Serrano and Ray

[2019] FCCA 878

FEDERAL CIRCUIT COURT OF AUSTRALIA

SERRANO & RAY [2019] FCCA 878

Catchwords:
FAMILY LAW – Parenting – withholding of children – allegations of child sexual abuse – child protection – best interests of the child – injunction about further disclosures of sexual abuse – Independent Children’s Lawyer.

Legislation:

Family Law Act 1975 (Cth), ss.68L, 69ZW

Applicant: MS SERRANO

Respondent: MR RAY

File Number: ADC 4421 of 2018

Judgment of: Judge Young

Hearing date: 7 March 2019

Date of Last Submission: 7 March 2019

Delivered at: Adelaide

Delivered on: 7 March 2019

REPRESENTATION

Counsel for the Applicant: Mr O’Dea

Solicitors for the Applicant: O’Dea Lawyers

Counsel for the Respondent: Mr Gibbons

Solicitors for the Respondent: Stephen Gibbons Lawyers

ORDERS

UPON NOTING the email from the Department for Child Protection marked Exhibit 1

AND UPON NOTING the parties and the children are to attend a s.11F Child Inclusive Conference on 14 March 2019 at 9.30am

1. The children [X] born … 2008 and [Y] born … 2009 be returned to the mother’s care this day.

2. The mother is permitted and authorised to attend at the children’s school, School A Primary School, and collect the children at the conclusion of school today.

3. The father is restrained and an injunction is granted restraining him from attending at the said school today and is not, in any way, to interfere with the Order made this day that the children be delivered into the mother’s care.

4. Until further order the father is restrained and an injunction is granted restraining him from presenting the child [Y] to any psychologist, counsellor or medical practitioner with the intention of eliciting or facilitating any disclosure of sexual abuse by the child.

5. In the event the child [Y] makes any further disclosure, the father is to report the matter to SA Police and/or the Department for Child Protection.

6. Pursuant to Section 68L of the Family Law Act 1975 THAT an independent children’s lawyer be appointed to represent the interests of the children [X] born … 2008 and [Y] born … 2009.

7. To facilitate such appointment the parties respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of the date hereof and that the independent child/children’s lawyer use his or her best endeavours to be in a position to make submissions to the court on the adjourned date. 

8. Pursuant to section 69ZW of the Family Law Act 1975 the South Australian Police Department shall provide the Court with the following documents or information:

   (a)copies of any reports or notifications of child abuse allegations or allegations of family violence involving either of the parties MS SERRANO born … 1979, MR RAY born … 1967 or the infant children [X] born … 2008 and [Y] born … 2009;  and

   (b)the outcome or findings of any such investigations including antecedent reports for each of the parties.

9. The matter is adjourned to 14 May 2019 at 9.30am for further directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4421 of 2018

MS SERRANO

Applicant

And

MR RAY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They 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 is a matter where the father has withheld two children: [X], who is 10 years old, and [Y], who is nine years old, in breach of orders of the Court.

3. The matter arises in this way. The father’s affidavit material from last year, 2018, alleged that the child [Y] disclosed to him that she had sex with men at the mother’s home.  That was reported to the police, and it is the agreed position that, after some preliminary inquiry, the police did not make any further investigation.

4. On 7 February, according to an affidavit from a Ms B, who I understand is a family therapist, the father, off the street, so to speak, there being no pre-existing relationship between the father and the counsellor or the child and the counsellor, presented the child at the offices of the therapist, and apparently informed Ms B that the child wished to make some disclosures.

5. Ms B has said, in her affidavit, that the extent of the disclosures were a statement from the child that she “feels unsafe when mum climbs out the window”, and she does not like being left on her own.  The counsellor said that she did not ask for any further details, and nor were any further details given.

6. 14 days later, on 21 February, the father presented at the therapist’s rooms again with the child, and the child had a note.  The father explained to the therapist that he had been to the Women and Children’s Hospital and had been advised by a worker at the Child Protection Service at the hospital that if the child was having difficulty talking to Ms B she could write a note.

7. I hardly need to comment on the strangeness of that evidence concerning what is said to be an allegation of child sexual assault. It seems quite strange that the Child Protection Service at the Women and Children’s Hospital, if presented with an allegation of child sexual assault in that way, would simply make a recommendation that the child could write a note and be trotted off somewhere else. Nevertheless, that is what is said in the affidavit.

8. When next Ms B saw the child, the child presented a note that said as follows:

   When I go to bed, I sometimes wake up to test my –

   and something is obscured but it looks like “blood”.  Perhaps the child is diabetic; I do not know what that is a reference to –

   or a toilet break.  But at night, mum lets people through the window, and I don’t know anyone but mum.  When I’m in bed, people touch me where I don’t like to be touched, like up and down.  But she also climbs out the window, and leaves me in a room with a window open, and so I think me and [X] could live at dad’s but visit mum and other family members as well, and for this to be put to a stop, and for this to be a happy family, and it happens all the time.

9. I asked both counsel, this morning, whether they had made any inquiries of the Police or Department of Child Protection about whether there was any evidence of a Police or Department of Child Protection investigation, considering that Ms B said that she made a mandatory report on the child abuse report line.

10. Counsel had not made those basic inquiries, so I arranged for the Court Liaison Officer, that is, the officer employed by Department of Child Protection, to make inquiries and I received an email, which I have marked Exhibit 1, which says that there is no open investigation concerning the child, although there had been a report of a notifier concern, but it was generally considered that the matter had not reached a threshold for investigation.

11. In the circumstances, I am not satisfied that the authorities who are responsible for investigating such allegations, the police and the Department of Child Protection, have been satisfied that there is substance to these allegations. I consider that the way the matter has unfolded is most unusual.  That is:

    a)an earlier Police report, which was investigated and found to be without substance last year, essentially of the same allegations;

    b)the father taking the child in off the street, so to speak, on 7 February, to see a counsellor, and the child making no disclosure whatsoever;

    c)a visit to the Women and Children’s Hospital Child Protection Services, at a date unclear but some time between 7 February and 21 February, where, according to Ms B (I gather reporting what the father had told to her), a worker at the Women and Children’s Hospital had suggested that the child may be prepared to write a note; and

    d)a note was duly written and presented to Ms B on 21 February, having been written beforehand.

12. I have read that note.  It is an unusual note, and it is unusual in that it refers to these proceedings; it is aware of these proceedings, or the writer is aware of these proceedings, and makes a proposal that the child, or the children, live with the father and visit the mother:  indicative to me that the child is not only exposed to the dispute but the child is exposed to the details of what the parties are seeking.

13. I am not in a position to make a finding that the note was prepared by the child under the influence, manipulation or duress of the father but there are indications that that is something that ought to be suspected.

14. In the circumstances, I am not convinced that there is an unacceptable risk, should I make an order, or indeed a recovery order for the return of the child, and I will do so.  I am going to also make a further 69ZW order directed to the South Australian Police and the Department of Child Protection, as well as appointing an ICL. In addition I have made an injunctive order that the father is not to attend at the school today.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 5 April 2019