Beadle & Beadle
[2008] FMCAfam 1283
•5 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEADLE & BEADLE | [2008] FMCAfam 1283 |
| FAMILY LAW – Parenting orders – application of s.61DA(1) presumption – where one parent has relocated interstate – equal time found to be in child’s best interests – parent ordered to relocate with child. FAMILY LAW – Parenting orders – unacceptable risk of harm – tendency evidence – principles discussed – use of tendency evidence to make finding of unacceptable risk of harm – where allegation is made against a person who is not a party to the proceedings. EVIDENCE – Tendency evidence – use in parenting proceedings where there is an allegation of unacceptable risk of harm. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65D, 65DAA, 69ZT Evidence Act 1995, ss.97, 130 |
| CDJ v VAJ (1998) 197 CLR 172 Morgan & Miles [2007] FamCA 1230 D & SV (2003) FLC 93-137 Taylor & Barker [2007] FamCA 1246 Sampson & Hartnett [2007] FamCA 1365 Pender & Haywood [2007] FamCA 1526 Briginshaw v Briginshaw (1938) 60 CLR 336 WK & SR (1997) FLC 92-787 M v M (1988) 166 CLR 69; FLC 91-979 B v B (1988) FLC 91-957 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129 Re W (Sex Abuse: Standard of Proof) [2004] FLC 93-192 Jacarana Pty Ltd v Auto-Bake Pty Ltd [1999] FCA 417 Napier v Hepburn [2006] Fam CA 1316 |
| Applicant: | MR BEADLE |
| Respondent: | MS BEADLE |
| File Number: | BRC 781 of 2007 |
| Judgment of: | Wilson FM |
| Hearing dates: | 3, 4 & 5 December 2007 |
| Date of Last Submission: | 31 January 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 5 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Catt |
| Solicitors for the Applicant: | J Reddy & Co |
| Counsel for the Respondent: | Mr Crisp |
| Solicitors for the Respondent: | Hartleys Lawyers |
ORDERS
That within 42 days of the date of these orders, the mother relocate with the child [M], born in 2005 so as to reside within a radius of
20 kilometres of the father’s residence, or at such other place as the parties both agree.
That upon the mother relocating, the child live with and spend time and communicate with each parent as follows:
(a)In week one of a fortnightly cycle with the father:
(i)Until the child commences formal schooling from 5:00 pm Friday until 5:00 on the following Friday;
(ii)Once the child commences formal schooling from the conclusion of school on Friday until the commencement of school on the following Friday;
(b)In week two of a fortnightly cycle with the mother:
(i)Until the child commences formal schooling from 5:00 pm Friday until 5:00 on the following Friday;
(ii)Once the child commences formal schooling from the conclusion of school on Friday until the commencement of school on the following Friday;
(c)With the father:
(i)From 26 December 2008 until 2 January 2009 and each alternate year thereafter;
(ii)From 19 December 2009 until 26 December 2009 and each alternate year thereafter.
(d)With the mother:
(i)From 19 December 2008 until 26 December 2008 and each alternate year thereafter.
(ii)From 26 December 2009 until 2 January 2010 and each alternate year thereafter.
(e)On each of the parent’s birthdays, with that parent from 9 am until 6 pm on that day if a weekend or a non-school day, or from the conclusion of school until 7:00 pm on that day;
(f)On the child’s birthday, with the parent who is not then caring for the child from 3:00 pm until 7:00 pm;
(g)On Mother’s Day, if the child is otherwise in the father’s care – with the mother from 9 am until 6 pm;
(h)On Father’s Day, if the child is otherwise in the mother’s care – with the father from 9 am until 6 pm;
(i)By telephone at all reasonable times.
For the purposes of these orders, where changeover is not effected at the child’s school, it shall be effected by the parent in whose care the child then is delivering the child to the residence of the other parent.
That each party shall notify the other of any significant accident, illness, hospitalisation or other medical emergency involving or affecting the child as soon as practicable.
That both parties be at liberty to attend any school, sporting or extra-curricular activity or event involving or in relation to the child.
That this order is to operate as authority for any professional care provider for the child (whether a school, doctor, hospital or otherwise) to release any information, including school, medical or any other professional or development reports of the child, to both parties.
That each party shall keep the other advised of their current residential address and phone number, work telephone number, e-mail address, and mobile telephone number and advise the other of any change to those details within 48 hours of any change.
Each party is hereby restrained by injunction from rebuking, belittling and denigrating the other in the presence or hearing of the child and allowing any other person to do so.
That the mother be restrained from relocating the residence of the child to a distance greater than 20 kilometres from the father’s current residential address, without the written consent of the father, or an order of the court first obtained.
That until the mother relocates in accordance with order 1, the orders made by the court on 13 July 2007 continue in force unless specifically varied by these orders.
The parties have equal shared parental responsibility for the child.
IT IS NOTED that publication of this judgment under the pseudonym Beadle & Beadle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 781 of 2007
| MR BEADLE |
Applicant
And
| MS BEADLE |
Respondent
REASONS FOR JUDGMENT
[M] was born in 2005. Her parents are the applicant father and the respondent mother. [M]’s parents are unable to agree on what parenting orders should be made in her best interests and each asks the court to make orders under Part VII Family Law Act 1975.
By his application filed 23 January 2007, the father seeks orders:
(1)That the child, [M] born in 2005, live with the father.
(2)That the child spend time and communicate with the mother at all reasonable times as may be agreed between the parties but failing agreement as follows:
(a)On the first weekend every month from 9am Friday to Sunday 6pm.
(b)Half of all School Holidays, including Christmas Holidays, with the first half in even years and the second half in odd years.
(c)By telephone communication when not in mother’s care each Tuesdays and Thursdays.
(d)By telephone communication, when not in mothers care, on the child’s birthday, mother’s day and any other special days.
(3)That the parental responsibilities and the major long-term issues, which might affect the child, shall be shared between the parties.
(4)That the parties have joint responsibility for the day-today care and welfare of the child during periods when the child is in their respective care.
By amended application filed 12 March 2007 the father sought a further order:
(5)That, pending final determination of these proceedings, the Mother forthwith return the child to Brisbane and not thereafter remove the child from Brisbane without the Father’s consent.
The orders sought by the father at the final hearing were:
(1)That the child. [M] born in 2005, live with the father.
(2)That the child spend time and communicate with the mother at all reasonable times as may be agreed between the parties but failing agreement as follows:
(a)On the first weekend every month from 9am Friday to Sunday 6pm.
(b)Half of all school holidays, including Christmas Holidays, with the first half in even years and the second half in odd years.
(c)By telephone communication when not in mother’s care each Tuesdays and Thursdays.
(d)By telephone communication, when not in mothers care, on the child’s birthday, Mother’s Day and any other special days.
(3)That Mr B have no contact with the child.
(4)That the parental responsibilities and the major long-term issues, which might affect the child, shall be shared between the parties.
(5)That the parties have joint responsibility for the day-to-day care and welfare of the child during periods when the child is in their respective care.
(6)That the mother forthwith return the child to Brisbane and not thereafter remove the child from Brisbane without the father’s consent.
By her response filed 1 March 2007 the mother seeks orders:
(1)The matter be transferred to Melbourne.
(2)The parents share equal parental responsibility for the child [M], born 28th October 2005.
(3)The said child live with the mother.
(4)The father undertake a parenting course and provide the mother with copy of certificate upon completion.
The father spend time with the child as follows:
(5)The father give the mother at least 7 days notice prior to the father spending time with the said child.
(6)All time spent between the father and the said child be supervised by either of the maternal grandparents.
(7)All time spent between the father and the said child be day time only.
(8)Such other orders as this honourable Court deems fit.
By an amended response filed by leave on the first day of the final hearing, the mother sought orders:
(1)That the child. [M] (“the child”) born in 2005 live with the mother.
(2)Both parties have equal parental responsibility for the care, welfare and development of the child.
(3)The child spend time with and communicate with the father as follows:
(a)Until the child commences school, during the last week of every month as agreed between the parties;
(b)During all the Christmas holidays as agreed between the parties, save for 2 weeks of such holidays;
(c)Upon the child commencing school, for all of the Victorian school term gazetted holidays (as agreed between the parties), or half the term holidays
(d)At reasonable times by telephone, email and other electronic devices upon the father initiating the father (sic);
(e)As otherwise agreed between the parties
(4)For the purposes of paragraph 3(a), 3(b) and 3(c) of these orders, the father travel to Melbourne for pick up and drop off of the child on each alternate occasion and the mother travel to Brisbane for pick up and drop off the child on each alternate occasion, and the parties to bear their own (and the child’s) travel expenses.
(5)Changeover location be as agreed between the parties.
(6)The mother authorise the child’s school, to forward to the father (at the father’s expense) copies of all school reports, newsletters, photographs and any other material a parent would normally receive.
(7)Each party notify the other as soon as practicable, of any medical emergency in relation to the child.
(8)Each party keep the other informed of their current telephone contact details (including mobile telephone number).
(9)Each party and their agents are hereby restrained by injunction from rebuking, belittling and denigrating the other in the presence or hearing of the child and allowing any other person to do so.
The mother handed to the court minutes of orders proposed by her depending upon whether the court ordered [M] to live in Brisbane or in Melbourne:
The child lives with the mother in Victoria
(1)The child [M] (“the child”) born in 2005 live with the mother.
(2)Both parties have equal parental responsibility for the care, welfare and development of the child.
(3)The child spend time with and communicate with the father as follows:
(a)Until the child commences school, during the last week of every month from 12 noon Saturday until 12 noon the next Saturday;
(b)Upon the child commencing school then for half the school holidays by agreement between the parties and if no agreement reached, then by default the child spend the first half of the holidays in 2011 with the mother (and each alternate year), and the second half of the holidays in 2012 with the mother (and each alternate year).
(c)From the 26th December 2008 until the 2nd January 2009 and each alternate year thereafter;
(d)From the 19th December 2009 until the 26th December 2009 and each alternate year thereafter;
(e)During Easter 2008 as agreed between the parties and each alternate year thereafter;
(f)At reasonable times by telephone, email and other electronic devices upon the father initiating the father (sic);
(g)As otherwise agreed between the parties
(4)For the purposes of all changeover the father pick the child up from the Airport at which city the mother lives at at the commencement of time, and the mother pick the child up from the Airport at which city the father lives at at the conclusion of time.
(5)Each party bear their own (and the child’s) travel expenses for the purposes of changeover.
(6)If either party is unable to travel for the purposes of changeover, then they inform the other by no later than 5.00 pm 2 days prior to the changeover and if they do not do so, then reimburse the other parent for travel expenses already incurred with respect to that one occasion.
(7)The mother authorise the child’s school, to forward to the father (at the father’s expense) copies of all school reports, newsletters, photographs and any other material a parent would normally receive.
(8)Each party notify the other as soon as practicable, of any medical emergency in relation to the child.
(9)Each party keep the other informed of their current contact telephone number and inform the other of any change in the same as soon as practicable.
(10)Each party and their agents are hereby restrained by injunction from rebuking, belittling and denigrating the other in the presence or hearing of the child and allowing any other person to do so.
It is noted
Should the child’s birthday fall on a week when the child is not with the other parent, then the parties will use their best endeavours to ensure that the parent with whom the child did not spend their birthday with in a particular year, will then spend time with the child on her birthday in the next year.
The child lives with the mother in Brisbane
(11)The child [M] (“the child”) born in 2005 live with the mother.
(12)Both parties have equal parental responsibility for the care, welfare and development of the child.
(13)The child spend time with and communicate with the father as follows:
(a)Until the child commences school, each alternate week from 5.00 pm Friday until 5.00 pm Saturday;
(b)Upon the child commencing school then for half the school holidays by agreement between the parties and if no agreement reached, then by default the child spend the first half of the holidays in 2011 with the mother (and each alternate year), and the second half of the holidays in 2012 with the mother (and each alternate year).
(c)From the 26th December 2008 until the 2nd January 2009 and each alternate year thereafter;
(d)From the 19th December 2009 until the 26th December 2009 and each alternate year thereafter;
(e)During Easter 2008 as agreed between the parties and each alternate year thereafter;
(f)At reasonable times by telephone, email and other electronic devices upon the father initiating the father (sic);
(g)As otherwise agreed between the parties
(14)For the purposes of all changeover the father collect the child from the mother at the commencement of time and deliver the child to the mother at the conclusion of time.
(15)If either party is unable to travel for the purposes of changeover, then they inform the other by no later than 5.00 pm 2 days prior to the changeover and if they do not do so, then reimburse the other parent for travel expenses already incurred with respect to that one occasion.
(16)The mother authorise the child’s school, to forward to the father (at the father’s expense) copies of all school reports, newsletters, photographs and any other material a parent would normally receive.
(17)Each party notify the other as soon as practicable, of any medical emergency in relation to the child.
(18)Each party keep the other informed of their current contact telephone number and inform the other of any change in the same as soon as practicable.
(19)Each party and their agents are hereby restrained by injunction from rebuking, belittling and denigrating the other in the presence or hearing of the child and allowing any other person to do so.
It is noted
Should the child’s birthday fall on a week when the child is not with the other parent, then the parties will use their best endeavours to ensure that the parent with whom the child did not spend their birthday with in a particular year, will then spend time with the child on her birthday in the next year.
As is made clear by s.60CA of the Family Law Act1975 (“the Act”) the best interests of [M] are my paramount consideration in determining what parenting orders to make.
As the majority High Court justices observed in CDJ v VAJ (1998) 197 CLR 172 at 219 best interests are values, not facts. The best interests of the child must be judged according to the facts and circumstances of each individual case. The court must be careful not to judge a party’s behaviour against some artificial or ideal standard. Often the choice confronting the court in parenting cases is between alternatives, both of which are less than optimal.
As the evidence unfolded in this case, it became apparent that three principal questions have to be answered:
(1)Which, if any, parent should [M] primarily live with;
(2)Should [M] and her mother be required to return to live in Queensland, proximate to the father;
(3)If [M] lives primarily with her mother in Melbourne, does the mother’s father (Mr B) pose an unacceptable risk to the safety and wellbeing of [M]?
[M] is the parties’ only child together. She was born after the parties’ relationship, which lasted only seven months, had concluded. The mother and the father separated in either June or July 2005.
The mother has two children from a previous relationship with Mr S: [L] born in 2002, and [T] born in 2003. Those children live with their father in Queensland. Mr S gave evidence in these proceedings. I will return to the parenting orders made in respect of the mother’s two eldest children in due course. Further, at the time of the final hearing, the mother was pregnant with her fourth child. The father of this child is Mr M. At the time of the final hearing, Mr M, who also gave evidence before me, was living in Brisbane. He was, however, unemployed and foreshadowed a potential move to Victoria to be with the mother for the birth of their child.
On 13 July 2007 I made interim parenting orders, which were complied with by the parties until the final hearing. There was no evidence that since the conclusion of the final hearing the interim orders have not been abided by. Neither party has sought to re-open the evidence in these proceedings.
By my interim orders, the mother was given the choice of returning to Brisbane or remaining in Melbourne. The mother elected to remain in Melbourne. Although I considered the possibility of ordering the mother to return to Brisbane, I formed the view that given the possibility of the mother persuading the court at the final hearing that she should be permitted to live with [M] in Melbourne, it would be unduly disruptive to the child to order the mother to return to Queensland on an interim basis. Orders were then made to facilitate the father spending time with his daughter on a weekly basis, after some lead in time, alternating between [U] and Melbourne, each second week. That is, the parents have had equal time with [M] from 18 August 2007. The father was required to travel to Melbourne one week in four. The mother was required to travel to Brisbane with [M] one week in four.
The mother gave evidence that since the interim orders were made, contact changeovers had proceeded reasonably well. The mother continued to complain of the father’s failure to look after [M]’s health, a subject I will return to in due course.
Although I made an order on an interim basis regarding parental responsibility, s.61DB of the Act requires that I disregard such allocation of parental responsibility at the final hearing.
The father lives at [U] in the State of Queensland. The mother now lives with her parents and brother at [N] in the State of Victoria.
I should explain that although they share a common surname, the mother and the father never married, and are not related. The father’s mother was married many years earlier to the mother’s father, and retained the surname Beadle for some years. They separated before either of the parties was born. The father’s mother, Ms M, gave evidence in these proceedings, as did the mother’s father, Mr B.
Before turning to the evidence in this case in more detail, it is helpful to understand the prevailing case law in so far as it relates to situations where one of the parents seeks to, or has relocated, without the consent of the other parent.
In Morgan & Miles [2007] FamCA 1230 Boland J sitting on appeal considered the correct approach to adopt in such cases. There, an order had been made on an interim basis requiring the mother to relocate the residence of the children, conditional upon the father securing for her accommodation comparable in facilities and rent to the accommodation she previously had in that town. Her Honour considered whether the decision of the Full Court in D & SV (2003) FLC 93-137 continued to be applicable notwithstanding amendments to the Family Law Act 1975 which took effect on 1 July 2006. Her Honour observed that there was nothing in the legislation which provides that a parent has a unilateral right to move a child. Whilst such a move may, after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by legislation.
Her Honour referred, at paragraphs [58] and [59] to the principles to be applied at a final hearing which include the following:
a)The best interests of the child are the paramount but not sole consideration;
b)The applicant for relocation is not required to demonstrate “compelling reasons” for the proposed relocation;
c)A court must evaluate and weigh the competing proposals of the parties against the relevant provisions of the Act and may subject to procedural fairness considerations formulate its own proposals in the best interests of the child;
d)The evaluation of the competing proposals is to be undertaken as part of the overall determination of the issue of where the child or children should live – the relocation issue is not a separate issue;
e)That the objects and principles in s.60B (as it then was) informed or guided a court in applying the criteria relevant to “best interests”;
f)A court will take into account a parents right of freedom of movement but that right must defer if the welfare of a child would be adversely affected.
At [72] her Honour considered that the Act as it now is does not treat relocation cases as a special category of parenting orders. In that respect the amending Act has effected no change to the law. At [74] her Honour said:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominately at the time of the application obtained such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”
At [77] her Honour said:
“The requirements of s.65DAC, properly observed, therefore require parents to consult and make a genuine effort to agree about a move which would make it significantly more difficult for the child to spend time with the “left behind” parent. The operation of s.65DAC, when applicable, clearly precludes a unilateral move by one parent without notice and consultation with the other parent.”
At paragraphs [79] to [81] her Honour said:
“79.In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, bur developing law should provide general guidance.
80.It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
At paragraph [91] her Honour said:
“The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominately with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.”
In Taylor & Barker [2007] FamCA 1246 the Full Family Court looked at the need to consider the likely effect on the child of separation caused by relocation of one parent. The case concerned a child aged 10 and a mother who wished to relocate from Canberra to North Queensland. Prior to that the child spent 6 nights a fortnight with the father and 8 nights with the mother. At first instance the mother was permitted to relocate with the child to North Queensland. At paragraph [53] Bryant CJ and Finn J said:
“We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible (citing U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen (2005) FLC 93-224).”
Their Honours considered that the court had to consider what alternatives there were to the proposed relocation. It was thought that the provisions of s.65DAA of the Act must have particular significance in a case involving a proposal that there be a significant change in the place where a child lives. It was therefore entirely appropriate to canvas, in the application of s.65DAA, the advantages and disadvantages of the mother’s relocation proposal. In considering the approach that a court should take to the determination of an application such as the present, their Honours said at [62]:
“The legislation gives no express direction or guidance on this issue [the appropriate order in which the provisions of Part VII of the Act should be considered]. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s.60CC(1) provides that in determining what is in the child’s best interest, the court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional consideration”) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interest.”
Their Honours said, at paragraph [83]:
“… Consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, not withstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement.” Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.”
In Sampson & Hartnett [2007] FamCA 1365 the Full Court considered the power of the court to direct, or by effect order a parent to relocate. At [19] Bryant CJ and Warnick J said:
“There is little doubt that the Family Court has power to “effectively” order a parent not to relocate by ordering that parent, who wishes to act as primary parent, not to change the location of a child. The much less considered question is whether there is power to make an order not to relocate/to relocate directly against a parent. However, the Full Court of this Court has made some comment about the relevant power or powers.”
Their Honours then reviewed an number of authorities and concluded at paragraph [33] by stating:
“In our view, there is nothing in the authorities that establishes that there is no power within the Family Law Act to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power.”
At [46] their Honours said, after referring to s.65D, s.60B and s.65DAA:
“These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents “fulfil their duties, and met their responsibilities …”. It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.”
At [58] their Honours said:
“However, we conclude there is power under s.114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
i) the location of the child would usually be the critical factor, leaving to the parents the choice about their roles; and
ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parents choosing.”
Finally, I should make reference to Pender & Haywood [2007] FamCA 1526. This decision helpfully encapsulates and summarises some of the relevant law in this difficult area. That case involved an appeal against an interim relocation order. It concerned twins, 2 ½ years old. The mother sought to relocate to a small town approximately two hours drive from Brisbane to participate in a family business. The father sought orders that the children live with him in Sydney. Boland J held that it was necessary to consider the presumption in s.61DA whether or not either party asked for an order for equal shared parental responsibility. Her Honour also held that it was appropriate to follow the legislative pathway set out in Goode at [82]. The decision at first instant was criticised because his Honour did not follow that course. Further the decision at first instance seems to have been predicated on the assumption that the mother would return to Sydney immediately as a result of the orders, which was specifically gainsaid by the mother in her evidence. Her Honour adopted and applied Sampson & Hartnett, supra. Her Honour said at [87]:
“In the recent decision of the Full Court in Sampson & Hartnett … Bryant CJ and Warnick J discussed the necessity to consider and make findings about the impact, including the practical and financial impact, on a mother who was the children’s primary care giver of being effectively compelled, as the result of parenting orders providing a regime for young children to spend substantial and significant time with the father, ultimately leading to equal time with both parents, to move with the children contrary to her proposal. In that case the Full Court held that it would be appealable error not to consider the practicability of the orders including the financial capacity of the mother to move to Sydney.”
In the present case, both parents lived in Brisbane during their relationship and when [M] was born (although, on the latter date, not together). The mother moved to Melbourne when her parents moved there, in October 2006.
In the present case, both parties seek an order for equal shared parental responsibility.
Section 61DA(1) of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
There is no evidence in this case that the presumption does not apply, because of s.61DA(2) of the Act. Neither party sought to rebut the presumption under s.61DA(4) of the Act.
I will therefore make an order for equal shared parental responsibility.
That means that s.65DAA(1) is enlivened. It provides:
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
It is convenient to first consider whether an order that [M] spend equal time with both parents is reasonably practicable. Section 65DAA(5) of the Act provides:
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Plainly, if the parties remain living as they currently are, an order for equal time is not reasonably practicable in the medium to longer term. It follows that an order for substantial and significant time is not reasonably practicable either.
The interim arrangements put in place cannot continue indefinitely. They require [M] to live in two different States. That obviously cannot continue after she reaches school age. The cost to the parties of travelling fourth weekly cannot be absorbed over the longer term.
If [M]’s parents were to live reasonably close to each other, then I conclude that it is reasonably practicable for [M] to spend either equal time or substantial and significant time with both parents. The parents in their evidence accepted, with some reservations, the ability of the other parent to properly care for [M]. The mother accepted that the parents were able to communicate, and accommodate the equal time arrangement put in place by the interim orders.
Therefore, the conclusion as to whether an equal time arrangement is reasonably practicable devolves to whether or not the mother should be required to relocate with the child from Melbourne to south east Queensland.
As I discussed in my reasons for making the interim orders, in my view it is in [M]’s best interests to spend as much time with both parents as can be achieved. No expert evidence was put before the court that [M] spending equal time with both parents, having regard to her age, and the parent’s respective parenting styles, and attitudes, was contrary to her best interests.
This conclusion is reinforced when regard is had to the principles and objects set out in s.60B of the Act as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
…
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
…
I am required to consider the matters in s.60CC(2) and (3) of the Act, and look at the parties’ proposals in light of those considerations. The primary considerations in s.60CC(2)(a) and (b) favour an order that sees [M] spending time with both of her parents. I am satisfied that, so far as both parents are concerned, there is no need to protect [M] from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence. I will return in due course as to whether there is a need to protect [M] from harm so far as her maternal grandfather is concerned.
I am satisfied from the evidence that [M] has established a bond with both parents, and, given the implementation of the interim orders, has begun a meaningful relationship with her father as well as her mother. Those relationships will continue to develop as [M] continues to spend time with each of her parents.
The primary considerations in s.60CC(2) of the Act therefore favour parenting orders that [M] spend time with both parents.
Neither of the parent’s proposals optimise the time that [M] spends with the other parent. Both seem to at least implicitly accept that the mother will remain living in Melbourne, and the father in south east Queensland. In the case of the mother’s proposal, the father would spend time with the child only one week per month until [M] reaches school age, and thereafter only during school holidays. In the case of the father’s proposal [M] would spend only one weekend per month with the mother and during school holidays.
Whilst a meaningful relationship can be maintained where one parent lives geographically distant from the child, in my view where the circumstances permit, if both parents reside in the same location the relationship can encompass the physical presence of both parents on a regular basis. All other things being equal, that can only benefit the relationship between the child and both parents. In this case, as I have said, there is no need to protect [M] from harm in either parent’s care.
Having considered the primary considerations in s.60CC(2) of the Act, I cannot say that either parent’s proposal is in [M]’s best interests.
Turning to the additional considerations, [M] is obviously too young to express any views.
[M] obviously has a close and loving relationship with her mother.
I accept that she also has a close and loving relationship with her father. The father’s relationship with [M] commenced soon after she was born. Before the mother relocated from Brisbane to Melbourne, the father had commenced spending alternate weekends with his daughter. At paragraph 17 of her affidavit filed 1 March 2007, the mother accepts that this arrangement worked reasonably well for a period of over six months, from about February 2006.
The father has been spending weekly blocks of time with [M] pursuant to the interim orders. The mother’s counsel submitted that the interim orders had been ‘working smoothly’. This leads me to conclude that the complaints made by the mother, her brother and others that [M] was always returned from the father’s care unwell, due to the father’s care of her, have largely been resolved. In her first affidavit, at paragraph 25, the mother asserted that the child was regularly returned from the father’s care with an upper respiratory tract infection. The mother also was concerned about the father’s propensity to have motor vehicle accidents. Nothing was put to the father in cross examination about his capacity to properly care for [M].
On the morning of the second day of the final hearing counsel for the father sought to adduce evidence from Dr L regarding the child’s medical condition. A report from Dr L was only given to the mother’s representatives shortly before court. The report was dated 8 October 2007. I permitted the father to adduce evidence from Dr L (by exhibit 4) that:
a)The father brings [M] to the doctor for a general medical examination each Monday and Friday that he has custody of her;
b)[M] has a problem with severe persistent middle ear infection which in the doctor’s opinion will need surgical grommet insertion if her hearing is to be preserved.
It was common ground that [M] has a problem with her middle ear (T70.34) and may require surgery for that. There was no evidence from Dr L that the father’s care of [M] was sub-optimal, or that she had any recurring or persistent problem with her upper respiratory tract.
The father initially expressed some concerns about the mother’s capacity to properly care for [M]. He primarily based this on a period of ten days that the mother lived with the father before she moved to Melbourne with her parents. He made reference to the fact that the mother fed [M] predominantly canned food. He was also concerned with the mother’s care of the child’s hygiene. This is corroborated by the father’s sister, Ms R. Perhaps because of the assistance given to her by her mother, and probably because she has come to realise [M]’s need for a proper diet, I am satisfied that this concern has now been addressed.
I am satisfied that both parents have the capacity, each with some assistance from their respective parents, to provide for [M]’s needs, including her emotional and intellectual needs. Both parents are still very young and, although the mother will have four children by the time of my judgment (of which two do not live with her), establishing their credentials to each other as safe parents.
The mother’s relocation to Melbourne is tied up with the considerations in ss.60CC(3)(c), (d), (e) and (i), and s.60CC(4) of the Act.
In the mother’s affidavit filed 24 October 2007 she:
a)Gives as the reason for moving to Melbourne the fact that she was having difficulties with the people she and the child were living with. The mother says that she was kicked out and had nowhere to go;
b)Says she is paying lesser rent in Victoria than she would be in Queensland;
c)Says that she plans to attend TAFE to do a course in business administration;
d)Says that if the court allows her to stay in Melbourne she will be able to complete the TAFE course over three to four years part time and her parents would be able to assist with caring for the child;
e)Says at paragraph 8 that she does not believe the paternal grandparents would be able to look after the child appropriately. The mother says that during the relationship the father informed her that while he was being raised both himself and his sister
(Ms R) would be beaten by both his mother and father;f)Contends the health system in Melbourne is better than in Brisbane;
g)Says that most of her family is in Melbourne. Although she has two sisters in Queensland, she does not have a good relationship with them;
h)She says there has been a marked difference in the child since she has been living in Melbourne. She is more happy, more playful, laughs more, and interacts with people more.
The mother concedes that she didn’t inform the father that she was moving to Melbourne (T94.7). Interestingly, the mother does not say that she could not properly parent [M] if she were required to live in south east Queensland. That is, she does not say that she needs the support and assistance of her family to properly function as a parent.
As to the first matter referred to at paragraph 61, the mother explained that the reason she left her rented accommodation in Brisbane was because the people she lived with didn’t like the fact that she fed [M] canned food. This tends to support what the father was complaining about. It is also significant that following this altercation, the mother did not return to live with her parents, who were then still in Brisbane. Rather, the mother lived with a friend, Mr W.
In cross examination the mother agreed that eventually it was important that she live independently of her parents (T97.30). There was no evidence, apart from the mother’s assertion, that rental was less expensive in Melbourne than in Brisbane.
There is no evidence that the mother could not do a similar course to that which she is undertaking in Melbourne at a comparable facility in Brisbane.
The mother’s two other children live in south-east Queensland, with their father. Her boyfriend, and the father of her fourth child, lived in Brisbane at the time of the hearing. He shared accommodation with Mr W with whom the mother had previously shared accommodation (T98.30).
At T98.40 the mother gave the following evidence: “Are you, at any stage, willing to relocate to Brisbane to spend time to move in with your boyfriend? - - At some stage, probably, yes”
At T99.20 the mother agreed that it would be a logical solution to this matter, if she were to move back to Brisbane.
The mother travels to Brisbane every second week so the father can spend time with [M]. When asked, at T101.5 what was her present intention, the mother replied: “My present intention was to eventually move back to Brisbane when I had the funds to get a place of my own and live with my daughter alone.”
The mother gave evidence that she had been making inquiries as to available accommodation in Brisbane about six weeks prior to the final hearing. At T103.20 the mother said that she has always wanted to return back to Brisbane. At T104.16 the mother gave evidence that if she could get comparable premises in Brisbane and Melbourne for the same price she would move to Brisbane because she would be closer to her other two children. As I have said, there is no evidence that there is any difference between the availability of accommodation in the two cities, or as to difference in rental payable.
Therefore, on the mother’s own evidence, it seems that she wants to return to Brisbane.
By remaining in Melbourne when, by the interim orders, she was offered the opportunity to return to Brisbane, the mother has demonstrated a certain unwillingness to facilitate an ongoing relationship between [M] and her father. It must have been obvious to the mother that the week about time between Brisbane and Melbourne was not sustainable in the medium to longer term. The mother’s proposal, that she remain living in Melbourne, despite her own evidence to which I have referred, would make it much less practical and more expensive for the parties to maintain a shared care relationship with [M].
As is often the case in this Court, the mother says that she supports the father’s relationship with the child and to spend meaningful time with her, yet places a significant obstacle in the way of that occurring by proposing to the Court that she be permitted to remain in Melbourne.
As the authorities to which I have referred make clear, the mother bears no onus of proving that she should be permitted to remain in Melbourne. Those same authorities make it clear that in formulating parenting orders, [M]’s best interests must be my paramount, although not sole, consideration.
In this case, the mother has not persuaded me that it is in [M]’s best interests to remain living at a place so geographically separated from her father, when to do so will sooner rather than later impede their relationship, and prevent [M] from spending significant time with her father. By the same token, the father has not persuaded me that [M] should live with him, and spend limited time with the mother, as his proposal contemplates. It would not be in [M]’s best interests to be separated from her mother as the father’s proposal contemplates.
The father has not persuaded me that it is in [M]’s best interests to live with him, and for the mother to remain living in Melbourne and spend occasional time with her daughter.
I consider that it is in [M]’s best interests to spend equal time with both of her parents.
In my view, such a regime will only work if the parents live in the same place.
The mother does not work. The mother gave evidence that she receives $690 per fortnight in government benefits. She pays her parents $225 per week board. She may receive rental assistance from the government if she moves to Queensland. She has a number of connections with Brisbane that I have identified. The father does work. He is in secure employment as a cleaner. The father gave evidence that he earns $600 per week in the hand. He should pay child support for his daughter.
The father works shift work. The father has the assistance of his parents and his sister who are available to care for [M] when he is at work. There is no evidence that he will be able to secure any, or commensurate, employment in Victoria. The father has no social network in Melbourne. By contrast the mother has a number of people to whom she can turn to for assistance in Brisbane, including the father of her youngest child.
The balance favours the mother returning to live in Brisbane, proximate to where the father lives. If necessary she should be compelled to do so.
Upon the mother returning to live within a certain distance of the father’s residence, [M] should spend equal time with both of her parents.
That conclusion makes resolution of the other major issue in the case much less critical. If the mother and the child live in south east Queensland, there is unlikely to be any opportunity for [M] to be in the care of her maternal grandfather without another adult being present. In those circumstances, it is difficult to conclude that Mr B presents an unacceptable risk of harm to [M].
However, in case a different view is taken elsewhere as to my conclusion that an order for [M] to spend equal time with the father, and that the mother relocate to Queensland for that purpose, is in her best interests; and because the parties invested so much time and energy on the issue at the final hearing, I should deal with the father’s contention that Mr B presents an unacceptable risk of harm to [M], and should be enjoined from spending any unsupervised time with her.
It should be made clear at the outset that there is no evidence, or indeed any suggestion, that Mr B has behaved inappropriately, so far as his interaction with [M] is concerned.
Rather, it is contended on behalf of the father that, having regard to complaints made by the mother and her sister to the police, the evidence of the father’s mother, and the circumstances in which the mother gave undertakings regarding her older two children, that Mr B presents an unacceptable risk to [M] and should not be allowed to spend unsupervised time with her.
The mother currently lives in the same house as her parents, and her
22 year old brother.
In his second affidavit, filed 12 March 2007, the father first raised concerns about the mother’s father. He contends that he saw Mr B indecently dealing with the mother’s eldest daughter. The father alleges that Mr B has threatened him with physical harm as a result. The allegations have subsequently become much more wide ranging.
Before turning to the evidence, it will assist if I set out the relevant law to be applied, in these difficult and highly emotional cases.
A finding that sexual abuse has occurred can only be reached by strict application of the onus of proof as set out in Briginshaw v Briginshaw (1938) 60 CLR 336. In children’s matters under Part VII of the Act where the issue is a child’s residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. That includes situations where an allegation is made against a person with whom the child lives. Before trial judges find themselves compelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s.140 Evidence Act1995 (Cth). Inexact proofs, indefinite testimony or indirect references are insufficient to ground a finding of abuse: WK & SR (1997) FLC 92-787 at [47].
In M v M (1988) 166 CLR 69; FLC 91-979 (at 77,081), the High Court said:
“…the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk ...
To achieve a proper balance the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
The possible findings in matters in which abuse is alleged are in accordance with the formulations proposed by the Full Court of the Family Court in B v B (1988) FLC 91-957 at 76,923 and the High Court in M v M. In the former case the Full Court said:
“In the course of the hearing of a custody or access application the Court may make one of the following findings in relation to an allegation of child abuse: (a) the allegation is proved or (b) the allegation is not proved or (c) there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinate factor in the ultimate decision.
The issue for the Court, in our view, is not whether a parent has sexually abused a child, but whether in all of the circumstances of the case access should or should not take place, following a consideration and evaluation of the various matters referred to in s. 64(1) [now s.68F(2)], including any findings in relation to child sexual abuse, with the overriding principle being paramountcy of the welfare of the child.”
It is well settled that the Court:
“should refrain from making a positive finding that an allegation of sexual abuse is true unless impelled by the particular circumstances to do so and it is satisfied according to the civil standard of proof with due regard to the factors in Briginshaw …”: see B v B (1993) FLC 92-357 at 79,777 citing the High Court in M v M).
A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:
“92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. [1976] V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph [48] reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph [53] the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph [74] of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
I have no doubt that the evidence of past discreditable acts by Mr B would not be admitted in any criminal proceedings brought against him. In civil proceedings, courts have approached the question of the admissibility of tendency evidence by reference to its probative value. These proceedings are not adversarial. I am asked to infer the existence of a fact (if it be properly so characterised) namely that Mr B presents an unacceptable risk to [M] because of what he has done in the past.
Mr B is not, of course, a party to these proceedings. He was not separately represented at the final hearing. He was called as a witness in the mother’s case, but his interests and the interests of the mother are not necessarily coincidental. Indeed on the very issue under discussion, they are very much at odds.
However, as the issues were squarely raised by the affidavit evidence (such as it was) and Mr B chose to respond by way of affidavit, and by being subjected to cross examination, I am less reluctant to make findings, if they are appropriate, against him.
In my view, where the best interests of a child, particularly a very young child, are to be determined, the court should act cautiously, and protectively. Evidence that Mr B has behaved inappropriately with young female children previously is, to my mind, logically probative to my determination of whether he presents an unacceptable risk of harm to [M].
I therefore propose to admit the evidence regarding the past behaviour of Mr B.
In my view, unlike the situation with direct evidence that a person presents an unacceptable risk (in which case specific findings of fact as to abuse are not required), where tendency evidence is sought to be adduced, for it to have any probative value it must lead the court to make findings of fact that particular conduct has or has not occurred. Otherwise, the court would be left with evidence that there is a risk that something may have occurred in the past (without a finding that it did occur) being admitted to support a conclusion that the alleged perpetrator presents an unacceptable risk to the subject child. That is quite unsatisfactory. Unless it can be found that prior bad acts did occur, to the requisite standard of proof, such acts cannot be used as tendency evidence to support a conclusion that the alleged perpetrator presents an unacceptable risk of harm to [M].
Section 97(1)(a) of the Evidence Act has been complied with in the sense that affidavits dealing with the allegations against Mr B were put in affidavit form and provided in advance of the final hearing.
When one looks at the evidence presented against Mr B, it cannot be concluded to the Briginshaw standard that he has acted inappropriately towards any child in the past.
There were disparate pieces of evidence sought to be accumulated by the father’s representatives to demonstrate Mr Beadle’s bad character. Curiously, counsel for the father did not seek to tender the documents exhibited to the father’s affidavit as truth of their contents (T17.8).
It might be wondered what other relevance they could have.
The first tranche of evidence was from [M]’s paternal grandmother,
Ms M. As previously noted, many years ago (approximately 25), Ms M was married to Mr B. In an affidavit filed 9 October 2007 Ms M says:
a)She holds grave fears for the safety and welfare of [M];
b)Mr B is a sexual predator who preys on little girls;
c)When she was married to Mr B and living with him, they had a single mother living with them who had an 11 year old daughter. Mr B asked her if he could “break” the girl;
d)One day when one of their daughters was a baby he asked if he could break her. Ms M says she was horrified, that was the last straw. She left Mr B, taking the children with her.
Ms Beadle was cross examined about these matters but remained steadfast in her evidence. Mr B denied that such conversations had occurred (both in his affidavit and at T125). In my view, the evidence is of such a general nature that it does not permit me to make any findings that Mr B acted in an unacceptable manner at that time, nor is such evidence probative of any present propensity of Mr B to so act.
The next tranche of evidence came from the mother’s sister and the mother herself. Ms B, the mother’s sister, swore an affidavit filed
23 November 2007. She stated that Mr B molested her and the mother when they were younger. It was the mother that suggested she do a statement to police.
The evidence of Ms B in her affidavit was vague. She refers to making a police statement but it is not exhibited. There was an application to lead further evidence in chief from her but this was opposed and I refused the application.
In cross examination Ms B said she made allegations against her father when she was about 13 years old. It was suggested to her that at the time she had a boyfriend, [H]. She was shown a letter that became exhibit 5 addressed to [H] which contains “I tried to tell [R] about it wasn’t dad but she didn’t believe me . . .” She couldn’t remember who [R] was or why this letter was written. She said (at T83.35) that she probably wrote it to come home because she was desperate to come home. At the time she had been placed in foster care. When she was asked about interviews with police and the Department of Child Safety in which she said that her father had never molested her, Ms B said that she probably just said that because she wanted to go home and see her mother.
Exhibit 6 is a case note from the Department of Families file dated
3 and 4 September 1997. It refers to an interview of Ms B:
“After much discussions re what the options were Ms B told me that she had not been sexually abused by her Father, Mr B. She had made up the story and [K] went along with it. Ms B stated that [K] had never been abused by Mr B either.
[Ms B] stated that she was feeling down as the family never do anything together, there is no money for things and clothes. She thought that by telling this story she would get a couple of week’s holiday and some new clothes.
It would appear that once the ball got rolling it was difficult to stop. She appeared relieved to say that she had not been abused.”
It was not put to Ms B that the abuse of which she initially complained didn’t happen. She said no one believed her anyway (T86.25).
Thus, the evidence was left in a highly unsatisfactory state. On the one hand, Ms B gave, admittedly vague, evidence that her father had molested her, and it was not put to her that such conduct did not occur. Yet there is also evidence that Ms B withdrew her allegations and said to persons in an official capacity that the complained of conduct did not occur.
In the father’s affidavit filed 9 October 2007, he says that the mother herself made allegations of abuse against Mr B in a statement made to police on 16 December 2003 and exhibits it. The statement became exhibit 7. The mother admits that the document put into evidence is the statement she gave to police. The father obtained the mother’s statement from Mr S, to whom I will shortly make reference.
In her statement to police dated 16 December 2003 the mother says:
a)The first sexual abuse she remembers happened in Toowoomba when she was in grade 4 at primary school. The acts of abuse are set out at paragraphs 31 - 36 of the statement;
b)She refers to an incident at a different address in Toowoomba at paragraphs 37 – 40 of her statement;
c)Mr B was violent towards the children (the mother and her sister);
d)She recalls being sexually abused when she was thirteen years of age and living at [S] in Brisbane referred to at paragraphs 41 – 43 of the statement;
e)She ran away from home before her sixteenth birthday;
f)She still maintains contact with her family despite only really wanting to see her mother;
g)Says at paragraph 60 (which is incomplete in the copy put before the court):
“I have been asked why I came forward and first made this complaint to [C] Police. My answer is that I now have two girls aged 6 months and one aged two years. Because I am a mother it frightens me that because Dad has never been brought to account for what he did to Ms B and I, there is nothing to stop him doing similar things to grandchildren. I would not let him look after . . . “
The statement was given when the mother was 17 years of age.
In the mother’s affidavit filed 24 October 2007 she:
a)Says that she was raped at age 14 by her uncle’s best friend;
b)Says she told Mr S about it, then her mother. Says that Mr S then started playing mind games with her and manipulating her. She says she made a police statement but the person was not charged as there was no corroborative evidence;
c)Says that Ms B made allegations against Mr B in 1997;
d)Refutes the allegations made by her sister;
e)Says that as a result she was not taken by the Department and continued living with her parents and her brother. She says Ms B was put in foster care for six weeks. She telephoned and said she wanted to come back home. She said in a letter to her boyfriend that she made it up and just wanted a holiday. “This was the letter that allowed the Department to allow my sister to come back home. . . “;
f)Says that at the time of doing the police statement attached to the father’s affidavit she had given birth to [T] a few months previously. She was on anti-depressants for post natal depression. The medication made her very disoriented and she was not ‘with it’;
g)Says at paragraph 54 that at the time of making the police statement she was not thinking clearly and was unable to think clearly as she was on such a high does of medication. Mr S and she had just had an argument about her parents seeing the children [L] and [T] (due to the allegations Ms B had made). She says that Mr S then said to her that if she didn’t make a statement against Mr B, then he was going to take the children and she would never see them again. She believed him as he had done this once or twice before;
h)Says at paragraph 55:
“The next day Mr S’s mother took me to the [C] police station . . . when I walked into the police station I felt terrible, mortified about what I was about to do, I hated myself, I was almost in tears on the way in – but felt like I had no choice. I thought I was doing what was best for my children – I was doing this for them. This is what a mother would do for her children. I did not feel like I was there and doing this – I felt like I was watching myself. It did not feel real
i)Says she retracted the police statement in March 2004 which is when she again started living with her parents.
Mr W, the mother’s brother has sworn an affidavit. In it he denies being abused by his father and says that he does not believe the matters alleged by his sisters.
The mother does not think her father poses any risk to [M] (at T105.19; T108.45). However, this evidence was put into context at T111.5. The reason the mother’s father does not pose a risk is that he is never left alone with [M]. When the mother was asked whether the court could have significant concerns given the evidence before it that her father could be perceived as a risk, her response was “possibly” (T109.3).
Mr B has sworn an affidavit filed in which he:
a)Denies ever having threatened the father’s life;
b)Responds to the allegation that he molested the mother’s eldest daughter in a curious way:
“This allegation is one which keeps being raised every time it suits someone’s purpose to do so. The first time this allegation was raised was in 1997 and at that time it was fully investigated and no charges were laid and that should have been the end of it.
. . .
The applicant in these proceedings was present for the Family Court matters involving Mr S [the father of mother’s two other children], and heard all of the allegations levelled against me. At no time during the relationship with [the mother] and [the father] did he indicate that he believed the allegations against me, in fact he declared that he believed them to be false. Now, in spite of this, the applicant seeks to raise these allegations to assist his application;
c)Exhibits a letter of apology issued by the Zonal Director of the Queensland Department of Child Safety regarding an incorrect entry in the departmental records that he has a conviction. The letter states that the substantiated records on the department’s database must remain but he was able to write a statement that would be entered into the records to reflect the correct position.
Mr B gave oral evidence in which he expressly denied all allegations of abuse. I find the above extracted part of his affidavit curious because it represents Mr B’s first formal response to the allegations against him. He does not deny them.
Mr B admitted that he suffers from post traumatic stress disorder and that he has a temper. At T123.45 he denied the matters contained in the mother’s statement to the police. At T127.40 he said: “I haven’t been left alone with any child since 1997, to protect my own arse”.
Curiously, the maternal grandmother was not called to give evidence. No explanation was offered as to why she did not do so. It does not seem to me appropriate to draw a Jones v Dunkel inference from the failure to call the maternal grandmother as a witness. Any inference that may be drawn from her absence is that her evidence would not have assisted the mother; not that it would not have assisted Mr B, because he is not a party to the proceedings. The real question is what inference should be drawn? What part of the mother’s case should such inference be related to? There would have been no real need to call the maternal grandmother if all that was in issue was whether the mother should remain in Melbourne or return to Brisbane. Her evidence would at best have been collateral, i.e. directed to whether the mother could properly and competently parent [M]. Once one links the maternal grandmother’s evidence to that of her husband, and the allegations made against him, it seems to me inappropriate to draw any adverse inference from her unexplained absence from the witness box.
The evidence of the mother and her sister leaves me with a sense of unease as to where the truth lies in this matter. However, because both women have at one point retracted their allegations, and in light of
Mr B presenting himself for cross examination and maintaining his denial that anything untoward happened, and because of the way the proceedings were conducted without any real forensic investigation of the earlier allegations of abuse, I cannot make any findings that Mr B abused each of his daughters on the Briginshaw standard of proof.
The third tranche of evidence relates to Mr B’s alleged behaviour against the mother’s older two children. As I have said, the mother has two older children from a previous relationship, [L] born in 2002 and [T] born in 2003. Those children live with their father, Mr S.
Because of the allegations made in the police statements to which I have referred from the mother and her sister, the Department of Child Safety became involved. Orders were made in the Toowoomba Magistrates Court on 1 April 2005 regarding the mother’s two older children. The two child protection orders prohibited Mr B having any contact with either [T] and or [L] and neither child was to reside with him. However, the mere existence of these orders does not entitle me to find that Mr B has acted inappropriately towards either of the mother’s two older children in specific circumstances.
Ms M gave uncontradicted evidence that she was appointed by the Department of Child Safety to supervise Mr B over a period of four to five months whilst he was spending time with his grandchildren.
There were proceedings in the Family Court of Australia between the mother and Mr S, the father of [T] and [L]. Consent parenting orders were made on the undertaking of the mother “to ensure that the said children have no contact with the maternal grandfather Mr B”.
The mother says at paragraph 24 of her affidavit filed 24 October 2007 that the reason she gave the undertaking with respect to the children having contact with Mr B was because the proceedings were extremely long and stressful, for both myself and her father. The mother says she represented herself. The mother says her father didn’t want to repeatedly hear the allegations over and over again and neither did she. They wanted to finish the proceedings. The only option the mother felt that she had at the time was wait for a final hearing, go to a contact centre, or finish the proceedings. She chose to give the undertaking, not because of any concern about her father, but so as to finalise the proceedings.
Mr S gave evidence that Mr B had molested his daughter. Mr S also said the mother told him early in their relationship of her allegations against Mr B molesting her when she was younger.
Mr S says he saw Mr B remove his daughter’s clothes at a house at [S]. It was not put to him that such incident didn’t occur. Counsel for the mother could not do that. Counsel did not represent Mr B. The mother was not present when the alleged incident happened. Mr B denied that it had occurred.
Mr S is himself a convicted sex offender. He has served nine months in prison. I would not be prepared to rely on his uncorroborated evidence. On his evidence alone I would not be prepared to find, on the Briginshaw standard, that Mr B acted inappropriately towards the mother’s older child.
The father agrees that in his first affidavit, filed 23 January 2007, he made no allegations in relation to Mr B. In his oral evidence he said he “didn’t think of it at the time” (T27.33). I find this explanation implausible. The mother moved to Melbourne to live with her family that included her father. The father says he had knowledge that Mr B had molested not only the mother and her sister, but also the mother’s older daughter. One would have thought concern would have immediately sprung to mind.
At T28.40 the father gave evidence that he saw Mr B behaving inappropriately toward [L]. It is not clear if this is the same incident to which Mr S referred. The father said that because Mr B threatened his life he didn’t do anything and kept it to himself. I reject this evidence as implausible.
The father gave evidence that he was not aware that Mr B has never been charged or convicted with any offence relating to children. The father gave evidence that he knew that Ms B had withdrawn the allegations she had made against her father but said that he didn’t find that surprising (T40.14). He says he didn’t ask her why she withdrew the allegations.
I am unable to make findings of specific incidents of unlawful abuse by Mr B towards the mother, her sister or the mother’s older two children.
I have considered whether I can use the combined effect of the evidence to which I have referred. That is, although I cannot find that any one incident occurred, does the evidence entitle me to find that
Mr B is an unsuitable person to be left alone with young female children? In my view, that course is not open to me. If there is not sufficient evidence to make a finding, that is the end of the matter, so far as past acts in relation to other children are concerned. Otherwise the court is confronted with the rather unsavoury prospect of being asked to make a finding that a person, about whom it might reasonably have suspicions, presents an unacceptable risk on the basis of unproven allegations. To put it in the vernacular – if enough mud is thrown some of it will stick.
Because no findings of fact can be made that Mr B has acted in a particular way in the past, there is no tendency evidence available to found a finding that he presents an unacceptable risk to [M].
I have earlier concluded that the mother and [M] should relocate to south east Queensland. If another court takes the view that such a move should not be required, I would not be prepared to find that Mr B presents an unacceptable risk of harm to [M]. Therefore, there is no reason why, if she remains living in Victoria, the mother and [M] could not remain living with the maternal grandparents.
Orders will be made as set out at the commencement of these reasons.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 5 December 2008
0
8
2