L and L
[2001] FMCAfam 123
•29 June 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & L | [2001] FMCA fam 123 |
| FAMILY LAW – Children – Contact – Child Abuse – Welfare of child – Family violence – Best interests of children – Relationship of each parent – Conduct of parents – Orders. |
| Applicant: | R C L |
| Respondent: | P K L |
| File No: | ZP 895 of 2000 |
| Delivered on: | 29 June 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 26 June 2001 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| The Applicant in person: | Mr L |
| Solicitors for the Respondent: | Ms Karagiannis Legal Aid Commission DX 25068 Fairfeild |
| Counsel for the Children: | Mr Clarke |
| Solicitors for the Children: | Watts McGray DX 8224 Parramatta |
ORDERS
All prior orders concerning the children R L L, born 25 August 1991;
R P L, born 5 July 1993; and L R L, born 21 May 1996, are discharged.The children are to reside with the respondent mother who shall have the sole responsibility for the day-to-day care, welfare and development of the said children.
The applicant father is to have contact with the said children as follows:
(a)For two hours each alternative Saturday at the C W Contact Service, H P, at such times that the C W Contact Service shall direct, commencing on Saturday, 30 June 2001, for a period expiring on 31 December 2001;
(b)From and after 1 January 2002, from 10 am until 2 pm each alternate Saturday for a period expiring on 30 June 2002; and
(c)From and after 1 July 2002 from 9 am to 5 pm each alternative Saturday.
All contact pursuant to order 3A is to be supervised by the C W Contact Service.
For the purposes of contact pursuant to order 3A:
(a)The mother is deliver the said children to the C W Contact Service not later than 15 minutes before the contact is due to commence, and is to leave the said Contact Service not later than 10 minutes before contact is due to commence;
(b)The mother is to collect the children from the Contact Service not later than 10 minutes after contact is due to conclude;
(c)The father is not to attend the Contact Service earlier than five minutes before contact is due to commence, and must leave the Contact Service not later than five minutes after contact concludes;
(d)The father is not to loiter or remain within 200 meters of the C W Contact Service at any time other than the period five minutes prior to the commencement of contact and five minutes after the conclusion of contact, and:
(e)The father shall on each contact visit deliver to the staff at the Contact Service a sealed envelope addressed to the mother containing the sum of $14 as a contribution towards the mother's travel costs incurred in complying with these orders.
For the purpose of exercising contact pursuant to Orders 3(b) and 3(c) above, the mother shall deliver the children to the father at McDonald's Family Restaurant, S Mall, M at the commencement of contact, and the father is to return the children to the mother at the same place at the conclusion of each contact period.
The father is not to have contact with the child L R L unless one or other of the children, R L or R P, is available to attend for contact at the same time.
Both parties are hereby restrained from denigrating the other party in the presence of all or any of the said children, or permitting a third person to do so.
Both parties are hereby restrained from questioning the children or any of them about the other party.
The children's representative shall within one month from the date of these orders provide to the school counsellor at S Public School a copy of these orders and copy of the order 30A reports dated 11 April and 18 June 2001, with a letter requesting the school counsellor to hold those documents on the personal files for each of the said children.
The father is not to enter or loiter about the Coles supermarket at S Mall, M, or the S Public School.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 895 of 2000
| R C L |
Applicant
And
| P K L |
Respondent
REASONS FOR JUDGMENT
Application
The application before the court is an application by the husband for contact with the three children of his marriage to the wife: R L L, who was born on 25 August 1991 and is therefore nine years of age, ten in August; R P L, born on 5 July 1993 who is therefore about a week short of her eighth birthday; and L R L, born on 21 May 1996 who is now five years of age. The husband has children of prior relationships, as does the wife. The three children however are the children of their marriage. The children currently reside with the wife and have done so, certainly since October 1998.
The husband's application is that he should have contact during the daytime with the three children. The wife opposes that application and says that there should be no contact. The husband says that it is in the children's best interests to have contact with him and that they, particularly the older two children, have a strong relationship with him, that they miss him, and that it would be in their interests to have contact with their father.
The wife says that notwithstanding the apparent bond between the children and the husband, that it's not in their best interests to have contact with him. She is of the view that there is an unacceptable risk of abuse and she would be of the view that it would be psychologically harmful to them to have contact with their father. So the parties are a considerable distance apart. I should say at the outset that the husband's application is not an application for ove night contact.
In cross-examination by Mr Clarke of counsel for the children's representative, the husband conceded that due to his current accommodation, overnight contact was just not feasible. He lives in a one-bedroom unit and would not be in a position to obtain a two-bedroom unit from the Housing Commission unless he could show that he did have an arrangement from the court whereby he would have overnight contact.
There are also reservations, most strongly expressed by the Order 30A expert, Dr Rickard-Bell, that at this stage overnight contact would not be recommended. In any event, as the husband concedes that it is not an option and is not seeking overnight contact, there is no need for me to dwell any further on this issue. What is sought is day-to-day contact, and that is what the mother opposes. She opposes this contact on two basic grounds:
The view that in the past there has been at least a strong suspicion that the husband has abused in some way several children, either of his prior relationships or of the wife's prior relationships. In addition, she has pointed out inappropriate parenting practices by way of discipline which the husband was said to have carried out during the time that the parties were together.
The second ground relates to the wife's fears of the husband based on an incident on 3 October 1998 as a result of which he was charged with the offence of detaining her for advantage and subsequently convicted and served a custodial sentence.
There is an apprehended violence order currently in force covering not only the wife but also the three children of the previous marriage, M, B and J, and the three children of his marriage, R, R and L.
The wife has also raised concerns about the husband's propensity for violence as witness his having been dealt with by a court for an assault on the child M, who was 17 years of age, which was eventually on appeal dealt with under the provisions of section 556A of the Crimes Act.
There has been tendered into evidence, and marked as Exhibit 1, the husband's criminal record which is one of some substance and includes a number of matters involving assault, one of which was an assault occasioning actual bodily harm on a woman outside and, in fact, at one stage inside the St M's Police Station.
The wife relies particularly on claims that the husband has previously abused earlier children, but she makes no claim of any sexual abuse in respect of these three. There is an allegation relating to assault on his child, J, from a previous relationship. This has not been substantiated and I'm not satisfied that there is any evidence to allow the court to be satisfied that there was such an assault.
There was a previous claim of assault on the child, T, the child of his relationship with L C. This was a matter that was litigated in the Family Court of Australia at Parramatta in June 1990, and in his decision the Honourable Justice Baker said, and I quote:
“There is no evidence before me from which I could make a finding that the child has been sexually abused by the husband. There is no statement by the child suggestive of abuse, nor is there any medical evidence to support any such finding. The only evidence I'm left with is that of a bruise in the area of the child's vagina and evidence given by the wife that following cessation of access the child's behavioural problems have improved as indeed have problems associated with the child's toilet training.”
I, with respect, concur with that finding.
I turn, however, to the allegations by the wife of abuse of the child, J, who is covered by an existing apprehended violence order which was made for a period of two years in March of 2000, so it's currently in force and will remain in force until March of next year. This was a matter where there had been complaints by J that the husband had interfered with her. Of the complaints that were made, one of substance that was made was that in 1997. That resulted in the husband being charged with an offence and resulted in proceedings being taken by the Department of Community Services.
J and the other children, the elder children, were taken into care. There was as assumption of care under section 63 of the Children Care and Protection Act. The children, other than J, were subsequently returned to the wife. J remained in the care of the Director General. Prosecution against the husband did not proceed. The Director of Public Prosecutions elected to withdraw the charge. The reasons for this that were given by the director, were not that the child J withdrew the allegation, but that she declined to give evidence.
The Solicitor of Public Prosecutions also made the point that the wife refused to cooperate with the prosecution and in the case of a refusal by the alleged victim and the alleged non-cooperation, which the wife denies, by the wife, the Director of Public Prosecutions formed the view that there would be no reasonable chance that a conviction would be obtained, and the proceedings were withdrawn.
The Department of Community Services proceeded with a care application. It was established in the Cobbim Children's Court on
23 December 1997 that the child was in need of care. Proceedings were adjourned to the Campsie Children's Court for the question of placement. I would comment that the finding made by the Cobbim Children's Court was not under section 10A of the Children Care and Protection Act, which is the one that refers to finding the child had either been abused or was likely to be abused, but under section 10B, that adequate provision had not been made for the child's welfare.
The Department of Community Services was critical of the wife for not taking steps to isolate J from the husband, the alleged perpetrator. There were adverse comments made about her consumption of alcohol, and again about her cooperation with the Department of Community Services.
The Campsie Children's Court placed the child into wardship, which is the most serious placement order that the Children's Court had the power to make under that legislation which was in force at the time. It was put to me by Ms Karagiannis that wardship orders were often made by the Children's Court for financial reasons in order that people could obtain appropriate allowances which are only available in situations where children were in fact wards of the State. No evidence was given to substantiate that assertion, which is of course contrary to the Children Care and Protection Act, and I have certainly not been aware of any practice by the Children's Court to misuse the law in that way, so I reject that assertion.
The child J became a State ward and remains a ward to this day. There is a placement with a maternal aunt and it is where J remains.
What then should the court make of the claim of abuse by the husband of J? The evidence is certainly the most substantial of the three claims which are made. There has been no finding by any court on either criminal standard or of the standard of very highly probable as applied in the Children's Court in those days, that there had been abuse. At the same time, the child J did not withdraw the allegation. I'm not satisfied that a description of these facts is sufficient to allow this court to draw an inference either way. Where then does that leave the situation?
Pursuant to order 30A, Family Law Rules, an expert report was obtained from Dr Christopher Rickard-Bell, a psychiatrist. He in fact prepared two reports: an initial report dated 11 April, and an updated report dated 18 June. He was cross-examined in this court yesterday. The initial report was prepared after he had interviewed the husband and the wife and the children. He formed a view that there was certainly a hostility between the parties and described their views towards each other as rigid. He was critical of the husband for making critical comments of the wife in the presence of the children.
His examination of the children was that the older children expressed an extremely positive view of their father, notwithstanding the fact that his observation of them, this was the first time they had seen their father since October 1998. He commented in the witness box that he was surprised at how well they related to their father after such a long absence. The youngest child, L, of course had spent a greater proportion of her life not seeing the father and initially expressed some concerns, but taking her cues from the older girls, responded positively towards him. Dr Rickard-Bell spoke in appreciative terms of the relationship.
It was as a result of that report, which was prepared for when these proceedings were before the court on 17 April, that interim orders were made by consent relating to supervised contact to take place at the C W Contact Service. As it turned out, that contact has not yet commenced.
On 17 April, orders were made adjourning the proceedings until earlier this week because it was made clear by counsel for the children's representative that there was a need for further material obtained from the Department of Community Services, that material about which I've spoken, to be made available to the order 30A expert for his comments. His subsequent report reflects his views after having reviewed that material. He did not re-interview the parties or the children. He was cross-examined at some length but appropriately, I hasten to add, about his updated report. He said, and I agree, from my reading of the material:
“ It appeared that the Department of Community Services was convinced that J had been sexually abused. The second conclusion appeared to be that it was likely that R L was responsible for sexual abuse. The third conclusion was P was unable or unwilling to protect J from the sexual abuse”.
His opinion was, and I quote:
“The subpoenaed material from DOCS raises a whole new area of concern. The concern is two-fold. Firstly, the protection of the children from potential sexual abuse. DOCS appeared to conclude that R probably sexually abused the elder step-daughter, J. Secondly, P's ability in the future to protect the children, either from R or from any other potential male”.
Based on his review of this material, Dr Rickard-Bell recommended that the children remained living with their mother and expressed certain concerns about the contact. He went on to say:
“This concern must also be weighed up against the fact that the children have a close bond with their father and want to see him. I recommend that contact with the father would need to occur in a way that the children would be safe, preferably in the company of another responsible adult or in a situation where sexual abuse could not occur such as in a public setting. If a safe setting cannot be found, then it would be better for the children not to have any contact with the father”.
In cross-examination, Dr Rickard-Bell took the view that if overnight contact was sought, and I'm mindful that it is not, that he would not be keen to recommend that until approximately 12 months had passed and he would suggest that either he or another court expert should then review the process of the previous 12 months. The witness was unshakeable in that respect. As I said, overnight contact is not sought and is certainly an order that will not be made today. He was of the view, however, that with a safe setting for contact, that he saw that it would be beneficial for the children to have that contact. He was mindful of the fact that L was younger than the others and consequently more vulnerable. He certainly took the view that there would need to be some perhaps additional steps to be taken in respect of her welfare, a conclusion, I may say, with which I agree.
When the matter was before the court on 17 April, it was the view of counsel for the children's representative that it would be beneficial for supervised contact to be attempted with the assistance of the C W Contact Service.
Interim orders were made by consent that there would be contact for up to four hours each alternative weekend at the Contact Service, supervised by the Contact Service. Orders were made by consent that the parties were to contact the Contact Service within 48 hours, arrange the appropriate intake assessment, and take all necessary steps so that these arrangements can be put into place.
The parties gave conflicting evidence as to what each one of them did. It was Mr L's view that he had contacted the Service within 48 hours as directed, and that the delay in arrangements taking place was due to the wife not cooperating, notwithstanding the fact that she had consented to these orders. The wife said, however, that she had, through her solicitors, made arrangements and had attended an interview on the 1st of this month, and that contact had been arranged to start tomorrow, 30 June.
The evidence does not leave the court in a position where any inference can be drawn as to whether there was any unnecessary delay or not, but I would comment that it has been most regrettable that the supervised contact envisaged in the consent orders of 17 April had not taken place by the time this matter had commenced. I would also comment that the parties’ legal advisers, being solicitor for the wife and counsel for the children's representative, had every reason to believe that the ten-week adjournment would be more than sufficient time for supervised contact arrangements to start as envisaged by the order.
It is a matter of some surprise that contact did not commence at that time and, as I said, it's regrettable because it has not allowed the court or the parties to have the opportunity to see how these arrangements, prepared with some care, could well have worked.
The Order 30A expert, Dr Rickard-Bell, was of the view that there should be an initial period of supervised contact. This was for two reasons. First, to allow the children to see their father in a position of some safety. Second, to allow the children by limited contact to get used to their father again after not having seen him except on one occasion since October 1998.
It was also put to the doctor that after an initial period of supervised contact through the Contact Centre, that there should be some daytime contact on a regular basis. The doctor was of the view that if it took place in a public place with suitable arrangements, that that would provide some safeguard for the children. Dr Rickard-Bell did express some concern, as I said earlier, about the relatively vulnerable age of L as opposed to the two older girls, who are certainly in a position where if there was any untoward contact they would be in a position to complain about it.
I am of a view, considering all of the material, that it is in the best interests of these children for there to be daytime contact with the father. I am conscious of the apparently strong bond between the two elder girls and their father, and the fact that the child L drew support from the elder girls in relating positively to him.
The supervised contact through the C W Contact Service has not been tried. It certainly appeared to the legal advisers of the parties on the last occasion that it was an appropriate step, and I'm positive that it is. I'm of the view that there should be an initial period of supervised contact through the C W Contact Service. This contact can only take place for a period of six months, as that is the most that the resources of the Contact Service can provide.
This contact would allow regular meetings between the children and their father in circumstances where their safety would be guaranteed. There must also be provision, however, for the wife's welfare and I am mindful of the fact that there is a current apprehended violence order in force and this must be strictly obeyed. I am also of the view that after an initial six-month period, there should be some additional regular contact with the meeting place being in a public place and with certain safeguards put into effect.
There is no suitable adult put to the court who would be a suitable contact supervisor. Counsel for the children's representative has suggested that the school counsellor at the children's school should be provided with appropriate material so that the children could speak to her or him, and the counsellor would be aware of the situation. I have some misgivings about the feasibility of that, but I am certainly of a view that school counsellors play a valuable role in dealing with the welfare of children.
I am not persuaded that it is appropriate for contact handovers to take place in or outside a police station. There is an apprehended violence order in force. If the husband is so foolish as to breach that order, he would be only too aware, or he should be only too aware, that a breach of an apprehended violence order is a crime and certainly violent breaches are regularly punished by the local court by means of a custodial sentence.
I am of the view that a McDonald's store in the area near the wife's residence and place of employment would be appropriate. It is a public place. I am not of the view that the parties should have a restriction placed on them that no other adult person should be present, in fact, I'm of the belief that the wife may wish to have another adult person with her as a support person.
I'm not, as I said, making any orders for overnight contact, and I accept the advice of Dr Rickard-Bell that such matters should only be considered once 12 months has elapsed, and if there have been satisfactory compliance with the orders which I propose to make, and if the husband can then show that he has appropriate accommodation, then proper arrangements can be made for the children, but I'm of the view that contact should commence and it should commence tomorrow.
Now these orders will be engrossed and can be made available to the parties at some time today.
I will delete the Coles supermarket, S Mall, M, from Order 11, so I vacate the order so far as that is concerned.
I am prepared to continue the appointment of the children's representative in the circumstances.
I am satisfied that it is inappropriate to make an order for costs. I am not satisfied that the parties have the financial resources. The application for costs will be dismissed. All other applications are dismissed and the matter will be removed from the pending cases list.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 2 October 2001
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