Beckham and Franz
[2017] FCCA 798
•26 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKHAM & FRANZ | [2017] FCCA 798 |
| Catchwords: FAMILY LAW – Interim arrangements for child of three years to spend time with her father – parties have poor and mistrustful relationship – allegations of sexual abuse arise following period of professionally supervised time – assessment of risk – is risk of abuse unacceptable for court to accept – should conditions be applied – matters to be considered – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4(1), 60B, 60CA, 60CC, 61DA |
| Cases cited: Deiter & Deiter [2011] FamCAFC 82 |
| Applicant: | MR BECKHAM |
| Respondent: | MS FRANZ |
| File Number: | ADC 572 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 12 April 2017 |
| Date of Last Submission: | 12 April 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 26 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carlin |
| Solicitors for the Applicant: | Carlin Lawyers |
| Counsel for the Respondent: | Ms Hirst |
| Solicitors for the Respondent: | Adelaide Family Lawyers |
ORDERS
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 18 August 2017.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
C.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
This matter be listed for final hearing before Judge Brown on 15 & 16 May 2018 at 10.00am NOTING two (2) days hearing time has been allocated and will not be exceeded without leave of the Court.
Until further or other order:
The father spend time with the child X born (omitted) 2014 from 11.00am until 4.30pm on each Sunday commencing 30 April 2017 with the time to be subject to the direct supervision of the paternal grandmother, Ms M.
The maternal and paternal grandmothers (Ms S and Ms M) are to facilitate handovers of the child at the (omitted) Police Station.
Further consideration of the matter be adjourned to 13 September 2017 at 9.30am and the mention date of 19 May 2017 be vacated.
IT IS NOTED that publication of this judgment under the pseudonym Beckham & Franz is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 572 of 2016
| MR BECKHAM |
Applicant
And
| MS FRANZ |
Respondent
REASONS FOR JUDGMENT
Introduction
All cases involving allegations of abuse of a child are difficult and confronting. Those arising at the interim stage are particularly difficult, given the untested and limited nature of the evidence, likely to be available to the court, at an early stage of proceedings.
Mr J and Ms Franz are the parents of X born (omitted) 2014. They began to live together in early 2013 and separated when X was a few months old. As a consequence, they have no history of parenting X together.
Mr Beckham commenced these proceedings on 23 February 2016 seeking orders to spend regular time with X. At the time, it was his evidence that he had not seen X since September of 2015. He contends that Ms Franz has actively made it as difficult as possible for him to engage, in any way whatsoever, with X.
Mr Beckham also alleged that Ms Franz had forged his signature so that X’s name was registered Franz rather than Beckham. In this context, he deposed that he was fearful that Ms Franz was unwilling to support him having any proper level of paternal relationship with X.
From Ms Franz’s perspective, the relationship between the parties was one marked by significant family violence directed at her by Mr Beckham. She alleged that this family violence was exacerbated by Mr Beckham’s excessive drinking and was characterised by him abusing her; banging her head into walls; strangling her dog; and damaging her clothes.
As a consequence of this behaviour, Ms Franz applied for an intervention order against Mr Beckham, which was granted on an interim basis on 22 December 2015. It included X as a protected person. Police subsequently elected not to proceed with criminal charges of assault against Mr Beckham arising from the allegations made by Ms Franz.
For his part, Mr Beckham denies that he has ever been violent towards to Ms Franz. Rather, he categorises her as an emotionally volatile person who has some level of psychological difficulty. He asserts that she obtained the intervention order against him, which included X, in order to frustrate his relationship with his daughter.
As is clear from this brief introduction, the parties have no trust in one another and are unable to communicate effectively. It was against this background that the court was called upon to make interim orders regulating the extent and location of time which Mr Beckham was to spend with X.
For obvious reasons, these difficult and conflicted circumstances called for the court to take a cautious approach. On 4 July 2016, it was ordered that Mr Beckham should spend six periods of supervised time, with X, subject to the supervision of the (omitted) Children's Contact Service “the CCC”. It was anticipated that the CCC would be in a position to provide a report, in respect of this time, by early December of 2016.
In her affidavit material, Ms Franz had alleged that Mr Beckham had long-standing issues to do with drug abuse. In this context, it was ordered that he should undergo a hair follicle drug analysis test. The intent of the test being that it would reveal whether Mr Beckham had ingested any illicit substance over the past few months. Ms Franz was particularly concerned about methamphetamine.
X has been diagnosed with epilepsy, although this diagnosis has recently been called into question. For obvious reasons, Ms Franz was gravely concerned at the prospect of X suffering a seizure whilst she was away from her. These understandable concerns added a further degree of complexity to the case.
