Lendar and Anor and Mines and Anor
[2010] FamCA 676
•28 July 2010
FAMILY COURT OF AUSTRALIA
| LENDAR AND ANOR & MINES AND ANOR | [2010] FamCA 676 |
| FAMILY LAW – CHILDREN – With whom children spend time – Grandparents |
| 1st APPLICANT: | Ms Lendar |
| 2nd APPLICANT: | Mr Lendar |
| 1st RESPONDENT: | Ms Mines |
| 2nd RESPONDENT: | Mr Howard |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Meehan |
| FILE NUMBER: | PAC | 1321 | of | 2009 |
| DATE DELIVERED: | 28 July 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 27,28 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr and Mrs Lendar appeared on their own behalf |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Ladopoulos |
| SOLICITOR FOR THE 1ST RESPONDENT: | Lamrocks Solicitors |
| COUNSEL FOR THE 2ND RESPONDENT: | Mr Weaver |
| SOLICITOR FOR THE 2ND RESPONDENT: | McKeown Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Nash |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | JPM Legal |
Orders
That L born … July 2004 and M born … January 2008 (“the children”) live with Ms Mines (“the mother”).
That the children spend time with Mrs Lendar (“the maternal grandmother”) and Mr Lendar (“the step-grandfather”) as follows:
2.1each Thursday from 3:00pm to 6:30pm, to commence immediately upon the making of the orders
2.2after 12 months from the date of these orders, each Thursday from 3:00pm to 6:30pm and the first weekend of each calendar month, from 9:00am on Saturday until 5:00pm on Sunday
2.3after 24 months from the date of these orders, each Thursday from 3:00pm until 6:30pm; on the first weekend of each calendar month from 9:00am on Saturday until 5:00pm on Sunday and for 3 (three) consecutive days during each school holidays
2.4for the purposes of implementation of order 2.3, the mother shall nominate in writing the dates of such three day period, which shall commence at 9:00am on the first day and conclude at 5:00pm on the last day
2.5at any other times as agreed between the mother and the maternal grandmother or step-grandfather
That for the purposes of order 2, the time the step-grandfather spends with the children is to be in the presence of the maternal grandmother until 12 months after the making of these orders.
That the mother authorise and direct any school and pre-school which the children attend to provide to the grandparents reports and other information regarding the children’s education.
That the maternal grandmother and step-grandfather be at liberty to contact the children’s school to arrange for them to be provided with copies of school reports, school newsletters, and other such material normally sent out from the school concerning the children’s education, as well as to attend at any school functions to which they are invited or in which the grandchildren are involved.
That the mother cause the child L to attend at the office of the Independent Children’s Lawyer within 3 days of the making of these orders to allow the Independent Children’s Lawyer to explain these orders to L
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment under the pseudonym Lendar and Anor & Mines and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 1321 of 2009
| MR AND MRS LENDAR |
Applicants
And
| MS MINES AND MR HOWARD |
Respondents
REASONS FOR JUDGMENT
the proceedings
These proceedings concern two children:
L born in July 2004, (6) and
M born in January 2008, (2½).
The children’s mother is the first respondent, Ms Mines (“the mother”).
L’s father is Mr K (“Mr K”), who has taken no part in the proceedings since 12 March 2010. On that day he participated in a telelink, conducted by a Registrar, and indicated that he would attend the trial but did not propose to file any material. The trial was to commence on 22 March 2010 but was adjourned to 27 April 2010. Mr K did not appear on 22 March 2010, although the Registrar had informed him of the hearing date. I am satisfied that he knows of the proceedings and has elected to take no part.
M’s father is Mr Howard (“the father”). He filed a response and relied on his affidavit sworn on 10 March 2010. At the trial Mr Howard appeared with legal representation.
The applicants are the children’s maternal grandmother, Mrs Lendar (“the maternal grandmother”) and her husband, Mr Lendar (“the maternal step-grandfather”) (together “the maternal grandparents”). The maternal step-grandfather is not the biological father of the mother. Her father, Mr Mines, swore an affidavit and gave oral evidence in support of her case.
I had the benefit of assistance from an Independent Children’s Lawyer (“the ICL”). Ultimately, the orders proposed by the ICL were accepted by the maternal grandparents but opposed by the mother and the father.
The Proposals of the Parties
The ICL proposed that the children spend time with the maternal grandparents as follows:
· from 3:00pm until 6:30pm each Thursday for twelve months
· from 3:00pm until 6:30pm each Friday and one weekend per month for a further twelve months
· thereafter from 3:30pm until 6:30pm each Friday, on one weekend per month and for three consecutive days during each school holiday.
These orders were subject to certain conditions, including a proviso that the step-grandfather spend time with the children only in the presence of the maternal grandmother for the first twelve months. The ICL sought this provision for the protection of both the children and the step-grandfather but not because of any risk to L and M in the maternal grandmother’s household.
The respondent mother sought orders that the children spend no time with either the maternal grandmother or the maternal step-grandfather. In the alternative, she proposed that they spend time with the maternal grandmother from 3:30pm until 6:30pm, on the first Thursday of each month, at Westfields Shopping Centre. These orders would be suspended “on any occasion when this time interferes with the children’s respective fathers spending time with them”. The children would spend no time with the maternal step-grandfather.
The respondent father, Mr Howard, supported the alternate proposal of the mother. In final submissions his counsel indicated that the father came to court “with a firm belief that there should be no time, but, having heard the evidence, he can see the benefit of some time”.
Background
The maternal grandmother was born in 1967 and is now 42 years old. The maternal step-grandfather was born in 1967 and is now 43 years old. They commenced their relationship in July 1991 and married in 1996. The maternal step-grandfather has been unable to work since he suffered a back injury in 2000. Previously, he worked for several years in a furniture business. He receives a disability pension and the maternal grandmother a government allowance as his carer.
The maternal grandmother and her first husband, Mr Mines, have three children, B Mines (26), the mother (24) and S Mines (22). B and S live with the maternal grandparents in Sydney’s west.
The mother alleged that she was sexually abused by the maternal step-grandfather for about six months when she was nine or ten years old. The maternal grandparents strongly denied these allegations, which were a major issue in the proceedings. The mother also alleged that she was physically abused by the maternal grandparents during her childhood. They admitted to some of these allegations.
