BALDWIN & MERRICK

[2014] FamCA 970

FAMILY COURT OF AUSTRALIA

BALDWIN & MERRICK [2014] FamCA 970

FAMILY LAW – CHILDREN – Interim – Where the mother seeks orders that the children live with her – Where there is new evidence in relation to risk of sexual abuse in the father’s care – Where there is an unacceptable risk of sexual abuse for the children in the father’s care.

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
APPLICANT:	Ms Baldwin

RESPONDENT: Mr J Merrick

INDEPENDENT CHILDREN’S LAWYER: Colville Johnstone Lawyers

FILE NUMBER: BRC 8035 of 2011

DATE DELIVERED: 13 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 11 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steel of Counsel

SOLICITOR FOR THE APPLICANT: Biggs Fitzgerald Pike

FOR THE RESPONDENT: Mr Merrick in Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Colville Johnstone Lawyers

Interim Orders

1. The children D born … 2003 and S born … 2005 live with the mother from after-school or 3 PM on Friday, 13 June 2014.

2. In order to facilitate the children’s transition to live with the mother, the mother and/or the maternal grandparents or the mother’s nominee collect the children’s belongings from the father’s home at 5 PM on Friday, 13 June 2014 or such other time as may be agreed between the parties in writing.

3. Pending further order, the children do not spend any time or communicate with the father.

4. The father has liberty to apply for further interim orders that the children spend time with him upon the giving of seven days’ notice in writing.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldwin & Merrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8035  of 2011

Ms Baldwin

Applicant

And

Mr Merrick

Respondent

REASONS FOR JUDGMENT

1. On 2 June 2014, the mother filed an application in a case seeking, by way of interim order, that the children live with her and that any time between them and the father be suspended. 

2. The father, who unsuccessfully applied that the hearing of this interim application be adjourned to the trial in July 2014, opposed the mother’s application: I infer that his position is, simply, that the existing orders should prevail until a final hearing at which time all matters relevant to a consideration of the appropriate parenting orders can be comprehensively undertaken.

3. The principles applicable to and manner in which interim parenting applications are to be dealt with are well known.[1]

   [1]          See for example: Goode & Goode (2006) 93-286.

4. The mother’s application is based upon the assertion that the children are at an unacceptable risk of harm if they remain living with and spending time with the father in circumstances where, on 23 May 2014, she first became aware he had been charged with four counts of indecent treatment of children under the age of 16 – charges which have been particularised as follows:

   a)indecent treatment of a child under 16 (indecent film);

   b)indecent treatment of a child under 16 (expose);

   c)indecent treatment of a child under 16 (expose); and

   d)indecent treatment of a child under 16 (take photographs).

5. These charges are based on alleged behaviour said to have occurred between 1993 and about mid 1996 whilst the father was employed in the education industry at School H in Town G. The mother and father had not met at this stage and I accept, on an interim basis, that the mother had no independent knowledge of the matters forming the basis of these complaints against the father prior to 23 May 2014.

6. The father submits that the charges are, at this stage, “merely allegations” which will be “strenuously defended” by him if they proceed.[2]

   [2]          Exhibit 1.

7. The father also submitted that there is no urgency to the interim application, it is an “historical” case and that there is no medical evidence of any danger to the children whilst in his care.[3] The absence of any such medical evidence is unpersuasive given the nature of the behaviours relied upon to found the charges referred to above.

   [3]          Exhibit 1.

8. I accept, on an interim basis, that until receiving information from the solicitor then engaged by the father to represent him in the criminal proceedings on 23 May 2014, the mother had no idea that the father had been charged with any criminal offence or was in any way involved in any criminal proceeding. No mention of the charges or the fact that the father had attended, with his mother (the paternal grandmother), at the police station on 1 November 2013 in order to decline formally to be interviewed in relation to the allegations constituting the charges was made by either the father or the paternal grandparents to the  Family Consultant during the January 2014 interview for the most recent family report.

9. The current interim application is made in proceedings – which commenced in about September 2011 and is set for final hearing for five days commencing 14 July 2014 – which concern two children :

   a)D (…/2003) –  11 years who attends at School J in Suburb A;

   b)S (…/2005) – 8 ½ years who attends at Schol K in Suburb A.

10. D has been diagnosed as suffering from Tourette’s syndrome with prominent ticks and a number of comorbid features (prominently obsessive compulsive features and academic difficulties). More recently, it has been recommended that D receive treatment from a psychologist for anxiety – in addition, there has been a recent increase in the prescribed dosage of his antidepressant medication. S is currently being assessed to determine whether he suffers from ADHD. Both children have learning and communication difficulties and both have had extensive involvement with medical and educational professionals.

11. I accept that, as a consequence of these matters and conditions, it is highly likely that the children are emotionally “young” for their ages and that both may be regarded as “vulnerable”.

12. The parties, who both have acquired brain injuries following motor vehicle accidents in 1994 (the father) and in 1998 (the mother), met in 1998. They married in 2002. Despite the impacts of their respective accidents, both parents have returned to paid employment.

13. The children have lived predominantly with the father at Suburb A since the parties separated in October 2010. He has been assisted significantly in the care of the children by his parents.

14. From separation in October 2010 until about January 2012 the children spent no time with the mother: the parties disagree factually as to the reason for this and this difference is incapable of resolution at an interim hearing.  Furthermore, in the circumstances of this interim application, it matters little.

15. By about early December 2012, the children’s time with the mother had increased – via a series of graduated progressions – to them spending time with her at the home she shares with her parents (the maternal grandparents) at Suburb L:

    a)each alternate Thursday from after school that day until before school Friday; and

    b)each alternate weekend from 4 pm Saturday until the commencement of school on Monday.

16. The mother has been supported in her care of the children by her parents – the maternal grandparents.

17. As at around December 2012,  the mother sought orders that would have seen the children live with her the five nights each fortnight and half of the school holidays whilst the father sought to decrease the children’s weekend time with the mother and have it supervised by the maternal grandparents.

18. The mother gave birth to Y – the children’s half-sister – in February 2013. The children have had an opportunity to meet and commence to develop a relationship with her during the time in their mother’s care.

19. On 3 February 2014, I made orders by consent which included that the parents have equal shared parental responsibility for the children, the children live with the father and spend time and communicate with the mother at a minimum as follows:

    a)each alternate Thursday from after school that day until before school Friday; and

    b)each alternate weekend from 4 PM Saturday until the commencement of school on Monday; and

    c)half of the children’s school holiday periods.

20. The children have spent time with the mother in accordance with these orders.

21. A number of family reports have been prepared by a Family Consultant to assist the Court in this matter. The most recent, dated 20 January 2014, was prepared following interviews with each of the parties and the maternal and paternal grandparents on 16 January 2014.  Following opposition by the father, the children were not interviewed on this occasion: the Family Consultant determined not to interview the children because she considered she had already sufficiently assessed them and their views and wishes in earlier reports.

22. As at 16 January 2014, the mother sought orders which would see the children live with her from Thursday afternoon until Tuesday morning and for half of the school holidays, whilst the father sought that the children live with him and spend time with the mother from Friday afternoon until Monday morning and for half of the school holidays, taken in weekly blocks.

23. The Family Consultant’s most recent recommendations in the most recent family report support orders that the children live with the father and spend time with the mother for five nights per fortnight and half of school holidays. These recommendations were made in the absence of knowledge about the matters founding the charges the father currently faces or that he had, in fact, been charged with the offences referred to above.

24. At least part of the rationale underlying the recommendation about the time the children should live with the mother was the fact that she would be supported by her parents, the maternal grandparents, in transitioning the children between households.

25. The mother works part-time as a healthcare worker. This seems to occupy her for 2 long days per week. She proposes – at least on an interim basis – that, if the children live with her, they continue to attend their current schools and her parents assist her in transporting them and in meeting other needs should she be engaged in employment. The maternal grandfather has filed an affidavit confirming that he and the maternal grandmother will be able to offer all support necessary to the mother should the children live primarily with her. Given the father’s acceptance of the care provided to the children by the maternal grandparents – as detailed further below – I accept they are capable of assisting the mother to care for the children in whatever manner is practically required.

26. Whilst it was clear from the interview on 16 January 2014 that the father maintained his position the children should spend no more than three nights per fortnight in the mother’s care – because he asserted they suffered adverse behavioural changes, a change in their personality and an increase in their anxiety levels as a consequence of the current care regime[4] -  he also confirmed with the Family Consultant that “while the mother continues to live with the maternal grandparents, he has no concerns about the children spending time with their mother. He was of the view that the maternal grandparents do the majority of the caring tasks anyway thus he has no concerns about the quality of care the children receive. The father advised that his biggest concern is if the mother entered into another volatile relationship and the impact this may have upon the children.”[5]

    [4]          See paragraph 24 of the report.

    [5]          See paragraph 30 of the report.

27. In considering the basis of the father’s opposition to an increase in the children’s time with the mother, as summarised above, the Family Consultant said as follows:

    I do not dispute that [D] and [S] may experience some adverse changes to their behaviour following time with their mother. I do not attribute this to the care their mother and/or maternal grandparents provide the children. I believe that regardless of the quantity of time the children spend with their mother, they will experience such outcomes. They are inherently vulnerable children and an additional two nights with her mother is not going to make a considerable difference to their overall well-being, but will provide them with more opportunity to experience a meaningful relationship with their mother and sister [Y].[6]

    [6]          Family Report dated 20 January 2014, paragraph 61.

28. Such observations are, of course, pertinent to a consideration of the mother’s interim application which would see the children move to live with her in circumstances where they have lived primarily with the father since separation in late 2010. Whilst it could not be disputed that such a change would be significant for the children, I also take into account the father’s own assessment of the care they would receive from the mother’s household – constituted by herself and the maternal grandparents – the assessment of the Family Consultant, as outlined above, about the likely impact upon the children of change to the current care arrangements and the fact that the mother’s proposal will see the children afforded the familiarity and, I infer, stability, of continuing to attend at their current schools.

29. Counsel for the mother submitted that such is the level of risk to the children arising from the information which came to the mother’s knowledge on 23 May 2014 that an interim order which would have the effect that the children live primarily with the mother and – initially at least – spend no time with the father is in their best interests even in circumstances where the matter is, at this stage, listed for final hearing commencing 14 July 2014.

Why are the children at an unacceptable risk of harm if they remain living with the father?

1. The resolution of an allegation of sexual abuse is “subservient and ancillary” to this Court’s determination of that parenting order which is in the children’s best interests.[7] However, a consideration of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting children from harm.[8]

   [7]           M v M (1988) 166 CLR 69.

   [8]          Section 60CC(2)(b)

2. The matters and behaviour alleged to have occurred and which have been relied upon as the basis for the charges brought against the father may be broadly summarised  that,  between 1993 and 1996, whilst employed at School H in Town G, the father engaged in the following behaviours with or relating to two (2) male students, aged around 12 or 13 years at the time:

   a)inviting them to his unit where he showed pornographic movies while he masturbated in front of one of them; and

   b)taking a child to an oval across the road from his unit, daring the child to strip naked to do a “nudie run” and photographing the child whilst he was naked doing the “nudie run” and performing “bodybuilder” poses; and

   c)daring a child to strip naked, run onto the cricket pitch and “shit or piss” on the pitch and run back – when this child refused to do so, the father undertook this behaviour.

3. In addition to the above, it is asserted that the father engaged in other inappropriate behaviour including:

   a)whilst at the swimming pool after school, inviting a child to get changed in front of him and suggesting that he (the father) then get changed in front of the child;

   b)sending anonymous notes of a sexual nature to students; and

   c)engaging in harassing behaviour such as “ring up, hang up” telephone calls to the student involved.

4. It is clear, from the documents exhibited to the mother’s affidavit[9] that:

   [9]          filed 2 June 2014

   a)documents originating in 1996 held by the Town G Administrative Office relating to allegations about the fathers conduct whilst employed at School H (the 1996 Schools Administration Section documents) were provided to the Queensland Police Service in early March 2013 so that the Police could determine what action, if any, would be taken in relation to the matter – these documents had not previously been forwarded to Police at the time the disclosures were made by the children;

   b)the 1996 Schools Administration Section documents establish:

   i)in early June 1996, Mr M, school counsellor at School H, informed the Assistant to Director, School Services of the Schools Administration Section  about some “concerns and perceptions” at the school – relevantly, these appeared to be that the father was using language which was, perhaps,  sexual in nature to a particular child in class and privately and that child’s mother believed the father’s language conveyed double messages and innuendo of a flirtatious nature: Mr M engaged the father in a pastoral – counselling role;

   ii)on 2 August 1996, Mr N from School H advised an unidentified person from the Section that :

   1.he had been told the father had taken some boys home for pizza and they had watched pornographic movies; the father had then taken them to a park and invited them to undress: some photographs had been taken while they were undressed – these events were said to have occurred approximately 3 years earlier;

   2.he confronted the father with the allegations – the father admitted they were true : Mr N told the father he would be suspended while the matters were being investigated; the father told Mr N that he would tender his resignation.

   iii)on 4 August 1996, Mr N from School H advised an unidentified person from the Section that:

   1.the father was clearing out his desk and was submitting his resignation and had decided to do so after being told he would be suspended pending investigation.

   iv)on 5 August 1996, Mr M wrote to “Principal – [Mr O]” advising that:

   1.he became aware, on 2 August 1996, that the father had possibly engaged in unlawful behaviour in that he had shown a pornographic video to a 12-year-old student;

   2.when he spoke to the father about this incident, the father disclosed he had shown a pornographic video to another boy “late last year” (1995);

   3.when he spoke with the student, the student revealed:

   a.the video was “actually pornographic” and depicted “male – female and female – female sexual intercourse”;

   b.(for the first time) the father had dared him to run naked around a park (which he did), the father did the same and that, whilst the boy was naked, the father took a photo or photographs of him;

   c.the father had later told him (the boy) the photographs had been destroyed;

   d.the father had made him feel he couldn’t tell anyone ;

   e.when he visited the father in hospital after his accident, the father had asked him not to tell anyone of the incident.

   4.when he then spoke with the father about the matters the student had revealed, the father indicated that what the student had said was true;

   5.he (Mr M) then convened a meeting with Mr N ( a Deputy Principal), another Deputy Principal and the father during which the father confirmed that the information conveyed by Mr M was correct.

   v)in a statement dated 5 August 1996, Mr N outlined that:

   1.on 2 August 1996, he met with the father and Mr M;

   2.after Mr M outlined that, in 1993 the father showed one of his then Year 8 students a pornographic movie at his unit, dared him to take his clothes off and run naked around the oval (which he did and the father followed) and the father took photographs of the boy and that, on another occasion in 1995, a then Year 10 boy visited the father at his flat and was shown a pornographic video, after which the father invited him to strip and run around the oval (the boy declined), the father told him that these events had taken place;

   3.when he asked the father whether the photographs of the first boy was still in his possession, the father said they had been destroyed: that the boy’s mother had seen them and told him to destroy them and he had destroyed both the photo and the negatives;

   4.after this, he told the father he would be unable to have contact with any classes and later told him he had the choice of resigning or being suspended: he offered the counselling services of Organisation P to the father;

   5.he spoke with Mr P Merrick (the paternal grandfather) and outlined the “events described”;

   6.on 4 August 1996, the father contacted him, cleaned his desk and handed in his resignation.

   vi)in a document headed “Special Issues” that, on 7 August 1996,  Mr M reported the “[employee] concerned” had a relationship with the mother of one of the boys “allegedly abused” and he thought this relevant because he believed the relationship had been used to coerce the boy into silence.

1. The police investigated the matters outlined above. They have obtained sworn statements from people including the now adult children, Mr M, Mr N and other staff from School H. These statements seem to me to confirm to a large extent the contents of the documents created in August 1996.

2. The father was contacted by police on 31 October 2013 – he was cautioned and advised of the complaint and arrangements were made for him to speak with police on 1 November 2013.

3. The investigating police officer met the father, his solicitor and the paternal grandmother at police headquarters on 1 November 2013 – the father declined to be interviewed in relation to the matters and outlined that, due to his motor vehicle accident, he had no recollection of the incidents.

4. This case differs from those in which the Court is asked to make an interim decision based on matters which are factually in dispute. Here, at least on a prima facie basis, the father has previously admitted – on a number of different occasions to at least two different people – that he engaged in the conduct which constitutes the charges he now faces.

5. In addition to this, the mother’s affidavit also outlines the following matters relevant to an assessment of the level of risk to the children should they remain living with the father:

   a)despite earlier recommendations made in relation to the children sleeping with the father, as outlined in paragraphs 46 and 47 of the mother’s affidavit filed 2 June 2014, the mother became aware in 2013 that the children may still have been sleeping in the father’s bed;

   in 2013 the children told her about watching a YouTube video of two “noodle men” and that one of the men was sucking the others “noodle.” Whilst at the time she dismissed this information from the children as them “talking nonsense”, her current knowledge of the nature of the behaviours relied upon as particularising one of the charges brought against the father – namely, exposing a 12 or 13 year-old boy to pornographic video material – has left the mother very concerned that the father may have shown the children pornography;

   earlier this year D (then 11 years) walked naked into the lounge room where other members of the family were seated and, when told to put some clothes on, informed the mother’s family that “dad lets us walk around naked.” Again, whilst the mother did not place any real importance on this statement at the time it was made, having read the contents of the material obtained by the police – where the father admitted to having a student strip naked and taking photos of him – she is now alarmed and concerned.

6. Having regard to the details of the father’s admitted behaviours toward students as outlined above, I share these concerns.

7. I accept the submissions made by Counsel for the mother, supported by the Independent Children’s Lawyer, that, in addition to the behaviours outlined above, the following matters, taken in combination, would persuade the court that the current parenting arrangements place the children at an unacceptable risk of harm or exposure to harm:

   a)despite the admissions made by him to Mr M and Mr N in 1996 about his behaviours, as outlined above, there is no evidence the father has addressed this behaviour, sought assistance in dealing with it or in any way acknowledged its impropriety; and

   b)the children toward whom the father admitted acting inappropriately whilst at School H were of an age similar to the ages of the children the subject of these proceedings; and

   c)the father has deliberately concealed the existence of previous allegations of inappropriate behaviour by him toward minors whilst at School H from both the mother and the Court in that:

   i)he has positively asserted[10] there has never been an incident reported regarding his professionalism with students during his employment at a number of schools before and after his accident – a statement which, given the contents of correspondence received 17 June 1996, a document dated August 2 1996, and a document dated 5 August 1996[11] is demonstrably untrue; and

   [10]         Affidavit of the Father filed 4 October 2013, paragraph 120.

   [11]         Affidavit of the Mother filed 2 June 2014, Annexure “STB 1”.

   ii)he appears to have concealed the circumstances in which he left his employment at School H and certainly did not disclose he resigned after being told that, if he did not, he would be suspended pending an investigation into the complaints made to Mr M and Mr N; and

   iii)he failed to disclose to Ms Q, a neuropsychologist who interviewed each of the parties and prepared a report,[12] the circumstances surrounding his cessation of employment at School H; and

   [12]         Exhibited to her affidavit filed 24 May 2012.

   iv)at its most favourable interpretation to him, he failed to inform the Principal of School R at Town I, during investigations into alleged improper behaviour towards students at that school in November 2004, of the allegations made about his behaviours whilst at School H.

   d)the father and his parents have collectively acted to conceal from the mother, the Court and the Family Consultant the fact that the father had been served with a Notice to Appear in relation to the charges and had declined formally to be interviewed on 1 November 2013 despite opportunity for provision of this information occurring at:

   i)three Court events: namely a compliance mention before a Registrar on 25 November 2013, the callover before Justice Kent on 2 December 2013 and the interim hearing before me on 3 February 2014; and

   ii)the most recent interview in January 2014 with the Family Consultant for the preparation of the most recent family report.

   e)the children’s inherent  vulnerabilities, including that they are somewhat emotionally immature and may be susceptible to manipulation and/or pressure to refrain from complaint in the event that any unacceptable behaviour occurred toward them by the father; and

   f)that one of the alleged victims of the father’s behaviour whilst at School H asserts that, when he told the father to cease his behaviour, the father threatened to tell everyone that he was gay, to spread rumours about his mother and that he would kill himself if the child told anybody about what the father had been doing; and

   g)that, by virtue of their complicity in the father’s decision to conceal the fact of his admitted behaviours toward 12-13 year old students at School H and that charges have now been brought in relation to these behaviours, the paternal grandparents have deliberately joined in concealing from the mother and the Court matters clearly relevant to an assessment of the parenting orders which are in the children’s best interests: by doing so, they have further undermined any filament of trust which the mother may have had in them to act appropriately and protectively toward the children – their actions have left her with no doubt that they have demonstrated an ability deliberately to conceal any improper behaviour involving children by the father.

8. In addition, I accept the submission made by Counsel for the mother and the Independent Children’s Lawyer that the capacity of the father and the paternal grandparents to appropriately and supportively parent the children during what can only be an incredibly stressful time within their households may well be compromised to some extent.  Exposure to such heightened stress is unlikely to be beneficial to the children, particularly given their own individual vulnerabilities.

9. I was informed from the Bar table by the Independent  Children’s Lawyer that the  Department of Communities, Child Safety and Disability Services (the Department) is aware of the charges and, having interviewed the children, the father and the paternal grandparents,  has concluded that the children are not at an unacceptable risk of harm if they remain living with the father. As was conveyed to me, at least part of this determination rested upon the fact that, when interviewed, the children did not make any disclosures adverse to the father. 

10. I do not have the benefit of any further information from the Department. I do not know the full extent of the information provided to the Department nor am I aware of the background information provided to the investigating officer/s by the father and/or the paternal grandparents.

11. I am, of course, not bound in any way to join with the conclusion reached by the Department and I do not do so.

12. I am satisfied that the combination of:

    a)the father’s admitted actions toward minors – aged between 12 and 13 years – in relation to whom he stood in a position of trust and power; and

    b)the father’s actions in concealing these allegations and positively asserting that he had never been the recipient of any complaint or allegation of impropriety or unprofessional conduct whilst employed in the education industry; and

    c)the father’s failure to disclose at any time prior to 23 May 2014 that he had been charged with offences of sexual impropriety involving children; and

    d)the mother’s evidence as detailed in paragraph 38 above; and

    e)the matters outlined in paragraph 40 above; and

    f)that there is no evidence to establish that the father has, in any way, addressed his admitted behaviours,

    compels an interim conclusion that the children are at an unacceptable risk of harm if they remain living with the father.

13. Given their clear complicity in concealing the relevant and important issues of the father’s admitted behaviours toward minor students, and the fact that he has now been charged with offences arising out of the same, from the mother and the Court, I am also persuaded that the presence of the paternal grandparents does not sufficiently ameliorate the risk to the children of continued residence with the father.

14. I consider that the mother, with the continued support of the maternal grandparents, will be able to care for the children appropriately on an interim basis.  The father himself has no concerns about the care the children will receive whilst the mother continues to live with her parents. Further, the children will be able to continue attending their respective schools and will also be shielded from the stress which is highly likely to be present in the father’s household as he prepares to meet the charges proffered against him.

15. I fully appreciate that such change to their living arrangements is highly likely, at least initially, to be unsettling and disruptive for the children. However, I am also persuaded that the mother and maternal grandparents together have the capacity to assist the children to deal with this change.

16. For the reasons outlined above, I have concluded that, on an interim basis, the children’s best interests are served by orders which see them live with the mother.

17. I have considered what orders for time between the children and the father can be made to ensure that they have the opportunity to continue in their relationship with him. Unfortunately, for the reasons outlined above, I am not persuaded that the paternal grandparents are appropriate to supervise the children’s time with the father.

18. There is no evidence before me of any other possible suitable supervisors. I do not know whether any Contact Centre would be willing to provide its services in light of the charges the father faces.

19. For these reasons, I consider the only way in which proper assessment of the time and the manner in which the children should spend time with the father can occur is to permit the father to bring an interim application, supported by evidence, in relation to this issue.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 13 June 2014.

Associate:                 

Date:              13 June 2014