Churchill and Winston

[2007] FamCA 723

FAMILY COURT OF AUSTRALIA

CHURCHILL & WINSTON [2007] FamCA 723

FAMILY LAW – CHILDREN – SUPERVISED TIME WITH CHILDREN – Established that the Federal Magistrate erred in his determination of the risk to the children that unsupervised time spent with the appellant would constitute, on the evidence before the Federal Magistrate, by failing to have regard to significant material facts - Proceedings remitted to a single judge or judicial registrar of the Family Court of Australia for rehearing -  Previous orders of supervised time spent with the children continue to apply until such rehearing

Allesch v Maunz (2000) FLC 93-033

APPELLANT: B J CHURCHILL

RESPONDENT: K M WINSTON

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Stephen Marks Solicitor

FILE NUMBER: NCM 2056 of 2006

APPEAL NUMBER: EAA 27 of 2007

DATE DELIVERED: 24 July 2007

PLACE DELIVERED: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 25 June 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 9 February 2007

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT: Self Represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT: Mr. Hamilton

SOLICITOR FOR THE RESPONDENT: Monnox & Associates

INDEPENDENT CHILDREN’S LAWYER Mr. Allen

Orders

1. That the appeal be allowed.

2. The proceedings be remitted for rehearing by a single judge or judicial registrar of the Family Court of Australia.

3. That the orders of 9 February 2007 continue pending further order of the Court.

4. That the Court grants to the appellant a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

5. That the Court grants to the respondent a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

6. That the Court grants to the Independent Children’s Lawyer (“the ICL”) a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as CHURCHILL & WINSTON.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA27/2007
File Number: NCM2056 of 2006

B J CHURCHILL

Appellant

And

K M WINSTON

Respondent

REASONS FOR JUDGMENT

1. By Amended Notice of Appeal filed by B J Churchill (“the appellant”) appealed against orders made by a Federal Magistrate in proceedings between himself and K M Winston (“the respondent”) on 9 February 2007.

2. The substance of the orders of the learned Federal Magistrate which gave rise to the appeal provided that pending further order of the Court the appellant spend supervised  time with the two children of his former relationship with the respondent, S M Winston born in October 2001 and K J Winston, born in November 2005.

3. In lieu of the orders for supervised time spent with the children, the appellant sought to spend more extensive and unsupervised time with the children. The respondent resisted the appeal and sought to maintain the learned Federal Magistrate’s orders. The Independent Children’s Lawyer (“the ICL”) supported the appeal, albeit on bases substantially different to those upon which the appellant sought to challenge the decision of the lower court.

4. For reasons which were given during the course of the hearing of the appeal, the Court refused the ICL leave to advance arguments in support of grounds neither asserted by the appellant or the subject of any prior notice on the part of the ICL.

Background

1. The parties were in a relationship prior to and following the birth of their younger child and separated on 21 March 2006 at which time the children remained in the primary care of the respondent. Thereafter, and throughout most of 2006 the children had unsupervised contact, and then time with, the appellant.

2. The proceedings which gave rise to the orders of the learned Federal Magistrate  were in fact commenced by the appellant on 6 September 2006, such application having been returnable on 20 October 2006 at which time, without abandoning her opposition to unsupervised time spent with the appellant, the respondent consented to what were described as “interim interim orders” pursuant to which the appellant had unsupervised contact with the children until the orders of the Federal Magistrate in February 2007.

3. During the cohabitation of the appellant and the respondent, a child of the respondent of another relationship, K-L, who was born in December 1995, lived with the parties.

The Judgment of the Federal Magistrate

1. In his Reasons for Judgment, the learned Federal Magistrate recorded the matters of history to which reference has been made by way of background to this appeal. His Honour then referred to the relevant legislation and there is no part of this appeal turns on that analysis.

2. His Honour then recorded:

   As will become apparent a critical issue in this case is whether the children would be at risk of sexual abuse in the hands of the father. This arises out of two charges that the father faced in relation to two separate children some time ago. In the circumstances I prefer not to discuss whether there are reasonable grounds to believe that he was involved in abuse of those children and prefer to ground my decision on sub-section (3). I do not believe it is appropriate to apply the presumption because of the serious matters alleged against the father and the inability to make any proper assessment of those matters in these interim proceedings. (AB, Reasons for Judgment, page 2, para 5).

