Storey & Martel
[2022] FedCFamC1F 617
Federal Circuit and Family Court of Australia
(DIVISION 1)
Storey & Martel [2022] FedCFamC1F 617
File number(s): BRC 5091 of 2015 Judgment of: BAUMANN J Date of judgment: 17 May 2022 Catchwords: FAMILY LAW – PARENTING – Prolonged parenting proceedings have awaited the father’s release from prison – Where, by order of the Supreme Court, the father is restrained from having contact with the child –Final orders made for the father to have no time with the child Legislation: Family Law Act 1975 (Cth) Cases cited: Storey & Martel [2019] FamCA 819 Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 17 May 2022 Place: Townsville Solicitor for the Applicant: Keyworth Harris & Lowe Family Lawyers Counsel for the Respondent: Mr Fronis Solicitor for the Respondent: Sun & Co Lawyers Solicitor for the Independent Children's Lawyer: Keir Steele Waldon Lawyers ORDERS
BRC 5091 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR STOREY
Applicant
AND: MS MARTEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
17 MAY 2022
THE COURT ORDERS:
1.That the father’s legal representatives, Keyworth Harris & Lowe Family Lawyers, be granted leave to withdraw from acting on behalf of the father.
2.That the mother have sole parental responsibility for the child, B born in 2015 (“the child”), and that in exercising sole parental responsibility, the mother is not required to consult with or inform the father of the decisions made by the mother.
3.That the child live with the mother.
4.That the father have no contact with the child or the mother, either directly or indirectly.
5.That the Independent Children's Lawyer be discharged.
IT IS NOTED:
A.That any time in the future if the father commences proceedings, the judicial officer confronted with such new application is to be made aware of the litigation history since June 2015.
B.That the father has not spent any time with the child since the child’s birth in 2015 and as a result of a risk assessment, family report and findings by the Court, the final Orders above were made today.
C.That the father is bound by a Supervision Order made by the Supreme Court of Queensland which is in operation until 2031 which restrains the father from contacting the mother or the child of these proceedings. Contact with the child can only occur “if approved” by a court exercising jurisdiction under the Family Law Act 1975 (Cth). No such approval has been granted. It is the view of this Court at this stage that the father should not be entitled to make any application for parenting orders in respect of the child without first seeking leave of a court of competent jurisdiction.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Storey & Martel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)
BAUMANN J:
This parenting case has been before the Court since 2015. It relates to a child B, who was born in 2015. It has had a very difficult history, mostly because the Applicant father Mr Storey had initially been awaiting trial in respect of a serious charge of sexually assaulting the mother shortly after she gave birth to the subject child. After his incarceration was completed upon his conviction and he was on parole, he persisted with his application for orders seeking to spend time with his daughter.
B, who is now seven years of age, and who has had no relationship with the father, has not spent time with him at all since her birth. B has, like the mother, been dragged through the processes which have, on reflection, perhaps unfairly to her and the child, elevated procedural fairness to the father in this matter at the highest possible level.
Be that as it may, as the Reasons I published in this matter on 2 October 2019 make clear (see Storey & Martel [2019] FamCA 819), the father was convicted of the sexual assault of the mother and sentenced by the District Court of Queensland. Exhibit 1 tendered 19 July 2019 was the transcript of the sentencing remarks of the District Court Judge. The sentencing remarks are harrowing. Not surprisingly, not only has the issue of the father’s conduct been a highly relevant issue in this case, but so has the mother’s capacity to facilitate and promote any relationship between the child and the child’s father. The history set out in my Reasons of 2 October 2019 also identified the sorts of issues that the father, who has generally been unrepresented in these proceedings after his release from parole, would need to produce to the Court before the Court could consider whether or not it was in the best interests of B for a relationship between her and the father to be to be commenced in any form.
Ms J was appointed the Independent Children’s Lawyer in these proceedings by Legal Aid Queensland pursuant to an Order of Justice Tree made 16 September 2015. Ms J prevailed upon Legal Aid Queensland to fund a risk assessment of the father. The risk assessment produced by Psychologist Mr F in September 2020 identified the risks the father still presented. At paragraph 88 Mr F opined:
88.While [Mr Storey] presents as a very low risk of sexual harm to his daughter while supervised, his unpredictable volatility while unsupervised does present risk to [B]. If contact and relationship is to be developed between [Mr F] and [B] the following progression is recommended:
•[B] be engaged in protective behaviour development;
•[Mr Storey] should engage in the offence specific intervention as outlined;
•If agreement is established on points one and two, non-direct contact, photos and approved letters can be exchanged. [Mr Storey] must not deride [Ms Martel] or other family in this process. [B] should be supported in this process by her primary supports.
