Gustafsson & Jeanes (No 4)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Gustafsson & Jeanes (No 4) [2024] FedCFamC1F 812

File number(s): NCC 459 of 2023
Judgment of: SMITH J
Date of judgment: 29 November 2024
Catchwords: FAMILY LAW – CHILDREN – Final hearing – Family violence – where parties reached consent position as to a child nearing the age of 18 prior to trial – where Independent Children’s Lawyer, mother and maternal aunt proposed a joint minute of order seeking no time and no communication with the father – serious allegations of physical, psychological and sexual abuse family violence against the father – where father denied family violence or risk – where findings of serious long term family violence by father poses a high and unacceptable risk of any time or any communication - Ordered there be no time and no communication between the father and the child – s 68B injunctions ordered for the protection of the child.
Legislation:

Evidence Act 1995 (Cth) Pts 3.1, 4.1, ss 128, 140

Family Law Act 1975 (Cth) Pts VII, XI, ss 60B, 60CA, 60CC, 61B, 61C, 61DAA, 61DAB, 64B, 65AA, 65D, 65DAAA, 67Q, 68B, 68C, 69ZT, 69ZV, 102NA
Cases cited:

Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Gustafsson & Jeanes [2024] FedCFamC1F 217

Division: Division 1 First Instance
Number of paragraphs: 313
Date of hearing: 4 – 8 November 2024
Place: Newcastle
Counsel for the Applicant: Ms Beckett
Solicitor for the Applicant: Oliver Howells & Co Legal & Conveyancing
Counsel for the First Respondent: Mr Flanigan
Solicitor for the First Respondent: Resolve Legal Professionals
Counsel for the Second Respondent: Mr Allen
Solicitor for the Second Respondent: Ann Legal
Counsel for the Independent Children's Lawyer: Mr Mooney
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:

29 NOVEMBER 2024

THE COURT ORDERS THAT:

1.All extant parenting Orders in relation to the child Y born 2010 are discharged.

2.Ms Gustafsson born in 1980 (“the mother”) and Ms Bluth born in 1985 (“the maternal aunt”) have equal shared parental responsibility and joint responsibility for making major long-term decisions for Y, to the exclusion of Mr Jeanes born in 1978 (“the father”).

3.Y is to live with the mother.

4.Y is to spend no time with the father.

5.Y is to have no communication with the father.

Injunctions directed to Mr Jeanes

6.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Jeanes born in 1978 (“the father”) is restrained by injunction from:

(a)Approaching or contacting or communicating with Y directly or indirectly, including through any third party, in any manner whatsoever, including but not limited to responding to any message or request or communication sent by, or initiated by, Y;

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Details
Case
[2024] FedCFamC1F 812
Decision Date

CaseChat Overview and Summary

In the case of Gustafsson & Jeanes (No 4), the Federal Circuit and Family Court of Australia determined parenting arrangements for a child nearing the age of 18, considering serious allegations of family violence and abuse. The court was required to decide on the best interests of the child, including the safety, views, needs, and parental capacity of the parties involved. The primary concern was the father's history of physical, psychological, and sexual abuse, which posed a high and unacceptable risk to the child's safety. The child, despite expressing a desire for some form of communication with the father, had been subjected to long-term emotional manipulation and coercive control.

The court ruled that the child's best interests would be served by prohibiting any time or communication with the father, and granted comprehensive injunctions for the child's protection. The court found that the mother and maternal aunt had the capacity to meet the child's developmental, psychological, emotional, and cultural needs, and that any involvement of the father would be detrimental. The final orders discharged all existing parenting orders, granted the mother and maternal aunt equal shared parental responsibility, and prohibited the father from having any contact with the child directly or indirectly. The court also mandated detailed injunctions to prevent the father from approaching the child or any of the child's relatives, contacting the child through third parties, or publishing any information about the child on social media. These orders were made to safeguard the child and prevent the father from further harming the child.

Orders

Orders of the court

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:

29 NOVEMBER 2024

THE COURT ORDERS THAT:

1. All extant parenting Orders in relation to the child Y born 2010 are discharged.

2. Ms Gustafsson born in 1980 (“the mother”) and Ms Bluth born in 1985 (“the maternal aunt”) have equal shared parental responsibility and joint responsibility for making major long-term decisions for Y, to the exclusion of Mr Jeanes born in 1978 (“the father”).

3. Y is to live with the mother.

4. Y is to spend no time with the father.

5. Y is to have no communication with the father.

Injunctions directed to Mr Jeanes

6. Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Jeanes born in 1978 (“the father”) is restrained by injunction from:

(a) Approaching or contacting or communicating with Y directly or indirectly, including through any third party, in any manner whatsoever, including but not limited to responding to any message or request or communication sent by, or initiated by, Y;

(b) Approaching or contacting or communicating with Y through any of the paternal relatives, namely, Mr B, and/or Mr C, and/or Mr L, and/or Mr M;

(c) Providing money or any other item, thing or consideration to Y in any form, directly or indirectly, including through any third party, in any manner whatsoever, including but not limited to in response to any message or request or communication sent by, or initiated by Y;

(d) Approaching within 250 metres of Y, including through any third party;

(e) Approaching within 250 metres of any residence at which Y may reside from time to time, including through any third party;

(f) Approaching within 250 metres of, or contacting or seeking information from, any educational facility which Y may attend from time to time, including through any third party;

(g) Approaching within 250 metres of, or contacting or seeking information from, any place of employment at which Y may work from time to time, including through any third party;

(h) Approaching or contacting or approaching within 250 metres of the mother, and/or Ms E (born in 2004), and/or Mr D (born in 1980) and/or any other person who lives with them from time to time, directly or indirectly, including through any third party, in any manner whatsoever, excepting only that the father may engage a legal practitioner to correspond in writing with the mother on his behalf;

(i) Approaching or contacting or approaching within 250 metres of the maternal aunt, and/or the maternal aunt’s partner Ms N, and/or their children Ms O, P and Q, and/or any other person who lives with them from time to time, directly or indirectly, including through any third party, in any manner whatsoever, excepting only that the father may engage a legal practitioner to correspond in writing with the maternal aunt on his behalf; and

(j) Publishing on any social media account any information relating to or identifying Y, the mother, the maternal aunt, any other person identified in these orders, or these family law proceedings.

(k) Seeking a police welfare check in relation to Y.

7. Pursuant to s 68C of the Family Law Act 1975 (Cth), the injunctions in Order 6 are for the personal protection of:

(a) Y born 2010;

(b) Ms Gustafsson born in 1980;

(c) Ms E born in 2004;

(d) Mr D born in 1980;

(e) Ms Bluth born in 1985;

(f) Ms N;

(g) Ms O;

(h) P; and

(i) Q.

8. If a Police Officer believes on reasonable grounds that Mr Jeanes born in 1978 has breached the injunction at Order 6 the Police Officer may arrest him without warrant and place him before a court exercising Federal jurisdiction in relation to the breach.

Provision of Orders and / or Family Reports to various bodies

9. The mother and the maternal aunt have leave to provide a copy of these Orders to any educational institution attended by Y.

10. The mother and the maternal aunt have leave to provide a copy of these Orders to New South Wales Police.

11. The mother and the maternal aunt have leave to provide a copy of the Family Report dated 26 October 2023, and the Child Impact Report dated 5 May 2023, in these proceedings, to any treating medical practitioner, counsellor, therapist or psychologist upon which Y attends. They are to provide a copy of these Orders with those reports to provide notice to those persons that they are not to publish that material.

12. A copy of this Judgment and Orders, and any other documents in this case, may be given to any police prosecutor, legal practitioner or judicial officer in relation to any extant AVO against Mr D or any application in relation to an AVO by the father.

Explanation of orders to the Y

13. Within 7 days from the date of these orders, the mother and maternal aunt make such arrangements as are necessary to have Y meet with the Court Child Expert who prepared the Family Report for the purpose of explaining these Orders to Y.

Mandatory notification to Victorian Department of Families, Fairness and Housing

14. A copy of these Orders and this Judgment is directed to be provided to the Victorian Department of Families, Fairness and Housing, with particular reference to paragraphs [311] – [313] of the Judgment, and a copy of the affidavit referred to there is also to be provided as part of a Notice of Risk in relation to a child.

15. Pursuant to ss 62B and 65DA(2) 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 are set out in the Annexure and these particulars are included in these Orders.

THE COURT NOTES THAT:

A. In the ordinary exercise of parental responsibility, if the mother or the maternal aunt believes Y is initiating or responding to communication with the father, or any agent of the father, the mother or maternal aunt may remove all electronic devices from Y and return them to him at their discretion.

B. Final orders in relation to X were made on 10 July 2024 and 25 July 2024.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I set out an extract from a report on Mr L, noting that the relative referred to in the report is Mr M, to give context to the history. This is relevant as the father is aware of this history but denies these relatives have posed any risks to the children and has involved them in their lives:[9][9] Exhibit P. 5. Background History [Mr L] was born [in] 77 in […] Victonia [sic]. He is the second child of a family of four children. [Mr L] has reported that he has experienced sexual abuse in his childhood. [Mr L] states that he was sexually abused by his [relative] from the age of five […]. This abuse consisted of oral sex, masturbation and being shown pornographic material. He states that he was abused individually and as part of a group of boys. He was encouraged by his [relative] to offend against the other boys and them to offend against him.[Mr L] did not disclose the abuse to anyone until he himself @vas [sic] questioned by the Police with regard to his abuse of his sister.[Mr L] began to abuse other children independent of his uncle from about the age of ten. He has stated that he assaulted his sister approximately twice a week for three years. The assaults on his cousins were limited to school holidays. The children who were being cared for by his mother were abused when he, [Mr L], wanted to. [Mr L] states that he could abuse a child just about whenever he wanted to, such was his access to children at that time.[Mr L] states that he has no alcohol or drug problems.6. Assessment of offending historyMotivation to abuse sexually[Mr L] was clearly highly motivated to sexually abuse a wide range of children (ages and sex) prior to being discovered in [late] 199' [sic]. He has admitted this to the author, and in a range of other settings: He displayed a highly developed pattern of behaviour consistent with child sex offenders. That is to say, he had pro-offending thinking, targeting and grooming behaviours. Due to the high level of access to his sister and the [other] children, [Mr L] did not have to engage in any elaborate planning. However, he did ensure that the abuse took place away from others who might discover him. He has stated that he was aware that his behaviour was both illegal and wrong.The origins of [Mr L's] motivation to offend appears to be found in his own sexual abuse. He has described an extended period in his childhood of repeated sexual abuse perpetrated on him by his [relative]. His [relative] is an established paedophile and he recruited [Mr L] into a ring of boys who were not only offended against but who were encouraged to offend ayainst [sic] each other. This mechanism, a common one used by paedophiles lives the victims with a sense that they are as responsible as the paedophile for what has happened. This increases the chances that they will not tell others about what has happened to them.[Mr L], by his own account, was sexually aroused when he committed the offences against the children. This sexual attraction to children may well be a conditioned response developed through his early childhood sexual experiences. His offending behaviour went unchecked for a considerable time. His sexual arousal appears to have become conditioned around his offending behaviours. He has stated that he experienced sexual arousal combined with a sense of power when abusing his victims.Overcoming internal inhibitionsEldridge (1994) has identified two types of cycles; continuous and inhibited. Offenders with continuous cycles have no internal inhibitors other than fear to prevent them from offending. They have strong beliefs that their behaviour is acceptable and that the law should be changed in line with it. This pattern is common amongst fixated paedophilles. This is the pattern that [Mr L's] uncle displayed. Other offenders have inhibitions about offending, feel guilty and needing to provide themselves with an excuse to offend. [Mr L] prior to his discovery in 199 [sic] appears to fall to have taken on the short-circuit cycle he had been exposed in the behaviour of his [relative]. However, due to his age, at the time of his offending, the developmental issues must be taken into account.[Mr L] has stated that he experienced no feelings of guilt and that he viewed children as a 'sexual objects to -et [sic] what he wanted from: which was "sexual gratification".(As per the original)

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 60CC provides how a court determines a child's best interests. General considerations – section 60CC (2)(a) Safety I am required to and have considered “what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child).” For reasons set out elsewhere the only arrangements that promote the child’s safety, as well as that of each person who has the care for the child, are that the child live with the mother, and that he spend no time and have no communication with the father, whether directly or indirectly, or through any third parties.(b) Views of child I am required to and have considered “any views expressed by the child.” The child told the CCE at [163] that “he would like to have supervised phone calls with the father because he thinks this would help him not to think about the father as much”.[109][109] Family Report, paragraph 163. The child has told the father, at times, that he would like to live with him. I find that his views as expressed to the CCE are likely to be a more accurate expression of his views. Usually, considerable weight would be given to the views expressed by a child of the child’s age. However, for the reasons set out elsewhere, I find that the child’s expressed views that he wishes to maintain a relationship with the father, albeit supervised, are substantially a result of, and cannot be disentangled from, the father’s long term and ongoing emotional manipulation and coercive control which has caused the child to feel responsible for the father’s well-being. I find that even the supervised communication that the child told the CCE he would like would not be in the child’s best interests, as it will allow the father a sanctioned mechanism through which to maintain his unhealthy and harmful psychological hold over the child and cause the child significant ongoing psychological harm and inhibit his ability to recover from the effects of the long term abuse.(c) Needs of child I am required to and have considered “the developmental, psychological, emotional and cultural needs of the child” and find, consistent with the CCE’s opinion, that these needs are able to be met by the mother and the maternal aunt, and are not able to be met by the father, and that allowing the father any involvement in the child’s life will be detrimental to the child’s needs.(d) Parental capacity I am required to and have considered “the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs”. I find that the mother, supported by the maternal aunt, has adequate capacity to provide for these, despite her own parenting capacity shortcomings, which are at least to some extent a result of her being subjected for many years to the father’s family violence, and that the maternal aunt has good parental capacity to assist the mother and the child in relation not these issues.