Gustafsson & Jeanes
[2024] FedCFamC1F 217
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gustafsson & Jeanes [2024] FedCFamC1F 217
File number(s): NCC 459 of 2023 Judgment of: SMITH J Date of judgment: 6 March 2024 Catchwords: FAMILY LAW – CHILDREN – Interim Orders - Paternal grandfather and paternal cousin contacting child - attempting to influence child in favour of the father – causing child emotional distress – where child has recorded these conversations – where child has raised the issue with the Independent Childrens Lawyer.
FAMILY LAW – Orders – 68B and 114 Injunction against paternal grandfather, paternal cousin and father from contacting child directly or indirectly.
Legislation: Evidence Act 1995 (Cth) Pt 3.11, s 138
Family Law Act1975 (Cth) Pts VII, XIV, ss 68B, 69ZL, 114
Cases cited: Lehrmann v Network Ten Pty Ltd [2023] FCA 1586 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 6 March 2024 Place: Newcastle by Microsoft Teams Counsel for the Applicant: Ms Howells Solicitor for the Applicant: Oliver Howells & Co Legal & Conveyancing Counsel for the First Respondent: Litigant in person Counsel for the Second Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Blundell Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates ORDERS
NCC 459 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GUSTAFSSON
Applicant
AND: MR JEANES
First Respondent
MS BLUTH
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
6 MARCH 2024
THE COURT ORDERS THAT:
1.Pursuant to s 114 and s 68B of the Family Law Act 1975 (Cth), MR B date of birth unknown (the paternal grandfather of Y) be restrained from:
a.Contacting or attempting to contact the child, Y born 2010 (“Y”) by any means, including through a third party;
b.approaching or coming within 100 metres of any place where Y might reside from time to time;
c.approaching or coming within 100 metres of any place where Y might attend school.
2.Pursuant to s 114 and s 68B of the Family Law Act 1975 (Cth), MR C date of birth unknown (the cousin of Y) be restrained from:
a.Contacting or attempting to contact Y by any means, including through a third party;
b.approaching or coming within 100 metres of any place where Y might reside from time to time;
c.approaching or coming within 100 metres of any place where Y might attend school.
3.Pursuant to s 68B of the Family Law Act 1975 (Cth), MR JEANES born 1978 (“the father”) be restrained from approaching or contacting Y directly or indirectly, or from asking or facilitating any other person to contact Y.
4.Pursuant to s 68C each of the injunctions in Orders 1, 2 and 3 above pursuant to s 68B of the Family Law Act 1975 (Cth), is for the personal protection of the child, Y born 2010.
5.Liberty is severally granted to Mr B and Mr C to file an Application in a Proceeding to set aside the injunctions placed on them.
6.Service by post will be good service for the purpose of the Injunctions in orders 1 and 2 above.
7.Y may be provided with a copy of these orders by the Independent Children’s Lawyer and informed of their effect.
THE COURT ORDERS, BY CONSENT, THAT:
8.The father is to provide the postal addresses of both Mr B and Mr C to the Independent Children’s Lawyer.
THE COURT NOTES THAT:
A.Ex parte Injunctions in orders 1 and 2 have effect from notice being received by the named subjects of the injunction.
B.The Independent Children’s Lawyer will post a copy of these Orders to Mr B and Mr C.
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 Gustafsson & Jeanes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:
These are shortform oral reasons for a decision pursuant to section 69ZL of the Family Law Act1975 (Cth) (“the Act”) in relation to ex parte injunctions against the paternal grandfather and a cousin of the subject children.
The injunctions are being issued by me of my own motion, arising out of very concerning material placed before me by the Independent Children's Lawyer (“ICL”) at an urgent mention this morning.
The very short background facts are that these are parenting proceedings which concern X, (born 2007, aged sixteen); and Y (born 2014, aged 14) (collectively, “the children”). The applicant mother is Ms Gustafsson (born 1980). The respondent father is Mr Jeanes, (born 1978). There is a second respondent, who is the maternal aunt, Ms Bluth.