The mother lived with the maternal grandparents until she was sixteen years old and then went to live with her father. After nine months she returned to the home of the maternal grandparents, where she stayed until January 2003.
The mother began a relationship with Mr K late in 2002. They lived at his parents’ home for about one year from January 2003 and then with Mr Mines for approximately eight months. They married in May 2004 and separated in January 2005. Their son L was born in July 2004.
The mother began a relationship with Mr Howard in September 2006. He has two children, Z, born in September 2002 and X born in May 2004. Z and S live with their father and spend only supervised time with their mother. Ms Mines and Mr Howard separated in February 2009. Their daughter M was born in January 2008.
The mother and Mr K entered into consent orders on 25 August 2005, which provide that L spends time with his father each alternate weekend; during school holidays and on special occasions. The mother said that Mr K currently has L every second weekend from after football on Saturday until Sunday night, during school holidays and each alternate Christmas. She said that Mr K is not currently in employment.
The mother and Mr Howard have no orders in place in relation to M’s time with her father. They both said that they have an informal arrangement which parallels that for L and Mr K.
There was some dispute as to the time which L spent with the maternal grandparents between his birth and April 2008. The mother said: “I regularly left [L] and [M] with Mum”. Whatever the details, it seems clear that the maternal grandparents cared for L, Z and X on a regular basis. For an unspecified period, they cared for the three boys each Tuesday while the mother and the father played poker at a club.
These arrangements ceased in April 2008, when the mother alleged that she observed L “on top of [the father’s] son [X] displaying odd behaviour moving up and down on top of [X] and touching his penis”. In cross-examination by counsel for the ICL, the mother conceded that she did not see L touch X’s penis. I will examine the details of this incident below, when I come to consider whether L and/or M are at risk of sexual abuse by the maternal step-grandfather.
Following this incident the mother and the father questioned L. They both claimed that he disclosed that the maternal step-grandfather had sexually abused him. Again I will examine the details of this alleged disclosure below.
After this weekend in April 2008, the mother refused to allow the children to spend time with the maternal step-grandfather. The maternal grandmother saw them at the mother’s home on a couple of occasions, the last being at Christmas 2008.
The maternal grandparents filed the present application on 20 March 2009. On 3 June 2009 interim orders were made by consent, which provided that the children spend no time with the maternal step-grandfather and that they see the maternal grandmother from 1:00pm until 3:00pm each Sunday, at a Shopping Centre. These orders were varied by consent on 17 July 2009 so as to substitute Friday for Sunday.
The Evidence and Witnesses
The applicants relied on the following affidavits:
(1) The maternal grandmother sworn 8 February 2010
(2) The maternal step-grandfather sworn 22 April 2010
(3) The maternal uncle B Mines sworn 15 March 2010
(4)They also relied on a statutory declaration of the maternal uncle S Mines sworn on 12 March 2010
All of these witnesses gave oral evidence.
The respondent mother relied on the following affidavits:
(1) The mother sworn 27 January 2010
(2) The mother’s father Mr Mines sworn 20 January 2010
The mother also relied on a proof of evidence which she adopted on oath on 27 April 2010. Both the mother and her father gave oral evidence.
The respondent father, Mr Howard, relied on his affidavit sworn on 10 March 2010. He gave brief oral evidence.
I had the benefit of a Family Report dated 16 November 2009 prepared by Mr P, who also gave oral evidence. Mr P’s report and oral evidence were of great assistance.
I had the assistance of a Magellan report dated 14 July 2009. This report listed notifications in relation to L and M and also the mother, as a child.
Approach To These Proceedings
I acknowledge my gratitude to my learned colleague, Dessau J, for the following statement of the law applicable to cases involving allegations of sexual abuse of a child:
In Stratfield and English [2008] FamCA 54 her Honour said:
“36. Part VII of the Family Law Act 1975 was substantially amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act. Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
‘(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
37. Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
38. In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
39. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility, not to the time the child spends with each parent. The Act provides for certain circumstances in which the presumption shall not apply, or may be rebutted.
40. The court is then required to consider whether an order for the child to spend equal time with each parent would be in his best interests (s 65DAA (1)(a)). In this case, no-one has asked me to consider equal time.
41. The court must then consider whether the child spending substantial and significant time with each parent would be in his best interests (s 65DAA (2)(c)).
42. The approach in deciding a case involving an allegation of sexual abuse was considered by the High Court in M and M (1988) FLC 91-979. At page 77,080, the High Court said:
“… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”
43. The High Court recognised though that findings on the sexual abuse question will have an important, perhaps a decisive impact on the resolution of the ultimate best interests issue.
44. As to the relevant standard of proof, the High Court emphasised that a judge should not make a positive finding that the allegation was true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw and Briginshaw (1938) 60 CLR 336. It quoted Dixon J (at p.362 of Briginshaw):
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
45. In a subsequent case of S and R (1999) FLC 92-834 the Full Court of the Family Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” was needed, given the maker of the statement was a child who was not subjected to cross-examination and whose statement was incapable of being properly tested.
46. The Full Court considered the applicable standard of proof in its recent decision in Johnson and Page [2007] FamCA 1235. At paragraph 69, the court cited with approval the approach taken by the Honourable John Fogarty in his paper entitled ‘Unacceptable Risk – A Return to Basics’ ((2006) 20 AJFL 249). In particular, the court said (at para 72):
“We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.”
47. Section 140 of the Evidence Act provides:
“(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.”
48. I must then consider the allegations of sexual abuse on the balance of probabilities taking into account the matters in s 140 of the Evidence Act.
49. In M and M, the High Court acknowledged there would be many cases in which it was not possible for a judge to make a positive finding that sexual abuse had taken place. He or she would then need to determine if there was a risk of sexual abuse, and assess the magnitude of that risk.
50. The Court went on to consider the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court should not grant custody or access (now an order in relation to with whom a child will live, or spend time), if it would expose the child to “an unacceptable risk” of sexual abuse.
51. In B and B (1993) FLC 92-357 the Full Court referred to the “unacceptable risk” test in M and M, and added (at p. 79,778):
`“The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.”
52. The issue of sexual abuse has been considered by the Full Court in several cases since the 2006 Family Law Act amendments. Those decisions do not appear to disturb the established principles in relation to the test of unacceptable risk.”
