L and C
[2001] FMCAfam 180
•3 August 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & C | [2001] FMCAfam 180 |
| CHILDREN – Residence – Contact – Best interests. CHILD ABUSE – Sexual abuse. |
| Applicant: | P C L |
| Respondent: | P C |
| File No: | ZM 5163 of 2000 |
| Delivered on: | 3 August 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 3 August 2001 |
| Judgment of: | Connolly FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Sweeney |
| Solicitors for the Applicant: | Richard Calley Pty PO Box 821 |
| Counsel for the Respondent: | Ms Testart |
| Solicitors for the Respondent: | Cariss & Company 290 High Street |
| Counsel for the Child Rep: | Ms McMillan |
| Solicitors for the Child Rep: | Adrian Abrahams Family Lawyers 1113 Malvern Road Toorak Vic 3142 |
ORDERS
THAT paragraph 9 and 13 of the orders of 22 December 2000 be discharged.
THAT the wife take, as soon as practicable, the children of the marriage to attend upon the child representative at her office at 113 Malvern Road, Toorak, for the purposes of the child representative explaining to the children the effect of the orders on them.
THAT the children of the marriage; S T C L, born 21 November 1989; K E C L, born 21 August 1992; T E C L, born 21 August 1992; and P J C L, born 21 December 1993, reside with the wife.
THAT the husband and wife have the joint responsibility for the major decisions concerning the long term care, welfare and development of the said children.
THAT the wife have sole responsibility for day to day decisions concerning the care, welfare and development of the children when they are in her care, and the husband have the sole responsibility of the day to day decisions concerning the care, welfare and development of the said children when they are in his care.
THAT the husband have contact with the children as follows:
(a)each alternate weekend from after school Friday to 6pm Sunday; to be extended to the 6pm Monday, immediately following a contact weekend which is a public holiday commencing from
10 August 2001;(b)that subject to the husband giving the wife at least 45 days written notice, for one half of each of the school term holidays, at times to be agreed upon and failing agreement the first half;
(c)that the alternate weekend contact be suspended during all term holiday periods in the event that the husband is exercising holiday contact pursuant to these orders, but otherwise to continue in the event that the husband is not exercising holiday contact;
(d)that the alternate weekend contact recommence on the first weekend after the holidays in the event that the husband has exercised the first week of holiday contact, and the second weekend in the event that the husband has exercised the second week of holiday contact;
(e)the husband collect the children from the school at the commencement of all weekend contact pursuant to paragraph (a) hereof, and from the wife's home at the commencement of all other contact periods, and the wife collect the children at the conclusion of all other contact from the husband's home.
(f)if in the event that Father's Day falls on a non contact weekend from 9am to 5pm on Father's Day;
(g)in the event that Mother's Day falls on a contact weekend, to conclude 9am Mother's Day;
(h)from 5pm Christmas Eve to 4pm Christmas Day in the year 2002, and each alternate year thereafter;
(i)from 4pm Christmas Day to 6pm Boxing Day 2000 and in the year 2001, and each alternate year thereafter;
(j)for two hours on each of the children's birthdays and the husband's birthday at mutually agreed times;
(k)for a period of 14 days over the Christmas holiday period, subject to the husband giving the wife 45 days written notice of same;
(l)such further and other times as may be mutually agreed upon;
THAT the husband be permitted to attend the children's sporting, social and school events.
THAT the husband be at liberty to obtain from the said children's school copies of their school reports, newsletters, school photos and liaise directly with the children's teachers and principal and other school staff members as to the progress and conduct of the said children at all reasonable times.
THAT the Order for the appointment of a child representative be discharged from 10 August 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 5163 of 2000
| P C L |
Applicant
And
| P C |
Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications with respect to the contact of the four children of the marriage, the husband's application filed
11 December 2000 and the wife's form 3A response filed
20 December 2001. Both applications make provision for the children to reside with the wife and have contact with their father on an alternate weekend basis and half school holidays and at times on special days. The applications differ in that the wife's application seeks an order that the husband and his partner are to be restrained from allowing C A D to have any contact to the children, and are not to allow any cards or gifts, including money or lollies, to be received from C A D and L M D.
At the commencement of the proceedings counsel for the wife told me that his client did not object to contact with Mr D if it were appropriately supervised.
