Jamison and Jamison

[2007] FamCA 891

FAMILY COURT OF AUSTRALIA

JAMISON & JAMISON [2007] FamCA 891

FAMILY LAW – Appeal from court of summary jurisdiction – Children – Interim orders to spend time with father – Allegations of sexual abuse by father of step children – Allegations of other abusive behaviour by father – Unacceptable risk –   Supervision, no overnight periods, short periods.

Family Law Act 1975 (Cth) s 60B, 60CC(2) & (3)

APPLICANT: MR JAMISON

RESPONDENT: MS JAMISON

FILE NUMBER: NCC 2227 of 2007

DATE DELIVERED: 13 August 2007

PLACE DELIVERED: Newcastle

JUDGMENT OF: MULLANE J

HEARING DATE: 13 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT FATHER: Mr Boyd

SOLICITOR FOR THE APPLICANT: MacLean & Curtis, Solicitors

COUNSEL COUNSEL FOR THE RESPONDENT MOTHER: Mr Priestly

SOLICITOR FOR THE RESPONDENT:

Abbott Pardy & Jenkins,

Solicitors

Orders

1. By consent and pending further order the children … born … October 2001 and … born … February 2003 are to live with the mother.

1. By consent the children are to be represented by an independent lawyer and the Legal Aid Commission of NSW is requested to arrange such representation.

1. The Registry Manager must notify the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission of NSW, Sydney of these orders within 7 days.

1. On or before 20 August 2007 the mother must provide the legal Aid Commission of NSW copies of any relevant orders and reports and each party must provide the Legal Aid Commission of NSW with copies of any applications and affidavits on which the party relies.

1. The appeal is allowed.

1. Pending further order the children are to spent time with the father on every second Saturday between 10am and 4pm within a radius of 40 kilometres of I commencing Saturday, 18 August 2007.

1. Such time is to be supervised by both paternal grandparents and to be implemented by the mother arranging delivering of the children to the paternal grandparents at G School at the start of the period and the paternal grandparents returning the children to the mother or a responsible person on her behalf at the same place at the end of the period.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Jamison & Jamison.

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2227 of 2007

MR JAMISON

Applicant

And

MS JAMISON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is a re-hearing on appeal from the Local Court at Tamworth which was heard on 3 July 2007.  The issue is the interim arrangements for two children, a son, who is five, and a daughter, who is four.

RELEVANT LAW

1. The parenting and the rights that Australian children enjoy are often far less than the society's ambitions, and that is probably well illustrated by the provisions of the Family Law Act that the Parliament has inserted in recent times.

2. Section 60B says that:

   "The objects of the relevant Part are to ensure that the best interests of the children are met by:

   (a)ensuring that children have the benefit of both their parents, having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child;

   (b)protecting children from physical and psychological harm, from being subjected to or exposed to abuse, neglect or family violence;

   (c)ensure that children receive adequate and proper parenting to help them achieve their full potential;

   (d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children."

3. Subsection 60B(2) says that:

   "The principles underlying the object are, except when it is or would be contrary to the child's best interests:

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

   (b)children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development, such as grandparents and other relatives;

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   (d)      parents should agree about the future parenting of their children;

   (e)      children have a right to enjoy their culture."

4. The Act, in telling the Court how to go about determining what is in the best interests of the children, says the Court must consider the matters in sub-s (2) and (3) of s 60CC, and it divides considerations into what are called primary considerations and other considerations or additional considerations, although it is somewhat confusing as to what the meaning is in terms of primary considerations.

5. The additional considerations include the views of the child and any factors that go to the level of understanding and maturity that the child has in relation to those wishes and what weight should be given to them.

6. Another matter is the nature of the relationship with the child with each of its parents and other persons.  Another is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. 

7. Another is the likely effect of any changes in the child's circumstances and including the likely effect on the child of any separation from either of his or her parents or separation from any other child or another person, including grandparent or other relative of the child with whom he or she has been living. 

8. Subsection (e) is about the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.

9. Subsection (f) is the capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs. 

10. Subsection (g) is the maturity, sex, lifestyle and background of the child and either of the child's parents and any other characteristics of the child that the Court thinks are relevant.

11. Subsection (h) deals with the particular needs of Aboriginal and Torres Strait Islander children. 

12. Subsection (i) deals with the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents.

13. Subsection (j) is any family violence involving the child or a member of the child's family.

14. Subsection (k) is any family violence order, and subsection (l) deals with the question of whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and subsection (m) is a catchall which is any other fact or circumstance the Court considers necessary or relevant. 

15. Subsection 60CC(2) is the “primary considerations”.  Those are (a) the benefit to the child 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.  In this case those two matters are in conflict. 

16. The Act certainly provides considerable emphasis on the right of a child to enjoy the benefits of spending time with both their parents.  This is a situation, as I have said, where that conflicts with the need to protect the children.  When I say that, because it is an interim hearing I am not able to make findings as to the veracity of the allegations.  That will have to be done later.  What I have to assess at this stage is as to whether there is any unacceptable risk for the children in arrangements that are being proposed.

17. These are only interim proceedings and there has not been the benefit of

    
    

    cross-examination or a full investigation of the issues, nor has there been the assistance of any expert report from someone who has interviewed the children and the parents and investigated the allegations that are being raised. 

CONSENT ORDERS

1. The parties have agreed on two matters.  One is that the children should live with the mother, and the other is that there should be an appointment of an independent lawyer for the children to represent them in the proceedings.

2. [ ORDERS DELIVERED ] 

PROPOSALS

1. The proposals by the father are that the children spend time with him every second weekend from Friday evening to start of school, Monday, I think  a period including three overnights, and for the first week of the summer vacation.  He proposes that those periods be supervised by the paternal grandparents and the children stay with the paternal grandparents in their home at night and the father stay elsewhere.

2. The mother's proposal that the children spend no time with the father, and as a second option if they are to spend time with him, that the time be for brief periods of about four hours one day per fortnight, and those periods be supervised by the paternal grandparents. 

3. I will refer to it later, but the fact is that there is no proposal as to someone else who could supervise the time the children spend with the father. 

THE QUESTION OF RISK

1. The issues that give rise to the question of risk.  First of all, there are sexual abuse allegations against the father and they have been made by three

   
   

   step-daughters of his, aged 13, 11 and 9, who resided in the same household as his son and daughter.  Those allegations are serious and include digital penetration and genital touching and trying to induce one of the children to touch his penis.

2. The second area of concern is allegations by the mother (which the father has not really addressed in his material) of a history of abusive and controlling behaviour and intimidating behaviour by him towards the mother and the children during their cohabitation.  Those allegations should not be under estimated.  Abuse is a very serious problem for children.  Children who live in a household where they are fearful of how an adult will behave or fearful of abusive outbursts have their emotional development inhibited.  They are not free to enjoy the freedom of behaviour and freedom from responsibility that children normally enjoy.  They often live in apprehension, fear,

   
   

   hyper-vigilance, or intimidation and sometimes in terror of what the person might do to them or someone else that they love. 

3. Abusive behaviour also presents, of course, a risk to children of physical injury.  It involves sometimes threats and intimidation, having very serious adverse effects on a child's self-esteem, emotional state and self-confidence.

4. Probably the worst effect of exposure of a child to abusive behaviour in a household is in terms of the role model that it provides for children.  Children who see adults who resolve disagreements or conflict by abusing each other learn that that is an acceptable way to behave and often adopt such behaviour as a way of dealing with disagreements or conflict with other people.  That is probably the worst danger that abuse presents to children because it leads them to carry forward a social curse, which can prevents them having successful long term intimate relationships, often leads to difficulties forming friendships that last and often puts them in conflict with other people, public authorities, the police and the law.

5. There is some other more recent behaviour of the father, which are not allegations made by anyone else.  The evidence about these matters is sworn by the father.  At a time when he says he had discovered the mother had left the home with the children and he says he was unaware of any allegation of sexual abuse, he then dragged their bed outside of the home and burn it, shoting two of the family's dogs and then attempted suicide by overdose of medications.  The sexual abuse allegations made against him are obviously one of the most traumatic things that could happen to a father. 

6. One would have to have very serious concerns from that material, which is not in dispute, as to his vulnerability, as to his rationality and as to how he might behave in the future, particularly bearing in mind that he has now been charged by the police with numerous charges in relation to the sexual abuse allegations. 

7. I should say something else about the sexual abuse allegations.  They are allegations that are not made by very small children, they are made by a 13 year old, 11 year old and a 9 year old.  They are made in circumstances where the mother did not have a face to face conversation with the eldest child who has made the most serious allegations.  Before those allegations were made, the daughter had made one general answer to her mother, acknowledging that the father had done something inappropriate by way of touching her.

8. They are allegations that are consistent in the nature of the abuse alleged as between the girls.  Some of them are particularly serious in that the eldest stepdaughter alleges some of the abuse occurred while she was sharing the same bed as her mother and the father.