The Allegations of Sexual Abuse of the mother by the maternal step-grandfather
In her affidavit sworn on 27 January 2010 the mother said:
“16. When I was approximately 9 or 10 years of age my stepfather [the maternal step-grandfather] sexually abused me once or twice a week for a period of approximately six months.
17. During this period of time [the maternal step-grandfather] asked me at night ‘come into the bedroom and rub my back’ or my mother asked me ‘go into the bedroom and give [the maternal step-grandfather] a back rub’. After a period of time while I was rubbing [the maternal step-grandfather’s] back he started to touch me on the vagina on the outside.
18. After this had been occurring for approximately six months I learned at school that is it not acceptable for anybody to touch me in my genital area. Soon after I learnt this [the maternal step-grandfather] tried to put his finger inside my vagina and I said to [the maternal step-grandfather] ‘if you keep going, I am going to tell somebody’. After I said this to [the maternal step-grandfather] he stopped sexually abusing me…..
20. I never told anyone about the sexual abuse inflicted by [the maternal step-grandfather] as I was too scared until in or about mid-2005 when my niece [Y] disclosed to me that she had been sexually abused.
21. When I was approximately 22 years of age I told my father about what had happened to me and also told my mother. When I discussed this with my mother she said to me words to the effect ‘[the maternal step-grandfather] would never do anything like that to any of you’ and refused to believe me.”
In her oral evidence the mother said, inter alia:
“I have a positive recollection that [the maternal step-grandfather’s] abuse started when I was nine or ten.
When I was rubbing his back his hand would go down to my underwear and rub outside.
The door was sometimes open and sometimes not.
[The maternal step-grandfather] was on the bed lying on his stomach when I came in.
People wandered in and out, people sat in the room and chatted to him.
I sat on the bed, sometimes near his hips and sometimes his shoulders.
His arms were above his head.
He moved his arm down and interfered with myself.
He asked me to move for a minute so he could put his arms down because he had pain – I thought this was an excuse.
Then he moved his arms down by his sides.
Then he put his hand down inside my clothes.
Mostly I was wearing pyjamas.
Yes I am sure this happened.
Once I told the school counsellor about [the maternal step-grandfather’s] abuse…..
After [the maternal step-grandfather’s] abuse finished I walked straight out and into my room.”
The Family Consultant raised with these allegations with the mother and reported:
“[the mother] said that she had been sexually abused by [the maternal step-grandfather] when she was nine or ten years of age and had not told anyone until three or four years ago. She said that her niece had been sexually abused and she had disclosed her own abuse to help her niece who thought that no-one would understand. She said that the abuse occurred once or twice a week over a period of about six months. She said that the abuse occurred at night time, when she was ready to go to bed and [the maternal grandmother] was watching television. [The mother] said that she could remember wearing different pyjamas including her ‘favourite nightie’ and ‘winter pyjamas’. She said [the maternal step-grandfather] used to get her mother to call her to give him a back rub. She said that the abuse had only involved his fingers rubbing on ‘the outside’. She said she thought it was normal and [the maternal step-grandfather] had not done or said anything to stop her from telling. [The mother] said she found out at school that people are ‘not allowed to do that’. She said the abuse stopped after she told [the maternal step-grandfather] she would tell when he tried to put his finger ‘inside’. She said that [the maternal step-grandfather] had wanted back rubs and foot rubs before he hurt his back.”
In his affidavit the mother’s father said:
“11. In or about November 2008 [the mother] came to me and said words to the effect of ‘[the maternal step-grandfather] used to touch me inappropriately when I was younger’. When I asked her ‘why didn’t you say anything about this earlier?’ [The mother] said words to the effect of ‘because I was too scared to say anything’.
In his oral evidence the mother’s father said:
“She first told me about sexual abuse by [the maternal step-grandfather] a couple of years ago. I do not know anything specific about what [the mother] says [the maternal step-grandfather] did to her or [L] – I have never asked.”
The Magellan report referred to four notifications in relation to the mother between 1992 and 2001, involving the maternal grandparents. It stated that one “issue raised with the Director-General” was “risk of sexual harm – person of interest stepfather”. The report noted “…..[the mother] and her brother were interviewed and nothing of concern was disclosed during the interview.”
When cross-examined by counsel for the ICL, the mother said that she saw a school counsellor weekly or fortnightly for a period of two years. She said that she did not remember disclosing “any abuse by [the maternal step-grandfather]” to a counsellor. Very soon afterwards in her oral evidence, however, she said that she did tell a school counsellor about the alleged abuse on one occasion. The mother agreed that she never disclosed this abuse to a general practitioner, nor did she complain during an interview with DOCS officers in 1995.
The maternal uncle S Mines said in his statutory declaration:
“In regards to the court case between my mother, [the maternal grandmother], and [the mother], I have been brought up that I witnessed the sexual abuse to my sister by my stepfather [the maternal step-grandfather].
It was said that I was in the room when the event happened and [the mother] has said that I saw [the maternal step-grandfather] interfere with her. I never witnessed anything of this sort in my entire life.
[The maternal step-grandfather] ruptured his disc in his lower back in the year of 2000. The same year that I broke my left wrist. [The mother] and I used to ‘work’ on [the maternal step-grandfather’s] back. He would lay face down and across the bed and we would push down and massage his lower back and try to help relieve his pain and help push the disc back in, so this would help him walk without a bit of pain for a brief period of time. If we could or didn’t want to do it, he never made us do it to help him out. Sometimes we couldn’t help and with us ‘working’ on his back it would sometimes make this worse so he would ask us to stop.
Now at that time I would have been 10 years old and because of my schooling I knew what the abuse would have looked like, as most schools would have covered that type of incident in class whilst teaching sex education. So the thought of me not knowing what was happening at the time wouldn’t stand up in an argument.”
The maternal uncle B Mines said in his oral evidence:
“I saw [the mother] give [the maternal step-grandfather] back rubs when I was young.
He said he was in pain and one of us rubbed his back – I did it once.
He lay on his bed and the door was always open.
Sometimes my brother and mum came in.”
In his oral evidence the maternal step-grandfather said:
“I first became aware of [the mother’s] allegation that I sexually abused her on a Monday night one and a half years ago. She rang and asked to speak to her mother.
I am aware of DOCS documents in 1994.
I was not interviewed or spoken to about it by anyone.
I did not sexually abuse her. I never touched her inappropriately around her genitals.
No-one ever suggested that there was a concern about me being with [the mother].
[The maternal grandmother] left [the mother] in my care – sometimes for a couple of hours whilst she went shopping.
[The mother] rubbed my back after 2000, not before.
I did not touch her around the genital area when she rubbed my back.
It never happened that I tried to touch her inside her underwear and she said she would tell people if I did not stop.”
Counsel for the ICL invited me to make a finding, applying the requisite standard of proof, that the mother was not sexually abused by the maternal step-grandfather. She pointed to the following considerations:
·the mother was not an isolated child
·the Magellan report referred to four notifications but that fact does not corroborate the mother’s allegations
·the mother made no disclosure of sexual abuse when interviewed by DOCS officers
·there were aspects of the allegations which seemed unlikely:
¨ the abuse was not said to have occurred in “the dead of night”
¨ there were other people within the house
¨ the maternal grandmother was lying on his stomach
¨ there was no contemporaneous complaint by the mother
¨ the mother’s conduct as an adult was inconsistent with her claims of abuse, in that she chose to return to the Lendar household at times which were “convenient” to her, on her own admission
¨ the mother chose to have the maternal grandmother and the maternal step-grandfather care for her children
I am persuaded that these considerations weigh in favour of the finding sought by the ICL. It seems to me to be significant also that the maternal step-grandfather injured his back in 2000. The mother was then about fourteen years old, not nine or ten as she claimed to be when the alleged abuse occurred. The mother was the only person who suggested that she rubbed the maternal step-grandfather’s back prior to his injury.
The maternal step-grandfather strongly denied that he sexually abused the mother. He also denied that he admitted to her that he sexually abused her in a telephone conversation in April 2008.
The mother alleged that she telephoned the maternal grandparents’ home on the evening when she saw L “displaying odd behaviour moving up and down on top of [X] and touching his penis” in “about April 2008”. She claimed that the maternal step-grandfather answered the telephone and she said: “you did it to me and you’ve done it to [L]”. She alleged that the maternal step-grandfather replied: “I’m sorry for doing it to you but I did not touch [L]”.
The maternal step-grandfather denied that he made any such admission. He said:
“I did not say that at all – I said ‘excuse me’ and she repeated herself.
I said ‘[…], you’re lying. I didn’t hurt you and I wouldn’t hurt [L].
He said these words firmly and convincingly.
In essence, therefore, the only evidence that the maternal step-grandfather sexually abused the mother is her uncorroborated allegation. All of the other members of the household said that the mother and her brothers rubbed maternal step-grandfather’s back only after his injury in 2000. I have no reason to doubt this evidence, and I reject the mother’s assertion that she rubbed maternal step-grandfather’s back prior to his injury. There is thus a significant inconsistency in her account of the alleged sexual abuse.
I am conscious also of the mother’s contradictory evidence as to whether she told a school counsellor about the alleged sexual abuse. As noted, she said in quick succession during cross-examination that she never told a counsellor and then that she did so on one occasion. On the balance of probabilities, I am satisfied that she did not complain to a school counsellor about sexual abuse by maternal step-grandfather.
In her affidavit the mother said that she “was too scared” to tell anyone about the alleged abuse “until in or about mid-2005 when my niece [Y] disclosed to me that she had been sexually abused”. In mid-2005 the mother was nineteen years old. In the very next paragraph of her affidavit, however, she said that she told both of her parents of the alleged abuse when she was “approximately 22 years of age”. The mother’s father said that the mother told him of the alleged abuse in November 2008. She was then twenty three years old.
It seems to me to be significant that the mother’s father said that she told him of the alleged abuse only after she claimed that maternal step-grandfather had acted inappropriately with L. There could well be an element of convenience in such a complaint, in the context of a dispute over the children with the maternal grandparents.
I have pointed to the discrepancies in the mother’s account of the timing of the alleged abuse and of her disclosures as an adult. I am conscious also of the fact that she made no disclosure of sexual abuse during an interview with DOCS officers in 1995. I have rejected her evidence that she told a school counsellor about the alleged abuse, which means that I am satisfied that she made no contemporaneous complaint to any person.
I am mindful, further, that the mother’s own evidence was that “people wandered in and out, people sat in the room and chatted to him” while she rubbed maternal step-grandfather’s back. The maternal uncle B Mines said that “the door was always open” and “sometimes my brother and mum came in”. It seems to me to be inherently unlikely that maternal step-grandfather would sexually abuse the mother in these circumstances. Further, her account of the mechanics of the alleged abuse appears unlikely, in that she said that maternal step-grandfather lay on his stomach with his arms above his head.
Having regard to all of these matters, I find on the balance of probabilities that maternal step-grandfather did not sexually abuse the mother.
The allegations of sexual abuse of L by the maternal step-grandfather
In her affidavit sworn on 27 January 2010 the mother stated that she observed L’s “odd behaviour”, to which I have already referred, “in about April 2008”. In her affidavit she continued:
“35. I pulled [L] aside and asked him ‘why are you doing that?’ and he did not reply. I said to him words to the effect ‘does anybody do that to you?’ and I went through a list of names including my mother, [Mr K] and [the father], [L’s] brothers and his uncles and aunties. [L] replied ‘nup’ to all of these questions and when I asked him about [the maternal grandfather] he looked down and said ‘no’ very quietly and in a very uncertain manner and looked frightened.
36. Because of what happened to me when I was a child I was very worried about this and called my mother’s house.
37. [The maternal step-grandfather] answered the phone and told me that my mother was at bingo and asked me what was wrong. Initially I did not want to tell him but he pressured me and I told him and said to him words to the effect ‘you did it to me and you have done it to [L]. [The maternal step-grandfather] responded ‘I am sorry for doing it to you but I did not touch [L]”.
In her oral evidence the mother said:
“In April 2008 the three boys were at [the maternal grandparents’].
[The father] collected them on Monday.
I put [M] down for a sleep and realised that the boys were unusually quiet.
I saw [L] on top of [X] on the bed with his hand down his pants.
They were both about three years old.
They were both quiet.
I told [L] to get off [X].
