S and K
[2005] FMCAfam 85
•21 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & K | [2005] FMCAfam 85 |
| FAMILY LAW – Child resident with grandfather – contact by mother – violence, alcohol and illicit drug abuse by stepfather – allegation of sexual abuse – unacceptable risk. |
| Family Law Act 1975 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 M and M (2002) FLC 93-006 |
| Applicant Mother: | DS |
| Respondent Paternal Grandfather: | KEK |
| Respondent Father: | DLK |
| Child Representative |
| File Number: | MLM 3498 of 2004 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 4 March 2005 |
| Delivered at: | M |
| Delivered on: | 21 April 2005 |
REPRESENTATION
| Counsel for the Applicant Mother: | Mr. Puckey |
| Solicitors for the Applicant Mother: | Morrison & Sawers |
| Counsel for the Respondent Paternal Grandfather: | Mr. McLeod |
| Solicitors for the Respondent Paternal Grandfather: | Faram Ritchie Davies |
| Respondent Father: | No appearance |
| Counsel for the Child Representative: | Ms Spehr |
| Solicitors for the Child Representative: | Victoria Legal Aid |
ORDERS
That the Orders made in the Federal Magistrates Court sitting at S on 19 March 2004 be discharged.
That the Respondent Paternal Grandfather and the Applicant Mother have sole responsibility for the day to day care, welfare and development of the child SLK born September 1994 whilst the child is in their respective care.
That the child reside with the Respondent Paternal Grandfather.
That the Applicant Mother, the Respondent Paternal Grandfather and the Respondent Father have joint responsibility for the decisions about the long term care, welfare and development of the child.
That the Applicant Mother have contact with the child as follows:–
During school terms
(a)On one weekend per calendar month from Saturday morning to Sunday evening (such times to be dependent on public transport timetables) on a date to be nominated by the Applicant Mother after giving two weeks written notice to the Respondent Paternal Grandfather and with the Applicant Mother to stay overnight at the home of Mrs R in S or, in the alternative, at the home of the Respondent Paternal Grandfather;
During school holidays
(b)
For one week in each of the three term holidays from the first Saturday until the second Saturday, such contact to occur at
Mrs R’s home in S or, in the alternative, at the home of the Respondent Paternal Grandfather;
(c)For two weeks from Boxing Day each year, such contact to occur at Mrs R’s home in S or, in the alternative, at the home of the Respondent Paternal Grandfather;
At all times
(d)Liberal telephone contact; and
(e)At other times as agreed between the parties.
That for the purpose of contact pursuant to Order 5 herein, the Applicant Mother be and is hereby restrained from permitting the child to come into contact with Mr JT.
That the Respondent Paternal Grandfather pay half the Applicant Mother’s costs of public transport to and from S incurred to facilitate contact pursuant to these Orders.
That otherwise all extant applications be dismissed.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceeding.
AND THE COURT NOTES:
Pursuant to S65DA(2) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT M |
MLM 3498 of 2004
| DS |
Applicant Mother
And
| KEK |
Respondent Paternal Grandfather
And
| DLK |
Respondent Father
And
| CHILD REPRESENTATIVE |
REASONS FOR JUDGMENT
Introduction
This proceeding comes before the Court on an Application by the mother filed on 16 February 2004. The Application seeks orders for contact with her daughter SLK born September 1994 aged 10 years (“the child”). The First Named Respondent (“the grandfather”) is the child’s paternal grandfather. The Second Named Respondent is the child’s father. The child resides with the grandfather in S. In a Response filed by the grandfather on 1 July 2004 he seeks orders that allow restricted contact by the mother who lives in M. The restrictions sought are that the contact takes place in S and that the mother’s present partner (“the partner”) not be present. The father played no part in the proceeding, save to indicate that he was supportive of the grandfather’s position.
There is a half-brother BJT aged 5 years born of the relationship between the mother and the partner. The father has also re-partnered and has two children of that relationship, a boy aged 5 and a girl aged 2. They live in B. The father exercises contact with the child as facilitated by the grandfather. The child consequently has regular contact with her siblings in B.
