MRS and KPR - [2007] FMCAfam 395

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & R

[2007] FMCAfam 395

FAMILY LAW – Children – parenting orders – father with close and warm relationship with young child likely to be sentenced to significant period of imprisonment – whether child should spend time with father while he in gaol – best interests of child.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Applicant:

MRS

Respondent:

KPR

File Number:

BRM15134 of 2006

Judgment of:

Halligan FM

Hearing date:

8 May 2007

Date of Last Submission:

8 May 2007

Delivered at:

Coffs Harbour

Delivered on:

8 May 2007

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

MBT Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

Firewood Carty Lawyers

ORDERS

By consent, orders are made in accordance with the Minutes of Order marked exhibit C, except paragraph 11;
The father shall not cause or permit the child to be in the presence of BB unless another adult is present at all times;
During any period the father is imprisoned, the child shall spend time with him every second Sunday commencing the second Sunday after the father's imprisonment commences, from 1 pm to 3 pm;
For the purposes of Order 3, the father's representative shall collect the child from the mother's residence no earlier than 11.30 am and return the child to the mother's residence no later than 4.30 pm;
During any period the father is in prison, the father may communicate with the child by phone at all reasonable times.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
COFFS HARBOUR

BRM15134 of 2006

MRS

Applicant

And

KPR

Respondent

REASONS FOR JUDGMENT

This is the hearing of parenting proceedings concerning a 5 year old child, JRS, who was born on 21 October 2001. The parties to the proceedings are Js' parents.
The parents have agreed on a wide range of matters concerning the parenting of this child. They have agreed that there be equal shared parental responsibility between them for the child, that the child live with the mother, that the mother authorise any school the child attends to supply the father at his request and expense with copies of school reports and the like, for the father to encourage the child at reasonable times to communicate by telephone with the mother during periods of holidays spent with him, the mother will not relocate the child from the Coffs Harbour area without the consent of the father or order of the Court, and that the father spend time with the child on alternate weekends from 4 pm Friday to 6 pm Sunday, extending to include a Friday or a Monday if a public holiday, and for half of school holidays.
They have also agreed in relation to the child spending time with the father on the child's birthday and Fathers Day and remaining with the mother on Mothers Day. They agree further that the father communicate with the child each Monday and Wednesday between the hours of 6.30 pm and 7 pm and the father not to consume any alcohol while the child is in his care or for a period of at least 24 hours prior to having the child in his care.
Bearing in mind that litany of agreed orders, one might wonder what the controversy may relate to. In fact, it relates to two matters, one rather more difficult than the other, but both of them quite controversial between the parties.
The mother seeks an order to ensure that the child not be brought into contact with BB at all times the child is in the father's care, BB being the partner of the child's paternal grandmother. Further, the parties are in dispute as to what orders should exist in relation to the child either spending time with and/or communicating with the father in the event, which seems in fact to be almost an absolute certainty, that the father is incarcerated.
Last November the father was the driver of a motor vehicle which was involved in an accident. A passenger in the motor vehicle driven by the father was killed in that accident. The father was affected by alcohol at the time of the accident. The father left the scene of the accident when it occurred. I understand he has or will plead guilty to a charge in relation to that incident of, as I understand it, dangerous driving causing death. The husband's advisers have told him that under the sentencing guideline judgment relevant to an offence of this kind and with the factors attending the offence, he should expect a custodial sentence of at least four years. Certainly the guideline judgment, without any aggravating factor such as leaving the scene of the accident, would suggest two to three years imprisonment as a minimum.
The mother opposes the child spending time with the father whilst he is in gaol. The father seeks that the child spend time with him for two hours each alternate Sunday. The mother instead proposes that the child communicate with the father, and she proposes a range of means of communication which, with the greatest of respect, would display a total ignorance of the reality of a period of incarceration in a gaol. She proposes that the child and the father communicate by mobile phone, video link and video conferencing, by mobile phone calls or text messaging, by telephone to the child's landline, by letter, email, facsimile or other electronic method of communication.
There is no evidence before me that inmates at a correctional facility are allowed mobile telephones. I certainly am not suggesting that I substitute this for evidence, but if one is to believe what one often reads in the paper, in fact the existence of mobile phones smuggled into gaols is a matter of ongoing concern to the prison authorities.
But, be that as it may, it is a gaol, not a holiday farm. Inmates, on my understanding, do not have ready access to video links unless, of course, it is for the purpose of appearing by video link in relation to their criminal proceedings. That is not an occasion when the child may have any meaningful interaction with the father. Nor is there any evidence that the mother has any facilities to permit any form of video link or video conferencing, or that she would obtain such. Again, with the greatest of respect, the Minutes of Orders sought by the mother betray an ignorance or a total ignoring of the realities that will shortly face the father and the difficulties that that will create for any meaningful communication or relationship between the father and the child.
It needs to be observed that to the great credit of both these parents over the period of the few years since they have separated they have managed to negotiate quite significant disputes between them up to the point where, by agreement between them and notwithstanding these difficulties, including the difficulties concerning Mr BB that I will come to shortly, they have agreed upon an arrangement that enables the child to spend overnight time with the father. That is notwithstanding the mother's expressed concerns about the father's alcohol abuse.

I gather that the mother reached the point where she was reasonably confident that at least on the weekends that the father may have the child he was modifying his alcohol intake so that she was reasonably satisfied that the child spending time with the father would not expose the child to an immediate risk of harm.
As it turns out, the father's problems with alcohol have nonetheless come back to very significantly adversely affect this child. It is the father's problem with alcohol that has led to this accident and, because of this accident and the circumstances surrounding it, to his almost inevitable incarceration, which clearly has already caused this child considerable distress as evidenced by his reaction on being told by his father very broadly what had happened and what it would likely mean for the father.
The father had indicated, as evidenced by the family reports, that he felt he had overcome the main problems in relation to his alcohol abuse by modifying his intake. But as the family report indicates, the father, when a test was applied to him, was considered by the author of the family report to nonetheless have a moderate drinking problem, but at a range where if he appreciates the problem and is committed to overcoming it, then there are good prospects that he would in fact overcome the problem. Clearly, the father has a way to go yet, notwithstanding the confidence that the mother, justifiably I need to add, reposed in him prior to the accident last November.
And again, it needs to be said that despite that accident and despite the mother's concerns about Mr BB, the mother permitted overnight time for the child with the father. The mother also concedes that this child has a close and loving relationship with the father. She says, in fact, that the child himself is distressed at leaving the father at the end of his time with his father, that he looks up to his father and he idolises him.
The matters that are agreed in this case render irrelevant many of the additional considerations that the Court may take into account under s.60CC(3). The matter really falls to be determined by reference to the primary considerations under s.60CC(2), that is, on the one hand, the benefit to the child of having a meaningful relationship with both parents, balanced on the other with the need to protect the child from exposure to abuse, neglect or family violence.
Certainly, some of the additional considerations are relevant and I will refer to them shortly. But it needs, of course, to be observed that the child's best interests is the paramount consideration in determining what orders should be made, subject of course to the presumption under s.61DA of the Family Law Act concerning equal shared parental responsibility, and the effect of s.65DAA where an equal shared parental responsibility order is made, the Court then having to consider the child spending equal time or substantial and significant time with each parent.
In this particular case the parents agree that they should have equal shared parental responsibility. They have agreed that whilst the father remains at large that the arrangements that I have already indicated should apply and I am satisfied they are appropriate ones, and that in the circumstances, so far as the child's best interests are concerned, they are better than the options the Court must take into account under s.65DAA of equal time or substantial and significant time. Of course, if the father is incarcerated those options are simply not open.
In about September last year the mother was contacted by staff at the Child Care Centre that the child attended to indicate that a parent of another child had reported some inappropriate sexualised behaviour by the child towards another child at the Centre. The mother's evidence is that she spoke to the child after this and she says that the child seemed to exhibit some fear or apprehension about making what she thought was a full disclosure to her as to what had happened and why it had happened. She suggests that the child was expressing some fear of not being able to see his father again. She says that ultimately the child stated to her that Mr BB, the partner of the paternal grandmother, had taken him down to the shed in the backyard and played with him and told him to suck his penis. The child has not made such a disclosure to anybody else.
The matter was referred to the Department of Community Services and, on one version of the evidence, to the Joint Investigation Response Team. Ultimately, the matter was closed by the Department, there having been no disclosure made by the child. There is no other evidence before me in relation to these matters so far as any investigation of them is concerned and any views formed of the allegations by the Department of Community Services other than the allegation was not confirmed.
Mr BB was a witness in the father's case and was cross-examined. He adamantly denied that anything untoward occurred. He further denied ever taking the child and going with the child down to the garden sheds in the backyard.
There is certainly no evidence upon which the Court could make a finding that there was any actual abuse of this child by Mr BB. The question then arises as to whether or not there is sufficient evidence to satisfy the Court that there is nonetheless an unacceptable risk of harm to this child if the child were to come into contact with Mr BB.
The father opposes any restriction being placed upon the child coming into contact with Mr BB but says that if the Court is satisfied that any restraint should be imposed, it should go no further than requiring that the child not be left alone with Mr BB.
The evidence of the alleged abuse is somewhat tenuous. I am concerned that the disclosure was apparently made at the end of or well into a three hour process that the mother had with the child that led to the disclosure or in which the disclosure was made, and there is no evidence about what that interaction may have entailed and particularly whether there was any leading or suggestive questioning of the child by the mother. Nonetheless the mother clearly is concerned that something untoward occurred.
Ultimately I take the view that it is in the child's best interest, because it will afford the mother some greater confidence and reassurance, that the restriction that was indicated by the father should be imposed in this particular case.
The question then arises as to whether the child should have any face to face interaction with his father during the father's incarceration. As I say, it was put by his own legal representatives that it is anticipated he may be facing at least four years in prison as a minimum sentence. There was no suggestion to the contrary made on behalf of the mother. Thus, if this child has no face to face time with the father, he will be nine and a half before he gets to see his father again.
I accept the genuineness of the mother's expressed concerns. She says that bearing in mind the child is already distressed at the end of his overnight time with the father on alternate weekends, that she is concerned that when one puts together the circumstances under which, and the venue at which, the child would have to spend time with his father when serving his sentence, and the abbreviated nature of that time compared to what the child has otherwise had, that the child will be quite distressed at having to leave his father at the end of the visit. And she suggests that in fact it would be better to avoid the child having that distress than to have the, albeit fairly short, periods of time with the father that he seeks.
I do not understand that there is any argument by the mother that after four years of not actually seeing his father at all, very serious damage would have been done to the currently very warm and close relationship this child has with his father. I am concerned as to whether the mother's analysis of the comparative risks to this child of, on the one hand, actually seeing his father, albeit for limited periods, and on the other not seeing him at all, is the right one.
I am concerned, in fact, that the mother's proposal will deny this child the benefit of a meaningful relationship with his father. That, after all, is a primary consideration. Certainly, the father's actions in driving whilst affected by alcohol, will have had the effect of denying his son the opportunity, no matter what order I make today, of having the relationship that he has otherwise had with his father. Even if I make the orders sought by the father, because of the relatively short periods of time, for probably the next four years that this child will have with his father, there will, nonetheless, be some detrimental effect upon the current close relationship the boy has with his father.
But I am not satisfied that it would be better that that relationship be even more seriously damaged by cutting off all time that the boy has with his father. I am satisfied that that risk, in fact, would be greater to the welfare of the child than will the undoubted distress to the child of seeing his father in gaol and having to endure the relatively short periods of time with him.
I am not satisfied that, in fact, the level of distress will continue on indefinitely. The child, over time - and of course without a crystal ball one cannot predict precisely how much time - will in fact become accustomed to the shorter periods of time of seeing the father and the physical environment in which that occurs and the necessary restrictions that must be placed upon visitors to people in gaol. I accept that it will be distressing and troubling to the child, particularly initially, going into such an unfamiliar environment.
