Unacceptable Risk to the Children

We were recently instructed in a matter in the Family Court of Australia at Cairns in which the major issue was whether the Mother’s de facto partner, Mr DF, was an unacceptable risk to the daughters.

In these proceedings we were acting for the Father of the daughters who had agreed to the Mother relocating the children to Cairns without informing the Father that Mr DF had recently been convicted of and spent time in jail for indecent assault upon the daughter of his then, but not current, de facto partner.

Mr DF and the Mother maintained the view that Mr DF was innocent of the charge notwithstanding that he had been convicted by the District Court, spent time in jail and did not appeal either the conviction or sentence.
The evidence in the Family Law Trial included:-

  1. The viewing of the complainants evidence, in the Criminal proceedings;
  2. The viewing of Mr DF’s Record of Interview by the Queensland Police Service; and
  3. Perusing the Transcript of the criminal proceedings.

The Trial commenced with the playing of the video recording of the cross-examination of the complainant (in the criminal proceeding). At the conclusion of that viewing the Mother was asked whether she found that the evidence of the complainant was compelling which the Mother replied “No”.

The Mother under cross-examination by the Independent Children’s Lawyer admitted that when her daughter’s friends came over she did not advise the parents of those children that Mr DF was a convicted sex offender. In fact the Mother’s evidence was that the life that she led with Mr DF was more about protecting Mr DF’s “reputation” and there was little consideration to the risk to her daughters or the daughter’s friends. Mr DF in his cross-examination confirmed that view.

The Mother and Mr DF maintained their position until late on day 2 of the Trial. This changed when evidence was given by the Report Writer who had sat in Court throughout the Trial. The Report Writer was concerned that the Mother and Mr DF were maintaining “family secrets” and was convinced having heard the testimony of the Mother and Mr DF that Mr DF represented an even greater risk to the children.

The Judge had no difficulty in coming to a conclusion that Mr DF represented an unacceptable risk to the children, that the Mother had made inappropriate choices in relation to her care of the children and that therefore:-

  1. The children should be returned to the Father forthwith, which occurred;
  2. The Mother was to have nothing further to do with Mr DF.

Coronial Inquiry has now been held into the disappearance of this man. The Coroner found that, on the balance of probabilities, he died in February 2012. However, as he was a missing person up to and including the date of the Coronial Inquiry, accordingly it only operates from the date that he was declared to have died, namely the date of the Coronial Inquiry.

Therefore, in our opinion, the current proceedings in the Family Court of Australia remain on foot. As an alternative or in addition, notice has been given pursuant to the provisions of the Succession Act for a Family Provision Claim.