9. There also is evidence that gives rise to further concern in that the first suggestion that the father might have been behaving sexually inappropriately to any of the girls came from the maternal grandmother, who has experience of children as a high school teacher.  She has given evidence as to how she reached that view.  She was concerned about some of the eldest stepdaughter’s behaviour, including her choice to go to boarding school and then her reluctance to be home so often on weekends.  She was also concerned over what she observed in terms of the father's behaviour and demonstrative affection towards the eldest stepdaughter and behaviour of the father, which she was concerned, could possibly be grooming behaviour, that is behaviour that was preparing or conditioning the eldest stepdaughter for sexual abuse.  She formed those concerns with out any suggestion by any of the girls that there had been sexual abuse.

10. The sexual abuse allegations are consistent also with other allegations that the father does not dispute in relation to controlling and other abusive behaviour towards the mother and the children.  They are also consistent in that sense with his conduct of burning the bed, shooting the dogs and attempting suicide.  Suicide is an act of violence and it is consistent with the other sorts of abusive behaviour we are talking about.

11. There is also evidence in the father's affidavit material which Mr Priestly referred to, and it is of concern that the father, in terms of some of the evidence in his affidavits, particularly in the affidavit that was sworn today, is very

    
    

    self-focussed and his evidence indicates very little attention to the children, their perspective or the effect on them of their behaviours. He also demonstrates very little empathy towards them or the mother.

12. Another relevant aspect is that the father testifies that he believes that the allegations have been maliciously invented by the mother.  Despite the fact that he says that he attempted suicide when he had no knowledge of the sexual abuse allegations and was struggling to deal only with the fact that the mother had left with the children, he now purports or infers that he is strongly hostile to the mother because she has maliciously invented allegations against him of sexual abuse of three children, presumably to stop him seeing his own children.  He does not appear to accept or even entertain that the mother could be reacting to statements by her mother and the 3 girls with a genuine belief that the allegations might be true and concern that the subject children be protected from possible risk.

13. I think the evidence at this preliminary stage could be described as a strong case that the father is abusive and may have sexually abused one or more of his step daughters. It establishes that there is an unacceptable risk if the Court makes orders for his son and daughter to spend unsupervised time with the father.

14. As I said earlier, the only persons proposed as supervisors are the paternal grandparents.  In their affidavits neither of them has stated that he or she believes the sexual abuse allegations to be true or believes that they might be true or believes that there is any risk at all to the children if they spend time with their father unsupervised.

15. That is probably human nature.   It has to be recognised that it would be very hard for a parent to accept such an allegation against their child might be true.  It may be that the paternal grandparents recognise on the other hand that if close supervision is not applied, the father is at risk of further allegations arising from time that the children spend with him and if that close supervision does not occur, the allegations could not be answered by the paternal grandparents.  It may be that they recognise that, but unfortunately neither of them has said so in the affidavits sworn.  They do not acknowledge any need for supervision.

16. It is very difficult for litigants to understand the test the Court has to apply.  Regardless of all those matters that I have referred to, ultimately the test is what is in the best interests of the children.   And in all those matters that are listed in s 60CC of the Act to be taken into account, the Parliament has not specified the interests of the parents.  To be “fair” between the parents is not a matter that I am required to do.  That is impossible in many of these situations.  If these allegations of sexual abuse are true, then probably ultimately the answer should have been that there should be an order for no contact by the father with the children.  If they are false, and today I limit his contact because of risk to the children, then the result is not fair to him. 

17. Fairness between the parents is not what I have to achieve.  What I have to achieve is what is the best result the children can have on an interim basis.  One conclusion reached is that the risk involved in overnight stays, even if the paternal grandparents are supervising, is such that there should not be overnight stays.  One reason for that is that the grandparents do not recognise any need for supervision. 

18. The children's interests are best served if they continue to spend time with their father with supervision by the paternal grandparents,  the frequency be limited to each second Saturday and the time be limited to six hours, which would be from 10 am to 4 pm, and the time be spent within a radius of 40 kilometres of I. The limitations as to the length and frequency of the periods is also partly because of the fact that the grandparents do not recognise any need for supervision. 

19. It is not appropriate if the children are going to spend only six hours with the father, that part of that time be devoted to driving for an hour or two hours or whatever.  This is time that the children are supposed to spend with the father and it is not about motoring.  The evidence is that there will be an hour’s drive for the children each way between the mother’s home and the changeover location.  It is not appropriate that the grandparents and the father then spend an hour or more of the limited period driving the children to the grandparents’ home in the T district and then another hour or so driving them back.  They are young children likely to be very frustrated, bored and unhappy by spending such periods in a car.  For their sake the time should be spent within 40 kilometres of the town of I.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mullane

Associate: 

Date: