L and B (No.3)
[2004] FMCAfam 659
•19 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & B (No.3) | [2004] FMCAfam 659 |
| FAMILY LAW – Children – contact – variation of contact – supervised contact – unsubstantiated allegation of abuse. PRACTICE & PROCEDURE – Evidence admissibility – documentary evidence – hearsay evidence – whether a file from the NSW Department of Community Services is admissible as a business record – whether the court should exercise its discretion under s.135 of the Evidence Act 1995 (Cth) to exclude DOCS file as unfairly prejudicial. |
Evidence Act 1995 (Cth), ss.69; 135; 140
Evidence Act 1995 (Cth), ss.69; 135
Family Law Act 1975 (Cth), ss.60B; 65E; 68F(2); 97(2)(c)
L & B [2003] FMCAfam 211 referred to.
L & B (No.2) [2003] FMCAfam 241 referred to.
Vitali v Stachnik [2001] NSWSC 303 (20 April 2001) distinguished
O’Donnell & Murphy & The Child Representaive Appeal SA80 of 2002
WK & SR (1997) 22 Fam LR 592; FLC 92-787
Briginshaw v Briginshaw (1938) 60 CLR 336
| Applicant: | K M L |
| Respondent: | S W J B |
| File No: | PAM 307 of 2000 |
| Delivered on: | 19 November 2004 |
| Delivered at: | Sydney |
| Hearing dates: | 4 & 5 December 2003, 21 January 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Lapthorn |
| Solicitors for the Applicant: | Broun Abrahams |
| Counsel for the Respondent: | Mr Campton |
| Solicitors for the Respondent: | Matthews Folbigg Pty Ltd |
ORDERS
That the Orders made on 3 July 2001 and varied by the Orders made on 29 November 2002 are discharged.
That the child R M B born 24 August 1999 live with the mother.
That the father have contact with the child R:
(a)each alternate weekend during school term time from 6.00 p.m. Friday until 6.00 p.m. on Sunday extending to 6.00 p.m. on Monday if the Monday is a public holiday;
(b)that the father’s contact set out in Order 3(a) is suspended from the last day of any school term until the first day of the next school term commencing at the end of the school term in December 2004 however for the purposes of calculating the sequence of alternate contact as set out in Order 3(a) the suspended contact is to be taken to have occurred;
(c)for five (5) days in January 2005;
(d)for half of each school holiday period from and including the Autumn school holidays in 2005 such half to be agreed between the parents and failing agreement:
(i)for the first half of each school holiday period in odd numbered years with the first day of such contact to commence at 5.00 p.m. on the last day of the school term; and;
(ii)for the second half of each school holiday period in even numbered years with the conclusion of such contact to be 5.00 p.m. on the Sunday preceding the commencement of school term;
(e)for one half of Christmas Eve, Christmas Day and Boxing Day as agreed between the parents and failing agreement:
(i)from 12 noon on Christmas Day until 12 noon on Boxing Day in odd numbered years; and
(ii)from 12 noon on Christmas Eve until 12 noon on Boxing Day in even numbered years.
(f)on the child’s birthday being 24 August in each year:
(i)in the event the birthday falls on a weekend, for four (4) hours as agreed between the parents and failing agreement from 9.00 a.m. to 1.00 p.m. that day;
(ii)in the event the birthday falls on a week day during school term:
a.by telephone between 5.00 p.m. and 6.00 p.m., such telephone contact to be initiated by the father telephoning the mother’s mobile telephone; and
b.from 9.00 a.m.; to 1.00 p.m. on the Saturday nearest in time to the birthday;
(g)on Father’s Day from 9.00 a.m. until 6.00 p.m;
(h)by telephone each Tuesday and Thursday between the hours of 5.00 p.m. and 6.00 p.m. such telephone contact is to be initiated by the mother telephoning the father’s home telephone at Bundeena with the mother using her best endeavours to facilitate the telephone contact;
(i)at other times if any are agreed between the parties;
(j)for a period of twelve (12) months from the date of these Orders the father must ensure that one or more of the paternal grandparents R W B and C E B or his friend M K is present during any period of school holiday contact as set out in Orders 3(c) and 3(d) to include the collection and return of the child R at the commencement and conclusion of contact;
PROVIDED THAT notwithstanding the Orders set out above the father is not to exercise contact at any of the following times:
(k)for the first half of each school holiday period in even numbered years;
(l)for the second half of each school holiday period in odd numbered years;
(m)from 12 noon on Christmas Day until 12 noon on Boxing Day in even numbered years;
(n)from 12 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years;
(o)in the even that the child R’s birthday falls on a contact weekend, on the child’s birthday for four (4) hours as agreed between the parties and failing agreement from 2.00 p.m. until 6.00 p.m. on that day: and
(p)on Mother’s Day from 9.00 a.m. until the end of the day.
That for the purpose of facilitating contact according to these Orders the mother must deliver the child R to the paternal grandparents or the father or any one of them at the home of the paternal grandparents at the commencement of contact and the paternal grandparents or the father or any one of them must return the child to the mother at that same place at the conclusion of each contact period.
That the father must provide the mother with seven (7) days advance notice of any proposed overnight stay away from his residence or the paternal grandparents’ residence during contact and this notice must include an itinerary and contact details.
That while the child R is on contact with the father he must:
(a)forthwith notify the mother of any illness or serious injury sustained by the child;
(b)ensure that the child is properly restrained in an appropriate child seat or seat belt at all times when travelling in a motor vehicle as required by the law of New South Wales;
(c)cause the child to telephone the mother on her mobile telephone in the event that the child requests to speak to the mother during any contact period; and
(d)cause the child to telephone the mother on her mobile telephone each Tuesday and Saturday between the hours of 5.00 p.m. and 6.00 p.m. while the child is on school holiday contact with the father.
THAT notwithstanding these Orders the father is not to exercise contact with the child if the mother provides the father or the paternal grandparents with a certificate from a medical practitioner to the effect that the child is affected by illness on the day the father would ordinarily be entitled to contact with the child PROVIDED THAT the mother must then arrange a further period of contact between the father and the child to make up for the time lost due to illness, such further period to be arranged within one month.
That the father be restrained from administering to himself any prohibited drug or using any prohibited substance during any period of contact or for twelve (12) hours before the commencement of any period of contact.
That if the father is unable to exercise any contact provided by these orders he must notify the mother at least 24 hours beforehand.
That the mother must do all acts and things necessary to authorise the Principal of any school attended by the child to forward to the father copies of all school reports, bulletins, newsletters and information about school photographs.
That the parents must do all acts and things and sign all documents necessary to enable the mother to obtain an Australian passport for the child R.
That upon the mother obtaining an Australian passport for the child she must within seven (7) days lodge the passport with the exhibits office at the Federal Magistrates Court at Parramatta.
The child’s passport is to be held at the exhibits office and only released to the parents upon:
(a)the attendance of the parents in person at the exhibits office; and
(b)the provision of written consent from the parents to the release of the passport to either the mother or the father; and
(c)the production of a written undertaking by the mother or the father as the case may be to return the child’s passport to the exhibits office on or by a specified date.
The mother and the father and the paternal grandparents are restrained from:
(a)denigrating or criticising or using offensive or insulting language to each other or any family members to or in the presence or hearing of the child; and
(b)discussing these proceedings with or in the presence or hearing of the child or showing any documents or correspondence relating to these proceedings to the child.
That the mother is to have the sole responsibility for making long term decisions about the medical care or schooling of the child.
That within twelve (12) months from the date of these orders the mother must do all acts and things and sign all necessary documents to enrol the child in and facilitate the child’s attendance at a Protective Behaviours Course through the Department of Community Services or such other service provider as is recommended by the Department of Community Services.
That within one month from the date of these Orders the father must arrange an appointment with the convenor or other proper officer of the Keeping Contact Program at 27 H Street P for the purpose of enrolling in a parenting after separation course.
All documents produced under subpoena may be returned after one month.
All other applications are dismissed save as to costs and the proceeding is removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 307 of 2000
| K M L |
Applicant
And
| S W J B |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the mother of a little girl called R to discharge earlier parenting orders made on 3rd July 2001 and 29th November 2002. The orders that she now seeks may be summarised in this way:
a)That the father’s contact with the child should be supervised for a period of twelve months;
b)That the father’s block contact over the school holidays should be supervised from December 2004 until February 2006;
c)That the father is to be restrained from using prohibited substances (ie drugs) during contact and for twelve hours beforehand;
d)That the two parents should co-operate to obtain an Australian passport for the child;
e)That the passport should be held by the Federal Magistrates
Court until needed;f)That the mother should have the sole responsibility for making long term decisions about the child’s schooling and her medical care;
g)That the father should attend professional counselling to resolve emotional issues related to his separation from the mother;
h)That the mother should enrol the child into a Protective Behaviours Course through the NSW Department of Community Services;
i)That the father should attend a parenting after separation course through Unifam; and
j)That the father should attend a Parenting Effectiveness Course.
The father filed a Response on 12th June 2003. In that Response, he sought the following orders:
a)That the mother’s application should be dismissed;
b)That his contact with the child should be varied so that the fortnightly contact that he had should commence after school on Friday (or Thursday if Friday is a public holiday) and conclude at the commencement of school on the Monday (or Tuesday if Monday is a public holiday);
c)That the contact changeover point for fortnightly contact should be the child’s school;
d)That the contact changeover point for all other contact should be the McDonalds Restaurant at K, New South Wales; and
e)That the mother pay his costs.
Background
The parties commenced cohabitation in September 1998. The father was born on 11th August 1969, so he is now 35 years of age. The mother was born on 20th March 1970, which means that she is now aged 34. There is one child of the relationship, a little girl called R M B, who was born on 24th August 1999. The parties separated on 11th September 1999, only a few weeks after R was born. She has lived with the mother ever since.
The parties are no strangers to litigation. The NSW Police applied for an Apprehended Violence Order against the father on behalf of the mother and the child on 11th October 1999. On 9th December 1999 the Local Court of NSW at M V made an interim order against the father. On 28th February 2000 the Local Court made an order by consent without admissions for a period of nine months.
The father commenced proceedings in the Family Court at Parramatta on 19th June 2000. In his application, he sought orders that the child should live with the mother and that he should have defined contact for two hour periods twice a week for the first three months, and then for a longer time twice each week. The application was returnable on 18th July 2000. The mother filed her response on the return date.
It appears that the Family Court immediately transferred the matter to the Federal Magistrates Court, because the matter came before the Federal Magistrates Court that same day. The parties entered into interim consent orders for residence and defined contact that day.
The consent orders provided for contact as follows:
a)For a period of three months, for two hours each Wednesday;
b)For a further period of three months, for two hours each Saturday; and
c)Thereafter, each Saturday from 10.30 a.m. to 4.30 p.m.
The consent orders contained a number of restrictions on the father, falling not far short of supervised contact. The Apprehended Violence Order was still in force at that time. Order 3 stated:
“For the purpose of contact in accordance with Order 2:
(a) The Mother shall deliver the child to and collect the child from the Father’s parents’ residence at 34 A Street, O[1] at the commencement and conclusion of contact;
(b) The mother shall deliver and collect the child to and from either of the paternal grandparents; and
(i) The Father shall remain within the residence of his parents at the times when contact commences and concludes; and
(ii) The Father shall ensure that either of the paternal grandparents is present for the duration of all contact occasions.”
[1] Oatley is a southern suburb of Sydney
On 3rd July 2001, the two parents entered into final orders by consent. Those orders provided that the child would continue to live with the mother. The father’s contact was defined as follows:
“(a) Until 1 October 2001:
(i) each Wednesday from 10.00 a.m. until 4.00 p.m.;
(ii) each Saturday from 10.00 a.m. until 4.00 p.m.
(b) from 2 October 2001 until 1 January 2002:
(i) each Wednesday from 10.00 a.m. until 4.00 p.m.;
(ii) each Saturday from 9.00 a.m. until 5.00 p.m., or 6.00 p.m. during daylight savings[2] time.
(c) from 1 January 2002 until 1 July 2002:
(i) each two out of three Wednesdays from 10.00 a.m. until 4.00 p.m.;
(ii) each alternate weekend from 9.00 a.m. Saturday until 5.00 p.m. Sundays, extending to 6.00 p.m. during daylight savings time.
(d) after 1 July 2002:
[2] sic
(i) until the child commences school, two out of three Wednesdays from 10.00 a.m. until 4.00 p.m.;
(ii) each alternate weekend from 6.00 p.m. Friday until 5.00 p.m. Sundays, extending to 6.00 p.m. during daylight savings time.”
There were other provisions about Christmas, Mothers’ Day and Fathers’ Day which are not relevant to the matters to be considered here. The orders did provide that there should be contact for half the school holidays once the child attained the age of 5 years, and for contact changeover to take place at the McDonalds Restaurant in the Sydney suburb of K.
The parties returned to this Court on 29th November 2002, as a result of a Contravention Application filed on the father’s behalf on 11th November 2002. In that Application, the father alleged that the mother had breached the contact orders on seven occasions between 10th July and 9th October 2002, by failing to deliver the child to him for contact.
The parties attended Court with their legal advisers on 29th November 2002. They entered into consent orders varying the earlier contact orders. The relevant parts of those orders are:
“a.That in respect of the Father, Wednesday contact as provided by Order 4(d)(I) the same be varied to provide that the Father have contact from the close of the school/pre-school (currently at 12 noon) until the re-commencement of same the following morning (at 8.30 a.m.) or as advised by the Montessori East School and the Father attend to the collection and returning of the child; and
bThat Order 4(I) be discharged in lieu thereof, the Father additionally have contact from the time the child attains the age of 4 years until she attains the age of 5 years for 4 block periods each of 4 days as nominated by the Father to the Mother in writing 21 days prior thereto…”(the balance of the orders are not relevant.)
The mother obtained a further Apprehended Violence Order against the father at the Local Court of NSW at W on 3rd march 2003. That order was made for two years, so it is still in force. The mother deposed in an affidavit sworn on 21st May 2003 that the father had been found guilty of two separate breaches of those orders. She deposed that the most recent breach was found against him the day before. The father was fined and placed on a good behaviour bond.[3]
[3] Affidavit of K.M. L sworn 21.5.2003, paragraphs 16 and 17.
The mother commenced these current proceedings at short notice on 22nd May 2003. In her affidavit in support of her application, the mother claimed that the child had disclosed to her on Saturday 17th May 2003 that the father had regularly touched her genitalia on contact visits. The mother deposed that she had reported the matter to the NSW Department of Community Services and had been informed that the matter would be referred to the Joint Investigation Response Team. The mother sought an order suspending the father’s contact until the Joint Investigating Response Team (known as “JIRT”) could complete its investigation.
The mother’s application came before the Court at short notice on 23rd May 2003. Both parents were present and represented by counsel. After conducting an interim hearing, I adjourned the proceedings until June, 2003, made directions for filing further material and made this order:
(5) Until further order the orders for contact made on 3 July 2001 and varied by the orders made on 29 November 2002 are suspended.
The decision is unreported but its Federal Magistrates Court citation is [2003] FMCAfam 211.
When the matter returned to court for a further interim hearing on 16th June 2003, the father had had the opportunity to file his response and some affidavit material. There was also a secondary assessment report from the Department of Community Services relating to the allegations. In my decision on 16th June, I made the finding that:
The secondary assessment report does not provide strong evidence to substantiate a claim that the father has abused the child sexually[4].
[4] L & B (No. 2) [2003] FMCAfam 241
I reinstated the contact that had been suspended on the previous occasion, but ordered that it should be supervised. I made these orders until further order:
(1)All contact between the father and the said child is to take place at the home of and in the presence of the father’s parents, R W B and C E B, or either of them.
I ordered a Family Report and listed the matter for final hearing.
The issues
At the commencement of the hearing, counsel for the father, Mr Campton, gave a succinct outline of the issues:
In effect, what the mother is seeking is my client’s contact with R to be varied in that there be no more Wednesdays. That contact be supervised for a period of 12 months from the date of any determination made by your Honour. That there be some changes to the arrangements for holiday contact; holiday does not commence until December 2004 and that holiday contact be supervised for a period of 12 months from then. She also proposes amongst other restraining orders that she have sole long term and day to day care and responsibility for R.
The father’s position is that he opposes the relief sought by the mother and he seeks a continuation of the existing orders that have been in place. He seeks the provision of supervision that has been existing …to be discharged. He seeks to go back to the regime that has been in place.[5]
[5] Transcript 4.12.2003 page 4.
The evidence
The mother relied on these documents:
a) Her application filed on 23rd May 2003;
b) her affidavit filed on 24th October 2003;
c) the affidavit of D M L filed on 24th October 2003;
d) the affidavit of N A filed on 24th October 2003;
e) the affidavit of D L Z filed on 24th October 2003;
f) the affidavit of J M filed on 24th October 2003;
g) the affidavit of E A B filed on 24th October 2003;
h) the affidavit of K T filed on 24th October 2003;
i) the affidavit of C M O’D filed on 6th November 2003;
j) Court Counsellor’s Summary Family Report dated 21st October 2003.
The father relied on four affidavits:
a) His affidavit filed on 1st October 2003;
b) the affidavit of R B filed on 1st October 2003;
c) the affidavit of C B filed on 1st October 2003; and
d) the affidavit of M K filed on the 3rd October 2003.
After some material in K T’s affidavit was ruled inadmissible, Mr Campton indicated to the Court that he no longer required K T for cross-examination.
The mother gave evidence by affidavit and was subjected to cross-examination for most of the first day. Before her cross-examination commenced, another witness, J M was interposed. The mother left the court whilst Ms M gave evidence.
J M deposed that she was an Assistant Teacher at the M E Pre-School at B, and had taught the child R during the year. It was her evidence that on one occasion in June the child was very reluctant to go on contact with her father. The child started to cry and clung to Ms M. When Ms M handed the child over to her father she observed her struggle when he was putting her in the car. Ms M also deposed that later that month the father approached her and accused her of having a biased and negative view of him.
During Mr Campton’s cross-examination of this witness, the father became agitated and called out to her. I warned him not to repeat that behaviour. At the adjournment for lunch I advised Mr Campton and his instructing solicitor to speak to the father about his demeanour in court.
Before the mother commenced her oral evidence, her counsel, Mr Lapthorn, sought to tender the secondary risk assessment from the Department of Community Services. Mr Campton opposed the tender, on the basis that the documents were not prepared in the ordinary course of the Department’s business. He submitted that they were prepared for obtained in contemplation of an Australian proceeding, because they came into existence subsequent to a notification made to the Joint Investigation Response Team. As a result, the documents would not be admissible under s.69(2) of the Evidence Act 1995, which excludes business documents from the hearsay rule. He submitted that they were caught by the provisions of s.69(3).
In the alternative, Mr Campton submitted that I should exercise the Court’s discretion to exclude the documents under s.135. He put to the court that the tender of these documents should occur through the officer who made the appropriate notes. As there was no opportunity to test any of the assertions, conclusions or observations made by the officer in the preparation of the notes, it was a matter of procedural fairness. He submitted that the probative nature of the documents was outweighed by their prejudicial effect in the circumstances of the case.
I inspected the documents in order to determine whether they were in fact prepared in contemplation of or in connection with litigation. Mr Campton referred me to the unreported decision of Barrett J in the Supreme Court of New South Wales in Vitali v Stachnik [2001] NSWSC 303 (20 April 2001). In dealing with a particular document, His Honour considered the equivalent sections of the Evidence Act 1995 (NSW). In dealing with a document known as MFI2 in that case, Barrett J said:
But the purpose of creation or acquisition of the content is not the only thing relevant to s. 69(3). It is also necessary to look at whether it was prepared or obtained "“n contemplation of” or “in connection with” the proceeding. The expression “in connection with” is, of course, a notoriously wide one..”(17)
His Honour went on to hold that the document had been prepared after the litigation had begun and that its preparation was recognised by the defendant as bearing a relevance to and as potentially playing a part in that litigation. Accordingly, he held that s.69(3) precluded the operation of s.69(2) in relation to that document, which meant that the hearsay rule applied to make the document inadmissible.
His Honour also referred to the observation of Rolfe J in Sellers Fabrics Pty Ltd v Hapag-Lloyd AG [1998] NSWSC 644 that the s.69(3) exclusion only operates in relation to a proceeding to which the person entitled to the document in question is a party.
In the case before me, I was satisfied that s.69(3) would not apply because the exclusion would only apply to proceedings where the Director of the Department of Community Services was a party. I also held that the Department of Community Services prepares a lot of material but it does not follow that all, or even a major part of it, is used for the purpose of any particular proceeding.
In my view, the decision in Vitali v Stachnik (supra) can be distinguished on its facts. I noted also that the trend of recent authority, as cited by Barrett J in Vitali (22), was against exercising the court’s discretion under s.135(a) to reject a document. Barrett J cited Papakosmas v The Queen (1999) 196 CLR 297 to that effect.
I admitted the document with the warning that the weight that would be given to untested hearsay would be subject to severe limitation.
Later in the proceedings, Mr Lapthorn drew my attention to the decision of Kay J, sitting as the Full Court of the Family Court in appeal against the decision of a Federal Magistrate, in O’Donnell & Murphy & The Child Representative Appeal SA80 of 2002. In that case, Kay J held that s.69 of the Evidence Act creates an exception to the hearsay rule, but not the opinion rule. Whilst the DHS[6] file was admissible under s.69, opinions contained within the file were not admissible as proof of the matters contained in the opinions unless the opinion-maker was qualified to give that opinion. Consequently, an opinion in the DHS file that sexual abuse had been substantiated was admissible only as evidence that the record made that conclusion.
[6] The Victorian equivalent to the NSW Department of Community Services
Kay J also went on to hold that it would have been inappropriate to reject the admission of the DHS file on the grounds that it was unfairly prejudicial to the father under s.135 of the Evidence Act, in a children case. Whilst it may be unfairly prejudicial to the father to have admitted into evidence a document that he has difficulty challenging that say somebody many years ago reached a conclusion as to sexual abuse, it may be unfairly prejudicial to the child the subject matter of the proceedings not to allow it in. This is particularly important given the duty of the Court is inherently to protect the child rather than protect the adults involved in the proceedings (see at paragraph 55 of the judgment).
The mother’s evidence covered the father’s numerous attempts to persuade her to reconcile with him. She described how the child told her that the father had threatened to kill people called Liz and Bruce. The mother told in her affidavit how, at a contact changeover on 28th January 2003, the father kept asking her to go out with him. The mother declined. The father drove off in the car with the child, driving in such a way that the car “skidded and zigzagged”. The mother described how the child had told her that the father does not wear clothing to bed.
D L Z gave evidence by affidavit and was cross-examined. She is the head Teacher of the M E Pre-School Stage 1 Class. She described the child R as appearing anxious, wide-eyed and withdrawn after mid week contact with the father. She said that the child did not attend school well groomed, and that her hair appeared matted and unkempt. She also told how the child had resisted her father kissing her goodbye one morning, shouting out “no, no”.
Ms Z gave evidence that since 18th June 2003, when the paternal grandparents commenced supervising contact, the child’s demeanour had improved. The child attended school “in good spirits and well groomed”. She said in her affidavit:
Given my observations of R prior to and following supervised contact, R appears to be more settled and gives every appearance of enjoying her present contact arrangements with her father and her extended family”.[7]
[7] Affidavit of D.L. Z sworn 24.10.2003, paragraph 10
In cross-examination, Ms Z said she had seen some changes in the child’s behaviour towards the end of the first school term in 2003. She was unshaken on that point.
As a result of a successful objection to parts of the affidavit of C M O’D, Mr Campton told the Court he no longer required her for cross-examination. E A B was not required for cross-examination.
N L A gave evidence by affidavit and was cross-examined by Mr Campton on the third day of the hearing. Ms A is a long time friend of the mother and has been living near to the mother’s residence. She deposed to spending a lot of time with the child R and having a good relationship with her.
Her evidence was that in May 2003 the mother rang her and asked her to come up to her house immediately. She said that the mother had told her about the child’s disclosures of her father touching her on the genital area. The mother appeared to be on the verge of tears.
Ms A said in her affidavit that she was present at a contact changeover when the father took the child, held her up in the air and said, “Mummy’s leaving you R. Mummy’s not coming back. Don’t worry R, Daddy loves you and will look after you.” The child began to cry hysterically and held out her arms to the mother calling out, “Mummy Mummy”. The mother told the child she was coming back and child said to her father “No Daddy. No Daddy”. The mother had given similar evidence.
On another occasion, Ms A said that the child had said to her that the father did not like her and told R not to see her.
In cross-examination, Mr Campton asked Ms A about whether she believed the child’s words, which she had heard on tape, about her father interfering with her. Ms A said:
I wasn’t convinced that what R said was true. I told K she should take it seriously and make inquiries as to what was the right thing to do.
Mr Campton then asked her “Are you convinced today?” Her reply was:
I’m not convinced either way.
Ms A said that she did not get involved in the contact arrangements. She had had no conversations with the mother about the contact.
I found Ms A to be an impressive witness. She appeared to me in her cross-examination to be calm, intelligent and well spoken. I accept her as a truthful and reliable witness.
The mother’s aunt, D M L gave evidence by affidavit and was cross-examined. When Mr Campton asked her if there was anything positive she could say about the father she remained silent for some time. Eventually she said “I don’t have any conversation with S.” She reassured R that the father was “only joking” when he told R that he was going to shoot Mrs L and her husband. She did say that she thought that R loved her father. She said of R:
She talks about him all the time.
The father gave evidence. He denied the mother’s allegations of bad behaviour. He particularly denied any threats to kill people. He said that he could not believe that he was being called in for more questioning by the Department of Community Services for more questioning. He denied having arguments with his parents.
The father agreed that he had taken a statement with him when he went to see the Court Counsellor for the purpose of the Family Report. He said his solicitor had advised him to do so.
In cross-examination, the father denied that he had told the counsellor that he would tell R about the sexual assault allegations in later life. He said that he had attended a Unifam course on parenting after separation in about November 2003. The course had lasted about three hours. The father took a remarkably positive view about the course and his role in it, saying:
Oh, mate, it was all pretty good stuff. Just letting the child know that I’m happy in my situation…I think I actually added some value to the proceedings. I am thinking that I should write a book and get into counselling for men.
I would comment that the father’s expressed plans seem remarkably ambitious to have arisen out of a three-hour course.
The Respondent’s father, Mr R W B, gave evidence. He is R’s paternal grandfather. In oral evidence in chief, he said that there were some strains to his life in supervising the contact. He was still suffering the effects of a pulmonary embolism and had lost 15 kg in weight. When asked how long he was prepared to engage in supervision he said:
I will do it while I am able to do it.
He said that as a result of discussions with the Mother, contact changeover takes place at his home. This could continue. It is a place that R feels very comfortable in. He said in cross-examination that he thought the contact pick-up at McDonalds on a Friday was a problem, because R has a very active day, with school and ballet. She falls asleep when he picks her up on Friday. She gets grumpy but soon cheers up.
Mr B senior said that his home could continue to be used as a contact changeover point.
I formed a positive view of Mr R B’s love and commitment towards his granddaughter. He appeared to take a very child-focused attitude.
The paternal grandmother did not give oral evidence.
The father’s lady friend, M K, known as M K, gave evidence by affidavit and also orally. She is a physiotherapist by profession and lives in the Sydney suburb of P H. She has a son. She would be available to supervise the father’s contact with R. She understood that she should never let the child out of her sight. She said she would have to focus on R, and if there were any untoward behaviour by the father she would have to remove the child physically and notify the mother.
In cross-examination, Ms K said that she was aware of the allegation of inappropriate sexual behaviour by the father. She did not believe that he would be capable of any of those things that were alleged.
The Family Report
Phillipa Lynch, a Court Counsellor at the Sydney Registry of the Family Court, prepared the Family Report. The report was dated 21st October 2003. Ms Lynch had to give oral evidence by telephone, because she had left work to go on maternity leave.
In her report, Ms Lynch said that the mother proposed a reduction in contact to each alternate weekend (ie, doing away with the Wednesday contact) and a continuation of supervision for at least another twelve months. The mother remained generally concerned about R. Ms Lynch said that the mother was also
Concerned that the father is exposing R to his unresolved feelings about the parental separation and that R has witnessed arguments between her father and his parents.[8]
[8] Family Report, paragraph 3.
The mother also reported concerns about the father’s emotional presentation, describing him as erratic, easily agitated and emotionally labile. She told the counsellor that she believed that the father held inflexible views, that rendered him unable to prioritise R’s needs over his own rigid opinions.
The father did not make a good impression on Ms Lynch. She described him in this way:
His focus during the interview was on Ms L and not R and he impressed as being particularly unseparated from Ms L. He reported problems in separating from previous partners, which included an assault charge and an incident where his conduct toward a former girlfriend had caused her and her friends consternation. He presented as easily agitated, emotionally vulnerable and with a tendency to respond defensively and as unusually dependent on his father for guidance. He admitted smoking marijuana up until twelve months ago.[9]
[9] Family Report, paragraph 5
Ms Lynch also interviewed the father’s parents and Ms K. Mrs B described her son as “incapable of getting over” the mother and had only started to reconsider his feelings towards to her after the sexual abuse allegations. She admitted that there was a culture of “yelling” in her family as a means of dealing with differing opinions, but said that R had not been exposed to family arguments.
Mr B senior, whilst appearing to the counsellor to minimise the seriousness of some aspects of his son’s behaviour, also described him as a person with “a rigid personality who had the capacity to be defensive”.[10]
[10] Family Report paragraph 8.
M K told the counsellor that she had been in a relationship with the father for about two years. She supported the father’s statement that he had given up smoking marijuana about twelve months ago.
Ms K said she had seen Mr B evolve from someone who was ‘angry’ and trying to resolve the situation himself, ‘by making numerous telephone calls to Ms L’, to someone who knew ‘he needed to conform to the legal – or what the system requires’.[11]
[11] Family Report, paragraph 10
Ms K also described the paternal grandfather as heavily involved in all the father’s decisions, even the minor ones.
When the counsellor observed R with the significant adults, she noted that the child was settled, relaxed and well mannered. She described the parent-child relationship as appropriate, with the mother appearing to be a competent and caring parent.
By contrast, the counsellor saw that R was initially reluctant to enter into the observation room with her father, although she slowly relaxed and appeared to enjoy interacting with her father. Ms Lynch said that the father made “inappropriate” remarks to the child and did not seem able to relate tot he child’s attempts at pretend play.
R was seen to be particularly animated when told her grandparents were present. She was observed to interact well with her grandfather. The child appeared to have an affectionate and relaxed interaction with Ms K.
The counsellor also discussed the child with D Z, from M E School. The discussion was along similar lines to Ms Z’s evidence to the court.
In her assessment, Ms Lynch described the father in this way:
Mr B presented as emotionally insecure and appeared to have difficulty in accepting any view other than his own. From his presentation, Counsellor considers it likely that Mr B would be easily frustrated. Furthermore, for the majority of the assessment process, he was distracted rather than focused on R and her needs. In counsellor’s opinion Mr B’s capacity to successfully negotiate with the mother in matters relating to R. At this time[12] it is questionable whether the father could, for the aforementioned reasons, exercise his long-term decision making responsibilities appropriately[13].
[12] The Report was completed on 21st October 2003.
[13] Family Report, paragraph 31.
The paternal grandparents fared better in the counsellor’s estimation. She said that they had provided the necessary stability for R to become more relaxed and willing to attend Wednesday contact. “Overall, they have been a positive influence on R.”
The counsellor expressed the opinion that:
The observations of R and her father were indicative of a child who is not entirely confident and relaxed in her father’s company. R’s response to her father was in stark (contrast) to her enthusiastic response to her grandparents, which surprised the Counsellor. This is likely due to the limitations of the father’s parenting referred to earlier in this report[14].
[14] Family Report, paragraph 33.
Mr Campton subjected Ms Lynch to a lengthy cross-examination but, to my mind, her evidence was substantially unshaken.
The counsellor made a number of recommendations. The major recommendations are these:
a)That R’s contact with her father continue to be supervised by the paternal grandparents for a further twelve months;
b)That contact be reduced to each alternate weekend;
c)That the mother have the sole long term and short term parental responsibility for R;
d)That R spend half of all school holidays with her father and that, during the first year of her schooling, this be supervised by the paternal grandparents and thereafter unsupervised;
e)That R have telephone contact with her father twice per week;
f)That R attend a Protective Behaviours Course, which the mother could access through DOCS (the Department of Community Services);
g)That the father be ordered to attend a Parenting Effectiveness Course or Family Communication Course and a Parenting After Separation Course; and
h)That the father seek professional assistance about emotional issues related to his separation from the mother.
Submissions
For the father, Mr Campton submitted that there was a considerable effort on the mother’s part of attempts to create opportunities to frustrate and limit contact. The mother had enrolled the child at the Montessori School without the father’s knowledge or consent. As far as supervision of contact was concerned, the issues were always something the mother knew about.
Turning to the allegations of sexual abuse, the whole process significantly “lost steam” between the time the application was filed and the dates of the final hearing. He submitted that it was clear that the mother wants contact to be supervised, she does not want Wednesday contact and she wants to have the sole parental responsibility for the child.
Mr Campton submitted that the decision in WK v SR (1997) 22 Fam LR 592; FLC 92-787 sets out the correct approach in assessing allegations of child abuse. The Full Court of the Family Court said that a positive finding of sexual abuse must be based on the application of the test enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 and restated in s.140 of the Evidence Act “at the strictest end of the spectrum”. The allegation is easy to make and difficult to refute. The more weighty the finding is, the greater the evidence has to be.
The suggestion the child is at risk because of the father’s inability to accept his separation from the mother would be highly unlikely to have ever led to any supervision of contact. Whilst the mother seeks that contact should be supervised for another 12 months, this does not take into account the fact that contact has been supervised from June 2003. The child enjoys the positive attributes and interaction with her father. The Counsellor found that there was a significant attachment between R and her father.
Mr Campton submitted that there was a paucity of evidence to support the mother’s wish to do away with the Wednesday contact. In any event, he said, the orders of 29th November 2002 provide that contact on a Wednesday will cut out in August 2004, when the child turns 5 years old.[15]
[15] The relevant order says “until the child commences school”
The father supported the idea of contact changeover at his parents’ home or at McDonalds. The father also took the view that contact changeover at the school should continue. The father opposes the sole parental responsibility being given to the mother. Why should a parent be excluded from two of the most important areas in the child’s life. There was no evidence, he submitted, to support this order.
Mr Campton asked that I make a positive finding that there has been no sexual abuse. This would lead to a better situation between the child and her father in the future.
For the mother, Mr Lapthorn submitted that it was necessary for there to be stability in the child’s life. He said that supervision was appropriate for various reasons, to provide for that stability. There is a long history of conflict between the parents. The child should not be caught up in the ongoing conflict.
It was submitted that the mother has failed to prove that there was sexual abuse. It is not necessary to make a positive finding that there has been no abuse.
Whilst it is not practical to continue supervision forever, there were good reasons for there to continue to be supervision in the immediate future, for the welfare of the child. The father’s behaviour in the courtroom would be a cause for concern, as it indicates a style of behaviour that would continue in ordinary life.
Mr Lapthorn submitted that there were grounds for making an order that the mother should have the sole parenting responsibility. The mother and father just cannot get along. The father is openly critical of the child’s school.
All goes well for the child, he submitted, when the paternal grandparents were involved as supervisors. They have contributed significantly to the child’s life.
Principles to be applied
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 (s.65E).
Except when it would be contrary to a child’s best interests, a court should have regard to the principles set out in s.60B(2) of the Family Law Act. These principles include children’s right to know and be cared for by both parents and their right of contact, on as regular basis, with both their parents and with other people significant to their care, welfare and development.
In determining the best interests of a child, the court must consider the matters set out in s.68F(2). These matters include the wishes of the child, subject to the child’s maturity and level of understanding. The court may inform itself about the wishes expressed by a child by having regard to anything contained in a report given to the court under s.62G(2).
It is also relevant to consider the matters in s.68K of the Act. In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
Conclusions
The two parents have a history of conflict for virtually all of this child’s life. The mother left the father before the child R was a month old. There has been a history of litigation between them, including apprehended violence proceedings.
R’s best interests must be the paramount consideration. Subject to those best interests, she has a right to know and be brought up by both her mother and her father. She also has the right to a positive relationship with her grandparents. Treyvaud J, in Bright and Bright v Bright and Mackley (1995) FLC 92-750 commented about the benefits to children in being part of an extended family, saying at 81,658:
“As a matter of general principle children develop better when they recognise that they have a place not only in the home in which they live but in the wider family.”
Section 68F(1) says that in determining what is in a child’s best interests, the court must consider the matters set out in s.68F(2). R was only 4 years old when the Family Report was prepared, so it would have been inappropriate to make any attempt to ascertain her wishes.
The nature of the child’s relationship with her mother was assessed by the Court Counsellor as appropriate and affectionate, with the mother presenting as a competent and caring parent. Whilst there is evidence that R loves her father, the counsellor formed the view that she was not entirely confident and relaxed in her father’s company. The counsellor described this response as “in stark contrast to her enthusiastic response to her grandparents”.[16]
[16] Family Report, paragraph 33.
The counsellor observed R to have an affectionate, relaxed and happy relationship with the father’s friend, M K.
The child will continue to live with her mother, and separation will only occur when she has contact with her father or grandparents. The grandparents, particularly the grandfather, clearly have a good relationship with R and are a positive influence in her life. Separation from the grandparents would not be in the child’s best interests.
Whilst the father’s skills as a parent have been criticised, there is evidence that R loves him and, as D L said, she talks about him all the time. I consider that it would not be in her best interests not to have contact with her father.
The practical difficulty and expense for this child in having contact with her father comes not from their location but from the poor relationship between the parents. There is an apprehended violence order in place to protect the mother and the child.
I am satisfied the mother has the capacity to provide for R’s needs, including her emotional and intellectual needs. I am sure that I can make a similar comment about the paternal grandparents, who clearly have had a positive influence on this little girl’s life.
I am less sure about the father’s capacity. There is evidence that when R went to school after Wednesday contact with her father, she was not well groomed. Her hair looked unkempt and matted. The evidence about the father’s manipulative behaviour and his heavy-handed attempts to persuade the mother to reconcile with him leave me in some doubt as to his ability to understand the child’s emotional needs. The behaviour described by N A, whose evidence I accept, where the father told R her mother was leaving her, was manipulative and insensitive. The father’s emotional and agitated behaviour, and his inability to discipline himself even in the courtroom, causes me some concern. The father is a tall man, and emotional and erratic behaviour of the type that he has demonstrated, would be frightening to a small child. The fact that the father appears unable to understand the effect of his behaviour on his daughter does not speak well for his ability to meet the child’s emotional needs.
R is a little girl who was born on 24th August 1999. She is now five years old.
I am mindful of the need to protect the child from physical or psychological harm. There is an apprehended violence order in place for the protection of the mother and the child.
There has been an allegation of sexual abuse, which precipitated the mother’s application. It has not been proven. The evidence is insufficient to prove it. I am aware of the words of the Full Court in WK & SR (supra). Section 140 of the Evidence Act is quite clear, and I believe it is worthwhile quoting the section here:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is self-evident that child sexual abuse is a matter of considerable gravity. Apart from the child’s initial statements, there is no other evidence to establish the allegation. The evidence is clearly insufficient.
At the same time, I do not believe that the evidence allows me to make a positive finding that there has been no abuse. The child’s initial statements and her behaviour caused the mother great concern, and her action in notifying the Department of Community Services was appropriate. Whilst the father would like a positive finding that there was no sexual abuse, I am unable to make that finding on the evidence.
What is of concern to me is the ongoing conflict between the parents. In order for R to feel secure, there needs to be as little communication between the parents as possible. The grandparents will have a valuable role to play, and the grandfather has given evidence of his willingness to be involved in contact changeover.
I am not satisfied that the father has demonstrated an ability to shoulder the responsibilities of parenthood. He does not appear to be child-focused. He has behaved in an immature way for a man aged 35, even in court. His oral evidence did not show him to have a capacity for realistic and mature reflection, particularly his astonishing statements about writing a book and counselling other separated men, based on his attendance at a three hour course.
It would certainly be preferable to make orders that would be least likely to lead to the institution of further proceedings between these parents in relation to the child, but their history of litigation to date does not inspire confidence.
After considering all the evidence, I am satisfied that the mother should have the sole responsibility for the child’s long-term care, welfare and development. It is unrealistic to expect a couple to engage in discussions about the child’s schooling and other matters, when they have had a history of conflict since the child was less than a month old. The fact that there is a current apprehended violence order in place lends force to that argument.
I am also satisfied that the need for the father to have contact with R on Wednesday afternoons has passed. The parties always contemplated that this contact would cease when R started school. She has now reached the age of 5 years. The father should have contact on alternate weekends and in the school holidays. The bad relationship between the parties indicates a need for as little interaction between them as possible.
I am also satisfied that the need for the father’s weekend contact to be supervised has passed. His parents have supervised this contact since June 2003, and they have undertaken this task willingly. However, the burden of constant supervision can be a heavy one, and I am aware that the grandfather has had health problems.
If I were concerned that there was an unacceptable risk to the child’s welfare on a weekend without the supervision by the grandparents, I would order that the supervision should continue. I note that the counsellor recommended in her report written on 21st October 2003 that the weekend contact should be supervised for 12 months. That time has now passed. The time appears to have passed without incident, because there has been no application to reopen the proceedings, so far as I am aware.
I have given some considerable thought to the question of the father exercising block contact in the school holidays. Whilst I am not satisfied that there is an unacceptable risk to the child, I am aware that she has not spent this length of time with her father before. To my mind, the contact should be graduated, and increase over time. It would be preferable in the short run for the child’s well being if her grandparents were present, as she clearly loves and trusts them. I note that R seems to enjoy a positive and affectionate relationship with M K, and it appears to me that Ms K would be able to assist with contact arrangements. It would be in the child’s interest if one or both grandparents or Ms K were present during school holiday contact for the next twelve months.
I note that the grandfather has offered to facilitate contact changeover at his residence. I consider that this would be a positive step to enable the mother and child to feel secure.
To my mind, the counsellor’s recommendation about telephone contact twice each week would be a useful way to help the relationship between father and daughter.
Turning now to the question of R attending a Protective Behaviours course, I believe that this would be useful for her. It would also assist the mother’s peace of mind.
The mother, following the recommendations of the counsellor, asks that the father should attend the following:
a)professional counselling to resolve emotional issues related to his separation from the mother;
b)a parenting after separation course through Unifam; and
c)a Parenting Effectiveness course.
I am not satisfied that all of these arrangements are necessary or desirable. I have no doubt that the father would benefit from attending all of those programs if he were so motivated, but it would otherwise be an unnecessarily onerous burden on him. I consider that the father has shown that his attendance at a course such as the Keeping Contact Course run by Unifam would assist him in his relationship with his daughter, and I will order him to make those arrangements.
If the father wishes to attend counselling to assist him to resolve his emotional issues related to his separation from the mother, he can make those arrangements himself. Unless he accepts that such counselling would be in his best interests, ordering him to attend such counselling would be of no value. The father gave evidence that he had attended some form of parenting course and found it useful. I will not make any order for him to attend any other course.
It is for these reasons I am satisfied that the orders at the commencement of this judgment are in the child’s best interests.
I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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