The husband's application is supported by:
a)
by his affidavit sworn on 7 December 2000 and filed on
11 December 2000;
b)his affidavit sworn on 17 January 2001, filed 24 January 2001;
c)his affidavit sworn 29 July 2001 and filed on 31 July 2001;
d)an affidavit of P J S sworn 29 July 2001 and filed 31 July 2001;
e)
an affidavit of C A D sworn 12 December 2000 and filed
13 December 2000; and
f)
an affidavit of L M D sworn on 12 December and filed on
13 December 2000.
The wife's application is supported by:
g)by the wife's affidavit sworn on 22 December 2000 and filed on the same date;
h)a further affidavit sworn by her on 22 December and filed on the same date;
i)
the affidavit sworn by her on 13 February 2001 and filed on
16 February 2001;
j)an affidavit sworn by her on 31 July 2001 and filed on 1 August 2001;
k)a further affidavit filed by her, again sworn on 31 July 2001 and filed on 1 August 2001;
l)an affidavit of L M which was sworn on 6 July 2001 and filed on 13 July 2001; and
m)an affidavit of L B which was sworn on 16 July 2001 and filed on 17 July 2001.
There was also a report which was prepared by Mr Vincent Papaleo at the behest of the child representative. And I should note that until
25 July that Mr and Mrs D were parties to the proceedings. On that date they filed a notice of discontinuance.
Short history
The background to these proceedings are as follows. The husband is 42 years of age, having been born on 11 May 1959. He is a truck driver who lives at 2 K Close in F, which is a five bedroom home he is purchasing with his de facto partner, P S, whom he has known since about May 1997, with whom he resided some time later in that year. K, P S's 19 year old daughter, also resides in that home with them.
The wife, who is 35 years of age, having been born on 2 January 1966 and she resides at 16 R Court, E H.
She is a pastoral counsellor and with her are the four children of the marriage: S C L who was born on 21 November 1989 is 11 years of age, nearly 12; K who was born on 21 August 1992 who is aged 8 years, nearly 9; her twin brother T who was born on the same date; P who was born on 21 December 1993 and is 7 years of age. These parties married on 8 August 1987 and separated on 14 January 1996. They were divorced on 22 April 1999.
Although there were complaints about earlier difficulties with contact arrangements, the real problem with respect to contact arose on New Years Day 2000 as a result of a disclosure by the child, S, that she had been sexually interfered with by Mr C D, P S's father on Christmas Day at the home of one of Mr D's other daughters, where the family had been attending.
After S had been in the pool, Mr D had dried her with a towel but touched her in the genital area. Then again, on New Year's Eve, Mr D allegedly kissed and touched her in the genital region. K subsequently made a similar disclosure. The mother arranged for the girls to be interviewed by the police. Statements were taken and both girls attended sexual abuse counselling. S also attended the B Counselling Centre through the Victims of Crime. The wife, up until the commencement of these proceedings, had insisted that the contact for the husband be in the absence of Mr D.
The husband believed that the wife's response was a complete over-reaction and claims that in the time leading up to the disclosure, the children had been spending more time with him and were expressing a wish to reside with him.
The law
The law in relation to contact is set out clearly in the statute. Contact orders and specific issues orders are parenting order. They arise in proceedings under part VII of the Family Law Act. Section 60B sets out the objects of part VII and the principles which underlie those objects. They are subject to section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has a particular relevance in these proceedings. It provides, in effect, that the children have a right of contact on a regular basis with both their parents and other people significant to their care, welfare and development. Sub-paragraph (b) refers to the right of contact on a regular basis. Fundamentally it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by various means which are considered to be in the child's best interests.
In deciding contact arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2). Now I don't propose to go through all of those matters, but I certainly refer to section 68G, the need to protect the child from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour.
In addition to the matters set out in the Act, the Full Court and the High Court have set out the binding principles to be applied, where there are allegations of child sexual abuse, which are as follows:
" The Court must not make a finding that allegations of sexual abuse are true, unless the test is satisfied according to the civil standard under the Briginshaw test (1938) 60 CLR 336."
Even when the Court is unable to find on the balance of probabilities that the husband was a perpetrator of abuse in a particular case, the Court has held that there might still be an unacceptable risk and that is the test that was set out in B v B (1988) FLC 91-978. There are other cases that have peripheral relevance. If there is unacceptable risk, then I am required to look at the situation of supervision and the cases indicate that supervision is not a long term remedy.
Conclusion – findings
Although a good deal of the cross-examination during this matter was directed at the wife's behaviour and whether she was justified in pursuing as vigorously as she did, the allegations of sexual abuse and her motivation in doing so, I ultimately found that it was unnecessary to make findings with respect to those matters.
I do note, however, that Mr Papaleo's comment, it may be said in the cold light of day that maybe she has over-reacted. Whilst in many cases of alleged sexual abuse it is difficult to make a positive finding that no abuse occurred, I do so in this matter.
Firstly, I have the evidence of Mr D himself. I found him to be a witness of truth. He did not deny the allegation that he had dried the girls or that he may have touched their genital areas in doing so, nor did he deny that he may have kissed S with an open mouth. He was, however, quite adamant that nothing untoward happened.
While his behaviour may have been naive and even insensitive, I do not accept that it was sexually motivated. His comment that:
"I don't want to force them to see me if they are genuinely frightened of me -"
also satisfies me that he will respond appropriately if he does come into contact with them in the future.
Secondly, the evidence of Mr L who was present with another 10 or so adults when the drying of S took place on Christmas Day, was that there was absolutely nothing sexually untoward in the manner in which Mr D dried his daughter. His evidence is set out clearly and unequivocally in paragraphs 25, 26 and 27 of his affidavit of 7 December. I don't intend to repeat those verbatim, but Mr L's evidence was not shaken under cross-examination and was consistent with what he said on other occasions and in particular on the occasion that he spoke to Mr Papaleo.
He conceded the possibility that the children may have been uncomfortable, although it was not his view at the time, and again I was comforted with respect to the future when he said if the children persisted in their attitude that they didn't want to see him, he said:
"If it had to be that way, it would."
Mrs S also said if S would not come on contact, she would be requesting dad to stay away.
Finally, I have the evidence of Mr Papaleo. At page 11 of his report, second paragraph, he says this:
" Significantly, I note that the report by Mrs Monahan she refers to S having made disclosures to her which not only does Mr L claim could not have occurred because he was present, but that S herself refutes. When I suggested to her that this occurred, she reacted angrily, stating that Mr D had only touched her on the one occasion at the pool. I note that as a consequence thereof, the children have attended sexual abuse counselling and have attended counselling through the Victims of Crime, potentially embedding what may have been innocent behaviour into the realm of something more sinister.
Whilst there is a justifiable concern about the impact of sexual abuse on children, my concern in this matter is the impact of the children believing they have been sexually abused when they may not have been sexually abused. To accept that sexual abuse has occurred, would also require acceptance that Mr L was prepared to compromise the welfare of his children because of some misguided loyalty towards Mr D, and would also entail some acceptance that despite his claims that he was present at the time and witnessed the event involving Mr D and S, that he was prepared to misrepresent the facts of abuse."
He further comments at page 12 in the third paragraph:
"Mr L can choose to confront the children with his version of events. This, however, may further polarise him in relation to the girls and intensify feelings that they are not believed or supported. If, however, Mr L supports and accepts the children's statements, he may well be colluding with the belief that in the longer term will have quite substantial implications and I would ask all parties to reflect upon the effects upon both girls to go through their lives with the belief that sexual abuse occurred when it may not.
Ultimately, to collude with this belief if, after testing of the evidence, it is felt that abuse has not occurred, in my view to do significant potential long term harm. If it is determined that Mr D has not interfered with the children and that this has been a situation which has regrettably developed out of hand, then the children should be made aware of this. There may be some benefit to Mr L being able to defer to the Court as a means to justify whatever action he subsequently chooses to undertake, and especially so in relation to Mr and Mrs D.
The reality is that Mr and Mrs D are relatively peripheral to the life of the children and under the circumstances, if it is determined that abuse has not occurred, I see no reason why they should be prevented from having any contact. However, the broader and more far-reaching issues relate to the impact on the children if abuse has not occurred, for them to believe that abuse has. It is at this level, I believe, that intervention and action needs to occur as the consequences to them may be significantly more far-reaching than currently considered."
Further, in cross-examination, Mr Papaleo was firm in his view that while the conduct complained of in the drying and kissing incidents no doubt occurred, they were not sexually motivated. He said, inter alia:
" I think it is an enormous inference to draw on the basis of a single incident. No doubt it was awkward and uncomfortable for the children, but it was really difficult to conclude that sexual abuse occurred."
He further stated:
"I say that something did happen, but it wasn't sexual abuse."
Accordingly, in light of all of the evidence, I am well satisfied that Mr D's behaviour was not sexually orientated and no sexual abuse took place. Counsel for the wife, Mr Testart, says that even if that is the finding, I should not allow the children to come into contact with Mr D because they may suffer psychological harm. I reject that argument for the following reasons. One, the wife's own position has been that of supervised contact, although I must say I find it difficult to understand the rationale of that stance.
More significantly, however, as I have already said, Mr L in his evidence was clear that if the children persisted in not wanting to see Mr D, he would respect their wishes. Mrs S and Mr D were supportive of that proposition, that the children should not be forced to come into contact against their wishes and I am, as a result, satisfied that Mr L will act in their best interests and will not allow any harm to come to the children.
The orders I make are at page 2.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Connolly FM
Associate: Sylvia Loveless
Date: 1 October 2001
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