Maguire and Sheldon
[2011] FMCAfam 919
•7 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAGUIRE & SHELDON | [2011] FMCAfam 919 |
| FAMILY LAW – Parenting orders – substantial issue is whether the children are or would be exposed to an unacceptable risk of harm if exposed to their father – allegations of family violence and sexual abuse – credibility of evidence. |
| Family Law Act 1975, ss.4, 68B, 69ZW, 60K, 60CG, 60CA, 69ZN, 69ZQ, 69ZT, 69ZX, 61DA, 60CC, 68R, 117, 117AB, Division 12A Federal Magistrates Court Act1999, ss.66, 70 Evidence Act 1995, s.140, Division 3, 4, 5 Magna Carta, clause 39 |
| Johnson & Paige [2007] FamCA 1235 Re David (1997) FLC 92 – 776 Jones & Dunkell (1959) 101 CLR 298 M & M (1987) FLC 91-830; (1987) 11 Fam LR Briginshaw & Briginshaw (1938) 60 CLR 336 Casely & Casely (costs) [2010] FamCAFC 189 A. v. A. (1976) V.R. 298 B & B [Access] (1986) FLC 91-758 Leveque v. Leveque (1983) 54 B.C.L.R. 164 Re G. (a minor) (1987) 1 W.L.R. 1461 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 N & S (1996) FLC 92-655 S & S [1993] NZFLR 657 Potter v Potter [2007] FamCA 350 In M v Y [1994] NZFLR 1 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Palmer v Dolman [2005] NSWCA 361 Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638 Re JJT; ex parte Victoria Legal Aid [1998] HCA 44 Latoudis v Casey [1990] HCA 59 Ruddick & Ors v Vadarlis & Ors (2001) 188A LR 143 B & J [2006] FamCA 256 |
| Applicant: | MR MAGUIRE |
| Respondent: | MS SHELDON |
| File Number: | PAC 2607 of 2010 |
| Judgment of: | Harman FM |
| Hearing dates: | 28 – 29 April & 5 August 2011 |
| Date of Last Submission: | 5 August 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 7 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield |
| Solicitors for the Applicant: | Allied Lawyers |
| Counsel for the Respondent: | Ms Dulhunty |
| Solicitors for the Respondent: | Savage & Love Solicitors |
ORDERS
That all and any prior parenting orders with respect to the children of the relationship between Mr Maguire (the applicant father) and
Ms Sheldon (the respondent mother) and being:
[X] born [in] 2004; and,
[Y] born [in] 2007
shall be and are hereby discharged.
That Ms Sheldon, the children’s mother, shall have sole parental responsibility for [X] and [Y].
That notwithstanding order 2 hereof that:
a)Ms Sheldon shall be responsible for deciding the school/s to be attended by [X] and/or [Y] but shall ensure that Mr Maguire is provided with all relevant details of such enrolments including the name, address and contact details of the school/s and [X] and/or [Y]’s class room teachers;
b)Each of the parents shall do all things, sign all documents and give all consents and authorities necessary to include each parent’s details to be recorded by and with any school attended by [X] and/or [Y] as a parent and emergency contact person;
c)Each of the parents shall do all things, sign all documents and give all consents and authorities necessary to enable each parent to obtain such information, reports, newsletters, copies of school photos and order forms or other materials as they may desire from any school attended by [X] and/or [Y];
d)Each parent shall be entitled to attend [X] and/or [Y]’s school at any time and for any purpose authorised or permitted by their school/s including assemblies, sports and special event days, parent teacher interviews, class functions and as parent/helpers or other activities at or associated with their school/s and to which parents, grandparents or carers are invited to attend from time to time and provided that should Mr Maguire propose attending at the children’s school at any time he shall advise Ms Sheldon of that intention prior to doing so;
e)Each parent shall do all things, sign all documents and give all consents and authorities necessary to include each parent’s details to be recorded by and with any sporting or other recreational group with [X] and/or [Y] are involved from time to time and with respect to same:
i)Each parent shall be entitled to obtain directly from such club or group copies of training, playing, performing or participation rosters as are applicable to the children;
ii)Each parent shall be entitled to attend such events (irrespective of whose care the children are in at that time);
iii)The parent in whose care the children are at the time of such events or activities shall ensure that the children attend;
f)Each parent shall advise the other forthwith and contemporaneous with the event of any significant illness or hospitalisation relating to or experienced by [X] and/or [Y] and, further each parent shall do all things, sign all documents and give all consents and authorities necessary to allow, enable and permit both parents to be fully advised and consulted with respect to such illness or condition and with respect to any treatment or hospitalisation and to visit [X] and/or [Y] if hospitalised;
g)Each parent is to advise the other forthwith of any referral for [X] and/or [Y] to attend for specialist investigation or treatment or counselling and shall, further advise the other parent of the time, date and place of any appointment made and each parent shall give all consents and authorities necessary to allow, enable and permit both parents to be fully advised and consulted with respect to such appointment and to attend the appointment should they so desire;
h)Each parent shall keep the other advised at all times of an email address via which [X] and/or [Y] can be contacted and an emergency telephone contact number.
That [X] and [Y] shall live with their mother Ms Sheldon.
That [X] and [Y]’s father Mr Maguire shall spend time with [X] and [Y]:
a)From 10am until 5pm on each of Sunday 25 September, Sunday 9 October 2011 and Sunday 6 November 2011;
b)From 10am Saturday until 5pm Sunday for each of the weekends of 19 November 2011, 2 December and 16 December 2011;
c)From 10am 26 December 2011 until 5pm 29 December 2011;
d)From 10am 13 January 2012 until 5pm 21 January 2012;
e)Thereafter and commencing Term 1 2012:
i)Each 3rd and 7th weekend of each NSW school term and from the conclusion of school Friday until 6pm Sunday (extending to 6pm Monday in the event of a long weekend or pupil free day);
ii)For the first half of each short NSW school holiday period and from the conclusion of school on the last Friday of term and until 6pm on the middle Saturday of the holiday period;
iii)For 2 periods each of 8 nights duration during the Christmas school holidays in each year and being:
(i)In 2012 and each alternate year thereafter a period from 10am on the first day of the holidays (being the first day after the last scheduled day of school attendance) and ending 6pm on the day following the 8th night) and for a second period commencing 10am 19th January and concluding 6pm 27th January;
(ii)In 2013 and each alternate year thereafter a period from 10am on 27th December and ending 6pm on the 6th January and for a second period commencing 10am 19th January and concluding 6pm 27th January.
That to facilitate [X] and [Y] passing into their father’s care that:
a)Until Term 1 2012 changeovers shall, absent agreement between the parents, occur at the [P] Police Station and within the foyer thereof (and provided that either parent shall be entitled to have their parent/s attend changeovers on their behalf); and,
b)From Term 1 2012 Mr Maguire shall collect [X] and [Y] from their school at the commencement of each period if a school day and, if not, changeovers shall occur as above.
That to facilitate [X] and [Y] passing into their mother’s care that changeovers shall, absent agreement between the parents, occur at the [P] Police Station and within the foyer thereof (and provided that either parent shall be entitled to have their parent/s attend changeovers on their behalf).
Each parent shall be entitled to communicate and speak with [X] and/or [Y] by email and/or other web based communications (including Skype) at all reasonable times and with reasonable frequency and each parent shall allow and permit [X] and/or [Y] to communicate with or respond to the other parent on the same basis.
Each parent shall be entitled to communicate and speak with [X] and/or [Y] by phone at all reasonable times and with reasonable frequency and provided that between 6:30-7pm each Tuesday, Thursday and Saturday [X] and/or [Y] shall be available to receive a call from and speak with the parent in whose care they are not at that time and each parent shall:
(a)ensure the number they have provided is switched on and not otherwise engaged at those times;
(b)ensure that the phone is switched on, charged and in credit; and,
(c)Shall allow [X] and/or [Y] to speak with privacy and without interference or distraction.
Neither parents shall:
(a)Denigrate the other or speak harshly, critically or in an insulting manner about the other parent to or in the presence or hearing of [X] and/or [Y] and shall not allow, cause, encourage or permit any other person to do so;
(b)Discuss these proceedings or any issue or allegation raised in these proceedings with [X] and/or [Y] nor allow, cause, encourage or permit any other person to do so;
(c)Cause the children to receive counselling regarding the child’s relationship with the other parent or any issue alleged to arise from the child’s relationship with the other parent without the other parent being advised of same and invited to attend and participate in that counselling.
That pursuant to s.68B of the Family Law Act 1975 Mr Maguire shall be and is hereby restrained from questioning [X] and/or [Y] regarding Ms Sheldon’s (their mother’s) household arrangements, address, occupants of their home or their mother’s employment and Mr Maguire shall not, in any event, attend at or go within 100 metres of the mother’s home or work address nor:
(a)Cause, allow, permit or encourage any other person to do so; or,
(b)Provide or make known to any other person any details for same as may become known to him.
As soon as practicable after the making of these orders and at such time and date as shall be advised by the Independent Children’s Lawyer or her delegate Ms Sheldon shall cause both [X] and/or [Y] to attend with a the Independent Children’s Lawyer or her delegate to them to advise [X] and/or [Y] of the orders made today and their effect and to answer any questions they may have regarding the orders or their operation.
All outstanding applications and responses are otherwise dismissed.
All issues are removed from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
IT IS NOTED that publication of this judgment under the pseudonym Maguire & Sheldon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2607 of 2010
| MR MAGUIRE |
Applicant
And
| MS SHELDON |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing parenting applications with respect of two children:
· [X] born [in] 2004 and accordingly aged nearly 7 years of age; and
· [Y] born [in] 2007 and accordingly aged 4 years of age.
The parties to these proceedings are [X] and [Y]’s parents. [X] and [Y]’s father, Mr Maguire is the applicant in the proceedings and [X] and [Y]’s mother, Ms Sheldon, is the respondent in the proceedings.
History of litigation
These proceedings were commenced by an application filed by
Mr Maguire on 3 June 2010.
At the time that Mr Maguire’s application was filed he was unaware of Ms Sheldon’s whereabouts or, for that matter, the whereabouts of the children who have, at all relevant times since the separation of these parties, lived with their mother.
As a consequence of the above and when the proceedings were commenced, Commonwealth Information Orders as well as other orders dispensing with service were sought.
On 10 August 2010 a Commonwealth Information Order, pursuant to s.67N was issued and as a consequence of information provided by Centrelink service was ultimately affected.
On the first return date after the proceedings had been brought to the attention of Ms Sheldon being 15 September 2010 an Independent Children’s Lawyer was appointed. I hasten to add that the Independent Children’s Lawyer has been an invaluable resource to the Court and to the parties throughout the conduct of these proceedings.
Following the making of orders on 15 September 2010 a response and affidavit were ultimately filed by Ms Sheldon.
Following the making of an order pursuant to s.69ZW of the Act and on 28 October 2010 material was produced to this Court by the Department of Community Services (as they then were). Following an inspection of that material and on the same day a request was directed to the Department of Community Services to intervene in the proceedings. That request was declined.
The matter ultimately returned to the Court on 8 December 2010 and on that date the proceedings were listed for hearing on 5 and 6 May 2011 (these dates were subsequently administratively changed to
28 and 29 April 2011). No application for interim parenting orders was pressed.
On 28 and 29 April 2011, the matter proceeded to hearing and was adjourned part heard. The proceedings could have been concluded within the time allocated save that a number of evidential issues required further investigation. It was of the Court’s initiative that the proceedings were adjourned to enable further evidence to be obtained or at least attempted to be obtained and to seek to address a number of evidential deficiencies.
The matter returned before the Court on 5 August 2011 on which date the evidence was closed and submissions received.
At the conclusion of evidence 6 May 2011 orders had been made which directed the parties to attend upon a supervised contact service for the purpose of undertaking intake and with a view to that service being of assistance to the parties in facilitating supervised time or changeovers during the adjourned period. During intake it was determined by the Centre that they would not be in a position to offer services. That is not in anyway a criticism of the service and it is accepted and appreciated that intake procedures apply within such services and it is entirely a matter for them to determine, based upon their own policies and protocols, whether assistance can be provided in any given case.
The Parties Relationship
Mr Maguire was born [in] 1977 and is accordingly 34 years of age.
Mr Maguire is a self employed [omitted].
Ms Sheldon was born [in] 1978 and is accordingly 32 years of age.
Ms Sheldon would not appear, from her evidence (although it is unclear) to presently be in paid employment.
The parties commenced their relationship together and commenced to cohabit in or about 2000. The relationship between the parties experienced a significant deterioration in the early part of 2009 and certainly by June 2009 was substantially damaged and apparently beyond repair. During this period significant verbal altercations occurred between the parties and involving others including neighbours.
In September 2009 the parties separated on a final basis and have lived separately and apart since then.
Since shortly after separation Ms Sheldon has lived “in hiding” and has been engaged with both the Police and the Department of Community Services regarding her fears and concerns for her safety and that of the children.
Tendered into evidence at both final hearing and at a previous interlocutory hearing are copies of letters from a leading Senior Constable L from the [T] Local Area Command of the NSW Police service and from the Department of Community Services suggesting their support for Ms Sheldon in keeping herself and the children’s whereabouts unknown to both Mr Maguire and the Court. The Court has accommodated that request to date and throughout the proceedings and to ensure, as best as can be done, that Ms Sheldon had a sense of security.
The parties’ evidence and material considered
In these proceedings each of the parents have filed a number of affidavits. These have been identified in case outlines filed by their Counsel and each of the documents so identified have been read.
In addition to affidavits by Mr Maguire, there have also been affidavits filed in his case by Mr Maguire’s partner, Ms W and Mr Maguire’s mother, Ms G. Each of these affidavits has been read and each of those persons has been required for cross-examination.
In Ms Sheldon’s case, there have similarly been a number of affidavits filed by her and I have read and considered each of those together with a Form 4 Notice of Abuse and an affidavit by Ms Sheldon’s mother,
Ms S.
In addition to the material filed by the parties a number of documents have been tendered and received as exhibits in the proceedings, being Exhibits A-K inclusive and comprising substantial portions of material produced by the Department of Family and Community Services, NSW Police and medical records. Financial records from the Commonwealth Bank of Australia, which related to an issue of credit between these parties, were also tendered.
From the outset I should make clear that the substantial issue in these proceedings is whether the children are or would be exposed to an unacceptable risk of harm (whether from family violence or child abuse or both) if exposed to their father.
I should also be clear from the outset that these reasons will, of necessity, contain a number of comments with respect to the evidence (both generally and the evidence specifically produced in this case) and findings of credit in a fashion beyond that which is my usual want.
The allegations of risk
This case speaks to and reflects the findings and comments made in research report number 15 of 2007 by the Australian Institute of Family Studies under the heading “Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings - a Pre Reform Exploratory Study”.
The relevant findings of that report as regards evidentiary material and responses to allegations is set out below.
Evidentiary material and responses to allegations:
Three layers of ambiguity are suggested by the data:
(a) there is little evidentiary material to support allegations (especially in the general litigants sample);
(b) there are fairly high rates of non-response to allegations of spousal violence - except for cases in the FCoA requiring a judicial determination; and
(c) there are generally low levels of detail in the allegations and low levels of detail when responses are made.
A scarcity of supporting evidentiary material suggests that legal advice and legal decision making may often be taking place in the context of widespread factual uncertainty.
Specifically, most alleging parties, especially fathers, did not provide any material in support of their allegations (although more than half the alleging mothers in the judicially determined cases provided some evidence). However, when fathers in the judicial determination sample did provide information about allegations of spousal violence, it appeared more likely to carry strong probative weight compared with the material provided by mothers in that sample.
Cases in the FCoA that required judicial determination were more likely than other cases to contain evidence of spousal violence that appeared to have some strong probative weight.
Mothers' allegations of child abuse by fathers were less likely to be accompanied by evidence than was the case for mothers' allegations of spousal violence. (Few fathers raised allegations of child abuse.)
Across the courts and samples examined, allegations were most commonly denied or left unanswered.
Denials were more likely to occur where the evidence appeared to be of a less probative weight than where the evidence was stronger or non-existent.
Allegations of child abuse against fathers were more likely to yield a response - usually a denial - than allegations of spousal violence.
When all the pieces of evidence were taken together, most individual allegations of spousal violence across the courts and samples received no corroborative evidence. This was less marked for allegations of spousal violence raised in the judicial determination sample than in the general litigants sample.
Nevertheless, at least half the case files contained information about some of the allegations. As might be expected, case files in the FCoA judicial determination sample seemed the most likely of all sub-samples to contain such information and to provide strong support for the allegations raised. Cases that seemed to contain the most severe allegations of spousal violence were especially likely to be accompanied by evidentiary material. Many of these cases required a judicial determination.
Mothers were more likely than fathers to provide or elicit relatively strong evidence for their allegations of spousal violence. More than half of the fathers in all groups provided or elicited no supporting evidence for their allegations.
Mothers in the general litigants sample were more likely to elicit evidence for their allegations of spousal violence than of child abuse. (There were too few fathers who raised allegations of child abuse to make a similar comparison.)
In this case the allegations that have been raised by Ms Sheldon relate to both family violence and child abuse as each is defined in section 4 of the Family Law Act. Those definitions respectably are:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
The Act provides a clear emphasis upon an examination by Courts of allegations of family violence and child abuse. This much is made clear from s.60K which provides:
Court to take prompt action in relation to allegations of child abuse or family violence
(1) This section applies if:
(a) an application is made to a court for a Part VII order in relation to a child; and
(b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and
(c) the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; and
(d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.
(2) The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
(c) deal with the issues raised by the allegation as expeditiously as possible.
And s.60CG:
Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order
The Courts obligation to deal with allegations of violence expeditiously arises under s.60K by the filing of a Form 4 notice of Child Abuse or Family Violence. Such a notice was filed by Ms Sheldon at the first available opportunity same having been filed together with her response and initial affidavit 23 September 2010.
It is illuminating to consider the allegations that are raised within the Form 4 and comprising the following:
“Describe any acts or omissions that you allege constitute abuse”
(a) Smacking the children about the head, biting them, towel whipping and smacking on the bottom.
(b) Swearing repeatedly at the children.
(c)Insulting other parties in the presence of the children.
(d) Instructing the children to swear generally and to abuse their mother, the respondent.
(e) Assaulting the mother in the presence of the children.
(f) Verbally assaulting the children.
(g) It is feared that the applicant has exposed himself to and sexually abused the older of the children in such a manner as would have caused the older child ([X]) to say “Daddy’s thing was hard in his bedroom” and “I remember when Daddy’s doodle went pop” and “Daddy rubbed his doodle there” and “Daddy put his bum in my face”.
The specific paragraphs of the mother’s affidavit material which are suggested to support the allegations are identified and for the sake of clearly establishing that material I set out hereunder:
17. At various times he has threatened “I’ll kill you”, “I’ll kill your mum and dad” and “I’ll kill the kids”.
21. On another occasion, the applicant tried to cut the gas line to our house and on another a flare came through the bedroom window”.
22. On another occasion I remember finding a bullet on my front door step. Nobody else that I can think of could have left that there.
23. The applicant habitually has in his possession guns, knives and battle axes.
26. The applicant has not stopped harassing me. He had continued to use Facebook to vilify me.
28. On numerous occasions, the father slapped and backhanded the children around the head and yelled at them.
30. I remember when [Y] was only one month old he smacked her bottom and screamed at her to “shut the fuck up”. He also said “I can’t do this”.
32. I remember on one occasion when [X] was two years of age, he hit her so hard that he broke the skin.
33. On another occasion when [X] was two he towel whipped her leaving a massive welt on her. He laughed after doing this, although I was in tears.
37. Eventually, I had to leave the applicant otherwise I was informed by the DOCS worker “If you do not leave Mr Maguire we shall take your children into care. They are not safe”.
47. [X] said for example “Daddy’s thing was hard in the bedroom” and “I remember when Daddy’s doodle went pop”
48. On another occasion [X] said “Daddy rubbed his doodle there”. She was indicating her private parts. She then said “Daddy put his bum in my face” and mimed pelvic thrusts.
It is otherwise indicated under the heading “about the alleged risk of abuse” that “the applicant has verbally and physically abused the children”. The same paragraphs are relied upon with respect to that allegation and when the allegation was again repeated with respect to allegations of family violence additional paragraphs are relied upon as follows.
27. While we were together he spent no time at all with the children on their own. He would yell at them and swear at them using foul swear words and while we were still living with him [X] developed a foul mouth. On one occasion I remember [X] telling my father to “get fucked” when she was only two years old.
29. If people raised their hands for innocent purposes the children would automatically cringe expecting to be hit.
34. If [X] did something wrong, she would freeze and start shaking expecting to be punished. [Y] would simply scream.
36. [X] has seen domestic violence against me by the applicant. She saw the applicant for example chase me with a knife.
38. I attach marked “K” an open letter from Human Services dated 14 September, 2010 disclosing their views of the application by the father.
39. NSW Police took out an AVO to protect my parents for a period of two years a copy of which I attach marked “H”. I also attach copies of two letters from Senior Constable B and Leading Senior Constable L marked “I” and “J” respectively in support of suppressing my address.
43. I recollect the applicant saying from time to time to [X] “Call mum a fat bitch”. He would make them say “arse” and “hole”.
44. [X] is terrified of the applicant and I fear that she will hate me if I make her see him.
45. [Y] simply tunes out and goes into daydreams.
49. The applicant used to push me around and call me “dumb” in front of the children.
50. I remember on one occasion the applicant ripped my work shirt when he assaulted me. I sustained a torn ligament in my right shoulder and he mimed a head butt at me. [X] was between us at the time.
51. His violence was generally either against the children or while the children were watching.
52. On one occasion he said “I’m going to break Ms M’s head in half and when I’ve done that I’ll do the same to you and the kids”.
54. He used to throw empty coke bottles, plates and glasses at me over the entire period of the relationship. On one occasion I remember a coke bottle hitting me.
55. From time to time, he would punch holes in the wall.
56. He used to punch me pretending he was playing. He would hit me harder and harder if I said it hurt.
57. The applicant frequently gave me dead legs and I remember one occasion I sustained a cracked rib when he pushed me into the kitchen bench.
58. I sustained the torn ligament in the right shoulder approximately 13 months ago when he pulled me over a bench at [address omitted] so that he could take my mobile phone from me and check up what I was doing on it.
I do not consider it necessary, for the purpose of these reasons, to specifically turn attention to an analysis of whether the evidence referred to above and the allegations made fall within the section 4 definition. Suffice to say that a number of the allegations are not supported by the material referred to or would clearly be outside of the definitions. Being outside of the definition does not make it irrelevant or inappropriate to raise the allegations.
Family violence allegations
The portions of Ms Sheldon’s material that deal with allegations of family violence contain allegations that are broad and generalised. The allegations, notwithstanding subsequent affidavits filed by Ms Sheldon after the issues were first identified in September 2010, do not give any specificity that would be capable of being answered by Mr Maguire. This is of some particular relevance having regard to the requirement that the Court:
a)Ensure, pursuant to s.60CA, that the children’s best interests are the paramount consideration at all times; and
b)Ensure that due process is afforded to both parties.
Division 12A of the Act which provides for a less adversarial approach towards the determination of parenting disputes, might lend some support to the position advanced in Ms Sheldon’s case, being that rules of evidence should not apply strictly to the determination of these issues and particularly as they are matters of such significance and seriousness. However, the very content of such submission creates a number of difficulties.
Division 12A establishes a number of principles by which child related proceedings are to be conducted (see s.69ZN). These comprise:
Principle 1…The Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have upon the child in determining the conduct of the proceedings.
Principle 2…The Court is to actively, direct, control and manage the conduct of the proceedings.
Principle 3…The proceedings are to be conducted in a way that will safeguard the …child concerned against family violence, child abuse and child neglect and …the parties to the proceedings against family violence.
Principle 4… The proceedings are as far as possible to be conducted in a way that will promote co-operative and child focused parenting by the parties.
Principle 5…The proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.
With reference to the above principles it would appear clear that the Court has done all that it can by both the spirit and letter of the Act. The proceedings have been conducted expeditiously and brought on for hearing within a far shorter time frame then would ordinarily be the case. Indeed other matters have been displaced to ensure that this matter could proceed promptly, and when adjourned at the Court’s own initiative to enable further evidence to be obtained a further date was allocated within a space of weeks.
In response to the allegations that have raised in these proceedings by Ms Sheldon (who has presented her evidence from the time she became involved in the proceedings on the basis of asserting “I am terrified of the applicant”) every effort has been made, consistent with the provisions of the Federal Magistrates Court Act 1999 (see Division 5 thereof and in particular, ss.66-70) to enable Ms Sheldon to attend by video-link at all times. This leave had been granted on the application by Ms Sheldon’s legal representatives at the time the matter was listed for hearing and was briefly re-visited at the commencement of the hearing. Counsel appearing for Mr Maguire had not been instructed that a determination had already been made with respect to that application and that such application had been made and addressed in open Court to afford the opportunity of submission by all.
With the concurrence of the parties a Family Report has not been produced it having been agreed that:
a)This would have some potential to create difficulties with principle 3 (regarding the conduct of the proceedings in a way that ensures that children are not exposed to family violence); and
b)Both parties agreed that the fundamental issue in dispute was a determination by the Court of whether there was satisfactory evidence to establish an unacceptable risk and which issue would not be greatly illuminated by a report.
In the above circumstances and as indicated the Court has done all within its power to fully and appropriately ensure compliance with the principles established by s.69ZN and whilst still seeking to afford due process to both parties and in particular Mr Maguire who, if anyone was to be disadvantaged by such processes, is the one who was so disadvantaged.
The Court also has a number of general duties as established by s.69ZQ including the Court being mandated to:
a)Decide which of the issues in the proceedings require full investigation in the hearing;
b)Decide the order in which the issues be decided
c)Give directions or make orders about the timing of steps
d)Consider whether the likely benefits of taking a particular step justify the cost of taking it
e)Making appropriate use of technology
f)Consider if appropriate, the encouragement of use of family dispute resolution or family counselling
g)Deal with as many aspects that you can on a single occasion
h)Deal with the matter where appropriate without requiring the parties’ physical attendance at Court.
Again the approach that has been taken towards these proceedings has been entirely sensitive and responsive to issues and the allegations that have been raised by Ms Sheldon in these proceedings and have been treated on their face, as matters of seriousness which warrant an appropriate expeditious and serious response by the response.
In dealing with the evidence that has been presented by Ms Sheldon in support of her allegations and noting the comments of their Honours comprising the Full Court in Johnson and Paige [2007] FamCA 1235 it is to be noted that s.69ZT (under the heading “Subdivision D - Matters Relating to Evidence) does not remove or obviate the application of rules of evidence in parenting proceedings as was submitted in
Ms Sheldon’s case.
Section 69ZT provides that certain provisions of the Evidence Act 1995 do not apply in child related proceedings. These are clearly specified as being divisions 3, 4 and 5, of Part 2.1 of the Act (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), Part 2.2 and 2.3 (dealing with documentary evidence) and Part 3.2 and 3.8 (dealing with hearsay, opinion, admissions and the like).
The exclusion of the above provisions (or more correctly their non-application) does not, in anyway, obviate the Court’s strict requirement to ensure that due process is afforded to all participants in the proceedings. This is envisaged by subsection 2 which provides that even if such material as would otherwise be inadmissible and excluded is admitted by operation of subsection 1 that the evidence is admitted subject to “…such weight (if any) as [the Court] thinks fit…” [emphasis added]
More importantly the Court may, under sub.s3, decide to apply one or all of the provisions that would otherwise be excluded by sub.s1 and by reference to a determination that:
a)The Court is satisfied that the circumstances are exceptional; and
b)The Court has taken into account (in addition to any other matters the Court thinks relevant)
i)the importance of the evidence,
ii)the nature of the subject matter of the proceedings,
iii)the probative value of the evidence and
iv)the power of the Court (if any) to adjourn the hearing to make any other order or to give a direction in relation to the evidence.
The Court has used its powers under s.69ZW to seek to obtain from both the NSW Police Service and the Department of Family and Community Services such information and records as they may hold as might disclose evidence with respect to issues or allegations of child abuse or family violence or which might corroborate those allegations otherwise made in the proceedings.
Material has been produced by each of those agencies and that is a testament to the cooperation that has developed between this Court and those agencies in seeking to pursue our common goal of child protection.
The Court has also used its powers pursuant to s.69ZX to attempt to control the proceedings and assist in the presentation of relevant and important evidence by adjourning the proceedings on a part heard basis and directing the issue of subpoena to attempt to produce material that would otherwise corroborate or disprove “evidence” regarding specific aspects of the matter. That “evidence” related to allegations by
Ms Sheldon (the majority of her “evidence” regarding issues of family violence being assertion, conjecture and conclusion rather than statement of fact) that a number of text messages and letters had been received by both her and her parents and that they “must” have come from Mr Maguire. Those enquiries where not successful in producing evidence which cast any light on those issues.
These being proceedings in which the subject matter relates to an unacceptable risk of harm to a child and the consequence, if the Court where to make such a finding, being the termination of a relationship between children and their father, I am satisfied that the proceedings are, by reference to s.69ZT(3), of an exceptional nature and that the rules of evidence, in their totality, should accordingly apply.
The Court would be loath to make a determination or finding as to a serious issue relating to a child’s welfare (and it is difficult to envisage a more serious finding than a finding that a child has been abused or exposed to family violence by a parent or is exposed to an unacceptable risk of same) without evidence being before the Court which can be properly tested and is of probative value.
Beyond the above comments regarding the application of rules of evidence and operation of Division 12A generally I pass, at this time, to consider the evidence specifically given by the parties and issues of credit. Before doing so however I observe that:
The evidence presented in Ms Sheldon’s case is far from satisfactory. It is not for the Court to conduct the litigation on Ms Sheldon’s behalf particularly when she is legally represented and represented at hearing, over three days, by competent Counsel.
The evidence filed by Ms Sheldon in these proceedings comprises in total less than ten pages of evidence.
Ms Sheldon has sought, in large part, to present her case through the tender of material which, regrettably, largely repeats assertions and allegations made by her to a number of others and, in particular, to Police Officers and workers from the Department of Family and Community Services. Opinions have, at times, been expressed by those workers, and also by a counsellor upon whom Ms Sheldon has attended but such opinions have been based entirely upon that which is asserted by Ms Sheldon and which cannot and has not been corroborated in any meaningful respect.
The adjournment of the proceedings to enable the issue of subpoena (to seek to identify the person/s that had sent a significant number of text messages from specified mobile phones) was to enable Ms Sheldon to attempt to overcome the evidential hurdle which she faced. Ms Sheldon had no knowledge directly (and conceded such in cross examination) that the messages had, in fact, been sent to her or to her parents by
Mr Maguire. Her evidence, together with a number of other aspects to which I shall turn shortly, was simply that it “must have been him” and that “I cannot think of any other person who would of”.
It is trite to assert that since Magna Carta and for time immemorial within the Westminster Legal System under which this Court operates that a person is entitled (whether in criminal or civil proceedings) to know the case that they are to answer and to be able to test the evidence presented against them. Further, it is similarly trite to say that the maximum “she who asserts must prove” continues to apply as the law of the land and in particularly in cases before this Court.
This Court nor any other Court can proceed on the basis of speculation or assertion. Ms Sheldon’s case can best be summarised in the words of the now deceased Judicial Registrar Knibbs as “long on allegation and short on evidence”.
The totality of evidence presented by Ms Sheldon with respect to issues of violence (as above) falls well short of any standard of establishing a case of probative value and particularly by reference to the application of rules of evidence and s.140 of the Evidence Act.
The Parties Evidence
Mr Maguire, the applicant in these proceedings gave evidence and was cross examined first. Mr Maguire gave his evidence in a fashion that suggested that the process was not to his pleasure. That is perhaps with some degree of explicability having regard to the delay that has occurred since allegations were raised by Ms Sheldon and the matter having reached hearing and now conclusion.
Systematically each of the allegations as set out above and as raised by Ms Sheldon as supporting her allegations of family violence and abuse where put to Mr Maguire. Each was denied.
When it was suggested to Mr Maguire that he had screamed and “verbally abused” Ms Sheldon he had responded:
“words were exchanged between us but we never had any fights, not physical fights with fists. We both yelled and screamed and Ms Sheldon gave as good as I did”.
Each of the allegations which contained any specificity regarding alleged assaults by Mr Maguire upon the children (such as whipping them with towels and the like) where put and denied.
The only area in which Mr Maguire made any concession or was in any way challenged with force related to the circumstances of his having been dismissed from employment with [occupation omitted] during 2006. It was suggested to Mr Maguire that he had been dismissed from that employment due to violence and he had denied this. Records which where produced on subpoena and tendered into evidence from Mr Maguire’s Doctor (Dr S) and from [omitted] Hospital lent some weight to the suggestion that violence had, indeed, been involved (if not being the sole cause) of Mr Maguire’s dismissal from that employment. It was also clear, however, that at about that time
Mr Maguire was labouring under a number of stressors including:
a)
Disintegration of the relationship between himself and
Ms Sheldon; and
b)An undiagnosed and then untreated mental health condition which was referred to in different portions of the tendered notes as schizophrenia or bi polar disorder.
The highest that the material tendered (and not in its entirety put to
Mr Maguire) could be taken to suggest is that during the period 2006 – 2007 he was experiencing agitation and aggression for which he sought treatment. Ultimately, at about the time of final separation between these parties, Mr Maguire presented to hospital, was assessed, provided with some treatment and released the same day. The evidence goes no higher.
A significant portion of Ms Sheldon’s case otherwise related to the annexure of:
a)Material from Mr Maguire’s Facebook account; and
b)Transcripts of text messages received by her (as to two) and her parent (as to 27 pages).
The text messages all arise at and immediately following the physical separation of these parties. What is extraordinary in relation to the text messages is that they are by and large (and with respect to those sent to Ms Sheldon’s parents entirely) written in the third person. The text messages refer both to Ms Sheldon and Mr Maguire and aspects of their relationship.
The above is explained by Mr Maguire (who denies sending any of them) on the basis that Ms Sheldon had been engaged in an adulteress relationship with the wife of his next door neighbour and that this had been, upon his coming upon them in bed together when returning home from work in June 2009, the beginning of the end for their relationship and the cause of significant and heated disputation between them from June 2009 until final, physical separation in September 2009.
Whilst I do not have sufficient evidence available to find Mr Maguire’s version of events to be a matter of fact the explanation given is consistent (having been repeated by him throughout attendances by the Police at their joint home between June 2009 and post separation) as plausible. It would certainly explain the manner in which the messages are written in referring to both parties. I do not have sufficient evidence to accept or even infer that Mr Maguire was the author.
Ms Sheldon also gives evidence (and consequently Mr Maguire was cross examined about) a number of other events which she alleges occurred at and about this period (ie. June – September 2009). This includes allegations by her in the first affidavit filed that Mr Maguire had:
a)Placed a bomb in the exhaust of the neighbours car;
b)Attempted to cut the gas line to “our house”;
c)Thrown a flare through the bedroom window of the house; and
d)Placed a bullet on the front door step of the house.
In a subsequent affidavit Ms Sheldon retracted these allegations to the extent that she alleged that they were actions directed towards her or inferred or implied to be so. She then indicated that all of these actions had been carried out by Mr Maguire towards the neighbours.
In cross examination Ms Sheldon conceded that she had no personal knowledge of any of these matters and had been told by others and that she had no way of proving that Mr Maguire had undertaken these actions (if they had, in fact, occurred as she had no direct knowledge of them) but simply that “it could not have been anyone else”.
For his part Mr Maguire denies all of these allegations. Somewhat remarkably he had otherwise given a statement to the police regarding a number of similar incidents having befallen him.
In a portion of the police material tendered in Mr Maguire’s case he had reported to Police on or about 22 September 2009 that he had discovered a potential explosive device connected to his car after the car had been interfered with. The Police, having taken his statement, also then took into custody a barbeque gas cylinder, a bunch of wire and the car fuel cap from Mr Maguire’s car.
Mr Maguire also gives evidence, in the same statement, that he was approached by a number of persons whom it can be inferred from the statement he believes are connected with Ms Sheldon and/or the neighbours referred to above and that a number of incidents occurred between them.
Ms Sheldon’s evidence otherwise suggests (and she has consistently expressed to her counsellor, the police and departmental officers) that Mr Maguire:
a)Is a senior official of the [omitted] biker group and, as such, is a member of an “outlaw motorcycle group”;
b)Has access to fire arms, knives and other weapons and that these are stored at the home;
c)has access to and deals with drugs which are also at his home; and
d)Has access to a wide circle of people who he could use to search out Ms Sheldon and cause her harm. Ms Sheldon goes so far as to assert that she “believes” that he has circulated a request to all other members of the group to kill her on sight.
Whether through the actions of Ms Sheldon or otherwise or through vigilance of the police or other agencies none of the above has come to fruition and thankfully so.
The police have attended at Mr Maguire’s home consequent upon the complaints by Ms Sheldon as above and have searched his home with such force and vigour as to cause Mr Maguire to make complaint regarding the state that his home has been left in. No material was found other than a number of ornamental knives and swords which
Mr Maguire had legally in his possession and which he concedes he has.
It is also asserted by Ms Sheldon (in her evidence and in statements to the Police and Department of Family and Community Services) that Mr Maguire has a long and substantial involvement in criminal activity, is well known to the police and has been engaged in substantial violence towards her which is documented through police records.
Mr Maguire for his part denies this and asserts that the only real issues that have arisen between he and Ms Sheldon have been in the later part of their relationship from early 2009 until separation and that, during this period, the police were called to their home repeatedly by
Ms Sheldon and others but no action was taken until the time of final separation. At that time an Apprehended Domestic Violence complaint was made by the police on behalf of Ms Sheldon and Mr Maguire was charged with malicious damage having caused damage to the property in which the parties were living (and registered and owned in
Mr Maguire’s sole name) and having thrown a number of Ms Sheldon’s items out on to the front lawn.
Since separation an Apprehended Domestic Violence complaint was also made on behalf of Ms Sheldon’s parents by the police and a domestic violence order entered into by consent and without admissions.
On one specific occasion it is asserted, in later material filed by
Ms Sheldon, that she was assaulted by Mr Maguire. It is suggested, at least by inference, that this occurred in or about 2001. Mr Maguire in his material and prior to the issue of any subpoena with respect to the allegation, denied this allegation and asserted that the injury to
Ms Sheldon on that occasion had occurred by and had been caused by Ms Sheldon being struck with some force by a soccer ball kicked towards her at a party. Medical records produced by Dr S and relating to Ms Sheldon’s treatment corroborate that version of events.
Since the physical separation of the parties and the making of an interim Apprehended Domestic Violence Order for Ms Sheldon’s protection (which imposed prohibitions upon Mr Maguire) there is no suggestion of any breach or attempted breach of the order by
Mr Maguire save by his going to the general vicinity of Ms Sheldon’s then home and contacting her by telephone and text message. It is suggested by Ms Sheldon that this is the event that caused her to “go into hiding”.
The full records for that event are produced by the Police and under COPS event entry [omitted] and tendered. This record would suggest that on 29 September 2009 Mr Maguire was arrested and conveyed to the [omitted] Police Station as a consequence of allegations made by Ms Sheldon that he had contacted her. Great detail is then included in a fifteen page COPS entry as to messages and text messages that had passed between Mr Maguire and Ms Sheldon and Ms Sheldon and
Mr Maguire. This would suggest, based on a reading of the SMS messages that were viewed by the Police and transcribed, that a promise had been held out by Ms Sheldon to Mr Maguire that he could see the children and that this was the purpose of his attendance.
It is also suggested that Ms Sheldon had initiated contact with
Mr Maguire, had suggested that they go out together for dinner at a Café and ultimately the police were satisfied that:
“… the victim has been giving him mixed messages about their relationship and has always said that he can see his children. According to the accused the victim had informed him that he could see the children on 28 September 2009. When he tried to contact her in relation to picking them up she gave him the silent treatment”.
No action was ultimately taken by the police although a search warrant was executed based on Ms Sheldon’s allegations that there were drugs, guns and other illegal items at Mr Maguire’s home and nothing was found other than the knives referred to above, a baseball bat, a mobile phone (which would not appear to be the one used to send the offending text messages referred to above or at least is not suggested to be so) and a number of tablets which were suspected of being ecstasy. The tablets, however, were found in the rear of a motorcycle in a raincoat used by others and no charges were laid.
The two most concerning aspects of Ms Sheldon’s evidence relate to the allegations of sexual abuse that were raised and continued to be pressed in the proceedings and Ms Sheldon’s credit generally as a consequence of her actions whilst being cross examined.
The Sexual Abuse Allegations
On or about 28 July 2010 it is suggested, based on material tendered from the Department’s file, that a report was made that:
“…the elder of the two children, [X] had disclosed to her mother that her Father “rubbed his doodle on her front bum and shook his bum in front of her face”. When the child said “front bum” [the caller] asked the child “your fanny?” and the child said “yes” [the caller] asked the child when this happened and the child said “I don’t know” [the caller] asked the child why she didn’t say anything earlier and the child said because she was told not to tell anyone”
The report continues on:
“the caller asks the child the next morning if she remembered what she told her the previous night and the child said no. The child asked the caller to tell her. The caller didn’t say anything because she didn’t want to put words into the child’s’ mouth.
The caller stated that the child has been having a rash on her vagina which has been coming and going for 18 months to 2 years. The caller took the child back to the GP on Friday 30 July 2010. Previous tests have come back negative.
The caller stated that the GP asked the child about home and what is mummy like and the child said “I don’t know” the caller said that the child said “I don’t know” to a lot of things, however the child did tell the GP that she is scared of the Father.
The caller stated that there was a previous sexual incident at Pre School where the child said “rub it there” to another child. The caller didn’t know at the time where the child was getting this from. The caller asked the child where she learnt it from and the child cried and yelled at her.
The caller stated that there was severe DV between her and the father of the child. The Mother left the Father in September 2009. The children have not seen the Father since then. The father made death threats against the mother and the children. The mother and the children are now in hiding and there is an AVO in place for two years whereby the father cannot have any contact with the mother and the children. The father does not know where the mother and the children are. The caller stated that the father is a [member of group omitted]”.
It is worthwhile to note that the report ends with the statement “…the father is a [member of group omitted]”.
Each time this statement is made or recorded it would appear that an inference is drawn that this, of itself, corroborates allegations of violence or is, of itself, something akin to an allegation of violence.
The fact, which is conceded, that Mr Maguire is a [member of group omitted] is not, of itself, relevant. Nor does that fact import or imply any other fact nor corroborate any allegation.
Mr Maguire is clear in his evidence that he was, prior to meeting
Ms Sheldon, a [member of group omitted] and remains one. There is controversy as to how much tension and argument this created in the relationship but nothing else in dispute regarding that membership.
It is not for this Court to dictate to parents how they spend their time, their belief systems or otherwise. As long as their behaviours are not injurious to themselves, their partners or their children the Court need not engage in “moral” judgements as to the appropriateness of membership of motorcycle groups. There is no illegality in Mr Maguire belonging to the group and absent clear, cogent, probative evidence establishing a matter of relevance relating to or arising from such members the mere assertion of the fact will lead to no consequence.
The notification referred to above then also includes:
“there are concerns that [X], 5 years may have been sexually abused by her father as she has disclosed that her father “rubbed his doodle on her front bum and shook his bum in front of his face”. [X] is more vulnerable to harm due to her young age and her dependency on her care givers for her safety and protection. However[X]’s vulnerability is decreased given that her mother is protective and her father does not know their current whereabouts. The likelihood of harm continuing is decreased given that there is an AVO in place stopping the father from having any contact with the mother and children for two years.”
[X] was subsequently interviewed regarding the above and the record of interview also tendered suggests:
“On 28 August 2010 JIRT interview was conducted. During the interview [X] was asked about likes and dislikes about her family and also shown a female body chart. During the course of the interview [X] did not disclose any sexual harm. [X] could not remember the conversation she had had with her Mother around the reported information. No sexual harm confirmed.
When interviewed [X] did disclose information about the domestic violence which she had witnessed and how scared and sad she is about her mother being hurt by her father Mr Maguire. [X] also presented and observed as being highly anxious which is consistent with the domestic violence she has witnessed. There is currently an enforceable AVO which prohibits any contact from the father…
Ms Sheldon was interviewed after [X] and provided CS with copies of text message and Facebook messages where
Mr Maguire has threatened her life and the children’s lives.
Mr Maguire is a member of the [omitted] outlaw motorcycle gang and which police information suggests he is high ranked in the Newcastle Chapter…
[X] has been exposed to her mother’s emotional state.
Ms Sheldon stated that when she hears information she becomes highly anxious and [X] can just tell when things aren’t right and in return this makes [X] highly anxious and upset. This would be consistent with observation by JIRT”
What is consistent with the above entry and all of the police and DOCS entries that have been tendered is that a degree of reaction occurs whenever Ms Sheldon has raised Mr Maguire’s membership of the [omitted] and/or has provided copies of the text messages that are referred to and which are annexed to Ms Sheldon’s initial affidavit. There is no concession by Mr Maguire that he was the author or sender of those messages and I refer to the above comments in relation to same.
Also tendered into evidence are records from the [omitted] Allied Health Centre through which agency both Ms Sheldon and possibly [X] have been receiving counselling. I have referred to the possibility that [X] is receiving counselling through that service as:
a)It is clear from Ms Sheldon’s attendances that [X] is seeing a counsellor
b)The DOCS file confirms that [X] is seeing a counsellor; and
c)No material has been produced in relation to that counselling.
The Independent Children’s Lawyer had, quite appropriately, thought that to subpoena such notes was an invasion of the therapeutic process in which [X] is engaged and that much is accepted as regards the Independent Children’s Lawyers position. However, if it is sought by Ms Sheldon to rely upon the contents or invite the Court to infer the need for or contents of any such counselling notes then a Jones & Dunkell (1959) 101 CLR 298 issue must arise as to the absence of such material.
In notes of counselling appointments between Ms Sheldon and her counsellor on 29 September 2010 the following is recorded as regards the allegations of abuse (this being the day after the JIRT interview):
“ DOCS interviewed [X] re the sexual assault issue – apparently she didn’t talk about that but told the worker about all the bad things her father had done. DOCS concerned and visited
Ms Sheldon and set up an action plan in the event of Mr Maguire turning up. Ms Sheldon has had interview/discussion with sexual assault detective”
Prior to this, however, and on 18 August 2010 there are notes as follows:
“ [X] divulged sexual assault by her father whilst seeing GP. DOCS involved. Ms Sheldon unconvinced that Mr Maguire would have sexually assaulted [X]. She is thinking that it may have been one of his friends. Distressed and confused about this. Still trying to make sense of it. The Court matter in Parramatta is still around but she still doesn’t know what it is about. No documentation has been sent to her solicitor”.
The above represents the totality of the evidence supporting the allegation of sexual abuse.
The evidence with respect to the alleged sexual assault of the child [X] is far from satisfactory. No disclosures are made and no record is available from the DOCS material that is tendered which would suggest any specific basis for the suggestion in the record of interview that “…[X] had discussed violence during the relationship”. There is only the conclusion that this was so.
The majority of the DOCS file is, in fact, made up of pages printed from Mr Maguire’s facebook page and the 27 page transcript of text messages received by Ms Sheldon’s parents. It would appear that on the basis of an acceptance that these messages were all sent by
Mr Maguire (which he denies) a conclusion is made that there is and has been violence and threats by Mr Maguire to Ms Sheldon and her family.
What is apparent from the hand written notes of the record of interview is that when questioned about her father [X] has had the following to say:
“[X]: that’s all I don’t have a dad.
Worker: tell me Dad?
[X]: we don’t live with him anymore, nah
[X]: hurting mum
Worker: You see how he hurt mum?
[X]: Only in my dreams.
Worker: How long since you have seen your dad?
[X]: 20 years…
Worker: Remember (hurting mum)?
[X]: Him pulling her work bag, broken…
Worker: Anything you don’t like about dad?
[X]: Drinking beer.
Worker: How much?
[X]: Heaps –
Worker: Anything he does that you don’t like
[X]: No… I just remember dad pulling mum’s bag.”
That is the extent of [X]’s “disclosure” regarding what is concluded as being “obvious exposure to serious and significant family violence”.
Credit
There were a number of aspects of Ms Sheldon’s evidence that were less than credible.
Material produced with respect to Ms Sheldon’s past health treatment would cause some difficulties with her asserted evidence at hearing.
Ms Sheldon had suggested in her evidence that as a consequence of
Mr Maguire’s behaviour towards her that she has experienced depression and anxiety and had otherwise been functioning normally and healthily on a psychological basis previously.
Records tendered from Dr S (Ms Sheldon’s GP) would suggest that as early as 1999 - 2000 she was consulting with her GP regarding depression/general anxiety/panic disorder.
Ms Sheldon also indicated to her doctor, about the time of [X]’s birth, that she was smoking 30 cones of marijuana per day but had reduced this during her pregnancy to 4 per day. Ms Sheldon has made no mention of such behaviours in her evidence.
The most telling and graphic aspect of Ms Sheldon’s evidence which causes me significant difficulty in accepting her as a credible witness arose from a simple question put to her in cross examination and whilst appearing by video link. On the screen available at the Parramatta Registry (where all parties and legal representatives other than
Ms Sheldon where present) was an image of Ms Sheldon sitting at the Bar Table with a Court Officer sitting in the background. At one point in time Ms Sheldon was asked whether anyone else was in the room with her. She made a theatrical display of looking around before answering “no”.
The question was repeated a number of times and particularly as the Court Officer was clearly looking behind Ms Sheldon (apparently at somebody) and a male voice could be heard. Ms Sheldon continued to theatrically look around, look at her shoulders, look under the table and otherwise and continued to assert “no”.
The bench then enquired of the Court Officer whether any other person was present in the room with the Court Officer and Ms Sheldon and the Court Officer indicated by pointing and saying “this gentleman”. The person identified (being Ms Sheldon’s father) then came forward.
Why Ms Sheldon found it necessary to not only misstate the truth regarding the issue but to make such a theatrical display is difficult to comprehend. Ms Sheldon then sought to recover and suggest “I thought you meant sitting right next to me”. This was clearly never the nature or intent of the question put by counsel.
When further questioned by the Independent Children’s Lawyer regarding this Ms Sheldon conceded, with some frankness, that her credit must be an issue having regard to that behaviour. When asked in the following passage Ms Sheldon replied:
“ICL: It’s difficult to have confidence in what else you are telling us when you have clearly not been prepared to concede your father was present.
Ms Sheldon: I suppose so….
ICL: Is it possible that Mr Maguire didn’t put a bomb in the neighbour’s car?
Ms Sheldon: Yes.
ICL: Is it possible Mr Maguire didn’t write the letters that you received?
Ms Sheldon: Yes.
ICL: What do you think would be the long term impact on the children if they had no relationship with their father or his family?
Ms Sheldon: No impact.
ICL: Do you think they might be missing out on something important?
Ms Sheldon: I can’t make that decision. They haven’t asked me anything about his family…
ICL: Since separation you say that [X] has changed.
Ms Sheldon: She has come out of her shell.
ICL: Perhaps she has changed as you have moved away from her father?
Ms Sheldon: Yes.
ICL: You and Mr Maguire have stopped fighting in front of her.
Ms Sheldon: Could be.
ICL: Her anxiety might be reflective of yours.
Ms Sheldon: They say if you’re stressed they are.”
Having regard to the above deficits in evidence I have some real concerns and particularly having regard to the manner in which
Ms Sheldon has given her evidence. I have real difficulty in accepting Ms Sheldon’s evidence. That is not to suggest that I disregard in their entirety the allegations raised by Ms Sheldon. However, I am satisfied that:
a)[X] has not been exposed to physical violence between her parents beyond that referred to above.
b)There is no unacceptable risk of [X] being sexually abused by her father.
c)There is not sufficient evidence of probative value such as would satisfy me that the children are at risk of physical harm from their father.
The above matters do not, however, conclude the issue as clearly there is the potential for the children to be exposed to psychological or emotional harm having regard to the force with which Ms Sheldon expresses her fear.
Approach to Allegations of Risk and Unacceptable Risk
I have the benefit of the Full Courts decision in Johnson & Paige which sets out concisely and authoritively the appropriate approach towards allegations of unacceptable risk and I refer to and rely upon their Honours determination commencing at paragraph 62 and as follows:
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M & M (1987) FLC 91-830.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M& M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“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.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M & M at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B & B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.
Discussion
In W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M & M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter [2007] FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
The onus of proof in reaching that conclusion is the ordinary civil standard.
But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
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.
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
the nature of the cause of action or defence; and
the nature of the subject‑matter of the proceeding; and
the gravity of the matters alleged.
We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v 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 …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [footnotes omitted]
Although determined prior to the introduction of the Evidence Act the principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)
We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
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.
I note in particular and adopt the seven point summary provided by Justice Fogarty and highlight that portion of the above being:
“...there is however a requirement to ask whether the evidence establishes an unacceptable risk”.
It is by reference to the above authorities that I am satisfied that the findings made by me are appropriate in the circumstances.
Legislative Framework
I am required to commence any consideration of cases involving parenting issues by considering the objects and principles set out in s.60B as follows:
Objects
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.
Principles
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).
Section 60CA then reminds the Court that the children’s best interests are the paramount consideration in all that is done.
I am required to then consider s.61DA and whether the presumption of equal shared parental responsibility applies.
The presumption does not apply when a finding of family violence or abuse is made or, by reference to sub.s(4), the presumption can be rebutted in circumstances where I am satisfied it is not in the children’s best interest that it apply.
I would have some difficulty in being satisfied, based on the concessions made by Mr Maguire, that family violence has not occurred. However, I note that a plea of guilty was entered with respect to a charge of malicious damage although no conviction was recorded. The facts and circumstances relating to that charge are, accordingly, before the Court and as such I am satisfied that a finding has been made by the Local Court seized with dealing with that matter. Accordingly I do not propose to apply the presumption and find that it does not apply.
Lest I am wrong with respect to the above I note that I would be satisfied, by reference to the absence of communication or ability of these parties at present or for any foreseeable time in the future to communicate and resolve difficulties, that the presumption would be rebutted.
The above being the case I am not mandated to consider equal or substantial and significant time before considering any other time arrangement. In any event I note that the parties’ proposals at this point in the proceedings are competing and counter part applications for the children to live with them and to have no time or, at best, limited time with the other parent.
In determining what time arrangement should apply generally for these children as between time with each of their parents and each of them I am required to apply the dual test of what is reasonably practicable as set out in s.65DAA(5) and what is in the children’s best interest as set out in s.60CC. Those two sections providing as follows:
Section 65DAA(5) Reasonable Practicality
In determining for the purposes of sub.ss(1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
a)how far apart the parents live from each other; and
b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)the impact that an arrangement of that kind would have on the child; and
e)such other matters as the court considers relevant.
Section 60CC How a court determines what is in a child’s best interests
Determining child’s best interests:
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
With respect to what is reasonably practicable I note that these parties live, as best as can be ascertained having regard to the sensitivities that have been shown to not requiring Ms Sheldon to disclose her specific whereabouts or address, some 7 – 8 hours apart. On that basis I am satisfied that even if considered an equal or substantial and significant time arrangement could not apply as it would not, by that consideration alone, be reasonably practicable.
The parent’s current and future capacity to implement an arrangement particularly over that distance and noting that [X] is at school and that [Y] will commence school in all probability in 2012 is minimal to non-existent.
The parents’ current capacity to communicate with each other and resolve difficulties, as demonstrated since their separation, is also non existent.
I am also satisfied that the impact a movement towards either a substantial or equal time arrangement with their father or a change of their primary place of residence at this time would be undesirable and noting that the children have been estranged from their father, through no fault of his nor theirs and through no lack of effort on his part, for a period of nearly 2 years.
I am also comforted to some extent by the concession made by
Mr Maguire during cross examination and when asked specifically by the Independent Children’s Lawyer what he wanted and what he sought that Mr Maguire indicated that he would be content with whatever was ordered. Indeed Mr Maguire had indicated when specifically asked if no risk were established what orders he would seek “not sure how it goes, I’d be happy with anything”.
There is some force to submissions put on Mr Maguire’s part that if adverse findings of credit as regards Ms Sheldon are made, as would clearly appear open to me, that a finding might be made by reference to authorities such as Re David (1997) FLC 92-776 that Ms Sheldon is incapable or unwilling of supporting the children’s relationship with their father and that an immediate change in their living arrangement should occur.
I am not satisfied, with all respect to Counsel for their valid and appropriate submission, that such action would be warranted or in the children’s best interests at this time particularly having regard to the above.
By reference to the various provisions of s.60CC I note that I am required to commence by considering the primary considerations of:
a)the benefit to the children of having a meaningful relationship with both their parents [emphasis added]; and
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to neglect, abuse or family violence.
The children at this point clearly have a meaningful relationship with their Mother, although it is conceded by Ms Sheldon (at least in her discussion with Departmental Officers) that her anxiety and reactions impact upon and create stress and anxiety for [X]. That is undesirable but can be addressed in the future.
The children’s relationship with their Father is more fraught with difficulty. It is suggested in Ms Sheldon’s case (although I do not accept it) that Mr Maguire had “nothing” to do with the children and “never” had care of them by himself prior to separation. Since separation he has not had time with the children and that is now a period of nearly 2 years.
Mr Maguire, fairly, concedes that he worked long hours during the relationship and that Ms Sheldon was the primary carer prior to separation. He also indicates in his evidence, which I accept, that he was involved with the children to the extent that he could be outside of his hours of work and particularly in the later parts of the relationship was engaged with the children on a daily basis.
The children’s relationship with their father must, of necessity and particularly having regard to their ages and noting that at the time of separation these children were in fact 5 and 2 years of age respectively, have been damaged by the period that has passed since separation. The relationship will need to rebuild slowly and with small steps that will accommodate the children’s needs and relative estrangement from their father who must have become estranged to them over a 2 year period.
I am satisfied, as would be apparent from the above, that the children are not likely to be exposed to an unacceptable risk of physical harm from their father. Psychological harm would follow at the hands of either parent in the event that they enmeshed or seek to enmesh (actively or indirectly) these children further in the dynamic of their adult dispute.
In turning to the additional considerations I note the following:
Views
There is no clear evidence as to the children’s views. It is suggested that [X] is fearful of her father and has expressed reluctance to see him. However beyond the mere assertion there is no evidence in support of that allegation. The evidence is entirely silent as to [Y]’s views.
The nature of the relationship with each of the children’s parents and other persons including grandparents
As indicated above the children’s relationship with their Father must have been damaged and diminished by the passage of time since separation. However, there is nothing to suggest, from the only evidence that is realistically available being the handwritten record of interview in relation to [X], that the relationship or memory of it, at least as regards [X], is extinguished.
The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship
I am reluctant to be too critical of Ms Sheldon in this regard and noting that it is possible that she holds a genuine fear for her safety and/or the children’s. However, the evidence that is available to this Court, and it is upon the evidence that I must act, would not support such fear as reasonable in all of the circumstances. Notwithstanding this I am satisfied, particularly based upon answers given by Ms Sheldon in response to questions put by the Independent Children’s Lawyer, that Ms Sheldon will comply with orders made by the Court and take some active steps to ensure compliance.
Mr Maguire’s attitude could be criticised on the basis that he has sought a change of the children’s primary place of residence without any suggestion of risk or concern. However, the submissions that are put by his Counsel, by reference to Re David are not without merit or foundation even if they do not find favour in their execution at this time.
The likely affect of change
I am satisfied that there would be a positive benefit to these children of establishing a relationship with their father and paternal family albeit slowly and gradually.
Practical difficulty and expense
This is a manifest consideration in this case.
The orders that I propose to make will impose a burden of travel upon the adults and seek to minimise the burden of travel upon these children as far as is possible. However, given the distance that these parties live apart changeover arrangements that will see the children travelling substantially are unavoidable.
To seek to limit the children’s exposure to this travel (Mr Maguire being an [omitted] by profession and, accordingly, having a far greater tolerance) the orders will see Mr Maguire undertaking more than an equal share of travel. Similarly, arrangements will start with slow progress and, accordingly, time would not immediately require the children travelling to spend time in their former home with their father. However, arrangements will build to this as quickly as practicable.
Capacity of each parent to meet the children’s needs including emotional and intellectual needs
I have some concern that Ms Sheldon has (and without accepting the version of events given by Mr Maguire relating to circumstances leading to separation), created a fabric of concern around her which has heightened her own anxieties, those of others and which have inappropriately excluded Mr Maguire from these children’s lives for a period of two years.
That being said I am satisfied that Ms Sheldon is capable of meeting the children’s physical, emotional and intellectual needs and that absent the criticisms of Mr Maguire in terms of overt aggression and irritability that he is equally capable.
Maturity, sex, lifestyle and background
These children are of tender years and accordingly need not be exposed and should not be exposed in future to events that would create anxiety for them.
I am satisfied that other than the situational family violence (which would appear to involve both parties) in the months leading up to and until their eventual separation in September 2009 the children where not being exposed to any substantial or significant behaviour that would give them any valid basis for fear or concern. That does not, however, ameliorate the children’s enmeshment in their mother’s anxiety.
It is not suggested that these children are of an Aboriginal or Torres Strait Islander background.
The attitude to the child and the responsibilities of parenthood are demonstrated by each parent.
Each of these parents is highly critical of the other for the attitude they have demonstrated leading up to and following separation.
With a view to focussing on the future I am satisfied that both parents are capable of moving forward. They will need to do so, however, by focusing upon their children’s needs, their children’s fragility and vulnerability and the need to protect them and insulate them from the dynamic of their conflict which would appear, at times, to involve extended family.
Family violence involving the child or member of the child’s family
Other than the comments made above I do not propose to speak further to this issue.
Family violence orders that apply with respect to the child or a member of the child’s family
There are final enforceable Apprehended Domestic Violence Orders in force as between both Mr Maguire and Ms Sheldon and Mr Maguire and Ms Sheldon’s parents. Those orders expire in the foreseeable future.
To the extent that it may be considered necessary I am satisfied that the orders I am about to make and to the extent that they might be seen as being inconsistent with a domestic violence order are appropriate and I so declare pursuant to s.68R.
Whether it would be preferable to make the order that would least likely lead to the institution of future proceedings
I am satisfied that within the context of this case the best that I can do is to put a framework in place that will minimise interaction between the parties, the need for them to co operate and communicate (as will, to some extent, be achieved through an order for sole parental responsibility) and which will enable these children to begin the slow task of rebuilding a relationship with their father.
Section 117AB
Before pronouncing substantive parenting orders I do wish to touch briefly upon s.117AB and its relevance to these proceedings.
No application for costs has been made in these proceedings to date. These observations are intended neither to prompt or dissuade any such application. Nor are these observations intended to interfere with the right of counsel for each party and, indeed, the Independent Children’s Lawyer, to be heard with respect to any application as may subsequently be made for an order for costs pursuant to s.117 of the Act.
Section 117AB relates specifically to a consideration of costs arising from false allegations or statements and is in the following terms:
Costs where false allegation or statement made
(1) This section applies if:
(a) proceedings under this Act are brought before a court; and
(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.
(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.
The section as it is worded is not confined to allegations relating to abuse or family violence but to any false allegation or statement. Thus, the section relates to both the advancement of an allegation regarding another person as well as a statement which may relate directly or even solely to the deponent. Both accusation and assertion are thus included.
Subsection (2) of s.117AB could also be suggested to require that the Court, as it were, of the Court’s own initiative, consider the awarding of costs. In that regard and if such an interpretation were urged a serious issue as to due process would arise with the Court then being put in the position of both applicant or prosecutor and adjudicator.
If one were to interpret s.117AB as requiring the Court to mandatorily consider making an order for costs immediately upon a finding being made as to a false statement or allegation then the 2 most fundamental principles of natural justice would be offended namely audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case).
In 1297 through the Magna Carta the inherent bases of our present legal process were established and particularly as enshrined in clause 39 (renumbered 29 in subsequent, amended versions) of that great and ancient document:
“No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.”
By 1354 the Magna Carta had again been amended and such that the now familiar phrase “due process” was first used in the phrase:
"No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."
I would have thought that the preferable interpretation of the mandate contained within s.117AB would be:
a)The Court’s consideration of costs must be prompted by an application by a party or the Independent Children’s Lawyer;
b)If such an application were made then the Court would hear and determine that application in accordance with s.117 (and Justice O’Ryan, sitting as the Full Court of the Family Court in an Appeal from a Federal Magistrate, has provided a concise and excellent summary of the general principles relevant with respect to costs in Casley & Casley (costs) [2010] FamCAFC 189 and commencing at paragraph 12 thereof);
c)In addition to the matters set out in s.117(2A) the Court would additionally consider s.117AB and would best address that provision as providing a further mandatory consideration.
I would also make clear that I have, in only instance, made a finding that Ms Sheldon has made a false statement and that relates to the issues addressed above regarding her fervent denial that any other person was in the room with her during her evidence. That was a matter of importance to findings of credit but not substantive to allegations or statements relating to the children and their best interests. On that basis it would be difficult to see that false statement as the basis for establishing the fundamental step, required by s.117(2), of a “justifying circumstance”.
In Re JJT; ex parte Victoria Legal Aid [1998] HCA 44 the High Court had discussed the general costs principle raised in s.117 as follows:
“… section 117(2) of the Act [Family Law Act] referred to costs in the conventional sense and thus the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: See Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey [1990] HCA 59; Ruddick & Ors v Vadarlis & Ors (2001) 188A LR 143 and B & J [2006] FamCA 256” (emphasis added).
It may well be that s.117AB has some impact upon the above propositions but for my mind I would feel not unless and until the false statement the subject of any deliberation might be seen as fundamental to the Court’s considerations and thus directly impacting upon costs incurred (such as by the false statement having rendered the proceedings necessary, creating complexity in the proceedings, etc).
I am given some comfort in the above interpretation by reference to the explanatory memorandum to the 2006 Bill which introduced s.117AB:
Item 40 Subsection 117(1)
225. Item 40 amends subsection 117(1) which states the general principle is that each party to proceedings under the Act must bear his/her own costs. This general principle is subject to the provisions set out in sub-section 117(2) and section 118.
The amendment is a consequential amendment which provides that this general principle is also subject to new provision section 117AB.
Item 41 After section 117AA
226. Item 41 inserts a new provision section 117AB after section 117 which is the section that deals with costs. The new provision provides that a court must order a party to pay some or all of the costs of another party, or other parties to the proceedings, where the court is satisfied that that party has knowingly made a false allegation in the proceedings. This provision implements recommendation 10 of the LACA Report. It attempts to address concerns that have been expressed, in particular that allegations of family violence and abuse can be easily made and may be taken into account in family law proceedings. The provision is broader than family violence or abuse allegations and would apply to any false statement knowingly made.
227. The LACA Report noted that this approach avoids the need for separate criminal proceedings for perjury which may not be appropriate given that parents need to maintain an ongoing parenting relationship. Perjury can also be difficult to establish given it is a criminal process. The provision ensures a message to the courts that a penalty should be imposed at the same time as the court determination rather than relying on the possibility of protracted criminal proceedings at a later date. The penalty does not prevent criminal prosecution in appropriate cases. The court must be satisfied on the balance of the probabilities that a party has knowingly made a false
It would also be important in the context of the finding I have made as to Ms Sheldon having made a false statement on one occasion to consider the nature and meaning of a “false allegation or statement”.
The Concise Macquarie Dictionary provides the following description:
“False: 1. Not true or correct; erroneous;…4. used to deceive or mislead; 5. not genuine”
I must observe, lest it is not already apparent from the above discussion of Ms Sheldon’s evidence, that the allegations raised by Ms Sheldon regarding abuse and family violence have not been found by me to be false. I am not at all satisfied that the allegations are not true, not genuine or, importantly, were raised by Ms Sheldon to deceive or mislead this Court. I need not be concerned with whether that intent was present when allegations were raised by Ms Sheldon with other individuals or bodies.
I have been struck by the absence of evidence presented by
Ms Sheldon in support of her allegations and by the absence of cogent, probative evidence to address and support such significant allegations. When material has been produced, (such as the transcribed text messages) there has been little if anything beyond conjecture and supposition to ascribe authorship to Mr Maguire.
The above, however, does not establish Ms Sheldon’s allegations as false. They are simply unsupported and unproven which is an entirely separate matter. Circumstances surrounding such allegations and the evidence led or not led to support them may still be relevant to considerations of s.117 but would not appear, subject to further submission should the need arise in addressing any application as may be made, to support the relevant finding as would be required to invoke s.117AB.
Conclusion
For all of the above reasons I am not satisfied that there is an unacceptable risk to these children by or through having a relationship with their father nor an unacceptable risk that either the children or
Ms Sheldon will be exposed to family violence or abuse.
I certify that the preceding one hundred and eighty-seven (187) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 7 September 2011
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