Peterson & Cochrane
[2008] FamCA 597
•1 August 2008
FAMILY COURT OF AUSTRALIA
| PETERSON & COCHRANE | [2008] FamCA 597 |
| FAMILY LAW – CHILDREN – Parenting proceedings – Father charged with 19 criminal offences involving young children – bail conditions varied and father renewed earlier application for supervised time with 8 year old daughter – opposed by mother – criminal trial not anticipated before August 2009 – application dismissed – suspension of earlier orders retained. |
| Family Law Act 1975 (Cth) |
| M and M (1988) 166 CLR 1235 Johnson and Page (2007) FLC 93-344 R and C (Unreported, Full Court, Fogarty Baker and Lindenmayer JJ, 26 June 1993) A and A (1988) FLC 92-800 B and B (1993) FLC 92-357 N v S (1996) FLC 92-655 Goode (2006) FLC 93-286 |
| APPLICANT: | Mr Cochrane |
| RESPONDENT: | Ms Peterson |
| FILE NUMBER: | CSC | 1098 | of | 2007 |
| DATE DELIVERED: | 1 August 2008 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 31 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Benson |
| SOLICITOR FOR THE APPLICANT: | Murray Lyons Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Hamwood – by telephone |
| SOLICITOR FOR THE RESPONDENT: | Miller Harris Lawyers |
Orders
The application of the father filed 16 May 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Peterson & Cochrane is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC1098 of 2007
| MR COCHRANE |
Applicant
And
| MS PETERSON |
Respondent
REASONS FOR JUDGMENT
Proceedings
On 4 March 2008 I delivered judgment on an interim application by the father seeking supervised time with the parties’ daughter (“the child”) who has since turned 8 years of age. I dismissed his application for reasons then given. He has renewed the application for interim orders in light of subsequent developments by an application filed 16 May. By that he seeks an order for supervised time each Saturday for up to four hours or such other time as can be organised at the local Contact Centre. The mother again asks that his application be dismissed.
Further background
These Reasons are to be read together with the Reasons delivered 4 March and therefore there is no need to repeat anything said there, including a summary of the background then available. What follows is a summary of subsequent developments:
(i)The affidavit of Mr McGinness, the solicitor acting for the father in the criminal charges, says the police brief of evidence was made available on 28 March. It includes an audiotape interview of the child by investigating police [no allegations were made by the child and she provided no information concerning the charges]. The father sought to vary his bail conditions to allow supervised contact with the child and consent was given on 3 April. The bail varied, consistent with undertakings given by the father, now provide: ‘(a) That he have no contact with any of the complainants or witnesses except for his daughter [the child]; and (b) He does not have any unsupervised contact with any female under the age of 16 years.’
(ii)Mr McGinnes says there are 19 charges which were the subject of a full hand-up brief on committal in June when the father was committed for trial to the criminal sittings of the District Court. Mr McGinness sees the charges as essentially falling into four categories which he summarises. The child is not a complainant in any of the charges, nor is she a witness, and nor could she properly be described as a ‘potential’ witness in his opinion. But as the father’s counsel pointed out in her submissions, the matter has gone from Police Prosecutions to Crown Prosecutions and the highest it could be put at the moment is that as presently advised the child will not be called as a witness at the trial. Mr McGinness’ suggests from his experience that the trial will not proceed before August 2009.
(iii)A copy of the varied bail conditions were sent to the mother’s solicitors seeking her consent to supervised time with the child. After some delay she declined to give her consent by letter of 2 May.
(iv)The father has approached the local Contact Centre about availability of the Centre to have supervised contact with the child, he has made the Centre aware of the charges he is facing, and he has completed the necessary intake procedures. According to their letter to him of 29 July 2008, the Centre presently has available and offers an hour on Friday afternoons [when other families will not be present] subject to the caveat that the mother still needs to attend an intake and assessment interview before the service could commence.
(v)There is an affidavit from the mother’s solicitor outlining her discussion with an employee from the Contact Centre which, amongst other things, confirms that an hour on Friday afternoons from 2.15pm - 3.15pm is available provided the intake procedures are completed.
The mother in her affidavit evidence sets out the relevant history, she points out [at the time at least] that the father had not provided the Court with any information about the child-related sexual offences with which he is charged, and she set out her reasons for taking the view that it would not be in the child’s best interests to spend time with her father, which bear repeating:
‘a. [The child] has not spent time with her father since November 2007;
b.further evidence is needed before the court would be in a position to determine whether it is in [the child’s] best interests to spend time with her father;
c. I am uncertain as to the father’s future conduct;
d.[The child] would have difficulty in re establishing a connection with [the father] and then this connection broken if he was to receive a custodial sentence;
e. [The child] may experience personal conflict as to why:
i. she has not seen her father since November;
ii. why the current contact regime is limited; and
iii. why her contact with the father is supervised and why she cannot have personal contact with him.’
The mother adds that re-establishing contact would place her in a very stressful position of having to deal with questions from the child about her father. As a talkative little girl, the child may tell her school friends that she has resumed spending time with her father and, given the offences are alleged to have been committed against young children from a number of schools in the local area, this gives rise to concerns about the child having to deal with or respond to negative comment about her father possibly made by other children. Also, if the Court is considering making orders for supervised time, she says any benefits should be assessed beforehand by a qualified child psychologist.
Submissions
Counsel for the father said all that could be said to support his application:
· Reference was made to the availability of the Contact Centre and the awareness by Centre staff of the charges against the father.
· Attention was drawn to the varied bail conditions which no longer impose an obstacle to his supervised time with the child. The committal hearing having been conducted by way of hand-up brief, there had been no ‘hearing’ or cross-examination. Mr McGinness says she will not be a witness at the trial.
· There is a high likelihood it will be another year before the criminal trial proceeds and therefore it would be around two years before there is any prospect of the child seeing her father again, absent interim orders for supervised contact.
· There is no indication of the child’s level of knowledge of the charges her father is facing and nor is there any suggestion that she has been the subject of inappropriate behaviour by him.
· As for the mother’s stated concerns, counsel went through them to discount or dismiss them: the fact that the child has not seen her father since November last year is a good reason for it to commence now; there is said to be a presumption in the legislation about the need to maintain a child’s relationship with a parent and to ensure their relationship is ongoing; the fact that a custodial sentence may occur in the future does not mean contact between the father and his daughter should cease since that would have to be examined at the time and a decision made in light of events; as for the suggestion that the child may be confused about why she has not seen her father if contact is resumed, it is equally true that she could be confused about why she is not currently seeing her father and why she cannot see him.
· The general submission is made that the child’s contact with her father needs to be re-established and the father’s proposal if adopted would see that occur in a safe place which provides an appropriate supervision service.
Counsel for the father is right to direct attention to the legislation and, in effect, to point to the importance those provisions place on maintaining relationships between a child and parent. Of course whether parenting orders are interim or final the law requires that the best interests of the child are the paramount consideration. Best interests are evaluated through the primary and additional considerations set out in s 60CC(2) and (3) under the umbrella of stated objects and underlying principles stipulated in s 60B(1) and (2). While one of the objects is to ensure that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, that is expressed as subject to the obvious caveat: ‘to the maximum extent consistent with the best interests of the child’ and all of the underlying principles - including children’s right to know and be cared for by both parents, their right to spend time on a regular basis with and communicate with both parents – are subject to a similar caveat: ‘except when it is or would be contrary to a child’s best interests.’ So while it might well be correct to say that the legislation emphasises the importance of maintaining relationships between a child and parent, objects and underlying principles about ideals, entitlements and ‘rights’ must give way to any overriding evaluation of the child’s best interests.
Turning to the submissions for the mother, counsel identifies the core issue to be whether the risk to the child’s well being by making the orders the father seeks is to be seen at this interim stage as ‘unacceptable’. While he did directly not say so, counsel is obviously referring to the principle of unacceptable risk in its application to the evaluation of children’s best interests as discussed by the High Court in M and M (1988) 166 CLR 1235. That discussion is directed to risk of sexual abuse of a child, but it is equally applicable to all risks of harm to a child and the passages to follow from paragraphs 77-78 of the decision are to be read in that light and not taken to be apposite in that respect to the facts of the present case:
‘In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’
In his discussion of appellate decisions on the topic in the article “Unacceptable risk – A return to basics” (2006) 20 Australian Journal of Family Law 249 the Honourable John Fogarty AM summarised the principles arising from M and M and his discussion and summary was later adopted by the Full Court in Johnson and Page (2007) FLC 93-344 at 81,890, replacing references to ‘Briginshaw’ with s140 Evidence Act (Cth) ; namely:
‘1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
It might be added that a finding of no unacceptable risk does not mean necessarily the end of the matter because consideration may have to be given to the other parent’s belief about underlying risk and whether that belief is genuinely held. The issue was discussed by the Full Court in R and C, SA 45 of 1992, published 26 June 1993 and taken up again in the later Full Court decision of A and A (1998) FLC 92-800 [Fogarty, Kay and Brown JJ]. As discussed there, if the parent’s belief is genuinely held then consideration may have to be given to whether the arrangements contemplated, despite the finding of no unacceptable risk, would so impact on the parent’s capacity as primary carer as to impinge upon the interests of the child. If the answer is in the affirmative, other arrangements proportionate to the circumstances may need to be considered to ally the apprehensions of the primary carer [see also B and B (1993) FLC 92-357 and N v S(1996) FLC 92-655].