The CCC report
The first visit between Mr Beckham and X, at the CCC, took place on 19 November 2016. The delay was a consequence of the long waiting list for parents to utilise CCC’s in South Australia. Prior to the first visit, Ms Franz was described by the co-ordinator of the Centre to be anxious and quite upset. By this time it was over a year since Mr Beckham had interacted with X.
The visit between X and Mr Beckham began slowly but X was described as becoming progressively confident as the visit proceeded and of interacting, with her father, in a more outgoing manner. She did not hesitate to give her father a little kiss when the visit ended.
Further visits took place on 3 December 2016 and 17 December 2016. These visits went without incident. Mr Beckham was described as sharing play based dialogue with X and the two as working cooperatively whilst rolling out playdoh and cutting it into shapes. X referred to Mr Beckham as daddy during the visits.
The final of the six ordered visits took place on 28 January 2017. Mr Beckham provided X with a snack of juice and crackers and the two had a picnic together. Mr Beckham was described as being positive in his compliments towards X. The visit ended with father and daughter having a big hug. In summary, the supervised visits are reported to have gone well, with X herself not exhibiting any distress to any staff member of the CCC.
The hair follicle Test
Mr Beckham provided seven centimetres of hair, for a toxicology report, on 19 July 2016. The hair segment contained approximately 170 picograms of MDMA; 50 picograms of methylamphetamines; and 20 picograms of cocaine. No commentary was provided in respect of these levels apart from the following:
“Note: Hair grows at an average rate of approximately 1 centimetre per month. The amount of hair analysed would approximately cover 3 months prior to sampling.
Note: The level of 3,4-methylenedioxymethylamphetamine (MDMA), methylamphetamine and cocaine detected in the hair segment could be residual level from previous use, from external exposure that has migrated into the hair or from occasional low level use over the timeframe of testing.”
An appendix to the report indicates that the lower limit of reporting for all analytes is 20pg/mg of hair, in respect of each of the drugs concerned in the matter.
Accordingly the report was of concern but I have not been provided with any expert commentary in respect of it. The most significant issue being what sort of illicit drug usage the result indicates, particularly in terms of the level and frequency of drug use and when it was last likely to have occurred.
Recent events
The matter returned to court on 14 February 2017. Given the apparent success of his time at the CCC with X, Mr Beckham was anxious to move to unsupervised time. On the other hand, Ms Franz was concerned at the prospect of any progression in that direction given the positive hair follicle test.
In this context, in my view, it is useful for the court to outline what is the rationale for the establishment of children’s contact services. These can be derived from the Children’s Contact Services: Guiding Principle Framework for Good Practice published by the Australian Government Attorney-Generals’ Department. The objectives for such services are as follows:
“CCCs occupy a unique and important position within Australia’s family law system with their core business focusing on the needs of separating or separated families.
CCCs enable children of separated parents to have safe contact with the parent they do not live with, in circumstances where parents are unable to manage their own contact arrangements. Where separated parents are not able to meet without conflict, CCCs provide a safe, neutral venue for the transfer of children between separated parents. Where there is a perceived or actual risk to the child, they provide supervised contact between a child and their parent or other family member. Parents may be ordered to attend a CCC by the family court to facilitate changeover or have supervised visits with their children.
The key goal of CCCs is to assist separated families to move, where possible and it is considered safe to do so, to self-management of contact arrangements, both in terms of changeover and unsupervised contact. CCCs ensure that the children’s best interests are kept central to the contact process. Services should only accept cases after careful assessment and where they consider that their facilities and resources allow them to deliver services that are safe and appropriate for all parties.
The overall objective for CCCs is to provide children with the opportunity of re-establishing or maintaining a meaningful relationship with both parents, and other significant persons in their lives, when considered safe to do so.”
As previously indicted, there are many calls on the services of CCC’s in this State. In addition, supervised time can rarely provide a long-term solution for contact arrangements even in the most problematic and conflicted of families.
At best, such centres can only provide extremely limited time for a parent to interact with a child which may not be sufficient to support a meaningful level of relationship between parent and child. For these reasons, wherever possible, parents are to be encouraged to manage their own contact arrangements.
On 14 February 2017, it was clear to me that the case remained fraught with difficulty. Given the success of the father’s time at the CCC, I considered that it would be in X’s best interest to progress her time with her father in some way. However, given the mother’s anxiety about the situation and the results of the hair follicle analysis, I deemed it appropriate that any such advance should be both gradual and conservative.
As a consequence of these considerations, my mind turned to possible sources of lay supervision which would be both more flexible and extensive than the professionally supervised time offered at a CCC. Given the friction between the parties, it seemed unlikely that they would be able to agree on some neutral but honest broker to undertake such a supervisory role.
Mr Beckham proposed his mother, Ms M as such a supervisor. Ms Franz was mistrustful of her because of her obvious allegiance to her son. In this context, I elected to take some oral evidence from Ms M in order to make my own assessment of her as a potential supervisor, in particular whether she would be vigilant so far as X’s safety was concerned.
Ultimately, I found Ms M to be an acceptable supervisor. Besides the applicant in these proceedings, she has three other children and nine grandchildren aged between 17 and 3 years. She presented as an experienced parent who was keen to spend time with X. She also seemed to me to be a sensible person.
As a consequence of these matters on 14 February 2017, the following orders were made:
“2.The said child spend time with the father on each Sunday from 12 noon until 3.00pm at the (omitted) at (omitted) under the supervision of the maternal grandparents and the paternal grandparents until such time as the father completes training at the Epilepsy Centre at (omitted) and provides proof of completion to the mother’s solicitor.
3.Thereafter time spending shall occur at the home of the paternal grandmother on each Sunday from 12 noon until 3.00pm with handovers to take place at the (omitted) Police Station, in the foyer, and between the paternal and maternal grandparents.
4.The father submit forthwith to a Hair Follicle Test at his own cost and provide the results to the mother’s solicitor within 24 hours of receipt.”
Regrettably, the orders have not been entirely successful in their implementation. On 10 March 2016, Ms Franz filed an application in a case seeking their immediate suspension pending the completion of a Police and Department for Child Protection investigating relating to X.
She alleges that this investigation has arisen because on Monday 6 March 2017 she observed a large bruise on X’s inner right thigh, which she believes must have occurred whilst X was in the care of her father, subject to the supervision of Ms M, on the previous Sunday. Ms Franz further alleges that the bruise may be the result of some form of sexual assault.
Ms Franz’s concerns were heightened by the fact that Mr Beckham had failed to complete the further hair follicle test. From his perspective, Mr Beckham asserted that he had provided such a sample but it had unaccountably gone missing in the mail between his postage of it and the laboratory concerned. He vehemently refuted that either he or his mother had behaved in any inappropriate way towards X or done anything to harm her.
On 22 February 2017, both Mr Beckham and Ms M completed a training session on epilepsy awareness and administration of intra-nasal midazolam offered by the Epilepsy Centre of South Australia. In addition to X, Mr Beckham has another child from an earlier relationship. She is A born (omitted) 2013. Mr Beckham spends time with A, including overnight time, on regular weekends.
Mr Beckham has not spent any time with X since 5 March 2017. He is anxious that this time resume as soon as possible. He is also desirous of X being able to form a comfortable level of relationship with her half-sibling, A.
It is beyond the scope of these proceedings to determine definitively whether or not X has been either assaulted or sexually abused by her father or paternal grandmother. However, I must still determine whether it is in X’s best interests to maintain some form of relationship with her father, at this stage or whether time should be suspended pending the completion of the formal investigation.
As I will explain in due course, in cases involving allegations of abuse of a young child, who is developmentally immature, it is very often the case that such a child is not able to provide a clear narrative of what has happened. The only individuals who know exactly what happened are the alleged abuser and the child concerned. The former is not likely to make admissions against interest; the latter is not cognitively capable of describing what occurred, if anything.
In addition, any available sources of objective evidence may be unequivocal or imprecise. In these circumstances, it very often the case the Police and Child Protection investigations are inconclusive. In these circumstances, the court must focus on X’s best interest, as the paramount or most important concern.
Necessarily, this exercise must focus on the degree of risk, which may arise for X, if she is exposed to a person who may harm her, or even worse, use her as a source of sexual gratification. At the same time, there may also be significant risks of X suffering emotional harm, if a potentially beneficial relationship, for her, is either severed or artificially curtailed, on the basis of an imprecise or uncertain level of risk.
X has recently been re-introduced to her father. This was a difficult and extended process. It may be psychologically damaging, for her, if her daddy once again disappears from her life. In due course, his further re-introduction may be problematic. From Mr Beckham’s perspective, he is likely to feel frustrated that the progress of this case, already glacially slow, is brought to a standstill for possibly a lengthy period of time, whilst police conduct inquiries which he asserts can only be fruitless, given the state of the evidence.
These proceedings are directed towards conducting a preliminary examination of this level of risk. It occurs in a hearing, which takes place against a background of high emotion and significant mistrust. All concerned should bear in mind that, at this stage, I am not making final orders in respect of X’s care nor am I in a position to make significant findings of fact about the very many issues in dispute between the parties.
