Maple & Dryden
[2022] FedCFamC1F 301
•9 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Maple & Dryden [2022] FedCFamC1F 301
File number(s): ROC 875 of 2018 Judgment of: CAREW J Date of judgment: 9 May 2022 Catchwords: FAMILY LAW – CHILDREN – CONSENT ORDER – UNACCEPTABLE RISK posed by mother’s partner – Mother unaware of extent of partner’s criminal history and involvement with Child Safety authorities – Protective measures to address risk
FAMILY LAW – CHILDREN – INJUNCTION – JURISDICTION – Section 68B(1)(a) - Where the mother is restrained by injunction from bringing the children (or permitting any other person to bring the children) into contact or communicate with her partner – Where no jurisdiction or power to restrain third party partner
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act2021 (Cth)
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)
Cases cited: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337;
B and Another v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 604;
DJL v Central Authority (2000) 201 CLR 226;
Maritime Union of Australia v Patricks Stevedores Operations Pty Ltd [1998] 4 VR 143;
Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor (2004) 219 CLR 365;
Re LSH; Ex parte RTF (1987) 164 CLR 91;
Vaughan & Bele (No. 2) [2012] FamCA 605;
White & Green (No. 2) (2009) 41 Fam LR 185.
Number of paragraphs: 86 Date of hearing: 11, 12 April 2022 Place: Brisbane Counsel for the Applicant: Mr S Hartwell Solicitor for the Applicant: Legal Aid Queensland Counsel for the Respondent: Mr W Seewald Solicitor for the Respondent: Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd Counsel for the Independent Children's Lawyer: Ms P Kirkman-Scroop Independent Children's Lawyer: NR Barbi Solicitor Pty Ltd ORDER
ROC 875 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MAPLE
Applicant
AND: MS DRYDEN
RespondentAND: INDEPENDENT CHILDRREN’S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
9 MAY 2022
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting Orders be discharged.
Parental responsibility
2.The mother and father have equal shared parental responsibility for the major long-term issues for X born 2015, Y born 2016 and Z born 2017 (“the children”) in respect to all major long-term issues as defined in the Family Law Act 1975 (Cth).
Live with
3.The children live with the mother.
Restraint
4.The mother is restrained pursuant to section 68B of the Family Law Act 1975 (Cth) from bringing the children into contact or communicating with Mr B or permitting any other person bringing the children into contact or communicating with Mr B, whatsoever.
Spending Time
5.The children spend time with their father at all times as agreed between the parents, but otherwise as follows:
(a)until the commencement of the third school term in 2022:
(i)in week 1, from 3.00pm or the conclusion of school on Wednesday until 9.00am or the commencement of school on Thursday;
(ii)in week 2, from 3.00pm or the conclusion of school Friday until 5.00pm Saturday;
(b)provided that the father has appropriate accommodation and can separate the male child from the female children, that from the commencement of the third school term in 2022, week 1 time continue and week 2 time extend so as to conclude at 9.00am or the commencement of school Monday or Tuesday in the event that the Monday is a public holiday and not a school holiday;
(c)at the commencement of term four in 2022:
(i)in week 1 – no time;
(ii)in week 2 – from 3.00pm Thursday or the conclusion of school to 9.00am or the commencement of school Tuesday;
(d)from the commencement of the relevant school year, 2023, the children spend time with each parent on an equal basis with the changeover between the father’s care and the mother’s care and the mother’s care and the father’s care to occur at the conclusion of school on Friday (or 3.00pm in the event that the day is a pupil free day) in each week and in the event that it is school holiday time, at 3.00pm on Friday of each week.
Communication
6.The parents have telephone communication with the children:
(a)between Friday and Monday (both days inclusive) with the parent not having care of the children telephoning them between 5.30pm and 6.00pm;
(b)the father will communicate with the children using the mobile telephone that the father purchased for the children and the mother will ensure it is charged and available to the children on the nights the father is due to telephone them;
(c)the mother will telephone the children by telephoning the father’s mobile and the father will ensure the telephone is charged and available to the children on the nights the mother is due to telephone them.
7.The mother and father make arrangements for the children to communicate with the other parent (including by telephone, skype, FaceTime or other Mobile Application) at all reasonable times as requested by the children.
School holidays
8.The children spend time with the mother and father for one half of all Queensland school holiday periods as follows:
(a)in even numbered years, with the father for the first half of the Queensland school holidays from the conclusion of the last day of the school term until 3.00pm on the middle Saturday of the school holiday period;
(b)in even numbered years, with the mother for the second half of the Queensland school holidays from 3.00pm on the middle Saturday of the school holidays until the commencement of school on the first day of the school term;
(c)in odd numbered years, with the mother for the first half of the Queensland school holidays from the conclusion of the last day of the school term until 3.00pm on the middle Saturday of the school holiday period;
(d)in odd numbered years, with the father for the second half of the Queensland school holidays from 3.00pm on the middle Saturday of the school holidays until the commencement of school on the first day of the school term.
Special Days
9.Notwithstanding any other Order herein, unless otherwise agreed between the parents, on special days the children will spend time with the mother and father as follows:
(a)on Father’s Day / Mother’s Days, the children spend time with the parent as follows:
(i)with the father from 4.00pm on the day before Father’s Day until 4.00pm on the day of Father’s Day;
(ii)with the mother from 4.00pm on the day before Mother’s Day until 4.00pm the day of Mother’s Day;
(b)on the children’s birthday, the children spend time with the parent who the children are not already then spending time with pursuant to this Order as follows:
(i)if the child’s birthday falls on a school day, from the conclusion of school until 6.30pm;
(ii)if the child’s birthday falls on a non-school day, from 1.00pm until the commencement of school the following day (or 9.00am if the following day is not a day that the child attends school).
(c)on the parent’s birthday, the children shall spend time with the parents on their respective birthdays from 2.00pm (or from after school on school days) on the eve before the birthday until the day following the birthday, before school or 9.00am;
(d)at Easter, the children shall spend time with the parents as follows:
(i)in odd numbered years, with the mother from 12.00pm Easter Saturday until 12.00pm Easter Sunday, and with the father from 12.00pm Easter Sunday until 12.00pm Easter Monday;
(ii)in even numbered years, with the father from 12.00pm Easter Saturday until 12.00pm Easter Sunday, and with the mother from 12.00pm Easter Sunday until 12.00pm Easter Monday.
(e)at Christmas, the children shall spend time with the parents as follows:
(i)in even numbered years, with the mother from 12.00pm Christmas Eve until l2.00pm Christmas Day, and with the father from 12.00pm Christmas Day until 12.00pm Boxing Day;
(ii)in odd numbered years, with the father from 12.00pm Christmas Eve until 12.00pm Christmas Day, and with the mother from 12.00pm Christmas Day until 12.00pm Boxing Day.
Changeover
10.Unless otherwise agreed between the parties in writing (SMS text message is sufficient) or specified herein, changeover will occur as follows:
(a)on school days:
(i)the parent will deliver the children to school at the conclusion of such time that the children are spending with them and the other parent will collect the children from school at the commencement of such time that the children are to be spending time with the other parent;
(ii)neither parent will be present at the school during changeover unless they are delivering or collecting the children in accordance with the Orders.
