CD & CK
[2003] FMCAfam 447
•19 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CD & CK | [2003] FMCAfam 447 |
| FAMILY LAW – Allegations of sexual abuse – mother seeking to restrict contact to 100 kilometres from her home – whether mother has a genuinely held anxiety – best interests of child – contact ordered with some conditions. |
Re: Andrew (1996) FLC 92-692
Russell & Close (unreported FCOA 31 March 1993)
A & A (1998) FLC 92-800
| Applicant: | CD |
| Respondent: | CK |
| File No: | BRM4497 of 2002 |
| Delivered on: | 19 September 2003 |
| Delivered at: | Brisbane |
| Hearing dates: | 6 & 7 March 2003 and 12 September 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Cassidy |
| Solicitors for the Applicant: | Butler McDermott & Egan |
| Counsel for the Respondent: | Ms Sweetapple |
| Solicitor for the Respondent: | Bernadette Farnell |
| Counsel for the Children’s Representative: | Mr McGregor |
| Solicitors for the Children’s Representative: | Schultz Toomey O’Brien |
ORDERS
Upon the undertaking of the father that he will not allow the children J born
4 April 1991 and F born 17 February 1993 to come into contact in any way whatsoever with:-
a.JR;
b.R; and
c.T;
Whilst the children are in his care.
IT IS ORDERED:
That the father exercise contact with the children of the marriage J born 4 April 1991 and F born 17 February 1993 at all such times as may be agreed between the mother and the father and in particular:
(a)For one half of each Queensland school holiday period for Easter, June/July and September/October in each year with such contact to coincide with the New South Wales school holiday period. That such contact shall commence on the Saturday and conclude on the following Saturday or if the mother is not able to get the children to N until Sunday then contact shall commence on the Sunday and shall conclude on the following Sunday;
(b)For up to 3 weeks during the Queensland Christmas school holiday period in each year to include Christmas Day in 2003 and every second year thereafter;
(c)That the father give the mother 28 days notice of his intention to exercise such contact;
(d)That such contact shall not occur within the township of A or within 10 kilometres of A Post Office;
(e)That the father exercise telephone contact with the children each Sunday at 6.00pm (Queensland time) with the father to initiate the call. That the father have additional telephone contact to the children on special occasions including each of their birthdays, Easter and Christmas Day (when the children are not with the father);
(f)That the mother make the children available to receive the telephone call of the father at 6.00pm each Sunday, and should the children not be able to be at home for the purpose of this call, the mother will cause the children to initiate the telephone call to the father at 6.00pm on Sundays;
(g)That for the purpose of contact the mother shall deliver the children to her sister’s house at the commencement of contact and the father shall return the children to the same address at the conclusion of contact;
(h)That the mother be able to telephone the children whilst they are in the father’s care on a mobile telephone provided by the father;
(i)Whilst the children are in the care of the father he shall ensure they have their own separate bed and bedroom and that they do not sleep with the father;
(j)That in the event that the father is not able to exercise contact during the June/July or Christmas school holiday periods then he shall have the option of exercising such contact during any other school holiday period upon the giving of 28 days notice;
(k)In the event the father is not able to exercise contact with the children for the entire period set out above on any occasion, then the father shall have the option of exercising a shorter period of contact and shall provide the mother with 28 days notice of the dates and times he wishes to exercise such contact;
(l)That the father be permitted to contact the children on each of their birthdays and/or Easter in Queensland in the event that the father has not been able for block contact to occur at those times;
(m)In the event of the father travelling to the Sunshine Coast, he shall have the option of exercising weekend contact with the children on the giving of 28 days notice of his intention to exercise such contact.
That the Child Representative be discharged.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM4497 of 2002
| CD |
Applicant
And
| KC |
Respondent
REASONS FOR JUDGMENT
This case ultimately raises issues of where and on what conditions the father of two girls, J aged 12 and F aged 10, should exercise contact to them. It is not contested that the girls shall continue to reside with their mother, and her same sex partner, SF on the Sunshine Coast in Queensland.
The father, who re-partnered with NL in 2000 continues to reside in a New South Wales country town.
Brief history
The parties commenced their relationship in Sydney in 1978 when teenagers and after marrying in 1983 they produced three daughters, A now aged 16, J and F. In 1991 the parties moved from Sydney to the mother's hometown where they purchased a transport business.
The parties separated in September 1998 and although contact arrangements were facilitated the family was thrown into turmoil in November 1998 when serious allegations of child sexual abuse were raised against the father, the mother's brothers, T and R and the paternal grandfather, J. I deal with those allegations and the results of criminal proceedings later in these reasons.
In early 1999 the mother and the three girls moved to Queensland and the father has continued to exercise some contact which has been difficult as a result of geographical distances and parental attitudes.
In April 2003, about one month after the hearing before me, A moved from her mother's home to live with the father where she still remains at this time.
Procedural history
In June 2000, a order was made by consent in the Queensland Magistrates Court sitting at Maroochydore in relation to property settlement and also relevantly prescribed the father's contact as being:
“At all times as may be agreed to by the husband and wife.”
and:
“That during such periods of contact the husband shall ensure that the children do not come into contact with the wife's brothers, T and R and the husband's father, H.”
In July 2001 the father commenced proceedings in the New South Wales Local Court in the town where he resides, seeking defined contact for half of each school holidays with changeovers in a town where the mother’s family lives. The father, of course, was seeking to exercise such contact in a place of his choosing, most likely the town where he resides.
The mother did not oppose the father exercising contact to the children during school holidays or the weekends provided the father gave 28 days notice with:
“All contact between the father and the children to occur in Queensland within 100 kilometres of the mother's home.”
That position has been maintained during the proceedings. The matter was transferred to this Court by the Family Court and although the trial was conducted on the 6th and 7 March 2003 as a result of a change of residence of A, and the subsequent filing of an application to re-open (which was granted), further evidence was adduced on 12 September 2003 and has been considered by me.
I was greatly assisted in this difficult matter by the sensitive and considered submissions of counsel for the three parties and also with the intervention of the appointed child representative, the evidence of independent social worker Sean Moriarty and consultant psychiatrist, Dr John Chalk.
I propose to deal with the following issues which seem seminal to the determination of this matter:-
a)The sexual abuse allegations.
b)The history of contact.
c)The evidence on re-opening.
d)The attitudes to future contact.
Sexual abuse allegations
The father pleaded guilty to two charges of aggravated indecent assault against his 13 year old niece committed in 1997 for which he was given a suspended sentence and a bond. It is not necessary to repeat the details of the offence for they are known to the parties, acknowledged by the father, and more fully detailed in the psychologist's report dated 19 December 2000 annexed to the father's affidavit.
The evidence of the father and the assessments of Sean Moriarty and Dr Chalk satisfied me that the father was remorseful for committing this serious offence. He underwent counselling and assessment. There is no probative evidence of any similar actions by the father against others. Certainly no evidence at all to suggest that he has interfered with his own daughters. He admitted his actions to the mother, immediately upon her raising it with him.
I find that the father does not, on all the evidence, pose an unacceptable risk to the children. As I shall deal with shortly the mother does not urge me to find the father is a risk, rather that the mother's reticence and conditions imposed reflect her residual fears from all the events that have occurred.
The relevance of the actions of her brothers both convicted of sexual abuse is that they still reside in the area where the father lives. The mother says, and the father acknowledged it to be true, that an earlier order by him to ensure no contact with the brothers was breached on at least two occasions – once at a Christmas function at the maternal grandmother's home. This, quite understandably, heightened the anxieties of the mother, more however directed to the father than it would seem her own mother.
It is relevant to note that the mother, in a sense, excuses the actions of her own mother because of her age and the fact that she says the full details of this serious conduct in the family has not been shared with her. The mother still has a good relationship with her own mother and her brother, N, who it seems has been a solid support to her. The maternal grandmother is to have contact to J and F at the same town where changeovers are proposed to occur over the forthcoming school holidays.
The mother's attitude to her own mother can be contrasted with her strongly held condemnation of the father's parents. In respect of the paternal grandfather he was ultimately acquitted of charges laid that he sexually abused A. This issue raises in the mind of the mother a range of strong and angry emotions including:
(a)That A, and herself as a witness, should have been believed by the jury in respect of the abuse.
(b)The grandfather is guilty.
(c)Against the paternal grandmother, who the mother says not only failed to act protectively of A but also failed to give evidence about conversations before the Court in support of A which in the mother's view was critical to a successful prosecution.
Even though the grandfather was acquitted the father acknowledged in the last part of the hearing before me that he would respect the mother and A's wishes that no contact occur. He stated that he finds it hard to accept his father is a risk to A or the younger children. Clearly, such statements only fuel the mother's anxieties about whether the father can act protectively and also the extent to which he supported A's testimony.
The mother described the paternal grandmother as a beautiful person who she acknowledged over the history of the relationship had stayed with the family and developed a close and loving relationship with the children. Nonetheless the mother cannot accept that the paternal grandmother would act protectively of the children and even if the father was present she could not trust her. She is prepared to allow the paternal grandmother to send gifts.
History of contact
At paragraph 36 of the father's affidavit he set out the contact that he had enjoyed after separation until Christmas 2000. The mother agreed with the accuracy of that history which included two occasions of contact on the Sunshine Coast in January and February 1999 and approximately one week blocks of contact in either Griffith or the town where the father resides in June 1999, September 1999, Christmas 1999, Easter 2000, June 2000, September 2000 and Christmas 2000. Changeovers usually took place at same town as currently proposed.
Shortly before the father was due to exercise contact in the June 2001 school holidays, the mother indicated the children would no longer be having contact in the town where the father resides, although the father did see the girls in Griffith for one day in July 2001, whilst the mother was visiting the maternal grandmother in hospital.
After commencing proceedings in the Local Court the parents agreed to an interim order that prescribed the father's contact during such holidays in Queensland occur:
“Within 100 kilometres of the mother's home.”
The basis for that condition is set out at paragraph 32 of the affidavit of the mother expressed in these terms:
“I insist that all contact between (the father) and the children occur within 100 kilometres of my home. I feel that if something untoward happens during a contact visit then I am close enough to be able to help the children. The safety of the children is the most important thing to me. I will not allow them to be exposed to any danger.”
The father has, in my view, to his credit and I am satisfied at some cost to himself, exercised contact in Queensland in January 2002, April 2002 and for one day in February 2003. He also, I understand, had some brief contact with the two girls on 12 September 2003.
The father alleges difficulties in further contact taking place and expressed concerns about problems with exercising telephone contact. Of course, since A returned to live with the father in New South Wales, he has extensive care responsibilities for her.
Conflict over the Christmas holidays in 2001/2002 were dealt with in the material. The mother insisted the children be returned by 12 noon. The father returned them at 5.30 pm. The father says there was a communication difficulty. Regrettably the issue resulted in a heated exchange between the father and the mother's brother, N. The children, particularly A, became aware of the dispute and it caused them distress. N seemingly was in control of these arrangements because the mother was having a holiday in Vanuatu. It seems the mother relied on her brother to ensure her conditions set out in the order were complied with. There is, in my view, a contradiction in the attitude of the mother being available to:
“help the children”
and insisting contact take place within 100 kilometres but at that time choosing to take a holiday in Vanuatu.
The father was unaware of the mother being absent until the children told him. After this incident, the frequency and length of contact decreased. Further tensions in the mother's home increased with the mother's decision to cohabitate with SF accompanied by her 12 year old son, P, causing the mother to experience problems particularly with A.
The mother says A was:
“Rebelling against me and would not do as I asked.”
Interestingly the mother does not appear to contemplate that her decision to enter into a same sex relationship could in any way have been the source of disquiet with A. Certainly, in my view, Mr Moriarty identified this as one of the:
“accumulative stressors”
which the children were forced to cope with and predicted, somewhat prophetically, a possible escalation in A's oppositional behaviour. This occurred as a result of A moving to live with the father only months after the mother had asserted A did not want to visit her father in the town where he lives at all.
Re-opening the evidence
The father, although clearly delighted A had returned to the town was angry with how:
“badly”
he perceived the mother had acted. He acknowledged that an option considered of a youth service facility may have exposed A to:
“ streetwise kids unlikely to be good for A.”
The mother demonstrated real regret that at present the relationship with A has broken down and she saw A living with her father, (she actually driving the child there herself), as the only real option at the time. She believes her home is a more settled one and believes the younger children are happier without the tensions created by the developing rift between A and the mother and her partner. The relocation of A does not alter her view in any way of restricting the father having contact in that town or for that matter more than 100 kilometres from her home.
I also have the benefit of a further brief written report from Mr Moriarty arising from interviews conducted on 12 September 2003. That report updated his two earlier reports in October 2001 and September 2002.
Mother's attitude to future contact
It is fair to record that the mother's express views about the children having contact in and around the town where the father lives, have been consistent and unwavering. Such as view has been assessed as genuinely held, not only by the father but also by the consultant specialist health professionals who have provided reports and given evidence in Court. There are some aspects of the mother's rather pragmatic, belligerent and rigid views demonstrated as well by her demeanour in the witness box which I found concerning and less than comforting. It is not possible to be certain as to how the actions she has taken in support of those feelings, have been shaped by the multitude of quite stressful events she has undergone including:
(a)The breakdown of a long relationship with the father.
(b)The allegations of sexual abuse against her family members and her husband.
(c)Disclosures made by A against her grandfather.
(d)The need, as she saw it, to relocate away from her family, including her elderly mother in her home town, to Queensland where the support in many ways was less.
(e)Dealing with property disputes and the tensions of financial hardship.
(f)Re-living many times over the ordeal of the sexual abuse allegations through the police interviews, committal hearings and trials, not only as it seems a witness but also as a supporter of A.
(g)The hurt and anger created by the acquittal of the grandfather and the perceived failure by the grandmother to support A.
(h)The tensions both personally and within the household created by her choice to establish a gay relationship amongst all this turmoil.
(i)The feelings associated with A's behaviour and, in the crisis that followed and endured, deciding that allowing A to return to her father was the only viable option.
(j)The continuing uncertainty of these proceedings which have now carried on for over two years.
The difficulties of carrying these emotional issues whilst maintaining a parenting equilibrium as a sole parent of three highly intelligent, seemingly well-adjusted and high achieving sports girls is some achievement.
The children J and F have a relationship with their father which they want to pursue and which Mr Moriarty says is important for them to continue. Now, of course, their relationship with their sister A is strained by the tyranny of distance and the awareness of the difficulties of their mother's relationship with her. It is little wonder that the girls are confused not only by the reasons behind the mother's insistence on not going near the father’s town but also the general restriction of their contact opportunities to their father.
The mother says that the girls are not yet old enough to be told of all the events that occurred where the father now lives. She doesn’t really know how to do it anyway. Whilst she has been in counselling herself for some time she is anxious about how to explain these family tragedies to the girls. The father acknowledges these difficulties but can offer no real solutions. He continues to say the girls will be safe with him (now also supported by A although her part-time work schedule may restrict her availability) and that the mother's restrictions are nothing more than an exhibition of her controlling attitudes.
I get a sense from all the evidence he feels he is being continually punished for his previous serious conduct. The mother's testimony on 12 September could be viewed as supporting that perception.
Conclusions
I found this a most difficult analysis. The child representative in final submissions did not support contact taking place in the town where the father resides. I have taken into consideration the objects set out in s.60B, s.65B and s.68F(2) of the Act.
I was referred to and have considered the principles in cases such as Re: Andrew (1996) FLC 92-692, Russell & Close (unreported FCOA 31 March 1993) and A & A (1998) FLC 92-800. I am satisfied that contact in the town where the father resides would at this time be the most difficult decision for the mother to cope with and is likely to have a significant impact on her parenting of J and F. These two girls have prospered in their mother's care as the primary caregiver through the trials and tribulations identified above. Even though they may not have been aware of all the facts, nonetheless they would have joined with the mother in the rollercoaster ride which she has undertaken.
As the unchallenged residential parent I cannot ignore, when considering the best interests of the children, this adverse impact. Such a likely event is confirmed by Mr Moriarty. I am obliged quite properly to adopt a subjective test about the mother's anxieties and be satisfied that they are genuinely held. For my part, I identified the major anxieties which caused the mother's position on contact to be adopted to be as follows, and this is my analysis of those anxieties:
(i)The father having any contact at all for fear of possible sexual abuse of children. The mother does have a fear, but in circumstances where she supports contact being unsupervised (provided it happens within 100 kilometres) and where I have formed the view the father does not present as an unacceptable risk to his children, I would allow any contact which is ordered to be unsupervised.
(ii)Contact with the paternal grandmother. I assess this is not a fear or anxiety genuinely held by the mother but more a punishment which she seeks to impose on the paternal grandmother because of her lack of support of A. The grandmother and offending grandfather no longer live together. I do not assess on the evidence that the grandmother would not act protectively and I do not accept that the mother genuinely holds such a view. Contact between J and F to their paternal grandmother would be in their best interests and should be permitted in my view.
(iii)Contact only within 100 kilometres: The radius of 100 kilometres or Queensland is arbitrary. I do not know the basis for its inclusion in the interim consent order. Considering the father's desire to exercise contact he may have been prepared to accept any condition. The mother has grasped that protective boundary on the basis that if the girls need her she is close enough to assist. This did not seem to be a problem when she went to Vanuatu. However I am satisfied it was used by the mother as a way of restricting the father's ability to take the children to see the victorious Brisbane Lions in a parade in Brisbane. I accept the evidence that the mother asserted that the father could not take them as it was
“110 kilometres away”
from her home.
These two examples persuade me that there is no basis within any genuine state of anxiety of the mother to support this restriction. It will be necessary for some itinerary to be provided to the mother. However it is not, in my view, likely to have an adverse impact on the mother if the 100 kilometre restriction is lifted.
(iv)Contact in the town where the father resides: In many ways this is the seminal issue. I am satisfied that the anxiety about the children having contact in this town is genuinely held by the mother. The children's apprehension has been shaped by the fears of the mother. The fact that they do not know the reasons why the mother holds these fears only, as Mr Moriarty opines, re-enforces their sense of confusion. Maybe it is too early for the children to understand the obvious contradiction between their inability to go to the town and the fact that A, their father and grandmother live there.
The mother is well aware that the time is fast approaching when she must find a way, particularly for J, to explain sensitively the issues surrounding the town. Her uncertainty about how to do this and perhaps A and others in the town doing it for her, might all contribute to the lasting effect of this anxiety. On the balance of probabilities I am satisfied that an order permitting contact in the town could, at this time, and with the current matrix of facts cause a significant adverse reaction in the mother. This is likely not only when contact is occurring but also leading up to and following contact.
The father cannot ameliorate the mother's genuine subjective concerns. All the adults and A are aware of the dangers, however the children are not. Also the father's failure in the past to comply with the order preventing contact with R further supported her feelings. I got the impression from the father's evidence that although he acknowledged his error and expressed an awareness of the mother's concerns he really did minimise the event in a way which concerned me. Compliance with Court orders by this family is one way of trying to rebuild the level of trust and minimal respect which needs ideally to be recreated.
I am, of course conscious that the father says his financial position mitigates against his capacity to afford to exercise contact in places away from the town. Also as I can well understand he wants to share with J and F his home and his lifestyle in the town with them.
The effect of not allowing contact in the town or the near surroundings at this time means that the frequency and possibly the length of contact that can be enjoyed will be reduced depending on the father's capacity to afford accommodation and travel. This is not only a concern in maintaining the father's relationship with the girls but now also the importance of sibship bonds with A.
I am troubled by imposing restrictions on contact occurring within a certain radius of the town because I am uncertain whether, for example, the father can afford some regional areas which offer attractions for holiday contact in preference to others. The evidence did not assist me in exploring these options and I was not satisfied even that Griffith should not be an option for contact. I predict that in time this may no longer be a problem. The mother's anxiety is likely to remain, and quite understandably so, but as the girls get older and their understanding of the issues in the town are increased any number of reactions may occur. Options not currently contemplated may arise. It is not helpful to speculate. I am satisfied on all the evidence that contact to the father and his mother away from the town is in the children's best interests and should be permitted. I am satisfied that such an order with, of course, a continuing permanent order that the father not allow the children in this case to come into contact with the previously named persons is unlikely to adversely affect the mother's parenting.
I will so order. I will also order contact occur in Narrabri for the father if the father is able to exercise it for the forthcoming school holidays over the weekend which is referred to by Ms Cassidy in final submissions.
In terms of the form of the order I do not know how far Griffith is away from the town where the father resides. I do not think there was any evidence put to me about that. It cannot be that far because the grandmother went there for a hospital visit.
As the parties are not all present in Court when delivering these reasons, I propose to allow the parties an opportunity to discuss the from of the final orders for contact consistent with these reasons.
The orders which appear at the beginning of these reasons reflect my consideration of submissions from the parties as to the form of the final orders.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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