That said, I return to a summary of the submissions of counsel for the mother:
· The brief of evidence offered by the police reflects a strong prima facie case to the effect that the father has engaged in criminal behaviour against young children around this child’s age and it is said this poses a high probability of potential risk to her. Examination of the brief of evidence reflects allegations related to 9 or 10 year old child and one 12 year old who is assessed as learning impaired. The subject child is depicted in one of the photographs of a child. It is said to be clear from the brief of evidence that it is being alleged the father’s actions were premeditated, it is alleged the camera to photograph the children was deliberately set up for that purpose, and it could be concluded that his actions as alleged were contrived to get the children wet so they would have to change in the room where the camera had been set up and could be secretively photographed. It is also submitted that a suggestion arises to the effect he used his daughter as part of a scenario in a ploy to make the parents of the other children see him in a ‘family’ context. Also, the offences allegedly occurred while he was in a situation of trust as an instructor to children who were undertaking extra-curricula activity. Conceding there to be no evidence that the child had been exposed to any of the behaviour alleged, it is submitted concerns must arise about such behaviour, including some instances of alleged touching which in the professional literature on the subject is referred to as ‘grooming’ behaviour. No plausible explanation to address or mitigate the allegations has been advanced.
· It is only when the State Court has concluded its’ process can this Court be in a position to assess the issue. If the father is convicted it will be necessary to see if he accepts he has been properly convicted and from there consider whether he has sought or intends to seek any therapy or treatment and assess from that standpoint the magnitude of risk to the child. If he is not convicted, this court will embark on an examination of the issue with the balance of probabilities as the standard in order to assess the magnitude of risk to the child.
· As for the proposal to have the time supervised, this is said to be no answer to the issues involved here. While there would be someone else in the room, there may be subtle behaviour not readily ascertainable to which the child would be exposed. Also, the time offered by the Centre is currently limited to one hour which is in school hours and that means the child would be taken out of school which may very well draw questions from curious children which she will have to confront. Furthermore, she will need to be collected from school and taken to the Centre and collected afterwards by her mother or someone she arranges and she has other stresses to contend with. Not only is the available time short but also it may be abandoned or curtailed because another family using the service is late or early, so it is difficult to say if the proposal would work at all.
· It is said that the child is not exhibiting any distress or reaction to the absence of her father and it can be inferred that if contact is resumed and intermittent and then terminated if he is incarcerated on conviction, that is more likely to have an adverse effect on the child than not re-introducing contact now in all these unresolved circumstances.
· The general submission is made that when the proposal is weighed against the probability of risk in the context of uncertainty about the quality and quantity of supervised time, the conclusion ought to be that there should be no order and the application dismissed.
Approach - best interests
I referred to the approach to the application of the provisions of the Act in my Reasons of 4 March where reference was made to the Full Court decision of Goode (2006) FLC 93-286 decided in light of the 2006 amendments. I do not repeat that here, save to emphasise again the necessarily limited scope of interim hearings and the inability (most usually) to make findings on issues related to the substantive merits of the case.
I turn to the ‘additional considerations’ which can be dealt with briefly on the scope of the evidence presented here.
· There is no evidence of any views expressed by this child about the proposal under consideration and nor could this child be seen as having attained such an age or stage of maturity as to attract any significant weight to views she might have expressed.
· There is no evidence of the nature of her relationships with her parents or others at this stage. However, given the arrangement in place before it was suspended by Court orders following the criminal charges and given the absence of any adverse comment about it by the mother, it can be inferred that the child did have a good relationship with her father. It can also be inferred that she has a good relationship with her mother and there are sound relationships in place with others in her household.
· Those earlier arrangements included the child spending time with her father from Sunday morning to Wednesday morning each week and she was otherwise in her mother’s care. It seems to have been a satisfactory arrangement all round, at least based on what was known. Applied to that period of time, there is no evidence of complaint by either parent about the other’s willingness or ability to facilitate and encourage a close and continuing relationship between their daughter and her other parent. Nor is there any evidence reflecting adversely upon the attitude of either parent to the responsibilities of parenthood, nor upon the capacity of either to meet their daughter’s needs, including her emotional and intellectual needs.
· Applied to circumstances as they can only now be known, the mother’s position of resisting re-introduction of contact between the child and her father could not be seen as unreasonable or contrived in some way to inhibit or sever the relationship between the child and her father. Certainly no submission was made for the father to that effect. Also, in my opinion the nature and gravity of the unresolved criminal charges against the father makes it very difficult to arrive at the same favourable conclusions that no doubt would have been made earlier upon any consideration of his attitude to his parental responsibilities and his capacity to meet his daughter’s needs. Of course such reservations may later be established as unwarranted but unless and until there is a resolution of the charges going the father’s way, there could be no sufficient confidence in making those assessments favourable to him.
· To conclude reference to the additional considerations, nothing in the evidence suggests any issue of violence involving the child or a member of her family.
Turning to the primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents [s 60CC(2)(a)]. Certainly it seems to have been accepted before the events of late last year that this child would benefit from having a meaningful relationship with both of her parents, at least on what was known. But those events now call this into question and it cannot be properly assessed until later when further evidence will be available to evaluate it. The other primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to ‘abuse, neglect or family violence’. There is no suggestion this child has been subjected to or even exposed to ‘abuse, neglect or family violence’ as the first and last of those terms are defined by the Act. The suggestion of potential harm to this child arises from the circumstances discussed in the submissions of counsel for the mother which fall more conveniently under any or all of s 60CC(3)(i), (f), and (m) - namely, attitude to parental responsibilities, capacity to meet the child’s needs, and any other fact or circumstance – and I have already said that assessments favourable to the father ought in the child’s interests be withheld until more is known of his situation.
Having traversed those matters as best can be done on the limited evidence available at this stage, it is recognised that the father’s case proposes relatively limited time be spent with the child in a supervised setting that would be a safe environment for her and therefore would not expose her to any harm or represent a risk of harm. Nor do his bail conditions any longer constitute an obstacle to such any arrangement. Combined with the apparently good relationship the child would have had with her father before these developments, and the likely time before the criminal charges are heard, they are very weighty considerations which favour orders being made to that effect.
However, in my assessment this child’s interests require the application to be dismissed. On the other end of the scales and tipping against that outcome are a number of contra-indicators. First there are the reservations about the father’s parental attitudes and capacities as discussed. Further, the proposition that re-introduction of contact with her father could create difficulties for the child by that fact becoming known amongst other children has some force, particularly as she would have to be taken out of school for that purpose. In that event there is likely to be questions directly to her and she will have to confront them when it is not in her interests that she should have to do so. Also, the proposition that re-introduction of fairly limited contact as proposed could be short lived if the father is convicted and receives a custodial sentence has some merit. Of course that is not to say it is going to happen but it has to be considered a real possibility in the circumstances. Furthermore, this child can be taken to be settled in her current situation with her mother and it would be more consistent with her interests if she were to remain so at least until the circumstances that have brought about such a drastic change to her time with her father are properly examined and resolved. In a time of immense change and obvious uncertainty, she can be taken to need stability of routine and environment rather than be put in a situation where she could be de-stabilized and unsettled which, in my assessment, the father’s proposal has the capacity to bring about. She is apparently well looked after by her mother, she is in a well-settled family environment, there is no suggestion she is experiencing difficulties at school or in her social interactions with others. Finally, her mother is wholly responsible at this stage for her day to day care and supervision, she has just given birth and says she feels stressed by the application, and she is steadfast in her opposition to the father’s proposal while ever the criminal charges are outstanding and the father’s future is unknown. There is no reason to see her viewpoint as other than genuinely held and it certainly is not said to arise from some malign desire to thwart the child’s relationship with her father. As the child’s sole carer, her attitude is not a determinant of itself, but there could be implications for her care of the child in some way and therefore it does carry at least some weight.
For all these reasons, I am of the view that this child’s best interests overall require the father’s application to be dismissed. In doing so it is recognised it may be some time before the child has any further contact with her father and the longer term future will not be addressed for another year or more.
To conclude, Goode (supra) discusses the framework of the Act and the obligation to apply the statutory presumption of equal shared parental responsibility [s 61DA(1)] and the consequent obligation if it applies to consider equal time and substantial and significant time. Nothing is said here of any of those matters for the obvious reason that the case has been confined to the narrow but nonetheless important issue of re-introducing limited supervised time on an interim basis. The sole parental responsibility given to the mother in previous orders has not been challenged and it follows there is no need to go down that artificial path.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
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