Scaddan and McBride
[2008] FMCAfam 457
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| Scaddan & McBride | [2008] FMCAfam 457 |
| FAMILY LAW – Children – contact – interim orders – change of circumstances – child abuse allegations – separate representation. |
| Family Law Act1975 (Cth) s.68L |
| W & W [2005] FamCA 892 N and S (1996) FLC 92-655 Re K (1994) FLC 92-461 Bright and Bright v Bright and Mackley (1995) FLC 92-570 followed |
| Applicant: | MR SCADDAN |
| Respondent: | MS MCBRIDE |
| File Number: | CRC 436 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 24 April 2008 |
| Date of Last Submission: | 24 April 2008 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Filewood |
| Solicitors for the Applicant: | Filewood Carty Lawyers |
| Counsel for the Respondent: | Mr Loomes |
| Solicitors for the Respondent: | Flintoff McNeilly Lawyers |
IT IS ORDERED UNTIL FURTHER ORDER:
That the child T born in 2005 live with the Mother.
That the Father spend time with the child T for the first half of each school holiday period from 2:00pm on the first Saturday until 2:00pm on the middle Saturday PROVIDED THAT time spent with the child be in the presence of either or both of the child's paternal grandparents MR S and MS S.
That change-over take place at the McDonald’s Family Restaurant at [Y].
That the Father communicate with the child T by telephone between 4:00pm and 6:00pm every Saturday when T is not with him and on the child's birthday and on Father’s Day.
That pursuant to s.68L(2) of the Family Law Act the child T be independently represented by a lawyer and the Legal Aid Commission of New South Wales is requested to arrange for such representation.
The parties' legal advisers are to provide to the Legal Aid Commission copies of all applications, responses and affidavits filed in these proceedings within seven (7) days from today.
The Registry Manager of the Family Law Registry at Lismore is directed to notify the Department of Community Services of the Notice of Child Abuse or Family Violence filed today within seven (7) days.
That neither party physically discipline T nor permit any other person to do so.
The application is adjourned to Monday 19 May 2008 at 10:00am for further mention before Federal Magistrate Scarlett at Coffs Harbour
IT IS NOTED that publication of this judgment under the pseudonym Scaddan & McBride is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 436 of 2007
| MR SCADDAN |
Applicant
And
| MS MCBRIDE |
Respondent
REASONS FOR JUDGMENT
The proceedings before the Court are interim proceedings relating to the only child of the parties, a little girl called T who was born in 2005. The competing applications involve the Father's application that T should live with the Mother but that she should spend time with him in four block periods each year and that there should be telephone communication every Saturday with a direction that neither party physically discipline the child or permit any other person to do so.
The Mother, however, has expressed some serious concerns and seeks interim orders that the only time that the child spends with the Father, certainly for the next two months, is at the premises of and supervised by the [X] Children's Contact Centre in Coffs Harbour and that proceedings be re-listed for mention 14 days after the parties receive a report from [X] about the interaction between the Father and child, any risk to the child in the Father's care and the child's relationship with the Father.
It is unfortunate that the parties have a relationship which is not at all amicable and is in fact quite antagonistic. The parties separated in November 2006 when the Mother moved out to her mother's home. A shared parenting arrangement was commenced early in 2007 and, on the Mother's evidence, the child complained in July 2007 of some sexual misconduct by the Father.
The parties have both formed new relationships and, indeed, the Mother is now a mother again with a little baby girl who is now seven weeks old.
There have been complaints by the Mother of an arrangement on 23rd November 2007 when the Mother left the child in the care of the paternal grandparents who, the Mother claims, then handed the child over to the care of the Father and he, she says, refused to return the child. On 29th November 2007 the Mother complained that the paternal grandmother refused to hand over the child to her and this led to intervention by the police and there was a handover at a police station and since then the Father has not spent time with the child.
Since then, the proceedings have commenced and the parties' positions have been set out and it is quite clear that they are a significant distance apart. The Father complains that he is being denied contact with his child and yet, on his evidence, he spent a considerable amount of time during her younger years caring and providing for her. His view is that the Mother is attempting to cut him out of the child's life and this is particularly so since the Mother has formed a new relationship. Of course he, too, has formed a new relationship and this has not assisted negotiations between the parties because the Mother has reported allegations by the child that the Father's companion has abused the child.
The Mother's evidence is that she found that the child made strange comments after visits with the Father, including comments regarding her body and, as set out in the Mother's affidavit being filed on 15th February 2008, the child would grab her nappy and say "ouch" and "daddy naughty, touched bum" and made complaints of like, "stick fingers in bum and lick bum". The Mother says that the child complained of being scared to go to the toilet and subsequently complained of being hit with the wooden spoon when she had tried to go to the toilet at night, being scratched by the Father's girlfriend and the child smacking the father's girlfriend when she, the girlfriend, touched the child's bum and the girlfriend telling the child repeatedly that "she was dead".
The Mother expands on those allegations at paragraph 44 of her affidavit describing how she and her boyfriend were curious as to why the child had in fact bitten the Father's girlfriend on the nose and the Mother proposed that the child said, "K hurt me. K hurt my bum", and the child said, "K squeezed my bum and hurt me." The Mother deposed that on examination she found a thumbnail print on the child's left upper leg and the child being afraid to go to the toilet, refused to take her clothes off, and the child complained, "K flogged me. I went to the toilet and accidentally broke the toilet paper roll and K flogged me with a wooden spoon and I was dead." The Mother reports that those complaints, along with complaints that the Father and the Father's girlfriend were sticking their fingers in her bum, continued for several days.
The Mother deposed that she had sought advice from the doctor. She said the doctor said that he could not examine the child because she was too young. The Mother further deposed that she went to the police station at [X] and complained about the child's complaint of abuse and the police officer contacted the Help Line at the Department of Community Services. The Mother deposed that her mother, the child's maternal grandmother, has said that she, too, had contacted the Department of Community Services but no-one from that Department appears to have spoken to the Mother or for that matter the Father.
The Father deposed in his affidavit that he had heard nothing from the police or the Department of Community Services about these complaints. He denies these complaints outright.
It has not been until today that the Mother has filed in Court a Notice of Child Abuse or Family Violence, although counsel for the Mother, Mr Loomes, foreshadowed the filing of such document when the matter was last before me on Monday, the 21st of this month.
The concerns that the Court must have relate very much to allegations of child abuse, both physical abuse and sexual abuse. Clearly, the best interests of the child are the paramount consideration and the Court must consider in making any arrangements as to whether there is an unacceptable risk in a parent spending time with a child. I am referred to the decision of the Full Court of the Family Court of Australia in W & W [2005] FamCA 892. In that case the Full Court referred with approval to the dissenting Judgment of Fogarty J in N and S (1996) FLC 92-655 at 82,709. At paragraph [5] in the judgment their Honours referred with approval to the words of Fogarty J who said at page 860 of the Family Law Reports and 82,714 of Family Law Cases:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”[1]
[1] See Para.105
The allegations are disturbing in this case. Against this, the evidence in support of them is, at this stage, sparse. The evidence is untested and there is no corroborative evidence. Matters of this nature are extremely difficult to prove, especially in the case of a child who is as young as this child who has only recently had her third birthday. There is an absence of corroborative evidence and at this stage the only affidavit evidence is from the Mother detailing the allegations, and the Father denying them. There is no affidavit evidence from the new partners of either one of them or of other family members. There is, of course, no expert evidence, no evidence from police or from the Department of Community Services.
It is regrettable that the Department of Community Services in New South Wales is heavily burdened with cases and is not in a position to investigate all or even a substantial number of the allegations that are referred to. Indeed, it is not uncommon for Courts dealing with cases where there is a Notice of Child Abuse or Family Violence has been filed to receive a letter from the relevant Department indicating that the Department did not propose to intervene at that stage. Indeed, such a letter was presented to this Court in another case only today.
So, the Court at this stage has very little evidence to go on and it is very hard to consider whether there is an unacceptable risk. The dangers involved are quite obvious. On the one hand, if the Court completely disregards the allegations and takes no steps to safeguard the interests of the child then an abusive situation, if there is an abusive situation, can continue. If the Court acts on information on scant and untested evidence and either denies contact or places severe restrictions on the amount of time that a parent spends with a child, there is the risk that the relationship between parent and child may suffer serious or even irreparable damage. In the long run, however, a Court must make what decisions it can on the evidence that is available.
To my mind, the evidence is not sufficient to justify the orders sought by the Mother in that the only interaction between the Father and child should take place at a children's contact centre under supervision. Whilst the allegations remain outstanding, however, the Court must deal with a suspicion that there may be some substance to the allegations which would leave parties with an uneasiness about long term, unrestricted time, between the Father and, for that matter, the Father's girlfriend against whom allegations have been made and the child.
The orders that the Court will be making are interim orders and it is clear that this matter needs to be prepared speedily for a final hearing. There will certainly be a need for the Court to have evidence from the other parties in the children's lives, not least the Mother's boyfriend and the Father's girlfriend. Indeed, it is the Father's girlfriend who is one of the people against whom allegations have been made in the Mother's affidavit.
I am conscious of the fact that there is now a Notice of Child Abuse and I propose to direct that the Court should notify the Department of Community Services that such a Notice has been filed. I am also of the view that the Court should consider independent representation of this child. I note that both the Father's solicitor and the Mother's counsel have told the Court they have no objection to this proposal. It does appear to me that these circumstances where there is an allegation of child abuse, both physical and sexual, and for that matter possibly psychological, this is a matter that comes within the guidelines set out in that still with respect very useful authority Re K (1994) FLC 92-461.
I am of the view that I should make an order under s.68L of the FamilyLaw Act to order that this child be independently represented and I will ask the Legal Aid Commission of New South Wales to provide such representation.
The evidence is not sufficient for the Court to make the restrictive orders proposed by the Mother. I am of the view that there should be a program whereby the child spends time with her Father. At this stage, perhaps acting overly conservatively but erring on the side of caution, I am of the view that this contact should be in the presence of the paternal grandparents or one of them. I am aware from the Mother's affidavit and from her counsel's submissions that the relationship between the Mother and the paternal grandmother is not the best, however there are no allegations against either grandparent. I also commented to the parties legal representatives during the hearing that there is a long line of authority which stresses the importance in the vast majority of cases of children's relationship with their grandparents on each side, going right back to the well known decision of Bright and Bright v Bright and Mackley[2]. I am aware that the paternal grandparents live in the area and certainly have been involved with their granddaughter in the recent past.
[2] (1995) FLC 92-570
The Mother may have some concerns in the light of matters deposed to in her affidavit, that one or other grandparent may not be cooperative in facilitating the return of the child at the appropriate time. I will make it clear that the orders that I am making are orders of this Court and any party who does not comply with Court orders or hinders or prevents parenting orders from taking place will do so at their peril and the Federal Magistrates Court does not shy away from imposing penalties on those people who defy orders made by the Court.
I propose to make the following orders until further order but I would indicate, as I told the parties during the hearing, that I would not be making any orders relating to joint parental responsibility.
I propose to make one further order in light of the allegations, that neither physically discipline the child.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 14 May 2008
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