MERCY & HARRY

[2015] FCCA 2241

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERCY & HARRY [2015] FCCA 2241

Catchwords:
FAMILY LAW – Interim application – whether the application by the mother should be heard ex-parte – where father incarcerated having pleaded guilty to child pornography charges – paramount concern safety of child – risks to child where father able to communicate with child in accordance with 2009 orders of the Family Court – matter heard ex-parte on interim basis – 2009 parenting orders discharged.

Applicant: MS MERCY

Respondent: MR HARRY

File Number: HBC 1024 of 2007

Judgment of: Judge Jones

Hearing date: 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Dandenong

Delivered on: 12 August 2015

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent: No appearance

ORDERS

1. Leave is granted to the Applicant to proceed ex parte.

2. The Applicant mother have sole parental responsibility for the child [X] born [omitted] 2002 (“the child”).

3. The child live with the Applicant mother.

4. The orders made on 31 July 2009 made by Justice Benjamin are hereby discharged.

5. Pursuant to section 68L(2) of the Family Law Act 1975 the children [X] born [omitted] 2002 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange the separate representation.

6. Upon appointment the Independent Children’s Lawyer shall file a Notice of Address for Service.

7. Within 48 hours of notification of appointment of an Independent Children’s Lawyer the solicitors for the parties shall provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

8. The proceeding is adjourned to the Duty List on 27 October 2015 at 10.00am.

9. The applicant mother serve a sealed copy of these orders on the father by posting them to the Manager of the [omitted] Prison, [address omitted].

AND THE COURT NOTES THAT:

A.A copy of these reasons are to be transcribed and placed on the file.

B.Pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Mercy & Harry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

HBC 1024 of 2007

MS MERCY

Applicant

And

MR HARRY

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is a parenting matter that concerns a young boy, [X], born [omitted] 2002.  The mother is Ms Mercy and the father is Mr Harry.  The mother brings her application for interim parenting orders.  She seeks it be dealt with on an ex parte basis.  I should say that the father is presently incarcerated because of convictions which I will shortly come to. 

2. The father filed a request to attend by electronic communication on 3 August 2015.  It was not brought to my chambers' attention by the Dandenong Registry until 10 August 2015.  This meant, the staff of my chambers did not have sufficient time to arrange communication by telephone with the respondent. 

3. The father says in his reasons for the electronic communication that he needs time to gather documentation from his current treating doctors in regard to the applicant's affidavit filed on 15 June 2015. He alleges that the dates in her affidavit do not add up and that her testimony in the Family Court in Hobart 2009 was incorrect.

4. I have to say that he may well wish to gather documents together but, having read the mother's affidavit, it seems to me that whether or not he appeared by telephone or gathered such documents, the particular circumstances that have led him to be incarcerated would not have changed and the Court's view as to what should be done in the interim.

5. Consequently, having regard to the circumstances of this matter, I am satisfied that they are sufficiently serious that I should proceed firstly by way of an undefended on an ex parte basis.

6. The brief circumstances are that the parties commenced a relationship in 2002, living together in early 2002, and they separated in 2007, and there is one child of the relationship.  The mother works part-time as a [omitted] and lives in [omitted].  There were orders made by Benjamin J on 31 July 2009 in Hobart, which provided that previous parenting orders be discharged, the mother have sole parental responsibility for [X], the child live with [X], the mother to relocate to Victoria, and the father spend time with the father during school time and that there be communication via electronic means.

7. The mother deposes in her affidavit filed on 15 June 2015 that she and the respondent separated because he was abusive and an alcoholic, that the respondent was convicted of stalking in 2011 and was sentenced to three months jail as a result.  After his release he continued to send threatening letters, and that his family harassed her.  In April and October 2013, he was convicted of possessing child exploitation material and sentenced to eight weeks and four weeks suspended imprisonment.  In 2015 he was convicted of child pornography charges and sentenced to 15 months in prison.

8. The mother states that the father has not seen [X] since June 2010 and the communication has been minimal if at all.  The mother deposes that the respondent has not fulfilled his obligations to care for [X], that he has attempted suicide on various occasions.  The father is now named on a sex offender registry.  The mother also deposes to a criminal history of the father at paragraph 25 of her affidavit. The circumstances which have caused me to deal with this matter on an ex parte basis are set out in the mother's affidavit commencing at paragraph 26. She deposes that on 16 April 2015, the respondent was sentenced in the Supreme Court of Tasmania by Porter J.  The father pleaded guilty to six child pornography charges, including three counts of using a carriage service for child pornography material, one count of accessing material and two counts in relation to transmitting this material.  There are also three counts of possessing child exploitation material.

