Geary & Maddigan & Anor

[2016] FamCA 1069

FAMILY COURT OF AUSTRALIA

GEARY & MADDIGAN AND ANOR [2016] FamCA 1069

FAMILY LAW – CHILDREN – Interlocutory – Where both parties have a history of using physical discipline – Where an injunction was made restraining their administration of corporal punishment to the children – Where the eldest child disclosed a physical assault by the father – Where the assault was reported to the police and the father was charged – Where the eldest child’s injury was confirmed by a medical practitioner – Where the father intends to defend the prosecution – Where the untested evidence supports an interim finding the children are at risk of harm in the father’s care – Ordered change of residence to the mother – Ordered supervised time with the father

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 69ZK

APPLICANT: Mr Geary

RESPONDENT: Ms Maddigan

INTERVENER: Director-General of the Community Services Directorate

INDEPENDENT CHILDREN’S LAWYER: Legal Aid ACT

FILE NUMBER: CAC 2054 of 2010

DATE DELIVERED: 25 November 2016

PLACE DELIVERED: Canberra/Newcastle

PLACE HEARD: Canberra/Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 25 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Ridge, Barker & Barker

COUNSEL FOR THE RESPONDENT: Ms Gillies

SOLICITOR FOR THE RESPONDENT: Dobinson Davey Clifford Simpson

COUNSEL FOR THE INTERVENER: Not Applicable

SOLICITOR FOR THE INTERVENER: Mr Tandy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Haddock

Orders

BY CONSENT, IT IS ORDERED THAT

1.Leave is granted to the Director General of the Community Services Directorate of the ACT to intervene in the proceedings as a party.

2.Annexure F to the affidavit of the mother filed on 22 November 2016 is removed from the affidavit and marked Exhibit INT1.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

3.Orders 2, 3, 5, 6, 7, 8 and 9 made by Justice Ainslie-Wallace on 24 November 2016 are discharged.

4.Subject to the provisions of s 69ZK of the Family Law Act, the following interim orders will take effect when the children cease to be subject to orders under the Children and Young People Act 2008 (ACT):

4.1The Intervener shall have parental responsibility for the following children (“the children”);

a)B, born … 2004;

b)C, born … 2006; and

c)D, born … 2009.

4.2The children shall live with the mother;

4.3The mother, father and Intervener shall take all reasonable steps to ensure the children spend time with the father under the supervision of a supervisor delegated with that responsibility by the Intervener, and at the Intervener’s expense:

a)Not less frequently than for two consecutive hours per fortnight; and

b)Not more frequently than for two consecutive hours per week.

4.4Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

5.Otherwise:

a)The application for interim relief set out within the Initiating Application filed on 16 November 2016 is dismissed;

b)The Response to an Application in a Case filed on 22 November 2016 is dismissed; and

c)Any and all outstanding applications for interim relief are dismissed.

6.The father shall file and serve an Amended Initiating Application setting out the final relief he seeks pursuant to Part VII of the Family Law Act by Friday, 9 December 2016.

7.The mother shall file and serve a Response setting out the final relief she seeks under Part VII of the Family Law Act by Friday, 23 December 2016.

8.The proceedings are adjourned back to the Docket Registrar for further procedural directions.

9.No order as to costs.

NOTATION

A.These Orders are not inconsistent with the father’s current bail conditions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Geary & Maddigan 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/NEWCASTLE

FILE NUMBER: CAC 2054 of 2010

Mr Geary

Applicant

And

Ms Maddigan

Respondent

And

Director-General of the Community Services Directorate

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1.On 28 April 2016, I pronounced orders between the applicant father and respondent mother in relation to their three children under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The orders provided for the children to live with the father, for him to have sole parental responsibility for them, and for them to spend time with the mother. The orders were implemented, apparently without undue difficulty, until 9 November 2016. On that day the eldest child disclosed to his school teacher he had been assaulted by the father and the assault was independently corroborated by the middle child.

2.The incident was reported by school staff to the ACT child welfare authority and swift action ensued. The incident was investigated by police and the father was charged with the eldest child’s assault. The ACT child welfare authority initiated child welfare proceedings and an order was made by the ACT Children’s Court vesting parental responsibility for the children in the Director‑General of the ACT child welfare authority.

3.Yesterday, for reasons that need not be mentioned to save complication of the chronology, Ainslie‑Wallace J made interim parenting orders confirming, in all relevant respects, the orders I previously made on 28 April 2016. However, two things need be mentioned about that. First, those orders were made on the basis that, pursuant to s 69ZK of the Act, they will only apply when the existing child welfare orders are discharged, which is anticipated to occur on 5 December 2016 when the child welfare proceedings are next back before the ACT Children’s Court. Second, those orders were made in contemplation they would be revised by me today when entertaining the parties’ pending interim applications.

4.The interim applications pending before the Court today are:

(a)The father’s Initiating Application, filed on 16 November 2016, in which he seeks a recovery order to recover the children from the care of the mother, with whom they have been living with the imprimatur of the ACT child welfare authority. The father wants the orders made yesterday confirmed in all respects; and

(b)The mother’s Response to an Application in a Case, filed on 22 November 2016, in which she seeks discharge of the existing parenting orders and replacement interim orders for the children to live with her and for them to only spend supervised time with the father. She abandoned a preliminary application for my disqualification.

5.The Independent Children’s Lawyer appears and supports the mother’s proposal. 

6.The Director-General of the ACT child welfare authority also appeared and was consensually granted leave to intervene as a party to these proceedings. As the intervener in these proceedings, he will attend to dismissal of the pending child welfare proceedings when next before the ACT Children’s Court on 5 December 2016 and will abide the orders of this Court. The intervener also supports the mother’s proposal.

Evidence

7.The father relied upon his affidavit filed on 16 November 2016, his affidavit filed on 17 November 2016, and the affidavit of his sister, Ms I, filed on 16 November 2016. 

8.The mother relied upon her affidavit filed on 22 November 2016 (save for Annexure F which was withdrawn from the document). 

9.The intervener relied upon Exhibit INT1, which exhibit comprises the initiating process and affidavit material filed by the intervener in the existing child welfare proceedings before the ACT Children’s Court.

Legal Principles

10.Orders in respect of children are made under Part VII of the Act, where the meaning of a parenting order is defined (s 64B).

11.When invited to make a parenting order the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D). When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA) and the Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

12.The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents, though that presumption may either be rendered inapplicable or rebutted by the evidence adduced (s 61DA). In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents or, alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration. 

Best interests of the children

13.Section 60CC of the Act prescribes two primary considerations in the determination of the child’s best interests: the first under s 60CC(2)(a) and the second under s 60CC(2)(b).

14.Having regard to the evidence placed before the Court and the submissions made, they are the only two factors of relevance today. None of the additional factors prescribed by s 60CC(3) were the subject of any submission.

15.As regards the children’s relationships with the parents (s 60CC(2)(a)), there is really no evidence of any change from the situation, as I observed it, some months ago in April 2016. At that time I observed as follows: 

26.There was never any doubt about the great benefit the children derive from their relationships with the mother. That will not change, regardless of whether the children continue to live with her or, instead, live with the father and spend substantial and significant time with her.

27. Although the evidence tended to suggest the children have slightly stronger relationships with the mother, she knows the children enjoy spending time with the father. The mother conceded they still have meaningful relationships with the father from which they derive great benefit and that they should continue to do so, but it is difficult to see how those concessions were reflected in the orders she proposed, which would greatly curtail the father’s involvement in the children’s lives.

28. When the single expert conferred with the children in August 2015, they expressed different views about, and exhibited different demeanour towards, the father. The eldest child was effusive about him and wanted to spend as much time with him as with the mother. The middle child wanted to remain living with the mother, but still wanted to see the father, even though he thought the father loved his brothers more than him. The youngest child said he liked the father, wanted to see him, and did not want anything to change.

29. The middle child’s attitude towards the father was not then as positive as the other children’s attitudes. During 2015, the middle child was very unsettled. He was suspended from school on 11 separate occasions and his behaviour was “extremely dysregulated”. The single expert said in cross-examination that the middle child seemed “primed” to convince her he should remain living with the mother and was very distressed during the interviews. Whatever may have then been troubling him, the problem has since abated. Both parties expressed satisfaction with his behaviour over the last few months, which the mother even described as “fantastic”.

30.At the time of her report in August 2015, the single expert described the children’s attachments to the mother as stronger than their attachments to the father, but during cross-examination at trial in April 2016, she agreed the children’s attachments with the father were strong enough to support an “equal time” living regime, though she recommended against that outcome for other reasons. The single expert also conceded that the middle child’s criticisms of the father in August 2015 seemed to reflect the mother’s anxieties about the father, so it was difficult to tell whether they were really the child’s or rather the mother’s criticisms of him.

31. The single expert considered the slight degradation of the children’s relationships with the father was most likely attributable to the mother’s anxiety about the father, to which anxiety the children are reactive. The mother’s anxiety caused her to withhold the children from the father on numerous occasions for weeks or months at a time, which in turn caused the children to feel the need to demonstrate allegiance to her. The mother’s evidence in cross-examination gave cause for concern about her willingness to again withhold the children from the father in contravention of court orders whenever she unilaterally decides it is warranted. Such evidence will be analysed in greater detail under s 60CC(3) in relation to the mother’s parenting capacity, but at this juncture it is sufficient to record the real prospect of the children eventually losing their valuable relationships with the father if they remain living with the mother, particularly if she is vested with sole parental responsibility for them, as she desired.

16.The factor prescribed by s 60CC(2)(b) of the Act was really the pivotal issue for consideration; that being the risk of harm to the children by reason of their subjection or exposure by the father to physical abuse. That issue was also important between the parties in the proceedings I concluded by the orders made in April 2016. At that time I observed the following context about the allegations made by the mother against the father:

60. … the allegations about the father striking either the eldest child or middle child arose in the context of the children’s naughtiness and their need for discipline. It was common ground between the parties that they both used corporal punishment to manage the children’s behaviour in the past, though in fairness, the father probably did so more readily than the mother. The difference of opinion between the parties, therefore, was not the use of corporal punishment, but rather its proportionality. The mother contended, inferentially if not expressly, that the severity of the punishment administered by the father transcended the boundary of legitimate discipline and became gratuitous physical abuse. The father denied it.

17.The finding that I relevantly made in those proceedings was to the following effect: 

68. The evidence does not permit any finding, on the balance of probability, that the father ever assaulted any of the children. Save for the slight and transient bruising the mother witnessed on the eldest child’s body on one occasion in June 2014, which was plausibly caused by rough play rather than discipline, none of the children have ever presented with injuries attributable to their alleged physical mistreatment by the father.

18.Notwithstanding that finding, the following admonition was given to the parties: 

69.Both parties practice corporal punishment on the children, though the father more regularly than the mother. Although community standards may now deem punishment in that form to be obsolete, it is still not necessarily “abuse” as defined in the Act (s 4). It is only abusive if it is disproportionate to the misbehaviour sought to be corrected, but the evidence did not establish that has ever been the case for this family. It would be preferable if the parties’ both moderated their disciplinary practices, particularly in the context of their grave distrust of one another and their willingness to think the worst of the other …

19.Following such admonition, one of the orders made to conclude the proceedings included an injunction in the form of Order 10, which restrained the parties from administering corporal punishment to the children. 

20.Against that background, I turn to consider the evidence placed before the Court today. 

21.On the morning of Wednesday, 9 November 2016 the children were living with the father. The two eldest boys were readying themselves for school and were misbehaving. The boys alleged the father approached them in or about the bathroom, scolded them for their misbehaviour, and then struck the eldest child in the shoulder with a closed fist. The eldest child alleged the force of the blow was sufficient to knock him to the ground, after which he was kicked by the father. The children were subsequently conveyed to school and later that morning the eldest child reported the incident to his teacher.

22.His teacher then approached a more senior teacher, advising the eldest child was in tears, and related the child’s allegation he had been punched and kicked earlier that morning by his father. The senior teacher then consulted the child and observed he was crying and holding his shoulder – “sort of supporting it”. The senior teacher gave the child an icepack and when he rolled up his sleeve to apply the icepack she saw there was a red mark on his shoulder. The red mark was about the size of a 20 cent coin, though it was in the shape of a line rather than circular. The staff were sufficiently concerned that they reported the incident to the ACT child welfare authority.

23.At about 4.42 pm, the eldest child was interviewed by police and he told police he was engaged in horseplay with the middle child in the bathroom earlier that day. He reported the father scolded him for teasing his brother and then punched him in the right shoulder with a closed fist, which caused him to fall to the floor, and he was then kicked by the father. The story was the same as he had related earlier that morning to the teachers. 

24.Not long afterwards, at 5.20 pm, different police officers interviewed the middle child. He confirmed he and his brother had been misbehaving in the bathroom and he saw his father punch the eldest child. He thought the punch may have been to the stomach or the chest and he told police he did not see the father kick the eldest child, but the eldest child later told him he was kicked by the father.

25.As I have indicated, members of the ACT child welfare authority were engaged and they interviewed the eldest child the following day at his primary school in the presence of the school principal. At that time the eldest child gave a consistent story of him teasing his younger brother in the bathroom the day before. He reported the father came upstairs, punched him in the shoulder, causing him to fall over, and he was kicked. That same day, the middle child was interviewed in a separate room and he confirmed he was being teased by his older brother. He said the father punched the eldest child. He said he saw the punch and he saw the kick. He said the eldest child was on the floor and he saw the father “kick [the eldest child] like a soccer kick”.

26.Following the intervention of the police, they approached the father and he declined to participate in any record of interview.

27.The eldest child was taken by the intervener’s staff members to a medical appointment on 11 November 2016. He was reviewed by Dr J and she prepared a report about her observations. That report is in evidence.  Relevantly, she reported the eldest child provided her with a history broadly consistent with the story he earlier gave members of the school staff, the police, and intervener’s staff members. The doctor saw a 3.5 centimetre by 3.5 centimetre bruise of the anterior aspect of his right shoulder. The doctor said the eldest child had a full range of motion of the right shoulder joint, but there was obvious discomfort with the movement. The doctor said there appeared to be some swelling over the distal end of the right clavicle and there was tenderness to palpitation over the distal clavicle. There was no sign of injury to the lumbar region of his back, where the child told the doctor he was kicked by the father.

28.The doctor said the age of a bruise cannot be determined with any degree of accuracy. She reported that bruises with a yellow colour are more than 18 hours old, but any other colour may be present from the time of “insult” to “resolution”. She concluded her examination findings were suggestive of the child having suffered blunt force trauma to the right shoulder. 

29.In response to those uncontroversial facts, the father deposed he was arrested and held in custody on the evening of 10 November. He confirmed he declined to participate in an interview with the police. When he appeared in Court the following day he was not asked to enter a plea, but he intends to enter a plea of “not guilty” to the charge of assault and that criminal prosecution is next before the ACT court on 2 December 2016.

30.The father denied he assaulted the eldest child, as alleged or at all.  Notwithstanding his disinclination to participate in any interview with the police and his apparent wish to preserve his privilege against self-incrimination, the father committed his version of events to affidavit, which he filed in these proceedings on 16 November 2016. He alleged he warned the two eldest boys to stop misbehaving in the bathroom and that he “smacked the eldest child with an open hand on the right shoulder or upper arm”. He alleged it was “not a hard smack”. He alleged he would describe the force as “medium”. He denied he punched the eldest child.  He denied that he had a clenched fist at any time during his interaction with the eldest or middle child.  He denied the eldest child fell to the ground or that he was forced back with the force of his smack. He alleged the eldest child seemed fine and was not upset by being smacked on the right shoulder or upper arm. He denied he kicked the eldest child at any time.

31.Such admissions by the father are somewhat curious because he filed, simultaneously with his affidavit, an affidavit by his sister, Ms I. She deposed that when she went to the children’s school on 9 November 2016 and conferred with school staff she told the school staff “the father never smacks them”. If that was truthful, she is unaware of the father’s willingness to smack the children. 

32.Consequently, the factual dispute between the parties is over whether:

(a)the father assaulted the eldest child, or

(b)the father physically chastised the eldest child in circumstances where, first, he was ordered by the Court not to do so, and secondly, his family mistakenly believe he does not. 

33.I consider several aspects of the current incident imbue it with a different complexion from the past allegations of his physical abuse of the children. 

34.First, in the prior proceedings, the father admitted having slapped the middle child over the back of the head once in either 2013 or 2014. That incident was reported to child welfare authorities, to whom he subsequently spoke about the incident, and in the course of that discussion admitted he had slapped the middle child over the back of the head. During the proceedings before me earlier this year, the father told me on his oath he sincerely regretted it and implied, if not expressed, it would not happen again.

35.Second, as I have already indicated, I made Order 10 in the following terms when those proceedings were concluded before me some months ago:   

Each party is restrained from causing or permitting the infliction of corporal punishment upon the children. 

36.Third, the children made these allegations while living primarily with the father. The father asserted the children’s past allegations against him were induced by pressure exerted upon them by the mother, who was then their primary carer. Even though he apparently believes that is also true in this case, the evidence does not support his subjective belief. The mother deposed the children last spent time with her before this current incident on the evening of Thursday 3 November 2016, and so they left her care on the morning of Friday 4 November 2016. That was pursuant to an informal arrangement between the parties for the children to spend an extra night in the mother’s care. She did not see the children again until Thursday 10 November 2016. Although the mother had a telephone conversation with the children on the evening of Wednesday 9 November 2016, significantly, that was after the two eldest children had already made their reports of the father’s physical abuse of the eldest child earlier that day. 

37.Fourth, in this instance, the two eldest children, independently of one another, maintained broadly consistent versions of the physical abuse separately to staff of their school, staff of the intervener, and police officers. They were not stories reported only to the mother, as was the case in the past. As I indicated in the judgment I published in April 2016:

54.… The sad reality is that the children are prone to make false reports about one parent to the other and considerable caution must attend acceptance of any such statements made by them to either of the parties. Unless independently corroborated by other evidence, such statements are liable to carry little, if any, weight.

Conclusions and orders

38.Although the evidence is currently untested, I am satisfied it provides a sufficient evidentiary platform to conclude, on an interlocutory basis, that the children are in need of protection from the father. There is no option but for them to live with the mother and to spend time with the father.

39.Supervision of their interaction with the father is the only way to satisfactorily attenuate the risk of harm. Paradoxically, the imposition of supervision should suit the father. It will protect him against the risk of the children making further false allegations against him, as he would contend, in response to pressure exerted by the mother. The parties were all agreed the supervision could be arranged by the intervener at his expense. 

40.The intervener could guarantee supervision with fortnightly, but not weekly, frequency. Weekly interaction is a desirable frequency to promote the children’s continuing relationships with the father, but if it cannot be ensured it cannot be prescriptively ordered.

41.The orders I am about to announce regulating the children’s expenditure of supervised time with the father do not create any inconsistency with the father’s existing bail conditions, which only require that he not “assault, threaten, intimidate or harass” the children. 

42.I now need to return to the issue of parental responsibility. As I earlier indicated, there is a presumption that the parents of a child should have equal shared parental responsibility for the child when parenting orders are sought. Pursuant to s 61DA(2), the presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child. Moreover, s 61DA(3) provides that when the Court is making an interim order the presumption of equal shared parental responsibility does not apply if the Court considers it would not be appropriate for it to apply in those circumstances. When I earlier made orders in April this year I found the presumption of equal shared parental responsibility should not apply and I made no order allocating equal shared parental responsibility to the parties. I found they had no trust in one another, of which the children were well aware. I found the parties were unable to communicate respectfully with one another and neither wanted to be forced to do so. The single expert at that time recommended strongly against the allocation of equal shared parental responsibility. As a consequence, I allocated exclusive parental responsibility for the children to the party designated as the residential parent, and at that time that was the father.

43.For the reasons I have already given, the children will now live with the mother, but that is only an interim solution. Presently the intervener holds parental responsibility for the children pursuant to order of the ACT Children’s Court. The parties still live on opposite sides of Canberra and the children will resume the new academic year in January 2017. It is highly unlikely these fresh proceedings will be resolved on a final basis in advance of that time and so the designation of parental responsibility is important, if for no other reason than, so decisions that need to be made about the children’s 2017 school enrolment may be made. At this point it is too early to predict the ultimate outcome for the children, but I am satisfied for present purposes that parental responsibility for the children should remain vested in the intervener, subject to observance of the order I intend to make about the children’s temporary residence with the mother.

44.I also intend to make some procedural orders to ensure that the substantive proceedings progress. 

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 25 November 2016.

Associate: 

Date: