RILEY & NORMAN

[2018] FamCA 314

FAMILY COURT OF AUSTRALIA

RILEY & NORMAN [2018] FamCA 314

FAMILY LAW – CHILDREN – Interim Application – Where father seeks orders restraining children from having contact with certain persons whilst in the mother’s care and orders for no physical discipline to the children – Where mother does not oppose the father’s application in relation to one of the said persons but otherwise resists application – Allegations of sexual abuse to child by one of the said persons – Allegations of physical abuse to children by said persons – Best interests – Where mother is restrained from allowing the children to have contact with one of the persons – Where mother is restrained from allowing herself and others to physically discipline the children.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286 at 80,903
Salah & Salah [2016] FamCAFC 100
Eaby & Speelman (2015) FLC 93-654
SS v AH [2010] FamCAFC 13

APPLICANT: Mr Riley

RESPONDENT: Ms Norman

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: CSC 165 of 2008

DATE DELIVERED: 10 May 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 16 February 2018

REPRESENTATION

SOLICITORS FOR THE APPLICANT: Turnbull Mylne

COUNSEL FOR THE RESPONDENT:	Mr Pennell
SOLICITORS FOR THE RESPONDENT:	Rennick Lawyers

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: M M Meehan

Orders

1. The mother is not to permit and is hereby restrained from allowing K, T and B (“the children”) from having contact by any means with Mr C.

2. In the event that any of the following persons have any contact with the children, then the mother is to be present at all times they are in that person, or those persons, company: Mr D, Mr E, Ms M, Mr F, Ms G and Ms H.

3. The mother is not to, and is hereby restrained from, permitting others to, or herself, administering or threatening to administer, physical discipline upon any of the children, and in the event others do so, or threaten to do so, is to forthwith remove the children from that person’s presence, and to advise the father of the occurrence or threat within 21 hours.

4. Otherwise the father’s Application in a Case filed 7 December 2017 is dismissed.  

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC165/2008

Mr Riley

Applicant

And

Ms Norman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Application in a Case filed 7 December 2017, Mr Riley (“the father”) seeks orders restraining the three children the subject of these proceedings from having contact by any means with eight named persons, and further, seeking to restrain any person from administering or threatening to administer physical violence upon the children.  Initially the material filed in support of the application did not set out any basis upon which such orders could be made, although ultimately on 14 February 2018, an affidavit setting out the nature of the allegations against the eight persons was filed.

2. For her part, Ms Norman (“the mother”) did not oppose an order restraining the children from having contact with one of the named persons, but otherwise resisted the father’s application.  That said, she was content to submit to an order requiring her to remain present with the children during any time which they may spend with the other seven named persons, and further, not to permit others to administer or threaten to administer physical discipline to the children, and in the event they did so, to forthwith remove the children from that person’s presence and to advise the father of the occurrence or threat within 24 hours.

3. The Independent Children's Lawyer supported orders in the terms which the mother was prepared to submit to.

4. On 16 February 2018 I heard the application but reserved my decision.  This is that decision and the reasons for it.

BACKGROUND FACTS

1. The three children the subject of these proceedings are K (born in 2003, and hence presently 14 years of age); T (born in 2005, and hence presently 13 years of age) and B (born in 2006, and hence presently 11 years of age).

2. The principal proceedings have had a long history, and it appears as though the parties remain locked in bitter conflict.

3. The most recent set of interim parenting orders were made by consent on 20 June 2017 and provide for the children to live with the father and spend time with the mother in the school holidays. However it appears as though, for reasons I need not descend into at this stage, much of the time that the children were to spend with the mother has not in fact been exercised by her.

4. Not long after the children came into the father’s care in December 2016, they commenced to consult Dr J, a clinical health and forensic psychologist.  The children have made disclosures to her in relation to physical mistreatment whilst living in the mother’s home in K Town. More concerningly, in September 2017, B disclosed to Dr J that she had been sexually abused by Mr C, who is her maternal grandmother’s partner.  The sexual assault comprised him fondling her on the breast, and kissing her using his open mouth and tongue. 

5. In her affidavit filed 6 February 2018, the mother appears to concede that B did indeed make a complaint to her that she had been touched on the breast by her step-grandfather, but the mother says that “she didn’t mention any kiss though, only about touching her breast. For which I replied words to the effect of “remember Pop’s blind and doesn’t always know where he is touching”.”  In that affidavit the mother went on to say that she told B that “it was probably an accident because he couldn’t see where he was touching and has to feel around for his surroundings.”  For his part the father’s affidavit filed 14 February 2018 appears to dispute that Mr C is blind, as he recites a list of activities which the children report Mr C attends to in the home.

6. At this point I should note that it is Mr C whom the mother concedes ought not be permitted to have further contact with the children, at least until further order.

7. In consequence of being advised of this disclosure, the father made complaint to police, and on 7 October 2017 provided a statement.  That has led to the children providing video recorded statements to police on 17 October 2017 in L Town, and the matter has subsequently been referred to the CPIU in K Town for further investigation.  It appears as though that investigation is ongoing.

8. The father’s affidavit of 14 February 2018 details the various allegations of assault that have been made by all three children.  Some of the assaults are said to be by the mother, and appear to have a disciplinary character to them.  For instance it is said that on a date and time unknown, between 2008 and 2017, the mother would slap K with her hand and hit him with spatulas, a couple of times a week.

9. One of the other named persons is the children’s maternal grandmother, Ms C.  It is said that she would repeatedly slap both K and T with her hand, spatulas, wooden spoons and hairbrushes and throw “random items” at them from time to time.

10. Some substantiation of the claims in relation to the grandmother can be found in a school record of 2 June 2015 produced by the Department of Education pursuant to subpoena in the proceedings.  It records, for instance, that “[T] said that his nan was not nice and would hit him across the head with a spatula… [T] said it doesn’t happen all the time and when he told his mum she said she didn’t believe him and that he was lying. [T] continued to say that his nan only hit when no one was home. His mum was at college and the other kids were out…”  However that document also notes “[T] said that his dad hits him too but he was used to it because his nan hits him harder.”

11. I should observe that T’s disclosure to the teacher recorded in the Department of Education note of 2 June 2015 is inconsistent with the father’s recital of what was in his police statement, which asserts that the mother was present during the grandmother’s assaults, and did not intervene.

12. That said, the mother concedes that her mother (and seemingly her partner) “are the only ones who have smacked the children in the past by hand.  To my knowledge they have not been thrown across rooms, or been bruised in any fashion.”

13. More serious complaints are made by the father in relation to other maternal family members, including two of the children’s great uncles, Mr E and Mr D.  Mr E is said to have hit K with a wooden coat hanger across the back of the legs, and Mr D is said to have hit K with a belt buckle.  Mr D is also said to have “constantly hit T with a belt buckle on his back.”

14. The other persons in relation to whom allegations are raised are three of the mother’s step-sisters, and the mother’s ex-partner, a Mr F.  The allegations which the father raises against them range from physical disciplinary type contact, to what appear to be assaults. As to those, the mother seems to concede in her affidavit of 6 February 2018 that the children disclosed to her that their uncle and step father had hit two of the children with a belt buckle, however no detail was able to be described to her.  Further she says “the three children have at many times presented with fantastic behaviour.”  Additionally she alleges that “this is an attempt by the father to exclude the children from their whole family.  This is what [the father] did to me when the children were young.  [The father] moved us away from my family support.”

15. However the mother concedes that her parents have smacked the children in past with their hands, and further says that, but for her parents, the majority of the other people in the list of persons in the father’s application “are family members the children rarely see and spend time with.”

16. For whatever reason, it appears as though the mother has not seen the children now for some months.

RELEVANT LEGAL PRINCIPLES – INTERIM PARENTING PROCEEDINGS

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. 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.

2. Recently in Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:

   [36]It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode (2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

   [37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   [39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).

THE COMPETING PROPOSALS

1. I have already noted the competing proposals of the parties in the introduction to these reasons.  That said, this is not the usual application for interim parenting orders, but rather is a contest between the appropriate terms of injunctions which should govern the children’s interaction with the named persons in the father’s application.

ISSUES IN DISPUTE

1. The primary issue in dispute is the extent to which, if at all, the children are at a risk of harm if they are brought into contact with the named persons.  To the extent that there is any risk, the primary issue in dispute then becomes the means by which that risk should be appropriately managed or mitigated.

2. Beneath those primary issues however, are significant disputes as to the alleged individual actions of those persons on numerous occasions.  Those are not matters which are susceptible of resolution in proceedings on an interim basis.

AGREED OR UNCONTESTED FACTS

1. There are a few matters upon which the parties are agreed.  However, it appears to be not in dispute that:

   ·The children have had, to varying degrees and at varying times, contact with all of the named persons;

   ·B asserts that she has been sexually assaulted by her grandmother’s partner on one occasion during 2016, and has disclosed this firstly to the mother, and secondly to Dr J;

   ·The boys have disclosed that they have been assaulted by a number of the named persons to Dr J, and that the mother’s uncle, Mr D, has hit T with a belt buckle, although they could not provide details of the incident;

   ·The mother’s parents have smacked the children by hand in the past.

2. It also appears clear that in 2015, T made complaint to a teacher at his school that his maternal grandmother would hit him across the head with a spatula when no one else was at home, and that his father hits him as well.

SECTION 60CC CONSIDERATIONS

1. The principal matter raised by this application is the second primary consideration, namely the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.

2. Generally speaking, the material, and more particularly the disputes in relation to it, does not permit me to make positive findings in relation to the children’s past exposure to physical assault by others, save that it is conceded that B made complaint in relation to inappropriate touching of her by her step-grandfather, and the mother concedes that her parents (meaning I assume, her mother and step-father) have smacked the children by hand.

3. The other assaults alleged by the father are not conceded, and the mere fact that the children have made alleged disclosures, does not automatically mean that I should accept that those assaults occurred as they have relayed on occasion.

4. Nonetheless plainly there is a need to ensure that the children are physically safe when they are in the mother’s care.  I am satisfied that in relation to the maternal step-grandfather, the risk which he poses is a real one, and indeed the mother implicitly concedes it by accepting that he should not be permitted to spend time with the children again.  I accept that the evidence justifies that view.

5. I do not have any direct views expressed by the children.

6. It would seem as though the children have reasonable relationships with their maternal grandparents, and implicitly, have a relationship of some significance with the other named persons.

7. It could be conjectured that the children may suffer some upset if they are restrained from having contact with their grandmother and step-grandfather, and perhaps the other named persons.

8. The father asserts that the assaults have taken place in the mother’s presence and she has not intervened.  If that is true (and I cannot conclude that either way in these interim proceedings) then it may cast some doubt on her capacity to provide for the children’s physical safety and emotional wellbeing.  That said, I note that T asserts that the father has hit him; if true, it would likewise cast some doubt on the father’s capacity.

1. The father’s allegations, taken at their highest, would comprise family violence, but as I have indicated, with the exception of the step-grandfather, no real assessment of the level of risk of a repetition of any family violence is able to be undertaken on an interim basis.

DISCUSSION OF APPROPRIATE ORDERS

1. I am well satisfied that it is appropriate that, until further order, the children should be restrained from having contact with Mr C, the mother’s step-father.  The material comfortably satisfies me that there is a risk of further (even inadvertent) sexual assault of B, and it would be inappropriate merely to tailor the injunction in relation to her.  I am therefore satisfied that the injunction which the mother concedes ought be in relation to her step-father is in the children’s best interests and will make it.

2. As to the remaining named persons, as I have indicated, the material does not permit me to be satisfied that those persons represent such a risk of physical harm to the children that they should not be permitted to have contact with the children under any circumstances whatsoever. Perhaps the most extreme example of the weakness of the father’s case is in relation to Ms H, who is the mother’s step-sister.  The only allegation against her is that in 2008 and 2010, she slapped T’s legs and hit him on the legs.  The last of those alleged assaults is now almost eight years ago.  The suggestion that she is likely to physically seek to discipline either of the boys, (who on the evidence are now quite large and capable of protecting themselves) borders on fanciful.  Precisely why, based upon alleged assaults the last of which was nearly eight years ago, the children should be restrained from having contact with her by any means whatsoever, is difficult to fathom.

3. Whilst Ms H is perhaps the high water mark in this respect, similar observations of lesser force can be made in relation to some of the other allegations.  In any event, they are not conceded.

4. I am satisfied that such risk as those persons may pose to the children of physical harm can be sufficiently accommodated by the orders as conceded were appropriate by the mother and contended for by the Independent Children's Lawyer, namely that the mother is to be present if the children are spending time with any of the other named person, and further, is not to permit others to, or herself, administer or threaten to administer physical discipline upon any of the children, and in the event that others do so or threaten to do so, the mother is to forthwith remove the children from that person’s presence, and to advise the father of the occurrence or threat within 24 hours.  That is a sufficient response to the risk posed by the named persons other than the step-grandfather.

5. I am satisfied that, because that order sufficiently mitigates any risk, and yet permits them to maintain family relations, it is an order that is in the children’s best interests and I will pronounce it.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.     

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 May 2018.

Associate:

Date: 10 May 2018