Ferreira and Ferreira

[2016] FamCA 1000

FAMILY COURT OF AUSTRALIA

FERREIRA & FERREIRA [2016] FamCA 1000

FAMILY LAW – CHILDREN – Interim Proceedings – Where an application is made to extend time with children – Where allegations of abuse have been made – Where risk cannot be adequately assessed on an interim basis – Where application dismissed

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 92-286

W & W (2005) FLC 93 235

APPLICANT: Mr Ferreira

RESPONDENT: Ms Ferreira

INDEPENDENT CHILDREN’S LAWYER: Ms Campbell

FILE NUMBER: LEC 538 of 2015

DATE DELIVERED: 16 November 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 16 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance

SOLICITOR FOR THE RESPONDENT: Ms Hiles

Orders

1. The Application in a Case filed by the Applicant Father on 28 October 2016 is dismissed.

2. The matter is relisted for 9am on Friday 18 November 2016 for further directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferreira & Ferreira 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 CANBERRA

FILE NUMBER: LEC 538 of 2015

Mr Ferreira

Applicant

And

Ms Ferreira

Respondent

REASONS FOR JUDGMENT

1. The background to this matter is that these proceedings follow the breakdown of the marriage between the parties and involve a four year old and two six year old children.  The circumstances involved an allegation of abuse and a suspicion of sexual abuse directed on the part of the father both to the children of the relationship and to an older child of the wife.  The behaviour alleged against the father is denied and has resulted in a period of time in which the father has not seen his children.  However, he has now been having supervised time with the children for some time, albeit the supervision being loose at present.

2. The contest before me involved the father and independent children’s lawyer seeking orders that would mean that the father would have overnight time with his children and also school holiday time in B Town with a changeover to occur in C Town, which is halfway between B Town and Canberra, where the children are living.  In terms of supervision, he sought that another person would be present as nominated by himself, provided they meet particular requirements or, alternatively, that another person be generally present as agreed between the parties.

3. The mother resists such a change. At present she seeks the retention of the fortnightly arrangement that is in place. This arrangement means that once a fortnight the father sees the children both on a Saturday and a Sunday alternating between Canberra one weekend and B Town on the weekend of the next fortnight.  This requires the father to undergo significant travel as he lives in D Town, which was common to the parties as approximately a 14 hour drive away. 

4. The father denies having sexually abused the children and raises, along with the independent children’s lawyer, a serious question as to whether or not there is any veracity to the mother’s claim.  He asserts that there is no unacceptable risk and that the children would benefit from a meaningful relationship with him and, supported by the independent children’s lawyer, asserts that the more natural time that would occur overnight would be beneficial to the children.  He says that the current regime is difficult to maintain because of the extensive travel and because it is also difficult to find supervisors who can make day trips to Canberra with him.

5. It was urged for him and by the independent children’s lawyer that a change in the regime would place an imperative on the father to be diligent so that he might avoid a risk of further claims being made against him of sexual abuse by the mother.  The independent children’s lawyer asserted that there is not currently sufficient time with the father and that this bears a risk that the children may be becoming entrenched in views of the father that do not accurately reflect what has occurred.  She, in particular, urged that there was a benefit to the children having more meaningful time with the father in advance of the preparation of the family report which is due to take place early next year. 

6. In particular, the independent children’s lawyer centred her argument upon a discounting of the veracity of the mother’s concerns or claims.  For the mother it was put that I should follow the law as set out in Goode & Goode in relation to the resolution of interim proceedings.[1]  I accept that is so.  It was further put for the mother that the concept of unacceptable risk plays no part in interim proceedings on the basis that the concept of unacceptable risk requires a finding on the balance of probabilities of risk.  It was said that that was an outcome that was not available in the circumscribed circumstances of an interim hearing.  I do not accept that the concept of unacceptable risk has no role. 

   [1] Goode & Goode (2006) FLC 92-286.

7. Properly understood, for example, from cases such as W & W,[2] (this case involved abuse allegations and considered unacceptable risk), it can be understood that unacceptable risk is a concept by which the court describes a process of reasoning towards best interests by a balancing of what are now the primary considerations, that is, a risk to the child – a risk of detriment caused by sexual abuse versus the possible benefit to the child of parental access.  In the context of an interim determination this is a part of the consideration of the 60CC factors as identified in Goode.[3] 

   [2] W & W (2005) FLC 93 235 at [79] 907.

   [3] Goode & Goode (2006) FLC 92-286.

8. It was correctly put for the mother that in applying Goode it is not simply a question of asking why the time should not be extended from the current Saturday and Sunday.  The question of what ought to occur requires a consideration of the 60CC factors.  In doing so I note firstly that there appears to be no order in relation to parental responsibility and no order in relation to equal shared parental responsibility.  The nature of the schism between the parties in this contest and the interim character of the proceedings mean that I consider that it is not appropriate to apply the presumption at this stage. 

9. Given the circumstances of the limited time that the father has spent with the children and the distance between the parties, even if I made an order for equal shared parental responsibility neither equal time with the children nor substantial and significant time is practicable or in the children’s best interests.  Neither of those outcomes are sought by any of the parties.  As the 60CC factors are the primary considerations that constitute the grounds upon which the application was argued, it is fair to say that in this case an assessment of best interests can be made by focusing primarily upon these primary considerations. 

10. The issues in dispute are therefore the risk of harm to the children and the potential benefit to the children of the change in regime.  In this case, agreed or uncontested facts do not answer the question of risk.  It is very much an issue in dispute, the resolution of which will require substantive consideration and resolution at a final hearing.  I cannot ultimately resolve those matters here.  However, they still require consideration at an interim hearing even if the same degree of resolution is not possible at this stage.  The determination of what is needed to protect the children as expressed in the primary consideration in 60CC is here shaped by the very nature of the interim proceedings. 

11. The uncertainty which attaches to factual matters in this contest at an interim hearing bears upon what order ought to be made to protect.  That is, the protective considerations set out in the Act requires an acknowledgement that the fact of uncertainty may require interim orders of greater protective width than orders following a final hearing, when greater factual certainty will be possible.  This potential requirement for greater width due to uncertainty is reinforced by the operation of section 60CC(2A) that obliges a court to give greater weight to the protective consideration. 

12. I turn then to a consideration of the factual matters before me.  The material relied upon by the mother constituted two affidavits:  one of 1 April 2016 and one of 8 November 2016.  In short, that material asserted that the mother had left the relationship because of behaviour directed towards her and possible sexual abuse of E and F. A specific example that the mother raised to support the contention of sexual abuse was that she alleged that the father retained E in a bath for longer than was required and gave the explanation, “She just likes to play a little longer.” 

13. The mother was concerned that E was being retained for that longer period.  Further, she directed attention to the girls when she bathed them, sitting in a bath with their legs wide apart and explained to her that they did that because “That’s how daddy bathes us.”  The mother pointed to what she regarded as the sexual application of nappy cream upon the girls.  She pointed to occasions in 2014 where she says that she woke to hear the girls screaming in their bedroom only to find the husband leaving the bedroom as she arrived. 

14. She pointed to F rubbing her vagina in both 2013 and 2014, E exposing and touching her vagina and deposes that it was clear in her mind that the husband was sexually abusing the girls.  The girls made no disclosure when interviewed by the police. 

15. She further directed attention to a particular way one of the girls was sitting on the toilet touching her vagina and the explanation offered by that girl that “Daddy likes it when I sit on the toilet like this, that his legs shake and he says ‘Do it again.’”  I attribute no specific meaning to that assertion.  It is difficult to draw from that any adverse inference directed towards the father. 

16. The mother further points to F having been alleged to have made disclosures to a teacher about being touched on her vagina at 10 September 2015 and kissed by the father with his mouth open.  I have been directed to no primary material recording this assertion to a teacher.

17. It was further put that in September 2015 F disclosed that daddy kisses her with his mouth open.

18. The mother deposed that she was suspicious that the husband had sexually abused her son G and had drugged her and her son to do so.  If her evidence of the drugging aspect of this matter is accepted then there is a reasonable basis to assert that she was drugged.  Notwithstanding that, the assertion that G was sexually abused appears highly speculative.  There is no record of G – or no record before me of G asserting any such abuse. 

19. The mother further reported the father has been controlling, threatening and aggressive, having previously been a drug user and having inflicted harm upon animals.  Again the issue of harm to animals was highly speculative and even accepting the mother’s case at its highest did not raise a reasonable question about whether the father had abused animals. 

20. In her more recent affidavit of November 2016 the mother described what had occurred in relation to visits between the father and the children, in particular what had occurred since there was no longer professional supervision from 17 August 2016.  A description of the handovers were reasonably unremarkable with little problem occurring between the parties.  The mother did, however, raise issues in the girls’ behaviour following time with their father.  She asserts a reversion to sexualised conduct on the part of the girls. 

21. After the first visit this caused her to take them to the Canberra Hospital for assessment.  E reportedly told her that she had lied and that daddy did not touch E’s bottom.  There were further incidents of the girls touching each other and the mother asserted some correlation in degree and frequency with the girls commencing to see their father.  She had further contact with Care and Protection alleging another incident in August of E touching F’s private parts. 

22. The material relied upon by the father was constituted by affidavit material from him of 5 April 2016 and 24 October 2016, along with affidavits of Ms H and Ms I who had offered to supervise time.  The father denied sexually abusing the children and asserted that the mother may be suffering from paranoia.  He asserted that he had significant involvement as a father.  He answered the bathing allegations, the nappy cream allegations, the allegations regarding going to the children’s bedroom and the removal of their nappies, the allegations about cruelty to animals, or killing of animals, and how it was that he became aware of the allegation and how that was first raised with him.  He denied the open mouth kissing. He made partial admissions to historic illicit drug use, deposed to the difficulties he had in funding time with the children.  He annexed reports from the professionally supervised visits, which were positive about the time with the children.

23. In his later affidavit, he deposed to difficulty again in funding visits, difficulty finding supervisors.  The independent children’s lawyer relied upon various subpoenaed material tendered in the case.  Exhibit ICL2 was subpoenaed material from J Primary School, reporting initially, that the girls were happy and progressing well.  There was nothing that could be drawn from that material that was capable of providing assistance at an interim hearing.  Those records also recorded the mother’s assertion of sexualised conduct, that is, of E pinning F to the ground and forcing her legs apart and E touching her vagina, or her own vagina.

24. This material had potential to go to, but was inconclusive, whether or not some sort of sexual conduct had been performed in relation to the girls.  It was unclear whether this supported or undermined the question of risk. Exhibit ICL3 was a subpoena to the ACT Police regarding the mother’s concerns that she was being followed at October 2015.  Potentially, this had relevance to the mother’s credibility or reliability.  There was no mechanism by which the veracity of her claims to the police could be assessed.  Again, it was not a matter which advanced the case at an interim hearing.

25. Exhibit ICL4 was a subpoena addressed to the Queanbeyan Super Clinic which comprised records of a psychiatric assessment of the mother and psychological consultations with the mother in respect of depression, anxiety and stress, apparently in relation to a work related claim.  At best, these matters may bear upon credibility or reliability of the mother or her capacity to parent, but as it stands at present, they do not have the capacity to allow any conclusions to be drawn at an interim level.  ICL5 was a subpoena to Child and Youth Protection Services detailing various reports and conduct that maybe of significance at the final hearing, but at present, lack the context and analysis to enable consideration.  They have limited scope to assist in the context of interim proceedings.

26. I turn then to an assessment of the matters.  It can be seen that the issue of risk is very much disputed and constitutes the matter most important to consider in terms of primary considerations.  The matter resolves to three questions.  To what extent, considering the inability of the Court to test the material at this stage, does a requirement to protect the children arise?  Secondly, the question of to what extent is any requirement to protect answered by the terms of the proposal made by the father, and thirdly, the question of to what extent are the children benefited by the proposal made by the father?

27. Accepting the mother’s description, but not her analysis of incidents, at its highest and doing so in order to cater for the inherent limitations placed upon the Court in the interim hearing, an issue of sexualised behaviour arises.  However, turning then to the connection to possible sexual abuse, I am left in a position where it is unclear whether or not sexual abuse might have occurred.  It is potentially arguable that it has occurred.  Absent expert material as to the significance of the matters that are raised, it is difficult to determine whether or not the mother’s case is merely speculative or it is substantive.

28. In terms of connection of any such matter to the father, again, there is a lack of clarity.  The incidents identified to sheet home responsibility to the father are, at best, ambiguous, in the sense that they appear at face value to be consistent with innocent explanation.  This lack of clarity of the inability to resolve, on balance calls for a degree of caution that reflects that current lack of clarity and uncertainty, that is, it requires that orders operate protectively of the children, that is, to protect from potential risk of sexual abuse by the father.  This does not equate to a finding of abuse, but of uncertainty as to whether or not there is risk.

29. Turning then to the question of what protection is offered by the father’s proposal, his proposal focused on an increase in time to include overnight.   No party seeks a discharge of the current orders.  He puts forward protections that the time would occur in the grandmother’s or the aunt’s home and they would be generally present, or another agreed third party would be generally present.  The term “generally present” is so redolent with uncertainty as to be meaningless as a protection in the context of overnight extension of time.  If the risk is substantive, rather than speculative, which is a matter that cannot be determined now, then the proposed arrangement is insufficient to meet the protective requirements of an extension to overnight time as sought, and even more so regarding school holidays.

30. Further, on the question of benefit, the mother raises the issue of deterioration of the children’s conduct.  Again, I am unable to assess whether or not she is right or wrong about that deterioration and about whether the girls’ behaviour is a sexualised conduct that is causally related to their time with their father.  At the same time, it is unclear the degree of benefit that all three of the children would receive in an increase in time to overnight.  It would certainly be more practicable if there was the increase in time, but the benefit is not apparent.  What this means is, in a context where I have determined that there is sufficient uncertainty regarding risk to require protection, a sufficiently counteracting case to establish benefit from the orders sought is not made out. 

31. That is, in considering the balance set out in W & W,[4] there is no sufficiently counteracting factor against the risk that I have identified.  Accordingly, the risk of the proposed change is unacceptable and I find it is not in the best interests of the children at this stage, and I dismiss the application for the extension of the Father’s time with the children. 

    [4] W & W (2005) FLC 93 235.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 16 November 2016.

Associate: 

Date: