PAULLIN & PAULLIN

Case •

[2019] FamCA 834

•

13 November 2019

FAMILY COURT OF AUSTRALIA

PAULLIN & PAULLIN [2019] FamCA 834

FAMILY LAW – CHILDREN – Undefended hearing – With whom the children shall live and spend time – Parental responsibility – Best interests – Where the matter is heard in the Magellan protocol – Where the children currently live with the mother and spend no time nor communicate with the father – Where the father is incarcerated for sexual assault on the younger child – Where both children require protection from the father – Where it is not safe for the children to have a relationship with the father – Ordered the mother have sole parental responsibility – Ordered the children spend no time nor communicate with the father – Ordered restraints on the father for the personal protection of the children and the mother - Ordered pursuant to section 68C arrest without warrant in the event of breach of orders for personal protection of the children and the mother.
Family Law Act 1975 (Cth), ss 60CC, 64B, 68B, 68C
APPLICANT: Ms Paullin
RESPONDENT: Mr Paullin
INDEPENDENT CHILDREN’S LAWYER: Todd Street Lawyer
FILE NUMBER: NCC 3460 of 2018
DATE DELIVERED: 13 November 2019
PLACE DELIVERED: Newcastle
PLACE HEARD: Newcastle
JUDGMENT OF: Cleary J
HEARING DATE: 7 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable
SOLICITOR FOR THE APPLICANT: Everingham Solomons Solicitors
COUNSEL FOR THE RESPONDENT: Not Applicable
SOLICITOR FOR THE RESPONDENT: Not Applicable
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Todd Street Lawyers

Orders

Parenting

  1. That the mother have sole parental responsibility for making all decisions, both long term and day to day, for X born … 2003 and Y born … 2006 (“the children”).

  2. That the children live with the mother.

  3. That the children spend no time with the father.

  4. That the children have no communication with the father.

  5. Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children and MS PAULLIN born … 1971 (“the mother”), that MR PAULLIN born … 1971 (“the father”) be restrained from:

    (a)Communicating in person or by electronic with the children and/or the mother or attempting to convey a message to the children and/or the mother via any third person;

    (b)Coming within 10,000 (ten thousand) metres (ten kilometres) of the boundary of any:

    i.School or extra-curricular activity attended by X and/or Y or either of them, including B Town School;

    ii.Place of residence of the children and/or the mother from time to time, including C Street, B Town in the State of New South Wales; and

    iii.Place that the mother works from time to time.

  6. Pursuant to s 68C of the Family Law Act 1975 (Cth), in the event that a police officer of any Australian State, Territorial or Federal police service believes, on reasonable grounds, that the father has breached any or all of the injunctions listed in Order 5 above by:

    (a)Causing or threatening to cause bodily harm to any or all of the children and/or the mother; or

    (b)Harassing, molesting or stalking the children and/or the mother;

    the police officer may arrest the father without warrant.

It is further ordered that

  1. The application for costs of the Independent Children’s Lawyer is dismissed.

  2. This matter is adjourned to 9.30 am on Wednesday 11 December 2019 for directions in relation to the parties’ respective applications for property.

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 Paullin & Paullin 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: NCC 3460 of 2018

Ms Paullin

Applicant

And

Mr Paullin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

  1. This is an application, by Ms Paullin (“the mother”) for final parenting orders in respect of two children, a boy (“X”) aged 16 years and a girl (“Y”) aged 13 years.

  2. The father of the children has not filed any documents. He has been in gaol for more than two years. The father is aware of the proceedings and has been served with the documents of the mother.[1]

    [1] Affidavit of the mother filed 16/10/2019, par 5 and Annexure 1

  3. He has recently been convicted of serious sexual assaults on the parties’ younger child.

  4. The parties were married in 2002 and lived together for fifteen years. They separated in 2017, on the day that the mother was told by the children of sexual assaults on them by the father.

The Parties

The Applicant – Ms Paullin

  1. The applicant mother is currently 48 years of age. She is employed part-time as an administrative assistant and is a homemaker. The mother lives in B Town, in New South Wales.

  2. The mother’s household consists of herself and the two children.

  3. The mother has the support of the maternal grandparents who live locally.

The Respondent – Mr Paullin

  1. The respondent father is currently 48 years of age.

  2. The father is incarcerated, probably in the D Correctional Centre in E Town, New South Wales.

  3. He was due to be sentenced on the day this matter came before me.

The Trial - 7 November 2019

  1. The undefended trial was listed for two hours and concluded well within that time.

  2. The mother was represented by her solicitor.

  3. The Independent Children’s Lawyer (“ICL”) represented the interests of the children.

  4. There was no appearance by or on behalf of the father. The father did not apply to appear at Court by telephone or videolink.

The issues

  1. The issue is whether the orders proposed by the mother and the ICL promote the best interests of the children with particular reference to their safety.

The Applications

Parenting

  1. The mother proposes sole parental responsibility for both children, for the children to live with her and spend no time nor communicate with the father. The mother also seeks restraints on the father from communicating with the children and coming within 10 kilometres of the children’s school and residence, and the mother’s workplace.

  2. The ICL supports the position of the mother on parenting arrangements and does not oppose restraining orders being made.

Brief History of Relevant Events

  1. On the evening of … August 2017, Y, then aged 11 years, disclosed to the mother “Mum, Daddy’s been raping me in the shed” and that the father had been sexually assaulting her since she was in pre-school. X also disclosed to the mother that the father had sexually assaulted him.

  2. The mother acted decisively; she called the police who came to the family home that night and statements were taken. The mother then left the home with the children before the father returned from work.

  3. On … August 2017, the Department of Communities and Justice interviewed Y and substantiated the sexual abuse allegations. Future risk for the children was assessed to be low due to the mother having acted protectively.[2]

    [2] Magellan Report dated 16/01/2019

  4. On the same day the father was arrested at his workplace, charged and incarcerated. He has remained in custody since that date.

  5. Thereafter the mother and children returned to live in the family home and have remained living there.

  6. The father was charged with, and ultimately convicted of, aggravated sexual assault, indecent assault and one count of aggravated act of indecency against Y.

  7. The father was not charged in relation to X. The mother explains X has a learning delay and struggles to communicate how he feels. X disclosed sexual harm, but not the details nor the nature and frequency to the police.

  8. On 7 February 2018, final Apprehended Domestic Violence Orders (“ADVO”) for a period of five years, were put in place to protect each of the children from the father.

Application to this Court

  1. On 6 November 2018, the mother filed an Application for parenting and property orders and a Notice of Risk alleging the father perpetrated sexual abuse on both children and the children were at risk of harm in his care.

  2. On 12 December 2018 the matter was placed in the Magellan protocol. The trial of the father was still pending.

  3. On 8 February 2019 orders were made restraining the father from taking steps to sever the joint tenancy of himself and the mother over the family home. The mother made this application after learning that a charge had been placed on the  title to the home with respect to security for legal costs of criminal proceedings

  4. In August 2019 the criminal trial by jury proceeded. The mother and Y both gave evidence. The father was found guilty.

  5. On 2 September 2019 orders were made in this Court for the application of the mother for parenting orders to proceed undefended. The orders were sent to the father by the Court and by the solicitors for the mother.

  6. The father was due to be sentenced in November 2019 at F Town District Court.

Evidence

  1. The documents relied on in respect of the application were as follows: 

    The Applicant Mother

    (a)Amended Initiating Application filed 16/10/2019;

    (b)Notice of Risk filed 6/11/2018;

    (c)Affidavit of Ms Paullin filed 16/10/2019;

    (d)Affidavit of Ms Paullin filed 6/11/2018;

    Reports

    (e)Magellan Report dated 16/01/2019.

