Gottlund and Webster

[2016] FamCA 1073

FAMILY COURT OF AUSTRALIA

GOTTLUND & WEBSTER [2016] FamCA 1073       

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply – Where the father is no longer in Australia – Where the father has been convicted of sexual offences against another child – Child to spend no time with the father

Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)

Allesch & Maunz (2000) 203 CLR 172

APPLICANT: Ms Gottlund

RESPONDENT: Mr Webster

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation & Family Law

FILE NUMBER: BRC 1077 of 2012

DATE DELIVERED: 12 December 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 12 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Frizelle

SOLICITOR FOR THE APPLICANT: Keyworth Harris & Lowe Family Lawyers

RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation & Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous orders are discharged.

2. The child B, born … 2002, live with the mother.

3. The mother have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) for the child, with such issues to include but not be limited to:

   (a)the child’s education;

   (b)the child’s religious and cultural upbringing; and

   (c)the child’s health.

4. The child spend no time and not communicate with the father, Mr Webster.

5. The Independent Children’s Lawyer is discharged.

6. All other outstanding applications are hereby dismissed and removed from the list of cases pending determination.

AND IT IS FURTHER ORDERED

1. 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gottlund & Webster 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 1077 of 2012

Ms Gottlund

Applicant

And

Mr Webster

Respondent

And

The Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. The Court has before it today an application for parenting orders in relation to the child B (the child), who was born in 2002.  He is, therefore, now a little over 14 and a half years of age.  He has not spent any time with his father since about early February 2014.  Prior to that, for the two years before that or thereabouts, he had spent supervised time only with his father. 

2. The imposition of supervision over his time with his father arose out of the circumstances outlined in the material relied upon by the Independent Children’s Lawyer and the mother in their respective cases before the Court.

3. In very broad summary, the supervision was imposed so as to ensure that the child was protected from the risk of any sexual harm from his father following successful prosecution of the allegations that his father had sexually abused the child’s half-brother. 

4. That successful prosecution resulted in the father being convicted of offences against that child and sentenced to a period of imprisonment of, I think, three years and nine months - with a portion of that sentence being suspended.  The operation period is, from recollection, one of four years. 

5. The consequence has been that the father was incarcerated until 20 September of this year, at which time he was released.  He will be under the operation of a suspended sentence until November 2018. 

6. The evidence establishes that, upon the father’s release from incarceration, he was released into the custody of the Australian Border Force pursuant to those relevant sections of the Migration Act 1958 (Cth) which relate to the removal from Australia of persons who are termed “unlawful non-citizens”.

7. It appears, therefore, to be clear that the father is no longer in Australia. 

8. He has made contact with the Independent Children’s Lawyer and reference to the conversation he had with Mr Carter is clear from the contents of Mr Carter’s affidavit.  It is, therefore, clear that, during that conversation, the father told Mr Carter that, amongst other things, he was not going to file material in respect to the matter, was not going to participate in the matter, or attend at the trial.  Mr Carter’s evidence includes that the father was not then prepared to tell him where he was, but he did confirm he was overseas.  According to the affidavit filed on 7 December 2016 by Mr Carter, he has had no further contact with the father since that conversation on 16 November 2016.

9. It is in that context, then, that the proceedings have commenced this morning. 

10. I am satisfied that the father has had the opportunity to participate in the proceedings.  Reference to previous orders and directions make it clear that he has previously been afforded the opportunity to file affidavit material.  It is clear from authorities such as Allesch & Maunz[1] that all that is required is for a person whose interests may be adversely affected by orders made in the proceeding to be afforded the opportunity to participate in that proceeding.  It is not a requirement that any Court receive evidence or submissions from a party before making orders sought by other parties.  I am, therefore, satisfied that procedural fairness has been afforded to the father in these proceedings and that it is appropriate that the Court determine the matter on a final basis and make final orders today.

    [1] (2000) 203 CLR 172.

11. The imperative of making final orders in this matter is, in my view, made out clearly when regard is had to the mother’s evidence about the child’s current functioning and the difficulties with which he has had to contend since, it seems, no later than about mid-2014.  He has certainly had difficulties.  To adopt a phraseology used by Mr Sedgman, who has prepared Family Reports for the Court’s assistance in the matter, he has had multiple dealings with “helping professionals.”  Most of these, it seems, have been connected to, or work within the auspices of, CYMHS, the Children’s Youth and Mental Health Service. That engagement appears to have occurred from 2012 until the present. 

12. Reference to the evidence before the Court establishes that the child has struggled with school attendance, has previously been diagnosed with depression, anxiety and as exhibiting symptoms of Post-Traumatic Stress Disorder. 

13. It is clear the only conclusion, it seems to me, one could reach is that the burden of supporting him at this very difficult time has fallen completely on his mother’s shoulders.  She has clearly demonstrated the discharge of parental responsibility by accessing those services and no doubt supporting the child in his engagement with them.  The evidence, in my view, makes it clear that she will no doubt continue to do that into the future.

14. I accept the submissions contained within the written submissions prepared by Ms Frizelle on behalf of the mother, where they touch upon the manner in which the Court should approach the issue of parental responsibility.

15. I am satisfied on the evidence before me that the presumption of equal shared parental responsibility does not apply, and therefore, parenting orders are “at large” subject always to the Court having to be satisfied that any orders made are in the child’s best interests. 

16. The circumstances of this case further involve a history of allegations of sexual abuse alleged to have been perpetrated by the father against another lineal descendant, in addition to the offences for which he was convicted and incarcerated. 

17. It is clear from reference to the contents of the Family Reports that the father has maintained a denial of the allegations of sexual abuse, and has, it seems, refuted the validity of the outcome of the 2014 trial which resulted in his incarceration.  It seems he unsuccessfully appealed the verdict in that matter and I have before me the Reasons of the Court of Appeal in dismissing his appeal.

18. It is clear, therefore, from the evidence before the Court and the circumstances in which it comes before the Court, that there have been allegations made by both male and female children of inappropriate and sexually abusive behaviour by the father toward them.  There have been previous attempts to prosecute those charges.  One such attempt was unsuccessful after a number of retrials.  It is clear, in my view, that the consequence of all of these proceedings and the allegations can only have been to cause a very significant level of distress to the mother, who herself has been previously diagnosed as suffering from depression. 

19. That is another reason why it is important, in my view, that final orders are made: so as to provide the mother, the parent engaged in the sole care and support of the child, with the respite of knowing that final orders have been pronounced. 

20. I accept the content of the submissions made by Ms Frizelle, insofar as they touch upon the issue of unacceptable risk.

21. Again, within the context of the proceedings before me, I am satisfied on the evidence that the child would be at an unacceptable risk of suffering harm (be that physical and/or psychological) if he were to be required to come into contact with his father.

22. I am not satisfied that the extent of that risk could be ameliorated by any provision which provided for supervision over that time.

23. I am not persuaded that there would be, on the evidence before me, any benefit to the child at this point in time of requiring any interaction or communication with his father, such that I could be persuaded that that benefit outweighed what I consider to be the highly probable deleterious impact upon him of such a requirement. 

24. I am, therefore, satisfied in this case that it is appropriate to make an order that the child have no contact with the father. 

25. It is clear, as I have already said briefly, that his mother has undertaken the full burden – if I might use that term – of meeting his parenting requirements. 

26. It is clear, then, that it is in his best interests that he continue to live with her. It is also clear that his best interests will be met by affording to her the responsibility (on a sole basis) of parental responsibility, given that she has already discharged that heavy burden alone.

27. For those short reasons delivered orally, I make orders as follows: 

    a)I discharge all previous parenting orders;  and

    b)I make an order that the child live with his mother;  and

    c)I make an order that the mother have sole parental responsibility for the child, and that there be an order that he have no contact with his father.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 December 2016.

Associate:                  

Date:    14 December 2016