FEDERAL MAGISTRATES COURT OF AUSTRALIA
WAKEMAN & WAKEMAN	[2010] FMCAfam 569 	

FAMILY LAW – Father in prison for sexual abuse of step-sibling – father’s application that children visit him in prison – prison requirement prevent visits by children – children not told why father in prison because of young age – risk to sibling relationship if children visit father in prison.	

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 79C, 91B
Confiscation Act 1997 (Vic), s.18	

Applicant:	MR WAKEMAN	

Respondent:	MS WAKEMAN	

File Number:	MLC 4093 of 2009	

Judgment of:	Phipps FM	

Hearing date:	25 March 2010	

Date of Last Submission:	25 March 2010	

Delivered at:	Melbourne	

Delivered on:	25 March 2010	

REPRESENTATION
The Applicant appearing via telephone link on his own behalf:		

Counsel for the Respondent:	Ms Brennan	

Solicitors for the Respondent:	Tyler Tipping & Woods	

ORDERS
(1)	All previous parenting orders are discharged.  
(2)	That the wife have sole parental responsibility for the children [X] born [in] 2002 and [Y] born [in] 2006.  
(3)	That the said children live with the wife.  
(4)	That the children’s time and communication with the husband is reserved, save that the husband may send the children cards and letters enclosed in envelopes addressed to the wife.  The wife may, in her discretion, not give any card or letter to the children.
(5)	That the Director of Public Prosecutions for Victoria be given notice of the property application and invited to make submissions pursuant to s.79C of the Family Law Act 1975 (Cth).  
(6)	That property proceedings be adjourned for mention to 14 July 2010 at 10.00am.
IT IS NOTED that publication of this judgment under the pseudonym Wakeman & Wakeman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE	
MLC 4093 of 2009
MR WAKEMAN	
Applicant

And

MS WAKEMAN	
Respondent

REASONS FOR JUDGMENT
1.	The applicant, Mr Wakeman, and the respondent, Ms Wakeman, were married [in] 2002.  There are two children from that marriage who are [X], born [in] 2002, aged 7, and [Y], born [in] 2006, aged 3.  The mother, Ms Wakeman, has two children from another relationship, [Z], born [in] 1995, aged 14, and [T], born [in] 1992, aged 17.  The father is currently in prison for reasons which I will explain in a moment.  The application concerns both the children and property matters.  
2.	Property matters cannot be disposed of today.  In the County Court of Victoria on 15 September 2009, Parsons J made an order under s.18 of the Confiscation Act 1997 (Vic) restraining dealings with the former matrimonial home at Property S. There is the possibility of a confiscation order being made in favour of the child, [Z].  That means under s.79C of the Family Law Act 1975 (Cth), the property proceedings must be stayed.  Prior to the stay, a notice can be given to the Director of Public Prosecutions and I intend making orders that that be done.  The children’s matters are to be decided today.  
3.	The father’s proposal is for an order, which would have him seeing the children while he is in prison every two months, under superversion, and then when he is released from prison, every two weeks under supervision.  The mother’s proposal is that any time with the father should be reserved and that there be an order that any cards or letters sent by the father to the children should be addressed through their mother.  There is no issue that there should be an order that the children, that is, [X] and [Y], should live with their mother.  The father has pleaded guilty to, and been convicted of, four charges of incest, one of attempted incest and two counts of indecent acts with a child under the age of 16.  The victim is [Z].  
4.	The mother in her affidavit says she became aware of the abuse on 
11 August 2008. [Z] disclosed the sexual abuse. A report from the Department of Human Services, Child Protection program in Gippsland, given under s.91B of the Family Law Act 1975 (Cth) says that when [Z] was interviewed by the child protection authorities and the sexual offences and child assault unit, he made disclosures of sexual abuse over a three to four-year period.  Immediately following those disclosures, all four children were placed with their maternal grandmother.  Shortly after that, the two younger children, that is, [X] and [Y] returned to live with their mother.  [Z] and [T] now live with their maternal grandmother.  They see their mother and their half-siblings on a reasonably frequent basis.
5.	The mother has given evidence that [X], at the time his father went to jail, was aware that he had.  [Y], because of her age, was not.  She has not told the children why their father is in jail.  [X] has asked her, and she has told him that she cannot tell him, that she will explain it to him when he is older and he has accepted that that is the position.  The mother also says that she has spoken to her counsellor who has told her that if there is an order that the children go to see their father, she will need to explain to them why it is that their father is in prison.  She is not sure how they might react.  
6.	The mother says [X] has a close bond with [Z] and sees him two or three times a month.  [Z] is severely affected by what has happened to him and continues to receive counselling.  She says [Z] does not want [X] to see his father.  He is afraid for [X]’s safety.  The mother states she is concerned that [Z] would have to know that [X] and [Y], but [X] in particular were going to see their father.  She is afraid that that would break the bond between [Z] and [X].  The mother says that [Z] would be concerned that [X], knowing what had happened to [Z], might think that [Z] was at fault or at least partly at fault and that could affect the bond.  Common knowledge suggests that [Z]’s fears would probably be well-founded.  A child of [X]’s age would not have an understanding of how events such as those between his father and his half-brother could happen and might conclude, wrongly, that in some way [Z] was at fault and there is a real risk of it affecting the bond.
7.	The Department of Human Services report, dated 3 September 2009, sets out what has occurred.  
8.	The father was sentenced to eight years in prison with a six-year minimum term.  That was in 2009.  His earliest date of release is some time in 2015.  The report says that [X]’s school report indicated that he is a beautiful, well-behaved student, well-cared for, with good presentation.  The children are well-cared for with their mother.  The recommendations contained in the report are these: 
	“Given the serious nature of Mr Wakeman’s convictions, child protection is endorsing Ms Wakeman’s application that any proposed contact between the father, Mr Wakeman, and the children be reserved whilst he is incarcerated and that upon his release, any proposed contact be fully supervised at all times.  The contact at this point to be at the discretion of both [X] and [Y] who will be much older by then and able to make decisions as to whether they wish to have contact with their father.”  
9.	The report then deals with Mr Wakeman’s proposal that the paternal grandparents have contact with the children and act as a go-between.  There is no application before the court for the paternal grandparents to see the children or to be in any way involved.  The recommendation in the report is that there be no contact between the children and the paternal grandfather.  He has been charged with sexual abuse of a family member.  That case was pending at the time of the report and is still pending.  
10.	Part of the material before the court is the Victorian Commissioner for Corrective Services requirements for visits by children to restricted access prisoners.  Paragraph 4.1 of those requirements contains the definition of a restricted access prisoner.  The definition includes a person convicted of an offence involving physical or sexual abuse against children, including child pornography offences.  
11.	The applicant in this case meets the definition of a restricted access prisoner.  A child is a person who is under the age of 16 years.  Paragraph 6.1.1 says that where a prisoner is identified as a restricted access prisoner, the prison manager will determine that the prisoner is ineligible to receive visits from children or be present in the visiting area of the prison while children are also present.  Subsequent paragraphs make provision for a restricted access prisoner to apply to receive visits.  The requirements for the form of application and the processing of the application are set out.  They include obtaining of information and advice from child protection.  
12.	Then paragraph 7.2 deals with the refusal of applications and paragraph 7.2.1 says that an application will be refused where a child who is the subject of the application is known to be or alleged to be a victim of abuse committed by the prisoner or is within the known or alleged victim target group, age or gender for the prisoner, unless exceptional circumstances exist as determined by the prisoner manager based on specified sources of advice. Both the children, the subject matter of this application possibly can be described as the victims of abuse committed by the prisoner, given that the abuse was committed against a half-sibling with whom they were living. I consider it is clear that they come within the known or alleged victim target group for the prisoner, age or gender. [X] certainly does and I note in the Department of Human Services report it says that [T], also made an allegation of abuse by the father, that is, that he pulled down her underwear.
13.	For the children to visit their father under the prison requirements, the father would need to make an application under the Commissioners requirements.  The application process appears a lengthy one.  The application will be refused unless exceptional circumstances exist.  There is no material before the court which would suggest that the father is likely to be able to obtain permission from the prison authorities to have the children visit him.  
14.	Independently of that, a consideration of the evidence in the light of the relevant provisions of the Family Law Act 1975 (Cth) leads to the same conclusion that the children should not be visiting their father.  
15.	Section 61DA of the Family Law Act 1975 (Cth) contains the presumption of equal shared parental responsibility.  It provides that when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.  
16.	Subparagraph (2) says the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or of another child who, at the time, was a member of the parent’s family.  The subsection applies here.  There are more than reasonable grounds to believe that [Z], a member of [X] and [Y]’s family was abused by the father.  That means I need to consider the best interests of the children, s.60CA of the Family Law Act 1975 (Cth), bearing in mind the objects of the Act under s.60B. 
17.	Section 60CC contains the matters the court must take into account in determining what is in the child’s best interests. The first of the primary considerations is the benefit to the children of having a meaningful relationship with both of the child’s parents. The Commissioner’s requirements, which I have already referred to, mean that it is not possible for these children to visit their father.  For that reason alone, they cannot have any sort of relationship with their father.  Apart from that, the evidence suggests that it is possible that if they were taken to see their father in prison, it might destroy any possibility of a relationship they might have with him well into the future, even perhaps as adults.  
18.	The mother has not told the children why their father is in prison.  She has explained why.  If she was to take them to see their father, she would have to tell them why he is in prison.  That might, of itself cause the children to react in such a way towards their father that the possibility of them ever having any relationship with him in the future would be destroyed.  This is consistent with the Department of Human Services recommendation that the children not see their father in prison.  
19.	The report says that once he’s released from prison it will be a matter for the children to determine whether they want to see him or not.  I consider that if the children now had to be told why their father is in prison and then were taken to see him in the circumstances in that environment there would be a real risk that any prospect of them having any relationship at all with him in the future would be destroyed.  There is also the question of whether seeing their father in those circumstances, once every two months, can be described as having a relationship with him at all.  I doubt that is the case.  
20.	Next is the need to protect the children from physical or psychological harm.  Apart from the Department of Human Services report I do not have any expert reports before me about the children.  
21.	No family report has been prepared. It was a matter which was referred to briefly in one of the interim hearings.  For a family report to be prepared, it would be a useless exercise unless the children were observed with the father.  That would mean the children would have to see their father, they would have to be told why it was that their father was in prison.  To decide to order a family report would be, in effect, to decide substantive matters before the court.  
22.	Consequently, there is no report.  It is obvious from the nature of the father’s offences that if the children had any contact with him, there is a real risk of psychological harm.  I cannot assess the risk on the material which is before me, but there is a real risk of psychological harm to the children.  Next the additional considerations.  There is the nature of the children’s relationship with their step-siblings and in particular [X]’s with [Z].  I accept the mother’s evidence that there would be a real risk to the relationship between [X] and [Z] if the children were taken to see their father.
23.	A general understanding of the relationship between children indicates the same thing.  A relationship between [X] and [Z] is important to [X].  The relationship between all four children is important.  I have to take that into account.  The other matter is that the children’s mother is not just their primary carer, but their only parental carer.  It is clear from her evidence that if the children were to see their father, she would be significantly affected.  That would affect her relationship with the children and that could have a highly detrimental effect on the wellbeing of the children.
24.	The other matter is the attitude of the father to the children and the responsibilities of parenthood. It is hard to imagine a greater abrogation of the responsibilities of parenthood than what the father has done in this case. The father was represented until recently, but legal aid funding was withdrawn, so he is now appearing for himself. The mother has given some brief oral evidence. The only questions 
Mr Wakeman asked her in cross-examination was about why she considered that the bond between [X] and [Z] might be in danger if [X] came to see him.  It is clear that he lacks insight into the circumstances the children have been placed.  
25.	The overwhelming conclusion to be made from all those considerations is that the children should not be seeing their father while he is in prison.  Whether they should see him when he is released from prison is not something that can be determined now. That is quite independently of the fact that any order I made would almost certainly be futile because of the Commissioner’s requirements.  
26.	The father says that prior officials have told him the prison would comply with any court order.  Paragraph 2.5 of the Commissioners requirements says that any current order, where known, which denies a prisoner access to a particular child will be complied with. Any relevant order of a court concerning a prisoner’s visitation or access rights to a child will be taken into consideration when assessments are being made.  
27.	Any current court order will be taken into consideration, but only that.  I have referred to the provisions which say why it is most unlikely that visitation by the children to the father would be allowed under the Commissioner’s requirements.  Consequently, I am satisfied that the children’s best interests are served by an order that any time they have with their father be reserved.  So far as parental responsibility is concerned the children’s best interests require that the mother have sole parental responsibility.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:  Jan Smith

Date:  2 June 2010