Keva & Putra
[2009] FamCA 108
•17 February 2009
FAMILY COURT OF AUSTRALIA
| KEVA & PUTRA | [2009] FamCA 108 |
FAMILY LAW – CHILD ABUSE – Sexual Abuse – Need for supervised contact – Whether the Court should make a positive finding of abuse – Whether a positive finding of abuse of one child equates to unacceptable risk for another – Appropriateness of close family members acting as supervisors
FAMILY LAW – CHILD ABUSE – Sexual Abuse – Whether kissing a child’s penis is culturally appropriate behaviour in Pacific Islands – Issue determined as not relevant
FAMILY LAW – CHILDREN – Parental responsibility – Family Law Act 1975 (Cth), s 61DA – Time spent with the children – Family Law Act 1975 (Cth), s 65DAA
| APPLICANT: | Mr Keva |
| RESPONDENT: | Ms Putra |
| FILE NUMBER: | BRC | 6312 | of | 2007 |
| DATE DELIVERED: | 17 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Barry J |
| HEARING DATE: | 3 - 5 February 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gardiner of Counsel appeared for the Applicant Father |
| SOLICITORS FOR THE APPLICANT: | Bridges Family Law Specialists |
| COUNSEL FOR THE RESPONDENT: | Mr George of Counsel appeared for the Respondent Mother |
| SOLICITORS FOR THE RESPONDENT: | Smith & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Hogan of Counsel appeared for the Independent Children’s Lawyer |
| SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Naughton Rice Family Law |
Orders
That the children of the relationship, L born … November 1995 and S born … May 1998 (“the children”), live with the Mother.
That the Mother have the sole responsibility for the long term care, welfare and development of the children.
That each parent be solely responsible for decisions about issues that are not major long term issues in relation to the child without consulting the other, whilst they are in the care of that parent.
That the Father spend time and communicate with the child S at all such times as may be agreed, but failing agreement as follows:
(a) each alternate weekend on either a Saturday or Sunday (dependent on the availability of the supervisors) between 9.30 am and 5.00 pm;
(b) on the child’s birthday, if the child’s birthday falls on a non-school day, from 11.00 am until 4.00 pm;
(c) on Christmas Day, from 10.00 am until 4.00 pm, in odd numbered years;
(d) on Father’s Day, if the child is not spending time with the Father, the child is to spend time with the Father from 9.30 am until 5.00 pm;
(e) on Mother’s Day if the child is not spending time with the Mother, the child shall spend time with the Mother from 9.30 am until 5.00 pm;
(f) telephone communication at all reasonable times with the Father to initiate that communication to the Mother’s mobile telephone, and the Mother to facilitate that communication on each Tuesday and Thursday between 7.00 pm and 7.30 pm;
(g) that the child is at liberty to telephone the Father and communicate at any reasonable time and the Mother is to facilitate that telephone communication.
That the Father spend time with the child L at all such times as agreed between the child and the Father.
That all the time the child S spends with the Father be supervised by N KEVA, Ms K, or such other person as the parties may agree in writing is suitable to act as a supervisor.
For the purposes of all changeovers the Father or his nominee shall pick up the children at the commencement of his time, from the Shell Service Station at G and deliver the children at the end of his time to the Mobil Service Station at M.
That each party is authorised to liaise with the children’s schools and medical practitioners, including any specialists, about their ongoing education and health needs and each parent is authorised to receive copies of any document a parent is entitled to receive including, but not limited to, school reports, school newsletters, school photograph order forms and medical reports.
That each parent informs the other parent, as soon as reasonably practicable, of any serious illness or hospitalisation of the children.
That both parents undertake not to consume alcohol to excess whilst the children are in their care, and that neither parent drive a vehicle under the influence of alcohol whilst the children are present in the vehicle.
That neither parent denigrate or verbally abuse the other parent to or in the presence of the children and take all reasonable steps to remove the children from any party who denigrates or verbally abuses the other parent.
That each parent refrain from discussing adult issues including Court proceedings to or in the presence of the children and will take all reasonable steps to prevent others from doing so in the presence of the children or remove the children from the presence of such discussions.
That the Family Consultant Mr F explain the Court Orders to the two children.
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 Keva & Putra is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC6312/2007
| MR KEVA |
Applicant
And
| MS PUTRA |
Respondent
REASONS FOR JUDGMENT
I am asked to determine what time the Applicant Father should spend with his two children, L born in November 1995 and S born in May 1998.
The Father was born in 1967 and the Respondent Mother in 1974. The parties cohabited from early 1994 and separated in about January or February 2005 (Father’s version) or 3 May 2005 (Mother’s version). I do not find it necessary to make a determination on this issue. Suffice it to say the parties separated in the first half of 2005.
Since separation the Father has re-partnered with Ms K and resides with her in their recently completed home at E in Brisbane’s southern suburbs.
In December 2005 the Mother married Mr Putra. They now have two young children, V aged 3 years and T aged 6 months. They previously lived in the W area in Brisbane’s southern suburbs but have recently relocated to the general area of the Redcliffe Peninsula. Because of concerns the Mother says she has arising from incidents of domestic violence during the course of the relationship she is unwilling to disclose her residential address.
Orders Sought by Applicant Father
The orders sought by the Father are to be found in his updated outline of case document produced to the Court at the commencement of the hearing. That document takes the form of three alternative proposals. In summary the three alternatives are:
· the primary orders he seeks;
· orders in the event the Court finds there is an unacceptable risk of harm to the child L;
· orders in the event the Court finds the Mother has involved the children in the conflict and pursued a course of action to alienate them from him.
The orders primarily sought by the Father provide:
· that the children live with the Mother;
· the Father and Mother have shared parental responsibility for major long term issues with each parent being solely responsible for decisions that are not major long term issues while they are in that parent’s care;
· contact with the Father would be as agreed between the parties, but failing agreement each alternate weekend from after school on Friday to before school on Monday (including public holidays that fall the day before or after the Father’s weekend);
· telephone communication with the Father, in privacy, at all reasonable times;
· periods of two week blocks upon the Father giving the Mother not less than one month’s notice;
· half the school holidays spent with the Father; and
· various orders relating to special days, non-denigration, and non-removal from school.
If the Court finds there is an unacceptable risk of harm for the child, L, he sought:
· that the children live with the Mother;
· the Father and Mother have shared parental responsibility for major long term issues with each parent being solely responsible for decisions that are not major long term issues while they are in that parent’s care;
· that L spend all such times with the Father as may be agreed between the child and the Father;
· that S spend time and communicate with the Father at all reasonable times as agreed, but failing agreement not less than each alternative weekend from after school on Friday until before school on Monday (including public holidays that fall the day before or after the Father’s weekend);
· by telephone Tuesday and Thursday between 7.00 pm to 7.30 pm;
· half the school holidays spent with the Father;
· various orders relating to special days, non-denigration, and non-removal from school;
· that the children not be removed from the schools they attended in 2008.
The evidence relating to abuse of the 13 year old L is particularly weak. As I understand the Mother’s position she did not pursue such allegations by the end of the trial. The allegations relate to the Mother’s claims she had seen the Applicant kissing his son on his penis when he was a young boy. The evidence would indicate the kissing ceased at the latest when the boy was seven years old. The incidents occurred infrequently and (on occasions) in the presence of the Mother. The Father said it was a custom or cultural practice in the Pacific Islands where the Father was raised. This evidence was not challenged.
In any event as I understood the stance taken by Counsel for the Father it was common ground the Court would not make specific orders in relation to L because of his age.
The far more serious allegations relate to the Applicant’s 17 year old step-daughter, J. She gave evidence of abuse perpetrated upon her by the Applicant extending over a significant number of years from when she was about seven years old until the time of separation when she would have been 13 or 14 years of age.
Regardless of the terms of the orders set out in the case outline document I understood it to be implicit in the Applicant’s case if the Court found an unacceptable risk in relation to the child, S, then her time with her Father should be supervised by the Applicant’s partner, Ms K or his adult son, N. The main point of contention was whether the Father’s time should include overnight periods. A minor point of contention was whether Ms K qualified as an appropriate supervisor.
In the final alternative, the Father sought:
· that the children live with the Father;
· the Father and Mother have shared parental responsibility for major long term issues with each parent being solely responsible for decisions that are not major long term issues while they are in that parent’s care;
· the Mother’s visits with the children to be suspended for a period of three months, after which time the children spend time as agreed but failing agreement not less that each alternate weekend from after school on Friday until before school on Monday (including public holidays that fall the day before or after the Mother’s weekend);
· telephone communication with the Mother, in privacy, at all reasonable times;
· half the school holidays spent with the Mother; and
· various orders relating to special days, non-denigration, and non-removal from school.
These orders were sought in the event the Court made a finding the Mother had
sought to alienate the children from him. This option was not pressed by
Counsel for the Father.
Orders Sought by Respondent Mother
The orders sought by the Respondent Mother in her case outline document provided as follows:
“That the Father spend time and communicate with the children as agreed between the parties with that time to be supervised by an appropriate adult at all times.”
There is minimal communication between the parties. The likelihood of the parties agreeing on an appropriate regime for the Father’s contact with S was remote in the extreme. In the circumstances I directed Counsel for the Mother to particularise her proposals.
On the third day of the hearing, Counsel for the Mother handed up draft orders in the following terms:
“1. That the children of the relationship, [L] born […] November 1995 and [S] born […] May 1998 (“the children”), live with the Mother.
2. That the Mother have the sole responsibility for the long term care, welfare and development of the children.
3. That each parent be solely responsible for decision (sic) about issues that are not major long term issues in relation to the child without consulting the other, whilst they are in the care of that parent.
4. That the Father spend time and communicate with the child [S] at all such times as may be agreed, but failing agreement as follows:
4.1. Until the child reaches 13 years of age, each alternate weekend on either a Saturday or Sunday (dependent on the availability of the supervisor) between 9.30am and 5.00pm;
4.2 Until the child reaches 16 years of age, each alternate weekend from 9.30am Saturday until 5.00pm Sunday;
4.3 From when the child reaches 16 years of age, each alternate weekend from 5.30pm Friday until 5.00pm Sunday;
4.4 On the child’s birthday, if the child’s birthday falls on a non-school day, from 11.00am until 4.00pm;
…”
Thereafter the orders provided for the Father spending time on specific days such as the children’s birthday, Father’s Day and such like. The orders also provided for telephone communication at all reasonable times.
By paragraph 5 it was proposed that the Father spend time with the child L at all such times as agreed between the child and the Father.
This was in accordance with the recommendation ultimately made by the Independent Children’s Lawyer. As noted above Counsel for the Father also did not seek orders in specific terms in relation to the child L.
The recommendations made by the Independent Children’s Lawyer in her closing address were along the following lines:
· that there is no reason to doubt the evidence of J and the Court would find that there is an unacceptable risk to the child S;
· Counsel went so far as to suggest this was a case where the Court would make a positive finding that the Father had sexually abused J;
· that the Mother be given sole parental responsibility;
· that L spend time with the Father as arranged by him;
· that S’s contact with the Father be supervised;
· that, in relation to who should supervise contact, an order be made to encompass the Father’s partner, his son N, and any person that the parties agree;
· that the orders be explained to the children by the Family Consultant Mr F; and
· that the remaining standard orders drafted by Counsel for the Mother be adopted.
These recommendations are substantially in accord with the opinion given by the Family Consultant, Mr F. Mr F had provided a family report dated 12 January 2009 in which he had made the following recommendations:
“105. It is recommended from this assessment that:
a. In the absence of findings that the father is an unacceptable risk to the children:
i. [the children] live with their mother.
ii. [S] spends time with her father on alternate weekends from Friday to Monday and or half of her holidays.
iii. [S’s] special events are shared between her parents.
iv. [S] has telephone communication with her father.
v. [L] is at liberty to spend time and communicate with his father in accordance with his wishes.
vi. The father has access to information from the children’s school, health and other professional providers.
vii. The parents are at liberty to attend the children’s extra-curricular events at any time.
b. In the presence of findings that the father is an unacceptable risk to the children:
i. [S] spends time with her father under the current structure of supervision.
ii. [L] is at liberty to spend time with his father in accordance with his wishes, subject to that time being supervised by an appropriate family member.”
In his evidence, Mr F drew a distinction between the Court making a positive finding that abuse had occurred and the Court making a finding of unacceptable risk. In the event of the former situation he adopted the form of orders as proposed by the Mother in the document handed up by her Counsel on the morning of the third day of the hearing.
Father’s Witnesses
Applicant Father
In his affidavit filed 10 December 2008, the Father deposes that upon separation the contact arrangements with the Mother were as negotiated. This arrangement prevailed for a period of about twelve months. He says (and this evidence was not challenged) that in December 2005 at the time the Mother married Mr Putra she left the two children in his care for three weeks.
In June 2006 the parties attended a Legal Aid Conference. The contact agreed at this conference was for alternate weekends and half school holidays. This continued until April 2007 when the Mother suspended all contact. There was a growing level of animosity between Mr Putra and the Applicant over this period of time.
The Father was told by the Mother in April 2007 that contact ceased due to concerns about the paternity of L. By May 2007 there were also claims by J that the Father had sexually abused her. The Father denies such allegations (paragraphs 26 and 31 of his December 2008 affidavit).
The Father describes at length in his affidavit numerous contact visits since the interim orders of 16 August 2007 that had been thwarted by the Mother. This includes both physical contact and telephone calls, with the Father deposing to not having seen L since 1 August 2008. The Mother does not challenge the fact L has not spent time with his Father since this time.
Ms K
Ms K commenced a relationship with the Father in June 2005, and is currently the partner with whom he lives. She deposes, in her affidavit of 10 December 2008, to having a close relationship with the children, having spent time with them when they spent time with the Father, in accordance with the interim orders of 16 August 2007. She denies the Father has acted inappropriately around the children.
N Keva
Aged 19, N is the eldest son of the Father. He lived with both the Mother and Father during their relationship and went to school with J. He, in addition to Ms K, was responsible, pursuant to the interim orders of 16 August 2008, for being present when the children were in the Father’s care. He further deposes to diligently carrying out his obligations to be present when the children are around.
Father G
Father G is a Catholic priest, who is currently a missionary in the Pacific Islands, with a doctorate in Theology and a post-graduate diploma in Anthropology. He deposes, in his affidavit filed 8 January 2009, to the cultural appropriateness of the Father kissing L’s penis. His evidence was unchallenged.
Mother’s Witnesses
The Mother relied on three affidavits at trial, filed 6 August 2007, 3 October 2007 and 17 November 2008.
J
The Mother’s daughter, is currently 17 years old. A large part of her affidavit filed 8 October 2008 relates to the sexual abuse allegations. These I will turn to later in these reasons. She also recalls incidents of domestic violence that similarly will be dealt with later in this judgment.
The maternal grandmother
The children’s maternal grandmother gives evidence relating to disclosure of abuse made by J. She states that in early May 2007 she found an email on her computer from J disclosing some sort of abuse. The Mother was called and confronted J, who disclosed to the Mother that she had been sexually abused by the Father. The maternal grandmother also records changes in J’s behaviour which she attributes to the abuse.
Mr Putra
The step-father of the children, met the Mother on 10 July 2005. They married in December of the same year, and have 2 children of the marriage. Mr Putra also has 2 children of a previous relationship. He deposes, in his affidavit of 18 December 2008, to hearing L tell the Father that he didn’t want to see him again, and subsequently contact visits ceased. He further attributes the incident between himself and the Father at Bunnings to the Father, and gives evidence of the denigrating behaviour of the Father in front of the children.
Ms P
An Associate Minister (of Religion) and the eldest sister of the Mother, was not required for cross-examination on the clear understanding that Counsel for the Mother would not contend her evidence was unchallenged. In her affidavit of
5 January 2009she deposes to hosting a meeting at her house with the Mother, J and Mr Putra present to clarify the truth of the allegations. She further states that the Mother has a positive relationship with the children, and recalls times when the Father has burdened N and the children with his family problems.
Independent Children’s Lawyer’s Witnesses
Mr F
Family Consultant with the Family Court, had completed a Children and Parents Issues Assessment dated 10 April 2008, which has been marked as Exhibit 7, and a Family Report dated 12 January 2009, marked Exhibit 8. In the Assessment report, Mr F summarily suggests the pressing issue is that of unacceptable risk of the Father, which will determine whether contact needs to be supervised. Recommendations from his Family Report have been included in full above.
Dr M
Has two reports in this matter, one of the Mother dated 4 February 2008 and one of the Father dated 22 July 2008. Of the Mother, Dr M found her “somewhat controlling” in the interview. She failed to disclose a psychiatric admission where she was suffering from an adjustment disorder with depressed mood. As regards the Father, Dr M found him to be of normal intelligence, with no presentation of psychiatric disorders that would lend clarification to whether he has been sexually abusive or provide insight into his parenting abilities.
Ms J
A Family Consultant, prepared a report dated 16 December 2007. She gave evidence at the trial by telephone link. She identifies determination of the allegations made by J to be key to determining the dispute (see paragraph 132).
Abuse allegations of J
One of the few areas upon which the parties agree was that the central issue to be determined was the reliability of the evidence of the 17 year old child J that she had been the subject of sexual abuse over a period of years by the Father.
The disclosures made by J are recorded in the evidence in a variety of ways:
·the affidavit of J sworn 7 October 2008;
·an undated statement by J which she says she forwarded to the Mother’s solicitor prior to her affidavit being prepared;
·exhibit 4 being the Queensland Police Service file records details of the disclosures made to the Police in May 2007;
·the affidavits of the Mother, the grandmother and N of the child in various ways disclosing her father had abused her;
·her oral evidence.
In summary form J alleges the Father over the space of some years would pull down her pants and lick her private parts. This continued from about age 7 through to about age 13. She did not tell her Mother or anyone else about these events because she did not want to take the Father away from her brother and sister. She says her Father had said to her this would happen if she told anyone about his behaviour. It is common ground that there are a number of inconsistencies in J’s account of events which I shall advert to shortly.
On behalf of the Father it was contended that his evidence denying the allegations made by J should be preferred. Reliance was placed on the following factors:
(i)There was evidence that J continued to be friendly and courteous towards the Father even after separation with a reasonable degree of frequency. On occasions she would travel in his car with N when returning from school. On other occasions she would call at the Father’s house in the company of her aunt, to take L and S to religious services on a Sunday.
(ii)Inconsistencies in J’s account of events includes the following:
· there is conflict whether J made the disclosure of abuse to her mother on the phone or whether she simply raised that something had happened.
· another area of inconsistency is that the Mother says she was told by J that her step-father had requested her to kiss his private parts. J did not disclose this aspect when interviewed by the Police nor did it appear in her affidavit evidence. The latter omission was ameliorated somewhat by a document produced from the solicitor’s file which had been typed by J and forwarded to the Mother’s solicitors (exhibit 6). J’s explanation for omitting to tell the Police was that she forgot. I understood this to mean that she overlooked telling the Police Officer rather that she had forgotten the incident entirely. The Police Officer did ask a direct question on this subject and the child appears to have given an incorrect answer.
(iii)It was further submitted that the allegations of abuse emerged at a time when the Mother was actively discouraging the children spending time with their Father largely on spurious grounds. The allegations emerged at a time of increasing level of hostility between the parties.
Submissions made as to why J’s evidence should be treated as credible include the following:
·The Court should accept that there was an email sighted by the maternal grandmother. This email was not kept but I do not attribute any sinister motivation for this. The maternal grandmother impressed me as an honest, mature woman. She says she read the child’s email to a friend with words to the effect:
“He used to hurt me but doesn’t hurt me anymore.”
The significance of this is that the disclosures came about through the maternal grandmother telephoning the Mother who then spoke to J on the subject. J had not made voluntary disclosures.
·J has not sought to exaggerate her claims for example she conceded that while the parties resided at U, there were no incidents during that period.
·The behaviour of J has been typical of a victim of sexual abuse.
·The evidence was that on the day the disclosures were made in the child’s bedroom, J was crying. It is difficult to accept that she was somehow faking the tears to add substance to allegations which she knew to be false.
·J was living with the maternal grandmother at the time and would not have had the same degree of awareness of the difficulties with the children spending time with their father and the increasing level of hostility.
·J is not of a sophisticated disposition. She is not a histrionic type of person. Mr F the Family Consultant described her as reserved and considered. The Court should accept that these were accurate descriptions. J is very close to her brother N. She is not directly related by blood to N but they attended school together and it is unlikely that J would lie to N with whom she is very close.
·I accept there was a further inconsistency in that by some accounts N was in the room at the time J made the disclosures.
·N’s evidence is in the following terms (refer paragraph 8):
“8.When I arrived there I was asked to go into [J’s] bedroom where [the mother] was sitting with [J]. Both of them were crying. [J] did not say anything but [the mother] had told me that Dad had done bad and naughty things to [J]. I asked [J] if that was true and she nodded her head. No details or particulars were provided to me at that time of what had actually happened.”
·J’s account of events notwithstanding some inconsistencies has remained consistent over the period since the disclosures were first made in May 2007. Inconsistencies in her account have been adequately explained by her.
I find the Mother’s family has acted appropriately at all times in relation to the disclosures made by J. The evidence of the aunt was that there was a meeting convened at her home to talk to J about the ramifications of proceeding with the allegations and to give J an opportunity to confirm what had happened. She says in paragraph 3 of her affidavit:
“The purpose of this meeting was for all of us to be completely certain of the truth. This was very distressing for [J] and for all of us present that day. [J] burst into tears and confirmed the allegations of abuse.”
The whole modus operandi described by J of the Applicant’s conduct has a ring of truth about it. Exhibit 6 I find to be a particularly significant document. It is J’s two page typed document which she prepared. It is sufficiently detailed yet at the same time it does not have an artificial air to it. There is an inconsistency in this account of J’s in that in her affidavit material (paragraphs 10 and 11) it is on the second occasion that she is abused that the child S was sitting in a high chair in the kitchen. In J’s statement in the opening paragraph she indicates that S being in the high chair was the first time that the abuse had taken place.
I appreciate there are some Judicial Officers who regard inconsistencies in a witnesses’ account as being an indication of fabrication. There are other Judges, such as myself, who view such inconsistencies as perfectly normal and to be expected when a person is asked to recall events which had occurred many years earlier and in this instance when the person is giving evidence about what happened at seven years of age. She is able to recall with a considerable degree of specificity that events occurred at particular times and places, such as in the statement:
“Another time was a day that Mum was overseas with [L] and [S], it was just me, my older brother [N] and his friend […] that were home as well as him. The boys wanted to go and play down at the park. We were all just about out of the house when [the father] said that he had to talk to me. The boys went down to the park and [the father] locked the garage door behind them. - -”
Observations on the Submissions
(a) I do not find it unusual that J could act in a friendly manner on the occasions she met her step-father after separation. To behave otherwise would arouse suspicion and she was not wanting to have the abuse uncovered because of the threats her step-father had made. As she records in her statement (exhibit 6):
“The reason I didn’t tell my Mum or anyone else it was mainly for my little brother and sister. He was their Dad and I didn’t want to take that away from them, plus I know what it is like not growing up with your Dad around.”
(a) Inconsistencies in the accounts given by J and inconsistencies between J’s evidence and that of her Mother have been adequately explained. The explanations involved:
·The period of time which had elapsed relative to the events she was being asked to recount.
·The fact that the events first occurred when the child was only seven years old.
·The fact the child was embarrassed when being interviewed by a Police Officer who J felt was not accepting of her account of events.
(b)In relation to the timing of the disclosure coinciding with the Mother thwarting contact arrangements I place little weight on this. J was sending a private email to a friend. She did not anticipate her email would be read by her maternal grandmother. The maternal grandmother contacted the Mother who then spoke to J. At that time J made the disclosures she did. As she was living with her maternal grandmother she was to a considerable extent protected from the conflict between her Mother and step-father.
In making the finding I have applied the Briginshaw standard in view of the seriousness of the consequences to the Applicant.
On balance I find that J’s account of events is credible. I accept the accuracy and force of the submissions made by Counsel for the Mother and Counsel for the Independent Children’s Lawyer summarised in paragraph 39.
Whether Positive Finding of Abuse should be Made
In the decision of the High Court in N and M (1988) FLC 91-979 the Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) held:
“No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.”
I have heard the submissions on this aspect and have had regard to Appellate authorities on this issue. In many cases it is sufficient for the Judge to simply record a finding of unacceptable risk. Counsel for the Independent Children’s Lawyer was of the view that in circumstances where one person’s evidence was correct and the other person’s evidence was false it was incumbent on the Court to make a positive finding. I do not necessarily accept the force of this submission. An unacceptable risk could well arise where allegations are made and the Judge is unable to reject the allegations but likewise is unable to accept the denials of the allegations. In those circumstances a finding of unacceptable risk may be appropriate.
In the present case I believe it is appropriate to make a positive finding. I do so for the following reasons:
(i)The child J is now 17 years of age. In circumstances where a Court is prepared to do so she deserves to have her evidence confirmed in the face of the denials by the Father.
(ii)I found J’s evidence to be particularly compelling in all aspects of its presentation notwithstanding the various inconsistencies to which I have made reference.
(iii)The Independent Children’s Lawyer has urged a positive finding.
(iv)It will be easier to explain to the subject children, given their ages, why the Court makes the ultimate orders that are to be put in place.
Whether a Positive Finding of Abuse of J Should Lead to a Finding that S is at Risk
This was not the subject of any detailed submissions. It was common ground that if the Court accepted J’s evidence then the Father’s time with S should be supervised albeit in a manner which would not normally meet the approval of Appellate Courts. Appellate Courts have commented on the undesirability of supervision being carried out by near relatives, family or those who are non-accepting of the truth of the allegations.
The view that I have formed is there is a risk to S on the basis if a person has acted in such a manner with a step-daughter it cannot be guaranteed he would not act in a similar way with his own daughter. I accept that the risk is mitigated by a number of factors:
(i)Because his conduct has been exposed in a very public fashion it is unlikely he would seek to re-offend.
(ii)The Father seemingly has not offended with S to date. The child is now ten years of age. The Father has had less opportunity since the separation in the first half of 2005 but there have been many occasions of overnight contact and holiday periods and seemingly S has not made any complaint about her father’s conduct. The Father enjoys a particularly close relationship with his child and it is to be hoped that he would not breach that trust of his daughter in the future.
(iii)Whilst N and Ms K are family both struck me as being people who would in no way condone child abuse in any form at any time. I expect consistent with the findings of this Court they would exercise a degree of care and vigilance. They have both agreed to act as supervisors in the event the Court ordered that that be the case.
I am mindful of the submissions made by the Mother that Ms K should not be considered as a supervisor. The Mother’s complaints in this regard largely stem from the fact that Ms K was allegedly in an adulterous relationship with her husband for a period of years prior to separation, whilst at the same time being in a close friendly relationship with the Mother herself.
Accepting the Mother’s allegations at their highest it still does not lead me to conclude that Ms K would in any way show such a lapse of moral judgment that she would leave the child unsupervised with the Father or would condone any inappropriate behaviour.
Other Issues
I accept the allegations made by the Mother of domestic violence perpetrated by the Father. They are corroborated to some extent by the records as contained in the subpoenaed documents which have been tendered. There is also evidence from various sources that the Father has on occasions consumed alcohol to excess. There is a concern that he would drive whilst under the influence of alcohol. I have considered the evidence on these aspects.
But for the abuse claims of J there was no reason advanced why the Father would not have generous unsupervised time with this daughter. Because of the Orders in place N appears to do most of the driving.
It is not a case where the Mother’s behaviour is free from criticism. Submissions made critical of her behaviour include:
·She did not inform the Father that L had broken his arm (paragraph 29 of the Father’s affidavit of December 2008).
·She made a unilateral decision to not comply with standing arrangements prior to the legal proceedings commencing. Her attitude was, “If you want to see the children take me to Court”.
·The Mother made allegations the Applicant is not the father of L which allegations were found to be incorrect. The Mother introduced L to a man “Albert” on the basis that he was his father.
·The Mother was non-compliant with Court Orders.
·The Mother appears to have made complaints to the Department of Child Safety in relation to penis kissing when she had previously expressed the view that there was nothing inappropriate with this behaviour.
·On Father’s Day in 2007 the Mother was insistent that the two children spend time with her new husband Mr Putra rather than seeing N play football (refer paragraph 17 of N’s affidavit) and spending time with their biological father.
I do not find it necessary to detail other factors in section 60CC. I have read the family reports. I accept the observations made by Mr F in his report. I accept the force of the recommendations that he has made. The child S has a close relationship with her father and I accept would want to continue to spend time with him. I have reached the conclusion that this can be done appropriately by introducing a number of safeguards one of which is the requirement for supervision and the other that there not be overnight time. I am not enamoured of the proposals put forward on the Mother’s behalf that the orders change at age 13 and once again change at age 16. I will put in place orders that by the time the orders cease to have effect I fully expect S will be of sufficient maturity as to be able to make decisions about her own future and the status of her relationship with her Father.
Sole or Joint Responsibility
As noted earlier the Mother seeks orders she have sole responsibility whilst the Father presses for an order for joint responsibility of the children.
Section 61DA of the Family Law Act (“the Act”) provides as follows:
“61DA (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in Section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
I find it appropriate to make an order for sole responsibility for reasons advanced by Counsel for the Independent Children’s Lawyer. I note in particular:
·This is a case where the Court has found there is an unacceptable risk to the female child.
·The Court has made findings the Applicant engaged in acts of domestic violence during the course of the relationship.
·There is a high level of hostility between the two households. There is virtually no communication between the parties. The only communication such as it is appears to occur via N.
·I see no benefit to S in the parties constantly engaging in disputes about important decisions in her life. She needs to be spared from such potential conflict.
For the above reasons I will make an order for sole responsibility in favour of the Mother.
Section 65DAA of the Family Law Act is in the following terms:
“65DAA (1) [Equal time] If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(2)Substantial and significant time If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of specific significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
(5)[Reasonable practicality] In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
The contest between the parties narrowed such that it was common ground that if the Court found unacceptable risk the only questions remaining were whether the Father’s time on alternate weekends should be overnight and whether his partner, Ms K was an appropriate supervisor. The opinion of the Family Consultant Mr F was that in the event the Court made a positive finding abuse had occurred overnight time was not appropriate. The Family Consultant endorsed the orders sought by the Mother.
I accept the opinion expressed by the Family Consultant for the reasons he gave in the course of his evidence. To my mind once an unacceptable risk for S has been established that risk would be significantly increased if the Father’s time was to include overnight periods. J’s evidence was that the occasions of abuse occurred on a significant number of times early in the morning or at times she was otherwise in her bedroom.
In relation to the issue as to whether Ms K is an appropriate supervisor I have previously made my findings on that aspect.
Changeover
The changeover to date has been at the Shell Service Station at G. The Father was proposing an additional changeover point on an alternate basis in the M area. No evidence was directed to that and no submissions. I accept that because of the recent move from Brisbane’s southern suburbs to the Redcliffe area there is a great deal more travel to be undertaken for the Father to spend time with his daughter. I do not however find that the move was made out of spite or simply to make life difficult for the Father. Mr Putra has family in the Redcliffe area and there had been significant incidents of violence in the Brisbane district which led to the Putra household wanting to relocate. I will put in place orders that will allow the changeover to be at such venue as the parties may agree in writing but in the absence of agreement then on each occasion to be at the stipulated times at the Shell Service Station at G.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.
Associate:
Date: 17 February 2009
ADDENDUM TO JUDGMENT
When the Judgment was delivered on 17 February 2009 the legal representative for the Father noted that the changeover arrangements in operation since December 2008 were made by consent and provided for the inclusion of the M option.
There was no detail for changeover in the orders as sought by the Mother. There was no evidence on this aspect during the course of the hearing and no submissions so directed. In the circumstances I directed that the changeover arrangements as set out in the Orders of 9 December 2008 will stand.
Associate:
Date: 17 February 2009
Key Legal Topics
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Family Law
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Jurisdiction
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Natural Justice
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Procedural Fairness
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