Fairley and Myers

[2017] FamCA 351

FAMILY COURT OF AUSTRALIA

FAIRLEY & MYERS [2017] FamCA 351

FAMILY LAW – CHILDREN – UNACCEPTABLE RISK – Determination of risk in interim proceedings – Failure to comply with court orders

Family Law Act 1975 (Cth) - s 62G(2)

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC ¶93-286

APPLICANT: Mr Fairley

RESPONDENT: Ms Myers

INDEPENDENT CHILDREN’S LAWYER: Jeanine Lloyd & Ass.

FILE NUMBER: CAC 297 of 2014

DATE DELIVERED: 25 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Moore as agent for Eden Legal & Conveyancing

SOLICITOR FOR THE RESPONDENT: Ms Milson-Mahy, Gabbedy Milson Lee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms J Lloyd

Orders

1. Order 6 of the Orders of 3 March 2017 made by Judge Neville, staying Orders 1 and 2 of the Orders made by Judge Neville on 15 February 2017 is discharged.

2. Orders 1 and 2 of the Orders made by Judge Neville on 15 February 2017 are discharged.

3. The mother is to return the child, B (the child), born … 2008, to the care of the father within 48 hours of the making of these Orders.

4. In the event that the mother fails to comply with the orders to return the child then the father and the Independent Children’s Lawyer are at liberty to list the matter at short notice for the issue of a Recovery Order directed to the return of the child.

IT IS NOTED THAT

1. The final orders of 6 June 2014 are operative and cover the arrangements for the child pending further determination of this matter.  They do not cater for the circumstance where the mother is not resident in the C Town region.

IT IS FURTHER ORDERED THAT

1. In the event that the parties are unable to reach agreement as to arrangements for the mother to spend time with the child in the event that the mother does not relocate to the C Town region then I grant leave for the matter to be relisted before me on 7 days’ notice for the resolution of that issue only. 

2. Pursuant to s 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and for that report to consider in particular:

   (a)The benefit to the child of having a meaningful relationship with both of the child’s parents;

   (b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence including an assessment of any such risk that the child may be exposed to and the impact both in the short term and long term in the event that the child is exposed to abuse, neglect or family violence;

   (c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :

   (i)Either of the child’s parents; or

   (ii)Any other child or other person (including a grandparent or other relative of the child including a sibling or step-sibling) with whom the child has/have been living;

   including an assessment of the nature of the child’s present and prospective attachments in terms of the orders sought by each of the parties;

   (d)The capacity of:

   (i)Each of the child’s parents; and

   (ii)Any other person (including any grandparent or other relative of the child)

   to provide for the needs of the child, including emotional and intellectual needs and any circumstances that may diminish that capacity by reason of physical disability, mental disability or risk of abuse;

   (e)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Family Consultant thinks are relevant;

   (f)If the child is an Aboriginal or Torres Strait Islander child:

   (i)The child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)The likely impact any proposed parenting order will have on that right:

   (g)The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents;

   (h)Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (i)Any other fact or circumstance that in the opinion of the Family Consultant is relevant.

3. The Family Consultant is granted leave to inspect all documents produced in these proceedings on subpoena.

4. The matter is listed for further directions on 18 August 2017 at 3:00pm for a period of one hour.

IT IS NOTED THAT

1. In the event that it has become necessary for an application to be made because the father has been incarcerated the parties are reminded of the content of Rule 5.2 of the Family Court Rules.

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 Fairley & Myers 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 CANBERRA

FILE NUMBER: CAC 297 of 2014

Mr Fairley

Applicant

And

Ms Myers

Respondent

REASONS FOR JUDGMENT

1. This case involves interim parenting arrangements for the child (born in 2008) who is the daughter of the parties.  Since July 2016 she has lived with her mother in Western Sydney and had almost no contact with either her father or her siblings, who live in the C Town region.  This has occurred in the face of final orders that provided that the child would live with her mother if her mother was living in the C Town region, but would otherwise live with her father.

2. Those previous orders were made on 6 June 2014.  At that time the child lived with her mother.  The child was then to live with her father from July 2014 until September 2014.  She was then due to live with her mother again provided her mother had secured accommodation for herself and the children in the C Town area.  The mother subsequently obtained accommodation and the child lived with her until April 2016.  At this point the mother left the C Town region and the child returned to live with her father until July 2016, although the mother sought to remove her in May 2016, albeit unsuccessfully.  In July 2016 the mother succeeded in removing the child and she has remained in the care of the mother since then. Following the mother’s removal of the child from the C Town area orders were made in the Local Court on 13 September 2016 for the child’s return.  Those orders were not complied with.  Further orders, including for a Recovery Order, were issued from the Federal Circuit Court at Canberra on 15 February 2017.  The Recovery Order was subsequently stayed on 22 February 2017 on Judge Neville being advised that an appeal had been lodged in respect of the Recovery Order.  That Recovery Order remains stayed pending further order.  However, no appeal has been instituted and the stay will be discharged.  This, however, leaves open the question of what will happen in respect of the Recovery Order.

3. The key issue raised by the mother is one of unacceptable risk, said to be posed by the parties’ son D (born in 2000) who lives with the father.  The risk asserted is one of potential sexual abuse of the child by D.  The evidence supportive of the assertion of risk flows primarily from hearsay material obtained by the mother from “Ms E” who is the former partner of the father.  Following the toxic end of her relationship with the father, Ms E produced a document, annexure A to the mother’s affidavit of 15 May 2017.  It is not clear what the purpose of this document was, nor its expected use.  In that document Ms E alleges that the child had told her that she had been touched by her brother, although no details were given as to the form of this touching.  The e-mail also records opportunities for D to have touched the child.  This material was supplemented by further hearsay material, this time without the support of an e-mail, wherein the mother asserted that Ms E had told her that the child had told her that she had been touched on her vagina, bum, mouth and boobs by her brother.  These assertions were not contained in the email.

4. It appears that from the raising of the allegation by Ms E in October 2015, or alternatively the raising of the allegation by Ms E’s daughter at about that time the father continued to spend time with the child.  This was stopped in December 2015 when the police took action in respect of the allegation against D.  The matter was investigated and in February 2016 the police advised that no further action would be taken.  Material from the investigation was produced at the interim hearing pursuant to subpoena.  The Independent Children’s Lawyer asserted that I could comfortably come to the conclusion that there was no unacceptable risk in respect of D, in particular due to this material. 

5. The most salient aspects of the material concerns discussions between the police and the child in January and February 2016.  It was recorded that the child told the police in January 2016 that her brother touches her “rude part”.  the child indicated her vaginal area and explained that it was “his foot” and that it was done with “clothes on”.  Subsequently, in February 2016, the child was further interviewed by the police and asserted “my brother touched me” but as to how or what had occurred explained “I forget”.  She went on to explain that no one had touched her vagina and that nobody had touched her bottom.

6. This material gives clarity to what was, or was not, asserted by the child.

7. Aside from the mother’s non-compliance with Court orders, resulting in the father spending no time with the child, and aside from issues of unacceptable risk, the further issues that arose on interim were, firstly as to the uncertainty in circumstances facing the father.  This matter arises as the father has been charged with criminal activity from 2011.  This is said to place him at risk of incarceration, rendering his ability to care for the child uncertain.  Whether he is likely to receive a jail term is uncertain.  He is facing what he describes as a disputed facts hearing on 7 August 2017 in relation to a guilty plea he has entered in respect of a 2011 incident.  The mother, who gave information to the police about the father’s involvement in the incident, and who the father states was also involved in the incident, agreed with the police that she was assisting them in order to assist herself in the “custody battle” with the husband.  The material presented fell short of showing a likelihood that the father will be incarcerated.  In any event, he is not before the criminal court again until August.

8. The second matter arising is as to the living circumstances of the child with her mother in Western Sydney.  There is almost nothing known about these circumstances, although significant questions about the mother’s care were raised by the affidavit of Ms F as long ago as September 2016.  Despite the proceedings having been on foot since August 2016, the mother had produced no material to explain to the Court what the child’s current circumstances are, in terms of accommodation, in terms of schooling and in terms of her care. 

9. The position of the parties is as follows:

10. The father seeks to have the current final orders which would result in the child living with him while the mother was not resident in the C Town district.  Should the mother return to the C Town district then the child would live primarily with her mother and spend substantial and significant time with her father. 

11. The mother’s position was that she and the child should remain living in Western Sydney.  On her proposal the child would spend the whole of each school holiday period with her father, along with all public holidays with her father.  The mother indicates that she would be prepared to transport the child for this purpose but sought that protective measures be in place such that D would not be left alone with the child, that neither of the parties would consume excessive alcohol or illicit drugs proximate to spend time with the children, that each would provide their contact details, that she would facilitate telephone calls between the child and the father each Monday, Wednesday and Friday at 6pm and that each would ensure that the child attends school on time.

12. These proceedings are interim proceedings in which the evidence is unable to be tested by cross-examination nor, it may be expected, even be presented in full.  As was noted in Goode & Goode[1], the circumstances are such that the proceedings are “significantly curtailed”.  That is, the nature of the proceedings themselves indicates that the Court should be cautious in making factual findings.[2] 

    [1]Goode & Goode (2006) FLC ¶93-286.

    [2]Goode & Goode (2006) FLC ¶93-286 [68].

13. In this case some matters have greater clarity then others.  The orders that were entered into by consent by the parties in 2014 entrusted each with the fulltime care for the child.  Each has, for significant periods, exercised the fulltime care of the child.  However, since July 2016 the mother has taken steps to remove the father from the child’s life.  She has been resistant to orders of the Court that sought to enforce the arrangement that was in place through the consent orders previously entered into.  This was done on the basis of an assertion of unacceptable risk being presented by D.  That is, the significance of a meaningful relationship between the father and the child, and for that matter the importance of the relationship between the siblings and the child, was displaced by what the mother asserts was a concern that the child was at unacceptable risk from her brother.

14. Notwithstanding the limitations that apply in these interim proceedings, the Court is obliged to apply both the legislative pathway and the statutory considerations to determine what is in the child’s best interests pending the final resolution of the case.  While noting their restrictions in terms of dealing with the evidence on the interim basis, the Court is still obliged to give consideration, where it is appropriate, to questions of risk.  The Court is neither bound to accept that a risk exists because it is asserted, nor to reject an assertion of risk merely because the evidence that supports it is not yet able to be tested.  As was said in Deiter[3]

    In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

    [3]Deiter & Deiter [2011] FamCAFC 82 [61].

15. Bearing in mind both the need to assess risk, and the caution called for at an interim stage of the proceedings in terms of factual assessment, the question of unacceptable risk in this instance requires careful scrutiny. 

16. Firstly, the assertion as to risk is reliant upon hearsay material, the nature of which has been described earlier.  Acknowledging that the prohibition in relation to hearsay material is not operative in these proceedings, it is still of assistance in the assessment of the material to note not only that it is hearsay, but that it is apparently produced by a person hostile to one of the parties, for unknown reasons, in unknown circumstances.  The e-mail said to be authored by “Ms E” asserts touching but does so in such terms as to require significant speculation to find an unacceptable risk.

17. The second assertion attributed to Ms E, again hearsay, does not have the support of an e-mail as to its terms and again comes in unexplained circumstances.  It is particularly troubling that the second set of matters attributed to Ms E are inconsistent with the e-mail (in the sense that they assert matters not contained within the e-mail and which might be expected to be contained in the e-mail if they were known to her at the time).  While these criticisms do not, at this stage of the proceedings, call for a wholesale dismissal of those matters that were attributed to Ms E, further matters mean that when seen in combination, the concerns expressed in relation to D do not rise to the level of unacceptable risk. 

18. In particular, while also hearsay material, the discussions between the child and the New South Wales (NSW) police service is in the context of investigation and the preparation of official records which gives it a different character to what was recorded from Ms E.  The direct assertions recorded there from the child not only failed to raise the matter to the level of unacceptable risk, but conflict with what was raised by Ms E in her conversation with the mother, and further undermine the drawing of conclusions as to there being risk from the content of the email. That is, the denials of touching and the assertions of being touched by a foot while clothed undermine the notion of a sexualised touching of the child. 

19. The third matter that falls for consideration is that the mother left the child in the father’s care for a number of months after the matters were first raised about D and after the police had finalised the investigation.  This speaks strongly to the proposition that the concerns expressed by the mother are not genuine. 

20. On balance, with particular reliance upon the material produced by the NSW police and upon the mother’s apparent acceptance that there was no risk through her conduct in leaving the child with the father, I find that there is no open question of unacceptable risk presented to the child by D. 

21. This however does not resolve the issue of what is to occur in the interim.  Each of the parties presents a position where both should be able to spend substantial and significant time with the child, the father by virtue of the ongoing operation of final orders, the mother by virtue of her proposal for the father spending time with the child.

22. The current final orders provide for equal shared parental responsibility.  Given that the parties are currently living far apart, there is no reasonably practicable option for equal time.

23. The mother’s conduct in her removal of the child and her resistance to Court orders give no confidence that the mother will in truth promote a relationship between the child and her father if the child is to remain in her care, particularly if she is to remain in Western Sydney.  There can be no confidence that the mother will be compliant with Court orders. 

24. Whereas shortly before relocating to Western Sydney the mother had entrusted the child to the father’s care, from which it may be inferred that she understood that his care would be sufficient for the child, the absence of any detail provided by her as to the child’s living arrangements in Western Sydney leaves no confidence as to their appropriateness. 

25. These two factors tell against the mother’s proposal in respect of substantial and significant time for the father while the child remains with the mother in Western Sydney.

26. Under circumstances where the evidence is not of a quality to leave as live the question of D as posing a potential unacceptable risk to the child, where the living arrangements for the child if she were to remain in Western Sydney are unknown, where there can be no confidence that the mother will comply with Court orders, where the living arrangements with the father (including with D) were sufficient as to cause the mother to leave the child with the father on her first relocation to Sydney and where there are final orders in place that provide that proper time can be spent by each of the parents with the child should the mother be resident in the C Town region I propose to accede to the father’s request that the current final orders dictate the arrangements for the child, on the basis that they are in the child’s best interest.

1. The mother asserted during the interim hearing of these proceedings that if a determination was to be made that the child would return to her father that no Recovery Order would be necessary to affect this.  This will certainly be the preferable manner of managing the child’s return to her father.  Involvement of the police is highly undesirable.  However, should there be a failure to comply with the terms of these orders then a Recovery Order may issue at short notice to enforce them.

2. One of the deficiencies of the current orders is that they do not cater for the mother spending time with the child where the mother is not also resident in the C Town region.  Her time with the child should not be predicated upon her living in the C Town region.  If the parties are unable to resolve by consent reasonable arrangements for the mother to spend time with the child in the event that she does not relocate to the C Town region then the matter may be listed at short notice before me to define those arrangements. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 25 May 2017.

Associate: 

Date:  25 May 2017