Drew and Carter
[2014] FamCA 1142
•10 November 2014
FAMILY COURT OF AUSTRALIA
| DREW & CARTER | [2014] FamCA 1142 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of Violence – Allegations of sexual abuse – Order that children live with the father and spend time with the mother as agreed |
Family Law Act 1975 (Cth) s 60CC
Evidence Act 1995 (Cth) s 140
| M and M (1988) FLC 91-979 |
Briginshaw v Briginshaw (1938) 60 CLR 336
| Johnson and Page [2007] FamCA 1235 |
B and B (1993) FLC 92-357
Napier and Hepburn (2006) FLC 93-303
McCoy v Wessex [2007] FamCA 489
| APPLICANT: | Mr Drew |
| RESPONDENT: | Ms Carter |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Higgins |
| FILE NUMBER: | LNC | 43 | of | 2011 |
| DATE DELIVERED: | 10 November 2014 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 10 November 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | No appearance |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Briffa |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Commission |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Higgins |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bishops |
Orders
All previous parenting orders be vacated in relation to B born … 2008 and C born … 2009 (‘the children’).
Mr Drew (‘the father’) shall have sole responsibility for the children.
The children shall live with the father.
The childrens’ time with the mother shall be as agreed in writing between the mother and father or as otherwise determined by a court exercising jurisdiction under the Family Law Act.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THE COURT NOTES
Whilst the proceedings were determined on an undefended basis the material contained in my reasons of December 2013, the reasons supporting these orders and the supporting affidavit and expert report material was such that the court determined, on the recommendation of the Independent Children’s Lawyer, that the children are not at an unacceptable risk of abuse in the full time care of the father.
IT IS FURTHER ORDERED
All outstanding applications be dismissed.
All exhibits remain on the court file.
IT IS DIRECTED
A copy of the reasons for these orders be taken out and placed on the court file.
IT IS FURTHER NOTED
The appointment of the Independent Children’s Lawyer will expire twenty eight (28) days from the date of this order.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment by this Court under the pseudonym Drew & Carter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: LNC 43 of 2011
| Mr Drew |
Applicant
And
| Ms Carter |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings relating to the children, B, aged six, and C, aged five. Their parents are Ms Carter (‘the mother’) and Mr Drew (‘the father’). The proceedings relate to who should have parental responsibility, where the children should live and what, if any, time the children should have with each parent.
This is a matter where the parties separated in 2010 and these children have been involved in almost constant conflict since that time. It is a matter where allegations were made by the mother in 2012, the consequence of which was that the matter had at one stage been delegated to the Magellan list, and during the course of these proceedings an independent children's lawyer has been appointed.
This matter was listed for hearing last year and through the whole of 2013, as will be seen, the mother failed to engage in the proceedings and eventually removed the children from the State of Tasmania and took them to another place.
The parties made an application in December 2013 and I made an order recovering the children to their paternal grandmother. The children were recovered in April 2014 in circumstances where they had been taken into care by the New South Wales child protection authorities. Those authorities, themselves, having apparently significant concerns as to the well-being of the children in the mother’s care.
Since that time, the children have been living with their paternal grandmother and have been spending increasing time with the father. The mother has not engaged in the proceedings in any way in 2014. The mother did not attend today and was telephoned. I note from the file the history of the mother’s failure, as I said, to engage in the proceedings.
THE BACKGROUND
The background to these proceedings is set out in the chronology provided by the Independent Children's Lawyer in her summary of argument filed 12 November 2013 and is as follows:-
1991 Mr Drew born
1992 Ms Carter born
2006 Parties commence on & off relationship
2008 B born
2009 C born
August 2010 Parties separated finally
August 2010 B and C in care of mother
October to December 2010 C retained by father3 December 2010 Parties participate in Family Dispute Resolution Conference at Legal Aid Commission of Tasmania
7 December 2010 C returned to mother
December 2010 B and C having no time with father
January 2011 Father leavings S Town to reside in Hobart
28 January 2011 Mother files Initiating Application for parenting Orders in Federal Magistrates Court
15 March 2011 Matter listed before Judge Baker and adjourned
17 March 2011Relationships Australia write to father confirming unable to engage with mother and therefore supervised time with children not able to proceed
18 March 2011 Matter listed before Judge Baker and adjourned
18 April 2011 Matter listed before Judge Baker for mention
April 2011 Father alleges that mother leaves state of Tasmania with children
April 2011 Mother's solicitor files Notice of Withdrawal
9 June 2011 Father alleges mother made contact with him via telephone
21 June 2011 Father files Response & Affidavit in Federal
Magistrates Court
15 August 2011 Interim Parenting Orders made in Federal
Magistrates CourtAugust 2011 Mother returns to Tasmania with the children
August 2011 B and C commence spending time with father at the S Town Children's Contact Service
26 December 2011 Father alleges mother and children stayed with him until early January 2012
27 December 2012 Interim Orders made by consent whereby children to spend time with father each week
August 2012 Mother alleges children make disclosure of
sexual abuse by father6 August 2012 Father alleges received text message from mother stating children would not be spending time with him
8 or 9 August 2012 Last occasion children spend time with father
9 August 2012 Mother alleges contacted Child Protection Services
10 August 2012 Children attend at P House with mother
September 2012 Children attend at Tasmania Police with mother
25 September 2012 Father files Contravention Application
October 2012 Mother alleges children make more disclosures of sexual abuse to her by father
29 November 2012 Mother files Initiating Application to suspend parenting orders and supporting Affidavit material
January 2013 Father files Response to Initiating Application and supporting Affidavit material
February 2013 B makes disclosure to staff at F Primary School of potential assault upon him by Mr R
February 2013 B makes disclosure to staff at F Primary School of sexual abuse by father
4 February 2013 Magellan report is released noting that mother not contactable
March 2013 Assessment undertaken by Dr D
2 May 2013 Report of Dr D released
4 July 2013Independent Children’s Lawyer Conference convened at Legal Aid Commission of Tasmania noting non attendance of mother
16 July 2013 Fathers contacts Relationships Australia
18 July 2013 Interim hearing at Family Court of Australia noting non attendance of mother
18 July 2013 Interim orders made by consent
24 July 2013 Independent Children’s Lawyer sends to Relationships Australia information regarding interim orders dated 18 July 2013
July 2013 Ms E makes contact with mother in relation to counseling
1 August 2013 Mother attends at S Town Therapy Clinic to meet with Ms E
15 August 2013 Mother attends with C at S Town Therapy Clinic appointment with Ms E
19 August 2013 Mother contacts Relationships Australia
23 August 2013 Father attends intake and assessment appointment at Relationships Australia
23 August 2013 Mother fails to attend intake and assessment at Relationships Australia
29 August 2013 Mother attends with C at S Town Therapy Clinic appointment with Ms E
3September 2013 Mother contacts Relationships Australia
5 September 2013 Mother’s landlord makes contact with Ms E in relation to concerns for mother, the children and property residing in
10 September 2013 Mother contacts Relationships Australia to reschedule the intake and assessment appointment
10 September 2013 Mother’s solicitor files Notice of Ceasing to Act
12 September 2013 Mother fails to attend appointment with C at S Town Therapy Clinic with Ms E
24 September 2013 Intake and assessment appointment arranged for mother
24 September 2013 Mother contacts Relationships Australia to reschedule the intake and assessment appointment
25 September 2013 Matter listed before Registrar in Family Court for mention, noting non attendance by the mother
9 October 2013 Matter listed before Registrar in Family Court for mention, noting non attendance by the mother
15 October 2013 Mother fails to attend intake and assessment appointment at Relationships Australia
21 October 2013 Independent Children’s Lawyer will assert that mother has disclosed to Principal at F Primary School that staying with maternal grandparents but will move to a Woman’s Shelter on 23 October 2013
22 October 2013 Independent Children’s Lawyer will assert contact made with maternal grandparent’s who confirm that mother not living with them
22 October 2013 Independent Children’s Lawyer will assert mother requests that maternal grandmother collect from process server documents (sic)
4th November 2013 Mother fails to facilitate B’s attendance at school during week
7 November 2013 Independent Children’s lawyer will assert that information provided to F Primary School that mother looking to leave S Town with the children
9/10 November 2013 Information received by father suggesting mother has left Tasmania with children
Since that time, as I said, a recovery was made. The children were recovered about five months later and they are essentially in the care of the paternal grandmother, who wishes to transition their care to the father.
THE EVIDENCE
The material upon which the father relies is as follows:-
(a)the affidavits of the father filed 7 October 2014, 23 September 2013 and 7 January 2012; and
(b)the affidavits of the paternal grandmother filed 7 October 2014, 10 April 2014, 11 November 2013 and 23 September 2013;
The father initially sought orders for equal shared parental responsibility, but given the position of the Independent Children's Lawyer last year and continuing since that time he now seeks orders that he have sole parental responsibility.
The Independent Children's Lawyer tendered a letter from P House of 3 October 2014 in relation to the children’s involvement with them and the steps taken, given the assertions made by the mother. I have further evidence from the Independent Children's Lawyer, being her reports of 16 May 2014, 2 December 2013 and 2 May 2013. I also have the Magellan report filed 29 January 2013.
I also put have available to me the affidavits of E, an occupational therapist, of 31 October 2013, Ms M, B’s teacher from 2013, filed 1 October 2013 and Mr T, filed 1 October 2013, in relation to the mother’s engagement with Relationships Australia.
THE LAW
The approach in deciding a case involving an allegation of sexual abuse was considered by the High Court in M and M (1988) FLC 91-979. At page 77,080, the High Court said:-
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court recognised though that findings on the question of sexual abuse will have an important, perhaps a decisive impact on the resolution of the ultimate best interest’s issue.
As to the relevant standard of proof, the High Court comprising of Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, emphasised that a judge should not make a positive finding that the allegation was true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336.[1] Their Honours cited the well-known passage of Dixon J (at p.362 of Briginshaw):-
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[1] M and M (1988) FLC 91-979 at 77,081.
In a subsequent case of S and R (1999) FLC 92-834 the Full Court of the Family Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” was needed, given the maker of the statement was a child who was not subjected to cross-examination and whose statement was incapable of being properly tested.
In the decision of Johnson and Page [2007] FamCA 1235 the Full Court considered the applicable standard of proof. At paragraph 69, the court cited with approval the approach taken by the Honourable John Fogarty in his paper entitled ‘Unacceptable Risk – A Return to Basics’ ((2006) 20 AJFL 249). In particular, the Court said (at para 72):-
We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
These proceeding were governed by the provisions of Division 12A of Part VII of the Family Law Act (‘the Act”). Section 69ZT provides that some provisions of the Evidence Act do not apply. However, s 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) does apply and it provides:-
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
I must then consider the allegations of sexual abuse on the balance of probabilities taking into account the matters in s 140 of the Evidence Act.
In M and M, (supra) the High Court acknowledged there would be many cases in which it was not possible for a judge to make a positive finding that sexual abuse had taken place. He or she would then need to determine if there was a risk of sexual abuse, and assess the magnitude of that risk.
The Court went on to consider the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court should not grant custody or access (now an order in relation to with whom a child will live, or spend time), if it would expose the child to “an unacceptable risk” of sexual abuse.
In B and B (1993) FLC 92-357 the Full Court referred to the “unacceptable risk” test in M and M, and added (at p. 79,778):-
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In the Full Court decision of Napier and Hepburn (2006) FLC 93-303 the question of unacceptable risk was considered by Bryant CJ, Kay and Warnick JJ. Their Honours Bryant CJ and Kay J said:-
79.The determination of whether the child may have been abused required some assessment to be made as to the father’s credit in relation to his strenuous denials that he has acted inappropriately with the child. The child’s evidence itself was incapable of being tested or necessarily being accurately interpreted. His Honour said that he was unable to reject the allegation as groundless. In doing so, he must by necessary implication have rejected the father’s strenuous denials, but nowhere does he explain why he has done so.
…
84.There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
99.Absent there being any reason not to accept the father’s denials, we are not persuaded that the evidence reasonably leads to a conclusion that unsupervised contact poses an unacceptable risk of harm to J.
Their Honours also said: -
82.What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.
The determination of unacceptable risk exists remains a challenge for the trial judge.
In a decision of Brown J in McCoy v Wessex [2007] FamCA 489 Her Honour set out the legal principles involved in relation to allegations of sexual abuse.
Her Honour reviewed the law relating to unacceptable risk including the approach adopted by the Full Court in Napier and Hepburn (above) and Potter v Potter [2007] FamCA 350 and observed that:-
The Full Court noted (at para 79) that the determination of the question of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he had acted inappropriately with the child, and that even a finding to the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk.
In this case I need to determine whether there is an unacceptable risk to the children if they were to spend unsupervised time with the father or the mother.
I make it clear that it is the submission of the Independent Children's Lawyer, supported by counsel for the father that the children are not at unacceptable risk of abuse in the unsupervised, fulltime care of the father, but that the children are at risk of physical abuse and emotional abuse in the unsupervised care of the mother.
Given the history that is provided in the affidavits, particularly the recent affidavits, it is clear that the children are at risk of abuse in the unsupervised care of the mother. Great care will need to be taken if the mother comes back and if she seeks to see the children, to ensure that they are protected from further abuse in the care of the mother, not the least of which is removing them from the State of Tasmania so that a reasonable assessment could be made in relation to the very serious allegations made by the mother, which she asserted to be made by the children.
The Independent Children's Lawyer submitted that she would have cross-examined Dr D in relation to certain matters. I am unable to have regard to that as matters of fact before me, but there is sufficient evidence to make the findings, including the strong submission by the Independent Children's Lawyer.
On the evidence before me, it seems that the mother does not and has not promoted a meaningful relationship between the father and the children. The evidence is that the children are close to the father and have a wish to live with him. They are attached to the paternal grandmother, and the father. The father sensibly, in my view, will maintain that relationship and ensure that that closeness will remain into the future, and that is deposed to in his affidavits.
The mother raised serious allegations of sexual abuse; she did not pursue them, and removed the children from the State of Tasmania.
On the material before me, albeit at some level, untested, it appears that the children were exposed to violence in the mother’s household, and other aspects including abuse of alcohol and other substances.
SECTION 60CC FACTORS
In terms of section 60CC(2)(b), the mother asserted the children were sexually abused, but no cogent evidence has been put before the Court and the mother has not endeavoured to engage and pursue that complaint.
The father asks that the Court make a finding that the mother’s allegations are fabricated. Whilst there is significant concern about the efficacy of those allegations they have not been tested, and given the warning by the High Court in the relevant authorities, I do not intend to either make a positive finding one way or the other. However, I reiterate that I am satisfied the children are not at unacceptable risk in the fulltime care of the father.
This is a high conflict case where the parties, or one or other of them, are unwilling and unable to cooperate. The children have endured a level of conflict through much of their lives, which is a matter of grave concern to this Court.
The children had been in the care of the mother from separation until some time in March or April 2014, when they were removed from her care by the Child Protection Authorities in New South Wales.
I again note the material in relation to the physical abuse the children seem to have suffered in the care of the mother and the issues of substance abuse or alcohol abuse.
As to the views of the children, they say they wish to spend time with their father. That is a matter of interest, but given the age and maturity of the children it is not a determinative factor.
The children are attached to the paternal grandmother and are probably attached to the mother, but they have not seen her for a period of about seven or eight months. It seems they have a close and loving relationship with the father.
The mother has not facilitated time between the father and the children and vice versa and has taken positive steps to terminate that relationship. The father has fulfilled his obligations to care financially for the children. We do not know what the mother’s circumstances are.
The change with regard to the children’s parenting arrangements was brought about by two factors: firstly, the removal of the children from Tasmania by the mother and, secondly, the removal of the children from the mother to the Child Protection Authorities in New South Wales. The father does not oppose the children seeing the mother provided it is done carefully, thoughtfully and having regard to the history of this matter.
The father cares for his other daughter, O, when she spends time with him and has in the past cared for the children for a period of time. The father had removed the children from their mother’s care, in terms of C in 2010 and B in 2008/2009. There is no suggestion that the physical arrangements for the children in the father’s home is other than adequate.
The father says he takes his concerns of parental responsibility seriously, and that is set out in the affidavit. The mother, on the other hand, has been at least irresponsible and perhaps at a greater level than that.
The parties’ early relationship was violent and exposed the children to abuse in those circumstances. The father acknowledges some fault on his part in that respect. I am not sure it is entirely complete, and that is unsurprising when people are subjective about their own culpability from time to time. I have had regard to the 2010 family violence order.
It is more likely that the children will have a relationship with their mother if they are in the care of their father. It is unlikely that they would have a relationship with their father or paternal grandmother if they are in the care of the mother.
In relation to the question of parental responsibility, given the conflict and the behaviour to which I have alluded and which is set out in the affidavits, this could not be a matter where equal shared parental responsibility could in any way, shape or form work, and, accordingly, it will have to be a matter for sole parental responsibility.
I am satisfied, given the matters which I have alluded to earlier, that the children should live with their father. I am equally satisfied that the mother’s time with the children should be reserved. I do not close the door, but when opened it needs to be done carefully and thoughtfully.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 10 November 2014.
Associate:
Date: 10 November 2014
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