Gates and Capps (No.2)
[2012] FMCAfam 153
•23 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GATES & CAPPS (No.2) | [2012] FMCAfam 153 |
| FAMILY LAW – Sibling sexual abuse allegations – implications for previously made parenting orders – best interest considerations for children the subject of the proceedings and for child not the subject of proceedings – relevance of criminal proceedings in Children’s Court – criminal capacity of a child, doli incapax & considerations for sibling relationships. |
| Family Law Act 1975, ss.60B(1)(b), 60CA, 60CC(2)(b), 60CC(3)(b) Criminal Code 2002 (ACT), s.26 |
| A v A [1976] VR 298 Aristotle, Nicomachean Ethics; Rhetoric P. Foot, Natural Goodness, (Oxford: Clarendon Press, 2001) |
| Applicant: | MR GATES |
| Respondent: | MS CAPPS |
| File Number: | CAC 1159 of 2008 |
| Judgment of: | Neville FM |
| Hearing date: | 13 February 2012 |
| Date of Last Submission: | 13 February 2012 |
| Delivered at: | Canberra |
| Delivered on: | 23 February 2012 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms A Osmand |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Ms J Godtschalk |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
Until further Order, the children [X] born [in] 2005 and [Y] born [in] 2007 (‘the children’) are not to spend any overnight time with the Mother while-ever the child [Z] born [in] 1998 (‘[Z]’) spends overnight time with his Mother.
Until further Order, the children spend day time with the Mother as agreed subject to there being two (2) adults present whenever the child [Z] is also present.
Pursuant to Section 68L of the Family Law Act 1975 Ms Burgess of the Legal Aid Office, ACT be re-appointed as the Independent Children’s Lawyer for the children [X] born [in] 2005 and [Y] born [in] 2007. The Legal Aid Office, ACT, is requested to make these arrangements as soon as practicable.
Forthwith upon the appointment of the Independent Children’s Lawyer, that lawyer file with this Court a Notice of Address for service.
Each party is to make available to the Independent Children’s Lawyer within 7 days of notification, copies of all applications and affidavits filed in these proceedings together with all existing orders and copies of relevant reports.
The matter be adjourned for further mention to 7th March 2012 at 2:00pm.
THE COURT NOTES THAT:
A.The Court requests a representative for the Director General of the ACT Community Services Directorate attend Court on 7th March 2012 at 2:00pm.
B.Subject to (a) further submissions, and (b) the outcome of proceedings in the ACT Children’s Court on 2nd March 2012, on 7th March 2012 it would be the Court’s intention to allow the children ([X] and [Y]) to spend overnight time with their Mother while their brother [Z] also spent time overnight. Appropriate supervision orders would continue until further order.
IT IS NOTED that publication of this judgment under the pseudonym Gates & Capps (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1159 of 2008
| MR GATES |
Applicant
And
| MS CAPPS |
Respondent
REASONS FOR JUDGMENT
Introduction
Orders were pronounced on 23rd February in relation to the current application. The reasons for them follow.
Nineteenth century French novelist, Gustave Flaubert, wrote in his prominent novel, Madame Bovary: “Human speech is like a cracked kettle on which we tap out tunes for bears to dance to, when all the while we are longing to move the stars to pity.”[1]
[1] Emphasis added. The French text of what is italicised states: “quand on voudrait attendrir les étoiles.” The verb “attendrir” connotes the need for, or the movement towards, the softening of the human heart. See Harrap’s Concise French & English Dictionary (London: 1985) p.27.
Rather earlier in time, Aristotle outlined the preconditions that give rise to pity. He said: “In order to feel pity we must also believe in the goodness of at least some people; … we pity those … [where] it appears more likely that the same misfortune may befall us also. … we have to remember the general principle that what we fear for ourselves excites our pity when it happens to others.”[2]
[2] Aristotle, Rhetoric Bk.II, 8, 1386a1 & 1386a26-28. See further the general discussion by prominent classicist and ethicist, Martha Nussbaum, in her The fragility of goodness: Luck and ethics in Greek tragedy and philosophy, (Cambridge: Cambridge University Press, 1986 [reprint 1995]) pp.383-385 & 390-391.
Rather more prosaically, the Macquarie Dictionary (Fourth Edition) defines “pity” as: “sympathetic or kindly sorrow excited by the suffering or misfortune of another, often leading one to give relief or aid or to show mercy.” It also refers to: “to feel pity or compassion for.”
In this case, which involves three young children – aged respectively 13, 6 and 4 – in my view, pity is a central virtue that is needed to assist the children, and perhaps especially so all the parents involved, to help deal with the circumstances that are both tragic and delicate, which give rise to the current Application. Pity does not, of course, exclude justice, nor what is in the best interests of the children, particularly the two youngest – [X] and [Y] – who are formally the subject of the Application that was filed by their Father just before Christmas last year.
In July 2010, following a trial, I made final orders in relation to [X] and [Y].[3] Part of the Court’s consideration then, as it is now, relates to their relationship with their older brother [Z] [Capps], who is a son of his Mother from a previous relationship. Critically then and no less so now is the long-standing, discordant relationship between [X]’s and [Y]’s parents.
[3] Capps & Gates [2010] FMCAfam 756.
There are criminal proceedings on foot in the Children’s Court that involve [Z]. The first return date of a summons in that Court is 2nd March. Those proceedings arise out of conduct that is alleged to have taken place by [Z] against his younger brother and sister, [X] and [Y].
Background & Factual Summary
The bare facts, for the purposes of the current applications before this Court, are as follows. In the outline I provide, and otherwise subject only to any express statement in these reasons that relates solely to the matters before this Court, I should not be taken to provide or infer any view in relation to (a) any matters of fact, (b) the legal, emotional or intellectual capacity of any of the children in relation to the matters before the Children’s Court,[4] or (c) the conduct or determination of the proceedings in that Court.[5]
[4] Among many authorities in relation to criminal capacity of children and the presumption of doli incapax, see the helpful and important discussions in the following cases: R v JA (2007) 161 ACTR 1; 212 FLR 309; 174 A Crim R 151 (Higgins CJ); C (a minor) v Director of Public Prosecutions [1996] AC 1; R (A Child) v Whitty (1993) 66 A Crim R 462. See also A.W.G. Kean, “The History of the Criminal liability of Children,” (1937) 53 Law Quarterly Review 364; T. Crofts, “Doli Incapax: Why Children Deserve its Protection,” (2003) 10(3) Murdoch Electronic Journal of Law, and the general overview provided by T. Crofts, “The Criminal Responsibility of Children,” in Children and the Law in Australia (G. Monahan & L. Young, eds.) (Sydney: LexisNexis Butterworths, 2008) pp.167-186.
[5] For a useful overview, see C. Cunneen, “Young People and Juvenile Justice,” in Children and the Law in Australia (G. Monahan & L. Young, eds.) (Sydney: LexisNexis Butterworths, 2008) pp.187-203.
In this regard, with the purpose simply to inform the parties (and accepting that they have their own legal representation), I simply note that proof of the act (or acts) that constitute the offence alone, is not, of itself, sufficient to rebut the presumption of doli incapax, by which is understood that a child between the ages of 10 and 14, is incapable of committing crime.[6] That presumption may be rebutted, but ‘guilty knowledge’ must be formally proved by the prosecution.[7]
[6] Criminal Code 2002 (ACT), s.26.
[7] Again I refer to the thorough-going discussion by Higgins CJ in R v JA at [29] – [82].
The issue of “capacity”, and therefore of “understanding”, particularly of [Z] but also to a relevant degree of [X] and [Y], is important to the matters before this Court in the task of assessing risk – actual or potential – and in the light of that assessment, in making orders that are in [X]’s and [Y]’s best interests.[8]
[8] Family Law Act 1975, s.60CA .
Subject to what is said later in these reasons, there is no formal assessment in the Department file that is before this Court concerning [Z]’s capacity to appreciate what has transpired, and what is transpiring now. Indeed, as noted later, the Departmental records indicate that [Z]'s Father has reservations about [Z]’s understanding of the situation he is facing.
The Respondent Mother to the proceedings is a [occupation omitted]. Sometime last year, the three children were playing in the garage of their Mother’s house. They were playing a game which had been played, it would seem, somewhat regularly by them, namely, ‘doctors.’ At some time before, during or after that game, and obviously while no adult was present, it is alleged that [Z] sexually interfered with his brother and sister.
[Z] now faces two charges under the ACT Crimes Act 1900, the detail of which is set out in the AFP Statement of Facts that was part of the tender that is now Exhibit A. The charges are serious. There is no suggestion, however, that they arise other than out of one incident. This is to say that there is no suggestion that there has been a course of conduct that gives rise to the charges; subject to what is set out in the summons and the brief of evidence attached to it (which this Court does not have before it), it was a single, isolated event.
The other part of the tender to which I have referred is a Statement made by [Z]'s Mother, the Respondent to the current proceedings in this Court.
Also tendered were documents produced under subpoena by the ACT Department of Community Services of which the Office of Children, Youth & Family Support forms part. Those documents became Exhibit B. The final tender was a series of school reports for [Z]. Those documents became Exhibit C.
Issues & Orders Sought
The only issue presently before this Court is whether [X] and [Y] should spend time with their brother [Z], and if so, what that regime should be, particularly in the light of the pending criminal proceedings in the Children’s Court.
On an interim basis, the Applicant Father, Mr Gates’, position is that the Mother, Ms Capps, be restrained from bringing her son [Z] into contact with his brother [X] and his sister [Y].
In the alternative, Mr Gates seeks that the orders of this Court of July 2010 be suspended, that [X] and [Y] live with their Father, and that they spend time with their Mother as ordered by the Court, and that Ms Capps be restrained from bringing them into contact with their older brother.
For her part, Ms Capps seeks, in the alternative, that Mr Gates’ Application be dismissed, or that whenever [X] and [Y] are at their Mother’s residence and their brother [Z] is also present, there will always be two adults present to supervise the children. Pursuant to an Undertaking filed in Court, Ms Capps has confirmed that whenever the three children are together in her care the children will not be left unsupervised. She nominates five adults in the undertaking.
From the Bar Table, the Court was informed that the persons nominated in the Undertaking to be co-supervisors have all been made aware of the nature, and therefore the gravity, of the charges [Z] is facing.
[Z]'s Father is named Mr Capps.
Material from Documents Produced on Subpoena
The most detailed material before the Court at this stage comes from that which has been provided by the ACT Department of Community Services (“the Department”). I note the following from that material.
Unfortunately, the outline of relevant matters is made much more difficult because of the arcane if not byzantine numbering of the Department’s file. In this case, as in others, the repetition and lack of sequential numbering makes identification of relevant information tortuous and enhances, among other things, the risk of mis-quoting evidence.[9] Indeed, the difficulty, properly and accurately to record relevant entries across all of the disparate but over-lapping bundles of the Department’s file, has unfortunately slowed considerably the preparation of these written reasons.
[9] By letter dated 15th February 2012, the lawyer for Mr Gates kindly suggested a division of the Department’s file that would make it, from an organisational perspective, more intelligible. Indeed it has.
The material from the Department’s file may be conveniently grouped as follows:
·Three bundles of Progress Notes Search Results (pages 1 to 10; pages 1 to 11; and pages 1 to 6)
·Care & Protection Services Child Concern Report: 16/12/2011 (pages 1 to 9)
·Care & Protection Services Child Concern Report: 17/12/2011 (pages 1 to 8)
·Care & Protection Services Appraisal Outcome Report: 19/12/2011 (pages 1 to 17)
·[Proposed] Rehabilitation Plan
·Internal Departmental correspondence (January 2012)
·Correspondence between Integrated Court Services & the Court
·Copies of various Court documents filed by Mr Gates
One other preliminary matter should be noted. I was assisted by particular references to the Department’s material provided by the experienced lawyers who act for each of the parties. I have looked at those sections specifically, but also confirm that I have read the entirety of the Department’s file, as well as all the material in each of the other exhibits. The main source of the material that follows is taken from the Progress Notes and the three Reports noted.
Progress Note Search Results
As already observed, there are three such bundles of documents in the Department’s file. Each of them begins with the same date (19th December 2011), and each has the same date at the end of the first page (24th December 2011). They are immediately distinguishable (if that is the correct terminology) by three different, but obviously closely connected times at the top of the page – namely 19/12/2011, 11:57 (20/01/2012), 19/12/2011, 11:27 (22/01/2012), and 19/12/2011, 11:29.
Each of these three bundles bears a date at the bottom of the first page of 24th December 2011, but with consecutive times of 10:32, 10:36, and 10:37 respectively. Their pagination runs, sequentially, ‘page 1 of 10’, ‘page 1 of 11’, and ‘page 1 of 6.’
The first page on each of these bundles of ‘progress note research results’ (“the Notes”) is an account of the ‘child interviews by SACAT [“Sexual Assault and Child Abuse Team”].’ The officers are named. The interviews were of [X] and [Y] – with their surnames unfortunately mis-spelt. Those interviews seem to have taken place on 19th December 2011. The account of the interviews details the events that are alleged to have taken place between the children that now give rise to the proceedings in the Children’s Court.
There was a later, less formal, interview with [Z], on 23rd December 2011. Those discussions (as recorded in the Notes) did not traverse the incidents between the three children.
The Notes then confirm that statements were taken from Mr Gates and from Ms Capps. Various contentions are made by Ms Capps as to whether she had given the statement voluntarily or knowing that it would (or may) be used in criminal proceedings, as well as whether she was given a copy of her statement. She seems to have signed it, whatever the various contentions. For current purposes, however, I do not need to address such matters.
The Notes (‘2 of 10’ and ‘2 of 11’, but not ‘1 of 6’) confirm, on 23rd December 2011, that: “All parents and [Z] have legal representation now and police cannot now talk to anyone as a result.”
In these same places in the Notes, it is also stated: “[named officer] has spoken with Mr Capps [[Z]'s Father] who confirmed that [Z] has made admissions to him repeatedly about the incident.”
In my view, the entry in the Notes for 23rd December 2011 (‘2 of 10’ and ‘2 of 11’) is particularly noteworthy. It states: “I also made it clear that all 3 children … are viewed as in need or vulnerable given their ages.” Similar statements are made in various other places in the Department’s records; I refer to them below.
The Notes also record the on-going parenting difficulties between
Mr Gates and Ms Capps. These difficulties include, as the Notes and other materials before the Court indicate, that there are concerns as to whether [X] has an autism spectrum condition, such as Asperger’s Syndrome. There has been some contest between his parents regarding a relevant assessment taking place. Mr Gates opposed it, but it will now occur and he will attend the relevant specialist with [X] and his Mother.
The Notes confirm, as at 23rd December 2011, the need for all three children to carry out protective behaviour work, and for all three sets of parents to ensure that [Z] is not left alone with any of the children as a measure to protect each of them.
Ms Capps was encouraged to seek advice from CARHU, but she indicated then that she did not need that service, and in any event, because she was a [occupation omitted], she was aware of what that unit could provide, as well as there being professional difficulties for her (I interpolate, and assume, primarily in relation to understandable discomfort if not embarrassment) should she attend with the children.
As at the same date (page 3 of 10), all parents confirmed that they had given undertakings to the police and their lawyers that no unsupervised contact will take place between the three children.
Ms Capps said (page 4 of 10; page 4 of 11) that she found 4 porn sites on [Z]’s computer which he may have accessed but could not be sure that he had done so.
According to an entry dated 3rd January 2012 (page 4 of 10; 4 of 11), a named police officer confirmed that the AFP was not intending to arrest [Z], nor did the police have any intention to contact [Z]’s school, friends or their parents unless there was some evidence requiring them to do so.
The entry for 4th January (page 5 of 10), confirms that [X] is said to be saying that ‘his heart is breaking in two because his dad said that his mum has taken [Y] away from him for the holidays. [And] “[X] and [Y] have been told by their dad to hit [Z] if he comes near them.”’ (page 5 of 11)
The entry for 5th January (page 5 of 10; 5 of 11; 2 of 6) refers to [X] being “hyper vigilant” regarding a number of things – e.g. ‘touching his privates’ ‘touching the dog’s privates’, and ‘hugging his mother and having contact with her breasts.’ Such conduct may be relevant or related to [X]’s assessment for Asperger’s Syndrome.
The report writer from the Department records also in this same note her advice to Ms Capps about “normalising the situation for the children.” As well, the note records Ms Capps’ confirmation that since the incident involving the children, the parenting relationship with
Mr Gates has deteriorated significantly.
Of some moment too in this note is the report writer confirming that “there was not any information shared by [X] that warranted medical assessment or physical damage to [Mr Gates’ and Ms Capps’] children.”
Later in the same note (page 6 of 10; 6 of 11; 3 of 6), the report writer confirmed that Ms Capps has advised that she has arranged for [Z] to see a child psychologist once the criminal proceedings have concluded. And in the same place, it records that [Z] has confirmed to his Mother that “he has done something wrong and he should not have done it and he will not do it again.” The report writer noted that this was a good reflection on [Z]’s part; and Ms Capps confirmed that [Z]’s friend had given him a memory stick with porn on it, which Ms Capps had taken. It is unclear whether this reference is a clarification of the earlier reference to [Z] having some porn sites on his computer.
Moving then to 12th January, the Notes confirm Mr Gates’ concern as to whether any ‘spot checks’ are being carried out in relation to [Z]. The Departmental officer confirms that she is satisfied that all three children are safe, that all precautions have been put in place, and that Mr Gates is not entitled to know [Z]’s whereabouts. That same officer records (page 6 of 10; 7 of 11) that Mr Gates was reminded of the importance to normalise the situation as much as possible for all 3 children “and being sensitive to their needs including their sibling relationships.”
Still in the same Note (page 7 of 10; 7 of 11), it is recorded that
Mr Gates spoke highly of the police in relation to their investigation, yet in the same place, it is recorded that “SACAT have approved for rehabilitation to take place so a plan will be put in place.” The Department records that Mr Gates will not agree with such a plan.
Not surprisingly, Ms Capps is confused why SACAT have approved the rehabilitation plan yet are pursuing the criminal proceedings.
The entry for 16th January (7 of 10; 8 of 11) records that [X] and [Y] want to see [Z], and the first moves in this regard are then set out. On the same date, but a later time, it is recorded (page 8 of 10) that [Z] “misses his siblings and would like to see them.” The ‘restoration plan’ was explained to [Z] on this date, and he indicated his acceptance of it.
Later in the same entry the following is recorded (page 8 of 10; 8 & 9 of 11; 4 of 6):
[Z] appeared calm and comfortable with us talking generally about his activities and returning to school. He did not appear with any emotional distress and he was articulate and did not present as obviously emotionally mature. His interests appeared to be in line with appropriate 13 year old interests.
Still on 16th January, but a later entry again (page 8 of 10), it is recorded that Mr Gates has submitted a request via his solicitors for [X] and [Y] not to have any contact with Mr Capps ([Z]'s Father) due to an unsubstantiated allegation submitted by Mr Capps’s ex-wife when they divorced some time ago.
On 17th January (page 8 of 10), the Notes confirm the Department explaining that the police have agreed to the “rehabilitation or restoration” of the family unit with [Z] eventually returning to live with his younger siblings. Mr Gates and his partner do not agree with this and complained about their lack of input to the plan. They do not want [Z] to have any contact with [X] and [Y] until the criminal proceedings are concluded.
The Department confirmed (page 9 of 10) that there was no evidence from any of the children that [Z] behaves negatively towards them generally or that he would do so.
The Department also confirmed (again) that it was satisfied that “all 3 children have a good understanding of keeping themselves safe.” The Department also confirmed that it was satisfied that Ms Capps, as the children’s primary carer, has a good understanding of how to keep her children safe as a consequence of the incident.
And again (page 9 of 10; 9 of 11), the Department advised Mr Gates and his partner that “we have to consider the children[’s] needs, wishes and feelings in all of this bearing in mind the police have approved a restoration plan.”
The Department indicated that, in its view of the matter, it was likely that it would not be involved in the matter for very much longer.
On 17th January, the Notes record [Z]'s Father expressing shock, surprise and amazement at the incident in question and that he would not have expected it from [Z]. He also said (page 10 of 10; 10 of 11) that “[Z] does not appear down or depressed and Mr Capps wonders whether [Z] should be a little more worried.” The Department also noted Mr Capps’ empathy for Mr Gates. It might be observed, in the light of matters previously noted, that Mr Gates has not (thus far) reciprocated the sentiment or disposition to Mr Capps or anyone else.
The final matter to note here is the entry for 18th January (page 10 of 10) which records, among other things, that Ms Capps “continued to challenge” the Department’s decision regarding the implementation of the rehabilitation plan. Its basic relevance is to highlight that, at various stages, both parents have disagreed with and challenged the Department’s actions. Notwithstanding this, in submissions, it was submitted on behalf of Mr Gates that Ms Capps, in effect, was being given something of a ‘soft ride’ (my term) by the Department. In my view, the records do not support such a submission.
Both parents, Mr Gates and Ms Capps (and doubtless their families), in my view understandably, are clearly and deeply distressed by the events outlined and their aftermath.
Care & Protection Services Child Concern Report: 16/12/2011
This Report appears to summarise, or ‘cut and paste’, much of the material set out in the Notes to which I have referred.
Of more moment, in my view, are a number of “comments” in this Report, and other Reports noted below. For example, on page 7 of 9, the Department records that it considers the matter as warranting a category of “medium risk”, while next stating “Cannot be rated at this time as there is insufficient information and some information does not add up.”
Finally, this Report records as follows (emphasis added):
Discussion has occurred with the Mother in relation to a concerns interview at CARHU which she advises she would be receptive to for all 3 children.
This entry is clearly contrary to an earlier or different record, and which was referred to in submissions, that Ms Capps is opposed to CARHU involvement.
Care & Protection Services Child Concern Report: 17/12/2011
In my view, there is nothing of any relevance in this Report that has not been previously noted.
Care & Protection Services Appraisal Outcome Report: 19/12/2011
Again there is a significant repetition of matters already detailed in the Notes, which includes, for example, at page 10 of 17, the discussion by the Department with Ms Capps about “normalising the situation for the children” and that (page 12 of 17) “SACAT have approved for rehabilitation to take place so a plan will be put in place.”
Of some moment also is the confirmation (page 16 of 17) that the Department considers that there is no reasonable basis to believe that the children are at a significant risk of abuse or neglect in the future.
Other Departmental Documents
In my view, there is nothing in the correspondence to which I have earlier referred that advances the matters currently before the Court.
Although there was no reference to it by either of the parties, for the sake of completeness I should comment briefly on the material produced under subpoena to [Z]’s school (Exhibit C).
It is sufficient to note that, in my view, there is nothing in [Z]’s school reports that assists here, save that (doubtless like many students) he does not always focus appropriately on the tasks in class. He does well in his Spanish classes in particular. His behaviour is described variously as “satisfactory”, ‘often appropriate’, ‘sometimes appropriate’, ‘consistently appropriate’, ‘always appropriate’. He has received two ‘merit certificates’, one for Spanish, the other for ‘humanities.’
The “All Incidents Summary” from the school confirms that (i) in PE, [Z] continually disrupts class with his talking and behaviour. He has been on lunch detentions on numerous occasions. [Z]’s parents were called to speak with the PE teacher; (ii) on one occasion his mobile phone was removed in the hall way; (iii) on one occasion he was disruptive in class and did not respond to a relief teacher, and (iv) he had one library book overdue.
Finally, I should also note that at the end of the two page restoration/rehabilitation plan that was prepared by the Department, the following statement is recorded (emphasis added):
CPS [Care & Protection Services] does not hold any legal responsibility for this plan nor does CPS consider it unsafe for overnight contact to take place as per the proposed plan from [Ms Capps] for two adults to be present at the home until such time it is felt necessary.
I turn to relevant jurisprudence.
Legal Principle
If this matter involved allegations against an adult, the following principles would apply. In my view, whether the allegations of abuse involve an adult or a child, the task remains, in principle, the same. That task is to undertake the most appropriate ‘risk assessment’ of the situation in the light of the best available evidence, and only then to make orders, in the light of the proper consideration of Part VII of the Act, which are considered in the best interests of the children ([X] and [Y]), pursuant to s.60CA of the Act.
The principles to which I have referred are in two parts: the first would relate to what might be called ‘general principle’ that follows from the application of Part VII of the Act. The second part would relate to what is and what is not an “unacceptable risk.” For convenience, I will set out a summary of principle in relation to both aspects as taken from an earlier judgment of mine – but updated by reference to recent authority.[10]
[10] Luther & Luther [2010] FMCAfam 761.
In relation to the legislative pathway in Part VII of the Act, I note the following.
The relevant statutory and jurisprudential principles were helpfully set out by Brown J in Mazorski v Albright. At [3] – [6], her Honour said (which I gratefully and respectfully adopt):[11]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[11] (2008) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
For present purposes, it is not possible to over-emphasise the protective responsibilities of the Court towards children. Such an emphasis, of course, does not exclude the other relational “pillar”, to which Brown J referred, noted above.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[12]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65DAA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[12] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121].
[23] When considering s65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In relation to legal principle and the determination of relevant risk, I note the following.[13]
[13] Among many cases and other relevant materials in relation to “unacceptable risk”, see M v M (1988) 166 CLR 69; Napier v Hepburn (2007) 36 Fam LR 395; (2006) FLC ¶93-303; Johnson & Page (2007) FLC ¶93-344; Partington (aka Bande) v Cade (No 2) (2010) 42 Fam LR 401; Amador & Amador (2010) 43 Fam LR 268, especially at [86] – [96]; and Maluka v Maluka (2011) 45 Fam LR 129. See also the helpful summary in J. Fogarty, “Unacceptable risk – A return to basics,” (2006) 20 Australian Journal of Family Law 249-295, especially at pp.265-266, cited with approval in Johnson & Page at [68] and [71], and R. Chisholm, “How to Treat Allegations of Violence and Abuse: Amador & Amador,” (2010) 24 Australian Journal of Family Law276-282.
The starting point for such a discussion is the High Court’s comments in M v M.[14] The High Court said:[15]
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
[14] M v M (1988) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey & Gaudron JJ).
[15] (1988) 166 CLR 69 at pp.76 & 77 [22].
The High Court went on to make the following further observations in relation to “unacceptable risk”:[16]
[24] In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
[25] Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access)[1986] FLC ¶91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 BCLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) [1987] 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[16] (1988) 166 CLR 69 at pp.77 & 78 [24] & [25]. The basal principle from M v M in relation to “unacceptable risk” set out in [25] of that judgment has most recently been referred to by Gleeson CJ in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at p.593 [22].
I move to the more recent discussion by the Full Court in the joint judgment of Bryant CJ and Kay J in Napier v Hepburn. At [84], and again at [91], their Honours said (emphasis added):[17]
[84] There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
[91] That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated....
[17] Warnick J agreed, at [113], with this analysis of the joint judgment in upholding the appeal.
Likewise in Johnson & Page, the Full Court (May, Boland & Stevenson JJ) examined at length the proper approach to issues concerning “unacceptable risk.” The Court quoted with approval the extended discussion in Napier v Hepburn on “unacceptable risk” and the course that should properly be pursued by a court in such an assessment, including the detailed citation (with obvious approval) of the dissenting judgment of Fogarty J in N v S.[18] For current purposes it is sufficient to note the following series of questions posed by Fogarty J in N v S, as cited by the Full Court in Johnson & Page at [66]. The relevant part of that judgment is as follows (emphasis added):[19]
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
[18] (1995) 19 Fam LR 837 at pp.859-861.
[19] See Johnson & Page (2007) FLC ¶93-344 at p.81,889 [66]. The same extended quotation from N v S is located in Napier v Hepburn (2007) 36 Fam LR 395 at p.406 [56]. Napier v Hepburn’s discussion of N v S was also considered and supported by the further Full Court decision in Potter v Potter (2007) 37 Fam LR 208 at pp.231 – 231 [124] & [125].
I have previously noted that the Full Court in Johnson & Page, at [68], [71] and [72], expressly endorsed the comments of the Hon J. Fogarty in his article, “Unacceptable risk – A return to basics” (“the Fogarty article”).
In the very recent discussion in Maluka, the Full Court again referred, at [123] (admittedly in the context of a discussion of s.69ZT of the Act), to the exercise undertaken by a court as essentially a “risk assessment exercise.” In my view, that is clearly the task the Department has undertaken and which is recorded in the material available to the Court from its file produced under subpoena; it was the sometimes express, sometimes implicit, basis upon which submissions were put to the Court on behalf of the parties. It is the task that this Court must perform.
Discussion & Resolution
At the outset, it is important to recall that we are dealing with three young children (not just two), all of whom, in various ways and to varying degrees, have been described by the Department as “vulnerable.” True it is that the matters formally before the Court, and orders sought, relate directly to [X] and [Y]. But the orders sought clearly have a wider, and still direct, provenance, not least in relation to their brother [Z]. Potentially, any of the orders sought will impact on that sibling relationship, which is a matter required to be considered under s.60CC(3)(b) of the Act.
The Department has highlighted throughout its records the importance of the sibling relationship. Likewise, it has noted its assessment, and that of the police and SACAT, all of whom support the rehabilitation/restoration plan. That is critical not just for the sibling relationship, but as the Department noted, for the “family unit.”
The Department is also satisfied that all three children [now] have a good understanding of keeping themselves safe. They are also satisfied of Ms Capps’ understanding of her responsibility to ensure the safety of all the children.
The Department also affirmed the importance to “normalise” the situation for all the children.
Of signal importance, recorded at [65] of these reasons, is the Department’s view that there is no reasonable basis to believe that the children are at a significant risk of abuse or neglect in the future.
In my view, at this juncture in the proceedings, the assessment of “risk” by the Department which I have just summarised is the ‘best evidence’ available to the Court in its consideration and exercise of the Court’s protective responsibilities towards children as outlined in s.60B(1)(b) and s.60CC(2)(b) of the Act, and as prescribed by the judicial authority regarding “unacceptable risk” to which I have referred. Indeed, the fact that the Department, SACAT and the police have all agreed to the ‘restoration plan’ confirms the independent assessment of risk is such that there is no reasonable basis for the Court to consider otherwise.
However, that assessment of no reasonable basis to believe the children are at significant risk of abuse or neglect obviously does not end the story. Proper assessment of risk is one thing; orders that are in the children’s ([X] and [Y]) best interests is another.
In this regard, there are a number of considerations. First and foremost is the need for a gradual re-introduction of time between the three siblings, with appropriate educative and protective measures in place. The educative measures, up to a point, have already been undertaken by the Department. I would have thought that there will need to be further, if not some on-going education about self-protective measures. But not only self-protective measures: I would suggest (subject to submissions) that a proper educative path would, at some appropriate stage and appropriate manner, might also involve discussion involving things like human dignity, respect for boundaries, and even a consideration of the old-fashioned virtue of “temperance” with its accent on reason to order or control our passions that are otherwise attracted to those things that are alluring to our senses, be those allurements of taste or touch – called by Aristotle “bodily pleasures.”[20] Just as the virtue of fortitude or courage helps us to face things that repel us, so temperance aids us to face things that improperly lure us, such as the time-honoured sirens, like Scylla and Charybdis, of disordered drink, and/or disordered sex.[21]
[20] Aristotle, Nicomachean Ethics, Bk.III, 10.
[21] There is abundant literature on ‘virtue’, primarily for adults, but which parents could appropriate in the education of their children. See, for example, W. Shalit, A Return to Modesty: Discovering a Lost Virtue, (New York: Touchstone, 1999 [reprint 2000]); R. Scruton, Sexual Desire: A Philosophical Investigation, (London: St Martin’s Press, 1986 [reprint 2001]); A. MacIntyre, After Virtue: A Study in Moral Theory, (Second Edition) (Notre Dame: University of Notre Dame Press, 1984); and finally the sensitive treatments by Professor Philippa Foot, Natural Goodness, (Oxford: Clarendon Press, 2001) and Virtues and Vices, (Oxford: Clarendon Press, 2002).
The protective measures, for now, relate to there being no over-night time between the siblings until after we all have a better idea what will or may happen in the criminal proceedings. As well, I do not wish to make ‘overnight time with orders’ until everyone (including the Court) has the benefit of input from the Independent Children’s Lawyer, and perhaps further input from the Department.
The daytime “contact” between the siblings will proceed with at least the presence and supervision of two adults.
As well, the educative and other orders to come, in my view, are necessarily dependent on some more considered and professional assessment of [Z] regarding, for example, his understanding of what has gone on – so to speak. Given the concern expressed by his Father, and the comments by the Department, it is one thing for a child, even of [Z]’s age, to know that he (or she) has done something (morally) wrong. It is something else again to appreciate either the genuine gravity of a situation (such as that under consideration here) as well as appreciating, from a legal perspective, what is involved – hence my earlier reference to things such as doli incapax.
All such matters must await another day when the Court is assisted by the ICL, by further input from the Department, as well as further submissions on behalf of the parties.
The final matters to note are more by way of precaution. First, if it be true (as recorded by the Department) that Mr Gates has counselled [X] and [Y] to smack other children (principally [Z]) as a defensive measure, other, wiser counsel should prevail.
Similarly, if it be true (as recorded by the Department), that Mr Gates does not want [Z]'s Father to come into contact with [X] and [Y] because of some unsubstantiated allegation made some years ago by his former wife, I would suggest (and hope) that such utterances are those of an understandably ‘frazzled’ Father. They would be somewhat concerning if such comments and views persisted.
Further, in my view, however troubling the current matters are, having proper regard to the assessment by the Department, the police and SACAT, the proposed therapeutic/psychological intervention indicated by Ms Capps, and the protective orders of this Court, I would be very concerned if the parenting matters that were traversed at length some years ago were sought to be re-activated. The stresses and strains between the parents would, in my view, likely be exacerbated very significantly if parenting orders were formally re-visited. The current disturbance in the families, properly brought before this Court and the Children’s Court, should not be used as a vehicle or tool to prise open final orders made after a contested hearing.
In my view, the virtue of “pity”, as I said at the beginning of these reasons, will hopefully be employed by all, and directed to all, who are involved in the just and ordered treatment of all matters that are before the Courts, as well as in the ongoing relationships that must be addressed after all legal contest subsides.
In my view, the orders pronounced on 23rd February 2012 are those that are in the children’s ([X]’s and [Y]’s) best interests. They are necessarily interim because everyone must await the outcome of the criminal proceedings in the Children’s Court.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 1 March 2012
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