Somers and Somers

[2010] FamCA 914

FAMILY COURT OF AUSTRALIA

SOMERS & SOMERS [2010] FamCA 914

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth)

APPLICANT: Mr Somers

RESPONDENT: Ms Somers

INDEPENDENT CHILDREN’S LAWYER: Mr Epstein

FILE NUMBER: MLC 2109 of 2009

DATE DELIVERED: 29 July 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Benjamin

SOLICITOR FOR THE APPLICANT: Kliger Partners

COUNSEL FOR THE RESPONDENT: Ms Anthanasopoulos

SOLICITOR FOR THE RESPONDENT: Perisic & Thomas Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Epstein

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Samantha Ward Pty

Orders

1. That all previous orders relating to the supervised time between the child L and the father are discharged.

2. That for each weekend commencing Saturday 31 July 2010 and for the successive weekends of 7 August, 14 August and 21 August, the father spend time with the child as follows:

   (a)     each Saturday from 2.00pm to 6.00pm; and

   (b)    each Sunday from 9.00am to 6.00pm.

3. That for each weekend commencing Saturday 28 August 2010 and for the successive weekends of 4 September, 11 September and 18 September 2010, the father spend time with the child as follows:

   (a)for the weekends of 28 August and 4 September from 2.00pm on the Saturday until 10.00am on the Sunday; and

   (b)for the weekends of 11 September and 18 September from 10.00am on the Saturday until 2.00pm on the Sunday.

4. For the weekends commencing Saturday 25 September 2010 and the weekends thereafter of 2 October, 9 October, 16 October, 23 October, 30 October, 6 November, 13 November and 20 November 2010, the father spend time with the child as follows:

   (a)for the weekends of 25 September and 2 October from 9.00am on the Saturday until 12 noon on the Sunday;

   (b)for the weekends of 9 October and 16 October from 9.00am Saturday until 2.00pm on the Sunday;

   (c)on the weekends of 23 October and 30 October from 9.00am Saturday until 4.00pm Sunday; and

   (d)for the weekends of 6 November, 13 November and 20 November from 9.00am on Saturday until 6.00pm on the Sunday.

5. That on all occasions of contact, the mother deliver the child to the father at the handover point at the Y Contact Centre.  For the avoidance of doubt, the father pay any fee associated with that handover.

6. That the reasons for judgment this day be transcribed and be made available to the parties and the Independent Children’s Lawyer provide a copy to Dr E.

7. That all parties have leave to issue further subpoenae as they see fit.

8. That the matter be otherwise adjourned to 15 November 2010 as the first case in the list (with an estimated duration of 1-2 days).

9. That there be liberty to apply.

10. That each party have leave to file a further affidavit as to matters arising subsequent to these orders.

11. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2109 of 2009

MR SOMERS

Applicant

And

MS SOMERS

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This is an application to vary parenting orders in the middle of a part heard contested final hearing.  It was my intention to try and resume the part heard case this week, but another case has made that impossible.  Be that as it may, I did indicate on the last occasion that I was concerned whether the existing order should remain, having regard to the evidence that I had heard.  I thought I had made my view, which was clearly incomplete, as clear as I could, and suggested to the parties that they might give some consideration to altering the two fundamental problems that have plagued the dispute thus far.  The first problem is the requirement for the father to be supervised whilst he has the care of his daughter.  That still remains a problem for the mother today.  In the minutes that she has provided to me, the mother seeks that the father’s overnight time occur at the home of the paternal grandmother. 

2. The second problem is the duration of the father’s time with the child.  There has been a move forward today in that the mother has agreed to overnight time, although, as her counsel quite correctly points out, she is not happy about it, but she accepts that as a fact of life.  Despite having some agreement in respect of that second issue, realistically, not much has advanced and hence the application that I am now hearing to trial some parenting orders.

3. It goes without saying that any order I make today has been given serious consideration overnight, bearing in mind that yesterday, I had a telephone mention with all parties involved to discuss what was happening and where the case was going.  I make it clear that the orders I am making today are with the best interests of L in mind.  I make clear that I am making the determinations today on the basis of the evidence presented to me.  I do not have a crystal ball.  I cannot guarantee that people will behave in a particular way.  Effectively, I am doing the best I can.  The orders, therefore, I am proposing to make are done so on the basis of the hindsight of the evidence in the trial, the submissions I have heard today and the knowledge that any order I am about to make is of an interim nature. 

4. I stress again that I will review this later in the year. 

5. Mr Somers and Ms Somers are the parents of L, who is two years of age.  After the child was born, the parties only lived together for just over 10 months.  They have therefore been separated for a long time in the context of their daughter’s life.  The child could know nothing about her parents’ life together.  That must mean that a cautious approach has to be taken about expanding the existing parental role for the father. 

6. Serious allegations have been made by the mother against the father, which, if true, would create an unacceptable risk of danger for her if she was alone with the father.  Some of the allegations relate to a period prior to the birth of the child and others after the separation of the parents.

7. Over a series of days, I have heard extensive evidence.  I have not had the opportunity to hear the parties’ final submissions on that evidence, nor have I heard a forensic psychiatrist in relation to the state of the mental health of the mother.  Those two matters may affect the decision I ultimately have to make.  But in respect of what evidence I have heard, which was tested by all counsel, I could not say there is an unacceptable risk of harm to the child in her father’s care. 

8. It was the allegations and the tender age of the child that gave rise to the restrictions that are now under reconsideration.  It is not to be forgotten that the substantive dispute here focuses on who of the two parents should be the one most likely to provide a stable, caring relationship for the child.  The father wants the child to live with him on a full-time basis, in circumstances where he has had limited and restricted time with her in any parenting role.  It is clear that he has to crawl before he walks. 

9. The father is a 36 year old photographer who conducts his own business and the mother is a 35 year old woman who has been occupied in the full-time care of the child since her birth.  Prior to the child’s birth, the mother assisted the father in their photographic business.  The continuation of that business has made it difficult for the father to allocate time, but I have been told this morning, for the purposes of at least the interim period, he will be assisted by his mother in that business and he will devote his time and attention to the care of the child in the periods of time that I allocate.  I want to make it clear to both parties that that is an issue that I will look at later in the year.  If the father does not have the time to be the full-time carer of the child, it may make some difference in due course. 

10. These parties knew each other at school as teenagers and began living together in 1995.  Each has a significant history of drug use, which I find stopped in 1999. 

11. In March 2008, L was born.  The separation occurred in February 2009 when the mother left the parties’ residence with the child and immediately issued an application for an intervention order in which no allegations were made of any sexual impropriety against the father.  On 11 February 2009 in the Magistrates Court at Geelong, an intervention order was made.  That order included a prohibition on the father being within 100 metres of any place where the mother lived. 

12. On 26 February 2009, the Geelong Magistrates Court extended the earlier intervention order for a further month.  At that hearing, the parties signed a handwritten agreement that the father would spend time with the child on each Sunday from 1 pm to 4 pm and otherwise as agreed.  However, that time was to be supervised by the maternal grandfather.  Despite the agreement, there were almost immediate problems which in turn precipitated the father making an application to the Federal Magistrates Court of Australia. 

13. Only days later, on 7 March 2009, the father was advised by the mother that he was not to have contact with the child and that she had involved the Department of Human Services. 

14. On 12 March 2009, notwithstanding that the mother had left the residence of the parties, the police advised the father that he had to leave the premises so that the mother could return there to live. 

15. On 9 April 2009, the mother filed a notice of risk of child abuse.  In that document, the mother, for the first time, alleged that the father had inappropriately touched the child’s genitals and behaved inappropriately with her.  She alleged that the father viewed child pornography and had it in his possession.

16. Apart from the fact that the notice filed with the court activated a notification to the Department of Human Services, the mother attended upon Victoria Police and made complaints along similar lines to those set out in the notification to which I have just referred.  Essentially, the complaint to the police related to the father having possession of child pornography. 

17. On 15 April 2009, the matter came before Connolly FM, who fixed a final hearing for August 2009.  His Honour made interim parenting orders which I note were made by consent of the parties.  There, almost immediate problems about compliance culminating in contravention proceedings occurred and they were returnable before me on 5 October 2009 and ultimately heard on 19 October 2009.  I was not satisfied in those proceedings about the conduct of the mother and made findings against her and consequently altered the orders of Connolly FM. 

18. I made an order that the father spend time with the child on each Sunday from 10 am to 1 pm, or as may otherwise be agreed in writing between the parties, but the time still had to be supervised, this time by the father’s nominee, Ms W.  I directed that the mother deliver the child to Ms W. 

19. The full trial to which I referred earlier began in earnest on Monday, 29 March 2010.  The father relied upon and called his witnesses, the supervisor, Ms W, his stepfather, his mother, two police officers, a Department of Human Services worker and a lawyer who had previously represented the mother.

20. I have heard evidence about allegations of violence and drug-taking.  In any final reasons for judgment, I will deal with those issues.  They do not affect the decision I have to make today. 

21. I have heard evidence about the mother alleging the father had copies of photographs belonging to customers of young girls of various ages.  The photographs, she said, were sexual in nature.  She said she did not have possession of them and therefore they were not produced.  The mother also made reference to a customer who photographed “street children” in some form of sexually inappropriate pose and which the mother thought amounted to child pornography.  The father denied the assertion, notwithstanding it was not in the mother’s evidence in any previous affidavit.

22. The mother’s counsel put to the father that the pictures depicted children touching each other’s breasts or genitals.  The father denied having the images, let alone anything of that graphic nature.  When it was put to the father that it was a customer who requested the services to print the film, the father’s response was that the character was fictitious.  In the reasons for final hearing, I will deal with a finding about that.  Again, it does not affect the decision I have to make today. 

23. Some evidence was given in the hearing about family violence.  The findings that I will make affect the issue of both parenting responsibility and who should be the primary carer as a parent in the future.  Today, I am concentrating only on the restrictions which limit the father having a normal parental relationship with L. 

24. In these proceedings, there were many allegations made by the mother.  They relate to all sorts of allegations of impropriety which, if proved, would establish an unacceptable risk. 

25. On the evidence presented by the parties, I am not satisfied that there is any basis for me to be concerned about the father caring for the child.  I find that he is not an unacceptable risk.  For the sake of the record, the serious allegations of the mother against the father can be distilled into five issues.  They were:

    a)The father worked on designs on his computer and used graphic pictures of young girls.

    b)The father developed photographs of female children aged between 10 years and 16 years for a customer who photographed “street kids”, and the father retained copies of these photographs for himself.

    c)Upon the delivery of the deceased child G the father inappropriately took photographs of the deceased child’s genitalia.

    d)During the 10 months after L’s birth but at an unspecified time, the father inserted his finger into the child’s vagina inappropriately and pulled her labia apart.

    e)The father quite forcefully wiped L’s genitals when he was changing her nappy.

26. Bearing in mind the onus of proof being the balance of probabilities and the fact that I have heard a substantial body of evidence, I am in a position pursuant to s 69ZR of the Act, to find there is no substance to any of the allegations for the following reasons. 

27. In respect of the first allegation, the mother did not assert that this was child pornography.  The father acknowledged to having access to what might be described as “pornography” but never anything to do with children.  On the balance of probabilities, I accept the father’s evidence. 

28. The second allegation was reported by the mother to the police who undertook a very thorough investigation of the mother’s allegations and found nothing. 

29. The investigating officer said that if material had been deleted from any of the father’s computers their expert would have seen it. The father raised no concerns for the police.  I find therefore, on the balance of probabilities, there is no substance to that allegation. 

30. The third allegation was distressingly sad. The mother produced two photographs from an album of the parties’ deceased child, G, and relied upon those as evidence of some obsessive and inappropriate behaviour on the part of the father.  She had those photographs in the album for the entire time after the child was delivered stillborn.  In evidence, the father produced an album of many photographs.  He was not cross-examined about its details but he was clear that the photograph had been available to both parties after G’s delivery and up until separation.

31. He said the mother did not take the album but rather, a disc with photographs on it.  When the subject of the album was put to the mother in cross-examination she denied it was the album that had been in the house.  It was not suggested to the father that he had concocted the album.  Certainly, the two photographs that the mother relied upon are clearly seen in the father’s album.  The mother was cross-examined about photographs of the child’s hands and feet but she said she took some of those herself.  Many photographs were taken of this deceased child.  The father was questioned about why he had done that and his explanation was plausible.  He said he did not want G to simply be an historical fact but rather, to have been a child recognised for what she was.

32. The photographs were all collated and placed in an album which was produced in court.  That album showed G both dressed and undressed, as well as being bathed and held by extended family members.  When the photographs were taken, the nursing staff were present.  Photographs of family members holding G were also taken.  Accordingly, on the balance of probabilities, I reject the mother’s allegation. 

33. The fourth and fifth allegations are connected in time by virtue of the limited period that the parties were together after L’s birth. They are serious allegations. The unusual feature is that the mother was present. For reasons which I shall set out in far more detail in any final reasons, applying s 140(2) of the Evidence Act 1995 (Cth), I reject the mother’s allegations.

34. There are other serious allegations that do affect an interim determination and for that reason, I feel comfortable in making certain findings.  The mother alleged that L has been poisoned.  That arose out of her assertion that the food provided by her was not being used by the father but in fact some of his own and that consequently, the child was becoming ill.  She pointed to constant diarrhoea.  The statement using the word “poisoning” could have an innocent connotation but I find the mother uses that in its proper context.  There is no evidence of poisoning. 

35. The mother gave evidence that she had taken the child to a paediatrician and that stools had been examined.  She said that one had come back negative and another positive for whatever it was that was being investigated.  No evidence was presented as to what the investigation had turned out to be positive.

36. In her affidavit filed on 19 October 2009, drawn by a solicitor other than the one who was currently acting for her, the mother set out in paragraph 21, significant allegations.  These are a mixture of events that apparently occurred, both before separation and more recently.  They run to four pages. They include allegations of digital penetration of L and inappropriate touching of her genitals.  I have already rejected some of those.  The mother asserted that the father had bent back L’s fingers and toes while dressing her to the extent that the child cried.  She said he used violent and vulgar language in front of the child.  These allegations must be seen to have occurred during the period prior to separation.

37. Some months prior to the parties separating the mother attended upon a counsellor, Ms S.  Somewhat reluctantly, Ms S produced her notes under a subpoena. Those notes appear to have recorded the various consultations with the mother and there were five attendances prior to February 2009.  Whilst the mother detailed her concerns about her own emotional well-being there is no suggestion in the notes of any violence or impropriety on the part of the father.  One would have expected that if there was a real concern for the welfare of the child during the final months prior to separation it would have been evident.  The mother relied upon evidence of her fear and when asked why there was no such criticisms of the father in the notes, she replied that she was “in denial.”  I do not accept that evidence.

1. To Dr E, the mother said that there was no physical abuse and the psychiatrist recorded that she was not frightened of the father.  When asked about that, the mother said that she understood Dr E to be referring to her being “frightened for her life.”  That too was an implausible response. 

2. Issues such as the allegation of the father bending the fingers and toes of the child do not appear in her early affidavit material.  When asked why, the mother said that she told her solicitors but none of it appeared in the affidavit material.  She said she told the maternal and child health nurse but no notes were produced of such statement and certainly, no such witness was called.  Importantly, none of that sort of allegation was put to the father in cross-examination.

3. The mother’s position is best summed up in evidence that she gave, describing the father as “a paedophile and sadistic.”  I reject all of those allegations. 

4. The mother also said the father was stalking her.  There was nothing objective to confirm what she said was true.  There might have been some basis for me to conclude that she was being truthful had she convinced me in relation to the same allegation against the father’s stepfather, Mr B. I shall deal with Mr B’s evidence elsewhere but the mother said that she had video footage of the grandfather at a shopping centre.  This apparently was on the shopping centre’s technical equipment and she had drawn this to the attention of the police.  This would have been the perfect evidence to establish some credibility.  No such evidence was called.

5. In summary, therefore, and very much on a truncated basis, I find there is no unacceptable risk of the father harming L in the terms of that sort of conduct asserted by the mother. 

6. As I said, I heard from the stepfather, Mr B, who spoke highly of his stepson’s care of the child. I was surprised that he was even called for cross-examination. 

7. I was impressed with the candour and diligence of the supervisor, Ms W.  I am satisfied she took her responsibilities concerning the child seriously.  She had no such concerns.  Again, in my final reasons I shall deal with her important evidence in much more detail. 

8. Mrs B, the paternal grandmother, saw no problems in her son’s capabilities with the child. 

9. She told the court about the preparation of food for the child by her.  She said she also had a close relationship with the mother up until the time of separation but that had now ceased. I comment that that is very sad. Mrs B impressed as a thoughtful and honest witness and she too was not seriously challenged. 

10. I heard from Ms V, a social worker employed by the Department of Human Services, who was the intake worker who dealt with the mother.  She was able to tell me about reports in February 2009 and again in November 2009 in which the mother raised concerns about L in the care of the father.  Reference had been made by the mother to G having been stillborn and the father’s contact at the hospital, as well as complaints by the mother of the father excessively bathing the child and having her genitalia photographed.

11. The Department saw no problems in early 2009 and therefore closed their file.  In November 2009, Ms V was contacted by the police about an injury reported to her as having occurred when L had been bouncing on the father’s knee.  Nothing arose of concern from the Department’s point of view.  Ms V told the court that she had spoken to the police as well as the Maternal and Child Health Centre and saw no reason to be concerned because the child was meeting her milestones.  The Department’s involvement in this case was limited because they did not have cause to make a home visit, but simply recorded the details of what they were told.  There was no basis for any intervention on the part of the Department. 

12. There is much evidence about how L reacted after contact visits.  Nothing I heard could be said to link anything that the father did with that problem, particularly as the child was constantly supervised. 

13. The evidence about doctor visits is part of the father’s case as to why the child should be removed from the mother’s care on a permanent basis.  I am not able to make any findings about those matters without hearing further from Dr E.

14. Having made those findings I then turn to the law. 

15. Section 64B subsection (2) provides that a parenting order may deal with, amongst other things, the time a child has to spend with another person.  Fundamental to my decision in this case is s 60CA which says:

    In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

16. In determining what is in the best interests of that child, s 60CC provides that the court must consider both the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subject to or exposed to abuse, neglect or family violence.  In this case I consider on an interim basis, there is a need to consider L having a meaningful relationship with her father in circumstances where I have made a finding there is no unacceptable risk of the sort of harm the section contemplates. 

17. Considering the additional relevant considerations referred to in s 60CC, all of the evidence points to a father with a dedicated and desirous view of fulfilling a role as a parent.  There is an unfortunate and poor relationship between the parents but that is a different thing.

18. I am satisfied that the mother does not have the willingness and ability to facilitate and encourage a close and continuing relationship between the child and the father and that unless orders are made, the relationship between father and daughter has the potential to slip further away.  I make that statement in the knowledge, however, that what I am about to embark upon is a trial period.  If I can be shown that the mother has a willingness and ability to facilitate the relationship that I think this child deserves, the outcome later in the year may have a very different outcome.

19. Because of the child’s age, I have made it clear that I do not consider it possible to immediately change her routine and for that reason, as I have indicated this morning, I intend a progressive regime of time pending further consideration and possibly more evidence. 

20. I do not consider the likely effect of these changes will be detrimental based on the evidence of the father, his mother, his stepfather and Ms W.  All of that evidence suggests that this child knows her father and those around him and knows the surrounds and is comfortable in them.  That same evidence indicates the father has the capacity to provide for the needs of the child, including her emotional and intellectual needs.  Ms W supported that concept. 

21. I cannot yet make findings about the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents until I have heard all of the evidence and the relevant submissions.  It may be a telling consideration in fashioning final orders for the future.  I am satisfied that there is no immediate family violence issue that would affect the interim orders.

22. Section 61DA provides a rebuttable presumption relating to parental responsibility.  It does not apply in this case because of the fact that I am making interim orders and it would be inappropriate to consider that situation as part of the discrete task that I am fulfilling this morning.  In addition, I am unable, on the evidence I have heard thus far, to make any firm predictions until I hear all of the evidence.  On that basis, I propose to make orders.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  12 October 2010