OAKINS & FABERMAN

[2021] FCCA 1406

FEDERAL CIRCUIT COURT OF AUSTRALIA

OAKINS & FABERMAN [2021] FCCA 1406

Catchwords:
FAMILY LAW – Interim parenting – whether an order should be made for children aged 10 and 7 to spend time with their father – where the mother alleges extensive family violence and where the father is facing a charge of rape – where the mother is afraid that the father may locate her – where the information provided by the mother in her affidavit and the admissions made by the father in his affidavit, including admissions about the installation of cameras within the home including in the bedroom, create a disturbing picture of obsession and jealousy – where it is possible that if the father spent time with the children the mother would be located and could be at risk of harm – children to spend no time with the father in the interim.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 68B

Applicant: MS OAKINS

Respondent: MR FABERMAN

File Number: NCC 3431 of 2020

Judgment of: Judge Terry

Hearing date: 6 April 2021

Date of Last Submission: 6 April 2021

Delivered at: Newcastle

Delivered on: 6 April 2021

REPRESENTATION

Counsel for the Applicant: Ms Carty

Solicitors for the Applicant: Resolve Family Law

Solicitors for the Respondent: Katie Smith Solicitor

The Independent Children’s Lawyer: Barbara Garrick & Associates

THE COURT ORDERS ON AN INTERIM BASIS THAT:

1. The children X born in 2010 and Y born in 2013 (“the children”) shall live with the mother.

2. The mother shall have sole parental responsibility for the children.

3. The mother is not permitted to relocate the children from the Region B area without an order of the court.

4. The father shall spend no time with and have no communication with the children.

5. Pursuant to section 68B of the Family Law Act 1975 for the protection of the children the father is restrained and an injunction is granted restraining him from removing the children from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed the children.

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The mother’s solicitor is to promptly file with the court a copy of the ADVO which is in force between the parties.

2. The matter is adjourned to 9.30am on 5 October 2021 for further consideration.

THE COURT NOTES THAT:

A.The reasons for the lengthy adjournment is that he father is facing a charge which may need to be heard in the district court and this court is unlikely to be able to do anything productive in the matter until there is some clarity around what is happening with that charge.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3431 of 2020

MS OAKINS

Applicant

And

MR FABERMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. In this matter I have to make a decision about parenting arrangements for the immediate future for two children:  X, who was born in 2010 and who is 10, and Y, who was born in 2013 and who is seven.  Both boys are about to have a birthday, but those are their current ages. 

3. The matter first came before me last September when the mother applied for a recovery order in relation to the boys. The parents had separated not long before and the father had retained the boys. 

4. On the day of separation the mother made a complaint to police and the father has been charged with a serious criminal offence. She subsequently filed an application seeking to have the boys returned to her care.

5. On 28 September 2020 I made an order for the children to be immediately returned to the mother’s care and for them to live with the mother and spend no time with and have no communication with the father, with the issue of his time with the children to be considered later.   

6. The father is not happy about the fact that he is not spending time with the children and is agitating for the court to make an order that allows him to do so. 

7. I was provided today with a minute of the orders that he is seeking.  He is seeking an order that the children spend time with him each Saturday from 10.00am until 4.00pm for three months and thereafter each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday.

8. He is also seeking some time during the school holidays, including the school holiday period that we are actually in.  He is seeking to spend a week of the school holidays with the children, but for this current school holidays it would be from 10.00am until 4.00pm each day.

9. The father is proposing that the paternal grandparents be involved in this time. I am told that they are willing to supervise if supervision is required.  I refused to accept an affidavit filed only two hours before the interim hearing commenced in support of that proposal but it is certainly the father’s case that they would be willing to supervise. 

10. The last order the father sought was that he be restrained from questioning the children about the residential address of the mother.  Given the children’s ages I wonder about the efficacy of such an order in concealing the mother’s address, but nevertheless the father would say that it is to his credit that he seeks it, and I have just been told by his solicitor that if the Court is not willing to do what he proposes in those orders, then he proposes that he spend time with the children supervised by C Contact Service, a private supervision service. 

11. The mother continues to propose at no time, and the Independent Children's Lawyer also takes the position that no order should be made about time at the moment.

12. These are interim proceedings so I cannot make findings about issues in dispute, but on any view there are some extremely serious allegations of wide ranging, pervasive family violence raised by the mother in her material. 

13. The father has been charged with sexually assaulting the mother very close to the day of separation.  The mother promptly complained to the police after that assault, but it is her evidence that there was extensive family violence prior to that. 

14. The father makes no admissions about having perpetrated family violence but as the Independent Children's Lawyer has just pointed out, some of the admissions the father makes in his affidavit suggest that there is reason to be concerned about his interaction with the mother prior to separation. The fact that he says he has never been violent and abusive to her may suggest that he needs to acquaint himself with the range of behaviours which constitute family violence. 

15. I am particularly concerned about the allegations about there being cameras within the house.

16. The mother gave some evidence about that. I think she said there was one in the lounge room.  The father conceded that there was one in the bedroom, and went on to say that the mother was able to change her clothes without being captured by the camera. 

17. The father asserted that he installed the cameras because he was worried about intruders entering the home.  He did not address the fact that the house could have been secured with cameras around the perimeter, and there is nothing to suggest that he discussed the installation of the cameras with the mother and sought her agreement to the cameras being installed. 

18. Some of the things the father said in his affidavit suggest that he has committed acts of coercive and controlling family violence, even though he is not prepared to put that label on it. 

19. I cannot make findings about where the truth lies about most of the matters in dispute.  I cannot make findings about the sexual assault that allegedly occurred, about all the other assault allegations or the other wide ranging domestic violence allegations the mother makes. 

20. I cannot make any findings about the impact on the children of living in a home in which this behaviour was occurring – if it did – and how it might affect their capacity to relate to their mother and to female partners when they grow up.

21. I also cannot make findings about the nature of the children’s relationship with the father.  He alleges it is good and strong, and that he was very much involved in their care.

22. Where the truth lies about all of those things I will not know until a report is prepared and there is further investigation.

23. I cannot make findings about issues in dispute and of course one of the primary considerations in section 60CC (2) is the benefit to the children of having a meaningful relationship with both of their parents, and it is always regrettable if the Court has to make orders preventing that from happening, even for a limited period of time, while there is investigation into allegations.

24. However the Court often has to err on the side of caution even if it cannot find that the allegations are true. 

25. I cannot make findings that the father has committed the pervasive acts of family violence alleged by the mother, but I cannot simply ignore the allegations when the mother has put forward sufficiently convincing evidence to cause the father to be charged with a sexual assault, a charge which is due to be heard in the District Court, and when the father has made admissions about the cameras. 

26. If the mother’s allegations are true the children would not themselves necessarily be at direct risk of harm from the father, but they would be subject to extremely poor role modelling in terms of the father’s attitude to women and to their mother in particular, which could have ramifications for the rest of their lives. 

27. I am required to err on the side of caution simply because of that and that means that I am not inclined to make an order for the father to spend time with the children at the moment. 

28. However there is another issue in this case, which was not directly alluded to by the mother’s counsel or the Independent Children's Lawyer, and that is that some of the mother’s material, and indeed some of the father’s material, creates a disturbing picture of obsession and jealousy. 

29. There are the cameras. There is the father’s admission that he went looking for and accessed the naked picture of the mother on her phone.  There is the fact that he suggested marriage to her very close to the date of separation. There is a disturbing possibility that he is obsessive and jealous in relation to the mother. 

30. That leads into the possibility that this application is not about the children at all, and that the mother could be at risk of harm if I made an order for the father to spend time with the children. 

31. I do not accept that simply making an order that the father be restrained from questioning children of 10 and seven about where they are living would be a sufficient protection for the mother. 

32. I am really concerned about this matter. There is an allegation of the violent rape. There is a very disturbing picture created of possible obsession and jealousy which may turn out to be all smoke and mirrors, but at the moment with the father’s admission about the cameras and his own story about taking the mother to a court house and suggesting they get married close to the date of separation, I cannot disregard that possibility. 

33. Making an order for the father to spend time with these children is strongly contraindicated.  It could place the mother at serious risk of harm and that would be a very poor situation for the children. 

34. It could expose the children to extremely poor role modelling and I do not accept that making an order for limited supervised time would remove all of those problems. 

35. The father is going to have to wait. There needs to be some further clarity about what has been going on here and about his attitudes and behaviour, before the court considers that it would be safe to make an order for time. 

36. The boys are 10 and seven; almost 11 and almost eight.  If it turns out that the father has been maligned and that he should not have been deprived of time with them, then that can be turned around at some point in the future.  They are not babies who are going to forget him and not be able to re-form a bond with him.  But at the moment I am not going to make an order for time. 

37. I am going to again make an order for the children to live with the mother.  Given the very serious allegations of family violence, and the fact that I am going to make a no time order, I am going to make an order that the mother have sole parental responsibility for the children, but I am going to couple that with an order that the mother not be permitted to relocate the children from the Region B area without an order of the Court.  That gives her a fairly wide ranging area to move about in so I hope that is not going to cause a problem, but I cannot have a situation where she relocates to City D Queensland or Tasmania.

38. I am going to order that until further order the father shall spend no time and have no communication with the children and I am going to make a section 68B order. I suspect I made one in September, but I will repeat that.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Judge Terry

Associate: 

Date:  23 June 2021