Coleman and Geeves

[2007] FamCA 1361

FAMILY COURT OF AUSTRALIA

COLEMAN & GEEVES [2007] FamCA 1361

FAMILY LAW – CHILDREN – With whom a child lives – No time or communication with one parent

Family Law Act 1975 (Cth)

APPLICANT: Mr Coleman

RESPONDENT: Ms Geeves

FILE NUMBER: SYF 2596 of 2006

DATE DELIVERED: 12 November 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Mr Cook

SOLICITOR FOR THE RESPONDENT: Merrick Spicer & Associates

Orders

1. All previous orders be discharged.

2. The child … born … February 2001 (“the child”) lives with the mother.

3. The mother has sole responsibility for the long term care and welfare of the child.

4. The mother has sole responsibility for the day to day care welfare and development of the child.

5. The child does not communicate or spend time with the father except as set out in order 6 below.

6. The father is at liberty to write a letter to the child (provided that it does not denigrate the mother) to be sent to the office of the solicitors for the mother and placed in safe custody at the office of the solicitors for the mother.

7. The solicitor for the mother is at liberty to read the letter to the child to ensure that there has been no denigration of the mother, provided that none of the contents of the letter to the child are disclosed to the mother other than to advise that there has been no denigration.

8. The child is at liberty to obtain the letter from the father from the office of the solicitors for the mother on or after 10 February 2019.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2596 of 2006

MR COLEMAN  

Applicant

And

MS GEEVES  

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. This matter is about what parenting orders should be made in relation to the child who was born in February 2001. 

2. The applicant father was born in December 1971.  He has filed a Notice of Discontinuance in these proceedings on 20 August 2007.

3. The respondent, the mother was born in July 1972.  She seeks that I deal with the application that she has made in her response on an ex parte basis in circumstances where I am satisfied having regard to the content of exhibit A that the father is on notice of the orders that she wishes me to make today and I will refer to those orders shortly.

CHRONOLOGY

1. The parties married in April 1996 and the child is the only child of their marriage. 

2. The parents physically separated in March 2002 when the child was about 1 year old, although the mother gives some evidence that the parties were estranged under the same roof prior to that time.

3. The mother has two older children from a previous relationship, J and S.  J is now 17 years of age, she was born in March 1990. 

4. The mother currently lives in T with her brother, with J, S and the child, R who is her grandson, a child of J's and M who is J's current partner but who is not R's father. 

5. The father was in the Australian Defence Force.  He currently lives in Sydney with his new wife, Ms F, she was born in November 1976, and the two of them were married in November 2006.  It appears, although I do not have any information about it, but they recently had had a child.

6. At the time of the separation in March 2002, the parties were in Military accommodation in the Newcastle area and initially the father moved to the Military Base in the Newcastle area and then he says for the next eight months or so he spent some time with the child, S and J almost every day, except for about one week in each month where he was not in a position to spend time with the children because he was required to do field duties.

7. In November 2002, the mother relocated with the three children to T and the child spent no time with the father then until about March 2003.  At that time apparently the father visited the child for a few hours on two occasions.

8. There were consent orders made at the T Local Court on 9 May 2003, those orders, amongst other things, stipulated that contact between the child and her father would take place twice in each one month period for a maximum of four hours and it was to be supervised by the maternal grandfather in the T area.

9. There is a dispute between the parties as to why these Court orders were never implemented, but it appears the father did not spend any time with the child again until October 2006 when the order that I made that involved two hour supervised contact periods occurred at the Newcastle Registry. 

10. The matter first came before me on 1 September 2006.  It was clear at that time that the central issue in the case was an allegation against the father of sexual abuse of J.  Two incidents were alleged to have taken place, one at the end of December 2000 which has been referred to in the mother's material as the "pool incident" and the second which took place in January 2001 which has been referred to in the mother's material as the "lounge incident".

11. The mother sets out in fairly clear terms what she says happened on or about January 2001, that evidence is at paragraphs 22 and 23 of her affidavit sworn on 1 March 2007.  The mother also gave oral evidence about this before me on 1 September 2006.  In short, the mother says she witnessed an incident where she saw the father lying on the lounge with J, he was lying behind her with nothing but a towel around his waste and also had his hand placed up J's sarong and he was fondling her backside area. 

12. It was at that time that J told her mother as to what had happened at a motel pool at the end of 2000.  J told her mother that the father had touched her vagina whilst they were swimming at a pool or playing in a pool at a motel where they were staying.  J, in the affidavit that she has sworn, sets out in more particular detail what she says happened in the pool on that occasion.

13. There was some discussion before me as to why the parties continued to reside together after the mother observed what happened in January 2001 and became aware of what had happened to J in December 2000. The mother gives an explanation which I accept in the affidavit that she had sworn on 1 March 2007.

14. After the father had filed a contravention application, the mother filed a notice of risk of child abuse on 28 November 2005. That notice details the matters that I have already referred to.  The allegations were first brought to the attention of the police at the end of 2003 and J sets out in her affidavit the details of that disclosure to the police.  The investigation did not take place at the time because apparently J was too emotional to make a statement.  The allegations were noted, J was told not to leave it too long if she wanted to pursue the matter further.  She was 13 years old at the time.

15. J brought the allegations to the police's attention again towards the end of 2005 and she made a taped statement to a police officer.  The father told me that he had been interviewed by the same police officer.  There is a tape, but that tape was never put into evidence and it has never been transcribed, so far as I am aware, no transcription was produced in evidence.

16. In September 2006 the mother informed me that the police officer had indicated to her that they would not be taking the matter any further because in any criminal proceedings it would be J's word against her stepfather's. 

17. There have been a couple of exhibits in this matter, I will change exhibit A and my reference to exhibit A, I will make it exhibit AA so that there is no confusion in the exhibits.

APPLICATIONS

1. Given that the father has filed a Notice of Discontinuance there is no application from him that I am being asked to consider.  The only application I have before me is the application and the amended response that was filed on 31 October 2007 incorrectly in the Federal Magistrates Court and a copy of that has been provided to me this morning and I will mark it exhibit BB.

2. I have been handed a Minute of Order in the terms of an amended response which I will mark as exhibit CC, the following is the text of that Minute of Order and that is the application that the mother is moving on before me today.

   1.All previous orders be discharged.

   2.The child […] born […] February 2001 (“the child”) lives with the mother.

   3.The mother has sole responsibility for the long term care and welfare of the child.

   4.The mother has sole responsibility for the day to day care welfare and development of the child.

   5.The child does not communicate or spend time with the father except as set out in order 6 below.

   6.The father is at liberty to write a letter to the child (provided that it does not denigrate the mother) to be sent to the office of the solicitors for the mother and placed in safe custody at the office of the solicitors for the mother.

   7.The solicitor for the mother is at liberty to read the letter to the child to ensure that there has been no denigration of the mother, provided that none of the contents of the letter to the child are disclosed to the mother other than to advise that there has been no denigration.

   8.The child is at liberty to obtain the letter from the father from the office of the solicitors for the mother on or after 10 February 2019.

3. I have already mentioned the terms of the first lot of interim orders I made on 1 September 2006, and I set out the text of those orders: 

   1.That the father spend time with the child […] born […] February 2001 (“[the child]”) as follows:

   (a)Supervised contact at the […] Contact Centre at Newcastle for a period of two (2) hours once each calendar month.

   2.That the mother shall deliver [the child] to the contact centre and collect her at the end of the father’s scheduled time with [the child].

   3.That the father do all things necessary including intake screening to facilitate the arrangements for him spending time with [the child] at the contact centre.

   4.That the father inform the mother of all arrangements regarding the contact centre through the mother’s solicitors.

   5.That the mother inform the father through the father’s solicitors should she not be able to make [the child] available for the purpose of the father spending time with [the child] within a reasonable time.  If in the event of an emergency [the child] is unable to attend contact and the father cannot be contacted otherwise, the mother to call the father on his mobile number […] for this limited purpose only.

   6.That a family report referred to in order 9 be prepared after the father has spent time with [the child] on at least three occasions and the father inform Mr [L] of the Court’s counselling Section once this has occurred.

   7.I grant the parties liberty to restore the proceedings on 7 days notice to the Court and the other party.

   8.That the father inform the mother through the mother’s solicitor if he is unable to attend the contact centre for the purpose of spending time with [the child] within a reasonable time.

   9.That a family report be prepared in these proceedings to address the issues listed below

   10.That the family report to be prepared in these proceedings is to address the issues listed below:

   (a)The nature of the relationship between [the child] and each of the [the child]’s parents and her relationship with any other significant person;

   (b)The practical difficulty and expense of [the child] spending time with the father;

   (c)The capacity of each of the parents to provide for [the child]’s needs;

   (d)What arrangements might be put in place subject to any finding the court might make in relation to unacceptable risk to maximize the time [the child] can spend with her father;

   (e)Any comment in relation to any risk that [the child] is at while spending time with the father;

   (f)The attitude of each parent towards their responsibilities of parenthood;

   (g)Any other matter the family consultant considers important.

   11.That the father will pay the costs of the […] Contact Centre.

   12.That in the event that the father is unable to spend time with [the child] at the contact centre due to work commitments, the contact that he misses with [the child] will take place at the next occasion which is convenient to the mother and the contact centre and the father. 

   13.That contact with the contact centre normally take place on the Saturday after the third Tuesday of the month if that is something the contact centre is able to manage and if the father’s work roster permits that to be the normal arrangement.

4. Orders were made on 29 September 2006 when it became clear that the Contact Centre was not going to be available within any reasonable period to facilitate the recommencement of supervised contact.  I set out the terms of the orders I made on 29 September 2006.

   1.Order 1 made 1 September 2006 providing for supervised time between [the child] and her father at the […] Contact Centre be discharged.

   2.The father spend time with [the child] for three supervised occasions commencing at the times nominated by the Manager of Child Dispute Services in the Newcastle Registry or her nominee for a minimum of one hour and a maximum of two hours conducted at approximately three weekly intervals.

   3.The mother brings [the child] to the Newcastle Registry of the Family Court at times to be nominated by the Manager, Child Dispute Services, Newcastle Registry or her nominee.

   4.The Manager of Child Dispute Services in the Newcastle Registry or her nominee prepare a report in relation to the three supervised occasions and provide that report to Mr [L] or such other person as he nominates to prepare the family report. 

   5.I direct that the court file be sent to the Manager of Child Dispute Services in the Newcastle Registry as soon as possible. 

5. On 1 September 2006, an order was made for the preparation of a family report and that report was prepared by Mr L and is dated 20 December 2006.  I had earlier today marked that report exhibit B, I will change that to exhibit DD.

6. Mr L saw the parties with the child, he also interviewed Ms F.  His evaluation is contained at paragraphs 29 to 34 of his report as set out below: 

   29.[The mother] advised that she is absolutely convinced that [the father] sexually molested her older daughter, because, with respect to one of the two alleged incidents of abuse, she (ie [the mother]) was “there when he did it”.  It is quite possible that she has described this incident accurately and faithfully.  It is also possible that, perhaps as a consequence of her own childhood experiences of abuse, she is highly suggestible with respect to similar threats to her own children – to the degree that her perception and recall of this incident might have been distorted.  In relation to the incident that [the mother] claims to have observed, I find it perplexing that one parent should be able to describe, in considerable detail, an event that bears no resemblance whatsoever to any event that the other parent is able to recall.  This probably suggests that one or other parent is being less than truthful.  Unfortunately, it is highly unlikely that the alleged incidents can now be properly examined, some four years after they were deemed to have occurred.  The Department of Community Services was able to confirm “in appropriate touching”.  This finding however appears to have been based on investigations that were conducted some three years after the alleged event.  The fact that [the mother]’s allegations about [the father] probably cannot be either substantiated or disproved is highly problematic.  If [the child] were to spend time with her father, and he had in fact sexually molested another child, then [the child] herself would be at risk of being molested.  On the other hand, if [the child] were to be prevented from spending time with [the father], and the allegations about him are untrue, she would be being needlessly and unjustly denied the opportunity to develop a relationship with her father.

   30.Perhaps a reasonable approach to this issue would be to consider potential risk factors and protective factors in relation to [the child] if she were to spend time with her father, even if, in the service of caution, the allegations made by [the mother] were to be taken into account. In this regard, it might be noted that any adult who sexually molests a child self evidently demonstrates a capacity to misuse power and trust in relation to children and also demonstrates a disregard for the emotional and psychological wellbeing of children generally.  Therefore, if [the father] has molested [J] it would be logical to conclude that there would be some level of risk to [the child], were she to spend time with him.  On the other hand, I note that [the mother] herself, irrespective of the strength of her beliefs about [the father] and [J], apparently did not consider either [the child] or [J] to be sufficiently at risk to absolutely deny  him contact with either child in the initial year and half after the alleged incident in early 2001, or to report the alleged incident to DoCS until some two years had elapsed.  In terms of protective factors I note that, albeit for reasons that serve to safeguard her husband, Ms [F] has committed herself to being in attendance, if and when, [the child] spends time with her father and it was apparent from her interview that Ms [F] would not be predisposed to colluding with behaviours that placed a child at risk of sexual molestation.

   31.[The father] is concerned that [the mother] may undermine any attempt he might make to develop a positive relationship with [the child].  In this regard, [the child]’s reactions to him over the past month have been largely consistent with [the mother]’s claim that she has told [the child] that it is “ok” for [the child] to like her father even if other family members do not like him.  For example, although [the child] seems to have some belief that [the father] has behaved aggressively to her siblings, she nevertheless does not have any fears for her own safety in relation to him.  Her generally positive reactions to her father would suggest that she has not been chronically exposed to negative evaluations of him.  It is also possible that [the child] is somewhat inured to family members “trashing” each other, given [the mother]’s depiction of interactions in her own household.

   32.It appears to me that [the mother] is unlikely, in the short term, (or indeed if ever) to relinquish her view that [the father] is a “child molester”.  It is possible, but by no means certain, that her mistrust in relation to this believe might lessen somewhat in intensity if, for an initial period and with certain precautions, [the child] were to spend time with her father and return to her mother happy and secure. Perhaps this could be achieved if the implementation of overnight time were to be postponed, and if Ms [F] were to give an undertaking to be in the house when [the child] is spending time with her father and to assist with any aspects of her personal care that might be required from time to time.

   33.It is difficult to foresee the parents effectively implementing an order for equal shared parental responsibility, not only because of [the mother]’s trenchant hostility towards [the father] but also because of the prohibitive distance between the two homes.

   34.I am unable to comment on [the father]’s request that the parties should meet halfway between their respective homes for the purpose of transferring [the child] from one parent to the other, as I am unaware of the various financial and/or other factors that might impinge on this issue.

1. Mr L highlighted the fact that it was probable that the allegations made against the father by the mother cannot be either substantiated or disproved and he said that that was highly problematic.

2. The recommendations made by Mr L are contained in paragraph 35 through to paragraph 39 of his report as follows:-

   35.It is recommended that [the mother] have sole parental responsibility in relation to [the child].

   36.It is recommended that, from when orders are handed down and for a period of one year, [the child] spend time with her father for a period of seven hours on one weekend in each month and that Ms [F] be present during these periods.

   37.It is recommended that, when the above mentioned one year period has elapsed, [the child] spend time with her father on one weekend in each month from 10am Saturday to 5pm Sunday and that, for an initial period of six months, Ms [F] be in the house when [the father] and [the child] are together and that she accompany them during activities that might occur in other settings.

   38.It is further recommended that, when the above mentioned six month period has elapsed, [the child] commence spending time with [the father] and that, in addition to spending one weekend in each month with him, she also spend time with him for half of each of the school holidays.

   39.It is recommended that court orders reflect the probability that [the child] will be significantly psychologically damaged should she be exposed to negative comments that one parent might make about the other.

3. The matter has now come to me on an uncontested basis.  I only have the father's denial on 1 September 2006, but I do not have any detailed testing of the evidence in relation to the "lounge incident" and the "pool incident". Because the father has chosen not to participate in these proceedings there can be no testing of whether or not the mother is accurately reporting what she saw in January 2001 and whether or not J has been truthful about the two incidents. J however, having sworn an affidavit, was making herself available to be tested and I have to adopt the position that I have uncontested evidence from J.  The father has chosen not to test the evidence that the mother gives about the "lounge incident".

4. I am mindful that the father and Ms F have filed an affidavit subsequent to the directions that I made for the filing of affidavits, but those affidavits have not been read in these proceedings.

STATUTORY CONSIDERATIONS

1. I have to make an order that is in the child's best interests. In doing that I have to consider the matters set out in Part VII of the Family Law Act and in particular the matters set out in s 60CC(2), (3) and (4). In relation to sub-s (2) I have to consider the two primary considerations. The first is the benefit to the child of having a meaningful relationship with her father. The second primary consideration is to ensure that any order I make in her best interest is protective of her in circumstances where it is asserted in this case that she could be exposed, like J was, to a risk of sexual abuse from her father.

2. On the evidence that I have got before me I would conclude on the Briginshaw standard that what is asserted to have happened by the mother and J during the occasions of the "lounge incident" and the "pool incident" actually did happen and consequently I would have to find that there was an unacceptable risk of the child being with her father on an unsupervised basis.

3. The other matters that I need to consider under s 60CC(3) are not as important and weighty as that matter being the second primary consideration.  The child is still only fairly little.  Her expressed views such as they are not matters of great weight.

4. I am satisfied that the mother has not gone out of her way to poison the relationship between the child and her father and in fact given what has happened has been fairly even handed in terms of her attitude towards the child’s father.

5. There is some evidence of one incident of violence that took place between June and August 2002 involving the father putting his fist through a glass door and the mother then going outside to confront the father and being dragged around by him.  On the scale of violence that I see in this Court room or evidence about it in this Court room that seems to be an isolated incident which whilst unfortunate is not even at the middle rung of the scale of violence.  It does not seem to me that the mother is saying that she is fearful of the father being violent towards her.

6. Given all of those matters and having regard to the fact that the findings that I have made on uncontested evidence, I think it is in the child's best interests that the orders that are being proposed by the mother as set out in exhibit CC be made.  I accordingly make orders in accordance with exhibit CC.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate

Date:  12 November 2007