Willemsen and Willemsen

[2018] FamCA 357

FAMILY COURT OF AUSTRALIA

WILLEMSEN & WILLEMSEN [2018] FamCA 357

FAMILY LAW – PARENTING – Consent orders.

Family Law Act 1975 (Cth)
Evidence Act 1995

APPLICANT: Mr Willemsen

RESPONDENT: Ms Willemsen

INDEPENDENT CHILDREN’S LAWYER: Ark Law

FILE NUMBER: SYC 7939 of 2015

DATE DELIVERED: 18 May 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 14 – 18 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Kearney SC

SOLICITOR FOR THE APPLICANT: Doolan Wagner Family Lawyers

COUNSEL FOR THE RESPONDENT: Dr J. Brasch QC

SOLICITOR FOR THE RESPONDENT: Pearson Emersson Meyer Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms E. Windsor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ark Law

Orders

1. Pursuant to the slip rule I amend the order I made on 15 May 2018 by deleting the words “Order 3” from order 5 and inserting the words “Order 4” and I note that when those orders are engrossed that change will be included in the final orders when they are uploaded to the portal. 

2. The document entitled “Order” be marked ass Exhibit 33.

3. Subject to my ex tempore reasons for judgment for making consent parenting orders, I note the submissions in paragraph 1 of Exhibit 33.

4. Orders are made in the terms of paragraphs 2 – 30 of Exhibit 33.

5. The document entitled “Child Support Departure Order” (by consent) be marked as Exhibit 35.

6. Orders and notations be made in accordance with Exhibit 35 as attached.

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 Willemsen & Willemsen 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 SYDNEY

FILE NUMBER: No. SYC 7939 of 2015

Mr Willemsen

Applicant

And

Ms Willemsen

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I mark the consent orders exhibit 33.  Paragraph 1 of the consent orders which are now exhibit 33 contain a submission made jointly by the father, the mother and the independent children’s lawyer that the father has not abused the child B whether sexually, physically or otherwise and further that the father has not engaged in any inappropriate behaviour in relation to the child including but not limited to grooming behaviour, and each of the parties and the independent children’s lawyer seek that I make a finding and consent to me making a finding in those terms.

2. Senior counsel for both parties have submitted that paragraph 1 of the consent orders are aimed at satisfying the requirements of rule 10.15A.  Four days of the scheduled seven-day hearing has been completed in this matter.  The mother had contended that there was an unacceptable risk of harm to the child, the child of the parties who was aged five, and sought that the child spent long-term supervised time with the father.  Broadly, the mother alleged that the father engaged in inappropriate touching and grooming behaviour.  These allegations arose from what the mother said were sexualised and other inappropriate behaviours exhibited by the child, other things the child did and said and things the father has done and said.

3. During this week, the father was cross-examined by senior counsel for in excess of four hours, and his cross-examination had concluded. The mother had been cross-examined for over six hours, and her cross-examination had not concluded. Had this matter gone to a final judgment, given the serious nature of the allegations and considering the provisions of s 140(2)(c) of the Evidence Act, it would have been highly unlikely and inappropriate for any finding to have been made that the father had sexually abused the child.  That, of course, wouldn’t have finalised the matter.  The mother also had asserted that there was an unacceptable risk that the father had sexually abused or groomed the child from her birth up until the commencement of supervised time, and it was part of her case there was even some grooming behaviour during supervised time.

4. In this case, a finding of whether unacceptable risk existed would, to a large degree, have turned upon the acceptance of evidence from the mother about the child’s statements to her and her observations of the child which gave her cause to be concerned that, most seriously, the child was involved in felatio with the father and masturbation of the father leading him to ejaculate and the father had interfered with the child’s vagina and anus.  Findings about those matters in turn would have been heavily influenced by general findings in relation to the credit of the parties and, in particular, the mother’s credit given that it was her evidence upon which these allegations turned.

5. As I have said, the mother’s cross-examination wasn’t concluded, and I haven’t heard evidence from two experts or final submissions.  As already mentioned, the mother now submits to me and asks me to make a finding that the father has not abused the child sexually, physically or otherwise or involved himself in any other inappropriate behaviour in respect of the child.  In respect of the evidence that I’ve heard, the mother was going to be in some difficulty in establishing that there was a basis for a number of the facts that she was asserting including that the father had interfered with video footage of the child’s first bath in order to eliminate evidence that showed that he had inappropriately touched the child’s genitals whilst she was one or two days old; that in January or February 2015, the father had drugged her in order to have free access to abuse the child; whether or not she had spontaneously left Australia with the child on 20 October 2015 after her meeting with Dr N; the mother’s rejection of the notion that persistent diarrhoea may have been one of the causes for the child having an inflamed anus and the lack of reflection by the mother on possible explanations other than that the father had sexually abused the child, explanations such as the child’s nature developmental curiosity and information received from other children.

6. It is probable, I infer, that the mother has reflected on those difficulties that she had in her case and that has motivated her to make the submission that she has. I do not, however, intend to accept the invitation to make the findings that I’ve been asked to make. I don’t need to do that in order to make the consent orders. I take the submission in paragraph 1 as an adequate explanation pursuant to the requirements of rule 10.15A Family Law Rules as to how these orders have been crafted to attempt to deal with the allegations of abuse by the father. I’m comfortably satisfied that the proposed consent orders are in the child’s best interests, and I accordingly make orders in accordance with paragraphs 2 through to 30 of Exhibit 33.

7. I thank the lawyers and A/Prof H for the part they’ve played today in resolving the matter.

I certify that the preceding seven (7) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 18 May 2018.

Associate: 

Date:  23.5.18