Bernard and Simon - [2008] FMCAfam 1395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BERNARD & SIMON

[2008] FMCAfam 1395

FAMILY LAW – Parenting – father seeking to spend time with two girls aged 19 months and 8 months – father currently spending no time with the children – father due to stand trial in February 2009 on charges of sexually assaulting the mother – mother opposing any time at least until the trial takes place.

Family Law Act 1975, ss.60CC, 61DA

Applicant:

MR BERNARD

Respondent:

MS SIMON

File number:

ASC 77 of 2008

Judgment of:

Terry FM

Hearing date:

17 December 2008

Date of last submission:

17 December 2008

Delivered at:

Alice Springs

Delivered on:

19 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms Taylor

Solicitors for the Applicant:

Central Australian Aboriginal Legal Aid Service Incorporated

Counsel for the Respondent:

Ms Lethlean

Solicitors for the Respondent:

Central Australian Aboriginal Family Legal Unit

ORDERS

UNTIL FURTHER ORDER

That the mother have sole parental responsibility for the children of the relationship [X] born [in] 2007 and [Y] born [in] 2008.
That the children live with the mother.
That the father’s time with the children be reserved.
That the mother’s solicitors forward to the father’s solicitors within

14 days at least three recent photographs of the children and some brief information about the children’s health and development.

AND IT IS ORDERED

That pursuant to section 68L of the Family Law Act 1975 (as amended) the children [X] born [in] 2007 and [Y] born [in] 2008 be separately represented and that such representation be arranged by the Legal Aid Commission of the Northern Territory AND that to expedite the appointment of the Independent Children’s Lawyer within (7) days of the date hereof each party do cause to be furnished to the said Commission a copy of all documents filed herein by that party.
That the matter is adjourned to 10.30am on 16 February 2009 for further consideration.

IT IS NOTED that publication of this judgment under the pseudonym Bernard & Simon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ALICE SPRINGS

ASC 77 of 2008

MR BERNARD

Applicant

And

MS SIMON

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Bernard has not spent time with his daughter [X] since February 2008. He has never spent time with his daughter [Y], who was born in April 2008. [X] is now 19 months old and [Y] 8 months old.
The father has applied to the court for orders that would permit him to spend time with the children. His interim proposal was that he spend two hours per week with the children supervised at Centacare for the next eight weeks, and that the time thereafter be increased and be unsupervised.
Centacare is about to close for the Christmas break, and therefore even if I make orders for supervised time, that time cannot commence until

5 January 2009 at the earliest.
The father has been committed to stand trial in the Supreme Court at Alice Springs on two counts of sexually assaulting the mother. He is defending the charges, and it is hoped that his trial will take place in the first week of February 2009.
It is the mother’s case that the court should defer consideration of the father’s application until after the trial takes place.
As far as I could discern from the submissions of the mother’s solicitor, which were somewhat oblique at times, the mother opposed the father spending even supervised time with the children for the following reasons:
i)the idea of the children spending any time at all with the father was unbearable to the mother, as a result of what she suffered at the father’s hands;
ii)the mother was already stressed about the prospect of giving evidence at the forthcoming trial and did not need any further stress;
iii)the mother’s parenting capacity would be affected if she had to comply with court orders that the children spend time with the father, even if that time was supervised;
iv)the mother feared that the father might abscond with the children from Centacare;
v)there was no point ordering supervised time now, when the father might be found guilty and then incarcerated for a lengthy period not much more than a month after supervised time began.

Background

The mother and father both grew up in Alice Springs and indeed have known each other since they were children. They are both aboriginal. They had a brief relationship, from January 2006 until August 2007.
The mother has a son [Z], 11, from a previous relationship.
It was the mother’s case that after an initial period of calm in the relationship, the father revealed himself to be a jealous controlling man who watched her every move and isolated her from family and friends. It was the mother’s case that the father was also a violent man, particularly when he had been drinking, and that he assaulted her on numerous occasions and sexually assaulted her on two occasions.
The mother also said that the father was abusive to [Z] during the relationship, and that [Z] had left home to live with the maternal grandmother because of the father’s behaviour.
The father’s case was that both he and the mother liked a drink and that they both sometimes became intoxicated. He said that he and the mother argued. The father said that he did not consider himself a violent man.
The father said that he had smacked [Z] on occasions to discipline him.
The mother and father separated in August 2007. On 3 September 2007 the mother obtained a full no-contact domestic violence order against the father, and that order is in force until 6 August 2009. Upon separation the mother also complained to the police about the father assaulting her during the relationship.
In about November 2007 the police charged the father with two counts of sexual assault, seven counts of aggravated assault and one count of threatening injury. The father said that it came as a shock to him when he was charged with assaulting the mother.
It was the mother’s case that the father continued to harass and threaten her after separation. In February 2008 the father was charged with breaching the domestic violence order.
The father subsequently pleaded guilty to two charges of breaching the order and was fined.
I cannot determine the truth or otherwise of the mother’s allegations about the father at this time. However the mother’s allegations about the father are not the only reason to be concerned about the father. He has a criminal record which began when he was 14. He has, among other convictions, five convictions for drink driving. The first was in 1989 and the last in October 2008, when he had a reading of .215%.
The paternal grandfather obtained a domestic violence order against the father after an incident between he and the father in August 2008. Not only that, but the father has been charged with breaching that order and has agreed to plead guilty to two of the charges. That domestic violence order has now been varied so that the father can go to the paternal grandfather’s home as long as he does not consume alcohol.

