Wehausen & Earl (No 2)
[2023] FedCFamC1F 798
•21 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wehausen & Earl (No 2) [2023] FedCFamC1F 798
File number(s): ADC 3873 of 2020 Judgment of: KARI J Date of judgment: 21 September 2023 Catchwords: FAMILY LAW – EX TEMPORE REASONS – Where final parenting orders were made by consent Cases cited: Isles & Nelissen (2022) FLC 94-092 Division: Division 1 First Instance Number of paragraphs: 15 Date of hearing: 18 September 2023 Place: Adelaide Counsel for the Applicant: Ms Smith Solicitor for the Applicant: Picotti-Ellis Legal Counsel for the Respondent: Ms Lee Solicitor for the Respondent: Southern Vales Legal Counsel for the Independent Children's Lawyer: Ms Horvat Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 3873 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WEHAUSEN
Applicant
AND: MR EARL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
18 SEPTEMBER 2023
IT IS ORDERED BY CONSENT OF THE MOTHER AND THE INDEPENDENT CHILDREN'S LAWYER AND NOT OPPOSED BY THE FATHER:
1.That all previous parenting orders be discharged.
2.That the Mother have sole parental responsibility for the child X born 2012.
3.That the child live with the Mother.
4.That the Father be at liberty to send the child:
(a)A Christmas Card in December of each year;
(b)A birthday card on the occasion of her birthday each year;
(c)A card or a letter in March of each year;
(d)A card or a letter in September of each year.
With such cards or letters to be sent to an address nominated by the Mother and with the Mother to be at liberty to check such cards and letters to ensure the material contained within them is appropriate before passing same onto the child.
5.That save and except for the communication as set out in paragraph 4 herein the Father is restrained and an injunction is granted restraining him from spending time with or communicating with the child.
6.The each of the parties keep the other informed by post of their current postal address for the purpose of the communication referred to in paragraph 4 herein.
7.The Father is restrained and an injunction is granted restraining him from:
(a)Attending at or within 100 metres of the child's school or home address;
(b)Keeping the child under surveillance of any kind; and
(c)Threatening, harassing or intimidating the child in any way.
8.Each party is restrained and injunctions are granted restraining each of them from:
(a)Discussing any issues raised in these proceedings with the child and from allowing any other person to do so;
(b)Posting any information raised in these proceedings on the internet or any social media websites; and
(c)Abusing, criticising or denigrating the other parent or any member of their family in the child's presence and from allowing any other person to do so.
9.That the Father is at liberty to obtain the child's school reports directly from the school with these order to stand as authority for that to occur.
10.That the Mother provide a copy of these orders to any school the child attends.
11.That the appointment of the Independent Children's Lawyer be discharged.
12.That all extant applications be dismissed as finalised
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 Wehausen & Earl has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
This matter comes before me today in relation to the parenting arrangements for the parties’ child X born 2012.
The matter was listed by me to proceed to a final hearing today on an undefended basis. I pause here to note that I made an order for the matter to proceed on an undefended basis on 15 March 2023, as explained in my oral reasons that day, effectively as a consequence of striking out the father’s response to final orders that he had filed in these proceedings on 28 March 2021.
For today’s purposes, I have had regard to and I incorporate the reasons that I delivered on 15 March 2023 (Wehausen & Earl [2023] FedCFamC1F 239). I do so because those reasons set out a detailed history of the litigation, but, in addition, the issues that present themselves for the court’s consideration today.
Today, however, while the matter was listed for an undefended hearing with the ability for the father to cross-examine any witnesses called by the mother and/or the Independent Children’s Lawyer, I was advised at the commencement of the hearing that the parties required some time for discussions. Having afforded the parties that time, I now have before me a draft minute of order which both the mother and the Independent Children’s Lawyer ask the court to make with their permission and consent.
At the father’s end, while he does not specifically consent to the orders set out in the draft minute of order, his counsel has today indicated that the father does not oppose the orders being made as set out in the draft minute of order.
I note that I have spent some time hearing brief submissions from each of the parties, and, as a consequence, I have made some minor amendments to the draft minute of order. Those amendments again meet with the approval of the mother and the Independent Children’s Lawyer and they are not opposed at the father’s end.
DISCUSSION
In circumstances where I set out with some detail the history of the matter and the issues in dispute between the parties in my reasons of 15 March 2023, I do not propose to repeat all of those matters today.
The reality, however, is that the court is now being asked to finalise the proceedings. The parties, from the positions they have each taken before the court today, clearly promote the orders the court has been invited to make as ones that are in X’s best interests. That does not, however, mean that my role is simply to rubber stamp the orders that the parties are inviting the court to make. I am required to bring my independent views to the matter and make orders that the court considers to be in the child’s best interests.
For the reasons that I published in March of 2023 and having read the outlines prepared on behalf of each of the mother, the Independent Children’s Lawyer and the mother’s trial affidavit and the report - the section 62G report prepared by Ms B, I am satisfied that the orders the court is now being invited to make are indeed in X’s best interests.
While I am satisfied that the proposed orders are in X’s best interests, I make it clear to the parties that I am making no findings as to the disclosures made by X so far as any allegations of sexual abuse perpetrated against her by the father are concerned. Having said that, it is not lost on me that the Department for Child Protection (“DCP”) engaged in a fulsome child protection investigation in relation to those allegations and indeed they considered that the allegations were substantiated. In addition, I am mindful that the father was charged with various offences in relation to those allegations. Those charges did not ultimately proceed in circumstances where X was considered too young to give evidence.
While I am not in a position to make findings about the allegations, the fact that there was a fulsome investigation by the DCP which substantiated the allegations must give me some cause for concern so far as any risk that the father presents to the child. As is always the case in any parenting proceedings where allegations of abuse has been made, the court is not required to make findings as to whether the allegations are made out or not. Moreover, as identified most recently in the Full Court decision of Isles & Nelissen (2022) FLC 94-092, the assessment of risk involves a prospective element as well.
In circumstances where the allegations were substantiated by the DCP and charges flowed, it would not be proper for me to simply ignore the allegations that have been made. In bringing them to account, I am satisfied at this stage that the allegations that have been made and the way in which they have been investigated leads me to a conclusion that the father does indeed present an unacceptable risk of harm to X at this juncture.
It is for those reasons that I am satisfied that the orders that I have been asked to make are in X’s best interest, because, importantly, they provide for X to live with the mother and for the mother to have sole parental responsibility for her.
The orders, to the parties’ credit, provide for there to be some communication between the father and X by way of the father sending letters and cards to X on a quarterly basis. What that means is that, in time and when she potentially is an adult, X will have the ability to make her own decisions as to whether she wishes to pursue a relationship with her father or not. Whatever the case may be as to her decision in the future, from the father’s perspective, the door is open for her to walk through it if indeed she chooses to do so.
For all of those reasons, I am satisfied, as I say, that it is appropriate to make the orders that I have now been invited to make and that the orders are indeed in X’s best interests.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 21 September 2023
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