The Law

  1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

    a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

    b)Children are protected from physical and psychological harm;

    c)Children receive adequate and proper parenting to help them achieve their full potential; and

    d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

  2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

  3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(1) of the Act). The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question (s 61DA(2) and (4) of the Act).

  4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

  5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

  1. The relationship of the father with the children was one of secretive abuse and exploitation. If ever it was a meaningful relationship in a positive sense, it is certainly no longer so.

  2. There is very clearly an unacceptable risk of harm to the children in being brought back in contact with the father.

  3. The father should not retain any parental responsibility for the children.

  4. The mother since August 2017 has been the sole carer and decision maker for the children and she is willing and able to continue in that way.

  5. There is a need to protect the children from further physical and psychological harm. It is apparent from the two letters sent by the father to the mother in October 2018 that he accepted no responsibility for his own criminal conduct. To the contrary, the father blamed the mother and child for his situation:

    I don’t think I can forgive you and Y for what you have done.[3]

    And, with a galactic sense of entitlement he directed the mother to

    … get the ball rolling. I would like to be divorced by the time I go to trial.[4]

Additional Considerations

[3] Affidavit of the mother filed 6/11/2018,  Annexure 4

[4] Affidavit of the mother filed 6/11/2018, Annexure 4

Views

  1. The ICL travelled to B Town and met with the two teenage children. Both were clear to express the view to him that they did not want to see or communicate with the father. They were settled in the household with their mother and had a good relationship with her and each other.

  2. In my view, given the criminal conduct of the father, the reactions of the children are healthy and self-protective. At 16 and 13 years, and in these circumstances their views are definitive.

Financial Support

  1. The mother has the sole financial responsibility for the children. She is working part-time to support them. It is unlikely that she will receive child support from the father in the short term future, or perhaps at all.

  2. There is an application for property settlement still to be determined.

Family Violence and Protective Orders

  1. There is a Final ADVO [dated 7 February 2018] in place for five years for the protection of X and implicitly the mother. It expires in February 2023 by which time X will be 19 years.

  2. There is a Final ADVO [dated 7 February 2018] in place for the protection of Y and implicitly the mother. It expires in February 2023, by which time Y will be 16 years, still a child.

  3. The two State orders restrain the father in various ways including from going within 10 kilometres of B Town.

  4. The application of the mother for protective restraints under s 68B and s 68C of the Act are appropriate. The orders sought will provide a range of additional protections:

  5. First, the protection of Y until she is 18 years.

  6. The Commonwealth orders extend the restraints to wherever the mother and children live in Australia.

  7. Further, they will explicitly restrain the father from approaching, contacting and attempting to communicate with the mother, as well as the children. The State orders cover “anyone with whom (a protected person) has a domestic relationship with”.

  8. For the benefit of the children, the father will be restrained from leaving telephone messages and sending letters to the mother. The mother is the single most important source of emotional and financial support for the children. Such conduct by the father could undermine the capacity of the mother to care for the children.

  9. In a letter to the mother the father made this statement, “If the Courts and Family Courts let me see my kids I want to have them half and half”.[5] It is a revelation of the insightlessness of the father as to the impact on the children and the mother of his criminal offending. His comments raise the spectre of the father feeling entitled to re-enter their lives.

    [5] Affidavit of the mother filed 6/11/2018, Annexure 5

  10. Finally because the order under s 68B of the Act is expressed to be for the personal protection of the children and the mother, the power of arrest on reasonable grounds without warrant under s 68C of the Act, will be triggered by a breach.

Conclusion

  1. The orders sought by the mother and supported by the ICL are a confirmation of the present arrangements with additional protection for the children and their mother, wherever in Australia they live.

  2. Orders are made accordingly.

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 13 November 2019.

Associate: 

Date: 13 November 2019 


Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Injunction

  • Jurisdiction

  • Remedies

  • Standing

  • Procedural Fairness

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