Pelzer and Pelzer

[2015] FCWAM 105

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: PELZER and PELZER [2015] FCWAM 105

CORAM: KAESER M

HEARD: 22 DECEMBER 2015

DELIVERED : 8 JUNE 2015

FILE NO/S: PTW 1665 of 2011

BETWEEN: MR PELZER

Applicant

AND

MS PELZER
Respondent

Catchwords:

Child Related Proceedings; Interim decision; history of allegations of sexual assault by the father against the child, her sister, a step sister and another family member; allegations also made against the paternal grandfather; some allegations substantiated by the Department for Child Protection and Family Support; no charges ever laid against father; finding of unacceptable risk of sexual harm to child in Father’s care; order for no contact made.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Hughes

Respondent: Mr Keating

Independent Children's Lawyer : Ms Lee

Solicitors:

Applicant: Anthony Hughes & Co

Respondent: Wayne Dawkins Lawyers

Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

Banks & Banks [2015] FamCA 66

Goode and Goode (2006) FLC 93-286

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1[Mr Pelzer] and [Ms Pelzer] began a relationship in 1999, were married in 2000 and separated on 23 March 2011. Previous proceedings took place in 2011 and 2012 in this Court. The parties have three children, [Child A] born [in] 2000, [Child B born [in] 2002 (who was 12 at the date of hearing) and [Child C] born [in] 2007.

2The children have had reasonably unsettled arrangements since separation. Initially the children were living with the father at the former matrimonial home. Some two months later the children returned to live with the mother and the father spent time with them for five days in every fortnight. In September 2011 all three children returned to live with the father whilst the mother maintained contact with Child C. In June 2012 orders were pronounced providing for Child A and Child B to live with the father and that Child C would live between each home on a week-about basis.

3In January 2013 the father moved to [New South Wales]. The children Child A and Child B moved with him. Child C remained living in Western Australia with the mother. In October 2013 Child A returned from New South Wales to resume living with the mother in Perth. Child B remained in the father’s care. On 6 July 2014 the father returned to Western Australia and Child B remained living with him. On 30 August 2014, after a period of time with the mother, the mother refused to return Child B to the father’s care. Since that time, the father has not spent any time with any of the three children due to the concerns raised by the mother. The father has been maintaining some telephone communication.

4The father lives in [Suburb A] with his parents and the mother lives in [Suburb P] with the three children. After the father moved back to Western Australia with Child B, he enrolled her in [B School]. That has changed since she was retained by the mother.

5On an interim basis, the father seeks orders that Child B return to reside with him. He initially sought a recovery order (incorrectly referred to as a warrant) in his Form 1 application. On an interim basis he proposes no time between Child B and the mother. On a final basis he proposes the following orders:

1.That [Child B] born [in] 2002 live with the applicant father.

2.That [Child A] born [in] 2000 live with the respondent mother.

3.That [Child C] born [in] 2007 live with the applicant father and the respondent mother on a week‑about, shared residency basis, from Friday until Friday, each week.

4.That the child [Child A] spend time with the applicant father, every alternate weekend from 3.00 pm Friday until 6.00 pm Sunday, to coincide with the time that the youngest [Child C] is residing with him.

6On an interim basis the mother seeks orders that the children live with her and that they spend no time with the father. She also sought the appointment of an independent children’s lawyer, an injunction from removing the children from the mother’s care, and a personal protection order pursuant to s 68B of the Family Law Act 1975 restraining the father from entering within 50 metres of or remaining upon a place of residence, employment or education of the said children or the mother.

Court history

7The Form 1 application commencing these proceedings was filed by the father on 9 September 2014. The family consultant prepared a memorandum of information provided by the Department for Child Protection and Family Support. That memorandum was dated 12 September 2014. It noted a number of significant issues:

(a)The Department investigated a number of sexual abuse allegations against [Mr Pelzer]

(b)On 2 November 2013 the Department substantiated the sexual harm of [Child A]. The sexual abuse was alleged to have occurred in the home of [Mr Pelzer] and his father, [Mr Pelzer Snr] in [New South Wales]. Both [Mr Pelzer] and [Mr Pelzer Snr] were alleged to have sexually abused [Child A]. [Child A] was residing with her mother in WA when the Department were informed of the allegations. The Department substantiated sexual harm and the matter was referred to the police [I note that when [Child A] returned to Western Australia in October 2013 she was 13 years of age. This finding by the Department is consistent with the mother’s evidence that she was only told of the alleged incident concerning [Child A] in October 2013 as well. It appears therefore that [Child A] only advised her mother and the Department after her return to Perth. The incident referred to relates to an incident in April 2013, details of which will be provided shortly].

(c)On 9 January 2013 the Department substantiated the sexual harm of [Mr Pelzer’s] stepdaughter, [Child D], and recorded [Mr Pelzer] as the person alleged responsible. The matter was referred to the police.

(d)In 2013 the Department received allegations concerning the sexual harm of [Child B]. [Child B] was living with her father and paternal grandfather at the time in [New South Wales]. The Department referred the concerns to the [New South Wales] child protection authority and [New South Wales] police. The Department does not know the outcome of this investigation.

(e)When the Department closed its file in November 2013 the police were still investigating the above matters in relation to [Child A] and [Child B]. Police provided information to the Department on 20 December 2012 indicating that [Mr Pelzer] was also named the person of interest in a non-related matter in 2003. That concerned an incident of sexual penetration without consent perpetrated by [Mr Pelzer] against a young cousin. That incident was alleged to have occurred in 1996.

8The parties attended a case assessment conference with Family Consultant Pedley on 4 November 2014. The mother confirmed to the family consultant that after Child A returned to Western Australia to live with her, she then disclosed sexual abuse against the father. Police information reported Child A struggled to particularise any actual offence when interviewed further about her allegations regarding the father and paternal grandfather.

9The father alleged to the family consultant that he was confused about how these substantiations in relation to Child D and Child A came about. He said he has “never received any information advising him about such”.

10The mother made it clear to the family consultant that she had received information from the Department for Child Protection and Family Support about the father being substantiated for sexual harm against Child A. This information was only received after the father returned to Western Australia and explains why the mother took the action she did on 30 August 2014.

11The father provided his view to the family consultant that the mother might be encouraging the children to make false allegations against him. This is an interesting allegation, especially if I am to accept the mother’s evidence that she knew nothing about the allegations raised by Child A until after Child A returned to Western Australia and she did nothing to secure Child B remaining in her care until after Child B moved back to Western Australia and she was made aware of the findings of the Department in relation to Child D and Child A. It is difficult to see how the mother influenced the children in those circumstances.

12The hearing in this matter took place before me on 12 December 2014. I acknowledge that there has been a significant delay in the provision of these reasons. I do, however, note that neither party appears to be pressing the Court for those reasons. Part of the reason may be that the parties have been progressing these matters notwithstanding the lack of reasons. Orders were made by consent in February 2015 appointing Mr Ménage as a single expert witness. The Court has not yet received a report although one might expect a report to be provided shortly. In any event, this judgment is based on the evidence before the Court at the time of the hearing. The Court accepted all of the subpoenaed material into evidence, given the importance of that evidence in relation to the allegations of abuse.

The father’s case

13The father is concerned that the mother is influencing the children and that she is trying to turn Child B against him. He acknowledges at [44] of his affidavit that:

In April 2013, [Child A] told me that my father, [Mr Pelzer Snr], had walked into her room one night and was trying to touch her. I spoke to my father and he told me that one stormy night, [Child A] and [Child B] and my father were all laying on my bed in my bedroom watching a movie. When the movie finished, [Child B] went into her bed but [Child A] was asleep. My father then fell asleep. He later woke up and went back to his own room. He stated categorically that at no stage did he inappropriately touch [Child A]. I spoke to [Child A] about it and she eventually conceded that she had “got things wrong”.

14At [45] he adds that:

At no stage has [Child A] even alleged that I have inappropriately touched her.

The mother’s case

15The mother is firm in her position that because of the ongoing allegations and substantiations by the Department for Child Protection that there should be no ongoing time between the father and the children. Neither party sought any orders in relation to supervised time.

16The mother, in addition, says that both Child B and Child A are scared of returning to the father’s care.

Subpoenaed material

17Child D, reported to the police on 19 December 2012:

(a)that the father digitally penetrated her in about 2002/2003 (on one occasion) when she was seven or eight years old. This was at the time when the parties were living together. She expressed concern for her two younger sisters, [Child B] and [Child A];

(b)the police noted that another incident had been reported in 2003 of sexual penetration without consent involving the father’s younger cousin;

(c)the Department for Child Protection and Family Support substantiated sexual harm of [Child D] on 9 January 2013;

(d)on 14 January 2013, the Western Australia Police advised the Department for Child Protection and Family Support that they would arrest the father that day. However, before he was arrested, the father moved to [New South Wales] with [Child B] and [Child A];

(e)on 16 January 2013 the father was interviewed by police and released without charge;

(f)17 January 2013 the child, [Child C], was interviewed by the Department for Child Protection and Family Support – no disclosures were made. The father was not charged as there was insufficient evidence to proceed in relation to [Child D].

18On 6 November 2013 Child A reported to police that:

(a)she told the mother that during the night, the paternal grandfather had inappropriately touched her, including “humping” [I note that one document describes this as “rape”];

(b)[Child A] said that the father will kill her if she tells anyone;

(c)the grandfather raped her twice;

(d)both the father and the grandfather hit her and threatened to kill her if she told anyone, therefore [Child A] did not tell anyone until she returned to Western Australia and told her mother.

19The CAIT report 19 November 2013 in relation to Child A described her as saying:

·the grandfather raped her;

·the grandfather got into bed and lifted her skirt;

·he played with her boobs;

·he played with her vagina and placed his finger inside;

·that there was brown discharge after that incident;

·that he did the same in the pool with his finger;

·that her sister said that the grandfather had done something to her also.

20In relation to Child B, the Department for Child Protection and Family Support interaction report dated 18 September 2014 records a mandatory report from a teacher that Child B:

(a)disclosed rape by the grandfather;

(b)was being teased and bullied as students found out about her sexual abuse;

(c)the mother knows of the abuse;

(d)[Child B] was in [New South Wales] at the time of the abuse; therefore it was referred to the Department for Child Protection in [New South Wales].

21The CAIT form in relation to Child B’s interview on 2 October 2014 noted:

(a)the grandfather came into her bed and had a needle thing;

(b)he put it into her arm and made her sleepy and everything went black [there was not much further detail].

22The police records show:

(a)the father has some traffic offences and stealing and assault convictions from 1996;

(b)the police report of the 19 November 2013 interview notes that [Child A] said that “her father also tried to have sex with her on a number of occasions”;

(c)on 5 November 2013 the mother took [Child A] to the police to report her disclosures;

(d)in her interview on 18 December 2012, [Child D] also alleged the father physically abused her and her brother, [Child E]. This included hitting then across the arms and legs; throwing objects at them and striking them with pots and pans. They received bruises from these assaults. She also said, “the mother was aware of the physical abuse, but did nothing to stop it”;

(e)the mother had no criminal or traffic convictions;

(f)on 23 September 2014 the police received a mandatory report from [Child B’s] school (referred to in detail above).

23Child A has been attending counselling with the Incest Survivors Association. She expressed concern over Child B’s safety with the father as Child B had disclosed to her before that the paternal grandfather had been touching her genitals. Child A said that her father abused her father after she told him about the grandfather’s abuse. The father was angry with her and accused her of lying before he himself abused her.

24As mentioned above, the Department substantiated sexual abuse of Child A by the father on 2 November 2013. This finding took place about one month after Child A left her father’s care in New South Wales and returned to the mother’s care in Western Australia. The father’s father, Mr Pelzer Snr, was also involved in those allegations.

25In May 2014 Child B was interviewed by the police and no disclosures were made. The police did not speak to Child A. Fifteen months prior to these interviews, Child D had made similar allegations which were later withdrawn.

26In relation to the balance of the issues raised by the Department, both in Western Australia and New South Wales, the father says at [48] to [55] of his affidavit the following:

[48] The Department subsequently paid me and my family two or three more visits and also spoke with [Child B] on her own on several occasions, following which they concluded that [Child A’s] allegations about [Child B] were totally unsubstantiated and that they had no concerns for [Child B’s] wellbeing. Annexed hereto and marked “A” is a copy of a report from their senior team leader dated 15 September 2014, confirming this to be the case.

[49] [Child B] has never made any such allegations against me, although she has disclosed to me that before [Child A] left to live in Western Australia that [Child A] threatened [Child B] that she would hurt her unless she said that she had been abused as well, but [Child B] abjectly refused.

[50] The allegations concerning [Child B] were fabricated by [Child A] and [Child B] has told me this. That is why she was happy to live with me, both in [New South Wales] and in Western Australia upon our return.

[51] The memorandum erroneously refers to an allegation involving my stepdaughter, [Child D], which was “substantiated” on 9 January 2013. In fact, in January 2012, I was spoken to by two police officers from the Sexual Crimes Squad in relation to [Child D]. They interviewed me on video and spoke to me about allegations that [Child D] had made.