The additional problems that the mother raises are ones of practicality. The suggestion at the Bar table on behalf of the father, which again has not been challenged as I understand it by the mother, is that the father is likely to be imprisoned in either Grafton or Kempsey Gaols. That will entail a minimum of one hour and perhaps one and a quarter hours or a bit more travel each way for the child to be able to see his father. The mother does not have a motor vehicle and she says that inquiries of members of her family indicate that they are not able to assist her in getting the child to and from either Grafton or Kempsey Gaols to spend time with the father. The only viable option then is for either of the paternal grandparents to convey the child to and from the gaol in which the father is incarcerated. The evidence suggests that the child's relationship with each of his paternal grandparents will be somewhat limited.
The child, it would seem, was only seeing the paternal grandmother for about the nine months up to September last year when the allegations were made against her partner. It is less clear over what period of time the child might have had interaction with the paternal grandfather, but I infer again that, whilst the child would be familiar with these people, it is a relatively lesser relationship that he would have with them.
That creates some difficulty, of course, if the Court is to order that the child see the father in gaol in circumstances where, at least initially, it is likely that the child will be distressed at the end of that period. That will mean that there will not be a person with whom the child has a close relationship who might be in the best position to console and reassure the child present at the end of those visits if the order is made in the only way that it could operate.
Again, I am not satisfied that that is something which will be ongoing. It will be transient and, ultimately, I am satisfied that faced even in those circumstances with the alternative of effectively cutting off all prospect of face to face time for this child with the father versus, on the other hand, there being some temporary period of time when the child will have some distress at seeing the father in the new setting, the order that the child spend time with the father is in the child's best interests.
I also should observe that in cross-examination the mother indicated that even if the child himself expressed the wish that he wanted to see his father face to face whilst in gaol, the mother would nonetheless maintain the view that it would be better that the child not see his father than be exposed to the upset and distress that she fears the child would experience. But again I say, I am satisfied by reference to the primary consideration of the child gaining some benefit from the undoubted strong, meaningful relationship he presently has with the father that the best arrangements that can be made in the circumstances must be made to enable that relationship to continue.
I certainly make no criticism of the mother when I make the next observation. Counsel for the father did raise as a prospect the mother travelling with members of the father's family, at least initially, to be available to reassure the child and console the child if the child in fact is distressed at the end of spending time with the father. He certainly conceded that that could not be something that was sought as an order against the mother, rather it would have to be something which, if she accepted the option, she volunteered for. And, through her legal representative, she indicated that she would not volunteer for that.

Again, I emphasise, I make no criticism of the mother for that in circumstances where I accept that she believes something untoward did happen between Mr BB and the child in circumstances where the members of the father's family do not accept that anything untoward at all happened.
Nonetheless, the best arrangements that can be made in the circumstances for this child to spend time with the father are that he be taken by members of the father's family with the proviso that the child not be left alone with Mr BB at any time. They are the orders I am satisfied will be in the child's best interests.
I am also satisfied that a communication order is appropriate that would permit the father to communicate with the child whilst in gaol by telephone. There is no evidence to indicate to me when the father might have telephone privileges or what the realities of being able to access the telephone at his time may be if, in fact, there is a considerable demand for a limited telephone facility. In those circumstances, in my view the best that can be ordered is that the father be permitted to communicate by telephone at all reasonable times. I am satisfied that the usual limitations upon phone calls in gaols will mean that the mother will not be facing multiple phone calls every day of the week but it will provide the flexibility that may be needed for the father to be able to make some use of the telephone facilities when he is permitted under the prison regulations.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Halligan FM

Associate: Deanne Bush

Date: 14 June 2007