Raikes and Raikes

[2020] FCCA 787

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAIKES & RAIKES [2020] FCCA 787

Catchwords:
FAMILY LAW – Parenting – child aged 7 – extensive history of family violence - father recently sentenced to four years imprisonment for sexually assaulting the mother – where the father has taken no part in the proceedings since his imprisonment – mother to have sole parental responsibility and the child to live with the mother and spend no time with and have no communication with the father.

Legislation:

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

Applicant: MS RAIKES

Respondent: MR RAIKES

File Number: NCC 2229 of 2018

Judgment of: Judge Terry

Hearing date: 30 March 2020

Date of Last Submission: 30 March 2020

Delivered at: Newcastle

Delivered on: 30 March 2020

REPRESENTATION

Solicitors for the Applicant: Harpers Legal

The Respondent: No appearance

Solicitors for the Independent Children’s Lawyer: Foat Roberts Lawyers

ORDERS

1. Leave is granted to the mother to proceed by way of undefended hearing today.

2. The mother have sole parental responsibility for the child X born in 2012 (‘the child’).

3. The child live with the mother.

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

5. Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of the child, the father is restrained from:

   (a)approaching and removing X from her school, any carer, or extra-curricular activities;

   (b)approaching X’s home; and

   (c)contacting X including by social media.

6. Pursuant to section 68B of the Family Law Act 1975 (Cth) and for the personal protection of X, the mother is restrained from facilitating any contact between X and her father, including phone calls, by way of social media, face to face, or in writing.

7. The mother be at liberty to obtain passports for the child X and travel internationally for holidays as provided by section 65Y(2)(b) of the Family Law Act 1975 (Cth) and section 11(1)(b) of the Australian Passports Act 2005 notwithstanding the absence of the father’s consent.

8. The solicitor for the mother shall obtain the father’s MIN number and arrange for a copy of these orders to be posted to the father at the correctional facilities where he currently is.

NOTATION:

(A)These orders are made in the absence of the father and the father may apply at some future time for orders which would permit him to spend time with the child. However unless the father files an affidavit addressing the issue of his attitude to his offending and his insight into the impact of his offending on his daughter and providing sufficient information as to his current circumstances to assure the Court that the child will not be at risk of physical or psychological harm if she spends time with the father, then it is very unlikely that the Court will allow the matter to proceed through the Court system and the father’s application may be summarily dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2229 of 2018

MS RAIKES

Applicant

And

MR RAIKES

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. This matter involves parenting arrangements for X who was born in 2012 and who is seven but is about to turn eight years old.

3. The parties commenced a relationship a couple of years before X’s birth, married in 2016 and separated in February 2018.

4. Very shortly after separation the father was arrested and charged with three counts of sexual intercourse without consent. The mother had finally, after having endured a good deal of sexual assault according to her affidavit, gone to the police after a particular incident and the father was charged.

5. The father was initially held in custody but he was granted bail in 2018. At about the time he was granted bail the mother commenced proceedings in this Court seeking parenting orders.

6. When the matter came before a Judge an order was made by consent for X to spend time with the father on alternate weekends. The time was to take place at the home of the paternal grandmother with the paternal grandmother substantially present.

7. I can understand the Independent Children’s Lawyer’s concern about the mother having consented to that order because she gave evidence about having endured some significant family violence during her relationship with the father.

8. In or about 2014 the father was charged with assaulting the mother and was sentenced to a term of imprisonment and an ADVO was made for the mother’s protection.  

9. The parties later reconciled and there was subsequently an incident where X was hit by an iPad which left the father’s hand during an argument he was having with the mother.

10. Notwithstanding that the parties married.

11. The mother said that the violence continued and she gave some examples which included the father ripping the windscreen wipers off the car.

12. The mother alleged that in 2017 the father began sexually assaulting her. She said that it thereafter happened extensively and that during an incident in 2018 the father not only raped her but slapped and choked her.  

13. I am satisfied that the mother endured some quite significant abuse during the marriage and not only on the occasion which led to the father being charged with the offences for which he has now been convicted.  

14. The mother also gave evidence in her affidavit about the father’s alcohol use and its connection with his violent behaviour.

15. Nevertheless shortly after the significant assaults which led to the father being charged she agreed to an order that X spend time with the father supervised by the paternal grandmother. One has to wonder in retrospect what sort of confusing message that must have sent to the child.

16. I accept that the mother may well have felt overborne by members of the paternal family who told her that the child had to spend time with the father but she also remained in the relationship for a very long time and although she is not to blame for the violence inflicted on her, I am not suggesting that for a moment, she would be well advised to engage in some domestic violence counselling so that she gains confidence in herself, understands that nobody deserves to be treated like this and is able to protect herself and X from any risk of her entering into a similar relationship in the future.

