ELIOT & MAXFIELD

[2017] FamCA 768

FAMILY COURT OF AUSTRALIA

ELIOT & MAXFIELD [2017] FamCA 768

FAMILY LAW – CHILDREN – Interim – Time between the father and the child – Where the mother and father are unable to agree on whether the time the child spends with the father should be increased and commence to be unsupervised – Where there are very serious issues raised which possibly implicate the father in sexual abuse of the child – Where the Court is not satisfied that proper protection can be afforded to the child were he to spend unsupervised time with the father at this time – Father’s application dismissed.

Family Law Act 1975 (Cth)

Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Goode & Goode (2006) FLC 93-286

SCVG & KLD (2014) FLC 93-582

APPLICANT: Mr Eliot

RESPONDENT: Ms Maxfield

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 2474 of 2013

DATE DELIVERED: 24 August 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 21 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Walker-Munro

SOLICITOR FOR THE RESPONDENT: Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Aylward Game Solicitors

Order

1. Paragraphs 2 to 5 of the father’s Application in a Case filed 14 December 2016 are dismissed.

NOTATION

It is noted that the balance of the Application was dismissed by the Honourable Justice Berman on 27 March 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eliot & Maxfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2474  of 2013

Mr Eliot

Applicant

And

Ms Maxfield

Respondent

REASONS FOR JUDGMENT

1. The parties to this dispute are the parents of B born in 2010 (“the child”). They are unable to agree about interim parenting arrangements for the child and in particular whether the time the child spends with his father should be increased and commence to be unsupervised.

Background

1. Mr Eliot (“the father”) is a 37 year old student. Ms Maxfield (“the mother”)  is  a 27 year old full time mother.  The parties were in a brief relationship from 2009 to 2012 and have one child together.

2. The father was in a relationship with Ms E after his separation from the mother and they have one child together, J, born in 2016. Ms E has at least three other children, M (11), N (8) and L (4). It is unclear whether any of her children live with  her  as  it  seems  that  N  and  L  were  living  with  their respective fathers at least as at March 2017. J was placed into foster care earlier this year as a result of injuries suffered by him. It is unclear when the father and Ms E separated on a final basis.

3. The mother is in a relationship with Mr P with whom she has three children, Q (3), R (2) and a new born baby.

4. A final parenting order was made between the mother and father on 25 February 2015 which provided for the parents to have equal shared parental responsibility and for the child to spend time with the father from Sunday to Wednesday each week.

5. In July 2015 the father refused to return the child to the mother which prompted her to file a fresh initiating application seeking a recovery order and to impose supervision on the father’s time with the child.

6. An order was made by Judge Howard in the Federal Circuit Court on 12 October 2015 requiring the child to be returned to the mother and suspending the father’s time with the child pursuant to the February 2015 order and imposing a requirement of supervision on the father’s time which was to occur at a Contact Centre for a minimum of two hours each week. The matter was then transferred to this Court.

7. On 17 May and 14 July 2016 Senior Registrar Spink heard the father’s Application in a Case seeking an order that the child live with him. The father’s application was dismissed. Part of the reasons for dismissing the father’s application related to allegations made against the father by Ms E including:

   a)Excessive discipline of the child;

   b)Failure to properly supervise him;

   c)Exposing  the child  to  family  violence  between  the  father  and  Ms E;

   d)Regular drug use by the father;

   e)Threats made to kill the mother, the mother’s partner and the maternal grandmother;

   f)Physical assaults of Ms E including punching and choking her to the point where she lost consciousness.

8. The Senior Registrar noted that Ms E’s allegations of assault were corroborated by a number of witnesses according to police records.

9. Ms E filed a further affidavit in those proceedings in which she sought to retract her allegations against the father stating that she had made the allegations ‘out of spite and hatred’ as the father had recently broken up with her.

10. The allegations that led to the proceedings being transferred to this Court include an allegation that the child said to the mother “Daddy put my willy in his mouth, but he wouldn’t give it back to me, he said that it tasted sour.”

11. A family report prepared by Ms F in March 2016 recommended that consideration be given to the father spending unsupervised time with the child once he had completed  a  ‘men stopping violence’ course  and  engaged  in therapeutic counselling for six months.

12. Another Application in a Case was filed by the father on 14 December 2016 and heard by the Honourable Justice Berman on 27 March 2017. Berman J dismissed paragraphs 6 to 17 of the father’s Application but adjourned paragraphs 2 to 5 and ordered the preparation of a further family report. I note that in the reasons for judgment Berman J observed:

    20. … It is helpful that the mother’s concerns are not now in respect of any issue that the father may have sexually interfered with or her abused the child or indeed that there is risk of same, but rather that the risk is of physical harm and an inappropriate environment that might not appropriately protect and keep this child safe, unless the father’s time is supervised.

13. This seems at odds with what the mother is reported to have told Ms F during the family report interviews in May 2017, namely, that the child had recently commenced to see a psychologist, Dr S, “because of the sexual abuse”. The mother is reported to have said that the child had told her that his “willy used to hurt because Daddy squashed it like a pancake” and “Daddy put his willy in my mouth and it tasted sour.”

14. Berman J also dismissed a number of Contravention Applications brought by the father against the mother. Apparently the father has appealed against the entirety of the order made by Berman J on 27 March 2017.

15. It is also apparent in the reasons of Berman J, that the father and Ms E had earlier taken objection to the inspection of documents produced pursuant to subpoena from the Department of Communities, Child Safety and Disability Services (“the Department”). Their objection had been dismissed and leave had been granted for all parties to inspect the documents produced. During the hearing before Berman J the father was afforded an opportunity to read a summary of the subpoenaed documents prepared by the independent children’s lawyer but the father elected to make no submissions to Berman J about the content of the summary. It is not apparent to me that the father or indeed the mother has taken the opportunity since March 2017 to inspect the documents produced pursuant to subpoena and the father has filed no affidavit addressing the very serious issues contained therein.

16. In relation to the documents produced by the Department for the March 2017 hearing the independent children’s lawyer tendered a bundle that became exhibit 1 in evidence before Berman J. It is apparent that on 4 February 2017 J was in the care of the father when he stopped breathing and was taken to hospital by ambulance. Ms E was not present but another child of hers, M, was in the house at the time. Tests conducted at the hospital revealed that J had suffered significant injury. He had bruising to the right upper arm and forearm and bruising underneath his tongue; “subarachnoid haemorrhages [bleeding on the brain] and retinal haemorrhages that were too many to count”. The opinion of the medical specialist at the hospital was that the injuries had been caused as a result of the force applied to the baby’s head and that the injuries were of recent origin, either immediately before he lost consciousness or in the preceding few hours. In addition, J had a rib fractures on both sides of his chest appearing to be of different ages and different levels of healing. The records also indicate that there is a “pattern of suspicious injury that has occurred to [Ms E’s] children” dating back to February 2014. In particular, on 16 December 2014 it is recorded that L had extensive bruising to the left side of her face, left ear, her upper lip and bruising to her lower back and midline. Again, on 27 December 2014 L had a further injury consisting of two black eyes and swelling to her face. L is said to have been in the care of the father and Ms E at the time of the injuries. It was noted that during a home visit with the father by the Department the father said he had completed an anger management course but “struggled to articulate what he had learnt and stated that he does not get angry”. A notification was made to the Department on 23 May 2016 alleging that the father had struck M across the face and pushed him to the ground. It is reported that Ms E left the house immediately and moved to her parents but later said it had all been a misunderstanding and resumed staying at the father’s home.

17. The father has been spending supervised time with the child since the order made in October 2015. The father complains that despite the order providing for a minimum of two hours he only spends one and a half hours. The father further complains that he has done all that was required of him by the family report writer but still he is prevented from spending meaningful time with his son.

18. In that regard I note that the father has attended sixteen sessions of a domestic violence group program for men from 5 July to 15 November 2016. The Statement of Attendance includes the following notation:

    Abusive behaviours are reinforced over a period of years. Therefore, [T Group] recommends that participants who complete the Program engage in ongoing work (individual counselling/group work relevant to identified needs) in order to integrate personal learning and enhance the safety of partners/children. Participants often demonstrate a need to gain deeper understanding of their abusive behaviours which directly impact on personal relationships. Such ongoing work assists participants to integrate skills, concepts and attitudes that constitute the curriculum of the relatively brief 16 weeks of the Men’s Stopping Violence Group Program.

19. That father also appears to have attended some other counselling at T Group in 2015.

20. It is not contentious that in the supervised setting the father and the child appear to have a close and loving relationship.

21. There is no evidence before me as to the current living arrangements of J or if the father spends time with him. The father merely asserts that no charges have been brought against him. I was informed during the hearing that J remains in foster care.

22. During the family report interviews with Ms F on 30 May 2017 the father is reported to have denied causing any injury to J and implied that M may have been responsible. It seems he also indicated that investigations were ongoing.

23. During Ms F’s interview with the child he is reported to have said that he was scared of his father and that he recalled his father getting “really really angry” and that the father was yelling at him and calling him names. He told Ms F that he was scared and tried to climb out a window but hid in the cupboard.

24. When observed with the father, the child was noted to give the father a big hug and kiss and asked immediately for his iPad. In Ms F’s opinion the father’s interaction with the child was entirely appropriate and the child appeared to thoroughly enjoy his time with the father.

25. Also during the May 2017 family report interviews the mother suggested that the child suffers from anxiety that was being addressed by Dr S. I have no evidence from Dr S.

26. Ms F expressed the following opinions and recommendations in her recent report:

    50. [Mr Eliot’s] presentation and affect during this latest assessment, was markedly different from the previous two assessment interviews in 2014 and 2016. [Mr Eliot] was not as agitated, his affect was calm and measured, and his reflection on his past behaviours indicated the possibility that he was prepared to take responsibility for his past behaviours. He was never-the-less critical of the mother, and disappointingly used the mother’s alleged manipulative behaviours as an excuse for some of his past behaviours.

    …

    55.     It is respectfully suggested that information from [Dr S] regarding his formal diagnosis of [the child] and whether he is suffering from trauma, will be important to consider when looking at future parenting arrangements for [the child] and his time with his father. …

    56.     Compounding any consideration  of [the child’s] time with  his father being increased in the near future is the serious protection concerns in relation to [Mr Eliot’s] son [J]. …

    57.     Based on the information obtained during the assessment process, and the issues identified above, it is the view of the report writer that the child’s time with his father will need to be supervised into the near future.

    58.    If the Court receives information that indicates that this psychological and emotional health is being well managed, and that [Dr S] is supportive of the child’s time with his father being increased; and if information from DOCS regarding [J], does not have negative implications for [the child’s] time with his father; it is respectfully suggested that consideration be given to the child commencing unsupervised time with his father during the day from 9.00am to 4.00pm each alternate Saturday, with changeovers to occur at the [D] Contact Centre.

ORDER SOUGHT BY THE FATHER

1. The father applies for an interim order that the child spend time with him:

   a)For half the school holidays;

   b)Every second weekend from Friday afternoon to Sunday afternoon;

   c)On his birthday;

   d)At Christmas time.

2. The mother opposes the order sought by the father and she is supported in that position by the independent children’s lawyer.

HOW PARENTING APPLICATIONS ARE DETERMINED

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer.[1]

   [1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-

   637

2. The Court is not required to make findings of fact on every factual dispute raised by the parties[2] and as this is an interim hearing the Court is unable to make findings of fact where the facts are seriously in contention, other than if the evidence on its face is improbable.[3]

   [2] Baghti & Baghti [2015] FamCAFC 71

   [3]Goode & Goode (supra)

3. The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:

   a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)parents should agree about the future parenting of their children;

   e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

8. Section 4 of the Act defines major long-term issues in relation to a child as follows:

   …issues about the care, welfare and development of the child of a long- term nature and includes (but is not limited to) issues of that nature about:

   (a)the child's education (both current and future); and

   (b)the child's religious and cultural upbringing; and

   (c)the child's health; and

   (d)the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

9. ‘Abuse’ in relation to a child, is defined in s 4 of the Act and means an assault (including a sexual assault) or involving a child in a sexual activity or causing the child to suffer serious psychological harm or serious neglect.

10. ‘Family violence’ is defined in s 4AB of the Act and means violent threatening or other behaviour that coerces or controls a member of the person’s family or causes that person to be fearful. Examples of such behaviour are set out in the section.

11. Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.

12. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. As this is an interim hearing the Court may decide that it is not appropriate to apply the presumption in the circumstances.

1. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

2. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

3. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination.[4]

   [4]Banks & Banks (2015) FLC 93-637

DISCUSSION

1. This matter has a long history and it is regrettable that the enormous pressures on the Court have prevented the allocation of a trial in this matter to date. Understandably the father feels a level of frustration at his time continuing to be supervised when, on his case, there is no need for supervision. I have no doubt that the requirement of supervision impedes the normal development of the father’s relationship with the child.

2. However, there are very serious issues raised in this case which possibly implicate the father in sexual abuse of the child; physical abuse of J, M and/or L; exposure of the child and the other children to family violence during his relationship with Ms E and exposure of the children to drug abuse. The only affidavit relied upon by the father in the hearing before me neglected to respond to any of these allegations raised against him. In particular, there was no evidence from him at all about the nature and circumstances of the recent injuries to J.

3. Interestingly, the father submitted that Ms F made a recommendation that he spend unsupervised time with the child. What the father failed to appreciate was that Ms F placed a number of significant caveats on such a scenario, none of which have been fulfilled at this point in time.

4. Accordingly, on the evidence before me I am not satisfied that proper protection can be afforded to the child were he to spend unsupervised time with the father at this time and I propose to dismiss his application.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 24 August 2017.

Associate: 

Date: