Holgate and Wray

[2018] FamCA 397

FAMILY COURT OF AUSTRALIA

HOLGATE & WRAY [2018] FamCA 397

FAMILY LAW – CHILDREN – interim proceedings – where significant allegations made regarding sexual abuse of children – assessment of primary considerations at interim proceedings.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Ms Holgate

RESPONDENT: Mr Wray

FILE NUMBER: CAC 1395 of 2015

DATE DELIVERED: 30 May 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 30 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Elringtons Lawyers

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

IT IS ORDERED:

1. That the consent orders made on 15 September 2015 be suspended until further order.

2. That the applicant mother have sole parental responsibility for the children X, born … 2011, Y, born … 2012 and Z, born … 2014.

3. That the children live with the mother.

4. That the children’s time with the respondent father be suspended until further order.

5. That pursuant to s 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the children.

6. That the matter otherwise be adjourned for a period of not less than 14 days to enable return of subpoena material from:

   (a)       NSW Police;

   (b)       Australian Federal Police;

   (c)       Department of Family and Community Services (NSW);

   (d)       NSW Health;

   (e)       Office of Children and Young People (ACT);

   (f)        ACT Health;

   (g)       Child at Risk Health Unit; and

   (h)       B Centre.

7. The applicant is granted leave to request the issue of subpoenas to the New South Wales Department of Family and Community Services and the ACT Office of Children and Young People

IT IS NOTED THAT

1. Leave is granted for the issuing of the above subpoenas on the basis that, in the particular circumstances of this case and the particular historical matters that will need to be canvassed, the mechanism of subpoena is the appropriate one by which to derive the appropriate information for the Court.

2. The applicant seeks leave for photocopy access to subpoenaed material, however, it is at present unclear what portions of the subpoenaed material may attract statutory prohibitions on possession. 

IT IS ORDERED THAT

1. Accordingly, the parties, including the Independent Children's Lawyer when appointed, may approach the Registrar to seek photocopy access for items which do not attract a statutory prohibition, the onus being on the parties to satisfy the Registrar that there is no statutory prohibition in respect of the matters that they seek to copy.

IT IS NOTED THAT

1. The above order in no way binds the Registrar to grant photocopy access.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1395 of 2015

Ms Holgate

Applicant

And

Mr Wray

Respondent

REASONS FOR JUDGMENT

1. These proceedings are interim proceedings concerning the children, X, who is six years old, Y, aged five years old and Z, who is three years old but about to turn four. 

2. The parties were in a relationship from 2009 until June 2015.  There were final consent orders made on 15 September 2015 that provided for the father to spend day time periods with the children.  Those were amended by a parenting plan entered into by the parties in February 2017, which changed the arrangements but still provided for the father to spend day time periods with the children. 

3. An application initiating proceedings was filed on 15 May 2018 and made returnable today.  Exhibit C1 sets out email correspondence conducted between the solicitors who appear for the applicant mother and the father, initially with an email responded to by the father, which was sent prior to the filing of the proceedings on 10 May.  This is followed up on 15 May by a further email to that same address that was responded to by the father previously.  That is sufficient at this stage of the proceedings to indicate that the father is aware of today's proceedings.  He has not attended today.

4. The application today is to suspend the operation of those consent terms and parenting plan and to provide that the mother will have sole parental responsibility for each of the children, that they will live with her, that the time with the father will be suspended, that an Independent Children’s Lawyer will be appointed, that the matter will be adjourned for sufficient time for the subpoenaed material to be produced from the various targets of subpoenas to date, including the New South Wales Police, the Australian Federal Police, the Department of Family and Community Services New South Wales, New South Wales Health, Office of Children and Young People ACT, ACT Health, Child at Risk Health Unit and B Centre.

5. The matters which have brought the matter on for such an application are numerous but the most essential of them can be identified as follows. 

6. The first is that on 13 April this year Y reported to his aunt, being the paternal aunt Ms C, in the context of Ms C reading a book to Y about good and bad secrets.  Ms C records that he said the following “Daddy tried to put his penis in my bottom” and “he wanted me to put his penis in my mouth”.  Ms C reported these matters to the mother.  The mother and Ms C attended firstly on the New South Wales Police and then on the Australian Federal Police.  The Australian Federal Police interviewed Y and have not advised whether or not a prosecution will be flowing from their interview with Y, although confirmed to the mother that Y had made a report to them of sexualised activity on the part of the father. 

7. The second matter is that on 20 April 2018 Y said to his mother “Daddy make me wash his penis” and “daddy put his penis in my mouth”.  Again, the mother reported the matter to the Australian Federal Police.  Y attended upon the Australian Federal Police and was interviewed and was also taken to the Child at Risk Health Unit for examination.  The consequences of those interviews and examinations are not yet made available to me. 

8. The third matter and the fourth matter involved incidents occurring at a more distant time.  The third matter involves an incident in August 2017 where Y, in childcare, bit another child in the genital region and told his mother “because daddy bites me there”.  The fourth is that X, in May 2016, was observed to be bathing with a bath toy between her legs, applying the bath toy to her genitals and is reported to have said “daddy touches me here”.  The mother reported this to the Child Protection Services in the ACT.  The mother observes that X's report as to being bathed by the father was somewhat troubling in the context where the father only spends limited day time periods with the children. 

9. The fifth matter that has been raised is the aggregate of a number of more remote matters.  One is a second-hand report that the father was dismissed from working at a childcare centre for inappropriate activity.  Further, that the father's previous partner had alleged that he had abused her children.  Further, that the father's sister alleged to the mother that the father had abused a son from a previous relationship by putting his “penis in bum” as reported by that child, D.  Further, that the mother had seen child pornography on the father's computer during the relationship. 

10. These matters are more remote and carry less weight in the proceedings at present, but may be of significance in final proceedings. 

11. The mother also reports a history of family violence involving physical violence, including sexual assault by the father upon her and controlling behaviour by means of monitoring the use of the mother's phone by virtue of the father setting up a phone system whereby his and her phones shared the same iCloud account. 

12. The mother's affidavit material reports that at present the father has been exercising the day time periods but has not exercised, for a period of about seven months, the telephone time provided for in the orders.  She also reports frequent injuries of the children while in the care of the father. 

13. I note the interim nature of these proceedings which means that the Court must be circumspect in terms of dealing with factual findings.  I am unable to determine which of these facts are contentious given that the father has not attended Court today but will act on the basis that these matters may all be the subject of dispute during the proceedings. 

14. I note in particular that the first two of the matters identified come from reasonably cogent sources.  At present I am unable to identify whether or not those reports should ultimately be accepted in the proceedings, but as they are currently reported to the Court, now at face value, there appear to be strong prospects that they are matters that could be accepted in the final proceedings, particularly if they remain non-contradicted as now.  If those matters that are reported, in particular the first two of the matters, being Y's reports of April 2018, then they are indicative of a grave risk to Y and potentially X’s and Z’s safety in the presence of the father.  Again, if they are correct, then they identify a risk that goes beyond the risk of being subjected to sexual abuse but also the risk of the consequences of being exposed to a sexual abuser.  As I indicated at this point I am not in a position to make any factual findings about the accuracy of what is purportedly reported by Y, nor whether or not it has been reported but merely, in accordance with the obligations placed upon me in interim proceedings, being in a position to assess that they disclose a risk sufficient to rely upon in the interim proceedings in determining what ought to occur. 

15. Of the s 60CC[1] considerations the dominant considerations, at present, through which any consideration of the secondary considerations might be made, are the primary considerations.  Those drive at the benefits of meaningful relationship and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

    [1]Family Law Act 1975 (Cth) s 60CC.

16. At present there is no material before me by which I might assess that there is a benefit of meaningful relationship between the children and the father.  That is not the same as saying that there is no benefit if they are to spend time with him, that will be a matter to be resolved later in the proceedings.  All that I note at present is that there is no material indicative of such a benefit flowing. 

17. There is, however, material indicative of potential risk to the children, in particular risk to Y and to X.  The potential risk disclosed there means that of the primary considerations it is the need to protect the children from physical or psychological harm that holds sway in these proceedings given the profound nature of the potential risk that is disclosed at this point in the proceedings.  The orders called for are the ones sought by the applicant mother in her application for interim or procedural orders filed 15 May 2018. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 May 2018

Associate: 

Date:  31 May 2018