3. Consideration was then given to matters relating to the interim “residency” of the children none of which assumes significance for present purposes. His Honour recorded, accurately at the time and for present purposes, that “the issue of interim residence is academic in any event.” (AB, Reasons for Judgment, page 3, para 8).

4. Turning to consider “the mother’s application that contact be supervised” (AB, Reasons for Judgment, page 3, para 9), his Honour referred to a child of the appellant of a previous relationship B who was born on 28 November 1980 in respect of whom the appellant was charged with sexual assault when the child was 12 years of age, that accordingly being in 1992.

5. The learned Federal Magistrate recorded the allegation to have been “digital penetration”, and the fact that the appellant had been tried by a jury in the District Court and acquitted of such charge. (AB, Reasons for Judgment, page 3, para 10).

6. His Honour also referred to the 1996 allegations by a female then aged 16 who was not related to the appellant, BP, of “sexual intercourse without consent” with respect to whom the appellant was accused of “penile/vaginal penetration”. The appellant was tried before a jury in the District Court and acquitted on that charge. (AB, Reasons for Judgment, page 3, para 10).

7. The learned Federal Magistrate, correctly in this Court’s view, accepted after some discussion that he could “infer that on both occasions a magistrate, in committing the father for trial, was satisfied that there was evidence which, if accepted by a tribunal of fact, was capable of satisfying that tribunal beyond reasonable doubt of his [the appellant’s] guilt”. (AB, Reasons for Judgment, page 4, para 12).

8. The critical portion of his Honour’s Reasons for Judgment appears to be the following passage:

   As I have indicated my task in these proceedings is not to decide whether the father did or did not sexually assault his daughter or Ms [BP]. My task is to decide whether or not unsupervised contact between the father and the children the subject to these proceedings would pose an unacceptable risk that those children might be sexually abused in his care. If I were hearing this matter on a final basis it may well be that when all the evidence was in I would be able to discount the risk of sexual abuse and find that there was no unacceptable risk of this occurring. As things stand I am unable to discount this risk. The facts as revealed cause me significant disquiet. I believe, as I have said, that I should take a conservative approach given that my orders will not last indefinitely and I accordingly propose to make orders as sought by the mother. (AB, Reasons for Judgment, page 5, para 13).

9. His Honour then proceeded to consider other matters assuming no significance, save perhaps for the further statement appearing in his Honour’s judgment that he proposed “to adopt a conservative approach and am not prepared to assume that the father, if he sexually assaulted his daughter and/or [BP], is no longer a risk.” (AB, Reasons for Judgment, page 5, para 14).

The Grounds of Appeal

1. The appellant has represented himself in the appeal. Many of his grounds of appeal are not in fact grounds of appeal. Much of his detailed outline of submissions, occupying 58 paragraphs has no possible relevance to his appeal.

2. The appellant confirmed at the commencement of the hearing of the appeal that he was unlikely to be able to constructively add to what he had set out in his written material. Brief oral submissions by the respondent at the completion of the appeal confirm the accuracy of that judgment.

3. As was put to counsel for the respondent, although not so articulated in any of the eleven “grounds” upon which the appellant relied, the thrust of both the grounds and the summary of argument relied upon by the appellant was that, on the evidence before the learned Federal Magistrate, it was not reasonably open to conclude as his Honour did with respect to the risk which unsupervised time spent with the appellant would constitute for the children the subject of the proceedings.

4. On behalf of the respondent it was submitted that whilst the learned Federal Magistrate could have come to other conclusions, the appellant could not demonstrate that the learned Federal Magistrate’s conclusions and/or the findings upon which they were based were not reasonably open to him.

5. It was, sensibly and fairly, conceded by counsel for the respondent that the learned Federal Magistrate omitted reference to the absence of any specific allegations of inappropriate conduct or other matters which would give rise to a concern for the safety of the children were they to spend unsupervised time with the appellant in relation to either the children the subject of the proceedings before him or the child of an earlier relationship of the respondent, K-L.

6. It was nevertheless submitted by counsel for the respondent, particularly having regard to the nature of the allegations made against the appellant in the District Court proceedings, that his Honour had been justified in erring on the side of safety in the way in which he did.

7. Although his Honour did not expressly refer to it in the context of his reasons for the decision which he ultimately made, it is clear from the Reasons for Judgment that the learned Federal Magistrate appreciated that the appellant had spent unsupervised time with the children pursuant to the orders of October 2006. Whether his Honour appreciated that there had earlier been unsupervised time spent with the appellant is not clear from his reasons.

8. Counsel for the respondent is undoubtedly correct in submitting that the learned Federal Magistrate could have concluded that unsupervised time spent with the appellant did not constitute unacceptable risk for the children of the parties. He submitted however that the appellant could not demonstrate that the Federal Magistrate’s conclusion was not reasonably open.

9. It is necessary to have regard to the evidence before the learned Federal Magistrate. In her affidavit of evidence-in-chief, the respondent referred to the appellant’s failure to mention the earlier criminal proceedings, or to have only partially disclosed details of them to her. The respondent did not in her affidavit of evidence-in-chief suggest that the appellant had made any admissions in relation to those proceedings.

10. Similar observations apply to the proceedings against the respondent pursuant to the apprehended violence legislation involving a third female.

11. The crux of the respondent’s case before the learned Federal Magistrate appears to be encapsulated in the following paragraph of her affidavit of her evidence-in-chief

    I now do not know what the Father is capable of and would be extremely distressed if anything happened to [S] and [K]. Since 13 November 2006 I have been extremely worried for my children. I would blame myself if anything happened to the children. Last week [S] came home from time with the Father with a sore vagina. I was so concerned because of the allegations against the Father by other people that I took her immediately to the Doctors. The Doctor ultimately said that [S’s] condition was because she had not wiped herself properly. By this statement I do not mean to infer that I think that the Father did anything inappropriate with [S] last week. I refer to this incident because now I am extremely concerned about the children having unsupervised time with the Father. (AB, Affidavit of K M Winston of 20 December 2006, filed 21 December 2006, page 6, para 52).

12. Nowhere else in the affidavit is there found, or suggested to exist evidence of anything done or omitted to be done by the appellant with respect to the children the subject of the current proceedings or to the respondent’s child K-L, capable of giving rise to or supporting the respondent’s concerns for the safety of the children if they were to spend time with the appellant on an unsupervised basis. This observation applies with respect to both pre and post separation periods.

13. Annexed to the respondent’s affidavit was a record of interview between the appellant and Police conducted on 3 July 1993. That interview related to the 12 year old child of the appellant of an earlier relationship. (AB, Affidavit of K M Winston of 20 December 2006, filed 21 December 2006, annexure C).

14. During the course of that interview the interrogating police related to the appellant the substance of the allegations made by his daughter (pages 13 – 16, paragraphs 85 and 86). The appellant responded to the allegations, denying his guilt in clear and colourful terms.

15. Also annexed to the respondent’s affidavit, and relied upon by her, was an affidavit sworn by one A J D on the 18^th August 1993 in care proceedings in the Childrens Court of New South Wales with respect to the child of the appellant, who was allegedly sexually abused by him, and her younger brother (AB, Affidavit of K M Winston of 20 December 2006, filed 21 December 2006, annexure D).

16. In the course of that affidavit the appellant’s daughter was quoted as having told Ms D that the appellant had sexual intercourse with another child aged 15 (para 2(d) and (e)). No charges were ever laid against the appellant in relation to any such incident.

17. The District Court files (Exhibit M1) were relied upon by counsel for the respondent and a number of particular portions of those files were specifically relied upon. In relation to the prosecution with respect to the appellant’s daughter B, the child’s statement to police, made 3^rd July 1993, contained clear and detailed allegations of digital penetration of the child about 6 months earlier that year.

18. The District Court file in relation to the 1996 charge contained the statement to police by the alleged victim and a record of interview given by the appellant during the course of which the appellant denied the allegations against him.

19. As a reading of his Honour’s Reasons for Judgment makes clear, the question of supervision of time the appellant was to spend with the children the subject of the proceedings before him focused entirely on the assessment of the risk to the children inherent in such an order. His Honour correctly identified that the concerns of the respondent arose “out of two charges that the father faced in relation to two separate children some time ago”. (AB, Reasons for Judgment, page 2, para 5).

20. A significant proportion of the Federal Magistrate’s Reasons for Judgment dealt with the implications of the “not guilty” verdicts returned in each of the District Court trials of the appellant to which reference has been made. His Honour concluded, correctly in this Court’s view, that the proceedings before him were not “criminal in nature and it is not for me to decide, even if I could, whether the father sexually assaulted either of the two women.” (AB, Reasons for Judgment, page 4, para 11). Clearly, were the appellant to admit guilt or for the evidence to indicate guilt, such matters would be of relevance in the proceedings with which the learned Federal Magistrate was concerned.

21. His Honour referred to the “great deal of material” tendered before him and recorded that he did not “propose to analyse [it] … in detail.” The Federal Magistrate recorded that the appellant was “the subject of two separate complaints some time apart by two separate complainants”, observing that “[t]he fact that two separate complaints were made might, when all the evidence is in, admit of an innocent explanation” but that “[o]n the other hand it might be found to be a striking coincidence which the Court ultimately hearing this matter might regard as significant. Most people go through life without any allegation being made against them of sexual assault. In this case the father had not one but two such allegations made against him”. (AB, Reasons for Judgment, page 4, para 12).

22. His Honour then recorded that to have been committed for trial, as the appellant was, a Magistrate must have been “satisfied that there was evidence which, accepted by a tribunal of fact, was capable of satisfying that tribunal beyond reasonable doubt of his guilt”. (AB, Reasons for Judgment, page 4, para 12).

23. In the passage which followed his Honour’s reasons for concluding as he did are succinctly recorded. His Honour noted that if he were hearing the matter “on a final basis” it may well be that “when all the evidence was in I would be able to discount the risk of sexual abuse and find that there was no unacceptable risk of this occurring” but that “[a]s things stand I am unable to discount this risk. The facts as revealed cause me significant disquiet.” As a result of which “a conservative approach” was taken. (AB, Reasons for Judgement, page 5, para 13). It could be suggested that discussing “discounting” a risk before finding its probability to have been established may have led the learned Federal Magistrate to misdirect himself in relation to the assessment of risk.

24. His Honour reiterated in the following paragraph that pursuant to his “conservative approach” and unpreparedness “to assume that the father, if he sexually assaulted his daughter and/or BP, is no longer a risk”. (AB, Reasons for Judgment, page 5, para 14).

25. It is common ground that the learned Federal Magistrate’s reasons do not reveal that the exercise of his discretion to impose supervision on time spent by the appellant with his children included consideration of the countervailing evidence to which reference has earlier been made. Had his Honour had regard to the absence of any evidence of complaint by the respondent with respect to the children of the relationship between herself and the appellant and/or with respect to the respondent’s daughter K-L, and the evidence that the respondent had acquiesced in unsupervised time spent by the appellant with the children, it cannot in this Court’s view be concluded that his Honour would necessarily have reached the same conclusion. He may well have reached the same conclusion, but that is by no means inevitable having regard to the nature of the evidence upon which his Honour did rely in reaching his conclusion and the nature of the evidence to which he appears to have had no regard.

1. The exercise of discretion having been exercised without regard to these significant material facts, such exercise of discretion cannot stand, notwithstanding that the result reached by the learned Federal Magistrate did not itself fall beyond the ambit of a reasonable exercise of discretion.

2. In this Court’s view the appeal should be allowed.

Conclusion

1. Having determined that the appeal should be allowed, the question arises as to what should then happen with the matter.

2. The proceedings have apparently been transferred from the Federal Magistrates Court to the Family Court and are awaiting trial dates. Remitting the matter to the Federal Magistrates Court for further interim hearing would not be appropriate. This Court is not in a position to re-exercise the discretion of the learned Federal Magistrate and it may well be an exercise of no utility in any event, given that there is some indication that trial dates are likely to be allocated in the Family Court within a shorter time than the parties would need to adduce further evidence and make further submissions to enable this Court to attempt to re-exercise the discretion of the Federal Magistrate. (See Allesch v Maunz (2000) FLC 93-033).

3. In the circumstances, remitting the matter to a single judge or Judicial Registrar of the Family Court for rehearing is the appropriate course, although this Court would hope that the allocation of trial dates would mean that no such rehearing ever needed to occur.

4. As this Court does not, and cannot, conclude on the evidence that the only outcome of a rehearing of the interim proceedings would be an order for unsupervised time spent with the appellant, setting aside the orders of 9 February 2007 and re-instating the October 2006 orders would not be appropriate.

5. In the circumstances, the appropriate order of this Court is that the appeal be allowed but pending further order of a single judge or judicial registrar of this Court, the orders of the learned Federal Magistrate of 9 February 2007 continue to apply.

Costs

1. Each party sought a costs certificate in the event of the appeal being allowed. In the Court’s view each party is entitled to a costs certificate having regard to the basis upon which this Court has determined the appeal and will so order.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate: 

Date:  24 July 2007