Kerrigan and Kerrigan

[2010] FamCA 1272

FAMILY COURT OF AUSTRALIA

KERRIGAN & KERRIGAN [2010] FamCA 1272

FAMILY LAW – CHILDREN – Where there are allegations of sexual abuse against the father – Where the father is not seeking overnight time with the children – Finding of no harm to the children to the present time – Question of assessment of future risk. 

APPLICANT: Mr Kerrigan

RESPONDENT: Ms Kerrigan

INDEPENDENT CHILDREN’S LAWYER: Ms Geysen, Solicitor

FILE NUMBER: BRC 3627 of 2009

DATE DELIVERED: 5 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 5 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

SOLICITOR FOR THE RESPONDENT: Ms Galvin, Solicitor of Journey Family Lawyers appearing for the Respondent Mother

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lynch of Counsel appearing for the Independent Children’s Lawyer, Ms Geysen of TLG Lawyers – Family and Animal Law

Orders

IT IS ORDERED THAT:

1. The proceedings be adjourned for case management review to 9.30 am on
   18 January 2011 at the Brisbane Registry of the Family Court.

1. Leave is given to the parties to inspect the file of BRF7047 of 1994 J S Kerrigan & MSJ Kerrigan.

1. Leave is given to the Independent Children’s Lawyer to provide copies of any relevant material from the file BRF7047 of 1994 Kerrigan & Kerrigan to Mr Y, psychologist and requesting whether his opinion in his report alters and whether he wishes to provide an addendum to his report.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Father spend time with the children, J born … 1998, M born … 2004 and B born … 2006 on:

a.Saturday 6 November 2010 from 9.00 am until 5.00 pm; and

b.every Sunday commencing from 14 November 2010 from 9.00 am until 5.00 pm;

with changeovers to occur at such venue as the Mother and Father may mutually agree in writing but in the event the Mother and Father cannot agree then it is to be at the F Street entrance to F Street Railway Station.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), 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 to adjust to and

   comply with an order, are set out in the document entitled “Parenting orders –

   obligations, consequences and who can help”, a copy of which is annexed to these

   Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3627 of 2009

Mr Kerrigan

Applicant

And

Ms Kerrigan

Respondent

REASONS FOR JUDGMENT

1. I have considered the material in this matter.  I note that in the report dated

   
   

   26 March 2010 prepared by the family consultant – she was of the view at paragraphs 25 and 26 that the mother would argue that there is significant risk of harm to J, M and B if indeed Mr Kerrigan has sexually abused his daughters by his first marriage.  She has maintained that prior to becoming aware of these allegations she did promote regular time being spent between the children and their father, including overnight stays.  Both parents report that the children enjoyed this time spent with their father.

2. Ms Kerrigan has not involved the children in the detail of why she has fears for their safety, although she has, by virtue of her actions, given her children a sense that their father is someone to be feared.  Unaware of the sexual abuse allegations, J, M and B have all expressed a wish to spend more time with their father and to at least return to the prior unsupervised arrangement of weekend overnight stays.

3. At this point in time the father himself is not seeking a return to overnight stays for the three children.  The Independent Children’s Lawyer  is proposing full day time each Saturday and Sunday 9.00 am until 5.00 pm.  The father supports this although he was content, if he thought it would assuage the mother’s fears, to only seek each Saturday.  The mother’s proposal is that the father see J each fortnight for an additional four or so hours after he has spent time at the contact centre. 

4. In paragraph 31 of her report, Ms V’s recommendation is it is a question of an assessment of the risk of harm and if the Court determines that the father is not likely to harm the children, reinstating regular unsupervised time would seem the appropriate course of action.  I have had regard to Ms Q’s report, at paragraph 131 – and this report is only 12 months old:

   [J] spoke readily during his individual interview.  He loves the time that he spends with Dad.  He wants to see more of him than he does.  He volunteered that he would like to be with each of his parents equally, one week with Mum and one week with Dad.

   Paragraph 132:

   He is upset about not being able to see Dad now.  He said that he doesn’t know why this is.

   133:

   He said that Mum is over-protective of him all the time.  For example she won’t let him walk to places because she says it isn’t safe.  He didn’t think that Dad would be the same in this regard.

   She described, at paragraph 136:

   [M] is a charming lass who is interested in everything around her and talked happily about child-related topics.  She didn’t express any wishes regarding the time she spends with each parent.  She loves both of them dearly.

   Paragraph 142:

   When I saw the children, I deemed that [J] was strongly identified with his Dad.  He has him on a pedestal, so to speak.  He loves to spend Dad-and-son time together.  He is eager to be able to spend much more time with him than he had been doing.  Indeed he is upset about being stopped from seeing him now.

   At paragraph 152:

   The mother acknowledges that she hasn’t seen or heard anything to raise her concerns directly about [M].  She didn’t have any concerns in this regard until receiving the phone calls.  She has always been aware of the original sexual abuse allegations in the early 90s.

   Paragraph 153:

   In all, there are extensive assumptions underlying the mother’s concerns about sexual abuse.

   As I noted during the course of today’s hearing, the allegations stem from two sources, one was from Ms L, who has provided an affidavit.  I am satisfied from the material that has been set out and elaborated on by the Independent Children’s Lawyer that that has been investigated by the authorities and no allegations pertaining to the father stem from that source.  The child gave the explanation she had heard children at school saying it.  It is plausible.  She has been re-interviewed and had the opportunity to make further statements.

5. It is bolstered in this regard somewhat by the school assessment M’s attendance at school is excellent.  She has a very good relationship with her teacher and aide.  She participates well in all activities, a very happy child at school.  If a child is being subjected to sexual abuse along the lines of the statement which was described by Ms L, I would expect that the child would not be exhibiting behaviour in that fashion.

6. The remaining allegation seemingly stems from the phone call from Ms S.  Ms S has been asked to cooperate with the legal process and seemingly is not prepared to do so.  I have had regard to the detailed report from Mr Y.  Under the heading of evaluation and opinion, 11.4 to 11.6, he says:

   I think the issue of sexual risk hinges very much upon [Mr Kerrigan’s] past history and in particular whether it can be shown that he sexually harmed his daughters from his first marriage. 

   11.5:

   I do note correspondence that I recently received from the Independent Children’s Lawyer incorporating a letter from [Ms Kerrigan’s] legal representative that indicates that leave will be sought to inspect the Family Court file involving the parties [Ms S] and [Mr Kerrigan] and also a file from the Magistrates Court.  I gather then, that there will be an attempt made to further investigate these historical issues and I think that that is entirely appropriate.

   11.6:

   In my opinion if the Court were to determine that [Mr Kerrigan] had displayed significant deviance in the past, in a manner that he has treated the children from his marriage, he would pose a moderate risk of sexually harming a child in the future.

7. On the available evidence I have formed the view that there has been no harm to these children to the present time.  It is a question of the Court assessing a risk of harm in the future.

8. So far as J is concerned, I won’t make an order for Saturday night.  I hope I’m not bringing my own prejudices to bear about truck shows, but I think it’s just too difficult and too soon.

9. As I have formed the firm view there is no risk of harm to the children, I propose to make orders in the terms as set out at page 2 of these reasons.  The major change is that the Father’s time will be unsupervised.   The time spent will not be overnight and will be limited to each Sunday 9:00 am until 5:00 pm.  The orders were made on an interim basis only.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry delivered on 5 November 2010.

Associate: 

Date:  5 November 2010