Obana & Pedroni (No 2)

[2021] FCCA 658

FEDERAL CIRCUIT COURT OF AUSTRALIA

Obana & Pedroni (No 2) [2021] FCCA 658

File number:	DNC 337 of 2019
Judgment of:	JUDGE YOUNG
Date of judgment:	11 March 2021
Catchwords:	FAMILY LAW – parenting – concerning two children who are 10 and 6 years old – where the mother is seeking a recovery order – whether the children are at an unacceptable risk of harm – where the father alleges the mother is engaging in prostitution, has a gambling addiction and allows unknown men into her home – where the father has told the children their mother is engaging in prostitution – court satisfied the father is deliberately undermining the children’s relationship with the mother – court satisfied there is an unacceptable risk of harm to the children remaining in the father’s care – recovery order made.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	27
Date of last submission:	11 March 2021
Date of hearing:	11 March 2021
Place:	Darwin
Solicitor for the Respondent:	Ms Gray of Grays Legal NT
Solicitor for the Applicant:	Ms D of Story & Associates

ORDERS

DNC 337 of 2019

BETWEEN:

MS OBANA

Applicant

AND:

MR PEDRONI

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	11 MARCH 2021

THE COURT ORDERS THAT:

1.That the children X born 2014 and Y born 2010 live with the mother.

2.That the orders made 13 August 2019 be suspended.

3.That the father deliver the children X born 2014 and Y born 2010 to the mother at the City B Police Station, C Street, City B at 7.30pm on Saturday 13 March 2021 failing which a Recovery Order do issue.

4.That both parties be restrained and an injunction be granted restraining the parties from physically disciplining the children.

5.That both parties undertake and complete a parenting program with a provider in City B as follows:

(a)Each parent, within seven (7) days of the date of these Orders is to contact the program provider and enrol in the program;

(b)The parents will attend all sessions of the course and comply with all reasonable directions of the program providers;

(c)At the conclusion of the program each parent provide the Court and the other parent with a certified copy of the certificate of completion.

6.That the proceedings be adjourned to 27 April 2021 at 10.30am for further consideration.

7.That the question of the costs of the airfares of the children and costs otherwise be reserved.

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 under the pseudonym Obana & Pedroni (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. These reasons for judgment were delivered orally. They 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. This is a parenting matter concerning Y, who is ten years old and X, who is six years old.  I will briefly set out the background to this matter. It appears the parties separated in about 2018.  There were orders made by consent between the parties in August 2019 which provided for the children to spend time with the father over school holidays and at various other times. The father had, at this time, relocated to City B.

3. In September 2020, it appears, the father moved back to Darwin.  The purpose of this move is unclear. However, one of the inferences that I believe is open on the material is that the father moved back to Darwin with a desire to re-establish his relationship with the mother. The father has said in the material that he and the mother, at least on an occasional basis, resumed a sexual relationship.  He says that he was trying to persuade the mother to move to City B with the children. It appears there is other material to support this claim. 

4. It appears that the children were spending substantial and significant time with the father from approximately September 2020 until the father withheld the children from the mother and returned to City B on about 12 January 2021. The affidavit material before me does not deal with this subject in any detail. I do note, however, there is a reference in the section 69ZW material that the children were spending up to three days or three nights a week with the father between approximately September 2020 and 12 January 2021.

5. When the father withheld the children in January 2021 the mother applied to the Court for a recovery order. The father responded with affidavit material alleging that the mother was working as a prostitute. The father annexed a number of text messages to an affidavit.  The text messages appear to be between the mother and a number of men.  It is unclear exactly how many different men.  The messages, perhaps with one exception, are not indicative of the mother working as a prostitute.  They are equally consistent with the mother having relationships with those men.

6. In one of the messages the person speaking to her, presumably a man, asks her if she has any tablets available.  It is clear from the ensuing conversation that the tablets being referred to are either Viagra or Cialis tablets. The mother offers to sell those tablets to the man on an individual basis for $25.  He responds asking if he can sample the tablets by having sex with her and the mother replies in the affirmative.  Beyond that material, there is nothing before me to suggest that the mother is actually employed as a prostitute. 

