Hartford and Ansilda

[2008] FamCA 198

FAMILY COURT OF AUSTRALIA

HARTFORD & ANSILDA [2008] FamCA 198

FAMILY LAW -  CHILDREN  -  Magellan  -  interim orders  -  court’s power to reject claim for supervision when no findings made about alleged sexual abuse.

Family Law Act 1975 (Cth) Div. 12A, s. 62G(2), s.62B and s.65DA(2)

FATHER: Mr Hartford

MOTHER: Ms Ansilda

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 10686 of 2007

DATE DELIVERED: 25 February 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 25 February, 2008

REPRESENTATION

COUNSEL FOR THE FATHER: Mr I.F. Mawson SC

SOLICITOR FOR THE FATHER: Gillian Coote Family Law

SOLICITOR FOR THE MOTHER: Berry Family Law

INDEPENDENT CHILDREN'S LAWYER COUNSEL: Mr R. Allen

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

1. That until further order … (“the child”) born … December, 2006 live with the mother. 

1. That until further order the father spend time with the child as follows :

   (a)commencing on Tuesday 26 February, 2008, on each Tuesday, Thursday and Sunday, from 9:00 am. until 11:00 am.;

   (b)commencing on Tuesday 11 March, 2008, on each Tuesday, Thursday and Sunday, from 9:00 am. until 12:00 noon;

   (c)commencing on Tuesday 25 March, 2008, on each Tuesday, Thursday and Sunday from 9:00 am. until 1:00 pm.;  and

   (d)at such other times as are agreed between the parties. 

1. That unless agreed otherwise, changeovers take place at the mother’s residence.

1. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released before 15 April, 2008.

1. That the parties attend a trial notice listing with the Magellan registrar on 23 April, 2008 at 3:00 pm. 

1. That the reasons for judgment this day be transcribed and copies made available to the parties. 

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10686 of 2007

MR HARTFORD

Father

And

MS ANSILDA

Mother

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The parties had a short and disjointed relationship.  They disagree about the intensity of the relationship and the commitment expressed by each of them.  It is not contended that the relationship, whatever it was, existed for more than a couple of years from September 2005 until around July or August 2007.  They have a daughter, (“the child”), who was born in December 2006. 

1. The mother's evidence is that in 2007 the father behaved in a flagrantly sexualised way towards the child.  These are not allegations of behaviour which she saw as being open to a range of interpretations.  Her allegations are of behaviour of a clearly sexualised nature.  She alleges - these allegations are set out in her form 4 and in affidavit material, and are referred to in the expert evidence - that the father licked the child’s vagina, permitted the child to suck his tongue, supported the child on his erect penis, attempted to continue a sex act after the mother picked up the child to comfort her and masturbated in front of the mother and the child.

2. It is difficult to date the allegations with certainty, a problem adverted to by counsel for the independent children's lawyer and senior counsel for the father.  On one construction of the mother's evidence, the conduct began or was first observed in April 2007.  On any construction of her evidence it was allegedly apparent in the period from May to July 2007.  Notwithstanding what she now describes as flagrantly sexualised and inappropriate behaviour, the mother pursued her relationship with the father.  Indeed, she deposes to her belief (a belief that continued after observation of the behaviour) that her relationship with the father was to be a committed and lifelong one.  On her account, she made no complaint about the behaviour on observation.  It was only after the relationship came to an end, an end not of her choosing, that she raised these allegations. 

1. The proceedings in this court commenced on 25 September 2007 when the father filed an application seeking equal shared parental responsibility, that the child live with the mother and that he spend time with the child on a graduated regime, culminating in week and week-about residence.

1. On 12 November, 2007 interim orders were made, by consent, providing for the father to spend time with the child on Tuesdays and alternating Saturdays and Fridays, between 9.00 am. and 11.00 am., and otherwise as agreed.  The time was to be spent at the mother's residence and to be supervised by the mother or by such other person as was agreed by the parties.  Both parties were to be psychiatrically assessed. 

1. On 16 November, 2007 the mother filed a response seeking that the child live with her, that she have sole responsibility for the child’s long-term and day-to-day care and the father have two hours supervised time with the child in each week, supervised by the mother, a mutually agreed person or at a contact centre.  On the same day she filed the form 4 containing the allegations to which I have adverted. 

1. Later in November the matter was assessed as suitable for the Magellan list and the usual procedural orders were made.  The court has before it a Department of Human Services report, dated 4 January 2008, relating to a notification made on 13 November 2007.  That report notes that SOCAU members attempted to contact the mother on a number of occasions after the allegations were made.  They were willing to attend her home.  She failed to return their calls.  Eventually, she contacted the police and advised she not wish to take the matter any further.  The Department of Human Services attempted to contact the mother, with a similar lack of success.

1. The father made himself available to the Department of Human Services, was interviewed and maintained his denials, as he has since the allegations were made.  Counsel for the mother has said that the mother will explain the reasons for her reticence in cooperating with police and child protection enquiries “in due course”.  He has referred to her desire not to have these allegations published, as she has three children from two other relationships, who she wishes to protect.  I say nothing further at this stage about that desire, save that in the light of the evidence of her former husband of his discussions with their children, that sits a little uneasily. 

1. The parties are embroiled in litigation in a number of courts.  An application brought by the mother for an intervention order is part-heard in the Magistrates' Court of Victoria and due to resume in early April.  Reference has been made to an injunction made in the Supreme Court of Victoria which enjoins the mother from informing any person, publishing or commenting about any allegation of sexual abuse by the father of his daughter.  The father is the plaintiff in those proceedings.  There are exemptions for evidence adduced in this trial or information provided to police or DHS investigating allegations.

1. Today, I granted the mother leave to file and rely on an affidavit sworn by her former husband, Mr A. Much of it is inadmissible on any basis, whether under the provisions of Division 12A of the Family Law Act 1975 or otherwise. At least two things are of concern. The first is the contents of paragraph 9 which reads as follows:

   Insofar as the following comprises hearsay evidence, I ask the indulgence of this honourable court. 

   (a)I do not wish in this affidavit to advise the court of the identity of the person referred to in this paragraph.  I have been advised by that person that they do not wish to give evidence as a consequence of threats made against that person by the father. 

   (b) I have been advised that the father has a sexual relationship with [S], a man who presently lives in the father's property. 

   (c)I have been told that the father has child pornography, a CD.  The person who advised me of this said that they were doing so from concern for my sons.  

1. First, if it is right that the unnamed person - I can have no idea what his or her connection is with the family - does not wish to give any evidence, these allegations could never be tested.  Second, the nature of the allegations are such that even in an interim hearing, no court would place weight on them unless advised of the source of the hearsay.  Third, the allegation about the father having a sexual relationship with a man with whom he has shared accommodation is not a new one, and one wonders what relevance it would have were it true.  Finally, the un-named informant who advised that he or she was doing it from altruistic concern for Mr A’s sons, might not be happy to know that Mr A is apparently discussing the alleged behaviour with those sons, aged 11 and seven, who live in the same home as the child.

1. I have already noted the history the mother gave to Dr E of her former husband’s violence directed at her during their relationship.  Were the court to find her statements true, they would cast real doubt on his understanding of parental responsibility, and judgment, violence to a child's parent being abusive of the child as well as the parent.  But those are matters for the trial.

1. It is ironic that counsel for the mother has sought that the court place no reliance on the untested evidence of the single expert witness, Dr E, who the parties agreed to see, but asks it to place reliance on the untested evidence of the wife’s former husband, and what I would describe as a scurrilous paragraph.  Clearly, the mother is entitled to test Dr E’s evidence, and that can occur in due course.  However, it is legitimate for the court to consider it now, as it considers all the evidence before it. 

1. Dr E’s evidence is that he has no concerns about the psychiatric state of either of the parties.  At paragraph 6 on page 16 of his report, he says of the mother’s account to him :

   What was missing in her account, given her love for and desire of him, was her chagrin, hurt, anger and grief.  It is quite likely, I believe, that the allegations have occurred in the context of her own sense of being unsafe and unprotected by [the father] when it became apparent that he would not be playing the role of her protector and supporter, as [her former husband] had done.  Rather, she sees herself as the victim of his perceived unreliable, threatening, insincere and abusive behaviours, both to herself and her daughter.  This was the context in which [the mother] secretly taped a conversation between them during which she repeatedly attempted to obtain an admission of his abuse of her daughter. [The father] refused to comply with her requests and accusations and his account leaves no doubt that he regards [the mother] as attempting to entrap him in the process. 

1. Dr E’s opinion was that, on the information made available to him - and any expert's evidence is only as good as that - coupled with his professional observation of the parties, neither presented as suffering from any psychiatric condition.  He thought the mother was more vulnerable but did not present with any condition that would render her a risk to her own daughter. 

Proposals

1. The independent children's lawyer proposed that the father move to unsupervised time with his daughter, initially from 9.00 am. to 11.00 am. on three days a week, then 9.00 am. to 12.00 noon and eventually 9.00 am. to 1.00 pm., and other times as agreed.  He proposed that changeovers take place at the mother's residence.  Senior counsel for the father proposed a regime which would start with three hours rather than two, and move to six hours rather than four, but in essentially the same terms as the ICL.  Counsel for the mother proposed that the child spend time with her father at the times proposed by the independent children's lawyer, but that it be supervised either by the person currently supervising his time, or as agreed between the parties, or as recommended by the independent children's lawyer. 

1. This is an interim determination, which means that the evidence before the court cannot be tested.  The court cannot make findings on facts which are in dispute, of which there are many.  It must do the best it can, and focus on more objective evidence when considering where the best interests of the child lie.  The focus in an interim case is exactly the same as in a final decision, in that it is the best interests of a child which are paramount, not the parents' wishes and desires.  The provisions that relate to children in the Family Law Act 1975 rest on two pillars. The first is the importance of children having as meaningful a relationship as is consistent with their best interests with both parents. The second is the need to protect children from physical and psychological harm.

1. It is put by counsel for the mother that the court cannot today determine what is described by him as the final issue, being whether there is a need for supervision of the father's time with his daughter or not.  If that were right, there would be no point in having any interim hearing in a case in which an allegation of violence, physical or sexual, was raised by a party.  Arguably, there would be no point in having an interim hearing when an allegation of emotional abuse was raised.  If the law is as described by counsel for the mother, if one party made allegations of physical, sexual or emotional abuse and sought supervision, the court would have to order supervision.  That is to misunderstand the court process and the law.  As in every case, the court must weigh the evidence, always erring on the side of caution, having regard to its focus on the best interests of the child.  

1. I am mindful of the child’s age and the importance of protecting vulnerable children from abuse.  I am also mindful of the importance of maintaining relationships between parents and children.  The orders sought by the father are, in the long run, for a shared residence arrangement.  That is the final issue to be decided by the court, not the question of his time with the child in the meantime. 

1. I am mindful of the High Court's admonition in cases where allegations of sexual abuse are made, that the court must not focus exclusively on making a finding as to whether abuse has or has not occurred, but on the best interests of the child, and the importance of protecting the child from unacceptable risk.  The court cannot, today, make a finding as to whether the abuse alleged has occurred.  It can consider, on all the evidence, whether it is more probable than not that the child will be at risk with the father in the interim period if some form of contact, as proposed by the independent children's lawyer or the father, occurs.  There has to be a weighing of the risk.  That is something the court must do in every interim hearing in this list.  In my view, in this case, the balance falls on the side of providing for the father to have unsupervised time with his daughter.

1. It cannot be the law that if a serious allegation is raised and the party raising it refuses to allow it to be investigated, in the face of inconsistencies of account, and personal behaviour which is inconsistent with the concerns expressed, that the court is somehow estopped from exercising its discretion to make an order in the best interests of the child. 

1. I do propose to make orders for unsupervised time in the terms proposed by the independent children's lawyer, rather than by the father. In my view what is important is the maintenance of frequent and regular time with a child of this age. It is not the application of the Weights and Measures Act; a relationship does not depend on the exact number of minutes a parent and child have together. A shorter time may provide some reassurance to the mother, and it is important to bear in mind that, at this time, she is the primary carer of this child. She may be anxious.

1. I add that it is a matter for the mother to decide whether she will change her mind and allow police and DHS investigations, if police and DHS still believe that should occur.   

I certify that the preceding
23 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the         day of         2008.

……………………………………….
Associate