17. The father continued to spend time with X until just before his criminal matter was dealt with in 2019. This court made orders suspending his time with the child from that date.

18. The father was sentenced in 2020. I am told that he pleaded guilty to all three charges. He was sentenced to four and a half years imprisonment with a two-year non-parole period. He was at liberty until he was sentenced so the earliest the father can hope to be released is 2022.

X’s best interests

1. The mother seeks orders that the child live with her and spend no time with the father. It is also proposed that the court make a s. 68B order which would not only prevent the father coming into contact with X but restrain the mother from permitting it, and the latter point was strongly pressed by the Independent Children’s Lawyer.

2. It is entirely appropriate that I make the s.68B order as sought. X has been exposed to family violence in the parents’ home and on one occasion she suffered an injury when she was struck by a flying iPad. She needs to be protected from physical harm and there is nothing in the material to suggest that the father is capable of protecting her from that harm. He continued to offend right up to the date he was arrested.

3. X would be at risk of harm if she spent time with the father or was asked to communicate with him in circumstances where the father’s insight into his offending and the risk of him offending again in the future have not been properly addressed. Requiring the child to communicate with or spend time with the father while he is in jail would be confusing for the child and could cause her serious psychological harm. She would have to be saying to herself, my father has assaulted my mother, he is in prison for assaulting her, I love my mother and yet I am still being required to visit my father and speak to him on the telephone. It is likely to be incredibly confusing and difficult for the child.

4. The mother needs to be strong and stand up to any pressure from the paternal family. She needs to role model to the child that she is a confident individual who will not allow herself to be treated like this, because unless she does there is a risk that the child might fall into unfortunate relationships herself when she gets older.

5. It is entirely appropriate that an order be made that the child spend no time with and have no communication with the father and that will include her being taken to visit him in jail or speaking to him on the telephone while he is in jail.

6. X might well need some counselling so that she can understand that the reason she is not seeing her father is not because she has done anything wrong but because her father has. She needs that sort of support and it is out there for her.

7. The mother also seeks an order that she be permitted to obtain a passport and travel internationally with the child. The father is not on notice of that but it is the kind of order that I like to make at this stage of proceedings because Australians like to travel when they are able to do so and it means that people do not have to come back to Court seeking passport orders, clogging up the Court system and putting the parties to unnecessary trouble and expense and there is nothing to suggest the mother is likely to want to relocate overseas.

8. I am going to make an order that the mother have sole parental responsibility for X. The presumption is rebutted. The father is in jail and that is the only appropriate order that I could make.

9. I am also going to order that X lives with the mother. The mother loves her daughter dearly. She went to the police and the father has now been appropriately dealt with for his offending. She is a good parent for X and it is appropriate that I make an order that X live with her.

10. I am also going to make the order for no time and no communication and the s. 68B order which is for the personal protection of X, and in the form it is drafted it not only restrains the father from approaching the child but the mother from permitting the child to have contact with the father and the mother needs to stay really strong on that.

11. I am not going to make a change of surname order today. Change of surname is a big issue for people. The father has not been given notice of that application. The mother’s amended initiating application was posed to his street address very recently and he is in prison so he will not have received it.  

12. The information the mother gives in her affidavit about the change of surname is very slight. She said that she intended to change her surname when she got divorced which has not yet occurred and that she would like the child’s surname to be the same as hers.

13. I am not going to make the order and if the mother wants an order about that she will have to apply for it in the future. I do just observe though that quite a lot of people out there in the community go about calling their children by a different name to the name on their birth certificate. Schools are quite tolerant about that. They will put the name X on things like the child’s report but if the child wants to go about in the community calling herself X and the mother goes about calling her that and enrolling her in extracurricular activities as that it is unlikely that anyone will do anything about it.  

14. There are some things the mother can do which do not require a Court order but if the mother wants a Court order she will have to apply for one, give the father proper notice and file a more detailed affidavit in support.

15. I am going to put a notation on the orders to the effect that these orders have made in the father’s absence and the father may apply at some time in the future for orders which would permit him to spend time with the child. However unless he files an affidavit addressing his attitude to his offending and his insight into the impact on his daughter of his offending and provides sufficient information about his current circumstances to assure the Court that X will not be at risk of physical or psychological harm if she spends time with him then it is very unlikely that the Court will allow the matter to proceed through the Court system and the father’s application may be summarily dismissed.

16. I am going to make an order that the mother’s solicitor obtain the father’s MIN and arrange for a copy of the orders to be posted to him at the correctional services facility where he currently is.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date:             14 April 2020