Garrison and Garrison

[2009] FamCA 303

FAMILY COURT OF AUSTRALIA

GARRISON & GARRISON [2009] FamCA 303

FAMILY LAW – CHILDREN – interim

Family Law Act 1975 (Cth)
APPLICANT:	Ms Garrison

RESPONDENT: Mr Garrison

INDEPENDENT CHILDREN’S LAWYER: O’Reilly Stevens Bovey Lawyers

FILE NUMBER: CSC 104 of 2008

DATE DELIVERED: 24 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 27 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jacobs

SOLICITOR FOR THE APPLICANT: The Law Office

COUNSEL FOR THE RESPONDENT: Ms Pearson

SOLICITOR FOR THE RESPONDENT: Cope Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wilson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: O’Reilly Stevens Bovey Lawyers

Orders

1. The mother’s Application in a Case filed 27 February 2009 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 104 of 2008

MS GARRISON

Applicant

And

MR GARRISON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The mother has asked me to discharge the current interim orders so that no interim contact take place.  B born … January 2005 and N born … August 2007 are currently seeing their father for one hour a week on a supervised basis at a contact centre. 

2. The current order has been in place since 26 March 2008.

3. The substantive hearing of this application is set to take place over a five day period commencing 17 August 2009. 

4. Consequently the interim application I am dealing with relates to what should happen between now and then. 

5. By consent, on 27 March 2009 I made other orders and directions to prepare the matter for trial. 

6. The parties had otherwise agreed to a set of orders primarily relating to future assessment of each of the parents and future therapeutic intervention.

7. There are already in place orders that the children live with their mother and that she have sole parental responsibility.

DOCUMENTS READ

1. I have been asked to read the following documents:-

   8.1.A copy of a report by family consultant Ms K dated 23 June 2008.

   8.2.The affidavit of the mother sworn 26 February 2009 and filed 27 February 2009.

   8.3.Affidavit of Mr R sworn and filed 24 March 2009.

   8.4.A 28 page case outline prepared by Mr Jacobs on behalf of the mother.

   8.5.A three page summary of case prepared by Ms Pearson on behalf of the father.

   8.6.A 23 page case outline prepared by the Independent Children's Lawyer dated 26 March 2009.

2. In addition, the applicant provided a tender bundle of 20 documents.  Initially counsel for the applicant indicated that he did not press reading documents 5, 9, 11, 14 and 15 but then indicated that he wished that I read them all.  Ms Pearson on behalf of the father opposed me reading the documents on the basis that their prejudicial value would outweigh their probative value.  Having read the documents, I do not accept that submission and I will allow the whole of the tender bundle to be before me for the purposes of this interim hearing.

APPLICATIONS

1. The sole issue that I need to decide on an interim basis is whether or not the children continue to spend supervised time with their father for one hour every week at the Contact Centre.

2. As I have said, the mother seeks an order discharging the current order that allows that to happen.  The respondent and the Independent Children's Lawyer both seek that that order remain in place until the final hearing.

3. The current interim order was made on 26 March 2008 and the children have been seeing their father at the Contact Centre pursuant to that order since 24 May 2008.

CONTACT TO DATE

1. On 26 March 2008 following an interim hearing in Cairns Carmody J made orders and directions providing, inter alia, for the appointment of both an Independent Children’s Lawyer and a Family Consultant (Ms M). Direction 14 was in the following terms:

   “That Ms [M] consult with the Independent Children’s Lawyer, once appointed, and if it is considered there is no risk of relevant harm to any of the children supervised contact to commence on a date and under arrangements stipulated by the Independent Children’s Lawyer.”

2. On 2 May 2008 the Independent Children’s Lawyer wrote to the parties advising that the “current thinking is that the father could spend supervised time with the children through the […] Contact Centre.” The first such visit occurred on Saturday 24 May 2008 for a period of one hour, during which the mother remained in a separate room at the Contact Centre for the purpose of being available in case N became distressed and wished to be returned to her. Further visits occurred on 31 May 2008 and 7 June 2008.

3. In June 2008 the mother became aware as a result of watching a news broadcast that the father had been arrested and charged on the basis of a Victorian warrant for a sexual offence. The warrant related to sexual abuse of the father’s child from a previous relationship. The nature of the abuse and its impact on my consideration of the present application, as well as the nature and impact of further allegations of abuse regarding the child B, will be discussed below. The day after viewing the broadcast the mother telephoned the Contact Centre and inquired whether, in light of the father having been charged with a criminal offence, she was still required to make the children available for the scheduled contact visit on Saturday 14 June 2008. At para 20 of her affidavit filed 27 February 2009, the mother states that she was subsequently advised by a representative of the Contact Centre that the father’s contact visits with the children would be rescheduled to Fridays “in the best interests of the other children.”

4. Following communication between the Contact Centre, the father’s solicitors, the mother’s solicitors and the Independent Children’s Lawyer, the father’s contact visits with the children were rescheduled to Friday afternoons. Contact subsequently took place on 20 June 2008 and every Friday thereafter with the exception of 18 July 2008 (visit cancelled by mother due to Cairns Show Holiday), 3 October 2008 (visit cancelled by mother due to her taking the children on a holiday), 26 December 2008 (Contact Centre closed due to public holiday) and 6 February 2009 (visit cancelled due to father’s involvement in proceedings in Victoria County Court).

PRIOR SEXUAL ABUSE MATTER

1. One matter of significance to these interim proceedings is that the father has pleaded guilty to an offence in relation to the child E Garrison; a child of the father from a previous relationship.  That offence, for which the father was sentenced by in Victoria County Court early in 2009, was one of wilfully committing an indecent act with or in the presence of E, a child under the age of 16, between 1 June 2002 and 30 September 2002.

2. Counsel for the father indicates that it is not the father’s desire for these matters to be re-litigated.  For reasons which will become obvious, some revisiting of the circumstances surrounding this abuse will be necessary at the final hearing. 

3. The father commenced a relationship with E’s mother Ms L in 1996. E was born in January 1999. During the period specified on the indictment (1 June 2002 to 30 September 2002) the father was residing with Ms L and E at premises in Victoria.

4. The factual matrix upon which the County Court Judge was asked to sentence the father consisted simply of an assertion that there had been an occasion on which the father and E had both been naked and that on that occasion the father’s penis came into contact with E’s anus. Consequently the father’s conviction for the offence did not entail any finding of penile or digital penetration. In an affidavit sworn 19 March 2009 Ms H, the solicitor who acted for the father in the criminal proceedings in Victoria, states at para 7 that “[t]he allegations were in such circumspect, benign form that the Judge queried whether the allegations amounted to an offence” (this affidavit forms annexure PRC2 of the affidavit of Patricia Cope filed 23 March 2009). Ms H states at para 8 that the Crown pointed to the fact of the father’s guilty plea as an indicator of the indecency of the conduct.

5. However, the tender bundle provided by the applicant contains material that discloses a far more detailed history than that upon which the father was sentenced by the County Court Judge. In particular, the Victorian Police CPS Case Record Summary Report (document 2 of the tender bundle) summarises the contact that took place between Ms L and E and the Police in relation to the disclosure of alleged sexual abuse by the father. On 18 November 2002 Ms L attended the police station and informed an officer that E had disclosed to her that the father made him “angry when he touches my doodle and arse all the time.” She also stated that E had said to her that the father pulls his pants down and touches him, forces him to use his little finger to touch him, that “Daddy said to lick his doodle,” and that “Daddy’s going to make me die.” On 22 November 2002 Ms L again attended the police station, this time bringing E with her. According to the Report, E “was very receptive to talking in general, but became angry when the conversation was steered towards [the father], or as he calls him ‘[D].’ Apparently E refers to him as Dad except when he is talking about the alleged abuse, in which case he refers to him as ‘[D]’ or ‘[DD].’” A further appointment took place on 28 January 2003. On that occasion, E was asked why he had come to the police station that day, to which he replied “I don’t want Daddy to play bums and doodles any more.” The Report notes further that E “also said that Dad (also ‘[D]’) puts his ‘doodle near my arse and shakes it around,’ he ‘put it (doodle) in my arse’ and stuff comes out of his doodle and onto the floor.”

6. As a result of the disclosures made by E during the interview on 28 January 2003 an appointment was made for him to undergo a medical examination to ascertain the presence of any signs of sexual abuse. Dr W examined E on 5 February 2003. Dr W states at page 2 of his report (document 3 of the tender bundle) that upon examining E he discovered no abnormalities. He states that when “examining his anus I asked [E] if anyone had touched him around his bottom. He said ‘Dad put it in.’” Dr W concluded his report with the following opinion: “On the history reported to me it is highly likely that this child has been sexually molested. The absence of any physical abnormalities does not rule out the possibility of sexual abuse.”

7. Document 5 of the tender bundle is a transcript of an interview that took place between E and Senior Constable C on 3 April 2008. At that time E was nine years old. At page 3 of the transcript E discloses that his father had sexually abused him. He particularises the allegation in the following terms:

   “Well, like, he was making me play a game called bums and doodles.

   Okay. Tell me all about that game.

   Well, it’s where you had to strip your clothes off and jump around and run around and jump off the bed and roll around like a monkey on the floor and…ooh, ooh, aah, aah, swinging around the room naked…and stuff and we had to jump off the bed and roll around and chase after each other and stuff.

   And what did you think of that game?

   I thought it was bad and I tried to get away, ’cos it was a bad game but he kept on forcing me and he was threatening to make me get into trouble for no reason.

   …

   I do remember how he – you had to grab each other and – and you had to grab each other and squeeze each other tight and stuff.

   Okay. Whereabouts did you grab each other?

   Well, I didn’t grab him, but he grabbed me. He grabbed me around the waist and pulled me to him and put his doodle in my bum.”  

8. E states that during these games:

   “I tried to get away, but every time I went to get dressed in my clothes and run, he used to always keep an eye on me, and I didn’t get a chance and he used to make me do it and I didn’t get a chance to get in my clothes in time.”

9. This occurred “about 4 or 5 times.”  E states further that on other occasions the father came into his room in the morning while he was still in bed and “was doing the bums and doodles game again and pushing me on the floor and trying to hump me and stuff.” This involved the father “putting his doodle against my butt.” The father “kept on squeezing me tighter” and his doodle “went [sic] the surface of my bum or sometimes it went in my bum…it mostly was in my bum.”

10. Document 14 in the tender bundle is an interoffice memorandum from the Crown Prosecutor briefed to appear in the father’s trial to the Director of Public Prosecutions dated 20 November 2008. The memo notes that:

    “The child first complained about a sexual act to his mother and her aunt in early 2002. The child said at the time that ‘Daddy said to lick his doodle.’ The accused was also in the car and turned to the complainant and said, ‘No I didn’t.’ The complainant replied, ‘Yes you did.’ The accused then smacked the complainant and told him never to say that again.”

11. The memo goes on to particularise the various disclosures of sexual abuse made by E leading up to the final hearing of the matter in February 2009. The essence of the memo is a recommendation by the Crown Prosecutor that the father be charged with the offence of maintaining a sexual relationship with a child under the age of 16 pursuant to s 47A of the Crimes Act 1958.

12. The fact of the father’s guilty plea and conviction for the offence of wilfully committing an indecent act in the presence of a child, viewed in light of the history of disclosures of what may be regarded as more serious abuse revealed by certain documents in the tender bundle, is clearly a matter that impacts upon my consideration of the mother’s application. Counsel for the mother submitted that the fact of the conviction is relevant for two reasons: firstly, because it will have a negative psychological effect on the children in the sense of their being conscious of having contact with a person convicted of a sexual offence upon a three year old, and secondly, because it will have a negative impact on the mother’s ability to parent in the sense of her having to facilitate her children’s contact with a person who has been so convicted. Counsel for the mother submitted that the single expert failed to take sufficient account of these two matters, and that therefore his conclusion as to the feasibility of the father continuing to have supervised contact with the children should not be accepted.

ALLEGED ABUSE OF THE CHILD B

1. The other important thing to consider on an interim basis, is the assertion that the father may have sexually abused B.

2. In her affidavit filed 27 February 2009 the mother relates several disclosures made by B in relation to alleged sexual abuse by the father. The father denies the truth of these allegations and they are consequently likely to be the subject of contest at the final hearing.  In the context of this interim application, I need to balance the short term risks arising from the current arrangements and arising from changing those arrangements in the way sought by the mother. 

THE REPORT OF THE SINGLE EXPERT

1. The report of the single expert, Mr R, dated 24 March 2009, deals with a number of matters relevant to the current application. Of particular interest are the portions of the report focusing on the subject of sexual abuse, including the offence in respect of which the father was convicted in Victoria as well as alleged abuse inflicted on B, as these are essentially the matters that counsel for the mother submits will have a negative psychological impact on the children and the mother should the current supervised contact arrangements remain in place.

2. The single expert conducted interviews with the father on 11 March 2009, 13 March 2009 and 23 March 2009. I note that counsel for the respondent indicated to me that the father did not view the upcoming hearing as an opportunity for the re-litigation of his sexual abuse of E, however the single expert notes the following at para 14 of his report:

   “[The father] said that he pleaded guilty to the indecent act charge and was placed on a six month prison sentence suspended for twelve months. He added that he ‘didn’t do anything with my son’ explaining that he agreed to plead guilty to the indecent act charge in order to avoid a possible ten year prison sentence. He said that he thought [E] had been coached into making allegations against him.”

3. Regardless of whether the above suggests a desire on the part of the father to re-litigate the allegations concerning E in the final hearing, at the very least his denial of the validity of the allegations subsequent to his conviction is troubling to the extent that it indicates an unwillingness to acknowledge the wrongfulness of his behaviour. However, the single expert notes at para 186 that “there is a current approach towards treating sex offenders regardless of their level of denial.” The single expert expresses the view that the father’s voluntary participation in such treatment could lower his risk of re-offending.

4. In relation to the order that the father satisfactorily engage in sex offender treatment with a qualified practitioner, the father has chosen to make that conditional upon that therapy being confidential and the order has been made in that context, notwithstanding the court pointing out to counsel for the father the possible ramification at the final hearing in the father adopting that position.  The effect of the order made is that both the father and the therapist can proceed on the basis that the father’s sessions with the therapist are confidential.

5. In a similar vein to the response quoted above, father’s response to the allegations concerning B is noted at para 29 of the report as “absolute bull shit; I think that [B] has been coached.” At para 147, the single expert states that “[the father’s] flat denials of committing the offences against [E] and [B] were concerning in that there was evidence to the contrary. In fact it appeared from the evidence that both children had made statements to several different people over different time periods and these statements had been consistent.”

6. The single expert observed the mother playing with the children on 11 March 2009. At paras 156-158 of his report the single expert notes that the mother interacted closely with the children, was calm and relaxed, and that the children appeared to enjoy her company and were attached to her. He notes that he has no concerns regarding his observations of the contact between the mother and the children.

7. The single expert observed the father interacting with the children on 20 March 2009. Whilst there is a small negative comment at para 159 (that the father seemed more distracted by B’s demands and there was “a short period of time when [N] seemed somewhat lost as he stared vacantly while [the father] seemed preoccupied with [B’s] activities” which did not last long), the single expert says that he has no concerns regarding the father’s interaction with the children. He observed that B called the father “Daddy” and did not display any discomfort being in his close proximity. He observed that N sought affection from the father which was provided appropriately.

8. The issue of the likely impact of possible future contact arrangements on both the father and the mother is discussed in detail by the single expert. He recounts at para 162 the mother’s view that:

   “[The father] should not be permitted to spend any time with the children on the basis that he ‘doesn’t deserve to be a father.’ She commented on the injustice and her level of discomfort she had in taking the children to spend supervised time with [the father]. ‘I have to take my child ([B]) to the man that violated him’ she said.”

1. At para 164 the single expert notes that in response to the possibility of supervised contact continuing, the mother stated “I’ll have to do it cause otherwise I’ll be in breach.” However, at para 165 she expresses the view that such contact would have a negative impact on the children: “They’re lost. They’ll learn to be cheats; he smokes; he drinks; he swears…There’s nothing to stop him running out of the door with those children.” From these comments, the single expert forms the view that “[the mother] would abide by court orders in relation to [the father’s] spending time with the children but she would continue to feel very anxious and concerned regarding their safety while in his care.”

2. Regarding the possibility of unsupervised contact, the single expert notes at para 166 the mother’s view that “my children will just be thrown to the wolves.” The mother expressed concern at the father’s failure to obtain treatment, and stated that should unsupervised contact arrangements be put in place, she didn’t “know how I’ll cope. I have to be there for my two little boys.”

3. The conclusion reached by the single expert in relation to the impact on the mother’s parenting ability of having to persist in facilitating supervised contact between the children and the father is summarised in para 189 of his report:

   “There was [sic] some questions regarding [the mother’s] ability to cope personally with the impact of having to allow the children to spend unsupervised time with [the father]. There was evidence of her sound parenting ability and at present she was ‘putting on a brave face’ and she was having counselling in relation to this issue. It was my opinion that [the mother] would see it as her duty to continue to provide good quality care of the children if the supervised time with [the father] continued.”

4. The father’s attitude towards the various possibilities for contact is discussed at paras 169-170. The single expert notes the father’s view towards the cessation of contact as being one of dissatisfaction: “I’ll try to appeal.” Regarding the continuation of supervised contact, the father expresses the opinion that “it’s better than nothing.” Should the court consider it appropriate to establish a regime for unsupervised contact, the father stated that he would “get myself a place; make a decent environment;” however he also expressed concern as to the effect of his status as a convicted sex offender: “I’d be happy to do that but I’d be worried about further allegations.”

5. For the purposes of this interim application the most relevant aspects of the single expert’s findings in relation to the father concern the question of the potential danger (both physical and psychological) to the children of having to continue to spend supervised time with him. The single expert expresses the opinion at para 189 of his report that the father is at low risk for sexual re-offending with B and N. He states his view that:

   “[B] and [N] were gaining something from spending time with [the father] and I considered that they would continue to gain if allowed to spend supervised time with him. They were at present not capable of protecting themselves from sexual abuse if it occurred, hence the need for continued supervision of [the father’s] time with them.”

6. The single expert also recommends against ceasing contact altogether: “I considered it likely that [B] and [N] would forget [the father] in time. They could have difficulty re-establishing a relationship with him in later life.”

7. It is clear from the level of detail contained in the single expert’s report, the amount of written material and physical observation that informed his conclusions and the breadth of issues to which he turned his mind that he gave sufficient consideration to the potential impact upon the children and the mother of having to continue to abide by supervised contact arrangements. In no way can his opinion be regarded as overwhelmingly in favour of the continuation of supervised contact; in fact, he implicitly acknowledges the seriousness of the father’s conviction and recommends that he undertake appropriate sex offender treatment as a means of further reducing his risk of re-offending. He makes an express recommendation against unsupervised contact. He regards the cessation of contact as being likely to result in the children forgetting the father and making it more difficult for them to re-establish a relationship with him later in life. All of these factors suggest that the best interests of the children, obviously encompassing a desire to protect them from all forms of potential abuse (including sexual and psychological), were at the forefront of the single expert’s mind when he considered the advantages and disadvantages of the various alternatives open to the court. His observation of the father’s good interaction with the children, together with their apparent ease in his company, would have supported his conclusions.

8. I do not think that the single expert failed to pay sufficient regard to the possibility of the children suffering psychological damage by virtue of having to have supervised contact with their father, notwithstanding the offence with which he has been convicted and the matters of which he has been accused.  There is a low risk that either B or N are aware of the father’s conviction given their young age and I do not place great weight upon the submission  made by counsel for the mother about that.  The court order prohibiting matters of sexual abuse from being raised with them remains in place.  Most, if not all, of the current physical risks associated with having contact with the father are mitigated by that contact taking place in the controlled environment of the contact centre.  I am confident any inappropriate actions or comments made by the father in that context would be noted by contact centre staff and that they would take appropriate action.  It seems common ground that the contact centre notes do not detail any negative incident between the father and the children.  The single expert does not say there is an unacceptable psychological risk to B of a continuation of the current arrangements in the short term. 

9. In terms of the potential risks to the mother associated with the continuation of supervised contact, it is clear from the single expert’s report that he gave sufficient consideration to this issue. He noted the mother’s attitude towards the father and her views that he constitutes a danger to her children, and acknowledged that “there was evidence that [the mother’s] mental health had been somewhat compromised by the ongoing supervised arrangements. There was also evidence that [the mother’s] coping ability was limited given her apparent mental health difficulties when she was attending university.” It is sufficient in the context of this interim hearing that the opinion of the single expert is that the mother is capable of persevering with supervised contact despite holding genuine fears for the children’s safety. Although the mother’s ability to cope is central to her ability to provide quality care and support for her children, the single expert evidently did not regard this as under sufficient strain to warrant a recommendation for the cessation of contact.

10. It is important to note that the single expert did not make the recommendation that supervised contact continue indefinitely. At para 189 he states that supervised contact “is a short-term solution to the problem of having to protect children from a parent while allowing them to spend time with him/her.”

11. The task with which I am faced is essentially one of balancing various considerations to arrive at a result which is in the best interests of B and N. It is clear that the mother has difficulties in facilitating supervised contact due to her attitude towards the father and her perception of him as a danger to the children. This is something that the single expert took cognisance of. Similarly, in cases such as this where one parent has a conviction for a child sexual abuse offence, the spectre of the commission of further acts of sexual abuse looms large in any consideration of arrangements for the children to spend time with him. The risk of harm to the children is obviously something that needs to be examined in great detail before any decision is made about any final contact regime. Despite the father’s apparent refusal when speaking to the report writer to accept responsibility for his wrongdoing in respect of E, it is reasonable to conclude that any risk to the children would be negated by the contact occurring in the controlled environment of the contact centre.

12. The final hearing of this matter is scheduled to take place over a five day period commencing 17 August 2009.  There is a significant risk, were I to grant the mother’s interim application and suspend interim supervised contact, and subsequently make final orders allowing the boys to spend time with their father, that the disruption to the children of the interruption of their relationship with the father, given their current ages, may be significant.

13. The issue of the sexual abuse allegations against B is something that is likely to be the subject of contest at the final hearing. I note in this context that although there is no evidence of either a physical or medical nature to support the allegations, document 6 of the tender bundle (records subpoenaed from Queensland Police) contains the following statement:

    “It is NOT the case that the investigation resulted in a determination that the offence was unlikely to have occurred and in fact, it is quite possible that the complainant was indecently dealt with by his father at some point and had the disclosures made been better particularised, a prosecution might have been able to be commenced.”

14. In light of the above, I consider it appropriate that the supervised contact arrangements continue during the interim period. I am not persuaded that the single expert failed to give sufficient consideration to the risk of psychological harm to the children and the mother associated with the facilitation of contact with the father.  In fact, it is apparent from a consideration of his report that those risks were examined in substantial detail.

15. Accordingly, I make an order that the mother’s application be dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.

Associate: 

Date:  24.4.2009