The matter was listed for mention before me today on an urgent basis at the request of the ICL.
The circumstances, as I understand it, are that Y has advised the ICL that he has concerns because he has been contacted by the paternal grandfather. Y advised the ICL that he had been caused stress by this. The ICL had asked the father whether he would consent to some form of order restraining members of his family from contacting the children, particularly Y. I am going to make orders about Y only today, noting that X is 16 and I might say “doing his own thing”. I will refer to Y as “the child”.
As relevant background, there is an order in place, being Order 5 of the orders of 1 June 2023, which was made after a contested interim application as part of a recovery order returning the children to the mother. Order 5 restrains the father, pursuant to section 68B of the Act, from approaching, entering or coming within 100 metres of any residence that the mother may, from time to time, live with Y, or approaching, entering or coming within 100 metres of any place of education to which the children may, from time to time, attend.
I was provided today with the Exhibit A, a very short recording of under four minutes. As I understand it, it appears the child has made the recording.
The fact that the child has made the recording is itself significant evidence of the fact that he has concerns. People do not record conversations they do not have concerns about. I note that that also goes to the question of admissibility, which was not raised, (Mr Jeanes is unrepresented) but I am comfortably satisfied that where a child in litigation has recorded an adult speaking to them because of their concerns, this is material that would be admissible. I will also note the recent decision of Justice Lee in the Federal Court of Australia,[1] regarding the question of whether or not the State laws regarding criminal recording apply. In any event, assuming they do apply, I am comfortably satisfied it is admissible evidence within that rubric, or should be admitted, and it was admitted.
[1] Lehrmann v Network Ten Pty Ltd [2023] FCA 1586; also see s 138 Evidence Act 1995 (Cth) and see Dictionary “Australian Law”.
It is agreed the person calling the child is the paternal grandfather. About 0:24 minutes in, he asks the child where he is, and Y says he is in his room. The paternal grandfather says words to the effect of, “Your mother doesn’t know you’re talking to me?” When he is told no, he says, “Good. Make sure she doesn’t.” It is clear that the paternal grandfather does not want the mother to know this conversation is being held.
At about 0:28 minutes, the paternal grandfather says, “You’re not happy up there, are you?”, to which the child answers, “Yeah”. And the paternal grandfather, somewhat surprised, says, “You are?” And then the child says, “I don’t know”. The paternal grandfather later says to him, at about 1:30 minutes, “So you don’t like being up there, do you?” To which the answer is, “I don’t know”. He then asked, “What do you mean you don’t know?” This is a clear and classic example of an adult trying to lead a child, to have the child give the answers he wants.
It is clear that the paternal grandfather who does not want the mother to know that conversation has taken place. The first thing he tries to do is to lead the child into admitting he is not happy, despite the child in fact saying that he is happy when first questioned. So, he is placing pressure on the child to try and make him say he is not happy. The only possible purpose for that can be to interfere in the orders in this proceeding, and to interfere in these proceedings before the court.
At about 1:46 minutes, the paternal grandfather says, “If you’re not happy…” noting that he has tried to have the child concede he is not happy; he then says, “something will be done”.
The child has told the ICL that he is concerned that this may mean that the “something that may be done” refers to the paternal grandfather coming and taking him out of school.
At about 2:01 minutes, the paternal grandfather says:
There’s nothing stopping me from driving up there, not one single thing, and your mother can’t stop me from talking to you; it’s your choice. You can tell her to fuck off. You start doing what you want to do, not what everyone else is telling you to do. I want to know everything that has been going on up there if you’re not happy.
This is extraordinarily concerning, and I will come later to the question of whether the police should become involved. As I have said, the child has raised with the ICL his concerns about this matter.
We then have a second recording, Exhibit B, with Mr C, a cousin. He encouraged Y to speak with the father, and then he asked the child to call “Pop”, who I understand, and it is accepted, is the paternal grandfather. And at about 0:49 minutes, he says words to the effect of, “The court orders say nothing about stopping calling Pop; it says about Dad”. So, this cousin has been given, or made aware of the fact that the court orders stop the father talking to the child, but he is also aware of the fact that they only stop the father. It is clear that he has become involved by somebody in these court proceedings.
It is clear that both the paternal grandfather and Mr C are aware of the terms of the court order, ie that the father is not allowed to speak with Y. It is clear they are aware of the fact that there is a lacuna which lets them talk to Y. It is clear that the paternal grandfather was seeking to persuade the child, or cross-examine the child, into saying that he was not happy, despite the fact that the child’s first answer was that he was happy. Now, these two third parties who are associated with and relatives of Mr Jeanes, the father, are clearly seeking to insert themselves into these court proceedings and influence the child in favour of the father.
The question of whether or not either of these persons has, with or without the father, engaged in conduct which might attract serious criminal sanctions will be a matter for another day. I may consider whether or not the transcript of this material should be referred to the Australian Federal Police, but right now I need to start another trial which is part-heard, and I need to deal with the urgent matter first. Further, before I made any such referral, I would want to give the paternal grandfather and Mr C an opportunity, if they want to, to come along and contest these orders and explain to me why perhaps they should not be referred for criminal prosecution, or at least investigation for criminal prosecution.
The child’s best interests clearly require that this conduct cease immediately, as does the integrity of these court proceedings.
The negative impact on Y is clear given that he has firstly, recorded the conservations; and secondly, raised the issue with the ICL.
I note that because the father is not represented, I have explained to him – and I have not made any findings – that if he has, or if he was to or continue to, conspire with third parties to try and, in effect, influence the children to defeat the court’s orders, then he may be investigated for and charged with serious criminal offences, including contempt or attempting to pervert the course of justice. He should take some advice about that.
But as I have said, this an interim; I do not have enough evidence. To the extent to which it might appear that what has been suggested or implied has occurred, I make no findings.
But without any need to refer to that, the principles are clear. Y is to be protected from psychological harm. It is clear that psychological harm has been caused. It is clear that, whether intentional or not, these third parties are interfering in these proceedings, and they must stop. The injunction I will issue against each of them arises both under section 68B, to protect the child, and pursuant to section 114, to protect the integrity of these proceedings.
The injunctions will take effect from notice being given. The ICL is to take steps to inform and/or serve the paternal grandfather and the cousin, Mr C.
I note that the father spoke against these injunctions. I give no weight whatsoever to his submissions against them, which largely related to him trying to argue that he is in the right.
In any event, I also will extend the section 68B injunction to make it clear that the father is prohibited from contacting the children directly or indirectly, or from encouraging or facilitating any other person from contacting the child, Y; so that if after today evidence arises that he has spoken to the paternal grandfather or someone else and said, “Listen, you call them,” to get those persons to call Y, then at the end, he will be able to be brought before me for breaching the injunction or contempt.
I would indicate quite clearly that having someone else contact the children to try and persuade Y that he is unhappy when his response is that he is happy would be the most serious form of contravention. Such an action I would consider, prima facie, a contempt.
I do not think it is necessary to go through the legal principles; they are so obvious and must apply. Y is entitled to be protected from the psychological harm he is clearly suffering.
The court’s processes must be protected from interference by third parties who seem to think they are either above or outside the law or that there is a lacuna that lets them interfere in court proceedings merely because they are not currently named. They are not parents, and there is no consideration about the benefit of meaningful relationship with them both. Even if there is, nevertheless, the fact that they are causing the child stress makes it clear at the moment it is not in the child’s best interests.
I make orders in accordance with these reasons. The orders will be published today.
The ICL should act promptly to make sure they are communicated to these third parties.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 3 April 2024
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