Rainford and Rainford

[2017] FamCA 505

FAMILY COURT OF AUSTRALIA

RAINFORD & RAINFORD [2017] FamCA 505

FAMILY LAW – CHILDREN – Sole parental responsibility - With whom a child lives – With whom a child communicates – no contact
FAMILY LAW – INJUNCTION – protection of the child

Family Law Act 1975 (Cth) s 68C

APPLICANT: Ms Rainford

RESPONDENT: Mr Rainford

INDEPENDENT CHILDREN’S LAWYER: Acorn Lawyers

FILE NUMBER: WOC 1187 of 2012

DATE DELIVERED: 10 July 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 10 July 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Mullard

SOLICITOR FOR THE RESPONDENT: Has discontinued and did not appear

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Williamson

Orders

1. That all previous Court orders are discharged.

2. That the mother have sole parental responsibility for the child, B, born … 2005.

3. That the child live with the mother.

4. That any time the child spends with or communicates with the father is at the sole discretion of the mother.

5. The father, other than with the written consent of the mother, is otherwise restrained by injunction pursuant to s 68B of the Family Law Act 1975 from:

   5.1 attempting to contact the child by any means whatsoever, including through a third-party;

   5.2approaching or entering any place where the child might reside from time to time;

   5.3 approaching or coming within one hundred metres of any school or before or after school day care centre which the child might attend or at which she is enrolled.

6. That pursuant to s 68C of the Family Law Act 1975 if a police officer believes on reasonable grounds that the father against whom the injunction is directed in order (5) has breached the injunction by causing or threatening to cause bodily harm to the child or harassing, molesting or stalking the child that police officer may arrest the father without a warrant.

7. That Orders (5) and (6) are orders made for the personal protection of B.

IT IS NOTED

Powers of arrest

(1)If:

(a) an injunction is in force under section 68B for the personal protection of a person (the protected person ); and

(b)    a police officer believes, on reasonable grounds, that the person (the respondent ) against whom the injunction is directed has breached the injunction by:

(i)causing, or threatening to cause, bodily harm to the protected person; or

(ii)harassing, molesting or stalking that person;

the police officer may arrest the respondent without warrant.

IT IS FURTHER ORDERED

1. That these orders finalise the matter.

2. I discharge the Independent Children’s Lawyer in relation to these proceedings effective 28 days from today’s date.

3. The Independent Children’s Lawyer will consult with the solicitor for the mother as to the desirability of him explaining to the child the orders.  This notation in no way compels the Independent Children’s Lawyer to do so.

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 Rainford & Rainford 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 CANBERRA

FILE NUMBER: WOC 1187 of 2012

Ms Rainford

Applicant

And

Mr Rainford

Respondent

REASONS FOR JUDGMENT

1. This is a matter in which the father has discontinued any participation in the proceedings.  This was notified to the Court by a Notice of Discontinuance filed on 14 March 2017.  After that date the mother sought by way of Amended Application different orders to those sought previously.  I made orders that required the father to be served with the Amended Application in order to accord to him procedural fairness.  He was served on 24 June 2017 and has acknowledged service.  He has not attended at Court today nor filed any documents in accordance with the orders that I have previously made.  The matter may proceed on an undefended basis.

2. In this case the mother seeks orders for sole parental responsibility in respect of the child B, who is almost 12 years old.  There is no contest in relation to that order.  She further seeks orders in respect of the child living with her and to restrain the father.  Again, there is no contest in relation to those orders and the Independent Children’s Lawyer supports the making of those orders.

3. The only one of the orders which are at all contentious in relation to today’s proceedings is order 6 sought by the mother which would empower an Officer of a state police force or the commonwealth police force to arrest the father in relation to a breach of the restraint that the mother seeks.  That is not positively supported by the Independent Children’s Lawyer but he says that is just a matter of the practical mechanics of how such an order should operate. 

4. One of the primary matters to be dealt with here is the benefit of meaningful relationship between the child and her father.  There is no basis on which I am able to presume that the child would receive a benefit from a relationship with her father and the evidence as it presently sits does not establish that any such benefit is likely to accrue.  There is some evidence presented on behalf the mother that indicates that the child misses her father and wants to spend time with him.  It appears that she has not had any authorised unsupervised time with her father since January 2013 and no supervised time with her father since early 2017.  On the evidence before me today though, it appears that despite orders that previously catered for supervised time only for the father, the father has spent some unsupervised time on a clandestine basis with the child. 

5. In the absence of any evidence that establishes that the child will take benefits from a relationship with her father I am unable to assess that there are benefits of meaningful relationship.  This conclusion is fortified by the questions that arise as to risk in this case.  There is an issue that has arisen on the affidavit material that indicates that the father was charged with serious sexual abuse of one of the child’s older sisters, his and the mother’s daughter, C.  The father has been acquitted at criminal trial of the charges that he faced.  Evidence before me contained in Exhibit ICL1, being a summary of subpoenaed material that has been prepared by the Independent Children’s Lawyer is supportive of the material annexed to the Independent Children’s Lawyer’s affidavit, that being a Statement of Facts that was prepared in relation to the criminal proceedings against the father in relation to C.  Those disclose a series of sexualised assaults upon C committed between her ages of nine and 15.  They appear in summary form to have commenced with touching of C’s breast area when she was nine, giving C cannabis and alcohol, at various times inserting fingers into C’s vagina and otherwise sexually touching her and also recording her.  These events appear to have concluded at about the time that C turned 15.   While the evidence is scarce at present about these events, on the basis that the proceedings were undefended it is reasonably safe to come to a conclusion that there is an unacceptable risk of harm to the child referenced by virtue of the alleged sexualised conduct of the father upon the child’s sister C.   

6. Additionally, by her affidavit of September 2013 the mother gave evidence of reports to her by C of the father manipulating C by applying cigarette burns to his skin and by threatening to kill himself if C was ever to leave him. 

7. Again, in the context of undefended proceedings it is reasonably safe to come to a conclusion that there is an unacceptable risk of harm to the child if she were to be exposed to her father.

8. The oral evidence given by the mother outlines that on several occasions in the last month or so the father has spent unsupervised time with the child, time that was apparently taking place at a local McDonald’s restaurant over breakfast, following the child having exited the school bus on seeing her father’s car, indicates the desirability of having injunctive relief to prevent the father from approaching the child. While the mechanisms for enforcement of such an order are somewhat clumsy they are made more efficient by virtue of the provisions under s 68C of the Family Law Act 1975 which with appropriate orders would enable a police officer to arrest the father for breach of the injunctive relief that is sought without having to have regard to State law in order to do so. The Independent Children’s Lawyer urged upon me that it would be a better mechanism if the police were to resort to State provisions should it become necessary to do so. The presence of the injunction does not prevent the police from doing that and they may well still rely upon State provisions.

9. Having examined the matters about unacceptable risk, the lack of evidence about the benefits of meaningful relationship, the lack of there being apparently a meaningful relationship between the child and her father or at least one that has been supported by regular time between the child and her father it is appropriate to make the orders in the context of undefended proceedings in the terms sought by the mother with one addition. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 July 2017.

Associate:

Date:  18 July 2017