•[Mr Storey] should be able to express empathy for his victims for their experiences during and after his offending, and be able to explain and display safe relational behaviour for friendship and intimate relationships;
•[Mr Storey] should be able to accept responsibility for his offences;
•If the person providing protective behaviour support for [B] holds the professional opinion that [B] is prepared, supervised phone contact can be arranged (speaker phone);
•at an age where [B] can be made aware of, and understand [Mr Storey’s] offending history (including against [Ms Martel]) and is able to do so supervised face to face contact can commence;
•at this time, early adolescence, I recommend that [B] is able to have input as to the progression of face to face contact with [Mr Storey];
•Unsupervised contact should likely not be established until mid-adolescence though based on [Mr Storey’s] engagement and achievement in the intervention, [B’s] sense of safety and motivation, and if [Mr Storey] is in a stable live-in relationship that is able to be protective and provide appropriate supervision this time-frame should be evaluated closer to the time.
•I note the above timeline was discussed with [Mr Storey] at the interview, with his agreement.
With the benefit of Mr F’s report, again the Independent Children’s Lawyer arranged for a family report to be prepared by Psychologist Ms G in November 2020. At that time, the father was living in Queensland, as he has I think for some time now. The mother resided in or around City H with the child. As a result, perhaps also because of Covid-19 restrictions, the father was, quite properly in my view, not observed interacting with the child.
The family report of Ms G filed 8 December 2020 contained an evaluation at paragraph 6 as follows:
6.1 Parental Relationship
The current Parental relationship between [Ms Martel] and [Mr Storey] is non-existent. It is challenging and almost unlikely that any parenting relationship could be successful when there has been a history of domestic violence and sexual violence in their relationship, which has led to the partner being convicted of sexual offences. It is also a concern that [Mr Storey’s] personality profile of being manipulative and calculating, without any remorse or understanding of the consequences of his actions, he could use the prospect of having a parenting relationship with [Ms Martel] and forming a relationship with [B] as a form of ongoing violence and control over that parent. There is some evidence from his personality profile and the comments he has made that he has some expectation that [Ms Martel] play a part in communicating with him about their daughter, suggests that [Mr Storey] has a risk of engaging in this type of controlling behaviour.
6.2Criminal Behaviours
[Mr Storey] has a history of being domestically and sexually violent. Of more concern is his lack of insight into his offending behaviour, lack of remorse he has for the victims and his extreme minimisation of all of his offending. There is not one sexual offence since 2006 where he has accepted full responsibility for. This lack of insight and poor judgement increases his risk of engaging in other antisocial behaviours that encompasses harming others.
6.3Parental Capacity
[Ms Martel] has the capacity to parent [B]. [Ms Martel] has a strong secure attachment with [B].
6.4[Mr Storey’s] poor judgement, inability to perspective take and show emotional warmth to others, will significantly impair his ability to parent appropriately and provide the emotional support and understanding that a child needs at [B’s] young age. His emotion volatility and inability to form appropriate attachments to others will hinder his ability to form a healthy relationship with [B].
6.5Impact on [B]
At present [B] has no knowledge or comprehension that she has a father. To introduce [Mr Storey] to [B] at this stage of her life could be very stressful and overwhelming for her. [Mr F] makes the recommendation that to prepare [B] for non-direct contact with her father, she should commence protective behaviour development. He also recommends that [Mr Storey] needs to engage in offence specific intervention that he outlined in page 32. [Mr F’s] professional opinion is that if neither of these recommendations are met then non direct contact should not be initiated as the risk to [B] would be unacceptable. [Mr Storey] was aware of [Mr F’s] recommendation and since September 2020 has made no attempt to commence such intervention.
(Emphasis in original)
At paragraph 7, Ms G went on to recommend:
7.1In the best interests of [B]: [Ms Martel] have sole parental custody and [B] lives with her.
7.2[Mr Storey] should not have indirect or direct contact with [B] until he has engaged in the intervention that [Mr F] has outlined and the treating therapist provides a report to indicate that [Mr Storey] has improved his level of insight, judgement and empathy regarding his sexual offending behaviours.
After the family report issued in December 2020, when the unrepresented father indicated he wished to press his application for contact with his daughter, leading – he hoped – to unsupervised time in the future, the Court listed for trial the matter in the Townsville sittings in the week of 12 July 2021.
When the matter came back before me on 4 March 2021 I made directions for trial, including the engagement of the cross-examination scheme created by Legal Aid Queensland to facilitate the restrictions imposed by section 102NA of the Family Law Act (Cth) which came into existence from September 2019. I had at that stage been informed that in late 2020, the father had been taken back into custody and that his parole had been suspended. The trial clearly could not commence in July 2021. It seemed to me at least because there had been a failure by the father to activate the grant of aid available to him such that on 14 February 2021 when the matter came before me, I again explained to the father who appeared before me unrepresented, he had to engage with Legal Aid to activate the s 102NA funding scheme.
He did so, as he said he would, and lawyers came on the record for him on 27 April 2022, presumably to prepare for the trial due to commence today, 17 May 2022. On 10 May 2022, one week ago, the lawyers on the record filed on behalf of the father a Notice of Discontinuance. A representative of that firm appeared today as a matter of courtesy to the Court and was given leave to withdraw. Sadly, and almost inexplicably, the Court only became aware of a fact of significance within the last week or so. That is, that in late 2021 an order was made in the Supreme Court of Queensland on the application of the Attorney-General for the State of Queensland. The order has been marked Exhibit 1 today.
Tellingly, the order begins with the following notation:
The Court is satisfied that [Mr Storey], is a serious danger to the community. The rules in this order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003.
The Court orders that [Mr Storey] be released from prison and must follow the rules in this supervision order for 10 years, until [….] 2031.
Clearly, in 2031, [B] will almost be 17 years of age.
The Supervision Order contains a number of provisions relating to supervision, reporting, where he may live, curfews, monitoring and other apparently usual conditions. Relevant to this case, it seems to me is the following order:
24.You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you.
The word “contact” is described in the Order and it is very wide.
Further, order 37 provides:
37.You are allowed to have contact with your own child if approved by the order of a court under the Family Law Act 1975 (Cth). Otherwise, you are not allowed to have any contact with children under 16 years of age. If you want to have supervised or unsupervised contact with a child under 16 years of age, you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to have contact with the child.
The words “contact”, “supervised” and “unsupervised” are described.
Today Counsel for the Independent Children’s Lawyer offers to the Court an order which he says has the consent of the mother. Mr Fronis of Counsel for the mother appears by telephone and confirms the consent of the mother. The order contains three clauses which are set out in the beginning of these Reasons. I have considered all the evidence, including the affidavit of the mother filed 27 April 2022. The child does not know the father; is well cared for by the mother and lives a settled and peaceful life with her. The mother has suffered Medical Condition J since birth and relies principally upon a disability benefit through Centrelink for her financial support. It is abundantly clear to me that she is a resourceful, courageous and devoted mother to B.
The proceedings have been prolonged and draining for her. It is in the best interests of the child to bring these proceedings to an end finally in the form of orders which has been agreed to by the Independent Children’s Lawyer and the mother. The father should not be entitled, in my view, to bring further proceedings without leave of a Court. However, as such an order has not been sought, it would not be proper to make such an order in the father’s absence, in my view. In the circumstances however, I intend to include a clear notation on the orders I make today so that any time in the future, if the father commences further proceedings, the judicial officer confronted with such new application is aware of the litigation history since June 2015. The Court will also order the Independent Children’s Lawyer is discharged with the thanks of the Court. The notation will be in these terms:
The father of the child has not spent time with the child since the child’s birth in 2015 and as a result of a risk assessment, family report and findings by the Court, the final orders above were made today. The father is bound by a supervisory order made by the Supreme Court of Queensland [in] 2021 which is operational until […] 2031 and which restrains him from contacting the mother or the child in this case. Contact with the child can only occur if “approved” by a Court exercising jurisdiction under the Family Law Act. No such approval has been granted. It is the view of this Court at this stage that the father should not be entitled to make an application for parenting orders in respect of the child without first seeking leave of a Court of competent jurisdiction.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 23 August 2022
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