URWIN & NEVINS

[2020] FamCA 887

FAMILY COURT OF AUSTRALIA

URWIN & NEVINS [2020] FamCA 887

FAMILY LAW – CHILDREN – Application by father to discharge order suspending the operation of interim parenting orders which provided for the children to spend supervised time with the father – order for time had been suspended on the father being charged with sexual offences against the children’s half-sister – father’s trial for alleged sexual offences listed for May 2021 – father’s application dismissed.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Urwin

RESPONDENT: Ms Nevins

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 5254 of 2018

DATE DELIVERED: 15 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Waterman

SOLICITOR FOR THE APPLICANT: Amanda Fawaz Solicitor

SOLICITOR FOR THE RESPONDENT: Mr Preiksa from Fedorov Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grainger from Legal Aid

Orders

IT IS ORDERED THAT

1. The Application in a Case filed 17 September 2020 is dismissed.

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 Urwin & Nevins 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 BRISBANE

FILE NUMBER:  BRC 5254 of 2018

Mr Urwin

Applicant

And

Ms Nevins  

Respondent

And

Independent Children’s Lawyer 

EX TEMPORE REASONS FOR JUDGMENT

1. By Application in a Case filed on 17 September 2020, the father of two children, six year old X, who was born in 2014, and nearly four year old Y, who was born in 2016, seeks to resume spending supervised time with them. 

2. The orders sought in the Application in a Case include that the children spend two hours per week with the father at a Contact Centre (being B Contact Centre) with the parents to share equally in the cost of the same or, if the father chooses to engage other professional supervision for the time, he pay the entirety of the costs associated with it. 

3. The B Contact Centre proposed by the father differs from the Centre at which the children have been spending time with the paternal grandmother since orders were made on 16 August 2019 – that Centre being D Contact Centre. 

4. The mother opposes the relief sought by the father in the Application in a Case and seeks dismissal of the same.  The Independent Children’s Lawyer opposes the making of any orders for the children to resume spending time with the father at present and until resolution of the criminal proceedings the father currently faces. 

5. The manner in which this Court is to approach, consider and determine applications for interim parenting orders such as the present is well known and requires little or no further elucidation:  see Goode & Goode[1] and Banks & Banks,[2] decisions of the Full Court of this Court. 

   [1](2006) FLC 93-286.

   [2] (2015) FLC 93-637.

6. The relief sought by the father includes the discharge of Order 1 of Orders that were made on 16 August 2019.  That order suspended the operation of order 2 of orders made on 8 August 2018 which provided for the children to spend weekly supervised time with their father at a Contact Centre. 

7. The August 2019 order was made in circumstances where the parties had been engaged in a trial before me on 29, 30 and 31 July and 1 and 2 August 2019.  On the last of those days, the matter was adjourned to 16 August 2019 so as to enable the Court to take submissions on behalf of each of the parties and the Independent Children’s Lawyer.  However, that process was disrupted as a consequence of the father being charged for serious criminal offences in respect of which the mother’s two older children, Z and W, are the complainants. 

8. Consequently, when the matter returned on 16 August 2019, it was adjourned to enable the father’s legal representatives to obtain instructions from him as, at that time, they were unable to do so because, as I understand the evidence, he was on remand.  They also obviously needed to attempt to obtain greater clarity about the father’s circumstances. 

9. The father’s evidence, relied on for this Application, includes that he was charged on 15 August 2019 and refused bail when the matter first came before the Local Court in F Town.  Consequently, as I understand his evidence, he was held on remand until 2 October 2019 – at which time he was granted bail by the Supreme Court. 

10. The order made on 16 August 2019 to suspend the operation of the order which provided for the children to spend weekly supervised time with their father was made, in part at least, to reflect the reality of the father’s then incarceration on remand and absent any particularised information about the charges then brought against him. 

11. The father’s evidence relied on for this Application makes it clear that he currently has been charged with and faces trial in relation to a number of asserted offences against Z and two asserted offences against W. 

12. The offences with which he is charged that relate to W involve an allegation of intentionally choking the child with recklessness and committing common assault.  The charges he faces in respect of which Z is the complainant include assertions or allegations that he committed indecent assault upon her on a number of occasions and had sexual intercourse with her.  Each of the charges that relate to Z are asserted to relate to behaviour that is alleged to have occurred when she was either nine or 10 years of age. 

13. It is clear from the material before me that, when the father was arraigned on 31 July 2020, he entered a plea of not guilty to all of these charges. 

14. As I understand it, a trial of the charges has, at this stage, been listed to occur on 24 May 2021:  although, in the course of submissions in reply, Mr Waterman (who appears for the father) advised the Court that it was his understanding that, at present, there is an appeal pending in the Supreme Court of New South Wales in relation to a previously unsuccessful motion that the judge allocated to hear the trial recuse him or herself from that hearing.  As I understood Mr Waterman’s submissions, whilst he did not have available to him the date for the listing of the hearing of the appeal, one of the prospects is that, if it was successful, it may be that the currently listed trial date of 21 May 2021 be vacated and a new trial set before another judge either in G Town or in another location and that such date could, depending on the outcome of the appeal, potentially be set earlier or later than the current May 2021 listing. 

15. It is in those circumstances, then, and with that background that the Application filed by the father for the discharge of the order suspending the operation of the 2018 interim parenting orders that provide for the children to spend supervised time with him comes before the Court. 

16. As noted in Banks,[3] it is unnecessary for each statutory consideration prescribed by the Family Law Act 1975 (Cth) to be the subject of any particular discussion in the determination and consideration of applications for interim parenting orders. Therefore, any failure by me to mention a consideration specifically does not mean that I have overlooked the same in my deliberations about those orders which are now in the children’s best interests pending the resumption of the proceedings before me.

    [3] (2015) FLC 93-637.

17. The reality for X and Y is that they have not seen their father since 13 August 2019. 

18. The issue then, it seems to me, may be summarised to be whether it is now in their best interests for them to resume spending time with him on a supervised basis in circumstances where he has been committed to stand trial on various allegations of indecent assault and sexual intercourse involving their older sister and charges of assault and choking of their older brother. 

19. I am not persuaded that it is in their best interests in such circumstances for them to resume interaction with their father, even though such interaction would only occur on a supervised basis.

20. I arrive at that conclusion for the following reasons. 

21. Despite the children not spending time with their father since August 2019, the evidence of the paternal grandmother relied upon by the father in support of this Application includes, it seems to me, a basis for a conclusion that it is more likely than not that the children continue to retain a memory of him.  On her evidence, she has told the children that he has not been able to see them because he is working.  Given this, it seems to me, on an interim basis, that the children will likely be able to resume their relationship with their father in the future depending, of course, on the result of the criminal proceedings and that their relationship with him will be able to continue with the support of the paternal grandmother and, of course, the mother in making them available to spend time with the paternal grandmother under supervision in accordance with the order made on 16 August 2019.

22. Additionally, it seems to me that there is a significant difference in the circumstances which existed when the interim parenting orders were made in August 2018 and now. 

23. That difference is that I have – because of the chronology and circumstances and the manner in which the circumstances occurred in this matter – received the evidence relied upon by the parents and the Independent Children’s Lawyer at the relatively lengthy hearing before me.  That is, I have received evidence of a conversation between the father and a person who was a witness in the proceedings before me.  I do not intend to remark further about the contents of that communication, given that the father remains the subject of criminal proceedings which are not yet resolved, but I record that the contents of the same are, in my mind, relevant to the conclusion I have reached that it is not currently in the children’s best interests to resume interaction with their father, even under supervision. 

24. Whilst Mr Waterman submitted that the father’s bail conditions do not contain any prohibition which would prevent him from seeing the children the subject of these proceedings, I am not persuaded that the absence of a prohibition supports a conclusion that it is in the children’s best interests to resume such time.

25. I place weight upon and accept the submission made by the Independent Children’s Lawyer to the effect that it is likely – perhaps more likely than not –that difficulties may be created in the household in which the children live with Z and W should the children resume spending regular time with their father prior to the resolution of the criminal proceedings in which their older siblings are the complainants. 

26. I do not accept the submission made by Mr Waterman to the effect that, for the Court to take the step of continuing the restraint on the children’s time with the father requires some cogent expert evidence and that, absent the same, there should be a reversion to the circumstances which existed when the August 2018 order was put into effect.  I consider that it is open to the Court, on the evidence before it, to conclude that it is more likely than not, given that the children the subject of these proceedings live in the household with the children who are the complainants in the father’s criminal proceedings, that the resumption of time between X and Y with their father – even under supervision – prior to the resolution of the criminal proceedings would be more likely than not to cause instability in that household. 

27. I am not persuaded that it is in the children’s best interests at this time that the Court place them at any risk of instability pending the determination of the criminal proceedings. 

28. Rather, I consider it more likely than not that the maintenance of stability in the children’s household between now and the resolution of the criminal proceedings is more likely to be more beneficial to the children than what I regard as being the highly likely disruption to them which would be more likely than not to follow from the resumption of them spending time with their father. 

29. For those short reasons then, delivered orally, I intend to make an order dismissing the Application in a Case filed 17 September 2020.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 October 2020.

Associate:     

Date:              15 October 2020