
The mother says that the girls, who were 6 and 4 years old at the time they last had contact with the father, barely remember him but still express their own fear of him locating them. The mother says neither girl expresses any desire to have any form of contact with him.

My Decision

Plainly, for 10 years now, the mother has parented the two girls as a single parent. That has been brought about by the criminally selfish behaviour of the father who clearly had little, if any, regard for the likely consequences of his behaviour on the lives of himself, the mother and their two daughters. Those consequences have been incredibly profound.
In my judgment, these two girls are entitled to go on being parented through what is often not an easy transition from childhood to adulthood over the next six years of their lives, free from fear of the father and being parented by a mother who feels free from fear of the father herself. The best interests of these two girls, in my view, are met by determining that the parenting Order the mother seeks can be made on an ex parte basis with service on the father being dispensed with.
The presumption that it is in a child’s best interests for her parents to have equal shared parental responsibility for her is clearly rebutted by the family violence the father subjected the mother and the girls to, particularly that for which he was criminally charged, convicted and punished.
I consider it safely established, on the evidence, that it is in the best interests of these two children for the mother to have sole parental responsibility conferred upon her. I will not make any Order requiring the mother to communicate or seek to communicate in any way with the father in the exercise of that responsibility.
The girls have lived with their mother with no contact with their father for 10 years. There is no reason, in my judgment, to consider that their best interests are not met by the making of an Order that continues to formalise that circumstance and one that expressly provides that they are not to spend any time with their father.
I am satisfied that the mother should be permitted to travel with the children outside of the Commonwealth of Australia if she wishes. When the Family Court of Western Australia restrained her from so doing, she had expressed a desire to return with the girls to live in Country D. Since then, she has changed her position on that. She has interests in real property in Australia. She is employed in a satisfying job. She likes the area she and the girls live in. She says the girls are Australian and, although they understand Country D and appreciate their mother’s Country D heritage, they identify as Australian and with the Australian culture. She acknowledges they do not wish to move to live in Country D and nor does she any more.
However, as her parents are ageing, she wishes to take the girls and visit them and the rest of her family in Country D, and to spend a little time with them. That desire is legitimate and perfectly reasonable. The mother assured the Court that they will return to Australia and I accept that.
Having determined that I would order the return to the mother of the girls’ passports, at the hearing I actually caused the expired passports of the two girls that were still held by the Court to be handed over to the mother. She must present those when applying for new passports to be issued for the girls by the Australian Government. The parenting Order I make will make it clear that the mother may apply for new passports for the girls without the need for the father’s consent.
The mother also sought an Order that an Order issue from the Court with her being referred to by her new name and that it be published to her alone but that the Court’s sealed copy of such Order and the affidavit she filed in which she deposes to her new name not be published more widely and be kept separate from the rest of the Court file with the father not to have any access to it if he ever seeks same.
Counsel for the mother referred me to the provisions of the Family Law Act 1975 (Cth) contained in Part XIA dealing with suppression and non-publication orders. Section 102PE gives the Court power to make an Order prohibiting or restricting the publication or other disclosure of information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings; or information that relates to the proceedings that comprises evidence or information about evidence.
Section 102PF sets out the grounds upon which the Court may make a suppression or non-publication order. The grounds relevantly include necessity to protect the safety of any person. The Order must specify the ground on which the Order is made. Pursuant to s 102PG such an Order may be made at any time during the proceedings and the Order must specify the information to which the Order applies with sufficient particularity to ensure that the Court Order is limited to achieving the purpose for which the Order is made. Pursuant to s 102PI such an Order operates for the period decided by the Court and specified in the Order and, in deciding, the period for which an Order operated, the Court is to ensure that the Order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. The period for which an Order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.
I am satisfied that in order to protect the safety of the mother and the two girls who are the subject of the proceedings, it is necessary to make an Order directed at Court staff to publish separate sealed copies of the Order referring to the mother by her new name to the mother only through her solicitors, to keep the Court’s sealed copy of that Order in a separate file along with the affidavit of the mother in which she deposes to her new name, and not to publish, deliver or show a copy of that Order, a copy of that affidavit or any of the detail contained in that Order or affidavit to the father or any third party.
I am also satisfied that the period for which this suppression and non-publication Order is to operate shall be until such time as the mother herself directs the Court to publish any such material or earlier Order of the Court. I am satisfied that such an Order should be made on an ex parte basis in this case, notwithstanding the fact that the father is entitled to appear and be heard on such application. As I have already observed, I consider this to be one of those exceptionally rare cases where the safety of the mother and children must be ensured at the expense of the father’s immediate right to be heard on this. Of course, should the father become aware of the Orders and the judgment in this matter as he could, he is entitled to seek an Order to have the suppression and non-publication Order lifted. If he does, such application would be considered on its merits.
I make the Orders set out at the commencement of these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 July 2015.

Associate:

Date: 29 July 2015