Ruddock & Robins
[2007] FamCA 1181
•30 August 2007
FAMILY COURT OF AUSTRALIA
| RUDDOCK & ROBINS | [2007] FamCA 1181 |
| FAMILY LAW - APPEAL – Interim parenting orders – Unacceptable risk – Father had pleaded guilty and was convicted of child pornography offences in 2006. The Tasmanian Department of Child and Family Services concluded that he did not pose an ongoing risk to his two children and they returned to live primarily in his care until May 2007 when the mother obtained a restraining order against the father – Upon application by the father, the Federal Magistrate ordered that the children live with the mother three nights per week and the father four nights per week – Mother appealed the Federal Magistrate’s orders and sought that the father have only supervised time with the children on Saturdays because of concerns about the father’s behaviour – Held that it was open to the Federal Magistrate to conclude that the father did not pose an unacceptable risk to the children after considering the Department’s conclusion, the passage of time after the father’s conviction during which the parties agreed that the children live primarily with the father, and the absence of material showing any inappropriate interference by the father of the children – Appeal dismissed |
| Family Law Act 1975 (Cth) N and S and the Separate Representative (1996) FLC 92-655; (1995) 19 Fam LR 837 House v The King (1936) 55 CLR 499 |
| APPELLANT: | MS RUDDOCK |
| RESPONDENT: | MR ROBINS |
| FILE NUMBER: | LNC | 268 | of | 2007 |
| APPEAL NUMBER: | SA | 56 | of | 2007 |
| DATE DELIVERED: | 30 August 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Kay J |
| HEARING DATE: | 30 August 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bishop |
| SOLICITOR FOR THE APPLICANT: | Bishops Barristers & Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Mills |
| SOLICITOR FOR THE RESPONDENT: | Kate Mills & Co |
ORDERS
The appeal is dismissed.
Order 3 of the orders made by Federal Magistrate Roberts on 20 June 2007 but subsequently stayed pending the outcome of the appeal now be varied by substituting “3 September” for “28 June”, and order 11 of the said orders now be varied by substituting “29 September” for “28 July”.
Each party bear their own costs of the appeal.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: LNC 268 of 2007
APPEAL NUMBER: SA 56 of 2007
| MS RUDDOCK |
Appellant
And
| MR ROBINS |
Respondent
REASONS FOR JUDGMENT
This is an appeal against interim orders made by Roberts FM on 20 June 2007. It concerns orders for parenting arrangements for two children, A, born November 1999 and currently seven years of age, and M, born March 2001 and currently six years of age.
The Federal Magistrate’s orders provided for the children to live with the mother each week from after school Friday – I will paraphrase here – until the commencement of school Monday. On one out of every four weeks the arrangements were to be from 3.00 pm on Saturday until 9.00 am on Tuesday, rather than the Friday to Monday arrangement. So three nights each week the children were to live with the mother and the balance of the time they were to live with the father.
The orders further provided for the father and the mother not to be under the influence of marijuana or any other illicit substance or to excessively consume alcohol during any periods when the children were in his or her care.
The orders provided for telephone communication between the parents and the children.
They provided, by consent, that the children were not to be left unsupervised with the mother’s then partner, Mr B Ruddock, nor were they to share a bed with the father.
The matter was transferred to the Family Court of Australia with a request that the matter be included in the Magellan program, and an independent children’s lawyer was appointed.
The mother, by her appeal, seeks orders to the effect that the children reside with her pending the Family Court proceedings and that the father have only supervised time with the children and that should be Saturdays from 9.00 am to 5.00 pm at the Launceston Contact Centre, and that such time is conditional upon the father providing a urine test certifying he has not ingested marijuana.
The background circumstances that led to the proceedings coming on before the Federal Magistrate were that the mother had obtained an order from the Launceston Court of Petty Sessions, pursuant to the Tasmanian Justices Act 1959, being an interim restraint order issued on 28 May 2007 that prohibited the father, inter alia, from approaching the mother, her two children from a previous relationship, S and B, and the children the subject of these proceedings:
directly or indirectly including by telephone, email, facsimile or letter except:
a)for the purposes of attending:
i) Family Court or Legal Aid conferences;
ii)meeting by consent between the applicant and the respondent in the presence of a third party to discuss matters relating to the children [A] and [M] or other matters arising out of their relationship;
b)by letter to negotiate such matters;
c)for contact with the children named above as agreed or as ordered by a court of competent jurisdiction;
d)during an appearance in court proceedings involving the parties or discussions in the court precincts for the purpose of them [as] consented to by both parties.
The existence of that ex parte interim restraint order, which was made in proceedings that were then adjourned to 28 June 2007, came as somewhat of a surprise to the father, seeing that the children had been living in his care, or substantially in his care, for several months prior to the making of that order. They had gone to their mother on an understanding that they would be returned within a very short period of time and, much to his surprise, the father found himself prohibited from making contact with the children, who had, as I have indicated, been in his care.
The father then brought proceedings in the Federal Magistrates Court in early June 2007 seeking to have the children reside with him. The mother responded seeking orders that they reside with her and that the father have only very limited opportunities to spend time with them while under strict supervision.
By way of further background, it should be pointed out that the parents of the children, that is, the parties to these proceedings, had been in a relationship for several years but their relationship came to an end in early 2006 when the mother discovered that the father was in possession of some pornographic material relating to children. The mother drew those matters to the attention of the local police. That seems to have led to a fairly rapid situation where the father was charged, pleaded guilty, and was convicted before the Supreme Court of Tasmania.
The penalty imposed on the father was a fine of $1,000 and he was placed on the Community Protection Offender Register which had certain ramifications. He was also ordered to pay $50 compensation levy under the Victims of Crime Compensation Act 1994 (Tas) to the Clerk of Petty Sessions at any Service Tasmania Office.
The children were then effectively kept away from the father’s care whilst the matter was investigated by the Tasmanian Department of Child and Family Services, who concluded, acting upon the advice of a child psychologist, Dr J H, that the father did not represent any real threat of harm to the children nor was there any impediment to him having unsupervised access to them.
The Department indicated in a letter to the father of 10 August 2006 that they concurred with Dr J H’s assessment that he did not pose an ongoing risk to his children and that the manner and type of contact that he was to have with the children was to be a matter determined between the children’s mother and himself.
Free to resume contact, in the sense of being uninhibited by the Department of Child and Family Services, the children returned to the father’s care albeit there is some dispute between the parties as to the degree in which the children remained in the father’s care as compared to the mother’s care. It was the father’s case, as described by the Federal Magistrate, that after the receipt of that letter:
I continued as the primary carer for [A] and [M] with them spending, at most, one night with [the mother] per week. The limited time the girls spent with their mother was at her instigation, not mine.
The Federal Magistrate says that the mother responded in her material:
On 16 August I allowed [the father] to have unsupervised contact. He decided they would stay with him. He did not give me any choice. He just told me what was happening.
The arrangement of the children spending considerable, if not the vast bulk of their time with their father continued up until the mother’s unilateral movement in May 2007 before the local Court of Petty Sessions. There was a dispute in the material before the Federal Magistrate as to the extent of the mother’s involvement. But what was apparent from either view was that the father had very significant involvement with the children, with no endeavours by the mother to raise issues that the children were at any particular risk in his care.
The mother attended upon a solicitor who wrote on 2 May 2007 a very long letter to the father, in which that solicitor said that:
We understand that [A] and [M] have substantially lived with you since late 2006 but that the said children have spent substantial time with our client and with [S] and [B] with whom they are closely bonded.
I should interpose that both S aged 11 and B aged 10 are children of the mother’s previous relationship. Both have remained in the care of their mother at all times. The letter goes on to say:
As you are fully aware, our client has at all times been most concerned that [A] and/or [M] have been in your care on an unsupervised basis due to her concerns that, due to the matters referred to above [that is the matters that relate to the father being in possession of naked pornographic images of young girls] and a number of other incidents, the children are at some risk of abuse.
The letter goes on to say:
Our client considers that it is in the best interests of [A] and [M], both generally and in relation to risk of sexual and verbal abuse, that they live full-time with her and that your time with the children be limited and supervised.
However, our client accepts that the said children have been substantially in your care for a significant period of time and that [M] has expressed wishes to primarily live with you.
Of course, our client’s above attitude as to the future living arrangements for the children may be subject to review if she was able to see and accept clear, cogent, strong evidence that you in fact pose no risk to the children. Of course, some of that evidence may be on the Intake and Assessment File, but due to laws in relation to privacy and confidentiality our client has never had access to any relevant information that may be on such file.
If the advice originally given to our client by Intake and Assessment that you are a low risk proves to be accurate, and subject to satisfaction of her concerns as to your ongoing abusive behaviour, then our client may well be prepared to resolve parenting issues on the basis that future parental responsibility for [A] and [M] be shared equally between you and that they spend equal time with each of you.
However, if there is evidence that either child is subject to unacceptable risk of sexual or inappropriate verbal abuse in your care, then our client will be vigorously seeking that she have the sole parental responsibility, that the children live with her and that you have supervised time with them only.
Due to the realities of the situation, namely, that [A] and [M] have been substantially in your care since late last year, our client is not proposing any urgent application to the court but would rather work through with you the above issues either by correspondence between solicitors and/or through mediation.
Of course, our client reserves the right to institute proceedings pursuant to the provisions of the Family Law Act without further notice but such step is not her preferred way of proceeding.
The letter then went on to suggest the parties attend some mediation, and indeed it is quite clear that they went to mediation later in May 2007, but the mother does not appear to have been content with the outcome of the mediation and immediately thereafter commenced the proceedings in the Tasmanian Court of Petty Sessions.
In her material before the Federal Magistrate the mother deposed that she had further concerns about the father’s conduct. In particular she deposed about an incident in 2001 when the child S was five years of age. She said:
… I walked into [S’s] bedroom and found [the father] squatting at the side of her bed. Her pyjama bottoms were down. He was leaning over her and touching her. When I spoke he jumped up and his penis was erect. I wanted to kick him out or leave but I didn’t know where I could go with four children.
She further asserted:
In or about January 2006 [S] told me that she woke up with no clothes on and she thought [the father] had done something to her.
Relying upon those matters and a general history, she said, of being involved in threats and bullying by the father, and some other incidents, including one particular night when the father broke into her house, and, it was asserted, assaulted her and threatened that she should be put in a psychiatric institution, she asserted that the children were at risk with the father and that orders should be made immediately providing for the children to remain in her care.
The father disputed the assertions of the mother, save that he admitted that he had been at the mother’s home in May 2006 when the police were called, but he indicated that he had called the police, having received text messages from the mother that she was suicidal and he broke into the house because he was concerned about the welfare of the children and the mother’s psychiatric state. Other than that, as I have indicated, he put into issue the assertions of the mother.
The Federal Magistrate concluded that there was, in his assessment of the matter, no immediate unacceptable risk to the children continuing to reside with their father. He was particularly reliant upon the assessments that had been made by the state welfare authorities. The expression that he used that has been the subject of much attack by Mr Bishop on behalf of the mother reads (his own emphasis):
90.As I have said, there is no “evidence” that the children are at risk in the care of their father. The only evidence is that [Dr J H] concluded that there is not a risk.
91.It seems to me no judge can ever say “there is no risk”. The question is: is there an unacceptable risk?
The Federal Magistrate said that he could not conclude that there was an unacceptable risk and he referred to the matters discussed by Fogarty J in the decision of N and S and the Separate Representative (1996) FLC 92-655; (1995) 19 Fam LR 837. Although Fogarty J was in the minority in the outcome of the judgment, the issues that his Honour discussed and the obligations of the court in endeavouring to assess an unacceptable risk have found favour with subsequent Full Courts and in particular were relied upon more recently by the Full Court in Napier and Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395.
Mr Bishop has sought to place significant emphasis upon a passage from the judgment in Napier and Hepburn (above) where the Full Court said, in discussing what happens at a final hearing not what happens at an interim hearing:
91.That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on the likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated. No such evaluation appears to us to be apparent in the reasons provided by the trial judge.
It is asserted here that the Federal Magistrate has simply ignored the evidence of the mother that relates to the complaint that the mother saw the father acting quite inappropriately with S some six years earlier and that S had complained to the mother that she found herself waking up naked “and she thought [the father] had done something to her” about a year earlier.
It was submitted effectively, that the Federal Magistrate, armed with these assertions, albeit that they were assertions that were being denied and could not be tested, and the conviction by the father of the possession of child pornographic material, could not come to any other conclusion than that those factors alone amounted to the children being at an unacceptable risk in his care, particularly in circumstances where there was evidence of inappropriate use of marijuana and the fact the father and the children had shared a bed together for some time.
There was no evidence that the children had in fact been inappropriately interfered with by the father or that they had complained of any behaviour on behalf of the father. What was being asserted was that the Federal Magistrate should have been attuned to an unacceptable risk of harm and that the only conclusion he could have reached on the evidence was there was an unacceptable risk of harm.
The Federal Magistrate however, had expressed the view that he was particularly influenced by the conclusions reached by the state child welfare authorities and by the arrangements that the parties themselves had reached for nine months immediately prior to the hearing, namely that the children had been significantly in their father’s care, and the mother was proposing to continue that arrangement unless the evidence disclosed ultimately that the children were at risk, as indicated in the letter from Mr Murray then acting on behalf of the mother. He had proposed:
Due to the realities of the situation, namely that [A] and [M] have been substantially in your care since late last year, our client is not proposing any urgent application to the court but would rather work through with you the above issues, either by correspondence between solicitors and/or through mediation.
It is with that background that the Federal Magistrate reached the conclusion that he was not satisfied the was an unacceptable risk to these children if they continued living in their father’s care pending the further transfer of the proceedings to the Family Court, the appointment of a independent children’s lawyer and further investigation of the matter by the Family Court.
In his very thorough and carefully thought-out written submissions, Mr Bishop on behalf of the appellant mother wrote the judgment that he says the Federal Magistrate ought to have written, indicating a conclusion based on the circumstances of the case that the Federal Magistrate should have reached. This asserted conclusion was that there was an unacceptable risk to the children pending the further investigation of the matter.
This is an appeal from a discretionary judgment. There is no doubt that the Federal Magistrate could have reached a conclusion that the children were at an unacceptable risk in the father’s care pending further investigation of the matter. But my inquiry in determining whether or not there is an appealable error is not to determine that the Federal Magistrate could have reached that conclusion but to determine whether he had any option other than to reach that conclusion or that he reached the conclusion that he did by inappropriate procedure or failed to pay attention to the appropriate principles. I refer to the usual authorities of House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719 on the interference by an appellate court in discretionary matters.
Whilst I am troubled by the conclusion reached by the Federal Magistrate, I can understand the path which he took to reach it and I cannot come to the conclusion that it was not open to him, on the material – namely, after an investigation by the state authorities of the elements of risk to the children and the conclusion that there was not in their view an unacceptable risk and by the passage of time in the arrangements that the parents had themselves reached and the absence of any material that there had in fact been any inappropriate interference with the children the subject matter of the proceedings – to reach the conclusion he did, nor do I detect that he did so by an inappropriate path or by ignoring the material that was before him.
The Federal Magistrate could not resolve the assertions made by the mother as to inappropriate conduct by the father towards the eldest of her children. It does not axiomatically follow that even if he had been interfering with his step-children that he would pose a risk to his own children. It does not axiomatically follow that because he had a predilection towards child pornography that he posed a risk to his own children. Those are matters that were no doubt investigated by the state authorities who reached the conclusion that the father posed no risk of harm to the children in his care.
In the circumstances, as uncomfortable as it may seem, I cannot say that I feel there is an error on behalf of the Federal Magistrate, and accordingly the appeal will be dismissed.
I would urge the parties to endeavour to move the matter as rapidly as possible through the system in the Family Court of Australia and would request, insofar as I have any power to so do, that the case now in the court in Tasmania should be given as much expedition as can be appropriately provided for it. As I indicated in the course of argument, there is nothing to preclude the independent children’s lawyer or either of the parties moving now to change the orders made by the Federal Magistrate if there is fresh material that would cause alarm. Only subject then to the Rice v Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570 considerations, the parties are free to bring such an application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay
Associate:
Date: 28 September 2007
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