Michaels and Michaels

[2008] FamCA 69

FAMILY COURT OF AUSTRALIA

MICHAELS & MICHAELS

[2008] FamCA 69

FAMILY LAW – CHILD ABUSE—Sexual abuse—allegation made after five-month delay—where Father has serious criminal history—where evidence that even if the alleged conduct occurred it did not amount to abuse in the circumstances—no finding of abuse made.

FAMILY LAW – CHILDREN—Family violence—Risk—where Father has serious criminal history—where risk of family violence nugatory in Mother's absence—Orders for unsupervised time made.

APPLICANT:

Mr Michaels

RESPONDENT: Mrs Michaels

FILE NUMBER: BRC 4995 of 2007

DATE DELIVERED: 18 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 14 January 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr George, Solicitor, Suthers Lawyers

COUNSEL FOR THE RESPONDENT: Ms McLennan of Counsel

SOLICITORS FOR THE RESPONDENT: Quinlan Miller and Treston, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Awyzio, Solicitor appeared as agent for the Independent Children’s Lawyer, Ms Toomey of Schultz Toomey O’Brien Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children, an older son … born … March 1998 and a younger son … born … June 1999 live with the Mother.

1. The Mother have sole responsibility for the long term care, welfare and development of the said children.

1. The parties to have short term responsibility for the said children when the children are in their respective care.

1. The Father to spend time with the said children as follows:

a.   each alternate weekend, after school Friday to before school Monday, commencing Friday 25 January 2008;

b.   where the weekend is a public holiday, the children are to be returned to school on the Tuesday morning;

c.   unless the parties otherwise agree in writing the Father to be responsible for collecting and returning the children when spending time with them;

d.   the Father to spend time with the children during the second half of school holidays in 2008 and each alternate year thereafter;

e.   the Father to spend time with the children during the first half of the school holidays in 2009 and each alternate year thereafter;

f.   the parties are to agree in writing to collection and return of the children for school holiday purposes.  In the event the parties are unable to agree then collection and return is to be determined by the Independent Children’s Lawyer.

1. The Father to communicate by telephone with the said children on Tuesday and Thursday between 7.00 pm and 7.30 pm with the Father to initiate the telephone call.

1. Leave given to the Independent Children’s Lawyer to re-list the matter before a Registrar after a psychiatric assessment has been carried out.

IT FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Barry delivered this day will, for all publication and reporting purposes be referred to as Michaels & Michaels.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4995 of 2007

MR MICHAELS

Applicant

and

MRS MICHAELS

Respondent

REASONS FOR JUDGMENT

1. Cohabitation between the parties commenced in about 1994.  The parties married in September 2001.  Separation appears to have been a fairly regular event with the parties subsequently resuming cohabitation.  The final separation appears to have been as a result of the events of 16 February last year. 

2. The present operative order is that made by Slack FM in the Federal Magistrates Court in Hervey Bay.  He ordered that the child live with the mother and that there be supervised time with the father.  The parties entered into those orders on 30 July last year.  They were consent orders and were made less than six months ago.  Both parties were legally represented.  So those orders by Slack FM, so far as the children to live with the mother, were made by consent six month's ago.

3. The father filed a form 2 application on 19 November last year seeking orders that his two sons live with him.  The father proposes that the mother spend time each alternate weekend from Friday afternoon until Sunday afternoon with the children together with half school holidays. 

4. In her response document of 30 November 2007, the mother seeks orders that the children live with her.  She seeks that the father's contact with the children be from noon until 2 pm on alternate Sundays at the G Contact Centre.  She proposes delivering the children to the contact centre and collecting them from that venue at the conclusion of the father's visits. 

5. The Court has been assisted by the appointment of an independent children's lawyer.  The independent children's lawyer had commissioned a report from Ms V, which is dated 8 October 2007.  In addition there was a considerable body of subpoenaed material. 

6. At the present time the father resides in the former matrimonial home at G, which is located in northern Queensland.  The mother resides in B in northern Queensland.  I am informed and I accept that the driving time between the two addresses is approximately two hours.  The mother has possession of the only car that was owned by the parties.  The children are presently in her care.  The father said he has available to him support from friends and neighbours in the G community. 

7. On 14 June 2005 on the application of the Department of Child Safety a 12 month care and protection order was made placing the children in foster care.  On 10 March 2006 the children were placed by the Department in the care of the father.  It was then that he enrolled them in the G State School.

8. On 24 July 2006 this Court made orders confirming that the children were to live with the father and spend alternate weekends and half holidays with their mother.  On 16 February 2007 the mother said she was assaulted by the father.  The father was arrested and remanded in custody.  At that time the mother took the children to B.  Immediately prior to that, at the time of the events of 16 February, the parties had been residing in the matrimonial home at G.

9. The father was held in custody until 4 June 2007 when he was released on bail.  On 10 August 2007 the police indicated that they would not be proceeding further with the assault charge.  On 12 July last year the mother made a complaint to police that the father had sexually abused his older son.  The abuse consisted of digital anal penetration of the child by the father.  It is said to have occurred on the same date as the assault, namely 16 February 2007.  No satisfactory explanation was forthcoming why the mother delayed for five months before making a notification of the abuse she said she witnessed.  I will have more to say about that aspect later in these reasons. 

10. At this stage I turn to consider the report of Ms V of October 2007.  At paragraphs 7 to 10 she sets the scene in the terms of events since the previous report:

    "At the time I interviewed the family in February 2005 the parents had reconciled.  I take it that they were already separated by the time the matter went to Court.  The Court ordered that the children live with [the mother].

    8.  The Department of Child Safety stepped in a few days later and took the children into care.

    9.  By [the mother’s] account, this was because she kept moving between refuges and returning to see [the father].  By so doing she was exposing the children to drugs and domestic violence and therefore not protecting them properly.  [The father] states that they took the children into care because [the mother] was not sending them to school and she was still heavily involved in drugs.  He said that they would not give them to him because of [the mother’s] accusations of his domestic violence towards her."

11. Ms V then details conversations with the parties during the course of her interview process.  I would have to say it is difficult to ascertain where the truth lies.  It is difficult to be confident that either parent was being entirely honest in response to the report writer's questions. 

12. In relation to the older child, at paragraphs 54 to 59 Ms V makes the following statements:

    "[…] is nine years old.  He spoke easily during his individual interview.  He said that his school in [B] is better than his old school because there are neither drugs nor scum people there. 

    55.  He said that he doesn't like living with dad because 'he smokes stuff around us, he hits us and he sexually abuses us.’  Asked more about hitting, he said that he smacks them on the butt and he once smacked [the younger child] across the face.

    56.  Regarding sexual abusing, he said that dad sometimes puts his finger up his butt.  This mostly happens in the mornings.  Sometimes they are out watching television, sometimes it's while he is in his bed.  Sometimes they hop into dad's bed in the morning and he does it.  Sometimes he's wearing boxer shorts.  Sometimes dad does it after they've had a shower at night.

    57.  The child informed the report writer that he'd told the people at the refuge and also the people at the Department of Child Safety about this.  The child went on to say he wants to live with mum and see dad about every second week for about a day.

    59.  I asked how he might feel if the Judge said he had to live with dad again.  He said, 'Pretty sad because dad doesn't treat us like mum does.  Mum cares about us more.  She takes more responsibility.  All dad does is tell us to go and get a beer.  Mum drinks too but she doesn't tell me to go and get it.'

    61.  In relation to the [younger] child, […], she observes he said that he was living with mum because dad had hurt mum.  He couldn't remember what dad had done.  He said that they were present when dad hurt mum.  He said that he doesn't miss dad.”

13. Paragraphs 64 and 65 in relation to the younger child:

    "64.     When the children saw their father during this assessment they related spontaneously and openly with him.  They crawled all over him and chattered animatedly about child related topics.  It was as though they had never been separated.

    65.  At the end of the session when it was time to say goodbye [the older child] started to cry silently.  This brought on [the father’s] tears.  [The father] struggled valiantly to manage his own feelings in order to help [the older child] and he did this as well as anyone could have."

14. At paragraph 76 and following of her report, Ms V makes the observation:

    "76.     The information on file supports the father's assertion the mother made fallacious allegations against him.  If this is so, it is a disturbing matter that amounts to her serious abuse of the children by removing their primary caregiver from them and refusing to allow them to have any contact with him whatsoever.

    77.  The mother has made assertions that the father sexually abused [the older boy] on the same night that he assaulted her.  It is notable that she only raises this now and that she made no reference to it in her police statement about the night in question.

    78.  It is my view that the timing of these allegations makes them highly suspect.  [The older child] says that it happened but in saying this he did not display affect congruent with his assertions.  The children were delighted to be reunited with their father.  [The older child], in particular, became deeply upset when saying goodbye to him. 

    79.  I am conscious of not having seen the Department of Child Safety records at the time of writing this report. 

    80. Assuming that nothing untoward emerges in the subpoenaed material, it is my view the children should be returned to their father's care.”

15. I assume, for present purposes that Ms V had not seen any part of the police file which had been subpoenaed. 

16. I turn to consider the subpoenaed material.  These consisted of the file from the Department of Child Safety and the Police file.  It is obvious from the contents of the police reports that on the evening of 16 February 2007 the police observed extensive bruising to the mother and a bite mark on her cheek.  It is trite to observe that it is impossible for a person to leave a bite mark on their own cheek.  The interview with the older child was conducted on 16 July 2007.  During that interview he speaks of multiple domestic violence incidents.

17. The police documents reveal:

    (a),     the father has an unenviable criminal record.  It includes 18 months imprisonment for drugs back in 1983.  A further 18 months sentence of imprisonment in February 1994 for assault occasioning bodily harm.  August 2004, three months for wilful damage and breach of domestic violence orders.  (b)      The police file is redolent with examples of the police being called to the residence occupied from time to time by the parties in relation to domestic violence incidents.

    (c)      The father's extensive criminal history also reveals a considerable number of offences where violence had been involved.

18. The police file also contains photos of the mother taken immediately after the events of 16 February.  They also have taken photos of damage to the house.  I propose to make a finding that the various walls that have been damaged are consistent with somebody having punched or kicked the walls.  The damage is quite extensive.  I am satisfied, for present purposes, that the damage is likely to have been caused by the father. 

19. The Department of Child Safety file contains a report from a psychologist, Ms J, dated 9 June 2005.  I find that to be a very enlightening, perceptive document.  Ms J administered the Bene Anthony Family Relations Test where the children are given various cards with statements on them and then asked to place them in a box for either the brother or their mother or father or Mr Nobody.  The result of the assessment was that for total emotional involvement with individual family members the mother scored 17, the father 14, the younger child 10 and various other persons scored 2 or 3. 

20. At pages 11 and 12 Ms J provides her summary.  She said:

    "[The older child’s] distribution of emotional involvement indicates a slightly higher score for his mother.  He has more outgoing, positive responses towards his father and higher positive incoming responses from his mother.  [The older child] did not indicate negative self hate responses found in those with marked feelings of inferiority, guilt or shame.  His self response scores were in the outgoing positive instead.  [The older child] tended to place most incoming and outgoing negative responses in Mr Nobody suggesting the use of denial and idealisation against the expressions of guilty feelings.  He also indicated negative incoming and outgoing feelings towards his brother.  His responses also indicated that his brother is more likely to be over protected by his mother.”

21. On the following page under the heading "Summary and Diagnostic Impression" Ms J reports:

    "The overall finding from this evaluation indicates that [the parents’] reporting of events are inconsistent with both parties blaming the other.  Of particular concern is the parents’ inability to put their children’s needs first and the lack of insight in the degree of harm caused by their behaviour.  The evidence gathered during the assessment, in particular the children reporting of abuse to the Department, suggests emotional maltreatment and neglect.  The mother's position that the children are coached by their father is unlikely given the children implicated both parents.  What is apparent is that the children have taken on their parents’ guilt by denying the feelings associated with the abuse as a way of coping.  In addition the children are showing the effects of neglect with behavioural problems and emotional disturbances.  Both children appear to have problems in learning and problems in relationships.  The characteristics of the parents indicated they were psychologically immature and lacked self control and monitoring as evident by their poor insight and drug abuse.  The father has limited social support, has moderate symptoms of anxiety and depression.  My suspicions, due to the mother's history and defensive responding, are that she has a personality disorder.  This has not been assessed formally so the diagnosis is deferred.  The assessment indicates poor parent/child attachment for both parents.  Where the father's parenting, monitoring and vigilance towards the children is excessive, their mother's is much less diligent.”

22. I have had regard to all the portions that were flagged in the subpoeaned files.  I turn to consider the submissions made on behalf of the father.  It was submitted that the allegation of sexual abuse was unreliable.  The mother and children had been interviewed by the police within days of the incident but no mention was ever made of it.  There are suggestions that the older child appears to have been coached.  There was no complaint by the mother for a period of some five months.  It was further submitted that I would give considerable weight to the family report writer's recommendation that the children should be placed with their father.  It was pointed out there had been a high level of absenteeism from school when the children were in the mother's care and the fact that the Department of Child Safety had previously taken the children off the mother was relevant.  There were other submissions to which I have had regard.

23. The submissions for the mother were the Court would be satisfied that there have been incidents of domestic violence by the father towards the mother over a significant period of time.  It was pointed out that the children had been in the mother's care since February of 2007.  To make an order in those terms confirms the order of Slack FM made in relatively recent times by consent that the children live with the mother and the father's contact be supervised.  Such an order, it was submitted, reflects the wishes of the children as reflected in the comments made to Ms V as previously quoted.  It was submitted that the Department of Child Safety had taken the children from both parents and that the department's concerns about the mother related to her inability to protect the children from the father's violence.  I pause to note that I do not accept that submission.  I do not believe it accurately reflects the file contents. There was one time the father was in gaol and the Department moved to remove the children from their mother.  Certainly, there couldn't be any suggestion that she was unable to protect the children at that point in time as the alleged perpetrator was in prison. 

24. I record at this point in time that I do not attach weight to Ms V’s report or its recommendation in that she concedes she has not seen the subpoenaed material.  In my view, the subpoenaed material is in fact corroborative of much of the wife's allegations.  The father has an extensive criminal history.  There have been numerous reports of violence.  There are photographs of the mother's injuries which I find would be impossible to fake or impossible to be self inflicted.

25. It was said that the charges of assault of 16 February incident had been dropped.  Prior to reading the subpoenaed material the thought had crossed my mind that the mother had been fearful of proceeding any further against the father.  On her affidavit material that does not appear to be the case.  It appears she has made representations to the prosecutor.  It appears that the father has produced witnesses to say the mother had pre-existing injuries prior to 16 February and these were caused by her falling over in a drunken state.  It would seem to me that the injuries observed by the police officers, reported by the police officers on 16 February were not the sort of injuries which one would receive in that fashion, and that they are attributable to the events of that evening.  I do not propose to analyse any further why the police did not proceed with the charges.  It is a matter for the Police Department.

1. It was said that the reason for the high level of absenteeism was the mother's fear of the applicant upon his release from prison and she had gone into hiding for three weeks.  I am unable to make a finding on that aspect. 

2. I propose to leave the children in the care of the mother.  My reasons are as follows.  I want to make it clear, I do not place any weight on the allegations of sexual abuse.  As I have said the complaint was only made after a five month delay.  It was made well after there had been ample opportunity to bring the matter to the attention of the police.  The subject of the sexual abuse allegation appears to have been a light hearted incident.  I shall refer to a passage in the subpoenaed documents to that effect. 

3. I find merit in the submissions made by the legal representative for the father in these terms, at paragraphs 12 to 16 inclusive.  He notes on 12 July 2007:

   "The mother made complaint to the police that the father had sexually abused [the older child].  Following this complaint the children were interviewed by the police in relation to the complaint.  [The older child] is alleged to have made a disclosure of abuse to the police, but this was not supported by [the younger child].  Of importance, however, is that despite this disclosure the complaint did not warrant further investigation by the police.  The father was not sought for questioning and no charges were laid.”

4. At paragraph 56 of the family report Ms V states that the older child made disclosures including that:

   "Dad put his finger up his butt.”

   It goes on to state that the older child discloses that this happens mostly in the mornings.  Ms V states at paragraph 78:

   "[The older child] says it happened but in saying this he did not display affect congruent with his assertions.”

5. Paragraph 14 relates how the mother had given a five page statement to the police on 15 March with no mention of this allegation.  She filed a 27 paragraph affidavit on 19 June with no mention of this incident.  It notes Ms V’s observations that the timing of the allegations makes them highly suspect.  It is submitted in paragraph 16 the Court should be concerned that these allegations against the father have been fabricated by the mother in an attempt to ensure the children live with her.  It is also noted that the mother deposes that she has made previous complaints that the father sexually abuses the children and yet the Department of Child Safety chose to return the children to the father in 2006. 

6. In coming to my determination I place considerable weight on the children's wishes as expressed to Ms V.  This also is reflected indirectly in the children's wishes and their preference that the B school is a more conducive environment than the G school.  I find importantly that the history of domestic violence with the annexures to the mother's affidavit of 19 June 2007 and all the various documents in the Child Safety file, the children are likely to have witnessed domestic violence in the father's household and would be more likely to do so in the future.  There is very little evidence that such violence is directed to the children, although there have been some disturbing incidents reported.  The photos of the damaged walls; if the children were present, and I assume they were at the time, would be very disturbing to children to see a parent behaving in that fashion. 