(b)on non-school days, changeover shall occur at the front entrance of the McDonalds Restaurant (located at C Street, Suburb D Queensland).
11.That the father provide his own school uniforms for the children within 60 days of the date of this Order.
Counselling/Courses
12.The father engage with a First Nations community service or support service to attend any programs available to enhance his understanding of the children’s First Nations heritage within six (6) months from the date of this Order.
13.For the purposes of the previous paragraph, the mother will advise the father within thirty (30) days of the date of this Order as to the identity of the relevant service.
14.The parents do all acts and things to ensure the children are connected with their First Nations heritage and attend significant events such as NAIDOC week and activities or such other activities
15.If they have not already been enrolled to commence, the mother enroll the children within fourteen (14) days of the date of this Order to attend Protective Behaviours’ Program with a provider of the mother’s selection, with the mother to keep the father informed as to the provider she selects.
16.The father if he has not already done so, within fourteen (14) days of the date of this Order do all acts and things necessary to register with a face-to-face provider for the purposes of undertaking the Triple P Parenting Course and the Parenting Orders Program and Men’s Behaviour Change or equivalent anger management program (“the Programs”).
17.Upon confirmation of attendance at the Programs being able to commence, the father advise the mother of the dates of his attendance at the Programs and upon obtaining a Certificate of Completion in relation to each of the Programs, the father provide to the mother a copy of the certificate of completion.
18.The mother, within fourteen (14) days if she has not already done so, engage with the E Service at Suburb D for the purposes of enrolling at and attending Parenting Programs offered by that service and for this purpose:
(a)upon registration of her enrolment to attend, the mother provide the father with a copy of that enrolment;
(b)thereafter, upon completion of the Program, the mother provide to the father a copy of the Certificate of Completion within seven (7) days of receiving same.
19.In the event that the mother’s partner, Mr B engages in counselling, pursuant to section 121 (9) of the Family Law Act 1975 (Cth), a copy of the Family Report of Ms F dated 30 September 2021 together with a copy of this Order and the Reasons for Judgment dated 9 May 2022 be provided by the mother to the counsellor Mr B attends.
20.Each parent shall:
(a)participate in counselling sessions and processes regarding challenges in blended families for adult and child parties;
(b)twenty-four (24) hours prior to and during the time that the children spend time with the parent, the parent shall not be under the influence of illicit substances and/or consume alcohol at any time the children are in their care;
(c)commits to adhering to the tenets of the Triple P Parenting Course;
(d)not discuss this Order or any court proceeding concerning the children in the presence or hearing range of the children.
Children’s enrolment name at school
21.The children be registered by the name on their birth certificate for the purposes of education and medical treatment and in the event that they are not registered by such name, within seven (7) days of the date of this Order, the parents do all acts and things necessary to update the record to reflect their birth name.
Communication Application
22.The parents do all acts and things necessary, within seven (7) days of the date of this Order to register an email address and advise the other parent of same and in the event that both parents are able to use a communication application, within seven (7) days of the date of this Order, the parents each do all acts and things necessary to register with either G Service or H Service for the purposes of communication about the children and any decisions that are required to be made concerning the children’s welfare.
23.For the purposes of the preceding Order, and for the purposes of clarity, the parents shall advise the other parent of any:
(a)time and communication arrangements that need to be varied or changed each time such an issue arises;
(b)non-emergency medical, medication or dental needs of the children;
(c)cost and requested contribution to any treatment required by the child/ren as well as any and all school needs of the child/ren and the account to be contributed by each party to such treatments and needs;
(d)extra-curricular activities it is proposed:
(i)the child/ren attend; and,
(ii)the cost of attendance; and,
(iii)details of such attendance; and,
(iv)the contribution requested; and,
(v)each parent’s agreement or otherwise to the children attending, cost of attending, and contribution to be made and in the event that the parents cannot agree the children will not attend the extra-curricular activity;
(e)travel intended to be undertaken by the parent with the child/ren; or,
(f)such other events as affect the welfare of the child/ren.
Authorities
24.This Order shall be an authority directed to the children’s school or school’s teachers, to provide each parent with a copy of school reports, school letters, school newsletters, details of school photographs and to discuss with either parent all matters pertaining to the children’s education and well-being, as they request from time to time.
25.This Order shall be an authority directed to the children’s doctor or doctors and other medical, counselling, psychological, allied health and dental practitioners to provide each parent with all information including documents relating to the health of the children and to discuss with either parent all matters pertaining to the children’s health and well-being as they may request from time to time.
26.Each parent be responsible for all costs of and incidental to obtaining a copy of any information or documentation they may request from time to time pursuant to Orders 24 and 25 herein and each parent provide the school and doctor with their current contact details and address.
Behaviour
27.During the times the child/ren is/are with either parent that parent shall respect the privacy of the other parent and the child/ren and not question the child/ren about the personal life of the other parent or the household in which the child/ren spend time.
28.In the event that they are not already doing so, each parent is to encourage and foster the child/ren’s relationship with the other parent.
29.Without admission, neither parent abuse, insult, criticise or denigrate the other parent, their respective partners, their family or their friends, in the presence of, or hearing of, the child/ren.
Information Exchange
30.Each parent shall keep the other informed of the details of the child/ren’s treating doctors and other medical professionals and within seven (7) days of the date of this Order, each parent will provide to the other, in writing and via email or such other communication facility as is available to the parents, a full list of treating doctors and other medical practitioners which the children are attending and for the purposes of same, each parent is authorised to provide a copy of this Order to those treaters.
31.Each parent shall advise the other, as soon as is reasonably practicable, of any serious illness, hospitalization, accident or medical emergency that relates to the children and the details of any treating doctor and medical facility the children is taken to.
32.The mother and the father keep each other informed as to any changes in their contact telephone numbers and other means of communication and advise the other in writing within forty-eight (48) hours of any such change
Miscellaneous
33.That within seven (7) days of the date of this Order, the mother take all steps necessary and do all acts necessary to list the father as the second emergency contact/parent on all records for the children's care providers (including but not limited to medical and/or school records) and shall ensure that Mr B is immediately removed from such records.
34.The independent children’s lawyer be discharged twelve months from the date of this Order.
35.A Registrar of the Federal Circuit and Family Court of Australia (Division 1) Brisbane Registry, forthwith provide to the Department of Children, Youth Justice & Multicultural Affairs a copy of this Order, the Reasons for Judgment dated 9 May 2022 together with a copy of the Family Report prepared by Ms F dated 30 September 2021, with a request that urgent attention be given to assessing the safety of the children V born 2018 and W born 2021.
IT IS NOTED:
A.The mother intends to do all acts and things necessary to support and encourage the attendance by her partner Mr B to attend with and engage in counselling with a psychologist for the purposes of understanding the effect of his previous offending and the impact of same and as to the impact of substance abuse upon judgment together with all steps necessary to address any further risk of harm Mr B may present to the children in these proceedings.
B.Each parent shall:
a. engage with a helping professional to consider and address their global functioning, including their family of origin, childhood, pseudo-adult and adult relationships, Domestic and Family Violence, involvement with the Department of Children, Youth Justice and Multicultural Affairs, parenting and/or loss and grief experiences as well as the efficacy of their relationship and co-parenting with the other parent;
b. adhere to all treatment proposed by their practitioner;
c. keep the other parent informed in writing of any change in their partner details, employment, residents in their respective home, separation and/or re-partnering.
C.It is further noted that while the parties have agreed to an Order in paragraph 20b not be under the influence of illicit substances and/or consume alcohol at any time the children are in their care or within twenty-four (24) hours prior to and during the time that the children spend time with the parent, such an Order should not be interpreted as this Court condoning the commission of any criminal offence at other times.
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 Maple & Dryden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
At the commencement of what was to be a four day trial, Mr Maple (“the father”) and Ms Dryden (“the mother”) indicated to the Court that they had resolved their parenting dispute and were afforded time to finalise the terms of their agreement. Later on the first day, the parties submitted a Minute of Order signed by them and the independent children’s lawyer (“ICL”) and requested the Order be made by consent.
Notwithstanding the parties’ agreement: in deciding whether to make a parenting order, this Court must regard the best interests of the children as the paramount consideration. Accordingly, as submissions were made, it became apparent that the Court required further evidence to address the issue of risk to the children, principally from a person whom the mother describes as her “partner”, Mr B (born 1970).
The three children who are the subject of these proceedings are X, born 2015, Y, born 2016, and Z, born 2017 (“the children”). The mother has two further children with Mr B whom she contends she met online in late 2017 (although I note in her affidavit sworn 21 March 2022 she states that she has been in a relationship with him for nearly five years). The mother contends they lived together from about mid-2018. The mother says Mr B moved out in mid-2020 after she provided an undertaking to the court not to leave the children alone with Mr B, however, that undertaking was not provided until late 2020. In any event, they remain in a relationship and he spends time at her home each week or fortnight. The two children from their union are V, born 2018 and W, born 2021.
While Mr B filed an affidavit in the proceedings in support of the mother, neither she nor Mr B disclosed very much at all about his criminal history. The mother was clearly expecting Mr B to be at Court with her but he failed to attend on either of the two days the matter was before me and was not able to be contacted by the mother’s lawyers.
From the material before me, discussed in detail later in these Reasons, I conclude that Mr B presents an unacceptable risk of harm to all of the children in the mother’s household, not just the three children of the father and mother in this case. On the second day of the hearing and after reading the documents contained in a bundle of documents collated by the ICL and tendered by consent (Exhibit 5), the mother was granted leave, without objection, to read and file a further affidavit.
Exhibit 5 contains records from police in New South Wales and Queensland, child safety authorities in Queensland and New South Wales, hospitals in Queensland and the Department of Education (Qld). It is from those records that I have been able to identify the relevant chronology involving Mr B.
At the time of the hearing before me, there was a Case Stated pending in the Full Court to determine whether or not this Court retained jurisdiction to determine proceedings that were pending in this Court as at 1 September 2021 as a consequence of amending legislation.[1] Accordingly, the finalisation of these proceedings were adjourned pending the Full Court’s determination. On 21 April 2022, the Full Court answered the Case Stated indicating that this Court does have jurisdiction in matters pending in it as at 1 September 2021 and the Reasons for that decision were delivered on 6 May 2022.[2]
[1] The jurisdiction of this Court changed from 1 September 2021, such that the original jurisdiction is now largely dependent upon transfers from a lower court (see s 25 Federal Circuit and Family Court of Australia Act2021 (Cth)). The amending legislation applies to proceedings commenced before, on or after 1 September 2021.
[2] Nevins & Urwin [2022] FedCFamC1A 57.
Before considering the Minute of Order agreed to by the parties and the ICL and whether it is in the best interests of the children, it may be helpful to set out some background to the matter and importantly, some detail about Mr B’s history. It is my intention to refer these Reasons to the Department of Children, Youth Justice and Multicultural Affairs (“Child Safety”) as a result of my grave concern about Mr B having any contact with any of the children.
ISSUES FOR TRIAL
On 22 November 2021, when I set this matter down for trial the following issues were identified as requiring determination:
(1)Is Mr B an unacceptable risk of harm to the children by reason of his past conviction of child sex abuse charges, family violence, failure to comply with court orders and/or mental health issues?
(2)Does the father pose an unacceptable risk of harm to the children by reason of the allegations of family violence?
(3)Is the parenting capacity of the father compromised by his alleged attitudes to discipline of the children and/or attitude to the mother?
(4)Can the father appropriately provide for the children and in particular provide appropriate housing?
(5)Can the mother protect the children from exposure to family violence?
(6)Has either parent involved the children in the dispute and what is their respective capacity to protect the children from the conflict in the future?
Although the parties have resolved their dispute, it remains for me to be satisfied that the Order proposed by them is in the best interests of the children in the particular circumstances of this case.
BACKGROUND
The father and mother were in a relationship from in or around late 2011 until 28 February 2017 although there were periods of separation. They were not married.
The father is 66 years of age. He is unemployed and in receipt of the Commonwealth Government Job Seeker Benefit of $606 per fortnight. The father will shortly become eligible for an Aged Pension when he will receive $987 per fortnight. The father has historically worked in the agricultural sector. The father moved to Brisbane sometime in 2019 or 2020. He lives alone in public housing but hopes to be allocated a larger property. Given the nature of his previous work there have been periods when the father did not have contact with the children.
The mother is 40 years of age and is of First Nations heritage. She is not employed and provides fulltime care to her five children. She receives Commonwealth Government benefits of about $2,020 per fortnight. Despite Mr B working six days a week in the transport sector he does not financially support the mother and his children.
As already noted, the mother has re-partnered with Mr B and they have two children together. The mother and Mr B rent a property in Brisbane, although it is alleged by the mother that Mr B spends little time at the property due to the mother’s undertaking to the Federal Circuit Court (as that court was then known) on 7 December 2020 that she would not leave the children in Mr B’s care without another adult being present.
I note that Child Safety records raise the possibility that the mother had a further child to Mr B. The relevant record is set out below:
It is noted that there is an unborn profile attached to [the mother] with the due date of […] 2019. It is not known if this pregnancy resulted in a live birth. An unborn profile was not created for this event given the existence of the current profile and the history on ICMS indicating that all the information had previously. It is unclear if the current information refers to this unborn profile or another pregnancy.
The relationship between the father and the mother was defined by family violence, predominantly in the form of verbal abuse although the parties were at times involved in physical altercations. Both the father and the mother would frequently argue, sometimes in front of the children. During arguments the parties used derogatory language, with the father admitting that on at least one occasion he directed racial slurs at the mother. The father has expressed regret for such abuse.
After their separation, a Temporary Protection Order was made in early 2018 followed by a final Protection Order in mid-2018, which expires in mid-2023. The mother is named as the aggrieved, the father as respondent and their three children are named as protected persons. The father contends that he was unaware of the protection orders at the time and did not appear when the final order was made. There is no suggestion that the father has breached the Protection Order. Thankfully, the parties now appear to have a reasonably co-operative parenting relationship and neither of them suggest that the children are at risk of future harm from the other, with the exception of the father’s understandable concerns about the mother’s relationship with Mr B.
REASONS FOR FINDING THAT MR B PRESENTS AN UNACCEPTABLE RISK OF HARM TO CHILDREN
From the information contained in Exhibit 5, it is apparent that Mr B has been convicted of a serious criminal offence in 2002. The child came to the attention of authorities when she was admitted to J Hospital, New South Wales, in 2001. She had suffered a miscarriage. Mr B was 30 years of age at the time. The child disclosed to ambulance personnel that she had been sexually assaulted approximately five months beforehand and she did not know she was pregnant. The foetus was approximately 20 weeks gestation. Mr B was charged with a number of offences relating to sexual assault.
All bar two counts of sexual assault were withdrawn by prosecuting authorities and Mr B pleaded guilty to those two remaining charges. On the first count he was sentenced to 12 months imprisonment commencing in mid-2002 and concluding in mid-2003. On the second count he was sentenced to two years and six months imprisonment commencing mid-2002 with a 12 month non parole period. His appeal against sentence was dismissed summarily in mid-2003. It is not entirely clear when Mr B was released from prison but his release was subject to supervision, obeying all reasonable directions and undertaking examination, assessment and therapy treatment in relation to drug/alcohol, sexual abuse, gambling and suicidal tendencies. There is no evidence that he has undertaken any examination, assessment and treatment therapy in relation to anything.
Mr B became a “reportable offender” initially for a 10 year period commencing early 2003. It is not clear why the reporting requirement was made under Queensland legislation when Mr B’s offending occurred in NSW. Perhaps it was because it appears he moved to Queensland upon his release from prison. In any event, his reporting requirement did not end until 2018. It appears the period of reporting was extended by five years due to Mr B’s repeated breaches of the reporting requirements. Given the number of breaches it is perhaps surprising that his parole was not cancelled.
In what may be a separate incident to the one that led to Mr B’s conviction: in mid-2001 a child attended the Suburb K Police Station in the company of her father. The child’s father informed police that Mr B had breached an Apprehended Violence Order (“AVO”) by contacting his daughter contrary to the conditions of the AVO. The child told police she was involved in a relationship with Mr B. The child said that the day before Mr B had collected her from a friend’s home at her request and she spent the night with him in his vehicle. Mr B attended the Police Station the following week but declined to be interviewed. He was charged. It is unclear what charges were laid but it seems likely that it related to a breach of an AVO. The records before me do not disclose the name/s of the child/ren but the offences for which he was charged and convicted in 2002 arose as a result of the child suffering a miscarriage in 2001. It seems unlikely that if the same child were involved in this incident that the police records would not have made some mention of that.
In the police records relating to Mr B, there is also a reference to a person of interest (which I am led to believe was Mr B) who was stopped by police in mid-2001 as he was a suspect for assault involving youth and had been spoken to earlier that evening for having a number of young girls on board his vehicle. Later that evening he was found with three males in his car. Mr B denied he was supplying the youths with alcohol despite a bottle of whiskey having been found in his vehicle. It does not appear that any charges were laid against Mr B on this occasion.
An investigation by the Child Safety (NSW) concluded in late 2001 that a notification in relation to a child “L” being abused by Mr B was “substantiated”. Child Safety (NSW) records dated late 2001 indicate the receipt by Child Safety (NSW) of a notification that Mr B was making threats to kill himself and showing unwanted interest in “L” and encouraging secrecy about his attention to her.
Mr B has a number of following criminal convictions in Queensland commencing from mid‑2007 to mid-2016, including for assault, possession of a knife in a public place or a school and failure to comply with reporting.
Mr B’s 2007 convictions appear to relate to offences involving a former partner. In mid-2007 a two year protection order was made against Mr B for the protection of Ms M. The circumstances leading to the making of the protection order are contained in police records and involved Mr B threatening Ms M’s “associates” because Ms M said she wanted to travel to Melbourne to visit her sister. Mr B then proceeded to assault another associate and upon returning to their mutual home, Mr B held a knife to Ms M’s throat and threatened to stab her while calling her a “slut”. Mr B then pushed Ms M and punched her on her right shoulder.
Exhibit 5 also reveals a “substantiated” finding of abuse of a child, “O” in mid-2007 which appears to relate to Mr B. It is not clear on the material before me, whose child “O” was but she may have been a daughter of Ms N.
At some point Mr B was in a relationship with Ms N. It is difficult to be precise about the duration of that relationship. Ms N and her children came to the attention of the Child Safety in or about 2007 after an investigation and assessment resulting in a referral for active intervention in relation to Ms N. Ms N at that time had five children living with her as follows:
(1)O
(2)P
(3)Q
(4)R
(5)S
In late 2008 a notification was received by Child Safety which involved the following concerns:
(a)The child, P, was messaging Ms N’s new boyfriend (who was Mr B but he is referred to only by his first name in the records because at the time the notifier did not know his surname);
(b)Mr B was sending frequent messages to P and up to 40 text messages to the child, Q;
(c)Ms O did not see that there is anything to be concerned about;
(d)The mother did not believe previous allegations that Mr B abused the child, Q, when travelling with her in his vehicle;
(e)The mother believed the child, P, was lying about the allegations and that she was behind all of the mother’s recent trouble with Child Safety.
In late 2008 the child, P, was interviewed by Child Safety and provided the following information:
(a)She was upset because of what Mr B has done to Q;
(b)He had assaulted Q when she went on a road trip with him in his vehicle during the last school holidays;
(c)Both she and Q were on the road trip to City T with Mr B;
(d)Q slept with Mr B in part of the vehicle and had told P that she had had sex with Mr B;
(e)It has occurred previously and her mother (Ms O) did not believe that it had happened;
(f)She did not want to tell her mother this time because she will not believe her because she thinks P is jealous of her mother’s relationship with Mr B.
In an interview with Q on the same day, she said the following:
(a)She confirmed that she and P had gone on a road trip with Mr B in his truck;
(b)She also went alone on a one day trip with Mr B;
(c)She denied telling P that she had had sex with Mr B;
(d)She denied that Mr B had touched her inappropriately or had sex with her;
(e)Mr B is a “cool” person;
(f)There were rumours at school that she was pregnant;
(g)She denied that she was pregnant;
(h)She thinks she heard her mother say that she (i.e. her mother) would choose Mr B over her children.
During interviews with S and R they confirmed that Q had told some of her friends that she was pregnant and that their mother had grounded Q.
Although the initial assessment outcome by Child Safety was “unsubstantiated”, at that time neither the police nor Child Safety were able to identify the person of interest as Mr B. Ms O told authorities she did not know his surname.
Despite the “unsubstantiated” outcome, the assessment included the following:
It is possible that "[Mr B]" was engaging in grooming behaviours such as building rapport with the subject children, gaining their trust and arranging to spend time alone with them as evidenced by him taking the two teenage female subject children on a road trip with him and the subject children disclosing that they really like "[Mr B]" despite them only knowing him for six weeks.
…
[Ms O] is not assessed as a parent who can provide the care and protective needs of the subject children. She is not able to identify the risk involved with allowing the subject children to spend time alone with an adult male she has only known for a short period of time and her actions illustrate that she may be putting her need for a relationship before the protective needs of the subject children. Furthermore, [Ms O] stated that subject child [P] was partly to blame for "[Mr B]" sending text messages to her because she could have turned her phone off.
The assessment outcome also placed weight on the following factors:
(a)The subject children had not made any disclosures;
(b)The subject children were able to identify adults that they could disclose to if they felt unsafe;
(c)Three of the children were of an age where they could self-protect;
(d)Ms O “made a few protective remarks such as she would not leave the subject children alone with “Mr B” and that he would not be residing with them in the family home when he comes to visit”;
(e)There was no clear evidence that the children have been harmed or are likely to be harmed.
At some point police were able to identify that Ms O’s boyfriend known only as “Mr B” was in fact Mr B and his criminal history then became apparent.
Child Safety subsequently concluded that Ms O’s children were in need of protection from Mr B and “substantiated” a risk of physical harm by abuse from him.
In late 2008, Ms O denied knowing about Mr B’s criminal past. Ms O was very antagonistic to child safety officers. Ms O said she did not believe that Mr B had criminal convictions. She said she had asked Mr B about the allegations involving Q and he told her it was all “bullshit”. Ms O said she would be continuing to see Mr B and if child safety officers attended her property she would take legal action.
A few days later, Ms O was served with applications for Child Protection Orders seeking custody of her children. The application for custody did not proceed but a protective supervision order was obtained to ensure that Mr B did not have contact with the children. Ms O said she was shocked when she read the affidavit setting out the information about Mr B. Despite this, Ms O wanted to know if she could still see Mr B without her children. It seems she did so.
In early 2010, Child Safety were alerted to concerns about children of another former partner of Mr B. At that time, Ms U had two children who were living in Victoria with their father and she was pregnant to Mr B. Ms U was unaware that Mr B was a convicted of serious offences and a reportable offender. Their child was later born and is called BB. Ms U assured Child Safety that she would end the relationship with Mr B. It seems she did so.
In mid-2010, a new notification was made in relation to Mr B’s ongoing contact with the child, Q (then aged fourteen). The information received indicated that Q had travelled to AA Town and spent three weeks with Mr B and had told friends at school that she was in an ongoing relationship with him. When Child Safety interviewed the child, she denied having had any contact with Mr B for about a year. She was noted to be “very defensive” during the interview. When Ms O was interviewed, she denied any contact with Mr B but was noted to be “very edgy” when answering questions. She immediately accused the older child, P, of making the accusations (as she did in 2008). P was no longer living with Ms O and had moved to live with her paternal grandparents. It does not appear that the investigation involved any questioning of Mr B despite a protective supervision order having been obtained in late 2008.
In mid-2012, police contacted Mr B at his work, as a result of his threat to commit suicide made during a conversation with an employee of the Child Support Agency. When police arrived, Mr B denied that he intended to harm himself but he did express dissatisfaction with his child support assessment.
On 6 February 2015, a person (her name is redacted in Exhibit 5) attended upon police in the company of her “Intensive Family Case Worker” to ask police for assistance to apply for an apprehended violence order preventing her ex-partner, Mr B, from contacting her. This person told police that she had been in an on-again off-again relationship with Mr B for about three years but had not lived with him for about two years. She said that she had been the victim of a number of domestic violence incidents where Mr B had been the perpetrator and that she needed police assistance to leave him as she was not strong enough to do so on her own. She said that she and Mr B have twin boys together who at that time would have been about three years of age and a female child who at that time was nine months of age. The nine month old baby was the only child living with this person. The twin boys were removed from her care in 2013 or 2014 in the context of safety issues relating to her partner, Mr B. In heavily redacted records from Communities and Justice NSW there is a reference on a date that is unclear noting that “a thorough assessment is needed in consultation with Victorian authorities”. There is no information in Exhibit 5 from any Victorian child protection authorities or police. This is a matter that I respectfully suggest should be further investigated by Child Safety.
In mid-2016, Mr B was charged, at his then girlfriend’s house, with ‘failure to report’ offences. This girlfriend told police she was unaware of his criminal history and sought information from police. The Queensland Ambulance Service were called after Mr B threatened to hang himself. When presenting at hospital, Mr B told staff that as a result of the charges he would lose his relationship and his job. He again threatened to hang himself. The hospital records also note that Mr B said he had been incarcerated in 1998 after being charged with both drug and child protection charges and that he spent three years in gaol before being released on parole. Mr B is reported to have said that his parole had twice been extended (as a result of breaches) but was unable to say why. Mr B said he had an adult son who lived in CC Town, Queensland. He is also reported to have said that in the 1990’s he took drugs and required rehabilitation.
In mid-2019, Child Safety received a notification in relation to the children (the subject of the current proceedings). At that time the mother in these proceedings was pregnant to Mr B. As the notifier did not allege the children were at risk of harm no investigation was undertaken. I find such a failure to be rather extraordinary given Mr B’s history.
In mid-2020, when police attended the mother’s home as a result of a notification about Mr B living with the mother, the police records report the mother informing police that she knew that Mr B was convicted of serious criminal offences but did not believe her children were at risk from him as “this has been discussed in depth between the parties”.
Contrary to that evidence, the mother in her recent affidavit contends that she knew very little about Mr B’s criminal history and that she did not enquire of him at all initially, because she did not want to “pry”. The mother contends that in early 2019, after she was served with the father’s Initiating Application, Mr B disclosed to her for the first time that his criminal conviction related to abuse and that he had been sent to prison for this. In an extraordinary demonstration of wilful ignorance, the mother says she did not press Mr B for details of his offending saying only that “[h]e found it difficult to tell me the details”, so she spoke to his parents who told her that the offending occurred in 1999, the charges related to abuse, that he was in custody for 12 months and that he was a registered offender. The mother made no further enquiries.
As noted above, Mr B informed hospital staff in mid-2016 that his offences occurred in 1998 and included drug offences and I now note that his parents informed the mother the offences occurred in 1999. The offences for which Mr B was convicted in 2002 occurred in 2001 or at the latest at the end of 2000. Exhibit 5 contains information from only two States. It may well be that Mr B has convictions in other States as I consider it unlikely that he and his parents would have mistaken the year of his offending, but it is possible.
The mother was content to be told by Mr B that he was “remorseful for his offending and that he did not have issues with reporting”. As earlier noted, Mr B most certainly did have “issues with reporting”. He was repeatedly convicted for failing to comply with his reporting requirements. Mr B also sought to excuse his behaviour by telling the mother that he had a drug addiction at the time of the offences.
The mother contends that she had no idea that Mr B had further criminal convictions or that he had been investigated by Child Safety in relation to repeated notifications of abuse and grooming.
The mother further contends that she “trusted him” and accepted his assurances that he would not reoffend. The mother says that she “resolved that should [she] begin to suspect that [she] was mistaken in this regard, that [she] would leave the relationship”. There was no suggestion during submissions made on her behalf that she would end her relationship with Mr B. I find that most concerning.
In a further demonstration of her preparedness to remain wilfully ignorant, the mother took no steps to inspect the material produced to this Court pursuant to subpoena (despite being ordered to do so in the trial directions made by me on 22 November 2021), until after the first day of trial (when I directed that she read the tender bundle prepared by the ICL). I simply find it incomprehensible that the mother did not do so.
The mother further contends that she has only just become aware that, contrary to the information provided to her by Mr B, he not only has an adult child, DD (which he did tell her about), but also multiple other children to multiple other partners. As best I can determine Mr B has seven children to four different mothers including the two he now has with the mother in the current proceedings. Mr B has an adult child called DD, a child with Ms U called BB and twin boys and a girl with another woman.
Given Mr B’s history, I find it absolutely extraordinary that Child Safety concluded in mid-2020 that there were “no immediate harm indicators present for the children” (the subject of these proceedings) whom they assessed as safe. The children were at that time living with someone convicted of serious offences who had repeatedly come to the attention of Child Safety in both Queensland and New South Wales (and possibly elsewhere) and substantiated findings of abuse had been made against him in relation to children other than the one that resulted in criminal convictions. Mr B also has a history of violence including with a weapon.
Child Safety interviewed the mother and Mr B on 12 June 2020 and simply accepted the information provided to them as follows:
They were both open and honest with their responses regarding … [Mr B’s charges] which he was found guilty of in 2000. It was found that [Mr B] had been honest with [the mother] about this since the beginning of their relationship and [the mother] was fully aware of the charges and the context of the charges …
[Mr B] is no longer a reportable offender as this expired approximately 2.5 years ago. [Mr B] and [the mother] made the decision to not move in together or have children together until he had finished aspect (sic) of his sentence. Since this time, they have relocated to the Brisbane area and had [V] together.
[The mother] currently sees a counsellor who is fully aware of [Mr B’s] offending history and is a support to [the mother]. [The mother] has also been upfront with the day care centre and the school which the children attend regarding [Mr B’s] history. …
Either the mother was untruthful to Child Safety or she has been untruthful in her most recent affidavit about the extent of her knowledge about Mr B.
In the interview with Mr B he told child safety officers the following:
[Mr B] advised that in 1999, he was 28/29 years old, and working as a [transport worker]. He was working long hours and had money which he didn't know what to spend it on. He had the wrong type of friends and they introduced him to ICE. His offences are relating to him having sex with a teenage girl […] She had advised him that she was 18 and due to using drugs, he made the wrong decision. [Mr B] advised that he was found guilty on only 1 charge and was unsure why CSO's records stated he was found guilty of 2 charges;
[Mr B] advised that since this time in his life, he went to rehab on [City EE] which was supported by his parents to stop his drug use. The program was for 11 days but he wanted to stay longer to ensure that he was able to go without drugs. He remained there for 17 days; and
[Mr B] advised that he has not used drugs since that time and does not [work in the same role].
As demonstrated in the history set out in these Reasons, the information provided by Mr B to child safety officers was inaccurate in a number of respects. He was thirty when his charged with numerous offences against a child. As already noted, if Mr B was convicted of offences against a teenage child in conjunction with drug offences it is likely that they are different offences to the ones recorded in 2002.
In mid-2020, child safety officers interviewed the child, X, at her home. All children were sighted. Mr B was not present. X told the child safety officer that “daddy [Mr B] … gives good cuddles, he makes her laugh and they play a pinching game where she always wines and never gets caught by him … there were (sic) not anything bad about mum, daddy [Mr B] or daddy [Mr Maple]”.
Child Safety’s conclusion as to risk or rather the absence thereof appears to have been particularly influenced by the following factors:
(a)The belief that the mother and Mr B had been open and honest with Child Safety;
(b)Mr B had been open and honest with the mother about his criminal history and offending history;
(c)Significant adults e.g. school teachers and Mr B’s parents, involved with the children were aware of Mr B’s criminal history;
(d)The school is a mandatory reporter of child abuse;
(e)Mr B was able to identify the risk factors relating to his previous offending behaviour e.g. use of illicit substances and associating with the “wrong crowd” (in my view these are more likely to be examples of him minimising his offending behaviour);
(f)The mother and Mr B were welcoming of advice provided by Child Safety;
(g)The mother is accessing external support from FF Service
I can only observe that Child Safety appears to have been hoodwinked. Child Safety’s conclusion that the children were safe and not at risk from Mr B is more than disturbing.
In late 2020 the child, X, was seen at the GG Hospital with a history of “assault at school by a senior female student – allegedly “hurt her in between legs” with her fingers and later noted blood on her underpants.” On examination two linear superficial abrasions were noted on the child’s right thigh. The hospital records refer to the child being reluctant with history. The hospital records note that the mother and four children live “intermittently [with] step-father”. The mother provided a history of having received a call from the child’s school about a bullying incident involving an older child grabbing X by the shoulder. The mother said she spoke to the child on the telephone and she was happy to return to class. Apparently the child then told teachers that she had blood in her underwear. The mother was again contacted by the school and she collected the child. The mother reported that she questioned the child – “Did anyone touch your private?” and the child responded – “I got hurt down there”. The mother informed hospital staff that she then returned to the school principal’s office and informed them of what the child had told her. The child was then asked some questions by the principal but she did not disclose anything that could account for blood in her underwear. The child’s description of what the older child (apparently an eight year old) did to her, was that she had picked her up under the arms. Contrary to the information that appears to have been provided to the principal, the mother reported to hospital staff that the child rubbed her genital region back and forth to demonstrate what had occurred. The hospital records note - “X has continued to have PV bleeding” and “X also experiencing dysuria”. A physical examination of the child revealed “evidence of blunt penetrative trauma to genital area on examination, which could be caused by alleged digital penetration.”
There is nothing further in the hospital records or elsewhere in Exhibit 5 that expand upon the allegation of digital penetration other than a reference to information received from a notifier claiming that X had been “punched down below and had a finger inserted. X was bruised and torn a bit by the … girl”, and a reference to the mother allegedly telling the school that X told her that “the girl moved my dress and put her finger in my private parts”.
It seems that the school reported an incident involving X and the other child to the police who concluded that as the likely “offender” was an eight year old child no further action would be taken. No forensic investigation was undertaken by police. It is unclear if the police and Child Safety realised that a convicted offender was living with the mother and children at that time (although I note the mother says he moved out in late 2020, if the mother is to be believed) but that he continued to visit.
In my view, the conclusion that the child’s genitals had been injured by another child was a hasty decision which ignored a very real risk that the child may have been abused by Mr B. According to police records, when the school informed the mother that X had complained of soreness between her legs the mother seemed to know about this as she is reported to have said that X had had some difficulty wiping there and offered that as a reason for her being sore.
Despite Mr B being convicted of serious offences, the mother listed him on the children’s schools as an emergency contact. It does not seem likely, in those circumstances, that the school had been informed about Mr B’s child sex abuse history. During submissions made on her behalf, the mother indicated to the Court that she would remove Mr B’s name and consented to an order to that effect.
On the information currently before me, I conclude that Mr B presents an unacceptable risk of sexual harm to the children. In recognition of this risk, the mother agrees to an injunction restraining her from bringing the children into contact with Mr B.
JURISDICTION OR POWER TO GRANT AN INJUNCTION AGAINST MR B
As part of the agreed Minute of Order an additional injunction is sought:
5.That [Mr B] born […] 1970, is restrained and an injunction issue pursuant to section 68B of the Family Law Act from contacting the children by any means whatsoever and and/or coming into contact with the children for any purpose whatsoever.
The parties, including the ICL, submit that the jurisdiction or power to issue the injunction against Mr B is to be found in s 68B(1) of the Family Law Act 1975 (Cth) (“the Act”) which provides as follows:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
It is difficult to accept, as submitted on behalf of the parties and the ICL, that s 68B of the Act confers an unlimited power to grant permanent injunctive relief against a person who is not a party to the proceedings. While there was some suggestion that Mr B may have been prepared to provide an undertaking in terms similar to the proposed injunction, no such undertaking was forthcoming. The parties and the ICL nevertheless confirmed their consent to the making of the signed Minute of Order whether or not the injunction against Mr B is included.
While the submissions in relation to the jurisdiction or power of the Court to grant the injunction were of short compass, the authorities cited by Counsel for the father in relation to the Court’s jurisdiction or power to grant the injunction were Vaughan & Bele (No 2),[3] Maritime Union of Australia v Patricks Stevedores Operations Pty Ltd,[4] Ascot Investments Pty Ltd v Harper,[5] White & Green (No 2)[6] and the authority cited by counsel for the mother was Re LSH; Ex parte RTF.[7] No authorities were cited by counsel for the ICL.
[3] 2012 FamCA 605.
[4] [1998] 4 VR 143.
[5] (1981) 148 CLR 337.
[6] (2009) 41 Fam LR 185.
[7] (1987) 164 CLR 91.
Vaughan & Bele (No 2) involved an interlocutory injunction enjoining a party to the proceedings and their employees, servants and agents from attending a particular property and a mandatory injunction directed to the Registrar of Titles for the State of Victoria requiring the cancellation of a Certificate of Title and the creation of a new one. The source of power relied upon by Cronin J in relation to the injunction against the employees, servants and agents was s 114(2A) of the Act and was issued in order to preserve an asset pending determination of the substantive proceedings. However, His Honour found that there was no power under s 114 to issue an injunction against the third party Registrar but that in the exercise of the Court’s accrued jurisdiction the Court could issue the mandatory injunction binding the Registrar as there was a justiciable controversy involving both Federal and State law and a common substratum of facts.
In Maritime Union of Australia v Patricks Stevedores Operations Pty Ltd an interlocutory injunction issued by a Judge of the Federal Court of Australia and directed to the world at large was held to be beyond power by the Full Court of the Federal Court.
In Ascot Investments Pty Ltd and Harper the High Court of Australia held that orders directed to third party directors of a company requiring them to register transfers of shares was beyond power of the Family Court of Australia (as this Court was then known). It was held that while in some circumstances this Court has power to make an order or grant an injunction under s 114 of the Act, that is binding or affects a third party e.g. to preserve the subject matter of a dispute pending determination, such a power does not extend to deprive a third party of an existing right or to impose on a third party a duty which the third party would not otherwise be liable to perform.
White & Green (No 2) was also a decision by Cronin J in which His Honour held that there was no jurisdiction to grant an injunction against a paternal grandfather (who was not a party to proceedings) pursuant to s 68B restraining him from leaving Australia. In finding that the Court did not have jurisdiction to make binding orders against third parties simply because it would advance the welfare of a child, Cronin J cited Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor[8] in which the High Court of Australia held that the Family Court of Australia (as this Court was then known) did not have jurisdiction under Part VII of the Act to require the Minister to release children held in detention.
[8] (2004) 219 CLR 365.
Re LSH; Ex parte RTF involved the grant of an injunction by this Court pursuant to s 114 of the Act restraining a parent and their new spouse from proceeding with an adoption application in a State Court under State law. The High Court held that this Court did not have the power to grant a permanent injunction to that effect against a third party.
In view of the authorities referred to by the parties it is difficult to see how the submissions that that this Court has the jurisdiction or power to grant the permanent injunction against Mr B could be maintained.
To the extent that the submissions might suggest that this Court has an inherent jurisdiction to grant the injunction I note that in DJL v Central Authority[9] the High Court held as follows:
The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their "inherent jurisdiction". The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred". It would be inaccurate to use the term "inherent jurisdiction" here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.
(Footnotes omitted)
[9] (2000) 201 CLR 226 at 240, 241.
In Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor[10] the High Court considered the jurisdiction or power of this Court to make an order directing the Minister to release children from immigration detention. Proceedings had been commenced in this Court by parents, who together with their children, were unlawful non-citizens being held in detention. The source of jurisdiction or power relied upon by them to seek their children’s release from detention was s 67ZC (welfare of children) and/or s 68B (injunction in relation to a child). At first instance Dawe J dismissed the application, holding that the Court did not have jurisdiction to make the orders sought. On appeal to the Full Court of the Family Court (as this Court was then known), the primary decision was overturned, with the Full Court stating in relation to the injunction powers in s 68B:[11]
[10] (2004) 219 CLR 365.
[11] B and Another v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 604 at [133], [205] – [209].
133.The injunction powers are conferred as an aid to the exercise of the jurisdiction of the Court in relation to children. They are couched in wide terms and are obviously intended to enable the Court to make protective orders in relation to children against third parties as well as parents and those acting in loco parentis.
…
205. However we reject the concept that the Court’s powers to protect children are confined to orders directed at parents or persons in loco parentis.
206. The Solicitor General suggested that the Court could not exercise its powers to grant an injunction against persons such as the landlord of the premises where the child may be living or any other third person, regardless of the effect that their behaviour might be having upon the children’s welfare. We find this to be an unsatisfactory proposition, because it suggests that the Court has no power to protect a child from a potential abuser, unless that person is in loco parentis in respect of the child. We can find nothing in the Act and particularly the language of s.68B that would support such a restrictive interpretation. It is true that Gaudron J left this question open in GPAO at [142] upon the basis that it was unnecessary to determine it in that case. We are unaware of any authority that would operate to so confine the jurisdiction.
207. We think that to adopt such an interpretation would seriously weaken the Court’s capacity to protect children from potential abusers who may be, and often are, persons within a family who are not in loco parentis to the child. For example, children are frequently abused by persons other than their parents from within and outside the family circle. It is not uncommon and often essential for the Court to make protective orders in such cases.
208. While it might be said that this area is the province of State and Territory child protection departments and juvenile courts, the fact is that this court is often called upon to make such protective orders. This may be because the particular State or Territory legislation more narrowly defines children “at risk” or it may simply be because those authorities are either unable or unwilling to take steps to protect children in particular cases. Further, there are many situations involving the abuse or potential abuse of children which never come to the attention of such authorities but do emerge in proceedings before this Court.
209. The terms of s.68F(2)(g) are a clear recognition that in the best interests of the child, a highly relevant matter is to protect the child from abuse. The section is not confined to abuse by persons who are in loco parentis to the child.
On appeal to the High Court of Australia, the Full Court’s decision was overturned with it being held that this Court did not have jurisdiction or power to make the orders against the Minister for the release of the children from detention. The High Court in the various judgments identified the complex nature of ‘Part VII – Children’ in the Act and said that while particular sections standing alone might appear to confer unlimited jurisdiction, when read as a whole, Part VII must be read within the confines of Constitutional limitations which could not be extended under a general welfare jurisdiction or injunction power to bind third parties.
Gleeson CJ and McHugh J said:
2. The principal difficulty in the appeal arises out of the complexity of the legislative scheme contained in Pt VII of the Family Law Act 1975 (Cth) (the Act) dealing with children, a complexity that is not reduced by a form of drafting that is sometimes used in federal legislation. This form of drafting commences with the enactment of a provision that, standing alone, suggests an absence of constitutional constraints on the federal Parliament. Other sections of the legislation, however, then operate to confine the primary provision and bring its content within one or more heads of federal constitutional power. …
…
6. … Jurisdiction is a term used with a variety of meanings. It is often used to describe the amenability of the defendant to the reach of a court’s process, which may be limited to certain subject matters or geographical locations. In a legal context the primary meaning of jurisdiction is ‘‘authority to decide’’. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction. Because the Family Court is a federal court created by the Parliament of the Commonwealth, its jurisdiction — its authority to decide — must be defined in accordance with ss 75, 76 and 77 of the Constitution.
…
10. Under the Constitution, the Family Court, as a federal court, may only be invested with jurisdiction that the Parliament has defined by a law with respect to one of the ‘‘matters’’ mentioned in s 75 or s 76 of the Constitution. …
…
28. … [Nothing[] in Pt VII suggest[s] that … Part [VII] was intended to give the Family Court a general jurisdiction over children with the power to make an order against individuals whenever the best interests of a child require such an order to be made.
…
39. … Pt VII is concerned with proceedings between the parents of children and also with the obligations of parents to children.
…
52…. Nothing in that section [a reference to s 67ZC being the ‘welfare power’] or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so. Nothing in s 67ZC, or in Pt VII generally, imposes — expressly or inferentially — any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Except where Pt VII expressly imposes obligations on third parties — for example, ss 65M, 65N and 65P — that Part is concerned with the relationship between parents and children and parents’ duties in respect of their children. …
(Footnotes omitted)
Gummow, Hayne and Heydon JJ said:
68. It is necessary to begin with the term ‘‘jurisdiction’’, of which it was said in the joint judgment in Lipohar v The Queen:
‘‘It is a generic term, a point made by Isaacs J in Baxter v Commissioners of Taxation (NSW). It is used in a variety of senses, some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers. Thus, ‘federal jurisdiction’ is ‘the authority to adjudicate derived from the Commonwealth Constitution and laws’ whereas the phrase ‘inherent jurisdiction’, used in relation to such things as the granting of permanent stays for abuse of process, identifies the power of a court to make orders of a particular description.
‘Jurisdiction’ may be used (i) to describe the amenability of a defendant to the court’s writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or ‘law area’ or ‘law district’.’’
…
89. …Pt VII reflects a pattern in federal legislation whereby provisions in comprehensive terms, apparently unconfined by constitutional limitations upon legislative power, are given specific and limited (but perhaps overlapping) operation by reference to identifiable heads of power.
…
110. …s 68B, which appears in Div 9, must be read in the manner indicated earlier in these reasons, with the provisions of Div 12, in particular s 69ZH. …
111. The provisions of subdiv F of Div 12, including ss 69ZE, 69ZG, 69ZH and 69ZJ, control the application of the preceding provisions of Pt VII. They do not merely add something onto an operation which those earlier provisions have in their own right. They consist of a complete and exclusive statement of the application of the earlier provisions. That this is so follows from s 69A(e), which provides that subdiv F of Div 12 (not any earlier provision) deals with the places and people to which Pt VII extends and applies. …
(Footnotes omitted)
Callinan J said:
215. No matter how extensive the powers conferred by s 51(xxi) and (xxii) may be, the powers of the Family Court with respect to children are powers in relation to, or arising out of married (either currently or previously) parentage of children, or of unmarried parentage of them on a reference by the States. Those powers do not comprehend a general discretionary welfare power over any or all children, whether of a marriage or not, exercisable in such a way as to override any or all other powers over children …
While I have jurisdiction in this matter i.e. the ‘authority to decide’ the parenting dispute between the parents, I am of the view that I do not have the power within the exercise of that jurisdiction to grant an injunction pursuant to s 68B(1) of the Act restraining Mr B as proposed. That is of course not to say that Mr B should not be so restrained but rather it is a matter falling within the jurisdiction of State authorities under its child protection obligations.
CONCLUSION
It is rare for the Court to descend into so much detail before making an order by consent but the issues raised in this case, particularly in relation to the risk posed by Mr B, required a more detailed review of the evidence than would normally be the case.
Despite having some reservations about the mother’s commitment to prioritising the children’s need to be protected from Mr B, I propose to make the Order as contained in the signed Minute of Order (although without the injunction directed at Mr B for the reasons discussed above). In concluding that the Order is in the best interests of the children in the circumstances of this case, I take into account the following matters in particular:
(a)The mother’s consent to an injunction restraining her from permitting Mr B to have any contact whatsoever with the children (which goes a lot further than the previous undertaking given by her);
(b)The mother has now read the material contained in Exhibit 5 alerting her to the unacceptable risks posed by Mr B which she says she was previously unaware of;
(c)The mother has no criminal history;
(d)There is no evidence the mother has been complicit in any offending behaviour by Mr B;
(e)The mother has historically been the primary carer for the children;
(f)The father will be spending increased time with the children and as such will be a protective factor;
(g)The ICL proposes to remain involved for a further period of 12 months;
(h)There is an existing Protection Order in place for the protection of the mother and the children from the father;
(i)There is no evidence that the father has been in breach of the Protection Order;
(j)The father and mother jointly propose an order for equal shared parental responsibility and have seemingly successfully co-parented for some time;
(k)There seems to be minimal risk of the children being exposed to family violence between the father and the mother.
Having regard to Mr B’s history I remain deeply concerned about him having contact with his own children, V and W, and intend referring these Reasons to Child Safety in the hope that they will take any necessary action to ensure that the children are not at risk. I respectfully suggest that any information or assurances given by the mother and Mr B be carefully vetted. If it is the case that the mother was unaware of Mr B’s history as disclosed in Exhibit 5 then one can only hope that she will take appropriate steps to ensure the safety of her children.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 9 May 2022
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