Petts and Petts

[2016] FCCA 3409

FEDERAL CIRCUIT COURT OF AUSTRALIA

PETTS & PETTS [2016] FCCA 3409

Catchwords:
FAMILY LAW – Parenting – finalisation of matter with liberty to the father to apply to reinstate upon finalisation of serious criminal charges against him in respect of which his daughter is the alleged victim.

Applicant: MS PETTS

Respondent: MR PETTS

File Number: ADC 4704 of 2007

Judgment of: Judge Mead

Hearing date: 9 November 2016

Date of Last Submission: 9 November 2016

Delivered at: Adelaide

Delivered on: 9 November 2016

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: N/A

Counsel for the Respondent: In Person

Solicitors for the Respondent:

N/A

Independent Children's Lawyer

Counsel for the Independent Children's Lawyer

Legal Services Commission of South Australia

Ms Fuda

ORDERS

1. That the children X born (omitted) 2004 and Y born (omitted) 2004 live with the mother.

2. That the mother have the sole parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2004.

3. That the father be restrained and an injunction is hereby granted restraining him from communicating with or approaching the said children X born (omitted) 2004 and Y born (omitted) 2004 or from approaching within 200 metres of any place where the said children may reside or attend school.

4. That all extant Applications be otherwise dismissed with liberty to the applicant father to apply to reinstate these proceedings upon the finalisation of the pending criminal proceedings against him.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4704 of 2007

MS PETTS

Applicant

And

MR PETTS

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the court today again and, of course, I do not need to go over the long and tortured history that the matter has had.  But suffice it to say that when it was getting to the stage of a trial in May of this year, information came to hand and has subsequently been confirmed it was likely that the father was going to face serious criminal charges with respect to alleged sexual abuse of the parties’ daughter Y, born on (omitted) 2004.  It has since come to pass that the father has been charged with what I understand from material filed to be certainly serious offences.  The absolute parameters of the charges are not necessary for my purposes here.

2. X and Y are, of course, twins.  They were born in (omitted) 2004.  They are now nearly 13 years old and about to commence at high school.  The criminal charges have taken a fairly slow process in the Adelaide Magistrates Court, and I understand from material filed by the Independent Children's Lawyer in an affidavit filed 24 October 2016 that when the matter was before that Court on the occasion before 3 November the father dismissed his then legal representation.  The matter was adjourned to 3 November 2016 and it appears now from information given to the Court by the Independent Children’s Lawyer today on instructions from Mr Seymour that the matter is next before the criminal courts on 15 December 2016 with the father having now instructed, apparently, counsel from New South Wales.  It would appear from everything that Mr Petts has said to me that the matter is strongly contested. The information from the DPP is that there is not likely to be a trial until at least the end of 2017 in the event that the matter proceeds.

3. I have raised on several occasions before today with Mr Petts and accepting absolutely what Mr Petts says about the issue, that the material before the Court from the experts is not tested.  Nevertheless, there is nothing in terms of any objective evidence untested or otherwise before the Court that would suggest that at this stage X wishes to have any contact with or communication with his father and of course Y is the alleged victim in the criminal proceedings.  It could not possibly be the case that there would be any time spent with or communication between Mr Petts and Y.  Mr Petts says that he wants to be able to file an application to have supervised time with X, but the reality is that X and Y are twins.  The charges being faced by the father are serious criminal charges.  He intends, I understand, to plead not guilty, and of course the outcome of those proceedings is a matter for the criminal court.  The Independent Children's Lawyer has pressed now for some time to have this matter finalised in circumstances where it is entirely open to Mr Petts, once the criminal proceedings are complete, to reinstate or to apply to reinstate these proceedings.  Ms Petts is particularly concerned about the impact of the ongoing litigation on the children when they are about to commence their high school education.  Y is likely to face very challenging circumstances indeed in terms of the criminal proceedings.  In my view it is not possible for this Court to proceed with this matter until those serious criminal proceedings are dealt with.

4. In finalising these proceedings today I will be giving liberty to Mr Petts to reinstate them upon the completion of the criminal proceedings.  That really is only reflective of the reality of what would happen in any event because this matter cannot proceed in this Court while those proceedings are live.  I am not dismissing his application.  I am simply finalising the matter with liberty to him to apply to reinstate the proceedings.  I am satisfied that such a course of action is in the best interests of the children.  I understand the frustration that Mr Petts may feel, but I cannot proceed to hear and determine this matter whilst there are such serious criminal proceedings relating to one of the children before another court, and I have no control over the length of time that that may take.

5. The Independent Children's Lawyer seeks orders restraining the father from communicating with or approaching the mother or the children, and of course, that is only in accordance with what would be expected in light of the seriousness of the charges before the criminal courts.

6. The father has raised why X is included in these orders.  X is of course the brother of the alleged victim.  It may or may not be that he is involved in the criminal proceedings in some way as well in terms of possibly a witness, and in those circumstances it could not be that the Court could condone contact between that child and the father until those matters are finalised.  In terms of Y, I am really only repeating what is a current bail condition of the father.  The mother seeks sole parental responsibility and in circumstances where the father is restrained from any contact with the children whatsoever, and where the children are about to commence their secondary schooling, I consider that such an order is in the best interests of the children.  There is no communication between the parents and it may well be that decisions need to be made.

7. The mother has passports and it may well be that there are educational trips and the like that need to be arranged.  That has happened in the past.  I think the children travelled to (country omitted), by memory, for school, so there should not be any impediment to that.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 10 January 2017