7. In the submissions from the counsel for the mother, paragraph 3.9, she refers to the recent Full Court decision of Goode v Goode (2006) FLC 1346 and that the presumption of equal and shared parental responsibility is in the best interests of the children, however, this presumption does not apply where there are reasonable grounds to believe that there has been abuse of the children or the child is exposed to family violence, or when making an interim order the Court does not consider the application of the presumption appropriate.  That applies full square in the current case.

8. I revert back to the report of Ms J, that the children had positive feelings towards both parents.  As I understand her report, those feelings are slightly more so towards the father but the children perceive the mother as the one who provides more positive feelings towards them, and there is a concern that the children, through fear, have been covering up certain of their feelings, and were not prepared to be forthright in their dealings with Ms J. 

9. I note that the experienced independent children's lawyer in this matter recommends the children should be left with the mother.  The independent children's lawyer said that the time with the father should be unsupervised.  The view was that this matter was going to trial and it was to be expected that the father would be on his best behaviour.  I am not enamoured of such a submission in normal situations where there are unresolved allegations of sexual abuse and also allegations of domestic violence, however, I find the circumstances here are somewhat unique.  The father's actions in relation to the sexual abuse were said to have occurred in the presence of the younger brother who was about seven or eight at the time, and in the presence of the mother.  I would find it unlikely that such sexual abuse would occur in such circumstances.  More significantly, I find it inconceivable that the older child would be laughing during the incident if the conduct amounted to sexual abuse rather than vulgar horseplay.

10. In the police file in a statement in which she is being interviewed on 16 July, the mother gives the following account:

    "The mother was seriously assaulted by the offender, her husband.  Previous to that assault she recalls walking from the bathroom into the lounge room.  In the lounge room she observed the victim, her son, to be naked, lying on the floor on his stomach with the offender touching him about the butt area.  She believes that the offender had his finger inserted into the victim's anus and was laughing.  The mother stated that the victim was slightly laughing and giggling.  When queried how she could be certain of any penetration, she stated that it was obvious that this finger was even partially inserted.”

    I find it preposterous that there could be sexual abuse in circumstances where it is in front of people and the child is giggling about the events.

11. The independent children's lawyer submitted that the children would be at a disadvantage if they had no time with their father.  If I allowed time with the father there was some risk of sexual abuse and/or witnessing domestic violence.  The independent children's lawyer suggested that the greater risk was for the children to have no time at all with their father.  I agree with this submission.

12. For reasons given, I assess the risk of harm from sexual abuse as low to very low.  I assess the risk of physical harm to the children or in witnessing domestic violence to be low if the father is residing with the children in the absence of the mother.  The risk of harm from the children having no time whatsoever with their father is high.  I have no doubt that the father cares dearly for his children as does the mother.  It would be preferable that the parties not come into contact with each other.

13. I propose to order that the father collect the children from school on a Friday afternoon and return the children to school on a Monday morning each alternate weekend.  I do not propose to start that on today's date.  I will implement the order as from 25 January 2008.  I note that is a long weekend.  I will make an order that the father's time is to extend to returning the children to school on a Tuesday where the Monday is a public holiday;

14. I appreciate the mother has the vehicle.  I proceed on the basis that the father is either paying no child support or minimal child support.  The mother has the cost of supporting the children out of her pension income.  To my mind, the father can bear the expense of driving, if he has to borrow a car or rely on a neighbour.  I will allow the flexibility of the parties to vary the transport arrangements and also to vary the contact arrangements.  I will allow the father to have half school holidays.

15. I will make an order that the transport arrangements for the school holidays is to be as agreed in writing between the parties.  In the event the parties are unable to agree, then as determined by the independent children's lawyer.

    RECORDED  :  NOT TRANSCRIBED

16. In relation to the holidays I will make the father, having the second half of school holidays in the current year and each alternate year thereafter and the first half next year and each alternate year thereafter.

17. So I will hear the parties as I am minded to order a psychiatric assessment or to recommend to the independent children's lawyer that a psychiatric assessment be obtained.  I note Ms J’s comments about an Axis II personality disorder.  There is reference in some of the - I cannot recall whether it is the subpoenaed documents or the affidavit material - to a statement about the mother suffering manic depression.  I do not know what weight to place on that but I think the Court would well be assisted by such an assessment.

18. Subject to any further submission, the orders that I will put in place are as follows.

    ORDERS DELIVERED  

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  18 January 2008