Injunction of ex-partner to prevent abuse
Hester & March  FamCA 172 (9 March 2016):
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/172.html
- I have just made some orders with the consent of the mother and the father and the Independent Children’s Lawyer in this case. Earlier today I granted an injunction restraining Mr N from effectively making any contact with the mother, the children, the father and his wife. That injunction was granted with the consent of all three of the parties to the proceedings but also Mr N himself who was present in Court and had the matter explained to him and was given the opportunity to seek independent legal advice before he consented after indicating to the Court that he did not wish seek such advice.
- The orders that I have just made with the consent of the mother, father and Independent Children’s Lawyer provide for the four children of the mother and the father, who are the children the subject of the proceedings, to live with the father until further order and to spend time and communicate with the mother in certain defined terms until further order.
- Principally they are to spend time with her from 10.00 am until 4.00 pm each alternate Saturday and each alternate Sunday, those days being on the same weekend, of course. Such time is to be supervised by any one of a number of listed people who have already been listed as supervisors in the proceedings on an interim basis prior to the matter reaching trial today. In addition, the orders provide for the children to spend overnight time from the Saturday to the Sunday in circumstances where the mother is able to secure the attendance for that overnight period from one of those named supervisors and on terms that she give the father notice of such arrangements by email or text message by no later than 6.00 pm on the Thursday before such weekend.
- The terms also require the mother to ensure that the children participate in organised sporting activities that fall during the time that they are spending with her on such weekends.
- In addition, the orders that the mother, the father and the Independent Children’s Lawyer agree to, condition the time that the children are to spend with the mother as just described, upon the mother obtaining a referral to attend upon a psychiatrist, either being Dr K, or if she is not available, then either of Dr L or Dr M. The orders also provide for the Independent Children’s Lawyer to publish an agreed bundle of documents to Dr K, or the other psychiatrists, if it is one of the others, which might assist in the therapy that is to be obtained by the mother.
- The matter is, by agreement, to be mentioned before me in six months’ time.
- The matter was listed for a trial, taking place over five days, commencing before me Monday this week, Monday 7 March 2016. It has been pending for several years to say the least. The immediate proceedings leading to this trial were commenced back in late 2012 after the mother’s then partner, Mr N, had been charged with offences of sexually abusing two of the four children of the parties.
- The mother who, until this trial in the last few days, supported the position taken by her former partner, Mr N, that he had not sexually abused the children, had only been spending supervised time with these children up until the start of this trial, with the children otherwise living with their father, step-mother and half-siblings.
- The mother’s former partner, at a trial in the District Court that took place early last year, 2015, had been acquitted by the jury, not having given any evidence himself during the course of those proceedings.
- The consent arrangement arrived at on day three of this five day trial before me has been based essentially on an ultimate concession made by the mother during the course of her evidence before me that she now accepts that her two youngest daughters were indeed sexually abused by her former partner and that the father’s position is in fact vindicated. The mother withdrew (as I interpreted, effectively unreservedly) all previous assertions that the father had wilfully and maliciously made up the allegations against her former partner and coached the children to falsely accuse him of having sexually abused them.
- In the circumstances just outlined, I accept that the interim orders agreed to between the mother, the father and the Independent Children’s Lawyer are in the best interests of the children. These orders allow for, what has been accepted by all the parties is an appropriate course, the mother to rebuild her relationship with the children and also her co-parenting relationship with the children’s father across a period of time during which the children, whilst in her care, are being supervised by another adult and during which the mother is also receiving, what might be properly be described as psychotherapy from a psychiatrist who is appropriately and suitably briefed by the Independent Children’s Lawyer in the case to provide such appropriate psychotherapy.
- I determined that I should give these extemporaneous reasons so that I can also place on the record my views that the positon reached by the mother during the course of her oral evidence in these proceedings, namely one of acceptance that the girls were telling the truth when they said and maintained that Mr N had sexually abused them, is indeed an appropriate position for her to arrive at having regard to all of the evidence that was before me during the course of the first three days of this trial.
- Aware of the fact that Mr N was acquitted by a District Court jury I nevertheless record my acceptance of the position adopted by the mother and advanced by the father in this case, one that I understand is completely supported by the Independent Children’s Lawyer at this stage of the proceedings, that the children were sexually abused, as they alleged, by their mother’s former partner, Mr N, and that they would be at a totally unacceptable risk of experiencing sexual and emotional harm if they were at all to come into contact with Mr N again in the future.
- Finally, although it is not an order that I am asked to make with the consent of the parties, I will also direct the Registrar of the Brisbane Registry of the Family Court to provide a copy of these orders and my reasons just delivered extemporaneously to the Department of Communities for that department to place on their records, noting in particular that evidence emerged during the course of this trial that Mr N is now the father of a little girl about whom he is apparently in some sort of dispute with that child’s mother in respect of the time that the child spends with him and is in his care.