Thornton and Reece

[2008] FamCA 216

FAMILY COURT OF AUSTRALIA

THORNTON & REECE [2008] FamCA 216

FAMILY LAW  -  CHILDREN  -  Magellan  -  father convicted of sexual assault of a minor  -  failure to comply with order to undertake therapy  -  sole parental responsibility.

Family Law Act 1975 (Cth)

FATHER: Mr Thornton

MOTHER: Ms Reece

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2782 of 2004

DATE DELIVERED: 25 February 2008

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 25 February, 2008

REPRESENTATION

FATHER: No appearance

COUNSEL FOR THE MOTHER: Ms. Cantwell

SOLICITOR FOR THE MOTHER: Hogg & Reid

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms Tornese

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Perry Weston

Orders

1. That the mother have sole parental responsibility for the children T born 9 June, 1999 and K born … August (“the children”), 2000.

1. That until further order the father have no time or communication with the children.

1. That the father’s amended response filed on 23 June, 2006 be otherwise struck out with a right of reinstatement upon the filing by him of an affidavit of a psychiatrist or psychologist confirming that the father has undertaken at least ten therapeutic sessions with him or her (as ordered by the Honourable Justice Guest on 30 October, 2006) and containing a report by that psychiatrist or psychologist as to the father’s treatment and prognosis. 

1. That a sealed copy of this order be served on the father by the Court by sending it to the last known address of the father provided on the Notice of Ceasing to Act filed by his former solicitors on 11 December, 2007

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

2. That pursuant to s.62B and s.65DA(2), 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 and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That the reasons for judgment this day be transcribed and copies made available to the parties.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2782 of 2004

MR THORNTON

Father

And

MS REECE

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties lived together from December 1998.  They separated in April 2000.  They have two children;  T was born in June 1999 and K was born August 2000.  Orders were made in the Local Court in March 2003, providing for the father to have contact with the children as agreed by the parties.  Failing agreement, he was to have contact on each third weekend from Friday at 3:00 pm. to Sunday evening, and by phone on each Tuesday. 

2. On 5 April 2004 the mother filed an application in the Local Court seeking suspension of those orders.  The father filed a response seeking that they be considered interim orders until such time as a family report was obtained. 

3. The mother filed her application to suspend the orders after watching a video of the children staying at the father's home, which revealed his involvement in sexual acts with a girl who was about 13 or 14.  On 29 November 2004, the case having been transferred to this Court, this Court ordered that all face-to-face contact between the father and children be suspended.  Telephone contact was not suspended. 

4. In February 2005 the father was convicted of sexual assault of a minor and sentenced to 14 months imprisonment with a minimum of eight months.  He was released in October 2005.

5. The matter was placed in this list, having regard to the nature of the allegations.  On 3 February 2006 I ordered a family report and a psychiatric assessment of the father.  Ms D in the Albury Registry prepared the family report and Dr K prepared a psychiatric assessment.  The matter then went to trial before Guest J in October 2006.  Some way into the trial, interim orders were made by consent, providing for the father to attend at least 10 therapeutic sessions with a psychiatrist, with a report to be completed at the end of those sessions.  The previous contact orders remained suspended.  His Honour ordered that the matter not be re-listed before 30 April 2007.

6. The matter came before me in this list in May 2007, as envisaged by Guest J.  It was adjourned to today's date, a further period of some eight or nine months, as the father had not undertaken therapeutic sessions with a psychiatrist in accordance with Guest J's orders.  The independent children's lawyer has confirmed that one appointment was made with Dr. N, a psychiatrist in the western suburbs.  The father attended that appointment but said it was too difficult to continue, as he then lived in the south-eastern suburbs.  The independent children's lawyer then arranged for him to see Dr G, a psychologist who specialises in treating sex offenders. 

7. Five appointments have been scheduled with Dr G.  The father failed to attend two of them.  Of the three he attended, the last was in September 2007. 

8. No orders have precluded the father sending cards or gifts to the children, since 2003.  I am told that has never occurred. 

9. The father has been called today and has failed to appear.  His solicitor filed a notice of ceasing to act on 11 December 2007.  The address provided as his most recent address was the address in the south-eastern suburbs, to which I have referred.  Notice of this hearing was sent to that address, however, the father has failed to appear.

10. The children were very, very young when they last saw their father.  K will be eight later this year.  Having regard to the nature of the sexual offences of which the father was convicted, it is reasonable for the mother to be becoming more anxious, rather than less anxious, about the potential risks were K to spend any unsupervised time with her father.  It is submitted by counsel for the mother and the independent children's lawyer (a submission supported by Ms H, the family consultant assisting in this Court today) that it is not in the best interest of the children for their mother and them to remain under the constant pressure of this adjourned litigation. 

11. Guest J made very clear by his orders that the father needed to act, rather than rely on rhetoric.  Guest J recorded that the father told him he would do anything in order to see his children.  That has not extended to complying with an order to attend ten therapeutic sessions in the period since 30 October 2006.  It is actions rather than words that speak with children, and the father has not demonstrated the commitment of which he spoke.  It is submitted that the children's best interests demand that the father have no contact or communication with them and the mother have sole parental responsibility for them. 

12. Having regard to the importance of protecting children from physical and emotional harm, and in the light of the father's conviction and failure to demonstrate any commitment to orders aimed at rehabilitation, I have no hesitation in finding that the presumption of equal shared parental responsibility is rebutted.  There is a further pragmatic reason why such order for sole parental responsibility should be made.  The father has had no contact at all with the children for some four years.  It is unreasonable for the mother to be placed in a situation where she would need to try and find the father in order to fulfil her obligations under a joint parental responsibility order to discuss and agree on decisions relating to matters such as education and health. 

13. I do propose to order that the mother have sole parental responsibility for the children. 

14. I am satisfied it is the best interests of the children to order that, until further order, the father spend no time with them and have no communication with them.  I will strike out his response with a right of reinstatement on the filing of a report of a psychiatrist or psychologist that he has complied with the orders of Guest J, and completed 10 therapeutic sessions. 

15. I make it clear that a parent is never cut out from seeking time with children.  Were the father to file a fresh application, one could imagine it would get short shrift unless there was evidence that he has obtained treatment and effective treatment as envisaged by Guest J, or there were new facts and circumstances.  That would be a matter for the judicial officer before whom the application was listed. 

I certify that the preceding
15 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.