The relevant extant orders are those made by consent in the Federal Magistrates Court sitting at S on 19 March 2004; namely:
(a)the ex parte orders made in the S Magistrates’ Court on
14 July 2003 are discharged;
(b)the child reside with the grandfather;
(c)the grandfather has sole responsibility for the child’s day to day care, welfare and development;
(d)the mother and the grandfather have shared responsibility for the long term care, welfare and development;
(e)the mother have contact each alternate Sunday between 11.00 am and 3.00 pm, by telephone 3 times per week and other times as agreed;
(f)the mother is restrained from allowing the child to come into contact with the partner; and
(g)the contact take place in S.
The Court was considerably assisted by the involvement of a Child Representative and the production of a Family Report prepared by
Ms JM, Psychologist (the report writer).
Background
The father and mother commenced a relationship in 1989, which ceased in 1996. The child is the only child of this relationship.
The grandfather lives in S. The mother of the partner,
Mrs R also lives in S. She is the maternal grandmother of the child B. There is a good communicative relationship between the grandfather and Mrs R. The grandfather is confident that contact could safely take place at Mrs R’s home and he does not oppose such contact so long as the partner (Mrs R’s son) is not present.It is acknowledged by the mother, and confirmed by the grandfather, that they have a good relationship and that the grandfather has been supportive of the mother in the past. There is no dispute between the parties that the grandfather also has a strong and loving relationship with the child.
After the mother returned to V, having spent some years living in Q with the child, the grandfather exercised regular contact. Until June 2003, the child resided with the mother, B and the partner in a caravan park in M. However, in June 2003 the grandfather held over the child after contact. The reason given was the grandfather’s concern that the child had reportedly been physically disciplined by the partner with a studded belt. The grandfather thereafter obtained orders, ex parte, in the S Magistrates’ Court on 14 July 2003 giving him residence of the child.
For various reasons, the mother did not challenge the ex parte orders until issuing the application on 16 February 2004, by which time she had resolved to allow the child to reside with the grandfather and for her to exercise contact on an alternate weekend basis and half the school holidays. Interim consent orders were made on 19 March 2004 as set out above. The contact provided in that order, however, proved to be difficult because of the costs of transport, the unavailability of the partner to drive the mother to S because of his work commitments and the need for the mother to attend medical appointments. She was not, as a consequence, able to avail herself of every opportunity to exercise contact. During this time she, nonetheless, maintained regular telephone contact with the child.
It is to be noted that the grandfather did allow, contrary to the orders of 19 March 2004, the partner to be present during short periods of contact that took place in the two days leading up to the hearing.
The mother has had a relationship with the partner since 1997, save for a period of 18 months separation. The mother describes this relationship as being stable for approximately the last three years and B is the one child of this relationship.
The grandfather has serious concerns for the child’s welfare when in the company of the partner due to the grandfather’s understanding that the relationship between the mother and the partner is characterised by domestic violence, excessive alcohol consumption and illicit drug use on the part of the partner. His concerns also centre on the child’s disclosures to him that she was hit with a studded belt, hit with wooden and metal spoons and was struck with a power socket when the partner swung a pedestal fan around his head. He had also heard that the partner and the mother were forced to change accommodation because of violent damage caused by the partner to their unit at a caravan park in which they were staying.
After the report writer had first interviewed the child, the Child Representative received further instructions from the child that raised significant concerns about sexual abuse by the partner. The report writer consequently conducted a second interview with the child to explore these concerns. Her report discloses the nature of the alleged abuse and her assessment of the disclosure. The concerns were not made known to the grandfather until the day of the hearing and they now are an added and very troubling concern that confirms his determination not to allow the partner contact with the child.
Agreed proposals
The mother and grandfather are agreed that the child should reside with the grandfather; that they, together with the father, have joint responsibility for the long term care, welfare and development of the child; and that each have the sole responsibility for the day to day care, welfare and development of the child whilst the child is in their respective care.
Competing proposals for contact
The mother proposes that during the school terms she have contact on one weekend per calendar month to be exercised at Mrs R’s home in S without any restriction on contact by the partner.
During the three term school holidays she would have contact for one week in each, and during the long summer vacation for two weeks from Boxing Day. The mother proposes that the school and summer holiday contact takes place at the mother’s home in M in the company of the partner.To allay any concerns about the partner, he would (and did) provide to the Court an undertaking not to drink alcohol during contact and not to physically discipline the child. The mother was also prepared to be bound by orders restraining her from permitting the child to be left alone with the partner; from permitting the child to be present if the partner has been drinking; and from permitting the child to be physically disciplined by the partner.
The grandfather is in agreement about the level and timing of the contact, but requires all contact to take place in S, either at Mrs R’s home or his home. He insists, however, that the partner not be present during contact. In order to facilitate contact, he is prepared to pay half the transport costs incurred by the mother.
Evidence
In addition to the affidavit material filed by the parties, I had the benefit of observing and hearing evidence from the report writer, the mother, the grandfather and the partner.
The issue before the Court, in essence, is whether the partner represents an unacceptable risk to the child should he be allowed to be present during contact.
The evidence of the report writer
The report writer conducted interviews with the mother, the partner, the grandfather and the child. She found the child to be “an emotionally mature and thoughtful girl” who expressed a clear wish to continue to live with her grandfather. The child also expressed a clear wish to spend extended time with her mother during school holidays. In both these regards, there is no conflict between what the child wishes and what the mother and grandfather agree to do.
The issue of concern for the report writer (and indeed this Court) is whether the child should have contact with the partner. That concern centres on the partner’s alleged previous conduct in respect of violence, and alcohol and drug-affected behaviour. In addition, there is the more recent disclosure of alleged sexual abuse.
There can be no question that the alleged conduct complained of amounts to sexual abuse. The report writer’s assessment of the child’s disclosure, after critical evaluation of the history given by the child, is that it is genuine – it was “heartfelt” and not instigated by ulterior motives, coaching or external pressures.
The report writer did not have the opportunity of interviewing the mother or the partner about the disclosure to ascertain their reaction. The report writer expressed her concern to ascertain how the mother would react should another disclosure be made in the future in order to determine whether the mother had the capacity to react in a protective manner having regard to the manifest strong commitment by the mother to her relationship with the partner. She feared that the mother may choose not to believe the child in order to preserve that relationship.
The evidence of the mother is outlined below, but from it, based upon what the report writer stated were indicators for concern about the capacity of the mother to be protective, I am of the view that the mother may not believe the child and would not be prepared to jeopardise her relationship with the partner should a similar disclosure be made in the future.
In addition to the sexual abuse disclosure, the report writer also had concerns about the environment the child had been exposed to in the past; namely, the violent, alcohol and drug-affected behaviour of the partner where the child was at risk of physical and emotional harm. Based on these concerns alone, the report writer stated she would not have recommended contact take place with the partner present.
The report writer noted that the child, unsolicited and spontaneously gave a hug to the partner when saying goodbye and did not appear to be in fear of him.
The child also expressed the view that, because the disclosure had now been made and the mother is now aware of the incident, the mother would be able to protect her if she was to have contact with her and the partner in M.
The report writer’s assessment, after weighing up the information provided in the interviews and material filed in Court to that date, and after applying her experience and knowledge in these types of cases, is that contact should take place in the S area and that “in the best interests of [the child] that during such contact, [the partner] is not present.” This assessment was made without the benefit of hearing the mother’s reaction to the disclosure. For the reasons outlined below, I have no doubt that should she have heard the mother’s reaction, her assessment would have been strongly affirmed.
The evidence of the mother
The report writer indicated that should the mother indicate she believed the child was lying about the disclosure, she would have little confidence the mother could protect the child should the partner be allowed contact. The evidence of the mother was that she put the
“relationship with [the partner]” and that she “wouldn’t want to risk that relationship.”
The mother also confirmed significant episodes of violence perpetrated by the partner in the child’s presence; denying, however, that he ever disciplined the child with a studded belt. She admitted that the partner threatened to kill her with a knife, that he drank a lot of alcohol and became angry when affected.
The evidence of the partner
The partner spoke of his relationship with the mother improving considerably in the last few years and that they now shared a very strong relationship. He admitted freely to problems he had with alcohol approximately 2 years ago, but asserted that was under control. He stated, “I no longer consider myself an alcoholic.”
He ascribes his improved relationship and control of his drinking to the involvement of the D of H S, which involvement centred on welfare issues over B. When there is an issue between them, he stated, they take “time out for 15 minutes” and thereafter “discuss the issue like mature adults.”
Under cross-examination he gave a history of his past and present drinking habits, and past and present drug use. He admitted to excessive drinking in the past. He likes to drink bourbon and advised that he does not now indulge in his past practice of getting “tanked.” He does admit to still drinking 3 or 4 cans of bourbon a night “on average.” That translates to approximately 8 to 10 standard alcohol drinks a night. He also admitted that there were occasions, usually weekends, when he would consume more.
The partner’s drug use, by admission, relates to the smoking of marijuana in the shed at home.
The partner also made significant admissions concerning the allegations of violence. One such incident involved the partner becoming violent because of a broken toaster which saw him in a drunken rage pick up a pedestal fan and throw it, causing the power plug to strike the child. He admitted to the threat to kill the mother with a knife in the presence of the child. He admitted to causing damage to a unit in a caravan park, but denied that was the reason he changed accommodation.
The evidence of the grandfather
The grandfather gave evidence that his concerns for the child existed for a long time. He was, for instance, concerned by arguments in the background when he used to telephone the child, and he was concerned by the mother apparently abandoning the child into the care of others whilst they were in Q. He has a general dislike and mistrust of the partner as an individual who he sees as not having many redeeming features, particularly because of his drinking.
The grandfather admits to allowing two periods of contact in the presence of the partner in the two days leading up to the hearing.
His explanation was that he was unsure of whether he may have been obligated to allow contact. However, he knew it was for short periods in the company of the mother and Mrs R and that consequently the child should not be at risk. At this time, he points out, he was not aware of the disclosure of sexual abuse and had he been, his attitude would have been different.
The grandfather also gave evidence that when he collected the child from contact in the days leading up to the hearing; the child gave what appeared to be an affectionate hug goodbye to the partner.
Submissions
The mother submits that no risk is posed to the child should the partner be allowed contact with her. Nonetheless, to allay any concerns, the partner undertakes to the Court not to imbibe in alcohol or physically discipline the child during contact and the mother is prepared to be bound by restraining orders preventing her from allowing the child to be left alone in the company of the partner, from being in his company when he has been drinking and from allowing him to physically discipline the child.
The mother also asserts that the gravity of the allegations and the standard of the evidence (see Briginshaw v Briginshaw (1938) 60 CLR 336) in support of the grandfather’s application are such that they fall far short of the situation outlined in M and M (2000) FLC 93-006.
The mother submits that the evidence in support of the physical and sexual abuse allegations is limited and unreliable.
It is submitted that the problems are in the past and there is no evidence that there have been any problems over the last 18 months – during the time the mother and the partner say things have improved.
The mother also draws issue with the allegation of sexual abuse.
The partner flatly denies it and there is no reliable evidence, it is submitted, to support it.
The mother also highlights the fact that there is evidence the child holds no fear of the partner, that she freely expresses her affection for him by offering him unsolicited hugs as witnessed at the interview with the report writer and by the grandfather when he collected the child from contact on the days before the hearing. This behaviour of the child, it was submitted, is not indicative of a child in fear of contact and is not typical of a victim’s response to an alleged perpetrator of sexual abuse.
The final submission by the mother was that the grandfather was not genuine in his desire to prevent contact by the partner. The grandfather was described as controlling and paternalistic as far as the mother was concerned. The mother’s representative describes a troubling dynamic whereby the grandfather, who has a manifest dislike of the partner, is attempting to call the shots as he sees fit; for instance, getting injunctive orders preventing contact by the partner to later, when it suits him, agreeing to allow contact.
The grandfather simply says that the evidence supports an order preventing contact by the partner.
The Child Representative’s submission is that the evidence supports that contact between the mother and the child take place in the S area in the absence of the partner.
Findings
On the evidence of the mother and the partner I find that their relationship has been one marked by violence and drunkenness on the part of the partner. This has resulted in the child witnessing disturbing incidents where a threat to kill was made by the partner to the mother and the child being placed at risk of physical harm by the drunken explosions of anger, one example of which is the incident with the pedestal fan. Unless the partner’s behaviour in respect of substance abuse has significantly modified, then on past experience, he represents an unacceptable risk to the child.
Both the mother and the partner admit to the partner’s difficulties with alcohol in the past. Despite their assertion that such conduct has significantly improved over recent years, I am not persuaded that the problem the partner has with alcohol has been conquered.
His admission that he on average consumes the equivalent of 8 to 10 standard drinks a night is not indicative of someone who has mastered alcohol addiction. His admission to such a present level of consumption with the expectation that I would accept it was indicative of responsible behaviour in the presence of children, in my view, adds weight to the expressed concerns of others that his level of alcohol consumption in the past was very excessive. I cannot have any confidence that his alcohol consumption will cease, as he has undertaken, when contact takes place, particularly for the long periods associated with school holiday contact. In addition, I am concerned by his consumption of marijuana in the relatively close proximity of children and the likely effect of the cocktail of alcohol and marijuana may have on his behaviour.
In my view, the problem the partner has with alcohol, drugs and violence is enough to warrant that the partner not be present during contact as he is an unacceptable risk to the child. I note the report writer is also of this view, which is independent of any disclosure of sexual abuse. The Child Representative is also of this view.
In respect of the disclosure, I am reliant on the opinion of the report writer as to whether there is substance in what the child alleges. I am satisfied that the report writer’s assessment of the genuineness of the child, and the reality of the incident disclosed, is one that I can rely on. The report writer is experienced and highly skilled in communicating with children in these troubled circumstances and her skills extend to being able to evaluate whether the disclosure is genuine, or imagined, coached or made at the behest or cajoling of others. In the terms of the Briginshaw test (supra at pp 361-362); I am mindful of the seriousness of the allegation made and the gravity of the consequences flowing from a finding of sexual abuse. I am, however, satisfied of the inherent unlikelihood of the disclosure, as communicated to the report writer, being fabricated or being a figment of the child’s imagination. I am satisfied, on balance, that the nature of the disclosure raises a reasonable suspicion of sexual impropriety on the part of the partner. He is, therefore, in my view an unacceptable risk to the child should he have contact with her.
I am not satisfied that the proposed safeguards suggested by the mother in regard to undertakings and injunctive orders would be of any practical effect.
Although there are aspects of the grandfather’s demeanour that may indicate a paternalistic attitude by him towards the mother, I find that he is not motivated by a need to control. His motivation, which in the circumstances of this case is highly commendable, is from my observations of him purely for the welfare of the child. I accept his explanation about why he allowed contact to take place in the company of the partner and that he would not have allowed it should he have been aware of the disclosure.
In respect of the child’s assertion she would like contact to take place in M and is not concerned about the presence of the partner because she is confident her mother would protect her, I am of the view that the child’s confidence in her mother is unjustified. I do not share the same confidence because it was very clear from the mother’s evidence that she placed a very high value on her relationship with the partner and would not want to jeopardise it. The mother also believed the partner in preference to the child in respect of the present disclosure and I fear she would take a similar view about any future disclosure.
In respect of the signs of affection by the child towards the partner as outlined above, I accept the assessment of the report writer that they were given in an environment where the child was safe and in the company of other protective adults. The evidence of the disclosure coupled with the assessment of the report writer, on balance, overrides any inference supportive of the conclusion that there was no sexual impropriety by the partner.
Conclusion
For the reasons outlined above I have found the partner an unacceptable risk to the child and any contact therefore by the mother should be in the absence of the partner. There is a need, in my view, that contact takes place in circumstances where it can be monitored in so far as the attendance of the partner is concerned, it is inappropriate that it take place in M. S offers the best place for contact from that point of view and the partner’s mother, in whom the grandfather has confidence, has volunteered to allow contact to take place at her home. This contact will see the mother; the child and B enjoy a good quality of contact. In the event Mrs R, from time to time, is unable to offer her home, the grandfather has offered his as an alternative.
The orders I make reflect the mother’s proposals for contact, save that it take place in S in the absence of the partner.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 21 April 2005
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