S and G - [2003] FMCAfam 353

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & G

[2003] FMCAfam 353

FAMILY LAW – Contact – interim orders – allegation of child sexual abuse – whether contact should be suspended – supervised contact – who should supervise.

Family Law Act 1975

M & M (1988) FLC 91-979
B & B (1993) FLC 92-357
R & K (1994) FLC 92-461

Applicant:

A R S

Respondent:

T L G

File No:

NCM 1595 of 2003

Delivered on:

18 August 2003

Delivered at:

Newcastle

Hearing date:

18 August 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Lucas & Associates

Counsel for the Respondent:

Mr Gorton

Solicitors for the Respondent:

Rutter Morgan

ORDERS

Pursuant to section 68L of the Family Law Act, I order that the child N M S, born 17 September 1992 should be legally represented in these proceedings and I request that the Legal Aid Commission of New South Wales arrange such representation.
Orders made by consent on 25 June 2003 are continued until further order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM 1595 of 2003

A R S

Applicant

And

T L G

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court today is an application by the father of a little girl who is aged 10 years and 11 months. The father is seeking orders that the child should reside with the mother, but that he should have contact on alternate weekends, half the school holidays, Father’s Day and certain periods of time over Christmas in alternating years and other times as agreed by the parties. He seeks those orders on an interim basis and on a final basis.
The mother seeks orders today that there should be no contact. So it is fair to say the parties are a long way apart. The history so far as it is relevant, is that the parties were involved in a relationship from which the little girl N sprang on 17 September 1992. The parties separated when the relationship came to an end some 12 months or so after N was born.
There have, until these proceedings were commenced, been no orders between the parties so far as parenting orders were concerned as it was not considered that any orders would be necessary. And indeed it appears that contact went smoothly until this year. The mother was informed that the child had made a disclosure to school friends of some form of sexual abuse by the father.
The mother notified the Department of Community Services and JIRT, the Joint Investigation Response Team, which is a team jointly comprised of officers from the Department of Community Services and specially selected police officers conducted some inquiries and the child was interviewed. The findings were deemed not to be sufficient to warrant further action and indeed the father was not interviewed. There is conflicting evidence as to why the father has not been interviewed, but the fact remains that on the evidence before me he has not.
There have been other matters which have caused the mother some concern. They can be described as further disclosure to a school friend, a disclosure to a school counsellor and some reports of sexualised behaviour by the child. The child has been undergoing counselling by one L R who is a person not unknown to the Courts with some experience in dealing with young people with issues of this kind.
The mother initially suspended contact and proceedings came before this Court where orders were made by consent on an interim basis so to speak providing that the child should reside with the mother, that there should be contact on alternate weekends and other times as agreed by the parties, but that the contact should be supervised by the paternal aunt, M S and that the contact should occur principally at the residence of that lady, that the father should be restrained from staying overnight at the aunt's residence during any period of contact and that the mother should deliver the child and pick the child up.
That contact has been put into place, but it is fair to say that each party has raised some issues as to how effective it is. The father has pointed out the difficulty of the fact that the supervisor, M, has other commitments, she has family of her own and indeed there was one contact weekend that she was not able to undertake the role of a supervisor. The father suggested that first of all there should be no need for supervised contact, but if the Court deems it appropriate on an interim basis that there should be supervised contact, that the primary supervisor should be the father's mother, ie the child's paternal grandmother. She does not have the same commitments, she is willing to undertake the supervision, she is geographically more convenient. She has in fact filed an affidavit in these proceedings and has indicated her willingness to do so.
It is the mother's view that the material that has been subpoenaed from the New South Wales Police and from the Department of Community Services is sufficient to ask her for an order that there should be no contact. She does not agree that the father is “In the clear”, as she says in her affidavit that the father has said to her.
She deposes in her affidavit to an understanding of the fact that the supervisor, M, at times has had another commitment and the father, having a brief contact with the child at the netball, in the presence of the maternal grandmother. It is the mother's view that the child spent most of the time speaking to the grandmother and displaying some affection towards her, but seeking to avoid the father.
The mother indicates that the child is still opposed to spending time with the father, has expressed negative views towards taking a telephone call if it is from either the father or from the paternal grandmother and gives hearsay evidence of people such as a police officer attached to JIRT, and the counsellor, L R, each expressing a concern of the relationship between the child and the father is problematic. Indeed, the supervisor, M, referred to as having said that there is something not right between the father and the child.
I must look at the principles that the Court must apply in these circumstances. I should make it clear that the proceedings before me are interim proceedings. They are not intended to decide issues between the parties on a permanent basis, although there is no issue that the child should continue to reside with the mother.
The fact the proceedings are interim proceedings is important because the nature of the evidence before me is in some ways not in a condition that would be acceptable on a final hearing. For instance, much of the mother's evidence is of a hearsay nature. In some cases where it is evidence of what the child had to say, that is acceptable under s.100A of the Family Law Act. Other hearsay evidence however from other people, adult people, is certainly the matters the Court can consider in interlocutory proceedings such as these, and the Evidence Act makes that clear. But on a final basis material in that form would not get into evidence and if the views of the people referred to by the mother are to be taken into account on a final hearing then those people would have to swear or affirm their own affidavits and may well need to be available for cross-examination.
Of the various orders that are sought, either directly or as a fall back position, supervised contact is an order that in most cases is an interim solution rather than a final arrangement, and of course supervised contact in one form or another is the fall back position, if you like, of each party. So it should be borne in mind that I am considering these proceedings before me on the basis that this is an interim hearing.
The other matter of course that is relevant is that whilst there are some parties available to give evidence there is not sufficient time to deal with this matter on the basis of testing the evidence by cross-examination. All of that will be different on a final hearing.
I am referred to the decision of the High Court of Australia of the Marriage of M v M (1988) FLC 91-979. The principles set out by the High Court are relevant to be considered today. First:
The ultimate and paramount issue to be decided in custody or access proceedings -
To use the terminology that was in force in 1988:
is whether the making of the orders sought is in the interests for the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the ultimate and paramount which the Court has to determine.
Second:
The resolution of an allegation of sexual abuse against the parent is subservient and ancillary to the Court's determination of what is in the best interests of the child.

Third:
In considering an allegation of sexual abuse the Court should not make a positive finding that the allegation is true unless the Court is so satisfied on the balance of probabilities.
Fourth:
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 access the magnitude of that risk. The existence and magnitude of the risk of sexual abuse is a fundamental matter to be taken into account in deciding the issues of custody and access.
Fifth:
The Courts have endeavoured in their efforts to protect the child's paramount interest 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. The 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.
Those are the matters that I must consider at this stage. It is particularly that these must be considered on an interim hearing because it is just not possible on a hearing such as this, and in the light of the evidence before me for the Court to make a positive finding that an allegation of sexual abuse is true.
It is also not possible however on the evidence before me for this Court to make a positive finding that there is no such risk whatsoever to an allegation of sexual abuse, as is so often the case in matters of this nature. The evidence is somewhere in between. The situation that I foresee is that there are some matters that give rise to concern.
There is evidence of disclosures by the child on more than one occasion of sexual behaviour by the father. There is evidence of the disclosure by the child to another child of having been shown a video of nude people engaged in, it seems, sexual intercourse and an allegation that the father and the child had, to some extent, involved themselves in similar positions. There is an allegation of a disclosure to a school counsellor of the child having been shown a video of nude people by the father. That disclosure was seen correctly in my view, by the counsellor as one which brought into play the school's mandatory responsibility to notify that matter to the Department of Community Services. The evidence suggests that the principal of the school, on receiving that advice from the counsellor, did just that.
There is evidence from the mother of having had reported to her by another mother, some sexualised behaviour by the child with her interaction with other children. There is evidence by the mother of comments from other people whom I referred, Police Officer R W, the counsellor L R and indeed the supervisor M S of concerns about the child's relationship with the father, but it can clearly be taken no higher than that.
There is also hearsay evidence of a disclosure by the mother's adult daughter, C of an allegation of similar behaviour by the father to her when she was seven or eight, which she said did not continue when the child expressed opposition to it. Now, I stress that this is hearsay evidence and would not be accepted on a final hearing. The evidence in respect of the allegation of sexual abuse is quite clearly insufficient to justify the police from laying any charges.
What action should this Court take until this matter can be dealt with on a final basis? I have had the opportunity of looking at the decision of the Full Court of the Family Court in B v B (1993) FLC 92-357. That was a case where the trial Judge had made a finding that there was an unacceptable risk of sexual abuse. The Court looked at the question of suspension of access and the Court looked at the question of supervised access, supervised contact as we would now refer to it.
The Full Court of the Family Court said, amongst other things, suspension of access for a period of time may be important for the custodial parent as well as for the children. It is reasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection.
On the question of supervised contact, the Full Court has some very pertinent comment to make. First, it is undesirable in most cases for friends or family members of the access parent to supervise children during the access parent in circumstances whether either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring. Further supervised access may be ordered for time limit purpose of re-establishing the relationship between the access parent and the children, but is not appropriate as a long-term measure. And again supervisors must be available for the children for safety and support at all times and must be prepared to intervene on the children's behalf if an issue of protection arises during an access visit.
What the Court has to do based on the limited evidence available, is to balance the issues of the best interests of the child which includes deciding what level of risk there is for the child in contact with the father and how that issue may be dealt with. There is of course a detriment to the child where there is a positive relationship with the father of suspending contact. If suspension of contact with the father involves suspension of contact with the paternal grandmother as well, it could also be seen that there is a further detriment there.
I am of a view that the evidence which I have previously set out, with limited disclosures by the child to friends and to the school counsellor, the description of the sexualised behaviour, the concerns raised with the mother by various people, the evidence by the mother of the negative attitude being taken by the child to the father and the hearsay evidence of the disclosure by the elder half-sister, are sufficient to raise a concern in my mind that if there were unsupervised contact between the father and the child, that there would be an unacceptable risk of abuse.
Accordingly, I intend not to grant the interim order sought by the father that there should be unsupervised contact with this child in the terms set out. That then takes me to the other end of the spectrum, should there be an order for no contact as the mother seeks in her response.
Whilst the evidence raises concerns in my mind, I am not satisfied that I should grant the application made by the mother on an interim basis, that contact should be suspended. My reasons for this are the insubstantial nature of the allegations, the fact that the allegations are untested and the need for more hard evidence, before a Court would make such a serious decision.
I am mindful of the fact that on the mother's own evidence, as well as on the father's evidence, there has been contact between the father and the child for approximately 10 years without any issue of abuse having arisen. To my mind it would be a serious step indeed for there to be no contact. That then brings me to the question of what contact should there be.
The fall back position if you like of each party is that the supervised contact should continue. The father however raises the issue that his mother, the child's paternal grandmother should be the preferred contact supervisor. I am mindful of the fact that on the mother's evidence the child has displayed positive feelings towards the grandmother in her presence, being seen to speak to her and hug her when they were parting at a time when the mother was able to observe them on a weekend when the contact envisaged could not take place due to the unavailability of the supervisor.
The child was observed by the mother to concentrate almost entirely on the grandmother, rather than on the father. At the same time, the grandmother has indicated in her affidavit of 31 July, along with a willingness to act as supervisor if required, a belief that contact is not necessary to be supervised. In B v B, at page 79, 780, in the joint Judgment of Fogarty, Baker and Purvis JJs, Their Honours said:
Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any harm to the children exists.
Their Honours went on at page 79-781 to say:
Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense, they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children.
Lest it be thought that I am casting aspersions on the paternal grandmother who is here today, is hearing my words and is available to give evidence if required, I wish to make it quite clear that I do not wish to do so. I am of a belief that requiring the paternal grandmother to act as a supervisor would place her in a difficult position on the one hand she must be mindful of the interests of her granddaughter, on the other she must be mindful of the interests of her own son. It is a very serious burden to place on any contact supervisor and it would be one which ever way the matter has to go, would expose her to a great deal of emotional pain.
I am of the belief that it is too big a responsibility to place on a person such as a grandmother who has her own deep emotional contacts with both parties and clearly the words of Their Honours in B v B would indicate that it would not be an appropriate choice. I am mindful of the fact that the current supervisor, M S is able to act, but only on a limited basis and there has been one instance where she has not been able to act as a supervisor for the reason of her own family commitments.
Nevertheless, I am mindful of the fact that supervised contact as is clearly set out in the authorities to which I have referred is usually appropriate for an interim situation whereas it is far less appropriate in final orders. Accordingly at this stage, I propose to continue the orders made by consent on 26 May.
Where does the hearing go from here? I have asked both Ms Lucas for the father and Mr Gorton, counsel for the mother, about a separate representation of this child pursuant to s.68L of the Family Law Act. It is fair to say that neither lawyers spoke against the suggestion and indeed Mr Gorton for the mother spoke in favour of it. I am of the belief that this is a matter that comes within the guidelines set out in that most helpful Judgment of the Full Court of the Family Court in reK (1994) FLC 92-461. Their Honours said at page 80,773:
Appointments should normally be made where (1) cases involve allegations of child abuse, whether physical, sexual or psychological.
As the allegations here are clearly that of child abuse and as the child concerned is nearly 11 years of age, she will be 11 next month, I am of the view that it is appropriate to make such an order and the Court may well be assisted.
It would seem to me further that the Court would be assisted on a final hearing if a family report were to be prepared pursuant to s.62G of the Family Law Act. I propose to order such a report. I am mindful however that a Child Representative has an important role to play in proceedings of this nature and I would prefer to adjourn this matter for a period of three to four weeks to allow a Child Representative to be appointed and to appear at the Court to make any submissions that he or she may consider appropriate for the future progress of this matter.

So whilst I would consider that a family report under s.62G is appropriate, I will refrain from making such an order at this stage until the Child Representative has the opportunity to make those submissions to the Court. I propose therefore to adjourn these proceedings for a period of approximately three to four weeks at a time that is convenient both to the legal advisers for both parties so that a Child Representative could be able to provide helpful submissions to the Court.
I would comment that I have been helped by the focused and very useful suggestions by the legal advisers on each side and I am sure that on 24 September my learned brother will be equally helped. I propose to order a transcript for my reasons for the decision that I have made today.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 22 August 2003