Lerner and Little

[2018] FamCA 764

FAMILY COURT OF AUSTRALIA

LERNER & LITTLE [2018] FamCA 764

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the father filed an application seeking parenting orders by way of a review of a previous decision of a Registrar – Where the mother was in a three year relationship with a man who now faces criminal charges for grooming the parties’ daughter, other child sex offences, possession of a weapon and drug offences – Where there is conflict and inconsistency between the mother’s police statement and her affidavit relied upon on these proceedings – Where the Court is not satisfied that the mother will prevent the parties’ children coming into contact with her ex-partner and has concerns about the state of her emotional and mental health – Where it is not in the children’s best interests to be spending unsupervised time with the mother at this time – Where the Court appoints an Independent Children’s Lawyer and designates the matter as Magellan.

Family Law Act 1975 (Cth)
Justices Act 1886 (Qld)

APPLICANT: Mr Lerner

RESPONDENT: Ms Little

FILE NUMBER: BRC 1584 of 2014

DATE DELIVERED: 25 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Lucy Wood Family Law

COUNSEL FOR THE RESPONDENT: Mr McGregor

SOLICITOR FOR THE RESPONDENT: SJP Law

Orders

1. That paragraphs 5, 6, 7, 8 and 13 of the Orders made by Senior Registrar Spink on 17 September 2018, be discharged.

2. That pursuant to s 68L(2), the interests of the children, X born … 2008 and Y born … 2009, be independently represented by a lawyer and it is requested that Legal Aid Queensland give urgent consideration to making arrangements as soon as practicable to secure that independent representation of the children’s interests.

3. That forthwith upon appointment by Legal Aid Queensland, the Independent Children’s Lawyer shall file a Notice of Address for Service.

4. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and copy any and all material subpoenaed by the parties and released by the Court up to that date.

5. That within 48 hours of notification of such appointment each party shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

6. That until further order, the children, X born … 2008 and Y born … 2009, shall spend time with the mother for two hours on one day of each weekend supervised at B Contact Centre, C Town, on such day and at such time as can be arranged with that centre, or if that centre cannot accommodate such supervised time each weekend, then at least for two hours on one day of each second weekend on such day and at such times as can be arranged with that centre

7. That each of the mother and the father shall, if they have not done so already, make contact with the management or administration of that contact centre as soon as possible for intake interviews so that such supervised time can commence as soon as it is practicably able to be commenced by the centre.

8. That the Independent Children’s Lawyer, as soon as he or she is appointed, shall liaise with the legal representatives for each of the mother and the father and make arrangements for the parties and the children to attend upon a family report writer selected by the Independent Children's Lawyer, such that a family report can be made available to the Independent Children’s Lawyer for his or her assistance and ultimately the assistance of the parties and the Court as soon as practicably possible.

9. That the matter be designated Magellan.

10. That the Director-General of the Department of Child Safety, Youth and Women is requested to prepare and furnish to the Court within 35 days a report pursuant to the Magellan case model protocols (“the Magellan Report”) concerning the allegations contained in the Form 4 Notice of Abuse filed on 24 August 2018 and also the general circumstances affecting the children, X born … 2008 and Y born … 2009.

11. That the Registrar advise the Director-General forthwith of this request.

12. That the Director-General have liberty, upon application to the Registrar, to search and take copies of the documents on the Court file in relation to the said proceedings.

13. That the matter be adjourned for further mention, and the hearing of any further interim applications, before his Honour Justice Forrest at 10.00 am on Tuesday, 11 December 2018.

14. That the hearing of the father’s application for orders in respect of documents they seek from the District Court of Queensland and the Magistrates Court of Queensland in paragraph 9 of the Application in a Case filed 21 September 2018, be adjourned for hearing before the Senior Registrar on 1 November 2018.

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 Lerner & Little 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 BRISBANE

FILE NUMBER: BRC 1584 of 2014

Mr Lerner

Applicant

And

Little

Respondent

REASONS FOR JUDGMENT

1. Earlier today I heard and determined an application to review part of a decision of the Senior Registrar of this Registry of this Court that he made on 17 September 2018.

2. Such a review is heard as a hearing de novo, that is, a fresh hearing of the matter, on the evidence relied upon by the parties, including any fresh evidence they have adduced since the hearing before the Registrar.

3. After having read and considered the evidence relied upon by the parties and having heard oral submissions from very experienced family law barristers representing the parties, I made orders discharging some of the Orders of the Senior Registrar and replacing them with some others.

4. Principally, I discharged the Order for the two subject children to spend time with their mother each Saturday from 10:00 am until 4:00 pm each Saturday with changeover to take place at the father’s residence. I ordered instead that the children’s time with their mother be supervised until further order at a named Children’s Contact Centre in C Town for two hours each weekend if that can be accommodated, otherwise for two hours each alternate weekend.

5. I also made orders for the appointment by Legal Aid Queensland of an Independent Children’s Lawyer (“the ICL”) as urgently as possible, for the matter to be placed in the Court’s Magellan list and for the ICL, as soon as appointed, to make arrangements for a family report to be prepared as soon as that can be arranged.

6. These are my reasons.

Some Background

1. The father and the mother are the parents of a nine year old girl and an eight year old boy. Whilst the factual circumstances of their entire de facto relationship are currently in dispute, there is apparent agreement that they were together as a couple for several years covering the years the two children were born, with a separation and subsequent reconciliation, at least on one occasion, before a final separation that occurred in late 2014 or early 2015.

2. They entered into a Parenting Plan in late 2015. Pursuant to that plan, they shared the care of their two children, with the children moving between them on a week about basis.

3. Soon after the separation from the father, the mother entered into a new relationship with a man who lived alone in an apartment in the same block of apartments as the mother. Though she asserts that she and that man were in a relationship for just over three years, the mother asserts that they lived in their separate apartments in the same building all that time.

4. In or around October last year, the father entered into a new relationship with another woman.

5. My assessment of the parents’ co-parenting relationship is, on the limited evidence available to me at this point in time, that it has been apparently marred by a level of unresolved conflict and an apparent inability to communicate other than by text message. Nevertheless, until the father filed the application that brought the matter back to this Court in August of this year, the parties had not been back before the Courts since their Parenting Plan was brought into effect.

6. In July this year, the mother left a voice message on the father’s phone. She asked him to give her a call as she had something to tell him about the man she had been in a relationship with for the last three years. She told the father that this man had “got himself into some serious trouble” and that this was “due to [her]” and that she needed to explain it to the father. She told the father that this other man has “turned out to be a really horrible person”. She finished that message saying:

   – if you can please call me, or if not, if you don’t want to call me, that’s, if you don’t want to know, fine – just do me a favour and please don’t go against me, that’s all I’m asking. Thank you, bye.

7. The father did not call the mother after receiving that message.

8. On Sunday, 19 August 2018, he received a text message from the mother, which he asserts she had sent to him at 11:30 pm the night before.

9. It said:

   Just want you to know that [the former partner] has been arrested and is being charged with grooming of [the parties’ 9 year old daughter] and sexual offense against other girls of similar age. [Our daughter] has been interviewed by police and has been cleared along with [our son]. His address as you know is [gives his address] in case u would like to go and ask him any questions to make sure [our daughter] has been safe….

   His bail conditions require him to be at home each night by 8:30pm and not leave home before 6am. He has had 3 court mentions so far. The next one being at C Town district court on ….

   Happy to discuss further should you need to.

10. The father and his partner immediately attended the C Town Police Station and met with a police officer there. That police officer confirmed to the father that the information about the mother’s former partner being arrested was correct and told him that the parties’ two children had been interviewed and that he [the police officer] was satisfied that the children had “not been affected” by the man’s offending. The father asserts the police officer informed him that the charges were of a “very serious nature” and that the mother and the man were involved in “some pretty weird sexual stuff together for a number of years.” The father asserts the police officer told them that he could not tell them anything more as the matter is before the courts.

11. The father asserts that when he asked the police officer why he had not been contacted at all about the matter, his response was “I was not aware you were involved in the children’s lives at all ... do you know [the mother] is living [in C Town]” The father asserts he then told the police officer that he had “50% custody of the children for the past 3 years” and that the police officer seemed surprised at being told that.

12. The father then went home and did some internet research, finding a local newspaper article reporting on the charging of a local man with child sex offences. The article quoted a “witness” who the father considered was probably the mother and he became very concerned about their children’s welfare.

13. The father asserts his concerns are heightened as he had observed the children displaying some “new concerning behaviours” over time, namely “recurrent secondary bedwetting, nightmares, night terrors and sleep walking”. Their son had also developed “a vocal tic” coinciding with deterioration in his behaviour at school and home, he said. The mother’s evidence confirmed something like this had happened and, at the same time, the mother asserts the boy has been diagnosed with Attention Deficit Hyperactivity Disorder, which diagnosis she asserts the father does not accept.

14. The father then applied on 24 August 2018 for parenting orders in this Court whilst the children were in his care.

15. On 29 August 2018, the father applied to the Court on an ex parte basis (without notice to the mother) for parenting orders to ensure that he could retain the children in his care. Senior Registrar Spink made orders that day for the children to live with the father until further order and adjourned the matter for further hearing on 17 September 2018.

16. The mother was served and she filed a Response seeking a return to week about care of the children. She also filed an affidavit of her own and a number of short affidavits from police officers.

17. In her affidavit, the mother said her relationship with this other man ended finally on 12 February 2018. She then, curiously, goes on to assert that the man disclosed to her in March 2018 that he had “interfered with a young girl”. She affirmed that she:

    did not have any knowledge of [the man’s] offending early on in the relationship as indicated by [the father] in his affidavit.

18. The mother said that, upon that disclosure, she reported the man to the local police. She asserts that she was asked by police to act as an agent in a covert capacity to obtain information regarding this man’s sexual activities and she agreed. She asserts that she was first required to undergo “extensive Psychiatric assessments and interviews” before the police asked her to go undercover in a covert operation to assist with the man’s arrest. She said that during the time that she was acting as an agent, she was required to “play along” with the man’s “desires” and to extract information. She asserted that to her knowledge no child was harmed during her involvement acting as a police agent in this way.

19. She said that the man was arrested and that she has had no communication with him since then.

20. She said that the police applied for a family violence protection order on her behalf to protect her and the two children from this man. She exhibited a copy of the application to her affidavit. Remarkably, it contained a great deal more detail about the nature of her relationship, including, particularly, her sex life with this man. Its content was very concerning.

21. The mother asserts that the children were interviewed by police and “did not disclose any offending during the interview”. She said that she is aware that the police have notified the Department of Child Safety, Women an Youth Affairs and that the police “have not deemed the children at risk” and that they were “safe at all times.”

22. The mother asserts:

    At no stage were [the children] exposed to [the man] in any way during the investigation.

    [The children’s] last contact with [the man] was the 7^th February 2018 and have never been exposed to him since that date.

    The children were not aware I was acting for police and we maintained a normal life…

    [The children] did stay with [the man] while I was away for work for two nights at the beginning of February 2018. [The man’s] children … were staying at the house as well. At this stage I was in a relationship with [the man] and was not aware of his true nature.

23. In none of the three affidavits filed by the mother deposed to by police officers did any of the deponents confirm the mother’s assertion that she had acted undercover as a police operative at police request after undergoing extensive psychiatric testing. 

24. At the hearing on 17 September 2018, material was produced to the Court by the Queensland Police Service responding to a subpoena. The police appeared and there was argument in objection to the production of some of the documents. Argument about some of that was adjourned for hearing on 1 November.

25. The police did produce a lengthy statement that had been provided by the mother in May this year as part of the police investigation that lead to the charges being laid against the man she had reported to the police. The father’s lawyers were given leave to inspect that statement and to be provided with a copy of it. They were restrained though from providing a copy of that statement to the father or discussing the contents with him other than is necessary to obtain his instructions.

26. The Registrar made orders after a contested hearing for the children to spend time with the mother each Saturday. He did not order supervision.

27. He adjourned the matter for further hearing on 15 October and he ordered an s 11F memorandum to be prepared by a Family Consultant from the Court’s Child Dispute Services department.

28. The father then lodged his application for review along with an application for a stay of the Registrar’s Orders. He filed those on 21 September 2018. It was not brought to my attention, as the Case Management Judge, until yesterday 24 September. I was in Court all afternoon on Friday, 21 September, hearing other matters, and the father’s applications were filed after lunch that day.

29. The father did not allow the children to go with the mother for unsupervised contact with her on Saturday, 22 September.

30. On Monday, 24 September, when the matter was brought to my attention by Court staff, I immediately determined to hear the review application today, so as to avoid the need for hearing and determining the stay application and to avoid a further appearance by the parties if possible.

The Mother’s Statement to Police

1. At the hearing before me this morning, the father’s counsel tendered into evidence a copy of the mother’s statement to the police executed by her on 8 May this year under the Justices Act 1886 (Qld) (“Justices Act”). It is a fourteen page statement with 175 paragraphs. After it was tendered, I adjourned the hearing so that I could retire to chambers and read it. Its contents are very disturbing. The father asserts that he had been requesting that a copy of the statement be made available to his solicitors by the mother and her solicitors prior to the hearing and the requests went unanswered.

2. As counsel for the father pointed out, it contains much information provided by the mother about her three year relationship with this man who now faces criminal charges for grooming the parties’ daughter, other child sex offences, possession of a weapon and drug offences. Its contents are disturbing in the extreme. There is immediately apparent conflict and inconsistency between some of the content of that statement and the mother’s affidavit relied upon on these proceedings. Either some of those contents of the statement are not true, or some of the contents of her affidavit are not true.

3. Of serious concern, is the mother’s assertion that it was the man who ended the relationship with her in February, this year, and not her that ended it with him, particularly in the light of the information she provided about the disclosures this man had made to her at the time. However, of equally serious concern is much of the information the mother gives in the statement about other matters the father disclosed to her over the years of their relationship. I do not consider it necessary to set it all out in these reasons. Suffice to refer to the fact that the mother says in the statement that the man had shown her, probably at a time that was in or around 2017, videos of him having sex with two different girls in school uniform and told her that it was in Sydney. She describes the room that videos depicted them in, the type of sexual intercourse she saw him having with the two girls and she says that she could tell the girls were in pain. She says that the man filmed the sex on his phone. She said that she had sent him a message about these videos and that he had subsequently destroyed that computer at his place of work.

1. In her statement, the mother says that her relationship with him “recommenced from there”. She goes on to state that she left the parties’ daughter and son in this man’s sole care for a couple of days and nights in early February this year. The father gave some evidence of receiving a text message from the mother around early February that confirms that the children were in this man’s sole care. The father asserted through his counsel at the hearing that he had not been informed in advance of that occasion that the mother was going to be away and planning on leaving the children with this other man and that he did not consent to same.

2. The mother’s statement also makes it clear that although the mother said that she and this man had separated in February this year, she and the man certainly spent time together and carried on a sexual relationship in the months up until he was charged by police. If she is to be believed, she did this as part of an undercover police operation to obtain evidence against him. It is hard to contextualise all of this evidence, particularly when, in the same statement, the mother said she still loved this other man and that she and he had broken up several times over the years of their relationship, only for him to be able to persuade her to reconcile with him and to continue with their relationship.

3. The father also gives evidence, supported by evidence given by his current partner, that the children have been very careful to not talk about things that happen whilst in their mother’s care. The evidence, if true, is supportive of a finding that the mother has been very particular in counselling the children not to discuss or disclose things that happen whilst they are in her care. Of course, at this interim hearing, I can make no definite findings of fact on such matters.

The Principles by which these matters are to be determined and the basis for my decision today

1. These are proceedings in which parenting orders are sought, albeit by way of a review of a previous decision of a Registrar.

2. Section 60CA of the Family Law Act 1975 requires me to regard the best interests of the child (or children) as the paramount consideration. Section 60CC (1) requires the Court to consider the matters set out in subsections (2) and (3) in determining what is in the child’s best interests. Subsection (2) lists two primary considerations and requires the Court to give greater weight to the second of those which is “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The evidence, particularly the very clear circumstance of the mother having given conflicting and inconsistent information in the form of her affidavit to this Court in her August affidavit and her statement to police given under the Justices Act in May of this year, raises very serious concerns about the welfare of these children in the unsupervised care of the mother until further investigations are conducted in this matter by an ICL. The ICL will have the benefit of a family report prepared by a family report writer appointed by the ICL. The ICL will potentially have the benefit of a report prepared by a psychiatrist who will examine and report on the mother, at least, if not both parents. The full police file and departmental files should become available, including the s 93A records of interview with the two children.

4. There are a number of risks to the wellbeing of these children that I consider unacceptable in the immediate future if they were to spend unsupervised time with the mother.

5. I am not completely satisfied that the mother will not bring them into contact with this other man, despite her counsel’s submissions that his bail conditions prevent it and despite the fact that the Registrar made an order that she is restrained from bringing them into contact with him. The history of her relationship with the man and her inability to exercise appropriate judgment and resolve to end her relationship with him notwithstanding the things she knew about him cause me, at this juncture, not to be so satisfied. That derives most particularly from her own police statement.

6. I am very concerned about the state of the mother’s emotional and mental health, particularly in the light of her statement to police. In such circumstances, I consider that the risk the mother will talk to the children about the criminal matters involving her former partner and their impact on these proceedings is an unacceptable one at the moment, particularly given the possibility that the children, or one of them, could already have been a victim of abuse at the hand of the mother’s former partner, despite the police witnesses asserting that neither child made any disclosures in their s 93A records of interview. The existence of an order preventing the mother from talking to the children about these matters does not give me as much comfort as the presence of a supervisor would.

7. I am not persuaded that it is in the children’s best interests to be spending unsupervised time with the mother at this stage of the proceedings, in all the circumstances.

8. It is clearly a case requiring an ICL to be appointed to represent the children’s interests. It is a case that I consider should be in the Magellan List, at least for the moment, until further investigations are concluded. The next hearing date that was listed before the Senior Registrar has appropriately been vacated. The hearing of the objections of the Queensland Police Service to the production of some parts of their file should go ahead on 1 November 2018. A full family report is preferable to an 11F memo hastily done by a Family Consultant. That is best done now by an expert selected by the ICL.

9. Finally, I listed the matter for further mention of the hearing of any further interim applications that may be filed between now and then for a date in around three months from now, thinking that might be sufficient time for the family report to be obtained and some further investigations to be undertaken.

10. I also adjourned part of the father’s application in respect of the production of further documents that are in the possession of State Courts to the hearing listed before the Registrar on 1 November. That was done at the request of counsel for the father and it was not opposed by the mother.

11. The Orders have already been made earlier today.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 September 2018.

Associate:

Date:  25 September 2018