[52] I told them that back in 2003, when [Child D] was eight years of age, in [Adelaide], [South Australia], she had a lighter from a truck I was driving and fell over an object, causing a minor injury in her crotch area. She wanted me to check it to see if she was alright. I refused, but immediately rang the child’s mother who told me to have a quick look at her crotch to make sure there was no blood, which I did. Later on in the truck, she kept rubbing her crotch and I kept removing her hand as her actions would make it worse. The mother was fully aware of this incident and, at the time, [Child D] never made any allegations that I did anything inappropriate.

[53] After I related this story to the two police officers they later spoke with the mother, who confirmed my account of the incident, and told me there was no evidence of any wrongdoing on my part.

[54] Finally there is reference made in the memorandum as to an allegation concerning myself and a “young cousin”. In fact this relates to my niece, [Ms H], who was four or five years old at the material time, about 1999. She allegedly told her older brother that I had kissed her between her legs. My sister confronted me about these allegations and I vehemently denied them. I was never spoken to by the police concerning this matter, which does not surprise me because no such incident ever occurred.

[55] The mother is aware of all of these allegations and she knows they have been refuted and are of no substance.

Conclusions

27I am concerned regarding aspects of the father’s evidence; in particular that Child A told him that his father had inappropriately touched her. The incident was said to have occurred in April 2013. He then describes her as eventually conceding that she “got things wrong”. Child A was 12 years old at the time of this incident. The father’s father denied the allegations of wrongdoing by him. There appears to be at least the possibility that Child A has changed her story arising from pressure from the father and/or the paternal grandfather. Such a possibility cannot be ignored, especially in light of the departmental findings which appear to have been based on New South Wales department’s investigations. In addition, Child A alleged the father was angry with her about the allegations and subsequently also abused her. The mother says that Child A only told her in October 2013 about the incident in April 2013. The father also disputes the findings made relating to the incident in 2003 in relation to Child D and also denies the earlier allegation from 1999 in relation to his niece, Ms H.

28The mother essentially relied upon the Department’s findings to justify refusing to return Child B to the father. I have no doubt that she was opportunistic in the sense that she made the most of the opportunity that presented itself when the father moved back to Western Australia with Child B. I note that Child A had already moved back to Western Australia in October 2013 and Child B followed in July 2014. It was clearly much easier to get Child B into the mother’s care and retain her after she had returned to Perth.

Law

29The Full Court noted in Banks & Banks [2015] FamCA 66 that in relation to interim parenting applications it was instructive to set out what the Full Court said in Goode and Goode (2006) FLC 93-286 at 80,903.

In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

82. In an interim case that would involve the following:

(a)	identifying the competing proposals of the parties;
(b)	identifying the issues in dispute in the interim hearing;
(c)	identifying any agreed or uncontested relevant facts;
(d)	considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)	deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)	if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)	if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)	if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)	if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)	if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)	even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

30The Full Court confirmed that it is the making of an order for equal shared parental responsibility that triggers the requirement to consider making orders for equal time or substantial and significant time.

31In my view, given the history of findings by the Department (albeit untested), the presumption in s 61DA that equal shared parental responsibility is in the best interests of the children does not apply in this case because there are clearly reasonable grounds to believe that there has been abuse of a child. In any event, given the history of this matter, it would not be appropriate in this interim determination to apply that presumption. There is therefore no requirement to consider equal time or substantial and significant time, but in any event, neither would be appropriate in this case.

32The Full Court in Banks (supra), with respect helpfully, pointed out at [50] that:

When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non‑determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issued joined that there are only one or two decisive factors.

33I have taken into account the primary and the additional considerations set out in the Act, but in accordance with the direction given by the Full Court in Banks (supra) I intend to refer only to the matters that are determinative.

34In this matter the predominant issue is whether there is a potential risk to Child B in being returned to the father’s care. The only interim order sought by the father relates to that child. In my view, there is an unacceptable risk of abuse were the child, Child B, to be returned to the father’s care. The Court, on an interim basis, is unable to make positive findings in relation to contested issues unless there is significant corroboration of that evidence. In this matter I have taken into account all of the evidence produced by the relevant child protection authorities and the police. Whilst the evidence is untested, I am not able to make findings of fact, but on an interim decision I must tread with caution. Given the history of the findings and the history of allegations made it would be in the best interests of Child B to maintain the current situation; that is that she not spend any time at all with the father. Telephone calls can continue pursuant to the existing orders. I note that a single expert has recently been appointed and no doubt a report will be provided shortly.

Orders

1. The interim applications before the Court be dismissed.

I certify that the preceding [34] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary