H and T and Ors - [2003] FMCAfam 236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & T & ORS

[2003] FMCAfam 236

FAMILY LAW – CHILDREN – Residence – contact – interim orders – best interests of children – family violence issues – abuse allegations – separate representation – status quo.

Family Law Act 1975 (Cth), s.68L

Cowling(1998) FLC-92-801
Re K (1994) FLC 92-461

Applicant:

BWH

First Respondent:	DPT
Second Respondent:	WNT
Third Respondent:	BMT

File No:

PAM 1752 of 2003

Delivered on:

3 June 2003

Delivered at:

Parramatta

Hearing date:

2 June 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Farah

Solicitors for the Applicant:

Marsdens

Counsel for the First Respondent:

Mr Prosilis

Solicitors for the First Respondents:

Browns The Family Lawyers

Counsel for the Second and Third Respondents:

Ms Turgut

Solicitors for the Second and Third Respondents:

Dignan & Hanrahan

ORDERS

The children PJH born 10 June 1996, EH born 15 October 1997 and NH born 10 October 2000 are to be separately represented for the purpose of these proceedings AND I REQUEST that the Legal Aid Commission of New South Wales arrange such representation.
The orders made by the Local Court of New South Wales at L on
20 March and 8 April 2003 are discharged.
The applicant father is to have contact with the children P and N from 9.00am to 5.00pm each alternate Sunday during school term commencing on 8 June 2003.
The father is to have contact to the child E on one occasion each week at the Centrecare Contact Centre at C at such time as the supervisor or other proper officer of the said contact centre shall appoint, such contact to be supervised by a member of the staff of the said contact centre.
The second and third respondent grandparents are to have contact with the said children P, E and N:
(a)for the first half of each school holiday period;
(b)from 4.00pm on Wednesday to 10.00am on Saturday in each week during school term time; and
(c)at such other times as the parties shall agree.
The grandparents are to be responsible for ensuring that the child N attends physiotherapy at C Hospital on a regular basis and that the said children P and E attend speech pathology at R Community Health Centre on a regular basis as required, and the mother and the father are to do all things necessary to allow the said children to attend that physiotherapy and speech pathology.
The mother is to have contact with the said children at all other times.
The father is not to consume alcohol at any time when the children are in his care.
No party is to administer themselves any prohibitive drug at any time when the children are in their care.
The mother is not to permit TF to exercise any form of physical punishment on any of the said children.
No party is to remove or attempt to remove either of the children P or E from the school at which that child is currently enrolled without leave of the Court.
Subpoenas are to issue returnable at 9.30am on 2 July 2003 as follows:
(a)to the principal of the SR Public School at M to provide copies of the records of attendance and enrolment at the school of the children PJH and EH from and after 19 January 2003;
(b)to the principal of the CN Public School to provide copies of the records of attendance and enrolment at the school of the children PJH and EH from and after 19 January 2003.
The children’s representative is to arrange for the service of the subpoenas as set out in order 12.
The children’s representative is granted leave to issue a further five (5) subpoenas.
Liberty to any party to apply on 48 hours notice.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1752 of 2003

BWH

Applicant

And

DPT

First Respondent

And

WNT

Second Respondent

And

BMT

Third Respondent

REASONS FOR JUDGMENT

Application

The proceedings before the Court involve a three cornered contest between the father, the mother and the maternal grandparents of three children, P who was born on 10 June 1996, E born on 15 October 1997 and N born on 10 October 2000. The three children are, as I understand it, the children of the father and the mother in these proceedings. The proceedings that are before the Court commenced initially by an application filed by the father on 10 March 2003 in the Local Court New South Wales at L. That application was returnable at short notice and came before the Court initially on 12 March. On
8 April of this year those proceedings were transferred to the Family Court with a view to their being transferred on to this Court.
The maternal grandparents, aware of those proceedings, commenced their own proceedings in this Court on 23 May, again seeking short service. The matter came before the Court for the first time on
26 May, and I consolidated those proceedings, and whilst I did not make a formal order as such, it was always my intention that the grandparents should be joined as respondents to the proceedings and indeed, it was the understanding of the parties that the grandparents would be involved in the proceedings. In order to avoid any confusion, I am satisfied that the father, as the original applicant in the Local Court, should be the applicant in these proceedings.
The mother as the original respondent in the Local Court should be the first respondent in these proceedings. The maternal grandparents, as parties seeking to be joined should therefore be the second and third respondent, and they will be referred to accordingly in these proceedings. The appropriate file number is the original file number which is PAM 1752 of 2003, even though another file number was originally attached to the grandparents' application.
A brief history of the parties so far as it is relevant is that the applicant and the first respondent commenced to reside together in a de facto relationship on 18 June 1995. The three children, P, E and N were born in 1996, 1997 and 2000. The parties separated on 19 January this year when the respondent mother left the parties’ home with the children and went home to her parents, the second and third respondents. That arrangement did not last particularly long, and indeed approximately nine days later the mother commenced to reside with a new partner, one TF. She took the youngest child N with her, but for a period of time the elder children remained with the maternal grandparents. The reason that the mother gave for that is that the residence into which she was moving with Mr F at that stage was just across the road from the home where she had previously lived with the applicant, and she feared that the applicant would take some action in respect to the elder children.
The accounts given by the parties in their affidavits, two of which affidavits were only handed to me the morning of the hearing, varied greatly. It is in issue as to whether the grandparents had much prior knowledge of the mother’s relationship with Mr F, or on the mother’s version, whether they expressly encouraged her to form a relationship with Mr F and terminate the relationship with the applicant father. It is not conceded that the two elder children, P and E, were voluntarily placed in the care of the father by means of some intervention or other by Mr F. Mr F is not on affidavit at this stage, although if he is to remain in the picture it would be desirable for the final hearing if he were to be on affidavit. It is also in issue as to the length of time in which the older children remained residing with the grandparents, and in the longer term it is an issue as to the role that the grandparents played in the children’s lives.
What then are the matters where there appear to be some agreement. It appears that the child, P, who was the only one to attend school last year went to school at B Road, a public school in the C area. It also appears to be an established fact that the child, P, was enrolled in the CN Public School and E, who started school this year was also enrolled in the CN Public School. It is also apparent from the affidavit material, although there needs to be some deduction as to this, that those two children are currently attending the SR Public School at N.
The matter went to Court at L on 12 March and interim orders were made on what appears to be 20 March. I am not sure that is right. An examination of the bench sheet would indicate that despite the date of the letter received from the Local Court, that orders were in fact made on 12 March. There was an undertaking by the respondent mother not to attempt to remove the children from any school. That was an undertaking that appears to have been given on 12 March, on my reading of the bench sheet. The matter was adjourned to 18 March. At this stage the matter came before Giles M in the Local Court where the father and the mother appeared. The matter was adjourned to 8 April, and it was apparently on that date that the Court ordered on an interim basis that the respondent mother was not to attempt to remove the said children P and E from any school, and adjourned the matter to 8 April at L Local Court.
On 8 April the parties were legally represented and some orders were made by consent. Those orders were that the matter be transferred to this Court on an urgent basis; and an order that was perhaps incomprehensible, unless one was aware of where the children were at the time, in these words:
That the applicant and respondent exercise supervised contact with the child-children residing presently with the other party for two hours at a venue and time once per week as determined by Centrecare Campbelltown Contact Centre.
The proceedings were then sent off to the Family Court at this stage and transferred by a Registrar directly here. In the meantime, the maternal grandparents had commenced their proceedings. What are the applications before the Court at this stage? The father seeks orders that the children reside with him. He sought orders that would allow the mother to have contact with the children, but sought an injunction to ensure that the children were not left in the sole care of Mr F, her partner.
The grandparents seek orders that the children reside with them. The orders that their application seeks are that the mother have contact with the children on the second weekend of the month, on Mother’s Day and other days as agreed, and that the father have contact with the children on the fourth weekend of the month, on Father’s Day and other days as agreed. Again a restraint is sought from allowing Mr F to have any contact with the children. The mother’s position initially was that the children should reside with her; that the father should have two hours of supervised contact on alternate weekends, plus telephone contact and other contact as arranged; that this contact should be supervised through the Centrecare Contact Service and there should be again an injunctive order against removing the children from a school or anywhere else where they are, and initially the mother sought an order that the grandparents have no contact with the children. After giving instructions to her legal advisers yesterday, that position was changed so that the maternal grandparents were to have contact on a supervised basis with the children.
The circumstances relating to the children have changed since the matter came before the Local Court at L on 8 April. At that stage, the elder children were residing with the father. N was residing with the mother. On the mother’s evidence the grandparents alleged that the father had sexually interfered with the child, E. They reported a disclosure of abuse by the child. The mother’s evidence is that that disclosure was repeated to her. That disclosure was allegedly made on Easter Sunday, 21 April and the following day a notification was made to the Police and to the Department of Community Services. The child was medically examined.
The mother formed the view that it was inappropriate for the older children to remain with the father, and whilst the evidence differs as to the circumstances the upshot is that in some rather direct action on apparently 23 and 24 April, the children were removed from the care of the father, or the presence of the grandparents, by the mother and by Mr F. It is certainly the case that the three children have resided with the mother since 24 April. It is alleged, both by the grandparents and the father that none of them have had contact with any of the children since 24 April, except for a brief period of contact with N.
The mother now resides in M with Mr F and the children, and it appears that the children are now at the SR Public School. The evidence, all of which is untested at this stage, contains numerous allegations of inappropriate conduct by each party, or set of parties against the other. The father and the maternal grandfather allege that the mother’s partner Mr F is a threat to the children, and indeed, the grandfather alleges that Mr F has bashed the children. The father is of the view that Mr F is a drug addict and has introduced the mother, or even injected the mother with some form of prohibitive drug. The mother denies this.
The mother alleges that the father has sexually abused the child, E. The mother alleges that the maternal grandparents are not capable of caring for the children due to their physical difficulties. Diabetes and the absence of a left forearm in the case of the maternal grandfather, and arthritis in the case of the maternal grandmother, and that their home environment is not suitable for the children to reside. The mother alleges that the grandparents have dogs who make a mess in the house; that the maternal grandmother has an adult, presumably child of another relationship, who visits the house from time to time, but has some criminal history for sexual offences against women. The mother is also of the view that the maternal grandparents have interfered in the children’s lives, and have had for some time an intention to remove the children from her care.
The grandparents are of the view that neither parent is a suitable person to have the care of the children. They allege that the father regularly abuses alcohol. This has even involved driving motor vehicles with the children whilst under the influence of alcohol. The mother alleges intimidation, threats and some violence by the father. The circumstances in which the elder children were returned to be taken into the care have resulted in apparently assault charges against Mr F, and there are now interim apprehended violence orders and applications for apprehended violence orders by the mother against the father; by the father against the mother’s de facto; and by the father against the mother. Two of those at least are for hearing on a defended basis in the Local Court on 1 July.
The grandparents allege that the mother now, and the father generally, have not attended to the children’s specific physical needs, which involve physiotherapy for the young child, N, and speech pathology for the elder children. The mother alleges that the father has never played much of a parenting role. The mother alleges that the father has assaulted her and the children. The grandparents allege that the children have now lived in three residences this year, and that their schools have been changed, certainly in the case of P.
There are many matters, therefore, that are in dispute, and there are many causes for concern. It is hardly surprising that I have formed the view that if ever there were a matter where the children needed to be separately represented, this is such a matter. There are a number of guidelines set out in the decision of Re: K (1994) FLC 92-461 which would appear to point to separate representation. They include allegations of abuse and even include the situation that on the face of the material that was filed, untested as it is, that an argument could be made that neither parent is a suitable custodian of the children.
What, however, is to happen to the children in the meantime? There are a number of quite disturbing factors. The allegations of drug abuse against Mr F are denied by the mother. She says that, yes, he is on a methadone program which is supervised, and has produced urine analysis material which indicates that yes, he has methadone in his blood stream, but no other drug. She puts that he went on to a methadone program under medical supervision, and that over the years the amount of methadone that he has been taking has been significantly reduced. She denies that there are needles in the house, or that she herself injects any drug.
She denies that Mr F is a threat to the children as far as violence is concerned, and described him as a loving partner, after what is apparently quite a brief relationship, certainly on a live in basis. The allegations of abuse of alcohol and of the use of violence by the father are matters of serious concern. It goes without saying that an allegation of sexual abuse which has been reported to the Department of Community Services, amongst other agencies, would cause a great deal of concern.
I would have to say that the evidence relating to the sexual abuse allegation is not strong. The matter is referred to in the mother’s affidavit which as I say was filed in Court yesterday. In paragraph 15 she says:
On or about Easter Sunday 2003, I observed that the paternal grandfather made allegations of sexual misconduct involving the applicant, that is, the father and E. The paternal grandfather said to me words to the effect, “E has said to me that B touched her down below".
The mother goes on to say:
I observe that I questioned E about these allegations and E said words to me to the effect, “Daddy touched me down below.”
The mother then indicated that she reported this allegation. She also indicated that apart from reporting the allegation to the Police, the Department of Community Services and others, she reported the matter to Dr MF on 23 April, and he examined the child. A copy of a letter from Dr F dated 23 April is annexed to the mother’s affidavit. I would comment that whilst I am prepared to accept the letter from the doctor annexed to the mother’s affidavit for the purpose of these proceedings, it is not on a final basis, the way in which medical evidence should be received. The appropriate course is for the particular doctor to be on affidavit, and be available for cross-examination if necessary. That, however, is for a final hearing.
The report from Dr F, which is handwritten annexed to the affidavit, could be described as not the strongest evidence of sexual abuse that one would expect to see, and I quote from the report as follows. It is dated 23 April 2003, and it says:
Dear DOCS Worker, Re ET. I examined ET, date of birth 5/10/97. Physical examination was unremarkable, although genital examination was not possible. I would be grateful if you could contact me about her.
Well the fact is that that medical report does not say anything. It does not indicate in the slightest whether this child has been sexually abused. Of course the mother has said that the original disclosure of sexual abuse on the child by the father was made to her father, the second respondent. I look at the affidavit of the second respondent that was sworn on 22 May. In that the grandfather makes a number of comments about both the mother and the father. He indicates a worry about the children in the care of either one of them in contacting the Department of Community Services. He goes on to talk about his own attendance on the children’s medical advisers with the children. He makes comments which are certainly critical of the father relating to the father’s abuse of alcohol and the father’s violence towards the children, and both the father and the mother not providing the children with medical attention.
It is therefore a matter of considerable surprise that in an affidavit sworn on 22 May, he makes no reference whatsoever to a disclosure by the child E to him that she has been sexually interfered with by the father as recently as a month beforehand. There is absolutely no mention of it. He does refer to an incident of sexualised behaviour involving a rather extraordinary matter that took place on 28 April regarding the child E, who at that stage was at CN Primary School. He annexes a copy of a handwritten report from one RB, who was then class teacher of the child E.

Now again, if anything is to be made of this evidence on a final hearing, one would think that Mrs B would need to be on affidavit. What she does, however, is report a situation where she bent over whilst in the classroom to fix a pencil sharpening machine, and she says that the child E poked her in what she describes at the buttocks area, in an action which would be referred to in the vernacular as “goosing” her, although she does not use that term. That is a description of what happened. Needless to say, she took this extraordinary behaviour very seriously and informed the grandfather and the school principal. The grandfather refers to this incident, and says that that is being investigated. But as I said, strangely makes no reference to an alleged disclosure by the child to him of sexual assault by the father.
In the circumstances, whilst I am concerned the allegation of sexual abuse by the father would have to be seen as not carrying a great deal of weight at this stage. Indeed, the mother does not seek there should be no contact between the father and the child on an interim basis. She seeks supervised contact in respect of all three children.
There is concern about the school attendance of the children, or the schools which the two elder children attend. Last year on the evidence, P went to BR Public School. The mother and the father separated on 19 January and for one reason or another, P and E were enrolled at CN Public School. I note that the Local Court apparently first took an undertaking from the mother and then made an order restraining the mother from changing the children’s school, but it now appears that the children are at SR. The mother in her affidavit refers to residing at M, and refers to the children being only a four minute walk from their new school.
An examination of the geography of the C/M area indicates that it is just not possible to walk for four minutes from G Avenue in M and reach CN Public School. The only school that they could reach is, in fact, S R, and yet there is a Court order in force saying that the children were not to change schools. Indeed, there is also a Court order made by consent on 8 April relating to residence and supervised contact. The mother seems not to have complied with that either, but removed the elder children and taken them into her care in circumstances which seem to have led to apprehended violence proceedings.
It is difficult to see what evidence can be persuasive in respect of the mother’s claim that the grandparents should only have supervised contact with the children. There is certainly no evidence that would persuade me that the grandparents should have no contact with the children. There is certainly evidence that, from both the father’s affidavit and the grandfather’s affidavit, albeit there is a duplication of documentations, that it has been the grandfather who has taken the child N to most of his physiotherapy involving problems with his legs since birth, and has taken the children P and E to speech pathology.
I note that in the father’s affidavit the child N is referred to as having undergone psychotherapy since birth, which would seem to be extremely unlikely in the circumstances, and I take that as a misprint to mean physiotherapy.
It would seem to me that the evidence at this stage on the papers points to the grandparents as the ones taking the major role in dealing with the children’s particular childhood problems. There is no evidence at this stage that would persuade me that notwithstanding the allegations of the dogs in the house supervised contact would be of any assistance, or that it is called for.
I of course, look at the question of interim residence as set out in the decision of the Full Court of the Family Court in Cowling (1998) FLC 92-801. The Court has said that:
In determining an interim residence application the best interests of the child are the paramount consideration. These interests will normally be best met by ensuring stability in the child’s life pending a full hearing of all relevant issues. Where at the date of the hearing the child is well settled in his or her environment, that stability will usually be promoted by an order providing for a continuation of that arrangement, unless there are overriding indications relevant to the child’s welfare to the contrary. Such overriding indications would include convincing proof that the child’s welfare would be really endangered by the child remaining in that environment.
Is there a well settled environment? It is difficult to say that there is a well settled environment. Indeed, a cynical observer may comment that the situation in the children’s lives, certainly since 19 January, has been one approaching chaos. The two elder children appear to have lived with their parents together; with their mother and grandparents for a period of time; with their father; then with their mother and mother’s new partner, Mr F. The child N has remained with the mother at all times, although has lived in the former family home, the grandparents' home, the residence of Mr F with the mother opposite the former family home, and now in this current residence in M.
The child P went to school at BR last year. He and E started at CN this year. There is an allegation that for three days they went to SR School at M, and then returned to CN. But it now appears that they are now at CN, as I said despite the order made by the Local Court. There appears to be very little stability in the children’s lives, and indeed where there is a volatile situation when partners have recently separated, often attendance at school is one of the few areas of stability that a child has. This appears to be denied to P and E at the moment.
As I have said, this is a matter where the guidelines in Re: K (supra) for separate representation appear to be well and truly met. At this stage the evidence seems to be that the child N has resided with his mother for most of his life. That the elder children have spent some time with their father, but have resided with their mother for most of the time, and the children are currently together. I am not satisfied that it would be in the best interests of the children at this stage to uproot them from where they are, and to uproot the two elder children from the school that they are currently attending in the middle of a school term.
At the same time, the evidence relating to the mother’s changeable behaviour; the acting in what appears to be contravention of all orders made by the Local Court in March and April; and the rather unknown relationship with Mr F do not auger well for the children residing with the mother on a long term basis, but evidence needs to be brought to the Court and tested. In fact, I propose to grant leave for subpoenas to be issued to the principals of the SR Public School and the CN Public School so that details of the children’s attendance and enrolment at each of those schools can be brought before the Court at an early stage for the benefit of the children’s representative. I also propose to give leave to the children’s representative when appointed to issue a further five subpoenas without reference back to the Court.
As far as the children residing with the father is concerned, the allegations against the father are such that this is not indicated at this stage. I still have some concerns about the particular allegation relating to the child E. The strongest evidence, of course, relates to the child’s apparently sexualised behaviour at the school. The evidence does not to my mind support an order that there should be no contact between the father and any of the children, or indeed support an order that the contact between the father and the two boys should be supervised except that I would be reluctant at this stage to make an order for overnight contact. I am of a mind that to err on the side of caution until harder evidence can be obtained that contact between the father and the child E should be supervised.
As far as the position of the maternal grandparents is concerned, I have indicated that I do not propose to uproot the children at this stage and place them with anyone else other than the mother with whom they are living at the moment. There is no evidence which would, to my mind, persuade me that there is a need for an order that there should be no contact with the grandparents or supervised contact. There is evidence that the grandparents, particularly the grandfather have played an active role in taking the children to physiotherapy, speech pathology and other medical matters, and there is some evidence in support of that. I would be of the view that this is an active role that the grandparents could take, and I am of the view that the evidence suggests that the grandparents have played a role in the children’s lives.
I am of the belief that there should be contact on a regular and frequent basis. I am of the view that it should be on a couple of days a week including overnight contact and that the grandparents should be, at this stage, entrusted with the responsibility of ensuring that the children do attend physiotherapy, speech pathology et cetera, which apparently is a role that the grandfather has undertaken.
The mother’s allegations about the inappropriateness of the grandparents' residence do not carry a great deal of weight. Indeed it was to that residence that she took herself with the children when she left the home that she and the children had shared with the father. It is hard to say what brought about the subsequent falling out between the mother and the grandparents. The mother says that the grandparents interfered. That is not a basis to place restriction on their contact. At this stage I am of the belief there should be regular contact.
All in all this is a matter that causes me a great deal of concern and I propose to revisit the entire question of where these children reside once a child representative has been appointed, and once some further evidence relating to schooling and accommodation of these children can be before the Court, and including the results of any investigation by the Department of Community Services and others. It is for these reasons that I make the following orders until further order.
I note that there is some discrepancy as to the name of the surnames of the children. I did order on 26 May that the father was to file a copy of the birth certificates of each of the children within 14 days. He was not able to produce those birth certificates yesterday on the basis that he said he had left them in his other jacket. I require those birth certificates to be made available to the Court within the 14 day period. I propose to bring this matter back to the Court early in July during the school holidays. At that stage I will hear from the children’s representative and I can indicate that the entire question of parenting orders, residence and contact on an interim basis will be a matter that I will be prepared to revisit at that time.
I require a transcript of my reasons for decision. The parties are to forward copies of the pleadings filed in this matter to the Legal Aid Commission within five working days, and I will arrange for copies of the documents on the Court file together with a transcript of my reasons for this decision to be forwarded to the Legal Aid Commission.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: C. Soliman

Date: 27 June 2003