Whelan & Kenna
[2023] FedCFamC1F 489
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Whelan & Kenna [2023] FedCFamC1F 489
File number(s): TVC 1455 of 2021 Judgment of: BAUMANN J Date of judgment: 17 May 2023 Catchwords: FAMILY LAW – PARENTING – Where consent orders as between the mother and the Independent Children’s Lawyer were presented to the Court on day one of the final hearing– where the father did not join in consenting to the orders as he sought to withdraw his Application – Final Orders made as sought by the mother and supported by the Independent Children’s Lawyer Legislation: Family Law Act 1975 (Cth) Cases cited: M v M (1988) 166 CLR 69
Vallans & Vallans (2019) 60 Fam LR 193
Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 17 May 2023 Place: Townsville Counsel for the Applicant: Mr C Duplock Solicitor for the Applicant: O’Sullivans Law Firm Counsel for the Respondent: Ms M Hayes Solicitor for the Respondent: North Queensland Women’s Legal Service Inc. Counsel for the Independent Children's Lawyer: Mrs R Bassano Solicitor for the Independent Children's Lawyer: Lehmann Featherstone ORDERS
TVC 1455 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WHELAN
Applicant
AND: MS KENNA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
BAUMANN J
DATE OF ORDER:
17 MAY 2023
THE COURT ORDERS:
1.That the mother have sole parental responsibility for the major long term issues of the child, X born 2016 (“the child”), including but not limited to:
(a)the child’s education;
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the names of the child; and
(e)any changes to the child’s living arrangements which would make it significantly more difficult for the child to spend time with each parent.
2.That the child live with the mother.
3.That the child spend no time and have no communication with the father.
4.That the father be and is hereby restrained by injunction pursuant to Section 68B of the Family Law Act 1975 (Cth) (“the Act”) from:
(a)contacting or attempting to contact, communicating with or approaching the mother or the child in any way whatsoever, including electronic communication, except via a lawyer;
(b)posting or commenting on any social media platform, publicly or privately, any information which identifies these proceedings or either of the parents or the child or any issue raised in these proceedings.
5.That pursuant to s 68B of the Act, the mother be restrained from:
(a)discussing these proceedings, or any issue raised in these proceedings, with the child or in her hearing;
(b)posting or commenting on any social media platform, publicly or privately, any information which identifies these proceedings or either of the parents or the child or any issue raised in these proceedings.
6.That the Independent Children's Lawyer be discharged.
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 Whelan & Kenna 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:
X is now seven years of age, having been born in 2016. She is the only child of a relationship between the Applicant father, Mr Whelan, and the Respondent mother, Ms Kenna, that appears to have commenced with cohabitation in 2014 and ceased with separation in 2016 when X was an infant. The matter has had a history which I will describe shortly but today the matter had been listed for a commencement of a trial. The father has representation via the cross-examination scheme operating pursuant to s 102NA of the Family Law Act 1975 (Cth), as has the mother. However, with the benefit of that representation and Mr Duplock of Counsel appearing for him, Ms Hayes of Counsel appearing for the mother and Mrs Bassano of Counsel appearing for the Independent Children’s Lawyer, I have been presented with a set of orders consented to by the mother and the Independent Children’s Lawyer.
The father does not join in consenting to those orders having earlier today indicated to the Court through his Counsel that he was withdrawing his Application. That Application had initially commenced proceedings in this Court having been filed in the Federal Circuit Court of Australia (as it then was) in November 2021. An interesting fact of that history is that the Application, having been filed in 2021, was some five years after the parties had separated. Nonetheless, as indicated to the father’s Counsel, he was entitled to be heard and has been heard on any orders sought by the mother in terms of her costs application and I have heard those submissions. I propose to make the order in the terms sought by the mother and supported by the Independent Children’s Lawyer.
To give context to my reasons, I provide the following brief background. When the parties separated in 2016, it seems that by negotiation and shaped to some degree by risk assessments prepared by psychologist, Mr B, different regimes for supervised time for the child to spend with the father occurred initially supervised by the mother, then for a few months supervised by an organisation called D Organisation, then for a further 12 months by C Organisation and following a period where there was no time between February 2018 and September 2018, thereafter between September 2018 and September 2020 by E Contact Centre, a commercial community-based contact centre. The importance of that history is that it reflects that whilst X has had connections with her biological father – and I have seen some notes that reflect that as well – it has never been agreed by the parties or ordered by a Court that X have unsupervised time with the father.
As X is now seven years of age, unsupervised time for a child of this age is hardly unusual. However, what has shaped the relationship between the parents and the options open to the Court and, I suspect, the parties, is a serious history of criminal conduct by the father as a minor, in fact, at times as a child that was reflected in a plea of guilty by him to various offences affecting his sisters as long ago as 2014. I am aware of the offences, as is the mother. In fact, it seems that she may have commenced cohabitation with the father before he pled guilty and so to some degree she knew of the history and the decision by the father to plead guilty to those offences. I have had the benefit of reading particulars about those offences including the sentencing remarks, all within a body of material tendered by consent (at least the mother and the Independent Children’s Lawyer), and has been marked Exhibit 1 today.
A Mr B, a Psychologist, has conducted a sexual abuse risk assessment in respect of the father on, it seems, at least three occasions. In mid-2014, Mr B prepared what appears to have been a pre-sentence report. Thereafter, post separation and while the parties were trying to negotiate some time arrangements for X, Mr B prepared a further report on 25 September 2018. For the purposes of this trial and with the benefit of support from the Independent Children’s Lawyer, Mr B prepared his third sexual abuse assessment report in or about April 2022. It is not necessary in these ex tempore Reasons to incorporate large slabs of that report, save to identify that, longitudinally, Mr B, seemingly with a very good knowledge of the history and other material still, in his most recent report, identifies two matters of significance:
(a)That the father should be regarded as a low to moderate risk of reoffending but perhaps more importantly; and
(b)that any time that X spends with the father should be supervised.
It was not within Mr B’s brief – and I would say appropriate for him – to speculate when supervised contact, if occurring, should end or move to unsupervised time. The general flavour of his report was that he was not able to say when that could occur, however, that does not seem to have been part of his brief. It was very much, however, the brief of the family report writer, Ms F. She undertook interviews after the third report of Mr B was available on 1 July 2022. Her report, dated 24 July 2022, is before me. I have read and considered it. Like all the other evidence in this case to which I will refer in these ex tempore Reasons, her evidence and opinions have not been tested. Clearly, I am not bound to merely follow advice or opinions of any expert.
However, in terms of the order I am being asked to make, it seems appropriate to particularly refer to paragraphs 9.5 and 9.6 of Ms F’s report which I incorporate in my reasons as follows:
9.5The court will need to make an assessment of what is in [X’s] best interests and determine if ongoing supervised contact for at least the next 10 years is appropriate. My recommendation is that this contact should never progress to unsupervised. There are a range of factors for the court to consider when determining long-term supervision of children. These factors include whether the child has an existing relationship with the parent, the impact of any change to the child’s understanding of family, the ongoing cost involved in supervision, the unnatural environment in which the supervision occurs and importantly also the impact such contact would have on the parenting capacity of the mother.
9.6I do not see any positive reason to support why [X] should now start spending time with [Mr Whelan] or any of the paternal family. [Ms Kenna] appears to have been able to raise [X], ensuring that she is happy and healthy, with her care and protective needs being met. It is my view that if the court were to make an order that contact between [X] and [Mr Whelan] were to commence, this would not only have a detrimental impact on [X], it would significantly impact in a negative way on [X’s] future stability. The court has to understand that once a decision is made for contact to recommence, it can create many new challenges that can have a lasting and detrimental impact on both the child and the mother should the contact not progress well or should the contact become inconsistent. The court cannot undo the impact of such a decision and knowing this is never going to transition to ever being unsupervised, would in my view, not be in [X’s] best interests.
It is a sad feature that after some two years of supervised time, the time ceased in September 2020. On the available evidence, I am prepared to accept that over that period of regular supervised time, the child identified with the Applicant as her father and as best as can be seen, enjoyed the time she spent with him. The cessation of time, however, especially when she was only four years of age at the time of cessation of time, has meant that there has been a period where the child’s memories of her father have no doubt dimmed. I do not comfortably accept that she has no memory of her father. Many children remember parts of their life much younger than some parents give them credit for. Nonetheless, it has been a significant period and so recommencing, as Ms F has identified in the paragraphs just quoted, is a real consideration for the Court.
Why the time ceased is somewhat controversial. It is suggested at least one of the factors – it seems apparent from the records (particularly the information from the officer at supervisory centre procured by the Independent Children’s Lawyer) – that increasing publication on social media of these very old charges against the father caused the people at the contact centre to feel that they may be at some form of risk. That is certainly one of the factors that caused, it seems, a voluntary organisation to seek – as they are entitled to do – to cease further services. That such a result was more than fanciful can be demonstrated by the father’s evidence, which I accept, that as a result of the media attention given to the local community, he was seriously assaulted at his work in late 2021.
It seems apparent that the father believes, but cannot establish on the evidence, that the mother or people supportive of her had been responsible for the social media posts. The mother, on oath, denies such involvement. I can make no such finding. It is a sad reality of the world in which we live that people, with the protection of absolute anonymity, seem to think that it is appropriate to dredge up really sad experiences that people may have had as a child for some other purpose.
Nonetheless, I do not find that the mother was involved in those posts on the evidence before me. I have raised and earlier had raised in a Case Management Hearing, my concerns about the strength of the evidence in relation to supporting what the mother says and swears to be the disclosure made by the child in late 2020 of being inappropriately touched by the father. As I have identified, the only time the father has, since the child was two months of age, had contact has been in the presence of an adult, either a professional supervisor or, in the earlier stages, the mother. I have not read the section 93A interview, but in the Exhibits the Court has accepted from the Independent Children’s Lawyer, I am provided with a summary by the police of the section 93A interview. There is no other forensic evidence that would support that the child had been the subject of abuse by the father.
It is a feature of this jurisdiction, arising from at least no lesser authority than the High Court in M v M (1988) 166 CLR 69, that this Court should be cautious to make a finding about whether abuse had or had not occurred. The test which the Court is to apply is whether or not the child would be at unacceptable risk in the care of a parent because of some factor such as sexual abuse.
The evidence does not establish in my view a foundation for such an unacceptable risk finding against the father. I do not make it and I note that no such finding is actually sought by the Independent Children’s Lawyer or the mother. Nonetheless, of course, with the history that I have identified, the mother, notwithstanding she knew about much of this history in some degree from the early days of her cohabitation with the father, would be highly protective and hyper vigilant. I see her actions in going to the police as she did after what she says were some comments made to her by the child – although at least even on the mother’s own evidence, somewhat of a result of leading questions – as not inappropriate.
A parent is not entitled to so confidently ignore anything a child says to them. In those circumstances, where no such finding is made, the reasons why, in my view, the orders sought by the mother and supported by the Independent Children’s Lawyer should be made is as identified by Ms F in the passages of her report I have quoted, supported by the other opinions expressed in her report.
The proposed orders 4 and 5 are ancillary to the general proposition which I agree with, that on the evidence at this stage, the child should spend no time or communicate with the father. The parties are unable to communicate at any reasonable level and therefore the mother’s application that she has sole parental responsibility has a principled foundation. There needs to be a principled reason to depart from the statutory presumption of equal shared parental responsibility, as decisions like Vallans & Vallans (2019) 60 Fam LR 193 make clear.
Mr Duplock, on behalf of the father, invited me to amend the order so that there could be some recognition on his instructions on what the father claims to be the child’s Aboriginality. Of course, the Family Law Act 1975 (Cth) makes it clear that a child’s Aboriginality is a matter that must be taken into account and, where possible, preserved and encouraged (s 60CD(2)). The child’s Aboriginality appears to be in dispute between the parents. The father’s evidence is lacking in particulars of how his Aboriginality has manifested in his connection with his mob or his past behaviour. I do not make a finding that the child is not Aboriginal, because the evidence is just insufficient for me to be satisfied that I ought make orders that can only be put in effect because of the orders I am making about where the child lives and spends time by her mother. For example, there is nothing in any of the material that suggests that the Aboriginality which the father identifies with has been a feature of the earlier upbringing of the child or any feature of the post-separation regime – noting the history of the care. I made the observation in open court that, of course, if the child ultimately herself identifies her Aboriginality through the paternal family, then she can pursue that at a stage when she is older.
The other issue, to be fair to Counsel for the father, that he was asked to raise, was to seek to extend the effective section 68B injunctions. They are orders made for the welfare of the child so as to restrain the mother from bringing the child X into contact with the father’s family. Again, in the subpoenaed material, I have read what the father says about his family; the pain they caused him in his upbringing; the lack of direction and hurt that he suffered as a result of their actions and inactions. They are deeply felt by him, I am sure. I do not minimise them. However, in my view, there is no evidence that this mother, aware as she would be of that history, has any intention of ever interacting with the paternal family. There is no evidence that she has sought them out as part of some family connection. As to how she might, if ever in the future, encourage X to build a relationship with H – who is a child of the father and a former partner, Ms G, born in 2009 – is a matter I can comfortably leave to the mother in terms of the child’s best interests.
As I said, for those reasons, I do not make any amendments to the order as sought on the submissions of Counsel for the father. The statutory pathway for making a parenting order is well established, the paramount consideration being the child’s best interests. The principles under which the parenting orders are to be made include a right for a child to spend time with a parent or other person significant to their care, welfare, and development.
To make orders in the form now sought by the mother, supported by the Independent Children’s Lawyer, which do not give effect to that right or that principle is an important consideration.
In my view, however, on the evidence in this case, the orders I make today are in the child’s best interests. I make them. I discharge the Independent Children’s Lawyer.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 15 June 2023
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