The father’s time with [X] after separation

In August 2007 the mother agreed to the father spending supervised time with [X] at Centacare. In October 2007 the father asked the mother if he could spend time with [X] away from Centacare. The mother agreed to this, provided that the father’s brother Mr E was present. It appears that the mother has a good relationship with the father’s brother Mr E.
The arrangement whereby the father spent time with [X] supervised by Mr E continued until late February 2008. It continued even though the father was charged with criminal offences in November 2007.
Mr E spoke positively about the father’s interaction with [X], and no evidence was given by the mother that [X] was ever distressed during her visits with the father or that she was not properly cared for.
On 23 February 2008, the father and mother accidentally ran into each other at a shopping centre. The father impulsively approached the mother. The mother said that the father was angry and threatening, demanding more time with [X]. The mother reported the incident to the police.
Following this incident, the mother ceased allowing [X] to spend time with the father.
The father tried unsuccessfully to persuade the mother to let him see [X] again. He was unable to see [Y] after her birth. He commenced these proceedings in November 2007.

The father’s current circumstances

The father is a [tradesman] by occupation. He provided references which suggest that he is well thought of in the work place. The father’s brother Mr E, whom the mother apparently respects and trusts, provided an affidavit in support of the father’s case.
The father said that he had now given up alcohol, and that all he wanted was to spend time with his daughters.

Matters in dispute

There are many disputed matters and with only untested evidence before me I cannot resolve those disputes. Important matters about which I can make no findings are the following:
i)The nature and extent of violence committed by the father during the relationship with the mother, and the implications of this for his future time with his daughters;
ii)The extent of the father’s past dependence on and abuse of alcohol, whether the court can be confident that the father’s alcohol consumption has ceased, and the implications for his time with his daughters in the future if it has not;
iii)Whether the father’s criminal convictions, past use of alcohol, and inability to abide by restraining orders taken out by the mother and by his father should give rise to concerns about the father’s mental health or social adjustment, and the implications of this for his future time with his daughter.
I also do not know whether the father will be convicted of the sexual assault charges in February 2009, and whether if he is convicted, he will be sentenced to a term of imprisonment.

Matters not in dispute

The following matters are not in dispute:
i)The children live with their mother.
ii)The father has not spent time with [X] since February 2008 and has never spent time with [Y];
iii)The mother did not raise any concerns about the time [X] spent with the father in late 2007 and early 2008;
iv)The mother is required to give evidence against the father in the Supreme Court in Alice Springs for the February 2009 trial in respect of the two charges of sexual assault.

The children’s best interests

In deciding whether to make particular parenting orders about the children, I must regard their best interests as the paramount consideration.
Sections 60CC(2) and (3) of the Family Law Act set out the primary and additional considerations to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
[X] and [Y] live with their mother and they have the opportunity to develop a meaningful relationship with her. The children will not have the opportunity of developing a meaningful relationship with their father unless they spend time with him.
It is not however automatically the case that children benefit from having a relationship with each of their parents. If one of the parents is a violent person with anti-social personality traits and a dependence on alcohol, the children may not benefit from having a relationship with that parent. It may be impossible for children to develop a meaningful relationship with such a parent.
I cannot immediately determine whether these children will benefit from having a meaningful relationship with their father.
I cannot resolve the issue of whether the children will be at risk of harm from being subjected to or exposed to abuse neglect or family violence in the father’s care, save to say that the children ought not to be at risk of this harm if they spend time with their father in a supervised setting at Centacare.
I now turn to the additional considerations in section 60CC(3).
The children are too young to express a view about their parenting arrangements.
I must consider the nature of the children’s relationship with each of their parents and any other significant persons.
I cannot make findings about the nature of the children’s relationship with their mother, but I have no reason to be concerned about it on the current state of the evidence. The children have no relationship with their father.
I must consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
The mother does not want the children to have a relationship with the father at this time. Whether this is a reasonable response, because of the father’s characteristics and history, or whether it is unreasonable, is not something I can determine in this interim hearing.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
either of his parents; or
any other child, or other person (including any grandparent or other relative of the child) with whom he has been living.
If the children spend time with the father at Centacare, this will be change for both children.
[X]’s time with the father appears to have been uneventful in late 2007/early 2008 from [X]’s point of view. I have no reason to conclude that [X] would be adversely affected by a visit of two hours per week with the father at Centacare. [Y] has never seen the father, but she is eight months old and should be able to tolerate a two hour separation from her mother.
The mother said that she would be extremely distressed if she were required to take the children to Centacare to spend time with the father. The children are very young and are totally dependent on their mother for their day to day care. It would not be good for the children if the mother became so distressed by the requirement to take them to Centacare that she could not properly parent them, even for a short period.
The report from the mother’s psychologist concerning the effect on the mother of requiring her to take the children to spend time with the father is of course untested evidence. I cannot make any findings about whether the mother would be distressed to the point where her parenting capacity would be effected, or whether the mother might cope if she had appropriate support and counselling.
I must consider the capacity of each of the parents to meet the needs of the children, including their emotional and intellectual needs.
I cannot make any findings about the mother’s capacity based on the evidence currently available, save to comment that the father did not challenge the mother’s capacity to care for the children
The mother has serious concerns about the father’s capacity to parent the children. She questions his general parenting skills, and is concerned about how his use of alcohol and propensity for violence may affect his ability to parent the children.
To his credit, the father has enrolled in and partially completed a parenting course specifically tailored for him by Centacare. I cannot at this time however make any findings about the father’s capacity to meet the needs of the children.
The father sought only supervised time to start with. There is no reason to believe that the children would not be adequately cared for during a two hour visit with their father at Centacare.
The practical difficult and expense consideration is not relevant in these proceedings, where both parties live in Alice Springs. The children are aboriginal children. Both parents are aboriginal and the children’s aboriginality is not an issue in these interim proceedings.
I must consider the children’s maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
The children are very young female children, one of whom has never met the father. I have however taken these characteristics into account when dealing with other Section 60CC(3) considerations.
I must consider the attitude of each of the parent’s to the duties and responsibilities of parenthood.
I cannot make any findings about this issue in these interim proceedings.
I must consider any family violence involving the child or a member of the child’s family.
The mother has made serious allegations of violence against the father. The father has been charged, and is awaiting trial on some charges. The father intends to plead not guilty. I cannot make findings about whether the father has been violent to the mother.
I must consider any family violence order involving the child or a member of the child’s family if it is a final order and was contested.
The mother has a domestic violence order against the father, expiring on 6 August 2009 and the paternal grandfather also has a domestic violence order against the father. Both are final orders but appear to have been made by consent and without admission of liability.
I must consider any other relevant matter.
In early February 2009, the father is due to stand trial in the Supreme Court. The mother is required to give evidence against him. The father is defending the charges, but if he is found guilty he could be imprisoned.
It is not difficult to accept that the mother is under stress at the prospect of giving evidence for the trial and being cross-examined. It is also not difficult to accept that the mother may be genuinely fearful of the father absconding with the children from Centacare.
It is not completely unreasonable for the mother to be fearful that the father, with his trial coming up, may think that he has nothing to lose and decide to act rashly in regard to the children. It is not completely unreasonable for the mother to fear that the father might fail to obey court orders or Centacare rules, when he has breached two separate domestic violence orders. I cannot in the circumstances of this case simply say that the mother should master her fears

Parental Responsibility

I am required by section 61DA of the Family Law Act to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the children or family violence.
The presumption may be rebutted by evidence that it would not be in the children’s best interests for the presumption to apply. In interim proceedings the presumption applies unless the court considers that it would not be appropriate for it to apply.
The mother alleged that the father had committed serious and repeated acts of family violence. The father denied the allegations. I cannot determine the truth of the matter in these interim proceedings. However, the allegations are serious, and the father has been charged with criminal offences and is awaiting trial. I do not consider that it would be appropriate to apply the presumption.
The children have lived with the mother since separation in August 2007. The father has no recent knowledge of the children, although I accept that this situation has not come about by the father’s choosing.
I am satisfied that in the interim it is in the children’s best interests to order that the mother have sole parental responsibility for them.

Conclusion

In my view it is in the children’s best interests for the court to defer consideration of the father’s application to spend time with [X] and [Y] until after his trial in February 2009.

The issue of the father’s violence is a major issue in these proceedings. The trial which is due to take place in February will make the situation with regard to at least some of the mother’s allegations of violence clear.
I cannot make findings on the untested evidence about the mother’s state of mind or about the effect on her parenting capacity of ordering that the father spend time with the children. However, the mother must undoubtedly be under stress at the moment as the time for the trial approaches. It is not in the children’s best interests that the mother be placed under additional stress by being required to take the children to Centacare when she is strongly opposed to doing this.
It might be that after the trial is completed, and after some further information about the father and all the surrounding circumstances is obtained, that the court determines that it is in these children’s best interests that they have the opportunity to spend time with their father and develop a meaningful relationship with him.
However the father has not seen [X] since February 2008 and has not seen [Y] at all. From the point of view of these very young children, a delay of a further period of months in them spending time with their father is not likely to be significant in the longer term.
I accept that for reasons out of anyone’s control, the father’s trial might not proceed in February and may take place some months later. However I still do not consider that in all the circumstances it is in the children’s best interests for me to make orders now about the father spending time with the children.
I realise that this outcome will be disappointing to the father, but the court is required to make orders which are in the best interests of children. I do intend to order that the mother’s solicitors provide at least three recent photographs of the children to the father, together with some brief information about their health and development.
I also consider than an Independent Children’s Lawyer should be appointed. I intend to make that appointment and to adjourn the matter to 16 February 2009 for further consideration.
For all the above reasons the orders of the court will be set out at the beginning of the judgment.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Terry FM

Associate: Rachel Hodgson

Date: 19 December 2008