Henley and Beauman
[2011] FMCAfam 340
•18 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENLEY & BEAUMAN | [2011] FMCAfam 340 |
| FAMILY LAW – Parenting – consent orders – allegations of inappropriate conduct – demands made for father to keep child away from grandmother. |
| M and M (1988) 166 CLR 1235 |
| Applicant: | MS HENLEY |
| Respondent: | MR BEAUMAN |
| File Number: | BRC 3126 of 2010 |
| Judgment of: | Coates FM |
| Hearing date: | 17 March 2011 |
| Date of Last Submission: | 17 March 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 18 April 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Rosen Lawyers |
| Counsel for the Respondent: | Mr R Galloway |
| Solicitors for the Respondent: | Wellners Lawyers |
ORDERS
That the children, [X] born [in] 2000 and [Y] born [in] 2004 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.
That this matter be adjourned for Mention at 9.30am on 24 May 2011 in the Federal Magistrates Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Henley & Beauman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 3126 of 2010
| MS HENLEY |
Applicant
And
| MR BEAUMAN |
Respondent
REASONS FOR JUDGMENT
On 7 June 2010, parenting orders were made by consent for the children [X], born [in] 2000 and [Y], born [in] 2004.
Under those orders the children were to spend time with the father each alternate weekend after school from Friday to Monday and each alternate Wednesday.
On 17 March 2011, the mother filed an Application in a Case seeking an injunction restraining the father from bringing the children into contact with the paternal grandmother, Ms B.
The mother alleged that on or about 23 January 2011, [X] began making disclosures about sexual matters in that the grandmother has:
a)Made him sleep in her bed;
b)Bathed him and washed his genitals;
c)Taken him into the shower and washed herself between the legs;
d)Told him to get down and do a “nudie crawl”;
e)When at the clothes line, ordered him to take his dry clothes off so that she could hang them on the line and then to run to the laundry to wait for her;
f)Would sleep with her hand on his thigh;
g)Forced him to look at her undressed; and
h)Has placed her fingers inside the elastic of his underpants and wriggled her fingers up and down and that then threatened the child with words or words to the effect “don’t even think about telling anyone about this bold boy or there will be trouble big time”.
The mother also states the child has revealed that the grandfather has stated to the grandmother when the child has been in the bed that “this is sick”.
It is also alleged the grandmother has told the child not to complain and “nothing will happen anyway, your mother’s useless, your father’s under my control and Pop won’t say a word”.
The allegations are strongly denied by the father and the grandmother.
The child has apparently taken part in an electronic record of interview with police.
The grandmother confirmed she was interviewed by police at [omitted] on 3 March 2011, where she denied the allegations.
She was advised that her interview tapes would be forwarded to the [omitted] Police Station, which would seem to concur with the mother’s evidence that an investigation underway.
Mr Galloway, counsel for the father, directed me to correspondence between solicitors for the parties, attached to the affidavit of the solicitor for the mother, Mr Rosen.
It is the mother’s case that the child can spend time with the father pursuant to the existing orders, only if the father gives an undertaking to keep the child away from the grandmother.
Mr Galloway raised a number of complaints about the correspondence from Rosen Lawyers, for example that in correspondence dated
1 February 2011, all that was conveyed to the father’s solicitors was that the mother was concerned about the sleeping arrangements for the children in the grandparents home and that in particular there was concern about the grandmother requiring [X] to sleep with her, but that the mother was not making allegations of improper behaviour.
By correspondence dated 14 February 2011, the solicitors for the mother stated that since the previous correspondence [X] had made disclosures of inappropriate conduct by the grandmother as well as disclosures to police.
The correspondence does not particularise the alleged disclosures or when various disclosures were made, however the undertaking previously requested was sought so that the children’s time with the father could begin again.
On 15 February 2011 solicitors for the grandmother and father asked for details of the inappropriate conduct.
On 17 February 2011 a reply by Rosen Lawyers merely that stated the mother failed to see why the father refused or neglected to provide the undertaking to keep the child away from the grandmother. Again Rosen Lawyers were pressed for particulars of the disclosures.
On 1 March 2011 Rosen Lawyers wrote that without an undertaking the mother was not going to comply with the orders and added this paragraph:
“We do not consider it appropriate to provide details of our client’s allegations until they have been fully investigated by the Queensland Police Service, which is presently being undertaken”.
On 1 March 2011 the grandmother’s lawyers wrote stating that their client was entitled to know the mother’s allegations and stated that it was not the first time the mother had threatened the father or his parents and that the mother was extremely jealous of the father’s close family relationships.
On 4 March 2011 the father was put on notice that an Application in a Case was prepared and returnable on 17 March 2011 relying on the evidence of the mother and the evidence of solicitor Mr Rosen. The second last paragraph stated:
“However, we are not prepared to serve on you the Affidavit our client (sic) unless and until we receive an undertaking from your client that he will not discuss the content of that Affidavit to any other person, other than to yourself pending an agreement in writing by our client or a further order of the Federal Magistrates Court”.
Before going to the substantive issues I will say I do not understand that behaviour by an officer of the court.
The appropriate authorities have been informed and are investigating and it does not appear to me that a lawyer should be or is in the position to be deciding what allegations are disclosed to a respondent – that is a matter for the Court upon proper application.
As submitted by Mr Galloway we live in and with an open legal system.
There must be natural justice in that a person must know the nature of the allegations against them and be given opportunity to respond. This is settled law and is implied in the rules pertaining to the filing of an application with a supporting affidavit. This may be an issue later
The mother’s material came into the hands of the father a day or two before the return date on 17 March 2011 and I accept that the father has not had enough time to properly respond.
Having said that, the response material that was filed makes it very clear that the allegations against the grandmother are denied as well as the allegations or inferences that the father would allow his son to be placed in a situation of risk.
Mr Rosen urged me to proceed carefully and that I must consider risk to the child.
Mr Galloway sought to have the application dismissed with costs pointing to the timeline whereby the child allegedly made disclosures on 23 January 2011, which was not mentioned in the first of the Rosen letters dated 1 February 2011. He also drew attention to a further inconsistency in the 14 February 2011 correspondence where it was stated that since the previous correspondence [X] had made disclosures of inappropriate conduct.
The inconsistency may well be relevant to the consideration of the mother’s case as a whole, but initially I am to consider risk to a child as stated in M and M (1988) 166 CLR 1235.
While I am to resolve on the evidence what the risk is and what the magnitude of that risk is, on occasions, when for example a police investigation is underway such as appears to be the case here, I am not in possession of all relevant evidence.
If I knew with certainty that a police investigation had ceased and if I knew the outcome of that investigation I would be in an informed position to assess the risk to the child, if any.
I assume here and it was not put to me otherwise that [X], aged 10 years and turning 11 in about two months time, suffered from some sort of incapacity which would prevent him making a statement to the police.
I am not told that he would fear or be otherwise hindered in making a statement to the police.
Because I do not know the state of the investigation and because I do have to assess a risk and the magnitude of a risk I intend adjourning the matter for a period and appointing an Independent Children’s Lawyer.
I will complete judgment once the Independent Children’s Lawyer has had an opportunity to make the appropriate investigations.
I previously adjourned the matter to 24 May 2011.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 18 April 2011
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