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Father has been charged with Rape of the mother and now seeks time with the Children.

Oakins & Faberman [2021] FCCA 1406 (7 April 2021)

Parties separated due to extensive history of family violence.  The mother also alleges sexual assault against the father.  The Court assessed the risk of harm to the children in determining whether or not the father should be able to spend time with his children. 

Facts:

The mother applied for a recovery order in relation to X and Y, her children with the father who had retained them after their separation.  The mother made a complaint to the police that the father has been charged with a serious criminal offence of rape.  On 28 September 2020, an order was made for the children to be immediately returned to the mother’s care and for them to live with the mother and spend no time with and have no communication with the father.  The father is seeking an order that the children spend time with him each Saturday from 10.00am until 4.00pm for three months and thereafter each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday.  There are some extremely serious allegations of wide ranging, pervasive family violence raised by the mother.  Very close to the day of separation, the father has been charged with sexually assaulting the mother.  The mother also gave evidence about cameras installed by the father within the house.  The father has made admissions about the cameras but reasoned it was to avoid intruders.  He also suggested marriage close to the date of separation with the mother. 

Issue:

Whether or not an order should be made for children aged 10 and 7 to spend time with their father.

Applicable law:

Family Law Act 1975(Cth), s 60CC - the court, in making its findings should consider the benefit to the children of having a meaningful relationship with both of their parents.

Analysis:

The Court will have to forego the consideration of having a meaningful relationship with both parents if the mother has put forward sufficiently convincing evidence to cause the father to be charged with a sexual assault, a charge which is due to be heard in the District Court.

If the mother’s allegations are true the children would not themselves necessarily be at direct risk of harm from the father, but they would be subject to extremely poor role modelling in terms of the father’s attitude to women and to their mother in particular.

The mother could be at risk of harm if an order is made for the father to spend time with children because of the disturbing possibility that he is obsessive and jealous in relation to the mother.  This is as per his admission about the cameras and his own story about taking the mother to a courthouse and suggesting they get married close to the date of separation.

Conclusion:

The Court ordered on interim basis that X and Y live with the mother who shall have sole parental responsibility for the children.  The mother is not permitted to relocate the children from the Region B area without an order of the court.  The father shall spend no time with and have no communication with the children.  The father is restrained and an injunction is granted restraining him from removing the children from any school, day care centre, extra-curricular activity or from the care of any person in whose care the mother has placed the children.

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Comments (7)
    • Judge Terry thinks it's her role to change society and I'm pretty sure it isn't. Here is part of her Honour's rationale for removing the children from the father's home and not allowing him to see them at all:

      26. If the mother’s allegations are true the children would not themselves necessarily be at direct risk of harm from the father, but they would be subject to extremely poor role modelling in terms of the father’s attitude to women and to their mother in particular, which could have ramifications for the rest of their lives.

       

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      • After keeping an eye out on how the judicial system operating of recent times its obvious what is going on.

        It's no surprise men young and old are checking out of society and relationships in a mass exodus.

        My analogy is, if a seasoned gambler knows a casino has a house edge of 0.5 to 17.5% why on earth would a gambler play the game? If a woman has a grossly favorable edge in family law based on an unproven allegation, why on earth would a decent man gamble his life on an outcome which he is bound to lose every time on the basis of 'sociological balance of probabilities'? 

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        • I don't disagree with you most of what you're saying, and I agree men should be cautious. I'm just saying if the professionals reluctant to put their credibility on the line doesn't stop ordinary votes from working together to try to rebalance the system. We can urge others to "require more stringent standards of representation" and teach and enforce "procedural processes within the industry" but if we just push the work-load onto someone else they may just ignore us.

          Re: Judge Terry: Personally, I think removing an 8 year old and 11 year old boy from their primary residence and disallowing contact because of "cameras in the house" etc. seems, at least at first blush, at odds with what I would expect from most family law judges.

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          • The most obvious concern about Judge Terry's judgement (and others before and after) is the context of the judicial officers reasoning in his/her decision.

            THIS is where the core of the problem lies within the family law jurisdiction.

            Every act of human behavior brought to light in a trial or hearing tends to focus on negative aspects of human behavior with a strong emphasis on negative feeling and emotion while not EVER give any merit or acknowledgement to positive consequences or outcomes of that kind of behavior.

            For example, cameras in the house may have been for the protection of the husband or children, but here you have a judicial officer grossly insinuating the act in favor of the applicant ex wife. Raises so many questions. For one, his wife claims he raped her. The context of these claims, having cameras installed in the house for each parties protection doesn't seem like such a bad idea.

            The judicial officer must have the capacity to make a judgement call on the circumstances and not be influenced by emotion, feeling or prejudice.

            NOW, i'll stick my neck out and say this bluntly, if a judicial officer cannot disconnect from these 3 aspects (Emotion, Feeling, Prejudice) regardless of the claim behavior or social acceptances, that person should not be in the position to make detrimental judgement calls.

            The adversarial approach has to be junked or at the very least the judicial officers must focus on positives more than determining outcomes on negatives or prejudice traits. 

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            • I agree context is very important and often overlooked by judges. It is very easy to criticise someone when you are blind the their circumstances.

              Some judges, to their credit, put the evidence in front of the reader and say, for example, "Here is what the father wrote to the mother and which I interpret as follows..."

              That doesn't solve the understanding-the-context problem completely, but I find it comforting to be able to read what it is that a judge is basing their decision on.

              Maybe it's just my imagination, but Judge Terry seems to make a habit of making findings based on evidence she does not wish us to see. For example, I would have like to read, in full context, "the things" the father is supposed to have said here:

              1. Some of the things the father said in his affidavit suggest that he has committed acts of coercive and controlling family violence, even though he is not prepared to put that label on it.

              I also agree with you that the legal profession's tendency to focus on negative consequences of behaviour and ignore positive ones is a mistake.

               

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