I asked what they were doing and they said playing a game.
I said to [L] ‘you know you are not allowed to put your hand down [X’s] pants’ and he said ‘yes’.
[The father] and I told him no-one was allowed to touch their penis or bum a month or two earlier – we decided to do this because of what happened to [Y].
[Y] told [L] – I know because [L] came out and asked me ‘Mum what does [Y] mean by some man touched her fanny?’.
I said ‘don’t worry about it, [Y] should not have said anything to you’.
At first when I walked into the room in April 2008 it crossed my mind that it might be exploratory play – but then I started questioning [L]. As soon as I said ‘get off’ he pulled his hand out and got straight off.
I immediately started questioning him.
I assumed he was touching [X’s] doodle.
I had told him not to touch doodles about once a week.
I said there are naughty people out there.
It was his responses to questions that started me thinking.
I questioned him for about three to four minutes.
He was going to preschool and day-care.
I went through five or six names before I got to [the maternal step-grandfather].
All up I spoke about 15 people.
I did not ask [X] any questions.
[L], [X] and I were in the room when I questioned [L].
His body tensed up, he put his face down and looked scared.
After I asked [L] about other people I said to him ‘did Poppy touch you?’.
Then I spoke to [the father] and we went back into the room.”
The Family Consultant discussed these allegations with the mother and reported:
“48. [the mother], in recounting the events that raised her concerns for [L], said that she was ‘not good with dates’. She said after [L], [Z] and [X] had returned from a weekend at her mother’s and stepfather’s home, [L] had been found on top of [X]. He was reported as having said ‘I want to touch your doodle’. [The mother] said that she had repeatedly told the boys that no-one was to touch their ‘bum or doodle’. She said that she and [the father] had asked [L] ‘did Poppy touch your doodle or bum?’. She said that ‘[L’s] face dropped’, he quietly said ‘no’ and looked ‘really scared’. She said that she and [the father] had asked about a lot of other adults before asking about Poppy. [The mother] said that [L’s] response to these people had been ‘nup’. She said his response to [the maternal step-grandfather’s] name had been very different to his response to all of the other adults they had asked about.”
In his affidavit sworn on 10 March 2010 the father said:
“12. My concerns stem from a series of events which took place after [the mother] returned from a weekend away together in late April 2008. We left [Z], [X] and [L] with [the maternal grandparents] for the weekend. I do not recall whether [M] stayed with [the maternal grandparents] for the weekend also. We returned and collected the children from [the maternal grandparents’] house and went home. When we got home [Z] started to talk to me about chocolates at Poppy’s house. The children refer to [the maternal grandparents] as ‘Nanny’ and ‘Poppy’. I don’t recall exactly what [Z] said but it was words to the following effect: ‘Nanny and Poppy told me and [X] to play outside. I went inside to go to the toilet and Poppy was naked. I asked Poppy where [L] was. He said [L] was under the blanket.” From the conversation with [Z] I established he then went to the toilet and returned to play outside with [X]. He went on to say words to the following effect: ‘Later on [L] came outside with chocolate. When me and [X] went to ask Poppy for chocolates he said they were only for [L].
13. This conversation concerned me so I immediately shared it with [the mother]. [The mother] was also concerned and she took [L] to his bedroom to talk about what he, [Z] and [X] did at [the maternal grandparents’] house while we were away. After about 10 to 15 minutes [the mother] called me into the room to listen to their discussion. While I was present [the mother] asked him ‘does anybody touch you’ or words to that effect. She went through a list of names including Nanny ([the maternal grandmother]), Daddy ([Mr K]), myself, [L’s] brothers, [Z] and [X] and his uncles and aunties. [L] replied ‘no’ to all of these questions. When asked if ‘Poppy’ touches him, I observed [L] put his head down and go very quiet. He looked very scared. I don’t recall him saying anything after that.”
The father said in his affidavit that he and the mother took L to the Police Station after this conversation. He said “…a police officer tried to talk to [L] but he did not really say anything”. There was no evidence as to this attendance or attempted interview.
In his oral evidence the father said:
“I can’t remember if anyone asked [L] about chocolates.
[The mother] put a list of names to [L] – I heard more than 10.
After she asked if Poppy touched him I heard more names.
[L] said nothing about Poppy – he just put his head down and looked scared.”
The Magellan report (exhibit 7) stated:
“On 23 April 2008 the Department received another risk of harm report stating that [M’s] half-sibling, [X], nearly 4 years old and [L], 5 years old, were lying on top of one another with [L] touching [X’s] penis. [L] was questioned about his behaviour, but did not make any disclosure of sexual harm.
[L] was also questioned about whether any other person had touched him. A number of people were named and he denied that any other person had touched him. The reporter observed that his denial of the possibility that Poppy had touched him was qualitatively different to his answer in response to all other possible offenders.”
The Magellan report further stated:
“The Department is aware of allegations that [L] has returned from time with the applicants displaying sexualised behaviour. On 23 April 2008 a report was received stating that [L] was observed to be lying on top of his sibling [X] and touching [X’s] genitals. [L] did not make any disclosures of sexual harm and the report was closed due to competing priorities on 29 April 2008.”
In a sworn proof of evidence dated 27 April 2010 the mother stated:
“I had a conversation with [L] on Sunday 25/4/10 where he said and I said words to the effect of:
[The mother] said ‘You know what you did is naughty?
[L] said ‘Yes’
[The mother] said ‘Why did you do it?’
[L] said ‘I remember what Poppy did to me’
[The mother] said ‘what did he do?’
[L] said ‘he touched my rude parts’
[The mother] said ‘where did it happen?’
[L] said ‘at Nanny’s house’
[The mother] said ‘where at Nanny’s house?’
[L] looked at me in a funny way. [The mother] said ‘what room at Nanny’s house?’
[L] said ‘I think my room or Poppy’s room’
[The mother] said ‘where were [Z] and [X]?’
[L] said ‘I think out the back’
This conversation was after [L] had spent the night at the maternal grandfather’s house on 24/4/10.
Just prior to my conversation with [L] I was told by my father and his partner [Mrs D Mines] that [D] had seen [L] with his head on [O’s] chest and his hand down [O’s] underwear.
[O] is my sister, who is eight years old.”
There was no evidence from Mrs D Mines as to this alleged incident. The mother’s father saw nothing and could give only a hearsay account of what his wife told him had occurred.
In his oral evidence the mother’s father said that L and his eight year old twins, O and H, were in her bedroom watching a movie. They were all lying on the bed, on top of the covers, when he left the room. His wife later went into the room to turn off the television. She complained to him that she saw L’s hand down O’s pants. He said that they did not speak to L about his behaviour that night.
The mother’s father said that he spoke to the mother the next morning and “told her that [L] and [O] were tickling each other and he put his hand down her pants”. He said: “she asked him what had happened and he said he had put his hand down [O’s] pants”. The mother’s father then said: “[the mother] brought up what had happened with [the maternal step-grandfather]. [L] was outside playing with my son”.
It is thus obvious that the mother immediately linked L’s alleged behaviour to the maternal step-grandfather. I can only wonder what conversation she had with L prior to the dialogue set out in her proof of evidence. It would be surprising if L spontaneously connected his conduct with the maternal step-grandfather, given that he had not seen him for two years. I am conscious that L and the maternal step-grandfather met during the Family Report interviews in November 2009, but that was in a very controlled environment.
Counsel for the ICL invited a finding that L was not sexually abused by the maternal step-grandfather. She drew attention to these considerations:
· there were inconsistencies in the chronologies of various witnesses
· the mother admitted that she did not see L touching X’s penis, in contrast to what she said in her affidavit and to the Family Consultant
· L said “no” when asked whether he was touched by the maternal step-grandfather but the mother and the father assumed that he meant “yes” because of his demeanour
· the mother gave no evidence that she took L to DOCS or the police
· X was never interviewed or taken to the police or DOCS
· the maternal step-grandfather immediately denied her allegation of abuse of L
The Family Consultant considered the issue of possible sexual abuse of L by the maternal step-grandfather and reported:
“79. There were no clear indicators identified in this assessment that [the maternal step-grandfather] or [the maternal grandmother] had physically, sexually or emotionally abused [L] or [M]. [L] has not disclosed any abuse and the concerns raised by [the mother] have not been investigated by the Department of Community Services or the New South Wales Police. It seems likely that the combination of [the mother’s] protective stance, [L’s] age and his lack of clear disclosure regarding abuse would have been factors in the decision by both agencies to not pursue an investigation.
80.Sexual abuse is one of a number of possible antecedents for sexual behaviour in young children, but not the most prevalent. Some sexual behaviour is considered a normal part of childhood development; there are also correlations with more serious sexual behaviour problems and exposure to physical abuse, family violence and neglect. [The mother] has not reported ongoing concerns regarding sexual behaviour by [L] or [the father’s] sons. There does not appear to have been any clinical assessment or treatment sought in relation to the behaviour. …at this point in time it is not possible to reliably determine if there was a cause for the behaviour; in any case investigation or assessment at the time the concerns arose may not have led to clear conclusions.”
The Family Consultant, Mr P, holds a Master of Social Work degree which involved a thesis titled “An Investigation of Social Work Assessment with Child Protection Cases in Non-Statutory Settings”. He has extensive experience in the child protection area, with his employment history including:
· Department of Community Services 1994-1996
· Social worker and senior clinician at the Child Protection Unit, …, 1996-2009
I place substantial weight on Mr P’s assessment of the allegations of sexual abuse of L and the significance of his sexualised behaviour.
It should be remembered that the allegation of sexual abuse of L by the maternal step-grandfather had its genesis in sexualised play between two three-year old boys. The mother was content to swear in her affidavit that she saw L “touching [X’s] penis”. She conveyed the same allegation to DOCS, as appears in the Magellan report. That document stated: “…[L] touching [X’]s penis” and “…[L] was observed to be lying on top of his sibling [X] and touching [X’s] genitals”.
In cross-examination by counsel for the ICL, the mother said: “I don’t think I said that [L] said ‘I want to touch your doodle’ to the Family Consultant. It was not put to Mr P that he had inaccurately reported what the mother said to him. I thus accept that his report sets accurately recounts this conversation. It is obvious that this version of the incident differs significantly from the account set out in the mother’s affidavit.
In cross-examination the mother said that she told police officers that she saw L touching X’s penis. She was thus prepared to inform the authorities and swear in her affidavit that she had seen L engage in this behaviour but, in cross-examination, she admitted “I assumed he was touching [X’s] doodle”. She then said “no, I did not see [L] touching [X’s] penis. I’m not sure why I said this in my affidavit”. This evidence is obviously unsatisfactory.
It seems significant to me that L denied that the maternal step-grandfather sexually abused him, despite a leading question from the mother: “did Poppy touch you?”. She said that she did not believe his denial because “his body tensed up, he put his face down and he looked scared”, when asked about the maternal step-grandfather. There could be any number of reasons why L’s demeanour changed at that point in the mother’s questioning of him. In my view, there is certainly no necessarily sinister implication.
The father said that the mother took L into a bedroom after Z spoke about “chocolates at Poppy’s house”. After ten to fifteen minutes she called the father into the room and presented a list of names to L. He confirmed that the mother asked L directly if “Poppy touches him” and that he said “no”. He said that he “observed [L] put his head down and go very quiet. He looked very scared.”
The mother said that she questioned L “for about three to four minutes” before the father came into the room and she put a list of names to him. That time span is significantly different to the father’s estimate of ten to fifteen minutes. There was no evidence as to the conversation between L and the mother before the father entered the room.
The mother made no mention in her affidavit that L was taken to a police station in connection with this incident. She said in her oral evidence that she did speak to police officers. One might think that she would include in her affidavit such a significant matter. As noted, no police document was tendered in her case to establish that there was any such attendance by her and/or the father. There was no evidence as to the alleged interview of L by a police officer.
All of these considerations leave me with substantial doubts that L was sexually abused by the maternal step-grandfather. I find, on the balance of probabilities, that the maternal step-grandfather did not sexually abuse L.
Risk of Sexual Abuse of L and/or M by the maternal step-grandfather
I have found that the maternal step-grandfather did not sexually abuse either the mother or L. I cold detect nothing further in the evidence which suggested a risk of sexual abuse of the children in the household of the maternal grandparents. Accordingly, I find that there is no unacceptable risk that either L or M will be sexually abused by the maternal step-grandfather.
Risk of Physical Abuse of the Children by the maternal grandmother and/or the maternal step-grandfather
The mother alleged there is an unacceptable risk that either or both of the maternal grandparents may physically abuse L and M. To a significant extent, and understandably, she relied upon her own experience of physical abuse at their hands during her childhood. In her affidavit she said:
“11. When I was a child I was physically abused by my mother from the age of 4 until I was approximately 17 years of age. For example my mother would punch and kick and bite and pinch me often for no reason and on occasion she pushed me into walls and hit me in the face. I was often bruised and scratched as a child and my mother would often punish me with physical abuse if I did not come quickly enough when she called me.”
The maternal grandmother denied that she pushed the mother into walls. She admitted that she once hit the mother’s face “when she backchatted…”. She also admitted that she struck her with a belt on occasions.
The maternal grandmother also admitted to a particular incident which occurred when the mother was four years old. She conceded that she hit her with a bag and left bruising on her head and body. She said: “I lashed out at the wrong person – it should have been her father”.
The maternal step-grandfather admitted that he and the maternal grandmother both “hit [the mother] with a belt and threw things at her”. He described physical confrontations between the mother and the maternal grandmother. In cross-examination he conceded: “yes, of course everyone behaved inappropriately”.
The behaviour to which the maternal grandparents admitted was unacceptable, by any standard, and unquestionably constituted physical abuse of the mother. The issue is whether there is now a risk that the maternal grandmother and/or the maternal step-grandfather will indulge in similarly abusive behaviour toward L and M.
The maternal uncle S Mines confirmed that there was physical violence in the household. In his statutory declaration he said: “Throughout my life living at home there was some physical abuse at home. This was brought on by both parties, my mother, stepfather, my brother, my sister and I.”
All of this disturbing evidence paints a picture of a household permeated by chronic verbal and physical aggression and abuse. Life in this environment must have been extremely difficult and stressful for the mother and her brothers. It seems, however, that both the maternal grandmother and the maternal step-grandfather have taken steps to ameliorate their propensity to indulge in this unacceptable behaviour.
In 2002 the maternal grandmother was prescribed antidepressant medication. She said that she has noted a difference in her behaviour since that time. She said “I found it hard to control myself in anger until I went on to antidepressants”.
There seems to have been only one incident of violence between the maternal grandmother and the maternal step-grandfather, since she has been on antidepressants. During an argument in 2007, she pushed him into a screen door. She said that she had forgotten to take her medication “for a couple of days”. Otherwise, there was no evidence to suggest that she is an unreliable medication taker.
The maternal step-grandfather appears to have had a long standing substance abuse problem which most likely exacerbated his verbal and physical aggression within the household. He has had difficulties with alcohol consumption and use of marihuana. The maternal grandmother said “mostly our arguments got out of hand because of his alcohol”, an assertion which seems inherently likely.
The maternal step-grandfather’s unchallenged evidence was that he stopped drinking alcohol in about 1999. He told the Family Consultant that he thought that he was “faced with a choice between [my] wife and alcohol”. He currently attends Alcoholics Anonymous meetings once per week.
The maternal step-grandfather told the Family Consultant that, shortly before his interview, he drank alcohol at a party and then became involved in a physical altercation. He said that he “realised that he did not get into trouble when he did not drink and that these recent events confirmed this for him”.
The maternal step-grandfather has been a regular user of marihuana for many years. He said that he used this drug only occasionally before his injury in 2000. After that, he used marijuana much more extensively as a form of pain relief. He said: “I decided to cut it out because of my health and I could not afford it anyway”.
The maternal step-grandfather has now sought assistance from a counsellor with the Drug and Alcohol Psychological Service. In a letter dated 23 April 2010 (exhibit 2) a clinical psychologist employed with that service wrote:
“[The maternal step-grandfather] presents as willing and very motivated to engage with this service. Sessions are focussed on assessment of his drug use history, mood and relevant background information and discussion about motivation. He has been provided with handouts regarding cravings management and other tips to stop use. He has agreed to attend ongoing appointments with this service to learn relapse prevention skills”.
I am satisfied that the maternal grandmother’s outbursts of temper, and resort to physical violence, are now significantly ameliorated by her use of antidepressant medication. I am also satisfied that the maternal step-grandfather’s abuse of alcohol is no longer a problem for him, despite the one-off relapse in 2009. His attempts to overcome marijuana use are in their infancy but he is to be commended for his efforts thus far.
I am persuaded that neither the maternal grandmother nor the maternal step-grandfather present an unacceptable risk of physical abuse to the children. There was no suggestion of any psychological or emotional abuse of the children by them. Nothing in the evidence suggested to me that the children are at risk of such abuse in the future.
The Presumption of Equal Shared Parental Responsibility
These proceedings are not a contest between parents, so there is no need to consider whether the presumption does not apply or has been rebutted. There is thus no necessity to consider equal time or substantial and significant time or otherwise follow the convoluted decision-making pathway which is mandated by the current legislation. I will thus move directly to consider what orders are in the children’s best interests, having regard to the provisions of section 60CC.
Section 60CC(2): Primary Considerations
section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The benefit to the children of having a meaningful relationship with each of their parents is relevant, in terms of ensuring that orders for time with the maternal grandparents do not impinge upon their opportunity to be cared for by their fathers. The Family Consultant said in his oral evidence:
“If one had to prioritise, the children’s relationship with their parents and siblings is more important than with grandparents.”
I have dealt already with the evidence as to risk of physical, sexual and emotional abuse of the children in the household of the maternal grandparents. I have determined that time with their grandmother and step-grandfather would not expose them to and such unacceptable risk.
Section 60CC(3)
section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;
The Family Consultant reported that:
“[L] said that he would like to see [the maternal step-grandfather] if he did not get into trouble and that he missed seeing him.”
L told him that both the maternal grandmother and the maternal step-grandfather “[do] nice stuff”.
The Family Consultant concluded:
“It seems reasonable to conclude that [L], in the absence of his being aware of any injunction against it, would like to spend time with his maternal grandmother and maternal step-grandfather. Although it is possible to determine [L’s] views, it is difficult to suggest that his views should be given significant weight by the court as he is not of an age or developmental level where he is able to reasonably consider or assess safety and well-being issues for himself.”
M is now only two and a half years old. She was only one year and ten months of age when the Family Consultant carried out his assessments. Obviously she is far too young to express any views.
section 60CC(3)(b): the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The Family Consultant assessed L’s relationship with the maternal grandparents in these terms:
“[L] appeared to have a positive relationship with his maternal grandmother. He appeared to have also retained a positive view of his maternal step-grandfather, despite a long period where he has not spent any significant time with him. [L] was clearly troubled at the prospect of spending time with his maternal step-grandfather; however this appeared to relate to his concerns of being in trouble for doing something he was not allowed to do, rather than him having concerns directly related to [the maternal step-grandfather]. [L’s] concerns in relation to this appeared to reduce with reassurance.
76. It was concerning that [L’s] descriptions of his mother, half-sister, stepfather and stepbrothers were generally not positive. [L] spoke most positively regarding his maternal grandmother, his maternal step-grandfather, his father and his younger maternal uncle [S]. It is possible that this reflects an idealised view of significant adults that he does not spend significant time with, particularly as these adults do not appear to influence any significant responsibilities in parenting or raising [L]. Alternatively it may reflect that [L’s] day to day experiences of family are troubled.”
As to M, the Family Consultant reported:
“[M] has not spent significant time with either [the maternal step-grandfather] or [the maternal grandmother]. Whilst [M] did not appear uncomfortable with [the maternal grandmother], she did not demonstrate clear indications of a strong connection to her either. With further time with [the maternal grandmother], it is likely that [M] may develop an observably positive relationship with her. [L] appeared used to providing support and direction to [M], as demonstrated in moving between rooms during the assessment. It appeared that [L] demonstrates a high level of responsibility for his young sister at times and [M] responds accordingly to this. It is possible that [L’s] presence was a relevant consideration in her appearing relatively comfortable with [the maternal grandparents].”
section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Although this consideration is cast in terms of parents, it is relevant to have regard to the conflicted relationship between the mother and the maternal grandparents. Historically, there have been fluctuations in the mother’s willingness to involve her mother and stepfather in the lives of the children.
The Family Consultant summarised the potential implications for the children of this conflicted relationship in these terms:
“The relationship between [the mother] and her mother and stepfather is currently very conflicted. Given the history of periodic conflict and animosity between [the mother] and [the maternal grandparents] it is foreseeable that transition for the children between them may involve tension, if not actual conflict, arguing and potentially violence. It is positive that this situation has not deteriorated beyond tension with the current interim arrangements.”
section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The evidence of the Family Consultant suggests that L has missed the maternal step-grandfather and would benefit from again spending regular time with him. He has not been similarly deprived of time and a relationship with his grandmother. I am satisfied that L would derive considerable benefit from a resumption in his grandson relationship with the maternal grandparents.
M has a much more limited relationship with her grandmother and she would have no attachment to the maternal step-grandfather. She has not seen him at all since she was about four months old. I am persuaded, however, that M would benefit from a strong granddaughter relationship with the maternal grandparents.
As counsel for the ICL submitted, a “number of people have passed through [the mother’s] household”. She suggested that the children will “get security from the grandmother’s household”, a proposition with which I agree.
Another benefit for the children of time with the maternal grandparents will be the opportunity to build relationships with their maternal uncles, S and B Mines. They both impressed as likeable young men who can offer the children constructive input into their lives.
Overall, the changes which would be brought about by the orders sought on behalf of the Independent Children’s Lawyer should bring considerable benefit to the children. These advantages, of course, need to be weighed against the disadvantages of potential adult conflict and the need to prioritise relationships between the children and their fathers and siblings.
section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The mother and the maternal grandmother have been able to arrange for changeovers in accordance with the interim orders. There was no suggestion that they would be unable to continue to do so. There are no other practical difficulties in the children’s spending time with the maternal grandparents.
section 60CC(3)(f): the capacity of:
(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There was no challenge to the mother as the children’s primary carer, thus there is no need to consider her capacity to provide for the children’s needs in that role. It may be that she lacks capacity to appreciate the children’s need for a relationship with their grandmother and step-grandfather.
I have made findings as to the risk of physical, sexual and emotional abuse to the children in the household of the maternal grandparents. Otherwise there was no suggestion that they lacked capacity to provide for the children’s needs. It may well be that they are now better equipped to provide for L and M’s needs than was the case in relation to the mother and her brothers.
section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
No relevant matters arise pursuant to these considerations.
section 60CC(3)(j): any family violence involving the child or a member of the child’s family;
I have referred already to the violence which existed in the household of the maternal grandparents during the mother’s childhood. Their behaviour cannot be condoned in any way. I have addressed the question of the present risk of violence to L and M.
section 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person
There are no family violence orders in existence.
section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
There was nothing to suggest that any particular order is least likely to lead to further litigation.
section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
As noted, it is necessary to craft orders which respect and accommodate the children’s time relationships with their fathers. The mother said that L goes to his father after football on Saturday each alternate weekend. That routine should be continued.
Section 60CC(4)
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
This section has no relevance to these proceedings.
Conclusion
I have found that there is no unacceptable risk to L or M in the household of the maternal grandparents. I am persuaded that L wants to resume his relationship with the maternal step-grandfather and that he has missed him. I am satisfied that both children would benefit from a secure relationship with their grandmother and step-grandfather. I thus intend to order that the children spend time with the maternal grandparents.
Given my findings as to the risk of physical and/or sexual abuse of the children by the maternal step-grandfather, I see no need to order that their time with him be supervised. I agree with the submission of the ICL that he should spend time with them for the first twelve months only in the presence of the maternal grandmother. This order is to protect both the maternal step-grandfather and the children from the fallout of further allegations.
It seems to me that the orders in the scheme proposed by the ICL will achieve these purposes, without infringing on the children’s relationships with their fathers and siblings. The number of changeovers does not seem to me to be problematic, in terms of the conflict between the mother and the maternal grandparents.
I will order that afternoon time take place on Thursdays, rather than Fridays. It seems to me that it would not be helpful for there to be a disruption to the commencement of every weekend in the mother’s household. I am also mindful that the children’s weekends with their fathers could well expand to include Friday nights, in due course.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 28 July 2010
Key Legal Topics
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Standing
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