McCarthy and Kaminski and Anor

[2012] FamCA 381

FAMILY COURT OF AUSTRALIA

MCCARTHY & KAMINSKI AND ANOR [2012] FamCA 381

FAMILY LAW - CHILD ABUSE - Supervised contact - Where evidence sufficient to remove requirement for supervised contact until judgment delivery

Family Law Act 1975 (Cth)

M v M (1988) 166 CLR 69

APPLICANT: Mr McCarthy

RESPONDENT: Ms E Kaminski

INTERVENOR: Dr D Kaminski

INDEPENDENT CHILDREN’S LAWYER: Ms Franklin-Bell

FILE NUMBER: SYC 6500 of 2010

DATE DELIVERED: 10 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Kent J

HEARING DATE: 6-10 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Finch

SOLICITOR FOR THE APPLICANT: DC Legal Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Carr

SOLICITOR FOR THE RESPONDENT: Batey's Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lawson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Franklin Bell Family Lawyers

Orders

1. Orders 3 and 4 of the Orders of 30 November 2011 be vacated.

2. The application for final Orders filed by the Father be adjourned to 9.00 am on 15 March 2012 in Sydney before the Honourable Justice Kent for oral submissions.

3. The written submissions of the Independent Children’s Lawyer be filed and served by 4.00 pm on 24 February 2012.

4. The written submissions of the Mother, the Father and the maternal grandmother be filed and served by 4.00 pm 2 March 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McCarthy & Kaminski and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6500 of 2010

Mr McCarthy

Applicant

And

Ms E Kaminski

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. At the conclusion of the five days of evidence I have heard in this case, and I should interpolate that those five days included some days spent between 9.00 am and 5.00 pm and thus in the normal course this would have been longer than a five day trial in terms of the evidence heard, there is an Application for interim Orders on behalf of the Independent Children’s Lawyer in respect of the children who have been the subject of this trial, namely B, who was born in January 2008 and is thus presently aged three years eight months, and fraternal twins Z and C born in May 2010 and who are thus currently aged twenty months.

2. This case is a so-called “Magellan” case, being those cases characterised by that name where there are allegations of abuse of the children or at least allegations suggesting that the children are at risk of physical or sexual abuse. Indeed, the trial proceeded on that basis by reference to a couple of considerations. Firstly, there was a body of evidence to suggest that the Father’s propensity to anger might place the children at risk, but more fundamentally that evidence of inappropriate touching of B might present a risk to her if the Father had unsupervised time with her.

3. I intend to deal at length with the allegations of sexual abuse and my determinations in respect of those allegations in the reasons for judgment I will deliver after the parties have had an opportunity to make both written submissions and oral submissions to me in about one month’s time, and I intend to make arrangements shortly for that purpose. The question is whether, on an interim basis and for the next month or so, I should accede to an application made by the Independent Children’s Lawyer for several provisions or conditions in the operative Order currently of 30 November 2011 to be modified as to the requirements for the children’s time with the Father to be supervised and also whether there ought be an adult present.

4. The Independent Children’s Lawyer also seeks a further Order that there be a positive restraint on the children coming into contact with one of the parties, the maternal grandmother, Dr D Kaminski. In respect of the interim application referred to, both the Father and the Mother agree that interim Orders in those terms ought now be made. The maternal grandmother opposes the making of those Orders in respect of supervision being dispensed with and indeed she seeks Orders, on an interim basis to commence forthwith, that there be Orders for the children to spend time with her.

5. Whilst I have said I will deal with the allegations of sexual abuse in detail in my final reasons, I should note that there are essentially three fundamental sources of the evidence giving rise to that aspect of the case occupying such a significant time in the trial. Firstly, from the maternal grandmother it is said that on an occasion in June 2010, she observed the Father removing his hand from the nappy of B at a time when B was lying on a beanbag on the Father’s lap in his office. There are varying versions from the maternal grandmother as to precisely what occurred. On some versions, it is suggested that the hand was in a static position and then removed upon the maternal grandmother observing the Father; on other versions, it is suggested that the Father appeared to be “caught” or something to that effect in the observation that the maternal grandmother made of him. On the maternal grandmother’s version, it is suggested that when challenged about the behaviour, the Father said that he was checking B’s nappy for wetness.

6. There are necessarily some doubts about the reliability of that version for a number of reasons which will be dealt with in the final judgment. However, for the sake of the present discussion, assuming that what the maternal grandmother observed is accurate, given the imperatives directed by the High Court’s decision in M v M (1988) 166 CLR 69 in terms of this Court’s treatment of such allegations, this is not a criminal trial designed to determine the guilt or innocence of the person accused of the conduct. What ultimately the High Court commends is an approach of determining whether, on the balance of probabilities, a Court can be satisfied whether or not a child is at an unacceptable risk of abuse.

7. It seems to me that, taking that evidence of the maternal grandmother, I could not be satisfied that B is at any unacceptable risk of abuse. What was observed by the maternal grandmother is entirely consistent with innocent conduct on the part of the Father. One of the curious features of this case in terms of the allegations is that each and every one of them arise, for example this one, in circumstances where the Father must have known of the nearby presence of another adult, and in this instance, the maternal grandmother. There were ample opportunities, if the Father was determined to conceal sinister conduct by him with respect to B, to perpetrate that conduct when there would be no risk of detection. It seems to me inherently improbable that the Father would choose an opportunity when anyone might be passing by as between the maternal grandmother and the Mother, to perpetrate such a despicable act as inferred by the maternal grandmother.

8. So far as the other two sources of evidence are concerned, namely Ms V Kaminski and Mr M Kaminski, both of them speak of episodes of alleged abuse when they were actually physically present. In particular with respect to Mr M Kaminski, he refers to three incidents where he was concerned as to what he saw as inappropriate touching of B. Again, on those bodies of evidence, putting them at their highest, I have difficulty in seeing how it could reasonably be determined that reliance on that evidence would result in the conclusion that B was at an unacceptable risk of abuse.

9. To my mind, there can be no doubt in this case that B’s mother dearly loves her. There can be no doubt in this case, that B’s mother is concerned for her safety and would never put that safety at any risk. It seems to me in those circumstances the Court can place some reliance upon the feature that the Mother herself now does not pursue assertions or allegations of abuse or at least pursue a finding by this Court that B would be at an unacceptable risk of abuse while in the Father’s unsupervised care.

10. As already noted, the Mother supports the interim Orders that are contended for.

11. That is but a summary, in very brief terms, of the greater detail I intend to have contained in the reasons for judgment I ultimately deliver with the benefit of further submissions by the parties. I should record, in case it be suggested that there is any element of prejudgment, that it seems to me that this is a case, given the dynamics that I have briefly referred to, and having heard all of the evidence at this point, that I should note that submissions are not evidence of themselves. I have all the evidence. That will not change. It does not mean that I will not give the parties an opportunity to be heard, and indeed that is my intention in making provision for written submissions as well as oral submissions, but I am comfortably satisfied, having heard all the evidence and having now had the position of the Father and the Mother at least in terms of the interim Orders, stated that it is in B’s best interests that Orders as contended for by the Father and the Mother be made.

12. In reaching the conclusion about the interim Orders, I have had in mind the considerations expressed in s 60CC of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The primary considerations include the benefit to the child of having a meaningful relationship with both of the child’s parents, and importantly in the context of what has just been discussed, the need to protect children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.

13. It seems to me that in circumstances where the impediments of supervision can and ought be removed at the earliest opportunity in the best interest of children, that should be done, and I recognise this as such a case. I am satisfied, in the circumstances briefly described, that the relief from supervision does not offend the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

14. I have had regard to each of the additional considerations in s 60CC(3) of the Act. Plainly B is not of an age to have views to which weight can be attached in the circumstances, and the same follows for the twenty month old twins. Nevertheless, the evidence before me satisfies me that there is an attachment between the children and their father, and that is a factor I take into account.

15. The nature of the relationship of the children with each of the children’s parents; again, it seems to me that that is clearly established, and the provision also requires me to consider the relationships between the children and other persons, including grandparents. In that respect, the maternal grandmother’s approach in terms of currently seeking interim Orders is a matter I will deal with in detail in my final determination. However, I am not prepared on an interim basis to make Orders that immediately the children should be seeing the maternal grandmother given that I must at least consider the evidence of the single expert, Dr W heard today, as to the potential for there to be some harm to the children depending upon how the maternal grandmother might act given the opportunity for the children to spend unsupervised time with her.

16. Again, I will return to that matter, in terms of my assessment in final form of the case. It should not be said that this means that I will necessarily conclude the same way on final Orders, but I am not persuaded on an interim basis that I ought be making Orders prior to a final judgment to be delivered in about a month’s time on that issue, given the evidence that has fallen, particularly from Dr W, but also given the feature that both parents are obviously opposed to Orders being made in that form at this point. They are the parents of the children, and obviously parents are in a slightly different position to grandparents, even under s 60CC of the Act. In a decision I published not so long ago in the matter of Henderson & Chopke [2011] FamCA 631, by reference to decided authority, I referred to the differences between the application of the relevant s 60CC considerations to parents vis-à-vis grandparents, and I rely upon what is set out in that judgment for my considerations in this respect.

17. At this stage, I do not propose to make a positive injunction with respect to the children and the maternal grandmother for similar reasons that I have just expressed. It seems to me that the Mother, in whose primary care the children will remain pending the final determination, has already acted to ensure that the children will not be in the maternal grandmother’s care, and nothing in my current reasons for this interim determination should be interpreted as a licence for the maternal grandmother that the Court thinks it is warranted that she attempt to spend time with the children against the wishes of either parent. Indeed, if that were to occur, that may well be a matter of further evidence before the Court on the resumed occasion when final submissions are heard, so I would hope that these comments would mean that the maternal grandmother will at least be patient enough to wait for my final reasons and determination, and will not in the interim try to have contact with the children contrary to the wishes of their parents.

18. It seems to me that so far as the effect of any changes to the children’s circumstances in respect of these Orders, there can only be a positive effect in terms of enhancing the prospects of the relationship between the Father and the children, and at least in circumstances where, whatever be the final Orders so far as care is concerned, the Father can at least commence to have the experience of having time with his children on what may be termed a more normalised basis.

19. In those circumstances, and I repeat I will revisit these topics in my final reasons after having had the benefit of the written and oral submissions of the parties, on this interim basis I therefore order, in respect of the Order made on 30 November 2011, that paragraphs 3 and 4 of that Order be vacated. Otherwise, I decline the application of the maternal grandmother on an interim basis to impose any Orders with respect to her spending time with the children. I otherwise will hear the parties in terms of directions for written submissions and the hearing of further oral argument in relation to the matter.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 February 2012.

Associate: 

Date:  17 February 2012