Storey and Martel

[2019] FamCA 819

FAMILY COURT OF AUSTRALIA

STOREY & MARTEL [2019] FamCA 819

FAMILY LAW – CHILDREN – Father convicted of rape of mother – father brings application to spend time with daughter aged four years, who he has not met – best interest principle – father required to provide further evidence to advance the case

Family Law Act 1975 (Cth)

Russell & Close [1993] FamCA 62

APPLICANT: Mr Storey

RESPONDENT: Ms Martel

FILE NUMBER: BRC 5091 of 2015

DATE DELIVERED: 2 October 2019

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Baumann J

HEARING DATE: 2 October 2019

REPRESENTATION

APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: Gun Lawyers

INDEPENDENT CHILDREN’S LAWYER: Ms D Falcomer
Keir Steele Waldon Lawyers

Orders

THE COURT NOTING:

A.    The history of this matter as has been set out in the oral Reasons for Judgment delivered today (which shall be settled and published).

THE COURT ORDERS:

1. That the father’s Application in a Case filed 3 August 2018 be dismissed.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the father file and serve any further Affidavits with evidence touching upon the matters referred to in the Reasons for Judgment delivered today, no later than 4.00pm on 24 January 2020.

2. That these proceedings be adjourned for Case Management Hearing at 9.30am on 25 February 2020 in the Family Court of Australia at Townsville.

3. That the father and the mother have leave to appear by telephone on 25 February 2020 by using the “AAPT GlobalMeet” telephone conferencing system as follows:

   (a)They shall each telephone (toll free) by 9.25am on 25 February 2020;

   (b)They shall each then enter the pass code; and

   (c)Hold the line until the Court is ready to connect and proceed with the matter.

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 Storey & Martel 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 TOWNSVILLE

FILE NUMBER: BRC 5091 of 2015

Mr Storey

Applicant

And

Ms Martel

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. These proceedings concern a little girl called B, who was born in 2015.  She will be five years of age in 2020.  The mother, a disability pensioner, moved to E Town on or about 18 February 2015 after the separation between the parents.  The Applicant father, Mr Storey (currently aged 41 years) has reinitiated proceedings by filing an Application in a Case as a self-represented litigant on 3 August 2018, which seeks orders for:

   “Visits from B in person or by video link up every month

   10 photos per month sent to me of B

   Progress and medical update up to date files of B”

2. The mother opposes the orders sought by the father, as clearly set out in her Response filed with the benefit of her legally aided lawyers in E Town, seeking that the father’s application be dismissed for the reasons which follow.

3. I am not prepared today to make any orders that might begin a process of introducing the child, B, to her father and these orders are prepared on the understanding that the father wishes to pursue ultimately physical contact orders and that he is seeking legal advice, now that he has been released from prison, as to how that may be achieved.  It is important for the very tragic background of this matter to be identified, at the very least so that any lawyer retained by the father has a full understanding of how we have got to the position we are now at.

Background

1. It is clear that the parties, having separated on 18 February 2015, and in circumstances where the child, B, has spent no time with the father at all since she has been but one month of age, that the child is unlikely to have any understanding or recollection at all of her father.  The reasons why the mother moved in February 2015 to E Town, where she has family support, arise from actions of the father, who has since been charged and was convicted of raping the mother.  The father had actually filed an Application to the Court on 5 June 2015, seeking an order for equal share parental responsibility and unsupervised time.  However, it seems after that application was filed, the father was charged.

2. When the applications came before Tree J on 30 September 2016, the father was in custody on remand, awaiting a trial on the serious criminal charges, to which I will refer shortly.  For reasons at that time published by his Honour, Tree J dismissed the father’s application for a six month adjournment.  The basis of such application appearing to be, from the Reasons, that the father asserted he expected to be acquitted of all charges against him.  On that day, Tree J also made an interim order that the mother have sole parental responsibility for the child.  This order had been preceded by an order made by his Honour on 16 September 2015, that B live with the mother.  Those two interim orders are still in full force and effect.

3. I record, as the father has alluded to today, that by consent on 16 September 2015, Tree J also ordered that the mother provide to the father’s solicitors six current photographs of the child and a two page report of the child’s health and general well-being.  The orders made in September 2015 were all made at a time when the father’s criminal charges had not been heard and determined.  In 2017, the father pleaded guilty in the District Court of Queensland to five counts of rape of the mother, one count of assault occasioning bodily harm of the mother and breaches of domestic violence orders.  The sentencing Judge, in his remarks (See Exhibit 1 tendered 19 July 2019) made the following relevant comments:

   a)The rapes occurred after the birth of the child, whilst the mother was recovering from a difficult birth, where significant suturing of the mother’s vaginal tears had been required;

   b)The father had been in custody since 1 January 2016, when the father was charged with other offences as well, some of which he has been acquitted of;

   c)In 2008, the father was convicted of sexual assault upon two different women and there was a further conviction in 2009 for offences including armed robbery in company.  The convictions resulted in two separate terms of imprisonment for the father; and

   d)The father’s offending, as against the mother really “took advantage” of the mother’s mental impairment.

4. The sentencing Judge ordered the psychological report produced for the sentencing be provided to the Department of Corrections “so that the necessary steps can be taken in providing treatment” for the father in custody.

5. The father was sentenced to six years imprisonment and then allowing for 710 days already served, that the father be eligible for release on parole as at 2018.

6. The sentencing Judge also made a domestic violence order, which was to continue until 10 December 2022.  The father today says that he has taken advice to amend that order.  It is unclear to the Court what grounds the father may have to amend such an order.  Nonetheless, that is a matter for another court.  It might have been expected, in view of the sentencing Judge’s comments, that the father may have been released on parole as early as 2018.  For reasons not clear to this Court, that did not occur.  Although I do not have any details from the parole board of all the conditions of the parole, the mother, by reason of a document received from Queensland Corrective Services on 7 August 2019, having been registered with Corrective Services on the victim’s register regarding the father, has provided that letter to the Court, which reveals that the father was released on parole from 2019.  The father will remain under supervision until 2021.  A number of conditions were imposed, according to the letter, by the Parole Board Queensland, including:

   “You (prisoner Storey) must not in any way, directly or indirectly, contact or communicate with Ms Martel or her daughter without an order of the Federal Circuit Court;

   You (prisoner Storey) must not enter the township of E Town without the prior approval of an authorised corrective services officer;

   You (prisoner Storey) must comply with conditions of any Domestic Violence/Protection Order/Safety Order in which you are named as the respondent.”

7. The mother had expressed her concerns about the father spending time with the child from as early as her Affidavit filed 30 July 2015.  That Affidavit, of course, was filed before the father’s conviction.  The most recent Affidavit of the mother, filed 19 August 2019, to which the father has not yet had the opportunity to respond, summarises the earlier concerns raised and the mother says that:

   “21.    … If I was ordered to do so, I would find it extremely difficult to promote any sort of relationship between B and Mr Storey, given what he has done to us.”

8. Such comments clearly identifies a possible issue in this case, applying that line of authority beginning with Russell & Close [1993] FamCA 62, about the effect on the primary carer of a child of a parent who is unable to facilitate with a genuine fear or belief of harm flowing to the child from the other parent, whether in fact it is in the best interests of the child at all to allow time to occur. I have sought to explain to the father, who today appears by telephone from Brisbane, that his Application in a Case is not supported by any real evidence. I understand, as an unrepresented litigant, he is desperate to spend time with his daughter. At the very least, he wishes to be acquainted with her current development and what she looks like. Because to do so would begin a possible journey that may not have the conclusion in the way that the father hopes, I am not prepared to make such orders today, particularly because I had no evidence at all from the father. I am preparing these Reasons in the hope that the father will, as he desires, obtain independent legal advice and that he can produce these Reasons to the lawyers he retains so that they have a full picture of this matter, rather than perhaps, as sometimes occurs, some sanitised version of the history. At the very least, it would seem to me, that for this matter to progress in the way the father hopes, I would need at least:

   a)an Affidavit in response to the mother’s Affidavit and the concerns that she sets out in her recent Affidavit, at the very least;

   b)any data, reports or information from the Department of Corrections as  to any treatment undertaken by the father whilst incarcerated - a matter which was, it seems to me on the evidence - an issue raised by the sentencing Judge, when the father was sentenced; and

   c)it would be for the father, rather than publicly-funded Legal Aid, to then provide some initial evidence to the Court, perhaps in the form of a risk assessment – in any event, from a qualified health professional, as to the effect of any of the treatment in prison – as was earlier referred to in these Reasons – on his capacity to maintain behaviour which could not be a risk to the child or the mother.

9. Again, this is because there is no certainty at all as to what treatment the father received in prison or if he did receive such treatment, the effect on the father of such treatment.  The father presents today, having recently been released from prison, as a fairly unknown quantity.  I tried to explain to the father today, and I believe he understood this to be the case, that a child’s right to spend time, communicate and form a relationship with a parent is not an absolute right, but that any orders must be in the child’s best interest, which is the paramount consideration.  In my view, the circumstances of this case and the available evidence at this point does not allow me to be satisfied that it is in the best interests of B that she should begin a process of getting to know her father or commence a relationship with him.

10. The father will need to provide further evidence about a range of the matters referred to in these Reasons before he might reasonably expect that the public purse, through Legal Aid, be required to fund either an independent risk assessment or a family report.  The father will be given a reasonable opportunity to put such evidence before the Court and if he does so, the Court will take submissions from the parties, including the Independent Children’s Lawyer, as to the further investigations or way forward at that time.  If the father is unable or unwilling to gather at least some of the evidence referred to in these Reasons to support his assertion that it is in the best interests of B to commence a process of her getting to know him, then this might be one of those unusual cases where the Court might need to consider how the proceedings can be brought to an end summarily, or at least quickly, so that the mother, who has the duties of primary care of the child, is not distracted by those serious day-to-day responsibilities by engaging in litigation in a matter like this.

11. To a large degree, this all depends on what evidence the father can put before the Court and it is my hope that he will be able to do so quickly.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 2 October 2019.

Associate: 

Date:  11 November 2019