Myers and Raddich

[2017] FamCA 380

FAMILY COURT OF AUSTRALIA

MYERS & RADDICH [2017] FamCA 380

FAMILY LAW – CHILDREN – With whom the children spend time – Where the mother seeks the father spend no time with the children – Where the father was charged with sexual offences against children – Where the victims were the mother’s sisters – Where the father served a custodial sentence in relation to the charges – Where upon release the father wanted to see the subject children – Where the father is on the Child Protection Register and required to report annually for 15 years – Decided there is a need to protect the children from the risk of physical or psychological harm presented by the father – Ordered the father spend no time with the children

Family Law Act 1975 (Cth), ss 60CC

APPLICANT: Mr Myers

RESPONDENT: Ms Raddich

FILE NUMBER: NCC 1342 of 2016

DATE DELIVERED: 29 May 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

EX TEMPORE JUDGMENT OF: Cleary J

HEARING DATE: 29 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms White

SOLICITOR FOR THE RESPONDENT: Not applicable

THE RESPONDENT: In Person and representing himself

Orders

1. Leave is granted to the Respondent father to file in Court this day his Affidavit sworn on 29 July 2016.

1. Leave is granted to the Respondent father to file in Court this day a Notice of Risk.

1. All prior parenting orders in relation to B born … 2009 and C born … 2012 (“the children”) are discharged.

2. The children live with the mother.

3. There be no contact between the children and the father.

4. The Application filed by the mother on 31 May 2015 and the Response filed by the father on 12 May 2017 are otherwise dismissed.

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  Raddich & Myers 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 NEWCASTLE

FILE NUMBER: NCC1342/2016

Ms Raddich

Applicant

And

Mr Myers

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders with respect to two children, B, a girl aged seven, and C, a boy aged five. 

2. The Applicant is the mother, Ms Raddich, aged 30.  She lives in the north western area of New South Wales at an undisclosed address.  The children live with her. 

3. The Respondent is the father, Mr Myers, aged 28.  He lives in a township near Brisbane in Queensland.  He lives in the home of his father and his father’s partner. 

4. The children have not seen their father for almost three years.

5. The parties met online in approximately 2008.  Their relationship continued with periods of difficulty and separation until either early 2013, or probably, early 2014 at the latest. 

6. The two children were born in 2009 and 2012. 

7. In or around 2011/2012, the father sexually assaulted two of the younger sisters of the mother.  They were then aged about 11 and 12 respectively.  He was then in his early to mid-twenties.

8. There was a police investigation.  The father was charged and released on bail.  There was a breach of bail conditions, probably relating to housing, and the father returned to jail.

9. On 16 October 2013, the father was committed for trial in respect of four charges:

   ·     Commit act of indecency with person under 16 years;

   ·     Incite aggravated indecency, victim under 16 and under authority of offender;

   ·     Have sexual intercourse with a person older than 10 and younger than 14, two counts; and

   ·     Commit act of indecency with person under 16 years, three counts. 

10. On 8 April 2014 the father was sentenced to three years, commencing 17 August 2013, concluding 16 August 2016, with a non-parole period with conditions for 18 months, release subject to supervision.

11. In April 2015, the father was released from jail.  The father then began ringing the mother wanting to see the children. 

12. In oral evidence, he referred to a telephone conversation with B, of which the mother was apparently unaware.  The conversation was said to be as follows: 

    The child:      Are you coming home?

    The father:      No because your mother doesn’t want me there.

13. This statement by the father, blaming the mother for his inability to return home, is both insightless and immature and raises the strong possibility that the father has not accepted responsibility for his criminal conduct with the mother’s young sisters, nor for the impact on the mother, the subject children and the extended maternal family. 

14. The mother initially accepted the father’s denials of wrong doing in relation to her sisters and by inference, did not believe her sisters.  It has taken some time for relationships to be restored.

15. In response to the father’s insistent requests for the children to be brought to see him, the mother contacted the father’s parole officer.  She was advised by that officer that the father was not allowed to be around children. 

16. The father has been entered on the Child Protection Register in New South Wales and is required to report annually for 15 years.

17. The father continued to press for visits and requested telephone calls.  The father sent a card to C for his fourth birthday in late 2016 expressing his love for the boy and promising to soon see the children. 

Litigation

1. On 31 May 2016, the mother filed an Initiating Application in the Federal Circuit Court proposing orders for sole parental responsibility for herself, that the children live with her and have no contact with the father.  She also filed a Notice of Risk, together with an affidavit which has been read in these proceedings. 

2. On 6 July 2016, the father was directed to file a Response.

3. A Response document, a Notice of Risk and an affidavit by the father was prepared and the affidavit was sworn on 29 July 2016.  However, further events in the criminal jurisdiction intervened. 

4. On 3 August 2016, the solicitor for the father advised the Court that his client had been charged with further allegations of sexual assault.  These were historical allegations raised by another even younger sister of the mother’s, who was seven or eight at the time of the alleged offences.  She is now 14. 

5. The legal representatives for the father, the Aboriginal Legal Service, then ceased to act in these proceedings.  The mother filed a second affidavit also filed in the Federal Circuit Court setting out the matters in relation to the charges involving her third sister.

6. On 18 November 2016, with the consent of both parties, an interim order was made for sole parental responsibility of the children to the mother and an order for residence.  This was both a proper and reasonable response by the father to the situation of the children. 

7. Time for the father to serve a Response was extended to 24 January 2017.

8. In late 2016, for her seventh birthday, the father sent a card to B which included these words:

   I’m doing the best I can to get a chance to have you back in my life again, but your mummy is making it very hard for daddy to see you and [C].

9. The written contents of the card became exhibit 2. 

10. The evidence is that the mother did not pass the card on to the child which, in the circumstances of the father explaining to the child, in effect, that it was the mother’s fault that he was unable to see her, it was proper not to pass it on.

11. On 14 December 2016, in the D Town Local Court, the father was convicted after a contested trial, where the mother’s sister gave evidence.  The conviction was for the charge, indecent assault person under 16 years of age.  He was sentenced to 15 months’ incarceration, commencing 5 April 2017 and concluding 4 July 2018, suspended on a bond to be of good behaviour for 15 months.  That bond will expire in July 2018.

12. In his oral evidence, the father stated that he has appealed against that conviction and denies any wrongdoing in respect of the sister.  The appeal is yet to be determined.

13. On 7 February 2017, the time for filing documents by the father was again extended to 29 May 2017, noting that the matter would proceed undefended if nothing was filed. 

14. On 12 May 2017, the last day of the period, a Response was filed and final orders were sought, drafted by the father himself.  The orders sought were really a plea for the father to be able to spend time with his children as follows:

    I would like to have contact with my children, [B] and [C], again and be a part of their life and have phone calls and regular visits, even if it has to be supervised.  I’m willing to do whatever it takes to have my kids back in my life, so please can somebody help me get access to see my kids and talk to them again.  I don’t know what else to do and where to go.  I’m here to try and see how I can get access to see my children again.  Honestly, I don’t know what else I can do so I can see my kids again. 

    I’ve tried numerous times to contact [Ms Raddich] and speak with my kids, but she has told me I had no right being in their lives because of what happened in the past and from what I did, but I’m trying to make things right and get on with my life.  Even though I failed, I’m trying to do the best for me and my children and regain my relationship with [B] and [C].

15. On 17 May 2017, the proceedings were re-listed on the basis that the father had filed some documents.  He confirmed his wish to participate and notified that he would be present at Court today.  An affidavit in draft, which had previously been provided by the former solicitors for the father, was kindly provided by the solicitors for the mother in anticipation of this hearing. 

16. On 29 May 2017, the father was present at Court, had travelled from Queensland for the purpose and was committed to proceeding.  He had the opportunity to see a duty solicitor before the hearing commenced.

17. The father had also taken the step of inquiring as to whether Ms E, the psychologist who prepared a report on 30 May 2016, would be available for cross-examination, the mother’s solicitor having indicated that the expert would be required if the report was relied on.  The father, in his oral evidence, or from the bar table, said that he had made those inquiries, but Ms E had returned to work in the UK and was therefore, unavailable.  I have read the report, which I can give little weight in those circumstances, but there is some significance in respect of Ms E’s assessment of risk, which I will turn to later in these reasons.

THE LAW

1. Section 60CC of the Family Law Act contains the particular provisions which a Court must take into account when making orders in accordance with the best interests of children. The additional considerations which I will turn to first are relevant as follows:

Any views expressed by the children 

1. These children are seven and five.  They have been appropriately protected by the mother and her family from knowledge of what the father has done to their aunts, the fact that he has been in jail, the fact that he has been released and any other information around those circumstances. 

2. On the oral evidence of the mother, they have not asked about the father and perhaps understand that the silence of the maternal family on the subject of the father should simply be respected. 

The nature of the relationships of the children with their parents and others

1. Clearly, the children have their most important relationship with their mother, who has provided their care all their lives.  They also, I accept, have a close relationship with the maternal family, grandparents, aunts and perhaps, cousins.  The children do not presently have any relationship with their father. 

2. Three years is a very long time in the life of a five year old and C’s memories must be limited at this point.  B is more likely to retain a memory of her father, probably a positive one. 

Long term decision making

1. The mother has stepped up to being fully responsible for the care of the children, has enrolled them in preschool and school, lived with her parents for a period of time and is now living independently.  There is no reason to think that the children are not doing well in her care.

The extent to which parents have met the obligation to maintain the children

1. The father has not provided any financial support for the children.  He has, at all times, known the address of the maternal grandparents and has sent cards to that address, however he has not attempted to send money, although he must have known that the mother was solely responsible for the clothes, food, education and entertainment of the children. 

2. Whether or not the mother has made an application for child support, the evidence is clear that the father has made no effort to provide financial support.

Change of circumstances

1. The children have not seen their father for three years.  If they began to make contact with him at this time, it would undoubtedly have an effect on the relationships within the family.  There is an appeal pending in respect of one of the mother’s sisters, involving the conviction of the father for a sexual assault on her.  No doubt, many of the same issues that created trouble in the past will be presently stirred up. 

2. There is also the consideration that the father is on the Child Protection Register, and cannot be around children, so that the families and parents of children with whom the subject children are friends would undoubtedly withdraw from them if he was to be involved in the lives of the children to any extent.

Practical difficulty and expense of children spending time

1. There is a practical difficulty in this case. 

2. The father is living in Brisbane, the mother somewhere in north-west New South Wales.  There has been a proposal by the father, recognising something of the situation, that supervised time might have to be the answer, but his proposal that that might happen in Sydney, being equidistant for the parents in terms of travel, is hardly a practical one, given the expense and the time that would be involved in the children travelling there for what can only be a short period of time because of the nature of contact centres. 

3. There is no person put forward as a supervisor, so it could only be a centre.  That is not to suggest that supervision by another person would have been acceptable to the mother.  She is opposed to any time taking place.

The capacity of each of the children’s parents

1. This is a significant matter in this case. 

2. It seems to me that the father has work to do in attempting to understand his sexual conduct with children, whether that relates to events in his own past, the death of his own mother when he was 15 and also to other traumatic events referred to in the report by Ms E. 

3. Ms E assessed the father as representing a low risk to the children where she says,[1]:

   The purpose of this assessment is to consider more specifically his assessed risk to his children and possible strategies to manage any risk presence.  Given the above risk statement – that is, that the father is low risk to his own children – there is no evidence to suggest a risk to his son.  Researchers evidence those offenders who cross over to other victim types present a higher risk of reoffending, and to offend against child victims of a younger age than [Mr Myers] has done.  The likelihood that he will offend against his daughter is minimal at her current young age.  In addition, the social isolation he was apparently experiencing at the time of his offences is no longer evidence and he reported positive supports.

   [1] Report of Ms E filed 13/05/2017, par 58

4. I take into account that Ms E has not had any contact with the father since May 2016, and is therefore unaware of a further charge, conviction and appeal in relation to the mother’s sister at a much younger age. It will clearly be a matter that she would need to reconsider in considering risk.

5. I also take into account that there is evidence, both in Ms E’s report and in the evidence before me, of the father being inclined to blame the mother for his loss of the relationship with his children, that somehow because the events were in the past the mother should simply overlook them and look to the future, to accept his love for the children and to stop obstructing the restoration of the relationship.

6. In considerable distress in court, the father threw up his arms and said, “How can I get my kids back in my life with everyone judging me?”  The solicitor for the mother, quite reasonably, asked him – did he not accept that people had a reason to judge him, given the conduct.  His response, “Yes, but it’s in the past”, is a reflection of the strength of the wish of the father to move on from what has happened, but his inability to understand that the consequences are still alive every day for the children and their mother.

Whether or not the children are aboriginal children

1. The father identifies as Aboriginal.  The paternal grandfather is Aboriginal, and there are siblings and half-siblings on the paternal side.  The children may well wish to know that they are Aboriginal children and can identify and enjoy their culture.  That will be a matter for the mother to consider.  The mother is not Aboriginal, but is well aware of the father’s interest in his own Aboriginality.

Any other fact or circumstance that the Court thinks is relevant

1. The children have a secure and happy life in the care of their mother, and with regular warm and loving contact with the maternal family.  There is a very real risk that the children would be teased and bullied if anything was known about their father, inevitably, because of the nature of the crimes, and the hostility of the community, generally, to such wrongdoing. 

CONCLUSION

1. The father may well feel that he has been punished already, has served his time and that it would be fair to him to restore his relationship with the children. 

2. I have no doubt that seeing his children would be beneficial for him and would give him some purpose in his life, in being able to see them and provide for them, but this is about the best interests of the children, and there is, in my view, a need to protect them from physical or psychological harm, from being subjected to abuse and, in this case, both emotional abuse and the possibility of sexual abuse.  When there is a need to protect children in that way, the law compels the Court to give greater weight to that consideration of safety, over relationships.

3. For all these reasons, I have come to the conclusion that, although I am confident the father loves his children, there should not be an order for any time to be spent.  Rather, there should be an order as the mother seeks, that there be no contact between the children and their father. 

I certify that the preceding fifty eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 29 May 2017.

Associate: 

Date:  31 May 2017