9. The mother deposes at paragraph 28 that the charges resulted from a police investigation where the respondent's home in Hobart was searched on 14 September 2010.  The mother deposes at paragraph 29 that the police found the respondent to have been using peer-to-peer file sharing program, LimeWire, and file sharing and chat program, Yahoo Messenger.  The programs were used to download and play child exploitation videos, as well as engage in written conversations with others, the subject matter of which was sexual acts with children.  The respondent accessed these materials between 15 June 2010 and 14 September 2010.

10. The mother then deposes, at paragraph 30, to two conversations engaged in by the respondent, and this is relevant to my decision as to whether I should even allow communication as between father and child.  She says as follows and I quote:

    “30(a) The first conversation occurred on Yahoo Messenger where the respondent asked the recipient to see a picture of her daughter.  After he received the family photograph he made sexual comments about the child, saying he would love to kiss her, see her nude and put his hand up her dress.  When he received a further photograph the respondent devolved into further detail, including saying that the child would be good at performing oral sex on a man, telling the woman to show her daughter how to do it, and expressed how he wished to perform oral sex on the child and have intercourse with her. 

    (b)The second conversation was with a woman with a two year old daughter.  Discussions of sexual activity with the child occurred.  The respondent stated he would like to perform oral sex on the child and wanted to have sex with the child while the woman held the child down.  Further, in the 20-minute conversation the respondent stated that he had had sexual intercourse with children aged three, six and seven, and saying he “would du nu (sic) born if I can get my hand on one".

11. The mother then deposes at paragraph 31:

    “The Court found that an inference could be drawn that before and during the 2010 period, the respondent had an interest in material depicting children engaged in sexual activity.” 

12. The mother also deposes (at [33]) that the Court consulted psychologists.  There was a report prepared by a Dr T who – and this is stated – deposed at paragraph 33, indicated a lifelong history of being ostracised by others, with limited interactions and interpersonal function, perceived injustices and a chronic theme of feeling hurt by girls across his school years has led to the respondent's behaviour.  This reasoning is enforced by offending on an escalating intensity that became progressively arousing, reinforced and perpetuating. 

13. The psychologist's view is that the respondent's background is relevant to his offending as his actions are a form of retribution served as a mechanism for him to morally disengage, to continue his behaviour despite being aware that what he is doing was wrong. The psychologist viewed the respondent as lacking insight into his problems as well.

14. The mother deposes that the Court convicted the respondent of all matters and he was sentenced to a 15-month imprisonment commencing 9 March 2015, and placed on a register under the Community Protection (Offender Reporting) Act with orders to comply with the reporting obligations for a period of 15 years from release. 

15. The mother notes that she lives in a two-bedroom house with [X] and that he is regularly involved and cared for by his family. 

16. The key issue I must decide on this interim basis is obviously the safety of the child.  The child has a meaningful and loving relationship with his mother.  She has been the person who has cared for him and that is reflected in the orders of Benjamin J in 2009.

17. I am satisfied on the material before me that, although the father is presently incarcerated and likely to remain so at least until the early quarter of next year, if he is given parole, there is a serious issue of safety in relation to this child, [X].  I am satisfied that the mother's sole parental responsibility for the child should continue. 

18. Clearly, Benjamin J decided in 2009 that the presumption of equal shared parental responsibility under the Family Law Act should be displaced. I am satisfied it should continue to be displaced. The evidence is clear that the presumption should not apply. The child should obviously live with his mother as he has done so. My concern is that the orders are ineffective presently because the father is incarcerated.

19. However, a concern that arises, a serious safety concern for the child, are the orders, 8 and 9, which provide for the father to communicate by telephone, email and Skype with the child which, if not discharged, would enable the father to communicate with the child and require the mother to arrange so, at least twice a week from prison.  I have had particular regard to the communication by the father which he has engaged in and, as a consequence of which, he has been charged and convicted. 

20. I am satisfied that the father, based on the psychologist's report, has no insight into his behaviour.  I have nothing before me to suggest that he has anything other than a lack of insight and that, on an interim basis, the objective material before the Court is that communication with the child, either orally or via electronic means, would pose a very serious safety concern for that child. 

21. Consequently, I am satisfied that I should discharge the orders of Benjamin J made on 31 July 2009.  I am satisfied that I should, in these circumstances, request the appointment of an independent children's lawyer and that this matter should be adjourned for mention in due course.  Consequently, the orders I make are as follows.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date: 19 August 2015