Samper & Harpe

Case [2023] FedCFamC2F 1646


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Samper & Harpe [2023] FedCFamC2F 1646  

File number(s): MLC 11709 of 2020
Judgment of: JUDGE PARKER
Date of judgment: 22 December 2023
Catchwords: FAMILY LAW – PARENTING – unacceptable risk – where Father has pleaded guilty to sexual offences against Mother when she was a minor – where Father is registered sex offender - where Court finds Father has additionally subjected Mother to serious family violence – where Father holds unremittingly negative attitude towards Mother and accepts no responsibility for his own conduct – where Father is lacking in insight – orders made for no time or communication with Father
Legislation:

Crimes Act 1958 (Vic) s 49N

Evidence Act 1995 (Cth) ss 79, 128, 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 114AB, 117

Sex Offenders Registration Act 2004 (Vic) s 111A

Cases cited:

 A & A [1998] FamCA 25; (1998) FLC ¶92-800

B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758

B & B [1993] FamCA 143; (1993) FLC ¶92-357

Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924

Bielen & Kozma [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407

Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330

Dennison & Wang [2010] FamCAFC 182

Harridge & Harridge [2010] FamCA 445

Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lorreck & Watts [2012] FamCAFC 75

M & M [1988] HCA 68; (1988) 166 CLR 69

Maluka & Maluka [2011] FamCAFC 72; (2011) FLC ¶93-464

Mazorski & Albright [2007] FamCA 52

McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405

Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375

Mulvany & Lane [2009] FamCAFC 76; (2009) FLC ¶93-404

N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655

Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303

Pascoe & O’Keefe and Ors [2018] FamCAFC 243

Re Andrew [1996] FamCA 43; (1996) FLC ¶92-692

R & C [1993] FamCA 62

Sigley & Evor [2011] FamCAFC 22

Slater & Light [2013] FamCAFC 4

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329

Division: Division 2 Family Law
Number of paragraphs: 250
Date of last submission/s: 20 December 2023
Date of hearing: 24-27 July, 23 October and 10 November 2023
Place: Adelaide
Counsel for the Applicant: Mr McQuade
Solicitor for the Applicant: Daniel John Lawyers
Solicitor Advocate for the Respondent: Mr Jelbert
Solicitor for the Respondent: Gibson & Associates Family Law
Counsel for the Independent Children’s Lawyer: Ms Lindsay
Solicitor for the Independent Children’s Lawyer: Legal Services Commission of South Australia

ORDERS

MLC 11709 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SAMPER

Applicant

AND:

MS HARPE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE…

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Samper & Harpe [2023] FedCFamC2F 1646
Case
[2023] FedCFamC2F 1646
Decision Date

CaseChat Overview and Summary

The matter of Samper and Harpe involved a dispute between the parents, Mr Samper and Ms Harpe, regarding the parenting of their child, X, born in 2017. The case was heard and determined by Judge Parker in the Federal Circuit and Family Court of Australia. The key issue before the court was whether the father should have any form of contact with the child, given his past criminal history and ongoing unsuitability as a parent.

The father had a history of sexual offences against the mother, having pleaded guilty to these crimes when the mother was a minor. Additionally, he had subjected her to serious family violence and held an unremittingly negative attitude towards her, showing no responsibility or insight into his conduct. Given these factors, the court had to decide if there were any circumstances under which the father could be allowed contact with the child, or if complete separation was necessary to ensure the child's safety and well-being.

In reaching its decision, the court emphasised the paramount importance of the child's safety and best interests. The court found that the father's past conduct and current attitude posed an unacceptable risk to the child. It was noted that the father had been a registered sex offender and had failed to demonstrate any capacity for change or improvement. Consequently, the court determined that the father should have no time or communication with the child and was restrained from any contact with the child or the mother, including attending places where they might be present. The mother was also restrained from speaking negatively about the father in the presence of the child.

The court's final orders discharged all previous parenting orders and granted sole parental responsibility to the mother. The child was to live with the mother, with no contact with the father. The father was enjoined from communicating with or approaching the mother or child in any way, and the mother was similarly restrained from allowing others to denigrate the father in front of the child. All other pending applications were dismissed.

Orders

Orders of the court

MLC 11709 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR SAMPER

Applicant

AND:

MS HARPE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE PARKER

DATE OF ORDER:

22 DECEMBER 2023

UPON NOTING THAT:

A. Pursuant to section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.

THE COURT ORDERS THAT:

1. All previous parenting orders are discharged.

2. The Mother have sole parental responsibility for the child X born in 2017 (‘the child’).

3. The child live with the Mother.

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

5. The Father be restrained and an injunction is hereby granted restraining the Father from:

(a) Communicating with the child and/or the Mother directly, indirectly, in person or remotely, by social media or electronic means or otherwise;

(b) Attending at or within 200 metres of the home of the child and/or the Mother;

(c) Attending at or within 200 metres of any place of care, residence, recreation, education, allied or medical treatment, social or other engagement or employment of the child and/or the Mother;

(d) Removing the child from the Mother or from any care or other person, organisation or care facility at which the child is in attendance; or

(e) Causing or permitting any other person to do those things set out in this order.

6. In the event that the Father finds himself within 200 metres of the Mother and/or the child, the Father shall immediately remove himself from this location without making his presence known to either of the Mother or child.

7. The Mother be restrained from denigrating the Father to or in the presence of the child or permitting any other person to do so.

8. The appointment of the Independent Children’s Lawyer be discharged.

9. All extant applications are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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