7. The father alleges that the mother is a gambler but there is no real evidence of that. There is some evidence that the mother had spent some time at the casino but the extent of that evidence is one text message which suggests that she had been at the casino at least on one occasion. 

8. The material about each of those allegations, while it may perhaps raise some degree of suspicion, is certainly well short of anything that would establish the father’s allegations, namely, that the mother is working as a prostitute, secondly, that she is a gambler, and thirdly, that the children are not safe in her care because unknown men are coming to her house.

9. In relation to the last point, which was dealt with in submissions and not raised elsewhere, I asked Ms Gray, counsel for the father, whether there was any evidence of the children being present when men came to the house.  First of all, there is no real evidence of men staying overnight with the mother at the mother’s home. However, there is clearly evidence of the mother inviting, at different times, some men into the home. Exactly how many men is unclear, the text messages appear to include one or two different men.  There is no evidence that they stayed overnight.  While Ms Gray refers to one man in particular, the text message sent by the man the next morning suggests that he did not stay overnight. In considering all the material there is no evidence that the men that the mother has invited to her home have in fact stayed overnight. 

10. It is clear that during the period of these text messages, being from early December 2020 to early January 2021, that the father was in Darwin and the children were spending significant time with him, including overnight time.  There is no evidence before me about where the children were at any of these times.  It was open to the father to address that problem but he has not and nor has the mother.

11. In a subsequent Child Inclusive Conference Report, the children told the family consultant that they were not aware of any men staying overnight.  Indeed, when that was raised by X, it was apparent that X was likely repeating something her father had told her prior to the conference. 

12. It should also be noted that in January 2021 there were reports to child welfare authorities detailing similar allegations – namely, that the mother was working as a prostitute, the mother was a gambler, and as such the children were not safe in the mother’s care.  Territory Families were not satisfied that the allegations had reached the necessary threshold to investigate. I infer that those complaints were likely made by the father, or on his behalf. 

13. I should also note that a complaint was made by the mother to Territory Families at a similar time which essentially related to an allegation of emotional abuse. This was investigated by Territory Families. The Territory Families material reflects a very significant concern by the child welfare authorities that the children were being exposed to emotional harm, particularly Y, as a result of the father telling him that the mother was working as a prostitute.

14. A Territory Families file note made on 1 February 2021, which is at page 61 of the annexures to Ms D’s affidavit filed on 5 March 2021 states:

    The current report relates to the ongoing conflict between the mother and the father related to who will care for the children and when and concerns from the mother that the father is using coercive control to ensure that the children do not have a positive relationship with their mother.  There is a pattern of emotional harm occurring for the children who are caught up in the acrimonious separation of the parents.  There is a pattern of reports in which both the mother and the father make allegations about each other and their ability to provide an appropriate environment for the children.

15. I interpolate here that one of the allegations raised by the mother is that the father drinks alcohol to excess, which was a point raised in the Child-Inclusive Memorandum.  To resume:

    There are concerns that the children are being emotionally blackmailed by their father who wishes to reconcile with their mother.  There are also concerns about the mother’s “chronic gambling problem” and the children waking in the night to find their mother had left the home.

16. I interpolate here that those appear to be allegations of the father, not findings substantiated.  The file note continues:

    DANGER STATEMENT

    TF [Territory Families] are worried that the children are becoming caught up in the conflict between the parents related to their separation.  Both the mother and the father are making allegations about the other with the children being asked by the parents to take sides.  This will result in emotional harm for the children who should be able to maintain a positive relationship with both of their parents rather than be used by their parents to get back at each other.

    TF are concerned that it is alleged the children are being told their mother is a prostitute and that their father is an abusive drinker.  These concepts are difficult for young children to understand and impact on their ability to develop trusting relationships with each of their parents. 

    TF are concerned that Y in particular is showing signs of emotional harm in that he won’t speak to his mother any more having been told she is prostituting with other men and that the school has noted a change in Y’s behaviour and he is becoming unsettled at school which he was not prior to his father returning to live in NT [Northern Territory].

17. In my view, those concerns illustrated above are amply borne out by the material before me, particularly in the Child Inclusive Conference Memorandum. 

18. It should also be noted that the Territory Families concern about emotional harm to the children was, apparently, not pursued once the father took the children to Queensland.  However, there is an instance of substantiated emotional harm that occurred on 1 May 2019 which concerned the father and the paternal grandmother attending at the children’s school. It is unclear exactly what happened but there was a scene and Territory Families were satisfied that there was emotional abuse that concerned the father and the paternal grandmother. There were no concerns about the mother. 

19. The factual background is that there is a long history of acrimonious dispute between the parties, perhaps at least since 2019 with what appears to be one substantiation of emotional abuse of the children by the father and paternal grandmother.  It should also be noted that the mother has a domestic violence restraining order with herself as the protected person and the paternal grandmother as the person who is subject to restraint. 

20. The more recent allegations of the mother’s gambling and prostitution are not well supported in the evidence, although, there might well be suspicions about some of the mother’s conduct.  The real danger to these children appears to be, however, from another direction.  It appears the most pressing risk of harm to these children is from the father deliberately undermining the relationship between the children and the mother. There is abundant evidence of that.

21. There is the evidence in the Territory Families material I have already referred to.  In my view, that concern raised by Territory Families is reinforced by the conclusions of the observations of the family consultant who produced a Child Inclusive Conference Memorandum. The report is reasonably detailed.  In paragraph 6, the father is recorded as acknowledging that he had told Y his mother is a prostitute.  The father also told the family consultant that he was of the view that this had no impact on the children.  At paragraph 7 the father was unable to articulate the impact of withholding the children.  The family consultant noted that his focus appeared to be on his view of the mother. At paragraph 12 he acknowledged calling her “a slut, a cunt, a whore, and a prostitute” in front of the children.  He states that he was provoked. 

22. In relation to alcohol, the father told the family consultant that he drank six beers a few nights a week.  I consider that there are some concerns about the father’s relationship with alcohol but that is not a matter I need to pursue at the moment. 

23. At paragraph 23 Y is recorded as being unsure about whether he missed his mother.  He told the family consultant that she was not a good mother. He went on to say that his mother loved him, looked after he and his sister and cooked and cleaned.  However, he went on to say “she is a prostitute” and his father had told him that his mother is a “whore”.  When Y was asked if he had seen his mother with men, he said he had not.  He said that she had a man friend, singular, who had come round to visit, but they did not go to the bedroom, they just sat and talked. Y said it was his father who told him that she is a prostitute and that maybe those men were paying his mother for sex. It is noted that when Y was asked by the family consultant how he felt when his father told him that his mother was a prostitute the child began to cry.

24. Y told the family consultant, at paragraph 26, that he had seen his parents fight. Y said he had seen his mother call his father bad names, and he had seen his father hit his mother once. He indicated he was scared when that happened.  At paragraph 29, it is said that Y became distressed again when he was asked if he had anything else to say.  Y said he could not remember what else his father told him to say except that he should stay with his father because his father told him that he keeps him safe and that his mother is a prostitute.

25. In relation to X, it is also clear that her father had told her that her mother was “doing things with men for money”. X said she did not know what that meant. She said that her father used swear words to talk about her mother and she did not like it.  She was confused because she had never seen her mother do anything with men except talk to her friends.  She told the family consultant that her father said that her mother dumped her, was doing things with men for money, and he was not letting her go back to her mother’s care because her mother did not really care about them.

26. The issues raised in that report are very grave and satisfy me that there is an unacceptable risk of harm in the children remaining in the father’s care.  The risk is to their emotional wellbeing through being told, completely unnecessarily, inappropriately, and without regard to the welfare of the children, that their mother is a prostitute and does not care about them.  It is difficult to imagine less child-focused conduct by a parent. 

27. I propose to make an order that the children be returned to their mother forthwith.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       1 April 2021