Geiger and Geiger

Case [2010] FamCA 796


FAMILY COURT OF AUSTRALIA

GEIGER & GEIGER [2010] FamCA 796
FAMILY LAW – CHILDREN – BEST INTERESTS – Allegations of sexual abuse of children by father – Finding no sexual abuse – Allegation of unacceptable risk – Finding no unacceptable risk – Restraint on mother not to take children to organisation known as Z Organisation – Male child has very conflicted relationship with father possibly caused by mother’s belief system as to sexual abuse – Consideration of whether children at risk of emotional abuse in mother’s household – Consideration of whether mother’s belief system may change after the trial process – Order made for equal shared parental responsibility – Children to live with mother and spend holiday time with father – Children to attend specialist paediatrician – Ancillary orders
Family Law Act 1975 (Cth) ss 60B, 60CC, 65DA
B and B (1993) FLC 92-357
Bookhurst & Bookhurst [2010] FamCAFC 26
Briginshaw v Briginshaw (1938) 60 CLR 336
Friscioni & Friscioni [2010] FamCAFC 108
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Hilton v Allen (1940) 63 CLR 691
Jacks v Samson (2008) FLC 93-387
Johnson & Page (2007) FLC 93-344
Korban & Korban [2009] FamCAFC 143
Lindsay & Baker (2007) FLC 93-347
L & T (1999) FLC 92-875
M and M (1988) 166 CLR 69
Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638
Marsden & Winch [2009] FamCAFC 152
Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark [2009] FamCAFC 92
Miller & Harrington (2008) FLC 98-383
MRR and GR [2010] HCA 4
Napier and Hepburn (2006) FLC 93-303
N & S (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Reifek v McElroy (1965) 112 CLR 517
Rice and Asplund (1979) FLC 90-725
Russell v Close [1993] FamCA 62
In Re W (Sex abuse: standard of proof) (2004) FLC 93-192
WK v SR (1997) FLC 92-787 at 84,694
APPLICANT: Ms Geiger
RESPONDENT: Mr Geiger
FILE NUMBER: BRC 14238 of 2007
DATE DELIVERED: 10 September 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 15, 16, 17, 18 and 19 March, 14, 17 and 18 May 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ashcroft
SOLICITOR FOR THE APPLICANT: Family Lawyers & Mediation Services
COUNSEL FOR THE RESPONDENT: Mr Anderson
SOLICITOR FOR THE RESPONDENT: Family Law Doyle Keyworth & Harris
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Burridge
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Kushal
Bridges Family Law Specialists

Orders

Parental responsibility

  1. Subject to the specific orders below concerning the children’s education (orders 13-17) and health, therapy or counselling (orders 18-20) the parties have equal shared parental responsibility for J born … December 2001 and A born … March 2004 (the children) for decisions in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for…

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AGLC
Geiger and Geiger [2010] FamCA 796
Case
[2010] FamCA 796
Decision Date

CaseChat Overview and Summary

This case concerned an application by the mother and father of two children, J and A, for orders regarding their parental responsibility and living arrangements. The court was required to determine the extent of parental responsibility to be afforded to each parent, the specific arrangements for the children's time with each parent, and detailed orders concerning their education, health, and communication.

The central legal issues before the court were how to best promote the children's welfare in light of past allegations of excessive physical discipline by the father, and how to structure the parents' future decision-making and interactions to minimise conflict and ensure the children's safety and well-being. This involved assessing the evidence of past conduct and determining appropriate protective measures for the children.

O'Reilly J made orders for equal shared parental responsibility for major long-term issues, requiring the parents to consult in writing and, if necessary, engage a dispute resolution practitioner. The children were ordered to live with the mother, with specific provisions for time spent with the father during school holidays. The court also made detailed orders regarding communication, gifts, changeovers, education, and health, including restrictions on the mother taking the children to certain counselling services. Crucially, the court found abundant evidence that the father had used excessive physical discipline in the past, though some descriptions of injury were considered embellished. The orders included provisions for the father to receive school communications but otherwise restricted his attendance at the school, and mandated that neither parent denigrate the other or discuss the proceedings with the children. The independent children's lawyer was to remain in place for 18 months.

Orders

Orders of the court

Parental responsibility

1.

Subject to the specific orders below concerning the children’s education (orders 13-17) and health, therapy or counselling (orders 18-20) the parties have equal shared parental responsibility for J born … December 2001 and A born … March 2004 (the children) for decisions in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for the children to spend time with the parties or either of them.

2.

In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.

3.

In relation to such consultations:

a. the parent wishing to make a proposal as to a major long-term issue make it in writing to the other parent setting out the advantages of the proposal perceived by that parent and reasoning supporting it

b. the other parent respond in writing to the proposal by either agreeing with it or making a different proposal setting out the advantages of any different proposal and reasoning supporting it

c. if after such consultation a joint decision is not able to be made the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve the issue.

Living arrangements

4.

The children live with the mother.

5.

The children spend time with the father as may be agreed between the mother and the father but at least:

a. for the whole of the March/April, June/July and September/October school holiday periods commencing at 12 noon on the first Saturday and concluding at 12 noon on the last Saturday of each such period;

b. for two weeks of each of the Christmas school holiday periods, for those commencing in the odd years from 12 noon 14 days before Boxing Day until 12 noon on Boxing Day and for those commencing in the even years from 12 noon on Boxing Day until 12 noon 14 days later.

Telephone communication

6.

If the children express the wish to the mother to telephone the father she facilitate that by permitting/assisting the children to dial his home telephone number once each week between 6.00pm and 6.30pm.

Gifts

7.

The father may give the children Christmas, birthday and other gifts during any school holiday period they spend with him.

Changeover

8.

For the September/October 2010 school holiday period changeover be facilitated by arrangements to be made between the independent children’s lawyer and Mr C, family consultant (or if he be not available another family consultant nominated by the Manager Child Dispute Services) at 4.00pm on the last day of the school term for the commencement of time and at 4.00pm on the last Friday of the school holiday period for the conclusion of time.

9.

On that occasion Mr C (or other family consultant nominated by the Manager Child Dispute Services) explain to the children that they will be spending time with the father for the holidays and then returning to the mother.

10.

The mother, to facilitate changeover at the commencement of such time, must bring the children to Child Dispute Services at 3.30pm and depart as soon as the children are delivered, and the father collect the children at 4.00pm, and at the conclusion of time the father deliver the children to Child Dispute Services at 3.30pm and depart immediately and the mother collect them at 4.00pm.

11.

In relation to the Christmas 2010/2011 school holiday period and all subsequent holiday periods the father collect the children at 12 noon on the designated commencement day at a place nominated by the mother to the father in writing (for example, the Shell Garage at … or McDonalds at …) and return the children to the mother at that place at 12 noon on the designated return day.

12.

For the purpose of such changeovers the father may be accompanied by his partner Ms H and the mother by her partner Mr M and the father and the mother must ensure that they not come within ten metres distance from each other.

Education

13.

Unless there be a joint decision to the contrary, the mother must ensure that the children remain enrolled at the O State School and ensure that the children attend school on all school days unless genuinely ill.

14.

The mother and Mr M, and the father, Ms H and their children may attend all scheduled school functions usually attended by parents.

15.

The father and the mother on such occasions must ensure that they not come within ten metres distance from each other.

16.

The father and Ms H otherwise must not attend at the children’s school unless contacted by the school in relation to any accident or emergency.

17.

The father, by direct arrangement with the children’s school, may receive all letters, circulars, school reports, activity sheets, school photographs and so forth usually provided by the school to parents.

Health and counselling

18.

The mother must ensure that the children attend upon Dr G, paediatrician, P Medical Centre, for all appointments advised by him and that they attend upon all appointments that he may advise or refer at Children’s Youth Medical Health Service or other therapy or counselling.

Restraint on the mother

19.

The mother must not take the children to any therapy or counselling other than upon referral by Dr G.

20.

In particular, the mother must not take the children to any counselling or services of any kind with any person associated with the organisation known as Z Organisation or any other organisation specialising in or purporting to specialise in sexual abuse of children.

Dr G

21.

The independent children’s lawyer provide a copy of these orders and reasons for judgment to Dr G.

Information

22.

The parties must notify and keep each other informed of his and her residential address, email address, text message service number, landline and mobile telephone numbers.

23.

The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.

24.

The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.

Mr M

25.

The mother must encourage the children to call Mr M by his first name and use her best endeavours to ensure that Mr M provides similar encouragement to the children, provided that such be firm but without chastisement.

Corporal punishment

26.

The parties must not use corporal punishment in relation to the children and use their best endeavours to ensure that their respective partners do not do so.

Non denigration

27.

The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children.

Discussions with the children

28.

The mother and the father must not discuss with the children any allegations or disclosures made in these proceedings and use their best endeavours to ensure that their respective partners do not do so and the mother must use her best endeavours also to ensure that the children’s sibling T not do so.

All other orders discharged

29.

All other orders concerning the children are discharged.

All other applications dismissed

30.

All other applications concerning the children are dismissed.

Independent children’s lawyer

31.

The independent children’s lawyer not be discharged for 18 months.

Liberty to apply

32.

The parties and the independent children’s lawyer have liberty to apply on short notice to the Associate by email if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification or if any machinery or s65L orders involving Mr C the family consultant are sought to be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk. In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it. The mother urged the findings set out in ex 14, which I will summarise: The independent children’s lawyer and the father sought that I find that the alleged abuse has not occurred. The evidence concerning the allegations and disclosures is so voluminous that it is not practicable to set it all out. Rather, as I have mentioned already, in these reasons for judgment I incorporate by reference Mr Ashcroft’s able synopsis of the children’s disclosures cross referenced to the evidence (ex 15) and the specific findings sought by the mother also cross referenced to the evidence (ex 14). Thus, what follows must be taken to include my full consideration of all of the evidence whether or not specifically mentioned. There is abundant evidence on which to conclude that in the past the father has used excessive physical discipline in relation to all three children. T, as the children’s older half sibling, at 12 years is of an age to have her descriptions regarded as truthful and reliable. J and A, although much younger at only 8 years and 6 years at the time of the trial gave descriptions of physical treatment of them by the father with sufficient consistency in relation to T’s descriptions to be regarded as having substance. The absence of acute physical injury to any of the children or medical evidence indicating acute physical injury would lead however to conclude that some of J’s descriptions were embellished by him either by imagination or coaching. Mr Burridge, for the independent children’s lawyer, made the following observations in relation to the evidence, which in my view are accurate:· [T] reported to the Department in February 2006 that discipline from the father involved being yelled at and receiving slaps on their bottoms, arms and legs; she explained that she and her siblings receive the same discipline however she does not get smacked on the bottom; the slaps do not leave a red mark and the father yells at them for not following instructions or for using rude words.· [J] told the Department on the same date that at his father’s home he is smacked if he is naughty.· [J] told Police Officer [AS] the father hits him.· [T] told Police Officer [AS] that [J] is not allowed into [A’s] room when she and [T] are playing and if he does he gets smacked and sent to his bedroom, and is slapped when he will not go to bed.· [J] told Police Officer [AS] the father hits him for no reason and hit him with a toy sword and a sword made of timber which hurt and he had a “humungous mark”.· [J] told Mr [C] the father hit him with a sword and it broke.· [J] told Dr [D] the father hit him with swords (plural) on the bottom and the back and that the swords were plastic or wood (whereas in other reports the reference was to being hit with a sword in the stomach).· The mother took [J] to the [local] Medical Centre in November 2007 at which observation was made [J’s] stomach was soft and not tender.· [Ms S], the mother’s sister, said she saw the father grab [J] around the neck and put him in the car when [J] was refusing to go on contact. · The mother said she saw the father grab [J] around the neck at a BMX track in about May 2006.· The mother said that [J] told her after spending time with the father in November 2007 the father had kicked him in the groin area. [J] told this also to Mr [PR], but not to Police Officer [AS].· The child was presented to the [local] Medical Centre on two occasions at the end of November 2007 but there is no entry in the records in relation to any concern or injury as the result of the alleged kick despite the child being presented in relation to an alleged injury to the stomach or abdomen area.· The mother said [A] has told her the father has hit and smacked her. · The mother said [A] has been physically abused by the father by allowing [A] to swallow contraceptive tablets, however, the father said that whilst it appeared she had swallowed the sugar tablets in the pack and not the contraceptive pills he informed the mother and contacted the poisons hotline. The mother said the incident caused [A] to vomit. · The mother said [A] told her the father had hurt her.· The mother said [A] had told her the father had locked her in the toilet.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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