Harke and Edward - [2011] FMCAfam 536

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARKE & EDWARD

[2011] FMCAfam 536

FAMILY LAW – Parenting – allegations of sexual abuse – unacceptable risk – equal shared parental responsibility.

Family Law Act 1975, ss.60CA, 60CC, 61DA and 65DAA
Federal Magistrates Court Rules 2001, Rule 16
Evidence Act 1995 (Cth), s.140

Collu & Rinaldo [2010] FamCAFC 53
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Murphy & Murphy [2007] FamCA 795
Nikolakis & Nikolakis [2010] FamCAFC 52
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192

Applicant:

MS HARKE

Respondent:

MR EDWARD

File Number:

BRC 982 of 2008

Judgment of:

Howard FM

Hearing dates:

7 October 2010, 3 February 2011 and 4 February 2011

Date of Last Submission:

4 February 2011

Delivered at:

Brisbane

Delivered on:

25 July 2011

REPRESENTATION

Applicant appearing in person:

Ms Harke

Counsel for the Respondent:

Mr G. Burridge

Solicitors for the Respondent:

Springwood Lawyers

Counsel for the Independent Children’s Lawyer:

Ms R. Lyons

Solicitors for the Independent Children’s Lawyer:

Lyrene Wiid Lawyer & Migration Agent

ORDERS

Within 21 days of the date of this Order the Independent Children’s Lawyer shall forward Orders to the Court which reflect the Reasons for Judgment.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 982 of 2008

MS HARKE

Applicant

And

MR EDWARD

Respondent

REASONS FOR JUDGMENT

Background and Preliminary Issues

This is an application for parenting orders in relation to one child. The parties cannot agree on what parenting orders should be in place. The child in this case is [Y] born [in] 2006.
The mother, Ms Harke, was born [in] 1985.
The father, Mr Edward was born [in] 1974.
The parties in this case lived together between January 2006 and April 2007. The parties separated on a final basis on 11 April 2007.
The mother has one other child, namely [X], born [in] 2004.
The father has one other child, [Z], whose date of birth is [omitted] 1997.
The parties’ relatively short relationship was characterised by conflict.
There are, of course, many issues for the Court to consider in any parenting case. The Court must determine the case having regard to the various provisions of the Family Law Act1975. In particular, section 60CA of the Act states that the Court must regard the best interests of the child as the paramount consideration in making any parenting order. Section 60CC of the Act sets out how a Court is to determine what is in a child’s best interests. Before referring specifically to the legislation, there are various issues that need to be considered by the Court and addressed at the outset.
After separation the parties had originally agreed to parenting orders. The original final order was made by consent on 11 March 2008. By that order, the child was to live primarily with the mother and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harke and Edward

Details

AGLC: Harke and Edward [2011] FMCAfam 536
Case: [2011] FMCAfam 536
Decision Date: 25 July 2011

CaseChat Overview and Summary

The case of Harke and Edward involved a complex dispute between the parents of two young children, [Y] and [Z]. The father, Mr Edward, was accused of various forms of neglect and potential abuse by the mothers, Ms Harke and Ms L. The Family Court was tasked with determining the best interests of the children and deciding on the appropriate parenting arrangements. The legal issues revolved around the allegations of sexual abuse and neglect, the emotional and psychological well-being of the children, and the fitness of the parents to care for them.

The court meticulously examined the allegations against Mr Edward, including claims of sexual abuse and neglect, alongside the broader dynamics of the family relationships. The court considered the credibility of the allegations, the impact of the father's past criminal history, and the overall safety and welfare of the children. The analysis highlighted the need for a careful balance between protecting the children from potential harm and maintaining their relationship with their father.

The court concluded that, while there was no definitive evidence to support the allegations of sexual abuse, the father's lack of diligence in ensuring the children's safety was concerning. The emotional and psychological impact on the children of being separated from their father was also a significant factor. The court opted to reinstate the previous care arrangements but imposed specific conditions to protect the children from potential harm, including prohibiting contact with the paternal grandfather and cousin [K]. Additionally, the court recommended psychiatric assessments for the parents and the children to better understand their mental health and parenting capabilities.

The court's final orders included arrangements for the children to spend equal time with both parents, with specific provisions to ensure the children's safety. The Independent Children's Lawyer was tasked with arranging psychiatric assessments and forwarding the final orders to the court within 21 days. The court emphasized the paramount importance of the children's best interests in making these decisions.

Orders

Orders of the court

Within 21 days of the date of this Order the Independent Children’s Lawyer shall forward Orders to the Court which reflect the Reasons for Judgment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In considering this particular sub section it is important to review the family reports. The first family report was prepared by Ms J. and is dated 22 August 2008. It is annexed to an affidavit filed 9 September 2008. The family report at that stage was prepared in relation to the “Edward/L./Harke” families. Ms J. was considering the parenting arrangements in relation to both [Y] and [Z]. Ms J. concluded that:-“SUMMARY ASSESSMENT AND CONCLUSIONS157) This matter is complex and it is beyond the scope of this Report to provide definitive conclusions about safety issues for the children.”158) The paternal grandfather was convicted on several counts of child sexual assault several years ago and served time for this. He was released on parole in 2005. His parole conditions require him never to be in the company of children without other adults present.“159) Mr Edward’s information about these assaults was scant and I note some discrepancies between his account and that of Ms Harke, in particular that the crimes were committed in the 1970s whereas she says that they took place in the 1990s.160) Mr Edward only ever provided Ms Harke with minimal information about the nature of the issues and allegedly told her definitively that she was not to ask questions about this. I note that she willingly complied with this, acting with what must be seen as poor judgment in this regard, particularly as they had a baby together and were actively involved with the grandparents.161) I assume that he also didn’t provide Ms L. with much information either. It is open to assumption however that, since she and Mr Edward were estranged at the time and the case attracted considerable publicity, she either trusted Mr Edward implicitly to safeguard [Z] or she too acted with poor judgment by never questioning what was happening. She asserts that she didn’t know that [Z] was staying with the grandparents without Mr Edward being present. Her assertion was not greatly compelling during this assessment.162) I note that Mr Edward considered it was safe for the children to stay overnight with the grandparents because his mother was in the house. This of course is an unsatisfactory supervisory arrangement since she couldn’t be awake and watchful at all times. It is my view that Mr Edward has not grappled emotionally with the full implications of his father’s crimes.163) While it is not suggested that the grandfather has sexually abused either of the children, it is nevertheless critical that the children are protected entirely from him.164) Both mothers have always agreed to Mr Edward having care of the girls on an equal-time basis. Indeed Ms Harke relinquished [Y] into his care for three months in late 2007 because she was not coping personally.165) Both mothers read the Anglican Report in early January this year and I am informed that it details Mr E. (Snr)’s crimes and circumstances. They were shocked and galvanized into taking protective stances for the first real time. They reacted as though in crisis; yet there was in fact no actual new crisis.166) Ms Harke’s insistence that [Y] was not to come into contact with the paternal grandfather was reasonable and responsible, although the manner in which she went about it has been inflammatory and provocative.167) I cannot comment upon why Ms L. suddenly decided to commence legal measures when the only given ‘trigger’ was a New Year’s Eve party that she regarded as negligent supervision of [Z]. Mr Edward is adamant about collusion between the two ladies for ulterior motives of extruding him from the children’s lives. I doubt if this is so, although it is undeniable that it actually became the end-result. I am confident however that the two ladies had extensive discussions about the situation and that each’s fervour has been fuelled by the other.168) In April however, [Z] was sexually assaulted by her cousin while in Mr Edward’s care.169) At face-value, Mr Edward’s explanation for why he didn’t anticipate anything going wrong was compelling; the children had played together like brother and sister since they were preschoolers. However more penetrating examination than I could conduct here might reveal a spectrum of other questions about [K]’s general behaviour and whether Mr Edward ought to have known that the boy might have adjustment problems. It is hard to imagine that he was, in all other respects, a well-balanced socially and emotionally competent lad. Even so, it still might have been an excessive expectation that he knew what was happening.170) Virtually simultaneously three other events happen. Mr Edward is accused of breaching the March Court Order and bringing [Y] into contact with the grandfather, [Y] has an unexplained bruise in her genital region and [X] discloses that Mr Edward sexually abused her several months ago. The data to support these assertions appears slender. The first relies on [Z]’s say-so. The mother didn’t take [Y] to the doctor with the bruise and there is no data to say whether it was actually a bruise, or an adverse reaction to medication, or something else. Just in itself, the timing of [X]’s disclosures raises serious doubt about likely sexual abuse. Moreover the mother’s account of her conversations with [X] suggests the presence of leading questions.171) In summary, there is no data available to this assessment to support the allegations that Mr Edward has sexually abused any children.172) On the other hand, he has been insufficiently diligent in supervising his daughter’s sexual safety. There is a question over whether his judgment is impaired in this regard or whether, as I have said, this is the unfortunate set of circumstances that could befall any unsuspecting parent.173) Ms L.’s concern about Mr Edward having [Z] at adult parties takes on stronger focus in the light of his above-mentioned lack of diligence in supervising her. I am unable to say whether he had rationalized his actions or whether Ms L. has actual cause for concern.174) [Z] has been missing her father profoundly. It is my view that Ms L. hasn’t wanted to acknowledge the depth of their attachment. It is notable that Ms L. is agreeable to [Z] having day contact but, on the face of it, even her daughter’s distress has not engendered her to make overtures to commence this prior to the Court Hearing.175) It was not possible to assess what impact separation from her father has had on [Y]. While she related brightly with him, she spent the bulk of her time pursuing toys that attracted her curiosity – what 2-year-olds normally do.176) Like Ms L., Ms Harke’s anger for Mr Edward lies not far below the surface. During this assessment, she refused to allow [Y] to spend extra time with Mr Edward whiles she was being interviewed, even though this would have been supervised. She rejects the idea of his girlfriend’s 4-year-old son sleeping in the same room as [Y]. In my opinion, Ms Harke is struggling to apply any effective balance or moderation to her now passionately protective instincts.177) For his part, Mr Edward’s cold anger and disdain towards both ladies is raw and barely contained. It is easy to see that he would have been unlikely to listen to complaints that either of them raised.178) It is my view that a psychiatric assessment may help to shed light on the personal functioning of each of the adults.179) There is a further issue of which I am mindful and which I have not been able to address effectively during this assessment, namely Ms Harke’s capacity to parent effectively and consistently. She has suffered from a psychiatric illness that I know little about, and there are indications that she struggled with developing a maternal bond with [Y].180) In the meantime I am inclined towards reinstating the previous care arrangements but including Orders that Mr Edward doesn’t bring [Y] or [Z] into contact with the grandfather or [K].181) In recommending this, I am conscious that more information may come to light which suggests greater risk in Mr Edward’s care than I know about and that this might need to be reviewed again. I have weighed up the delays in gathering greater information against the emotional cost to the children of having their relationship with their father severed. I have favoured the latter as being the greater known risk at present.182) RECOMMENDATIONS183) From the information available to me at the time of this report preparation, it is recommended that the following actions be given serious consideration at this stage;a) [Z] returns to spending week-about in each of her parents’ care.b) [Y] returns to the care arrangements outlined in the March 2008 Consent Orders.c) Mr Edward is to ensure that neither child comes into contact with the paternal grandfather or [K].d) The Independent Children’s Lawyer arranges for an independent psychiatric assessment of the father, Ms Harke and Ms L., with the psychiatrist having access to any available medical health records.”

Ratio Decidendi

Legal Principle Established

I note that section 60CA of the Act states:-“SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” In determining what is in a child’s best interests section 60CC sets out what a Court must take into account. Section 60CC(1) and (2) state:-“SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTSDetermining child’s best interests60CC(1) Subject to subsection (5), in determining what is in the child’s best interest, the court must consider the matters set out in subsections (2) and (3).Primary considerations60CC(2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.” Certain allegations have been made in this case which require the Court’s attention at the beginning of these Reasons for Judgment. One of the primary considerations is the need to protect children from physical or psychological harm or abuse. It is therefore appropriate for the Court to consider at this stage the allegations that have been made by the mother. There are three sets of allegations or disclosures referred to in the evidence. The mother has alleged:-a)that she observed bruising to [Y]’s mons pubis[1] on 4 May 2008, or thereabouts;b)that [X] disclosed to the mother on or about 10 May 2008 that the father (Mr Edward) had touched the child on her genitals/bottom and the mother further alleged that as a result of such touching that [X] had been displaying sexualised behaviour; andc)around late December 2008 while changing the child [Y]’s nappy, the mother noticed a rash. The mother also alleges that [Y] told the mother that her stepfather had touched her, but then the mother says that [Y] told her that it in fact was the father who had touched her. [1] Mons pubis: “The superficial cushion of fat covering the body of the pubis” (Butterworth’s Medical Dictionary, Second Edition, 1989). Before considering the allegations in more detail – a review of some of the more important cases in this area is necessary. In M v M (1988) 166 CLR 69 the High Court stated, inter alia, from page 76:-“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) 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.”His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw (1938) 60 CLR 336, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. 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 assess 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. 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] V.R 298 at p. 300), “an element of risk” or “an appreciable risk” (Marriage of M. (1987) 11 Fam. L.R. 765, at pp. 770, 771), “a real possibility” (B. v. B. (Access) [1986] F.L.C. 91-758, at p. 75, 545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164, at p. 167), and an “unacceptable risk”: In re G. (A minor) [1987] 1 W.L.R. 146, 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.”