Legal Principles Applicable
The central issue, in the case, at this stage, centres on child protection issues. However, as I have already pointed out, at this interim stage and perhaps even after a final hearing, the court will not be in a position to make definitive findings as to whether or not X has been subject to some form of child abuse or other form of exploitation.
Notwithstanding these evidentiary difficulties, arising at the interim stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, so far as X is concerned, according to the relevant principles contained in the Family Law Act 1975 (the Act).
In this context, it is clear that the court is required to consider child protection issues, in its decision making processes, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[1] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[1] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[2] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[2] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[3] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution at the interim stage. This is the position in the matter currently before the court.
[3] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
With those strictures in mind, I turn now to the specific provisions, within the Act, dealing with the making of parenting orders and the relevance of allegations of abuse to such orders. It is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[4]
[4] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[5] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[6]
[5] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[6] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act 1975. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
As indicated above, in Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [7]
[7] See Slater & Light [2013] FamCAFC 4 at [37]
The unacceptable risk test is a means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent. Essentially, the court should not grant time to a parent with a child if the situation envisaged would expose the child concerned to an unacceptable risk of suffering some form of harm and abuse.
In the current case, I must analysis the evidence available to me relating to the various concerns raised by Ms Franz, to determine the degree of risk, arising for X, of spending time with her father.
If, after this analysis, I consider any such risk to be unacceptably high, with or without conditions, I should not countenance X spending time with her father. The standard of proof applicable to the assessment of risk, in this context, is the ordinary civil standard.
It is horrifying to consider that a parent would actively do anything to harm his or her child. However, regrettably, the experience of the court is that parents do abuse their children. It is equally horrifying to consider that a parent would consciously fabricate complaints of abuse or hysterically overreact to some commonplace incident or childhood mishap, in an effort to derail a parent/child relationship.
It is frequently the case that allegations of child abuse (and subsequent allegations that some manipulation of the child in question has occurred, in order to secure some form of damaging disclosure) occur in circumstances where the parents concerned have little previous parenting relationship together and communicate poorly, if at all, because of antipathy and suspicion. Both these circumstances are present in the current case to marked degree.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed manipulated. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
As Fogarty J said in N&S and the Separate Representative:
“…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.”[8]
[8] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]
In W and W [Abuse allegations: unacceptable risk][9] the Full Court summarised a number of authorities dealing with abuse allegations. I acknowledge that the considerations delineated are more relevant to final hearing situations. However, in my view, they remain a useful yardstick to assist the court in assessing whether an unacceptable risk arises in any particular parenting situation. They include the following:
[9] See W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
·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 are the events alleged to have occurred;
·What are the effects exhibited by the child;
·What expert evidence has been provided;
·Are there satisfaction explanations for the allegations apart from abuse;
·What are the likely future effects on the child.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
At the interim hearing stage, it is rebutted if the court considers it inappropriate for it to be applied. The presumption is also rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence or it would not otherwise be in the child’s best interests.
The evidence provided up to this stage
The mother relies on the following affidavits:
i)an affidavit of herself filed 10 March 2017; and
ii)an affidavit of her mother, Ms S, filed 10 March 2017.
The father relies on the following:
i)an affidavit of himself, filed 10 April 2017; and
ii)an affidavit of his mother, Ms M, filed 10 April 2017.
Given the nature of the interim hearing, none of these individuals has been subject to cross-examination regarding their motivations in the case and the level of reliability and objectivity in reporting what they have in respect of X’s behaviour and presentation. Necessarily, Ms S, on the one hand and Ms M, on the other, are likely to be strongly aligned with their respective offspring.
In addition, I have been provided with an email dated 11 April 2017, from Detective Sergeant Ms N of the (omitted) Family Investigation Section of South Australia Police. This indicates that a complaint of aggravated assault in respect of X has been made to police by Ms R (sic) Franz, which was first reported on 8 March 2017. The email says nothing else about the progress of this investigation and particularly when it is likely to conclude and what it has entailed thus far.
Ms Franz deposes that X attended childcare on Monday 6 March 2017. It was following X’s attendance at childcare that Ms Franz observed the bruise on X’s inner right thigh. As a consequence, she asked staff at the childcare facility whether the child had been injured at the facility earlier in the day.
In this context, Ms Franz asserts that she spoke to a worker at the centre identified as Ms I. Ms I advised that X had fallen over on the grass but she did not believe that this incident would correlate with the large bruise the child reportedly had. Ms I further reported that X had been very clingy and crying a lot that particular morning, which was regarded as being out of character for her. Ms I has not provided an affidavit of evidence at this stage of the proceedings.
Ms Franz alleges further that X has been unsettled following previous visits with her father. Most recently after the visit of 5 March, Ms Franz deposes that she asked X, whilst she was being placed in the care, if she had had fun with her father to which the child allegedly said “Mr Beckham hurt my bum bum”. When pressed further, the child is alleged to have become distressed and unwilling to say anything further apart from the fact that she had been on a train trip with her father.
Ms Franz has not deposed directly of her own interactions with X after 3:00pm on Sunday 5 March 2017. In particular, whether she herself noticed anything physically untoward whilst bathing X or otherwise preparing her for bed. There is no evidence that Ms Franz examined X after the alleged disclosure.
It seems clear that Ms Franz did not notice any injury on the child until a significant period of time had passed since spending time with her father. In this context, I cannot accept the lay-submissions of Ms Hirst, Ms Franz’s solicitor, as to how long it ordinarily takes for a bruise to become discoloured. Ms Hirst is not medically qualified.
As a consequence of the bruise to X, Ms Franz arranged for her to attend upon Dr H at 4:54pm on 6 March 2017. The bruise in question is described by Dr H as being light bluish purple measuring 4.5 centimetres x 1 centimetres linear 2 centimetres below the nappy line. Ms Franz also described to Dr H what she asserted were other recent examples of the child being emotionally deregulated. This included her being unsettled and clingy; having a panic attack; and being resistant to having her nappy removed.
Ms Franz also deposed that Dr H informed her that, in the doctor’s opinion the bruise in question was in an unusual place. This particular observation does not appear on the doctor’s clinical notes. The majority of the note is taken up with Ms Franz’s history of what are asserted to be Mr Beckham’s and his mother’s unsatisfactory conduct during supervised visits.
In her affidavit, Ms Franz asserts that she told Dr H that X had disclosed to her that her father “put his head there and hurt me”. In her affidavit, Ms Franz has not indicated where this disclosure occurred and under what circumstances. It is not congruent with what the child is alleged to have said immediately following the visit. In particular, Ms Franz has not disclosed whether this alleged disclosure occurred before or after she had noticed the bruise on Monday 6 March 2017. In particular, it is unclear whether the alleged disclosure occurred in response to a leading question.
Ms Franz asserts that Dr H attempted to remove X’s nappy, in an attempt to examine her genitalia, with a view to ascertaining whether or not there was any evidence the child had been sexually abused. However, Ms Franz asserts that Dr H desisted from the exercise because of the level of the child’s distress. In this aspect, the doctor’s notes record “when nappy changed at home, hesitant which is unusual, and doesn’t want to take nappy off here in surgery”.
Dr H has apparently accepted Ms Franz’s assertion that Mr Beckham has breached the court’s order by taking her on a train trip and to a park. In addition, the disclosure allegedly made by X is recorded by Dr H as having been made to the maternal grandmother in the following terms “bum bum hurts, later said Mr Beckham put his head and hurt me”. On the basis of what Ms Franz told her and her examination of the bruise to the child’s thigh, Dr H recorded the following opinion:
“My opinion would be that this child has had some traumatic event occur during recent father’s visitation. She is behaving significantly differently than prior to having formal supervised visits. The apparent behaviour of the father in breaching court orders (regarding having a certain place to be cared for, and possibly a third adult present) suggest that he may not have the best interests of the child at the forefront, and it we take the child’s comment that Mr Beckham put his head and hurt me to be literal in regards to where the bruise is sited, is potentially child abuse, and thus I have reported this case to the child abuse service.”
A number of issues arise from Dr H’s opinion. Firstly, she herself has had no direct interactions with Mr Beckham. Rather, she accepted uncritically all of Ms Franz’s claims of neglect made against him and, as a consequence, formed an unfavourable impression of him. Further, she did not attempt to elicit from X how the bruise had been caused. In addition, Dr H was not in a position to assess whether the child had been sexually abused by any direct physical examination of her genitalia, as she did not remove the child’s nappy.
Rather, in reaching her opinion, she relied on the siting of the bruise, in conjunction with what the child had allegedly disclosed to her grandmother. She made no inquiries of what activities the child had recently been engaging in either during her time with her father or afterwards. Finally, she does not indicate whether she herself considered it prudent to take the child’s alleged comments literally or what further investigations she deemed necessary.
Ms S has expressed a negative view of Mr Beckham’s interactions with X which she has observed at the (omitted). She asserts that Mr Beckham has been essentially disinterested in X’s play. Rather, she describes him as being tired; sweating profusely; and sitting with his shoulders hunched over. Although she does not indicate it as such, I take it that her comments are directed towards implying that Mr Beckham was either under the influence of some illicit substance or had been in the recent past.
Ms S further describes X exhibiting signs of distress upon returning from spending time with her father and paternal grandmother. She describes X as going stiff in her car seat and appearing to be angry and frustrated. Ms S further deposes that since the period of supervised time, X has regressed in her toilet training and has become increasingly clingy.
In respect of the process of handover on 5 March 2017, Ms Franz describes X as being distressed prior to separating from her and indicating that she did not want to go. Otherwise, Ms Franz does not provide any evidence of the child making any direct disclosures of having been the subject of abuse.
In regards to this issue, there is one minor exception. In respect of the child’s return from her father, on 5 March 2017, Ms Franz deposes as follows: “When she (X) was returned from spending time on that occasion the paternal grandmother said to me ‘she had ice-cream and spilt some on her top and we banged heads and we went to have a kiss’”[10].
[10] See Ms S’s affidavit filed 10 March 2017 at paragraph 16
Mr Beckham denies that he has caused any injury to X or subjected her to any form of sexual abuse. He asserts that Ms Franz has a history of making unfounded allegations against him. Most recently, he points to the fact that two charges of aggravated assault, against him, arising from the complaints of Ms Franz, were dismissed were by the Adelaide Magistrates Court on 4 April 2017, when the prosecution tendered no evidence against him.
It is also Mr Beckham’s position that he is a person of good character, with no prior convictions for any criminal offence, particularly any of violence. Essentially, it is Mr Beckham’s position that Ms Franz is, at best, mistaken in her allegations against him or, at worst, has consciously fabricated them or in some way has consciously exaggerated or misconstrued what X has said to her.
In this context, it is Mr Beckham’s position that Ms Franz has been significantly influenced against him by the powerful emotions which were precipitated when the parties separated. In particular, he relies on the content of various Facebook messages sent to him by Ms Franz, in this period, one of which reads as follows:
“Y would u want to fight for her when clearly she’s terrified of you. Let’s be honest with everything that’s happened u don’t really care for her. It’s a proven fact that babies n children don’t need their biological fathers (id prob still get a DNA test if I was u as u could be wasting ur time n money n I’m being serious she looks nothing like u n has blonde hair blue eyes) why don’t u just forget her n let her have a happy life without u?! She’s happy n completley (sic) fine without you all u bring to her life is stress, make her scared n terrified, harm n unhappiness. Y would u do that to her…. She doesn’t need you or anything u bring. Cancel child support n just leave us alone. U would be doing her a favour instead of thinking bout urself n putting her through all that stress of having to see u.”
I appreciate that it is usually not prudent to rely on the contents of social websites as evidence of an individual’s long-term motivations and aspirations in respect of a child. Individuals often place hasty and ill-considered messages on sites such as Facebook when they are hurt or otherwise emotionally deregulated. However, it the present case, the message does have some relevance in terms of indicating the extent of the ill will between the parties.
It is Mr Beckham’s evidence that his time with X proceeded satisfactorily. He asserts that she was happy to see him and greeted him, on each occasion, with a grin and cuddle. During the visits, he was able to introduce X to A. He deposes that the two children engaged and played happily with one another.
During the visit of 5 March 2017, Mr Beckham, Ms M, A and X attended at (omitted) at (omitted). It is apparently a playground composed of inflated structures, such as bouncy castles, in which children can bounce up and down and roll about. Mr Beckham has provided a number of photographs of X and A, including at (omitted).
These photographs apparently show two happy children. In particular, there is one photograph of X, asserted to have been taken at (omitted) on 5 March 2017, which shows the child in shorts with her legs open. Although the photograph is somewhat grainy, in my copy, Mr Beckham asserts that it indicates no obvious injury on X’s leg.
As previously indicated, it is Mr Beckham’s evidence that he sent a hair follicle sample to the Forensic Science Centre on 6 March 2017. The Forensic Science Centre claim not to have received the sample in question. Mr Beckham further deposes that he has not been contacted by police in respect of the current allegations regarding X.
Ms M has also provided a number of photographs of X and A. Again, each depicts a happy and smiling child. In this context, I appreciate that it is natural for individuals, particularly children, to pose for photographs and the pose adopted on such occasions may not necessarily depict the subject’s overall mood. Nonetheless, I accept that the photographs show X to be happy, smiling and apparently relaxed.
In my view, although Ms M’s evidence has not been tested in any way and it is likely to be the case that she is strongly aligned with her son, it is appropriate that her evidence be given significant weight in these proceedings. The relevant portion of her affidavit, in respect of the visit of 5 March 2017, reads as follows:
“Towards the end of our stay (at (omitted)) X fell off one of the small inflatable toy trains. She cried for a short time indicating that she had fallen on her bottom. I picked her up and comforted her taking her to the female toilets/change rooms and changed her nappy. She was fine. At no stage did I see any bruising on X. At no stage during the visit did I see Mr J spend any time outside of my vision.
When we left (omitted) it was around 2:45pm so we drove directly to the (omitted) Police Station where handover took place without incident.
I recall apologising to Ms S because X had spilt some ice cream on the front of her shirt and explaining that there was a clash of heads between Mr J and X and me whilst we were playing on the bouncy castle.
With respect to paragraph 21 of Ms Franz’s affidavit, I say that at no stage did I hear X call Mr Beckham “Mr Beckham” only hearing her refer to him a (sic) Dad”[11].
[11] See Ms M affidavit filed 10 April 2017 at paragraphs 16-19
I concede that it is possible Ms M has calculatedly constructed her evidence to counter the allegations made by Ms Franz. However, be that as it may, she has provided an explanation as to why X would indicate why she had been on a train and why Mr Beckham’s head had come into contact with her body. In this context, it is interesting to conjecture whether, if Dr H had had this information, she would have reached the same opinion.
Conclusions
I attempted to analyse all of the evidence currently available to determine, in an objective manner, what is the risk of X being subject to some form of intentional harm or sexual abuse, whilst in the care of her father and, if there is such a risk, whether it is one which is unacceptable for the court to countenance.
In this regard, I consider that I am better placed than Dr H as I have information, not only from Ms Franz, but also from Mr Beckham and his mother, who were actually present when it is said that the child suffered some form of significant harm. They vehemently deny that they have done anything untoward, so far as X is concerned.
In particular, Ms M has been able to provide apparently satisfactory and credible explanations in respect of the various allegations said to have originated from X’s disclosure. The child was taken to a place where vigorous physical activities take place. She engaged in these activities with her father and step-sibling. As a consequence, Ms M asserts that there was an accidental physical interaction between X and her father. She fell off a toy train.
X’s attendance at (omitted) and this interaction with her father provides an explanation for the child’s various comments to her mother, which have been viewed as sinister by Ms Franz, in a context where the parties actively mistrust and dislike one another and have no facility to exchange even the most mundane of information without some form of recrimination. In all the circumstances, in my assessment, the explanation provided is a more satisfactory one than that X has been intentionally bruised or sexually assaulted.
In this context, I am not persuaded that the expert evidence provided by Dr H is comprehensive in nature. It seems improbable that Dr H would have held the same opinion if she had spoken with either the father or Ms M in respect of X’s injuries and activities with them. For obvious reasons, Ms Franz is not well placed to provide a dispassionate account of the child’s presentation to her.
In this context, I note that the report from the CCS regarding Mr Beckham’s involvement with X, is positive in nature. X is reported to interact with her father in an affectionate manner and refer to him as daddy. The report also indicates that Mr Beckham was attentive to the child’s needs. This evidence is not congruent with that provided by Ms Franz.
X’s relationship with her father remains at an early developmental stage. However, given the apparent success of the professionally supervised visits, it seems to me that, both in the short and longer term, X is likely to derive significant benefits from having a meaningful level of relationship with her father. In my view, it is important that the court place significant emphasis on this consideration.
In this context, I particularly bear in mind two of the principles, which underline Part VII of the Act and which are set out in Section 60B(2). They read as follows:
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);
I accept that the relationship between Ms Franz and Mr Beckham was short and unsatisfactory from both of their perspectives. However, X retains the right to know and spend time with her father regardless of this unhappy circumstance. It is also clear to me that Ms M and A are individuals who are potentially very significant for X as she grows up.
The mother has characterised the father as a violent and antisocial individual, who represents an improper role model for X. The allegations of violent behaviour, which include assaults, abuse and damage to property, if established must be regarded as serious matters.
At this stage, the court is not in a position to determine the truth of these allegations, which are strenuously denied by Mr Beckham, who in turn characterises Ms Franz as a voluble, difficult and manipulative person. The circumstances clearly call for caution, but not, in my view, at the price of depriving X of the opportunity to form and, in due course, extend a proper level of relationship with her father.
Clearly, the prospect of X being exposed to episodes of family violence in future is greatly minimised if the parties do not come into direct contact with one another. Ms Franz does not assert that she has been threatened or coerced since the parties separated.
I acknowledge that there is concrete evidence that, at some indeterminate time in the past, Mr Beckham has ingested illicit substances. I also acknowledge that a drug affected person is not an appropriate custodian for a child of tender years such as X. However, in my view, the significance of the hair follicle test remains inchoate. In particular, in my view, there is currently no cogent evidence to suggest that Mr Beckham remains a committed drug user and, as such, represents a significant threat to X at the present time.
In all of these circumstances, I have come to the view that it would not represent an unacceptable risk for X, if she continues to spend time with her father, notwithstanding the fact that there is an ongoing police investigation. I am concerned that this investigation may be protracted but ultimately inconclusive.
I can see no logic in suspending time positively for a lengthy period of time, to allow an investigation to conclude, where neither party concerned can point to the likelihood that such an investigation will result in further probative evidence, as yet undisclosed, coming to light. In these circumstances, I am concerned that further delay may impact adversely upon X’s level of relationship with her father.
I do not consider that the presumption of equal shared parental responsibility should be applied to the parties at this stage of proceedings, at which both Mr Beckham and Ms Franz have made serious allegations of impropriety against the other and it is axiomatic that they will have extreme difficulty in making any decisions, particularly major ones, in respect of X consensually.
Section 61DA(3) provides a discretion which is not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. It requires a cautious approach. I am satisfied that all the circumstances prevailing in the case militate in favour of such a cautious approach, not the least of which is the tender years of the child concerned. In any event, in my view, it is clearly inappropriate for the court to consider either equal time or substantial and significant time at this juncture.
Ms Franz is not likely to accept easily the outcome of these proceedings. In these circumstances, I consider that it is likely to be helpful that some level of lay supervision continue in regards to X’s time with her father. This is necessary not only to safeguard X but also Mr Beckham from any future allegations of impropriety.
The affidavit material displays a continuing gulf of suspicion between the two grandmothers. In my view, it is a recipe for disaster that the two conduct supervision in tandem or that Ms S alone provides such supervision. She clearly does not have the trust of Mr Beckham. In these circumstances, the only logical remaining supervisor is Ms M.
I am aware that the father and Ms M did not adhere to the strict regimen of contact envisaged by the orders of 14 February 2017. These orders did not authorise X’s attendance at (omitted), which in part has led to some of the difficulty arising in this case.
This is not to either the father or Ms M’s credit. However, I do not think that this lapse of judgment is sufficient to disqualify Ms M from continuing in her role as supervisor or to result in the father’s time with X being either ceased or further curtailed. In addition, in my assessment Ms M is not likely to tolerate Mr Beckham being under the influence of any illicit substances when he interacts with X.
It seems more likely than not that the father and Ms M took X and A to (omitted) because they thought it was an activity which the children would enjoy together rather than to flout the court’s order or to frustrate Ms Franz. It was an error of judgment. In these circumstances, I propose to discharge the requirement that the time in question take place only at Ms M’s home. To my mind, this seems an artificial restriction, which will lead to more rather than less controversy between the parties.
The parties are likely to disagree, in future, as to how easily X is coping with spending time with her father. In turn, this will almost certainly lead to significant controversy as to the pace at which X’s time with him is advanced, particularly towards any progression to overnight time or block periods of time.
In my view, considerations such as these militate in favour of there being some sort of independent expert assessment of X’s needs and the level of her relationship with her parents and significant others, including A, sooner rather than later. This seems to me to be likely to be a more useful intervention than the appointment of an Independent Children’s Lawyer, notwithstanding the allegations of abuse which have arisen.
Ordinarily family reports are ordered in conjunction with a final hearing. At present, due to workload pressures on the court, I am not in a position to provide a final hearing date until May of 2018. I will appoint 15 & 16 May 2018 for such a hearing.
The family report will take approximately 16 weeks to prepare. Ms Franz is not in the paid workforce. Mr Beckham is an (occupation omitted) but is not to be regarded as a wealthy person. In these circumstances I will order that the report be prepared at the court’s expense pursuant to the provisions contained in section 62G of the Act. I will direct that it be released on or before 18 August 2017. In these circumstances, I will vacate the mention of the matter, which was previously scheduled for 19 May and re-fix it for 13 September at 9.30 am.
The logistical difficulty with cases, such as the present one, is that the court is frequently called upon to manage care arrangements for a young child, whose developmental needs are in a state of flux, against a background of endemic parental conflict. Necessarily, this state of affairs invariably leads to a string of interim hearings, as each proposed graduation in the child’s time with the parent seeking to advance his/her time is resolutely opposed.
This succession of interim hearings is not a process which enables findings of fact to be made about controversial issues and may result in the intensification of conflict rather than its diminution. From Mr Beckham’s point of view, five months is likely to be a very long time in which to maintain his time at a level, which was considered appropriate in February of 2017, when X had just turned three.
However, in my view, it is likely to be helpful, to X, if the current regime of contact is able to be consolidated. In these circumstances, I propose a modest increase in the father’s weekly time, with X, from 11.00 am until 4.30 pm each Sunday. The time is to be subject to the supervision of the paternal grandmother, with the two grandmothers concerned to facilitate handovers at the (omitted) Police Station.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 26 April 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Discovery
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Standing
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