SKINNER & SKINNER

[2015] FCCA 1422

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKINNER & SKINNER [2015] FCCA 1422

Catchwords:
FAMILY LAW – Interim arrangements for children aged 7 & 4 – children live with father – father charged with nine serious indictable offences involving sexual assault on the mother – matters proceeding to trial – trial delayed due to mother’s ill health – father has spent supervised time with the children for period over eighteen months – father seeks to extend time and drop condition of supervision – matters to be considered – nature of family violence – best interests.

Legislation:  

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC

Applicant: MR SKINNER

Respondent: MS SKINNER

File Number: ADC 2952 of 2013

Judgment of: Judge Brown

Hearing date: 13 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Mount Gambier

Delivered on: 13 May 2015

REPRESENTATION

Counsel for the Applicant: Ms Annells

Solicitors for the Applicant: Annells Lawyers

Counsel for the Respondent: Mr Hill

Solicitors for the Respondent: Andrew Hill & Co

ORDERS

UNTIL FURTHER OR OTHER ORDER

1. The father spend unsupervised time with the children X born (omitted) 2008 and Y born (omitted) 2011 each alternate Saturday from 11:00am to 2:00pm with handover to be at the (omitted) Children's Contact Centre commencing Saturday, 16 May 2015.

2. The father is restrained and an injunction issue restraining him from asking the children what is their residential address or discussing these proceedings with the children in any way whatsoever NOTING this order is not made with any view to asserting that the husband has done such things in the past but rather to provide some formal level of assurance to the wife that it is not to occur.

3. Further consideration of this matter be adjourned to 17 August 2015 at 11:00m in Mount Gambier NOTING the respondent’s solicitor has leave to appear by telephone.

4. A copy of the oral reasons for judgment given today are to be transcribed and provided to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Skinner & Skinner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADC 2952 of 2013

MR SKINNER

Applicant

And

MS SKINNER

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally, immediately following the interim hearing concerned.  Given their controversy and the fact that the wife was not present to hear them, it is appropriate that they be transcribed.

2. This afternoon, in Mount Gambier, I am dealing with an application in a case which is brought by Mr Skinner.  The respondent to the application is Ms Skinner. 

3. For the sake of convenience, I will refer to Mr Skinner as the husband, in these orally-delivered reasons for judgment, and to Ms Skinner as the wife. 

4. By way of background, the parties are both (occupations omitted), although I understand the husband is older than the wife and has more experience in this regard. 

5. The parties met early in 2006, whilst both were undergoing a course of induction to prepare each of them to be (occupations omitted) in the remote north of the State of South Australia, as (occupations omitted) in an (employer omitted).  They married later that year on (omitted) 2006. 

6. The current proceedings concern interim arrangements for their two children.  Those children are X, who was born on (omitted) 2008, and Y, who was born on (omitted) 2011.  Accordingly, on my calculations, X is almost seven years of age, whilst Y has just turned four. 

7. More recently, the parties moved to the southeast of the state to pursue their employment as (occupations omitted).  Initially, the husband was employed at (employer omitted), which is a suburb of (omitted).  More recently again, he moved to (employer omitted) and most recently, he became the (position omitted) of the (employer omitted).  He assumed that position at some time in 2010. 

8. Accordingly, it is Mr Skinner’s position that he has long experience in caring for young children.  It is his case that nothing adverse has ever been said about his professional interactions with children of all ages, including children of ages comparable to that of X and Y. 

9. The wife began these proceedings a significant period of time ago.  She commenced the proceedings on 16 August 2010.  At that stage, it was her position that the two children should live with her and she should have sole parental responsibility for them.  At the interim stage, she proposed that the two children should only spend time with their father on alternate weekends and subject to professional supervision. 

10. It was her case, and it remains her case, that throughout the parties’ marriage, she was subject to serious coercive and controlling behaviour by the husband.  It is her case that the husband restricted her access to the parties’ joint finances and kept her socially isolated. 

11. More significantly, it is the wife’s case that during the parties’ marriage, from late (omitted) of 2009 onwards, she was subject to a number of serious assaults.  These assaults were physical in nature and included sexual assaults of the utmost seriousness, including both anal and vaginal rapes.  It was on that basis that she sought that the father’s time with the children be subject to rigorous professional supervision. 

12. At that stage, the wife had made a detailed statement to the police, which detailed what she asserts have been the husband’s serious antisocial and violent behaviour occasioned towards her.  The statement comprises some 13 pages.  It was made to police shortly after the parties had separated on 25 July 2013. 

13. It is the wife’s case, as I understand it, that she felt her will was overborne by the husband during the latter stages of the parties’ marriage.  In those circumstances, she felt embarrassed and ashamed about what had happened to her, and so unable to report it to those in authority. 

14. It was only when she resolved to make her formal complaint to the police that she felt able to leave what she categorises as a deeply unhappy and dysfunctional marriage. 

15. However, it should be noted that in her statement to police, she said as follows:

    I don’t want to feel scared any more and believe that I deserve more, as do my children.  Mr Skinner has never hurt the children in any way but I feel that I can’t be the mother I can or should be if I continue to live like this.  I worry that the children could be exposed to something that could harm them. 

16. It is not the wife’s case, as I understand it, that the husband has never directly abused or harmed the children.  However, as I take it, it is her case that Mr Skinner is an inappropriate role model for children of the ages of X and Y and great care needs to be taken in respect of the amount of time he spends with the children and the context in which it occurs.

17. It is also her case that she is and always has been the children’s undisputed primary carer.  As such, she asserts that it is likely to be deleterious, for the children, if she herself feels psychiatrically or psychologically compromised by any interaction which the children have with their father, with which she feels uncomfortable or unsettled.  Essentially, she asserts there is a possibility that the children’s source of primary care will be undermined.   

18. The husband responded to this application on 8 October 2013.  On a final basis, it is his position that the parties should have equal shared parental responsibility for the two children, and that it would be in their best interests to live on a week about basis with each of their parents.  Clearly, given the current situation at the moment, that is likely to be a very difficult arrangement to put in place in a practical sense. 

19. When he filed his response, the husband realised that, given the situation then prevailing, that such a shared care regime was highly unlikely to be implemented by the court.  At that stage, he conceded that he had been charged with nine serious matters by police.  In addition, there was an intervention order which prevented him having any contact with the children or the wife, certainly the wife. 

20. In his answering affidavit, he strenuously refuted any suggestion that he had ever behaved in a manner inappropriately or violently towards the wife.  He conceded that during the parties’ marriage, he was subject to periods of work stress. 

21. He also conceded that he had sought counselling in the past and had been prescribed antidepressant medication.  However, it was his position that he was a loving and supportive spouse, who cared deeply about his wife. 

22. It was his case that the wife had free access to the parties’ finances and that he was a loving and involved father to X and Y.  He accepted that because of his busy professional commitments, the wife had done more of the housework, cooking and parenting of the two children concerned, but he refuted any suggestion that he had been an absent or uncommitted father. 

23. It was his case that he regularly bathed, fed and played with both X and Y.  It was also his case that his parenting skills were fully developed.  Underpinning his case was his assertion that the parties had divided their family responsibilities along conventional lines and he had played his part in caring for X and Y.

24. On the other hand, it was Ms Skinner’s position that Mr Skinner was a parent, who found it difficult to deal with the challenges of parenting, particularly when X and Y were distressed in any way or upset. 

25. Against this difficult background, when the matter first came to court, the parties were able to agree on a way forward.  It was agreed between the parties and a consent order made to formalise their agreement on 29 August 2013, that X and Y would live with their mother, who would have sole parental responsibility for them on an interim basis. 

26. It was further ordered that the children would spend supervised time with the father at the (omitted) Children's Contact Centre at such times as could be accommodated by the centre. 

27. At this early stage, whilst the charges against the husband remained outstanding, as I understand matters, he was living with his parents in suburban Adelaide.  The wife was living at an undisclosed location and it remains her position to this day that she should not disclose her address either to the court, and more particularly, to the husband, in order to provide her with protection. 

28. The husband’s supervised time with X and Y began on 19 October 2013.  I have been provided with a report from the contact centre, which details each of the visits which occurred between 19 October and 4 January 2014.  

29. These visits seem to have been unexceptional in nature.  Both parties have been reported as having attended at the Children’s Contact Centre at the right time and the children concerned have separated from their mother with alacrity.  The children are reported as referring to the father as “daddy” and rushing forward to be involved with him. 

30. Thereafter, on each occasion, the report indicates that the children interacted with their father in a normal way, played with him in a variety of unexceptional manners, and Mr Skinner is reported as dealing with the children competently. 

31. On one occasion, when one of the children asked Mr Skinner where he was living, it is reported that Mr Skinner was able to competently deflect the children away from what might be potentially a controversial issue. 

32. As I indicated earlier, when Mr Skinner filed his initial affidavit, which was in October of 2013, he was conscious of the delay which might prevail until the criminal charges against him could be resolved.

33. At that stage, he indicated that he had been told that it could be as long as May or June of 2014 for the matter to be resolved.  In this estimate, he has proved to be woefully inaccurate.  The criminal proceedings have not as yet been resolved. 

34. As I understand matters, it was hoped that they could be resolved by trial in Mount Gambier in October of last year.  The case was listed as a reserve but was not reached.  It was, however, listed as the primary matter in February of this year.  However, the trial could not proceed due to the ill health of the wife, and I will return to that issue in a moment. 

35. Accordingly, for a period of around 18 months or so, the husband’s primary means of maintaining a relationship with X and Y has been through fortnightly periods of supervised time of two hours in duration, at the Children’s Contact Centre here in the southeast of South Australia. 

36. Mr Skinner has been suspended on full pay from his duties with the (employer omitted), whilst the very serious criminal charges against him remain outstanding. 

37. It is his case that he was prepared to await the outcome of the criminal proceedings before advancing his application to spend equal time with the two children concerned.  However, given the delay in the trial process, he has brought an application in the case. 

38. His application in the case seeks for the requirement of supervision to be withdrawn and in lieu thereof, he seeks to spend time with X and Y on a fortnightly basis from 12 am until 2 pm each Saturday, with the children to be exchanged between the parties in the secure circumstances of the Children’s Contact Service at (omitted). 

39. How, in a technical sense, the handover will be accomplished is not clear to me, but I would anticipate that the parties would not have to come into direct contact with one another, but rather the children could be handed to one of the workers at the contact centre who could hand them on to Mr Skinner, with the same process occurring in reverse. 

40. Accordingly, I accept that it would not be necessary for the parties, who are the accused and the primary witness in a significant criminal trial to come into direct physical contact with one another.  Nor, for obvious reasons, would such a circumstance be satisfactory.

41. I should also say that the parties agreed that Mr Skinner could spend time with X and Y at times to be agreed between them, subject to that time being supervised by the husband’s father, and for the time to be confined to daylight hours.  I have been informed that there have been two or three occasions when this has occurred, and it has largely been confined to school holiday times. 

42. I have not been provided with any report from the Children’s Contact Service from 4 January 2014 onwards.  However, the wife, through her counsel, Ms Annells, does not contend anything other than that from 4 January 2014 onwards the fortnightly visits have been uneventful, from the perspective of the supervisors concerned. 

43. It is the wife’s position that it would be premature to relax the supervision at this stage, particularly as it is her understanding that the trial can proceed as the District Court’s priority in its next sittings to Mount Gambier, which are scheduled for 3 July 2015. 

44. From the husband’s perspective, it is paramount that the court take steps in a gradual and cautious manner to both extend and support his relationship with these two young children.  On any view, this is a difficult and confronting case. 

45. Mr Skinner has consistently maintained his innocence throughout these proceedings and throughout the proceedings before the District Court.  It is his case that he voluntarily took part in an interview with police officers in which he protested his innocence.  He did not take up his right to maintain his silence.

46. In addition, it is Mr Skinner’s case that the evidence against him is not strong.  He asserts that there is ample documentary evidence, which supports his position that the relationship between him and his wife was a loving and happy one. 

47. It is his position that he has text message and email traffic which demonstrates that the relationship between the parties was a normal one.  In addition, he asserts that there is financial information which refutes Ms Skinner’s assertion that he controlled her access to the parties’ joint finances. 

48. It is further the husband’s position that the wife has had a difficult and troubled background.  He has evidence available to him that at one stage, the wife made a false and fantastical report to police officers, which was later found to be a complete fabrication. 

49. The wife’s position, I think, is implicitly that family violence is an insidious and vile thing, which invariably occurs behind closed doors.  As such, it is very often the case that no independent corroboration of it will exist. 

50. It is the wife’s case that she has reported the abuse which she alleges occurred to her, in comprehensive detail.  In these circumstances, she refutes any suggestion that the criminal case is weak.  In any event, it is her position that this is ultimately a matter for the jury, after it has been properly instructed by the District Court Judge, who will oversee the trial. 

51. As I say, the case against Mr Skinner did not proceed in February of 2015.  This was because the wife was unwell.  I have been provided with a medical report dated 19 February 2015, from Dr M, who is a consultant psychiatrist. 

52. At the time, Ms Skinner was an inpatient at the (omitted) Hospital.  She had been diagnosed with a major depressive disorder.  It was Dr M’s position that his patient was likely to suffer cognitive deficits, associated with her depressive disorder, which would impair her level of functioning.  As such, he believed, in his professional assessment, that Ms Skinner would be unable to properly give evidence or to be cross-examined at the trial. 

53. Accordingly, he recommended that the proceedings be adjourned and ultimately, the presiding District Court judge did, indeed, adjourn the proceedings.  It was this adjournment, I think, that precipitated Mr Skinner’s current application. 

54. I have also been provided with a report from a Ms V.  The report is dated 20 April 2015.  Ms V is a mental health social worker at (omitted).  She is employed by (omitted). 

55. Ms V reports that Ms Skinner’s admission to the (omitted) Hospital followed the trauma of domestic violence.  Ms V indicated that she believed Ms Skinner was suffering post-traumatic stress, anxiety and depression as a result of this behaviour. 

56. As I indicated to Ms Annells, there are likely to be questions as to whether Ms V is qualified to provide such a diagnosis.  Certainly, Dr M did not present such a diagnosis, but perhaps his report was only written in the context of the adjournment application. 

57. Ms V considers that Ms Skinner needs stability and support.  It is Ms V’s role, to provide Ms Skinner with support, whilst Ms Skinner negotiates challenges within the legal system, particularly giving evidence. 

58. At the present time, Ms Skinner is on leave from her position as a (occupation omitted) in (omitted).  I say that without fear of breaching any confidentiality regarding Ms Skinner, because that is what is in Ms V’s report, which has been filed in these proceedings, and made available to Mr Skinner. 

59. I have also been provided with the presentment or indictment against Mr Skinner and a statement of the facts on which the prosecution relies.  There are four counts of aggravated assault and five counts of rape.  They extend over a period of time, from 31 March 2009 to the most recent allegation, which was said to occur on 1 July 2013. 

60. I agree with Ms Annells’ assessment that if these charges are accepted, as being confirmed beyond reasonable doubt by the jury concerned, there is an inevitability that they will attract a custodial sentence.  The charges are very serious and include assault with a piece of wood, as well as rape.  So it is against that background that I must determine this difficult matter. 

61. This is an interim hearing.  Accordingly, it is not my role to ascertain whether Mr Skinner has assaulted Ms Skinner in the manners alleged on the balance of probabilities.  Indeed, I am unable to do so only on the basis of the affidavits which each of the parties have sworn, in the absence of cross examination. 

1. In addition, it is not my role to determine the truth or otherwise of the criminal charges against Mr Skinner.  That is the role of the jury, as instructed by the judge concerned, in the criminal proceedings. 

2. My role is to determine what is the best outcome for these two children, according to the provisions of the Family Law Act, bearing in mind the truncated nature of the proceedings before me. Pursuant to part VII of the Family Law Act, and in particular, section 60CA, the best interests of X and Y are the paramount or most important consideration.

3. In determining how those interests are to be best served, I must bear in mind the objects and principles of part VII of the Act, which are contained in section 60B.

4. The objects include the following:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;  and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

5. Some of the principles underlying those objects include the following:

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;  and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with both their parents. 

6. The mechanics of how a court determines what is in a child’s best interests are set out in section 60CC of the Act. In this section, the legislature has provided the court with a number of criteria, which it must consider in determining how a child’s best interests are to be served. There are two categories of matter which I must consider, primary considerations and a longer list of additional considerations.

7. There are two primary considerations which highlight the difficulty in this matter.  Firstly, I am required to consider:

   The benefit to the child of having a meaningful relationship with both of his or her parents;

   And secondly, I must consider:

   The need to protect any child concerned from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. As a result of a recent amendment to the Act, I am required to give priority to protective concerns over the benefits of having a meaningful level of relationship between a parent and a child. 

9. The husband approaches the matter from the first primary consideration.  It is his case that necessarily, any time he spends with X and Y at the Children’s Contact Centre will be somewhat stilted and unnatural.  It is his case that this will not support a meaningful relationship between him and the children.  It is his case that it is now time to move the relationship onwards. 

10. The mother’s case is that the court needs to give priority to protecting the children concerned.  In her affidavit, she deposes as follows:

    I am opposed to the father’s application to commence unsupervised time with the children.  I am deeply fearful of his behaviour and what he will say around the children, given that his parents, who have been the current supervisors during school holidays, have made unsuitable comments to the children in relation to me. 

    I do not feel that it will be beneficial to my mental health for Mr Skinner to commence unsupervised time with the children prior to the final resolution of the criminal proceedings.  I am also concerned that Mr Skinner will use the opportunity to seek our current address from the children or other information which will allow him to locate us. 

11. In this context, I have not been provided with more extensive evidence as to what the paternal grandparents have said to the children. 

12. In regards to the possible deleterious consequences for the wife’s mental health in respect of an advance of the husband’s time with the children, I have Ms V’s report and I have the report of Dr M. 

13. In respect of evidence regarding where Ms Skinner lives being extracted from the children, the husband says that he has been on bail and subject to a intervention order for over 18 months.  During this period, the wife can point of no contravention of the bail and no threat to the wife’s security. 

14. In addition, there is no evidence emanating from the Children’s Contact Centre that Mr Skinner has ever behaved inappropriately towards the children or has attempted to elicit unauthorised information from them. 

15. It is the submission of Mr Hill, counsel for the husband, that his client has been extremely patient whilst what is a difficult process, has been unfolding and delayed due to no fault whatsoever on his part. 

16. In my view, this is a case which is fundamentally about risk.  I have to assess the risks to the children of both proposals as sought by each of the parties. 

17. There is a risk that Ms Skinner will not be able to cope with the orders which the husband proposes.  This may cause her parenting of the children to be disrupted.  It would seem to the be the case that already this has occurred, because Ms Skinner was admitted to the (omitted) Hospital.  What were the arrangements for the care of these two children during that period, I do not know. 

18. It is, however, not the wife’s case that the children will be at direct risk of being abused or assaulted by the husband.  I have already alluded to what she said in her statement to police. 

19. If what the wife asserts is true, there will be no doubt that she has been subjected to family violence of the most serious kind. The concept of family violence is defined in section 4AB of the Act. Family violence means:

    Violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.

    Interestingly, the legislature has provided examples of behaviour which may constitute family violence.  These includes both an assault and a sexual assault, so clearly, there are very significant issues of family violence in this case. 

20. As I apprehend it, it is not the case that the wife asserts that the two children concerned have been directly exposed to family violence.  However, it is her case that a parent who inflicts family violence on the other parent is an inappropriate role model for the children concerned.

21. For the reasons to which I have already alluded, cases involving family violence are particularly difficult for the court.  Family violence invariably happens behind closed doors.  In addition, it is now generally recognised that family violence can happen in all walks of life and between couples from all socioeconomic levels in society. 

22. In addition, it is now recognised that its victims are reluctant to make their complaints public and to seek redress from those in authority for a variety of reasons.  These reasons include embarrassment, disempowerment or simply shame.  However, the court is still required, given the structure of the Act, to take allegations of family violence very seriously indeed.  

23. However, it is also not unknown for allegations to be made for other untruthful reasons.  In these cases, there may be risks in either terminating or unduly truncating a potentially worthwhile relationship for children because of uncertain allegations.  

24. It is, I think, the underpinning of Mr Skinner’s case that there is a risk that X and Y will be deprived of the benefits of having a loving and normal relationship with him and, up until this stage, untold damage may have been done to that relationship. 

25. It is also, I think, his case, although Mr Hill does not specifically put it on this basis, that although every attempt is made by those who run children’s contact centres to make those children’s contact centres warm and family orientated places, they, nonetheless, remain somewhat institutional in nature, and that there is something stilted about a parent and child interacting in the presence of a person with a clipboard who notes down everything that occurs.  It is his case, I think, that that will not lead to the children having a proper level of beneficial relationship with him. 

26. It is the wife’s case that it is only a few weeks until these criminal proceedings will be resolved.  Mr Hill advises me that neither he nor the barrister retained for the criminal trial have been advised that the matter will be listed in July.  Ms Annells tells me that that may be the case, but that is only because the former call over has not, as yet, occurred.

27. Again, I do not know whether there is any likelihood that there will be some further problem in respect of Ms Skinner’s health.  I hope not.  It is her evidence that she is just as desirous as Mr Skinner of having the trial completed. 

28. So this is a case of risk.  The risk cuts both ways.  The test is, is the risk to the two children of having unsupervised time so great that it would be unacceptable for a person in my position to accept the risk.  I have, I hope, closely considered the matter and have done my best to summarise both parties’ positions. 

29. The time which Mr Skinner seeks is modest.  He will travel down to (omitted) to see the children.  I have raised with Mr Hill the fact that it is now almost winter in the southeast of South Australia.  I can say from my own experience that it is today, bitterly cold in (omitted).  I would not want to be out on the street or in a park with two children of the ages of X and Y on a day like today. 

30. Mr Hill has told me that his client proposes that he would take the children to some warm restaurant and have a meal with the two children.  Thereafter, he would either go to the library or perhaps a play café in order to interact with the children there.  It is the underpinning of his case that that will be a more natural arrangement than currently prevails. 

31. In my view, many of the wife’s fears are inchoate.  There is no evidence that Mr Skinner will abuse any trust placed in him and will quiz the children. 

32. It is now well over 18 months since these proceedings were commenced.  It is Mr Skinner’s position that it came as a bolt out of the blue when he was arrested and learnt that his marriage was over.  

33. I have closely considered the evidence from the psychiatrist and the social worker who are supporting Ms Skinner.  The issue of what will be the implications for Ms Skinner of the children spending three hours unsupervised with their father once per fortnight, have not been examined in either report. 

34. In these circumstances, it is my view that there is something conjectural about the submission that Ms Skinner’s care of the children will inevitably be compromised by what is a modest advance in time between the children and their father. 

35. Balancing all these factor into account, I hope carefully, I have come to the conclusion that it would not be unacceptable for me to give effect to Mr Skinner’s proposal.  I am confident that arrangements can be put in place to avoid the parties coming into direct physical contact with one another. 

36. I am also satisfied that the potential benefits for X and Y of interacting with their father outside of the Children’s Contact Centre for a comparatively modest period of time outweigh the potential risk to the wife in terms of her capacity to parent the children, and also her personal security in terms of the husband inappropriately trying to quiz the children as to their address and current living arrangements. 

37. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  6 July 2015