Howard and London

[2009] FamCA 642

FAMILY COURT OF AUSTRALIA

HOWARD & LONDON [2009] FamCA 642

FAMILY LAW – CHILDREN – Interim – Magellan

Family Law Act 1975 (Cth)

APPLICANT: Ms Howard

RESPONDENT: Mr London

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4151 of 2009

DATE DELIVERED: 23 July 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 20 JULY 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS MCCREADIE

SOLICITOR FOR THE APPLICANT: VICTORIA LEGAL AID

COUNSEL FOR THE RESPONDENT: MS STAVRAKAKIS

SOLICITOR FOR THE RESPONDENT: LAMPE FAMILY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MR CARLILE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: AGRICOLA WUNDERLICH & ASSOCIATES

Orders

1. That the further hearing of all extant applications be adjourned before Justice Bennett and the Magellan Registrar at 10.00am on 28 August 2009.

2. That pursuant to s 91B of the Family Law Act 1975 (Cth) the Department of Human Services be requested to intervene in these proceedings.

3. That the Department of Human Services be requested to prepare a report as to the mother’s allegations contained in her Form 4 filed 6 July 2009 and that such report be filed at this Court no later than 21 August 2009.

4. That the Magellan Registrar of the Melbourne Registry of the Family Court of Australia arrange for a subpoena to issue to the Department of Human Services for production of the relevant file by 4.00pm on 21 August 2009.

5. That until further order, the parties and the Family Court counselling case manager be at liberty to inspect the Department of Human Services file, save for any confidential documents.

6. That the provisions of the orders referred to in paragraph 5 of the orders made 25 May 2009 are suspended until further order.

7. That until further order the children D born … April 2001 and E born … August 2003 live with the father as follows:

   (a)In Week 1, commencing 24 July 2009, from Friday from the conclusion of school until the commencement of school on the following Monday morning; and

   (b)In Week 2, from the conclusion of school on Wednesday to the commencement of school on the following Friday; and

   (c)at such other times as agreed.

8. That until further order, the said children live with the mother at all other times.

9. That pursuant to s 65DA(2) and s 62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4151  of 2009

MS HOWARD

Applicant

And

MR LONDON

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application by the mother and father relating to interim orders about D born … April 2001 and E born … August 2003.

2. I heard the matter on 20 July 2009 in a busy Duty List and made orders.  Although the mother and father were not particularly interested in formal reasons, counsel for the Independent Children’s Lawyer requested I give them.  These are those reasons.

3. The dispute centres upon what, if any, risk of harm there is to either child whilst they may be in the care of the father.

4. D and E are the father’s only children.  The mother has three other children only one of whom is under 18 years of age.  That child lives with her father in P. 

5. The sequence of events in this case give some assistance in working out what to do for these children.  For the purposes of these reasons, I have read the various affidavit material to which I shall turn in a moment and also heard submission from all counsel. 

6. When D was less than one year old, the Department of Human Services had protective concerns for him.  Both parents agree those concerns were about alcohol consumed by the mother.  In her material however, the mother added that it was also related to the father’s verbal and physical abuse of her.  Separation then occurred and D was placed in the father’s care and the mother had supervised time with him.

7. I cannot make findings of fact based on uncontested evidence at this stage but even if the Department of Human Services were concerned as the mother says, they placed D in the father’s care.  I note that the Children’s Court was also involved so I have concluded that the intervention was serious. 

8. Despite their traumatic relationship, the mother and father reconciled in 2002.  That seems to have been for a short period of time although it is common ground between them that orders were made in February 2003 which provided for D (E not having been born).  The father’s position was that he and the mother negotiated consent orders for D’s ongoing care which was of a shared-care type of arrangement with D spending three nights with him in one week and four nights in the next week on a two week cycle.  Every second weekend, he had D.

9. Just when separation occurred is unclear as the mother said it was April 2001 and the father said in his affidavit that a reconciliation occurred in 2002.  There seemed to have been a short reconciliation after February 2003 according to the father.  The mother whose affidavit was filed after receiving that document does not deny that event.  In any event, E was born in August 2003 after the parties had separated.

10. After E’s birth, the father said he saw the child regularly and from her second birthday in 2005, E accompanied D who was seeing the father on a shared-care basis to which I have referred.

11. Of the period from 2005 to 2008, the father said that he and the mother had been able to get along reasonably well with respect to the arrangements of the children and they regularly modified them by agreement.  The mother said that the father was at no time willingly indicating that he wanted to be involved in E’s care and upbringing and that on occasions when he collected E from school or at her home, he had done so at her specific request.  She said that the father usually collected D after school on Thursday and returned him to school on Friday morning but had not insisted that the same arrangements applied for E and that as such, E spent time with the father infrequently. 

12. The mother indicated in her affidavit that there were problems for the children about wanting to stay overnight and displaying behavioural problems as they approached the Thursday that the father was to spend time with the children.

13. One significant and very odd feature of the mother’s evidence was that she said that on some occasions D had spent time with the respondent on a weekend.  She said:

    However, at such times, the respondent has told me that he has been umpiring and [D] has been left on the sideline by himself.

14. Counsel for the mother stepped away from that conceding that when the father was umpiring, the mother was caring for the children.  That was certainly not the impression portrayed in her affidavit.

15. Counsel for the mother expressed her client’s instructions as being concerned about violence in the presence of the children and D being left unattended whilst the father was umpiring.  She described the existing orders as “elastic”.  Counsel also said her client’s concern included a threat by the father to the 12 year old daughter of the mother but as I understand the evidence, that child is living in P.

16. The inconsistency in the approaches of the mother and the father to exactly what has happened up until May 2009, does little to assist me.

17. I turn then to the current events that seem to have given rise to these immediate proceedings.

18. On 13 May 2009, the mother filed an application.  At that time she was unrepresented.  She sought interim and final orders that D live with her and that D have time with his father at times determined by the Court.  She requested that that time be such that D was not left unattended by his father. 

19. The first important observation about that document is that the mother was not opposed to D spending time with the father but rather that the Court should determine that time.

20. In support of the mother’s application, she filed a handwritten affidavit.  In summary, it said that D was at risk because the father was umpiring and D was left on his own.  That seems to be at odds with her subsequent concession.  She then said that the father had in the past and recently used a belt to strap D.  The rest of the affidavit is replete with vague assertions that the father is violent. 

21. I am not in any way diminishing the seriousness of family violence but where it is the lynch pin upon which a court is asked to make orders, it is important that there be some detail as to the time, place and detail so that the respondent can answer the allegations and a court can endeavour to assess whether it is something that should affect the type of orders sought.

22. At the same time as the mother filed her application, she also seems to have issued an application for an intervention order which was determined on an ex parte basis and orders were made against the father precluding him from having contact with the mother and children except if orders of this Court were subsequently made.

23. Of significance therefore is the fact that there was no indication of the allegations that were about to be made which, because of their timing, must have been known to the mother.

24. On 25 May 2009, the matter came before Senior Registrar FitzGibbon.  The father was then unrepresented.  The mother had counsel. 

25. At the hearing, the only material before the Court was the mother’s affidavit filed on 13 May 2005.  That affidavit alleged the violence to which I have referred.  Senior Registrar FitzGibbon ordered the appointment of an Independent Children’s Lawyer and required the father to file material by 19 June.  Interestingly, the parties otherwise agreed to suspend the orders made on 20 February 2003 but to replace them with the following order:

    The children spend time with the father as follows:

    (a)from after school Thursday until the commencement of school Friday each week;

    (b)otherwise as agreed between the parties.

26. No indication was apparent of the allegations that were about to be made.  No requirement was sought from the Court that the time between father and both children be supervised.

27. On 18 June 2009, the father filed a response.  He sought equal shared parental responsibility and an order that the children live with him on a week-about basis.  His response, prepared by a solicitor, said that there were no extant family violence orders.  That was obviously not correct.  His affidavit said that he was aware that D attended a psychologist but he was not sure why and had no details.  He said the mother had organised the treatment and had refused to give him any details. 

28. In his affidavit, the father denied hitting D with a belt or strap.  He said that on 15 May 2009 or thereabouts, he was served with an interim intervention order which contained allegations which he denied and intended to contest.  He said he denied having physically abused the mother.  He said he agreed that the mother usually cared for D on weekends when he had casual employment.

29. The father’s affidavit set out the circumstances under which he would care for the children and that he had his time decreased by the orders of 25 May 2009 and that there was no basis for that to continue.

30. On 26 June 2009, the matter returned to the Senior Registrar.  He adjourned the matter before me but ordered the mother to file any material by 3 July 2009.

31. On 3 July 2009, the mother’s affidavit was filed.  It was prepared by her solicitor.  The important parts of the affidavit referred to matters much earlier in time but specifically in relation to the involvement of the Department of Human Services in 2001.  She said that the respondent had “continued” to intimidate her over the years and that he was recently physically and emotionally violent towards her and she obtained an interim intervention order.  In respect of the children, she said that the orders of February 2003 provided only for D but the father had not complied with those orders for five years.  She said he had participated in many activities rather than taking time out to spend with D.  She said all of her attempts to negotiate time for D had been met with aggressive refusals by the father.

32. The mother’s affidavit then set out what was currently happening and the problems to which I have earlier referred.

33. The mother’s affidavit then turned to the questions that on the evidence that I have been given, had not been previously raised.  The mother said:

    Over the past five months [D] has told me repeatedly “mum I have a sore bottom”. When I have asked him to explain, he says “I don’t know”. Also, [E] has complained of a sore bottom one or twice. I took [D] to [S] Clinic and consulted Dr [H] in or around May of this year. At that time Dr [H] told me not to be concerned. Recently on 13 June 2009 after having spent over night time with the respondent on Thursday 11 June 2009, [E] said to me “I have a sore fanny. It hurts when I wee”. Later when I was helping her wash herself in the shower as I usually do, [E] said “no mummy don’t you touch, only daddy’ and she was referring to her private parts. I gave [E] some Caneston cream to apply herself, in order to help with the soreness and redness. The next day I asked her if she wanted to apply more Caneston cream and she said “no it’s better”. As it was the weekend I did not take [E] to the doctor. However, of concern to me is the fact that both children have told me that “dad has a big penis”. When I asked them to explain [E] said “in the shower” and [D] said “yes”. Then on Thursday 25 June 2009, I telephoned Dr [H] in relation to this matter and he advised me to contact […] Sexual Offences and Child Abuse Unit (SOCA) . I attended SOCA and spoke with Senior Constable [C] and Senior Constable [G]. An appointment was made for the children to be interviewed on Tuesday 30 June 2009. I was told not to discuss the interview with the children but if they wanted to know the reason for the interview I was to tell them that the police were going to talk to them about “their sore bottom and private parts”. I did not discuss the interview with the children.

34. The mother then set out that the children attended the Sexual Offences and Child Abuse Unit.  She said D did not appear to understand that he would be interviewed by the police and E became extremely anxious and clingy.  She said the children were asked no questions regarding her concerns.

35. Three days after that affidavit was filed, the mother filed a Notice of Risk of Child Abuse.  The allegation related to the material set out in her two affidavits.  Importantly, the mother said that the father had verbally and physically assaulted the children and involved them in or exposed them to, a sexual activity.  In terms of the risk of abuse, she alleged that the children were at risk as a result of the matters set out in her affidavit.  She then expanded on some material which was not in the affidavit material only filed three days before. 

36. The father having received that affidavit filed an affidavit in reply on 13 July 2009.  He said that he denied the details about time between he and the children as described by the mother was correct and that he vehemently denied ever touching his children in an inappropriate manner.  In respect of the allegation about sexual impropriety, he said he could only assume that the children may have seen him naked when he exited the shower as the children shared a bath together in the same room whilst he showered. 

37. The father said that he had not been contacted by the Sexual Offences Unit and in respect of the allegations about bruising, it was not something that he had caused.

38. Finally, the father said that he was shocked and disgusted at the allegations made by the mother.  He thought that the mother was making the allegations in an effort to limit his time with the children.  He said the children were withdrawn and cautious about what they would say to him.

39. The parties’ respective counsel put the proposed orders in the following way.  The mother’s counsel suggested that the father’s contact with the children should be supervised on alternate Sundays at a contact centre.  She was not aware of what the delays would be in that program being implemented but she acknowledged that the time permitted would only be two hours per fortnight. 

40. The father’s position was that the children should reside with him on a fortnightly cycle on Thursday through to Monday in one week and Wednesday to Friday in the second week. 

41. The Independent Children’s Lawyer’s position was that in Week 1 it should be from Friday to Monday and in Week 2 from Wednesday to Friday.  Importantly, the Independent Children’s Lawyer said there was no basis for supervision.

42. Counsel for the mother conceded that E would not speak to the Sexual Offences Unit.  She said the child’s bruising was noted by a general medical practitioner and that the markings were “consistent” with abuse and that as such, the risk could not be ignored.

43. The father’s position was that there was no evidence to support the mother’s concern. 

44. Prior to the hearing commencing, the parties had an opportunity to examine a number of documents provided pursuant to subpoenae. 

45. Counsel for the Independent Children’s Lawyer made a number of observations from those documents.  He said that the allegations of sexual abuse were a “long bow to draw” and carried no weight.  He said that his instructor had spoken to the primary school who said that E was progressing well and that both parents were involved in that education.  He said in respect of D, his progress was good despite the child’s disability. D is in the highest mathematics group but neither parent assisted in the classroom as occurred with E.

46. According to counsel for the Independent Children’s Lawyer, the teacher expressed no concerns about a supposed threat that the mother said the father made.  The Independent Children’s Lawyer had also spoken to the general practitioner who indicated that no explanation could be given for the abrasions.

47. According to the Independent Children’s Lawyer there was no basis for the father not to see the children in the normal way.

48. This is not a matter that should be transferred to the Federal Magistrates Court. The allegations seemed to be fresh and they need to be the focus and attention of this Court. However on an interim basis, there is no evidence about which I could find that there is an immediate risk to either child of sexual abuse or for that matter, family violence. Because the Department of Human Services has been involved, I propose to make orders under s 91B of the Family Law Act 1975 (Cth) (“the Act”) and request the Department to prepare a Magellan Report.

49. The Court is mandated under Part VII of the Act to make orders that are in the best interests of the children. The relevant provisions of the Act are set out as follows.

50. Section 60CA reads:

    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.

51. To ascertain what is in the best interests of the children, the Court is obliged to look at the relevant matters in s 60CC.

52. It is almost impossible to make findings in a case such as this without the evidence being tested.  There is a very unusual history here that suggests that there would normally have been some corroborative material because of the nature of the allegations that the mother has made.  There is none.  In addition, the parties are about to test some of that evidence particularly in relation to family violence through the State Magistrates Court.

1. Section 60CC requires a court to look at not only the children having a meaningful relationship with both parents but also the need to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  On the evidence, notwithstanding the muted reservations of the mother, all indications are that the father is involved in the children’s lives and that they do have a meaningful relationship with him.  A meaningful relationship has really got little to do with the amount of time that a parent spends with a child.  The more significant primary consideration however is the need to protect the children from the risks to which I have referred.  There is no evidence that I can see upon which I could make any finding of such a risk.  What is concerning however is just exactly how much time the father has spent with the children in the past and the mother’s statement that the children are expressing reservations about spending any time with him.  Just what all of that means needs careful investigation but it is the basis upon which I propose to find that the father’s time should not be as expansive as suggested by him.  Equally however, the time proposed by the mother is so restrictive that even on her version of events, it would not be of any benefit to the children at all.  Spending two hours under supervision in such an environment as she proposed would be difficult for the children to accept.  That is particularly so where the children are expressing, according to the mother reluctance to spend any time.  Going to the contact centre would therefore not alleviate that problem.  It seems to me that the children need to spend some considerable time with the father so that any fears they may have about his future in their lives will be at least ameliorated.

2. Accordingly, as best I can find, there is no basis to say that the children are currently at risk.  Having said that however, the allegations have been made in relation to sexual impropriety and they are fresh.  They are matters that have come to the attention of the Department of Human Services and the police and under those circumstances, this is a matter which should be fast-tracked in the Magellan List.

3. In relation to the additional consideration set out in s 60CC(3), I have no evidence as to whether the views expressed by the children should be given any weight having regard to their very young ages.  The other matters in relation to the nature of the relationship with the parents is difficult to gauge having regard to the opposing views of the parties as to what has happened in the past.  I have some reservations about how willing the mother is to facilitate the relationship with the father and that needs to be tested.

4. One of the considerations of some concern is what impact there will be upon the children on being separated from their mother.  I take into account however that the mother consented to orders before the Senior Registrar in May that the father spend overnight time with both children.  The extent of that time is a matter that requires investigation.  I do not think that the children being away from their mother for the periods that I propose will have any long lasting effect upon them but if I am wrong about that, the matter can be rectified with some comprehensive evidence when the matter comes back before the Magellan judge.

5. There does not seem to be any suggestion that the father does not have the capacity to provide for the needs of the children because of the fact that the mother consented to him spending time with them notwithstanding the allegations that she was about to make.  Whether that gives some indication of her attitude to the responsibilities of parenthood or not I am not clear and that is a matter that will no doubt be canvassed at trial. 

6. There are clearly family violence orders in this case although the gravity of them is a little unclear.  The initial order made by the State court was on an ex parte basis.  The mother did not provide to the Court a copy of the complaint upon which the ex parte order was made.  She pointed however to the extension of that order which shows that the father attended and did not consent to the order.  However it is clear that the father was contesting the proceedings and I have concluded that the court simply extended the order on the basis that a contested hearing was forthcoming.  On that basis, the family violence orders do little to assist me.

7. Section 60CC(4) and (4A) will become very important in the ultimate proceedings in this case because the mother is alleging that the father has not had a significant involvement in the children’s lives notwithstanding he has had the opportunity to do so.  Quite the contrary, she alleges that he has been urged to be involved in the children’s lives and shown everything but that.  Many of those matters can be tested by independent and objective evidence and each party will be conscious of the fact that a court will be having a look exactly what has happened over the last five years.  Suffice to say, on the evidence, I can make no such finding about that matter now.

8. Section 60CG(1) provides that a court must be conscious not to make an order that places a child at risk that is inconsistent with family violence orders.  That requires a court effectively to exclude the parties from each other’s presence in this case to ensure that the children do not witness the violence which the mother alleges has occurred.  Having regard to the relatively short period of time between now and when the matter will be given comprehensive time by the Court, it seems to me that the orders I am proposing will enable the changeovers to occur at the school in which circumstance, the opportunity for the parties to come into contact with one another will be limited.

9. Section 61DA provides that the Court apply a presumption of equal shared parental responsibility.  However sub-section 3 of that provision provides that I do not need to deal with the matter if I have not an appropriate amount of evidence in an interim hearing to make such a finding.  In this case, I do not have that information. 

10. I cannot however simply ignore the fact that there is a disagreement about a number of essential facts in this case and most importantly, that is about the nature and the extent of the father’s relationship with both of the children.  In those circumstances, I propose to take a cautious approach and adopt the position of the Independent Children’s Lawyer which I find is in the children’s best interest.

I certify that the preceding Sixty Two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  23 July 2009