Marvel & Marvel - [2010] FamCA 240

FAMILY COURT OF AUSTRALIA

MARVEL & MARVEL

[2010] FamCA 240

FAMILY LAW – REVIEW – of Registrar’s orders – Children

APPLICANT:

Ms Marvel

RESPONDENT:

Mr Marvel

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

2815

2009

DATE DELIVERED:

12 March 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cohen J

HEARING DATE:

12 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Coulton

SOLICITOR FOR THE APPLICANT:

VIZZONE RUGGERO & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

Mr Corish

SOLICITOR FOR THE RESPONDENT:

STAUNTON & THOMPSON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Soliman, Legal Aid NSW

Orders

That from Saturday 13 March 2010 the child U MARVEL shall spend time with the father on each alternate weekend from 9am on Saturday to 5pm on Sunday.
That for the purpose of contact the father shall collect the child from mother’s place of residence at 9am Saturday and the mother shall collect the child from the father’s place of residence at 5pm Sunday.

IT IS NOTED that publication of this judgment under the pseudonym Marvel & Marvel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2815 of 2009

MS MARVEL

Applicant

And

MR MARVEL

Respondent

REASONS FOR JUDGMENT

These proceedings are an appeal by way of review or re-hearing by the wife from a particular aspect of orders made by Loughnan JR on 2 December 2009. On that occasion he ordered that one of the parties’ children, U, who was born in January 1999 and is therefore just 11 years of age, live with the respondent, that is, the father, from 9.30 am till 1.30 pm each Sunday and at any other times as agreed between the parties.
The mother’s case is that there is unacceptable risk of sexual or psychological harm to U inherent in those orders and that therefore I should only permit U to have contact with the father between 9.30 am and 1.30 pm on three Sundays out of four and that that contact be supervised.
The supervisors that the mother puts forward are the maternal grandmother, who is the wife’s mother who can only supervise on one of those Sundays out of the three each month and Ms S. Ms S is the mother’s housemate. There is nothing before me to indicate that either of these people will consent to undertake the supervision despite the fact that Ms S’s affidavit is before me and there is nothing before me to indicate that I could trust both of those suggested supervisors to be responsible and to act appropriately in that supervision.
When I pointed out the problems with supervision to counsel for the mother originally, the person put forward by the mother to supervise U’s contact with the father was the parties’ oldest daughter, a 19 year old university student who lives with the father and who has provided an affidavit which strongly supports the father. But there is no suggestion in it that she would consent to be the supervisor and I could not satisfy myself that if there was a need for supervision she understands the obligations of a supervisor and therefore would carry out the supervision with appropriate conscientiousness.
The father asks that there be no supervision. He would prefer overnight contact each alternate weekend. U is a child who has always had difficulties. She is, in her speech and understanding of language, what is called developmentally delayed. She is not of high intelligence but her intellect is not such that she is incapable of attending a school for children who are not disabled. In fact, she does not qualify to go to a school for disabled children although she has some level of backwardness in certain areas. It is not, in my view of the evidence which is unchallenged, true to say that she is intellectually backward although she may not be a child in the higher percentiles intellectually within the population of children of her age. There is also nothing to say, although she has some behaviour which would be regarded as more childish than her calendar age, that she is unable to protect and care for herself at a level appropriate for a little girl of 11.
The case largely consists of complaints by the wife about the parties’ life together. There is a multitude of complaints which are not particularised or supported by reference to any particular incident. Alternatively, there are complaints about particular incidents which cannot be said to be the result of one party or the other’s fault.
The reality is that the parties have had a poor relationship for many, many years and had a somewhat tumultuous and unstructured household. At times some of the parties’ other children have been engaged in less than perfect behaviour but that behaviour appears to me, on an overview of all of the evidence, to be the result of the parties’ relationship problems rather than any essential disabilities or problems with the children themselves. There is nothing in the evidence that could point to any deficit in the father’s parenting which would be more likely to be the cause of the children’s behaviour than any deficit in the mother’s parenting.
Actually, the mother has six children, the oldest of whom was born when she was very young and lives independently and, it may be, successfully. The other five children are a daughter who is aged about 19 and who attends university. She lives with the husband. Then there are twins, L and H. They were born in mid-1994 so they are approximately 15 years old. H lives with the father, L lives with the mother. The parties’ youngest son is D. He lives with the father. He is about to turn 14.
The oldest of the parties’ children has taken the unusual step of insisting on swearing an affidavit in these proceedings. Her name is A. The affidavit was sworn on 10 March this year and in it she says that she was properly advised by the father’s solicitor that she should not swear the affidavit because it would generally be frowned upon by the Court, but, secondly, would have the potential to cause problems within the family. Her affidavit is really quite simple. It is to the effect that, in her view and in her experience, nothing has ever happened to any of the children, including U, to indicate that U might be at risk if she spends time unsupervised with the father. She says that, to the extent that U cannot care for herself, the father can care for her but that, in any event, U can to a very large degree look after herself.
The mother’s claims, to quite a substantial extent, suggest that the father needs to be supervised in looking after U because there have been problems with the other children or that the other children treated U badly recently. These are not reasons to allow the father contact with U only if it is supervised.
The mother has chosen not to seek residence of the children who live with the father, yet she criticises the father’s care of them. In relation to L, the father claims that L originally was allowed by the mother to live with him too but that L changed her mind and has gone to the mother. The father now says that L wants to come back to him.
It seems that the only child that the mother was concerned about sufficiently, in view of her complaints about the father, to care for herself, is U. U went with the mother when the mother left the father or left the household, I should say, in late 2009. The parties have probably been separated under the one roof for a considerable time.
The only specific matter that the mother raises about the risk the father poses to U relates to an incident when, the mother says, U was asleep in the parties’ bedroom some years ago. It may have been that U was actually sleeping in the parties’ bed, but that the father was there and while lying close to U and, the mother says, facing U, he masturbated and the mother saw this.
There is a problem with what the mother says and it is that she did complain about this to the police in the course of seeking an AVO against the father. The complaint was made on 11 August 2004. In that complaint the mother said, and I am quoting from the words of the complaint which are these:
The victim has raised concerns about the five year old child who suffers from autism and intellectual disabilities. She claims that some time in 2004 she found the person of interest lying on his bed with the five year old beside him asleep. The person of interest was seen by the victim to be masturbating. The person of interest stopped when confronted by the victim. The person of interest was seen on another occasion to be showering with the five year old which was a common practice. When he emerged from the shower the victim noticed that he had an erect penis. The victim confronted the person of interest over this to which he claimed nothing had happened and that he did not have an erection.
I will leave out a part.
There is no evidence to suggest that the five year old has had any indecent assault upon her at this stage.
There is a problem, however, with the mother’s complaint, apart from the fact that the child was asleep at the time and that it could not be, if what she said was true, that the child was in any way harmed by what the husband did, even though it may not be regarded by onlookers as being in good taste. After all, the child is said by the mother to have been asleep at the time. It is that the mother’s affidavits which have been put before me refer somewhat derivatively to the incident when she saw the father masturbating in bed. The affidavits indicate that the incident occurred when U was three years old in 2002, so her current allegations can be seen to be somewhat undermined by their inaccuracy. It is also of interest that there is nothing in anything that I have been asked to read to suggest the incident in the shower occurred other than the police report which was not even mentioned in address to me. It is noteworthy that when the wife sought the AVO that was being sought when she made these allegations, all of the other allegations that she made were of much the character as those I have described as emerging from her present affidavits. They assert undefined dissatisfaction and complaint without any incidents being described which back them.
The father says that something like the incident occurred some years back. He, too, says that U was asleep but that he was not masturbating but only made a lewd gesture to the wife in order to irritate her or something of that nature. He points out that, at the time, both he and his wife engaged in sexualised conduct while the children were in the house, in their presence and even in their bedroom asleep and that what he did could not be regarded as exceptional in view of what the wife was doing on other occasions. He points out that she masturbated herself in the bedroom while the children were there.
In all the circumstances of this case, it seems to me that the only part of the Family Law Act, the consideration of which could made a difference, is section 60CC(2). The primary considerations in determining what is in the best interests of the child, and here I must do what is in U’s best interests, is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and the benefit to the child of having a meaningful relationship with both parents.
It must be recognised that in the tumultuous household that the father is probably still in, there will be behaviour from the children that might be regarded as unsuitable or upsetting to U. But the type of behaviour that the wife has referred to in her affidavit, if it is as bad as she says, would not be likely to cause U either physical or psychological harm. There is also the prospect that the children will fight but I do not regard that as within the meaning of family violence.
In any event, it is not suggested that the father should not have contact with U in the family home where he lives with the children. All that is suggested is that that contact be supervised and, the way the case was put before me, the real reason for that supervision is to protect U from the prospect of sexual abuse. In my view, there is a minimal prospect that if U is allowed to have unsupervised and even overnight contact with the father in the father’s family home, that she will be subjected to sexual abuse. I am certainly not satisfied that she will be exposed to an unacceptable risk of sexual abuse.
In those circumstances, one must consider what orders should be made. The current orders that exist are just for a few hours each Sunday whereas the father would have that expanded to overnight contact every alternate weekend. Now, to me, contact as ordered by the Judicial Registrar seems more like U visiting her father. Overnight contact is more like staying with him, something which must be more meaningful than merely visiting.
I can see nothing in the evidence to suggest that U should not have a meaningful relationship with her father. In those circumstances, overnight contact which would provide a more meaningful relationship, is, in my mind, more appropriate although there may well not be much more physical contact as a result or waking contact as a result than there would be by visiting each weekend.
Of the matters that I have to consider under section 60CC(3), the matters which must be considered but do not have as much weight, there is no evidence about the views that U expresses in relation to whether or not supervision should be part of the contact formula or whether or not it should be each Sunday for a number of hours or overnight.
There is nothing to suggest that U does not have a good relationship with her father, in fact, the affidavit of the father’s oldest child, A, suggests that she does. Overnight contact will not harm her relationship with the mother. There is nothing in the evidence to suggest that the father has ever tried to undermine her relationship with the mother.
There is a suggestion in the father’s evidence that the mother is less willing than she should be to facilitate and encourage a close and continuing relationship between U and the father. The father claims to have a tape‑recording of the mother making statements which indicate that she has some level of imbalance in her attitude to U and is either over-protective of her or punitive of the father in trying to keep U away from the father.
There is little likely real effect on U by any change in the contact situation other than that it will give U the opportunity to form a better relationship with her father and allow her to spend more time, and more normal time, with her sister and other brothers and possibly with L, if L does decide to live with the father rather than the mother, as the father suggests she wishes to.
There is no practical problem relating to any change in the contact orders and I am not satisfied that the father has any less ability than the mother to provide for U’s needs, intellectual, emotional or otherwise as they might need to be provided for by the type of contact that is contemplated by the father. The situation is that U is not the most able child but she is not, on the evidence before me, incapable of doing most things for herself. She is in the throes of changing from a child to a woman but that does not mean that she should not stay overnight with the father, despite her defective abilities. Certainly, her 19 year old sister seems to be of the view that there is no problem created by overnight stays. The mother seems to be clutching at straws in relation to her complaints about that.
The attitude to the child and the responsibilities of parenthood demonstrated by the parties seems to me to be of importance. As I have said, the mother seems to be overly protective or needing to have the care of U and to exclude the father. In attempting to exclude the father, she seems to justify herself by the poor behaviour of the other children, behaviour she must be equally responsible for as she has been living in the household until very recently. But she seems to have this predilection for blaming the father for everything and not accepting her own role in any problems the children have.
The same problem does not emerge from the father’s affidavit material. It seems to me that, when it comes to responsibilities, the father has demonstrated on the evidence before me, a greater level of parental responsibility. That in itself seems to be demonstrated by the fact that the majority of the children are living with him.
There has been what might be described as low level violence amongst the children in the family. Some of the children have used bad language against one another and against the mother and there have been one or two incidents involving a knife and L, but I think that largely these can be seen as not disturbances in the children at this stage, but more as the reactions of the children to the dysfunctional relationship between the parties while they were living in the same household. If anything, this situation is likely to be improved by the fact that the wife has now left the household and is living with a female friend and U, as well as L, although she may not continue to live with L for long.
The issue of whether it would be preferable to make orders which are least likely to lead to the institution of further proceedings in interim proceedings is somewhat ridiculous. It needs no more consideration than that, although I always make orders that, hopefully, will end the proceedings, I do not expect to be successful in this instance.
The only other factor or circumstance which I think is relevant at this stage is this; that in a few months a single expert will see and report on the members of the family and, in particular, the needs of the children, and make recommendations about their residence and any other matter relating to their welfare. One might expect the Court to be in a much better position to make orders, even if interim orders, after that report is obtained but that does not allow the Court in this instance to absolve itself of responsibility until that report is obtained.
I have to make orders on the basis of the respective allegations of the parties without being able to have them tested and without being able to make any real findings of fact unless those findings are about issues which are not contested.
I am of the view that, in all of the circumstances, the most appropriate order to protect U, including protect her from psychological harm, is to allow her to see her father every second weekend from 9 o'clock on Saturday morning until 5 o'clock on Sunday afternoon and that is the order I shall make.
I reject the claim that there is a need to supervise that contact. I might add that, in the circumstances where I could not make a supervised contact order because there is not one person put forward by the parties as an appropriate supervisor that would be acceptable to the Court, it would be far more beneficial to U to see her father than not see him at all, so the inability to make a supervision order should not result in no contact, particularly as U, according to the mother, is vulnerable because of her level of disability.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:

Date: 25 March 2010