Jerrum & Jerrum
[2023] FedCFamC1F 572
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Jerrum & Jerrum [2023] FedCFamC1F 572
File number(s): BRC 14886 of 2020 Judgment of: HOGAN J Date of judgment: 7 July 2023 Catchwords: FAMILY LAW – CHILDREN – Where the father was convicted of offences of indecent treatment of children and creation of child exploitation material, including in relation to one of the children – Where it is ordered that the father spend no time with the children and have no communication with them.
Where a Registrar is to provide a copy of these Reasons to the Department of Child Safety, Seniors and Disability Services.Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Cox & Padrana (2013) FLC 93-537; [2013] FamCAFC 48
Division: First Instance Number of paragraphs: 50 Date of hearing: 7 July 2023 Place: Brisbane Counsel for the Applicant: Ms Ferguson Solicitor for the Applicant: Genuine Legal Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Keyworth, Keyworth Harris & Lowe Family Lawyers ORDERS
BRC 14886 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JERRUM
Applicant
AND: MR JERRUM
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
7 JULY 2023
IT IS ORDERED BY WAY OF FINAL ORDER:
1.All parenting plans and previous parenting orders are discharged.
2.The children X, born in 2011 and Y, born in 2013, live with the mother.
3.The mother shall have sole parental responsibility for the children in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).
4.The children shall spend no time and have no communication with the father.
5.The father is restrained and an injunction issue restraining the father from:
(a)contacting or approaching the mother or the children in any way or by any means and at any place; and
(b)having any other person contact or approach the mother or the children in any way, or by any means or at any place, on his behalf; and
(c)remaining at any place at which the mother or children live, work, attend school or are present for any other purpose.
AND IT IS FURTHER ORDERED THAT
6.Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
7.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
8.A Registrar of the Federal Circuit and Family Court of Australia (Division 1) send a copy of the settled Reasons for Judgment, delivered orally today in support of these Orders, to the Department of Child Safety, Seniors and Disability Services for the same to be held in records maintained by that Department.
9.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
10.Pursuant to s 65DA(2) and s 62B of the Family Law Act1975 (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:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 pseudonym Jerrum & Jerrum has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTHOGAN J:
These proceedings require the determination of those parenting orders which are in the best interests of 12 year old X, who was born in 2011, and nine year old Y, who was born in 2013. The children live with their mother at present. They have not spent time with their father since 2020 when he was charged with a number of offences, including those which asserted his possession of child exploitation material.
The father is currently in custody. His incarceration follows his plea in 2020 to several charges – the details of which may be found contained within Exhibit 4.
The offences include several offences relating to child exploitation material and indecent treatment of children.
The father was sentenced in the District Court of Queensland in mid-2023.
Again, details of the sentencing, the time imposed at that time may be found in the father’s criminal history[1]. Speaking broadly, a conviction was recorded for all of the offences to which a plea of guilty was entered. The head sentence imposed was one of imprisonment. Orders were made for the recognition of pre-sentence custody and that such time be deemed as time already served under the sentence. As a consequence of that determination, it was recognised that the father has spent significant time in pre-sentence custody. The parole eligibility date set by the sentencing judge was mid-2023.
[1] Exhibit 4, pages 32 and 33.
It is clear on the evidence before me that it appears that, as a result of some sort of error within the Corrective Services Department, the father was released from custody on that date. However, following the realisation of that error, he has been returned to custody. It is unknown to me when the father might be released from custody, although, as I have said, he has been eligible to apply for parole since mid-2023.
The offences to which the father entered a plea of guilty included offences which involved X, his son. The offences included those of creating and distributing child exploitation material – which also involved that child.
The father’s plea of guilty to those offences to which the same was entered contradicts his sworn denial in an affidavit filed in this Court on 20 December 2021 in which he asserted that he had not committed any wrongdoing. It also contradicts his denial to the Department of Child Safety, Youth and Women,[2] as noted in correspondence from that Department dated September 2020, of all serious child abuse allegations.[3]
[2] As that Department was then known.
[3] The mother’s affidavit sealed 27 June 2023, pages 20 and 21.
The competing proposals
When this matter was before a Judicial Registrar on 30 January 2023, the father advised the Court that he did not seek that any orders be made for the children to spend time with him or communicate with him. He also advised the Court that, whilst he did not oppose orders being made in the terms sought by the mother, he did not consent to the same.
Today, the father, who appears by video link from prison on his own behalf, sought orders that may be summarised as follows: that once he is released from jail and if the children want it to occur, they be at liberty to have telephone communication with him on four occasions per year, (namely, on each of their birthdays, on Father's Day and on Christmas Day) and that, in the event that they wish to have such communication, the mother be required to do all reasonable things to facilitate it occurring.
The mother seeks orders that may be summarised as follows: that she be accorded sole parental responsibility for the major long-term decisions relating to the children; that the children live with her; that the children have no time and no communication with the father. She also seeks that orders of an injunctive nature be made to restrain the father from approaching within 200 metres of any place at which she or the children live, work or attend school.
The orders sought by the mother are supported by the Independent Children's Lawyer.
DISCUSSION
In these proceedings, being proceedings for a parenting order in relation to the children, I may, subject to s 61DA and s 65DAB and Division 6 of Part VII of the Family Law Act 1975 (Cth) (the Act), make such parenting order as I think proper. I must have regard to the objects of Part VII of the Act and the principles which underpin those objects. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.
The matters to which regard must be had in determining those parenting orders which are in any child’s best interests are prescribed by s 60CC of the Act. The requirement to consider each of those matters, though, does not necessarily mean that each must be the subject of any discussion, particularly where the evidence leads inexorably to a particular conclusion.[4] Any failure, therefore, in these Reasons delivered orally today, to mention a consideration, specifically, does not mean that it has been overlooked in my deliberation about those orders which are in these children’s best interests. Rather, I have considered all of the relevant considerations in arriving at my conclusion about such orders.
[4]See: Banks & Banks (2015) FLC 93-637 which, albeit an interim decision, contains a discussion of and outlines the principles which seem to me to apply as much to final proceedings as they do to matters involving the resolution of proceedings on an interim basis.
The father’s plea to the offences (including those involving X) means that the presumption that it is in these children’s best interests that their parents have equal shared parental responsibility for the major long-term issues relating to them does not apply. Consequently, the power of the Court to make parenting orders is at large, subject always, of course, to the children’s best interests being the paramount consideration.[5]
[5] See: Cox & Padrana (2013) FLC 93-537.
I consider there to be no rational contest to a conclusion that these children’s best interests will be met by an order which accords to the mother sole parental responsibility for the major long‑term issues relating to them. Such an order is clearly, in my view, the only order in relation to the issue of the according of parental responsibility that could sensibly be regarded as being in the children’s best interests in the circumstances in which they find themselves.
Whilst the maintenance of a meaningful relationship between children and both of their parents is one of the primary considerations prescribed by the Act, the requirement to protect children from harm is to be afforded greater importance. The Act makes it clear that this is an imperative.
Given this, it is necessary, I consider, to set out, albeit briefly, aspects of the father’s conduct as established by the evidence before me. Aspects which are not the subject of particular elucidation in these Reasons are contained within Exhibit 4 and will no doubt have been discussed by the judge who sentenced the father for the offences earlier this year. I note for the record that the sentencing remarks of the judge are not before me today.
By way of broad overview, then, and focusing in particular on the father’s conduct towards X, I consider that the evidence establishes that which follows.
When police executed a search warrant in mid-2020, they seized a number of electronic devices. Inspection of the same revealed that they held child exploitation material. A review of a seized mobile telephone showed the presence of more than 40,000 texts over a time period which began in 2019 and which ended in 2020.
A review of the text messages revealed numerous images of child exploitation material. A review of the metadata showed or established that the images had been taken at the father’s home and then sent to a number by mobile phone. Review of the images of the children revealed them to have been taken so as to disguise the children’s faces or keep them hidden. The children were shown to be in various sexual poses.
Review of the images revealed that an image taken in 2019 at about 5.49 am appeared to be:
… of a naked, prepubescent male child […] in a bed with [coloured] sheeting. […]. A series of sexually explicit photographs after this were identified of the same child and same ‘Metadata’ location, being the defendant’s address.[6]
[6] Exhibit 4, page 6.
The reference to “the defendant” in this comment is a reference to the father.
Page 25 of Exhibit 4 contains the following:
The offender has then used an electronic recording device and taken photographs of both himself and the victim child. […].
The “victim child” referred to in this quote is X. The “offender” referred to in this quote is the father.
In mid-2020, police interviewed X, who was then nine years of age.
I have viewed that s 93A recording which is an Exhibit before me. That viewing revealed a child who, on a number of occasions, became distressed – including to the point of sobbing. When asked to tell the police what had happened, his comments included that his father wanted him to rub the private parts of another child (B) who was the daughter of the father’s then de facto partner. X told the police repeatedly that he had repeatedly told his father that he did not want to do that and that he knew that he was not at the stage yet where he wanted to take such an action. His account to the police included that the father told him to do it; that it would be fun. His account to police included that he continued to tell his father that he did not want to do that behaviour.
When asked “why” by police, he said that he did not want to be in that type of place; that he was trying to block it out and to go somewhere else; that he had told his father that he did not want to take that action and that he did not really want to do it, but – and this is my summary of it – despite that, his father insisted that he rub B’s private parts for a few minutes: which he did.
It is clear from viewing X’s police interview that his upset overwhelmed him on occasions. It is also clear, on his account, that he attempted to remove himself from the situation in which he found himself. It is clear he told the police that he had not wanted to do what his father asked him to do and that he felt that he was not up to it and not ready to do it.
It is, I think, particularly telling that X’s recounting to police included, again, that he did not want to act in the manner that his father asked him to, but his father kept demanding that he do so – which resulted in X saying “fine” and acting in the manner that he had been asked to do. I also record that, at that time in the interview with the police, X broke down into what I consider to be sobbing and actions demonstrative of significant distress and upset.
X also told the police that he only acted as he told them that he had done (namely, by rubbing B’s privates with his finger for a few minutes lightly and not hard) because he did not want to do that and because his father had told him he would give him a surprise. His later recounting included that that surprise was a scooter.
Later in the interview, when asked about a photo in which both he and the father were naked, X told the police, in essence, that he did not remember that particular occasion, but that he was naked in bed and that his father would not wear anything to bed on occasions.
Looking next, chronologically, it appears on the evidence before me that a search warrant was executed by police at the father’s house the following day. At that time, police identified and saw a bed with coloured sheeting – which was regarded by them as being the same as captured in the photographs earlier retrieved by police.
It is also relevant to note that, during the execution of that search warrant in mid-2020, the following occurred:
Police conducted a systematic search of the residence for several electronic storage devices. Whilst conducting a search in the defendant’s daughter’s upstairs bedroom, police located a […] box in the wardrobe. The room is occupied by the defendant’s daughter.
Inside the […] box, police located a large amount of literature depicting cartoon images of [child exploitation material].
The defendant stated he did not know who literature belonged to, though was unable to answer how it came to be in his seven year old daughter’s bedroom wardrobe.[7]
[7] Exhibit 4, page 20.
The “defendant” referred to in this extract is the father. The “daughter” referred to in this extract is Y.
It appears that, during an examination of downloaded forensic images, police observed that the male child depicted in the series of what is described as “sexually suggestive photographs” had a distinct mark on his skin. The evidence establishes that the police showed those images to the mother in 2020, at which time she positively identified the male child captured in them to be X.
On the evidence before me the mother also assisted police in their further inquiries by advising them that she had kept a record of dates when the children were in the father’s care and telling them that the sheeting depicted in the images was the father’s bed sheeting.[8]
[8] Exhibit 4, page 7.
In addition to the matters to which I have made particular reference, the evidence establishes that the father has acted in a sexually abusive manner toward other children, both male and female.
Given the father’s conduct, I cannot identify any benefit either child might now gain from being afforded the opportunity to communicate with the father, even on the limited occasions of four times per year.
His conduct, including, in part, the submissions made by him today – which I regard as demonstrating the absence of any insight into the consequences of his behaviour, particularly for X – persuades me that any interaction between him and the children would place them at an unacceptable risk of harm, whether such harm would be via a repetition of the sexual abuse he perpetrated against X or via the psychological consequences of interacting with him following his abuse of X.
That the father sought an order in the terms that he did (namely, that once he is released from incarceration, the children have an opportunity to communicate with him on four occasions a year – which would require the mother to facilitate this) on the bases that he did only demonstrates to me a complete absence of insight into the effects of his abusive conduct, in particular in relation to X.
Further, what I regard as the father’s attempts to portray himself, in essence, as a good parent who does not want the children to be exposed to matters which may stress them (for example, him being incarcerated) and his submissions to the effect that communication with him would occur only if the children wanted it to occur is, in my view, a manifestation of his manipulative abilities; it is a clear manifestation of the extent of his capacity to manipulate.
Despite having abused X in the manner I have outlined and despite having abused his trust in the most horrendous manner, the father’s comments, if regarded without knowledge of his conduct toward children (including X, but not restricted to him) may well lead someone to a conclusion that he is a child-focused person who is concerned generally about the welfare of children and, particularly, about the welfare of his own children.
Nothing could, in my view, be further from the truth.
Rather, the evidence before me clearly establishes that the father is a deliberate and calculated predator who has demonstrated the capacity to put his own sexual desires ahead of all else and to abuse children, including X, in order to satisfy the same. He is, in my view, a danger to his children and other prepubescent children, both male and female.
Anyone viewing X’s record of interview and the distress he demonstrated when asked to speak about what I accept his father made him do to another child could not draw any conclusion other than that the father is a man from whom children must be protected.
For the reasons I have expressed, I am easily persuaded that the orders which are in the children’s best interests and proper are orders: which will see them live with the mother; which will accord to the mother sole parental responsibility for the major long-term issues relating to the children; which will prevent the children from spending time and having communication with the father; and, also, which will restrain the father from approaching the children or the mother or any place at which they may be. Such an order is in their best interests and clearly appropriate for their welfare.
I consider it clearly appropriate for the children’s welfare that an injunction issue for their personal protection and the personal protection of the mother and that such order restrain the father from contacting her or the children in any way or by any means or by having any other person contact her in any way or by any other means on his behalf; and also restraining him from approaching or remaining at any place including the home, work or place of education at which the children are.
In addition, such is my view about the father’s conduct and the risk that he poses to children generally that I consider it appropriate to make an order directing a Registrar of this Court to provide to the Department of Children, Youth Justice and Multicultural Affairs[9] a copy of the Reasons for Judgment delivered orally today, once the same are settled.
[9] By which name that Department is currently known.
The orders will issue with the usual reference to section 65DA(2) and section 62B of the Family Law Act1975 (Cth).
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 7 July 2023
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