Spriggs and Killen

[2017] FamCA 524

FAMILY COURT OF AUSTRALIA

SPRIGGS & KILLEN [2017] FamCA 524

FAMILY LAW – CHILDREN – Interim orders – Discharge of previous final orders in relation to child’s time with father – Allegations of sexual abuse of child by father – Father has not spent time or communicated with child for more than 15 months – Parties in agreement that child spend supervised time with father at contact centre – Issue as to the amount of time - Child to spend time with father at contact centre for one hour per week with time to increase at intervals – Child to spend time with father at contact centre for two hours every second weekend and on special days - Father’s time at contact centre to increase steadily to allow for reintroduction to progress successfully – Father has liberty to apply.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
Goode & Goode (2006) FLC 93-286
Salah & Salah [2016] FamCAFC 100
Eaby & Speelman (2015) FLC 93-654
SS v AH [2010] FamCAFA 13
Treloar & Nepean (2009) FLC 93-417

APPLICANT: Mr Spriggs

RESPONDENT: Ms Killen

INDEPENDENT CHILDREN’S LAWYER: Ms Meehan

FILE NUMBER: TVC 1263 of 2012

DATE DELIVERED: 10 July 2017

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 31 May 2017

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: SR Wallace & Wallace

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: M M Meehan

Orders

1. Orders 3 and 4 of the Orders made 29 October 2014 be discharged.

2. The Father spend supervised time with the child, B (born … 2012) at the C Town Children’s Contact Centre (referred to as “the Contact Centre”) at such times as may be suitable to the Contact Centre, as follows:-

   (a)For the first four (4) visits, for one (1) hour once per week;

   (b)For the following four (4) weeks, for one (1) hour twice per week;

   (c)Thereafter, for two (2) hours, in one block, every second weekend;

   (d)In the event that Father’s Day falls on an unscheduled day and in addition to the scheduled visits, the Father will spend up to two (2) hours supervised time with child providing that time can be accommodated by the Contact Centre;

   (e)In the event that Father’s Birthday falls on an unscheduled day and in addition to the scheduled visits, the Father will spend up to two (2) hours supervised time with child providing that time can be accommodated by the Contact Centre;

   (f)In the event that Child’s Birthday falls on an unscheduled day and in addition to the scheduled visits, the Father will spend up to two (2) hours supervised time with child providing that time can be accommodated by the Contact Centre;

3. The costs of the C Town Children’s Contact Centre be paid by the Father.

4. Each parent will contact the C Town Children’s Contact Centre within one (1) week of the date of these Orders to make an appointment and thereafter complete the intake as soon as possible.

5. Neither parent will denigrate or allow any other person to denigrate the other parent within the presence or hearing of the child.

6. The mother is to encourage and use her best endeavours to have the child attend the contact centre so as to spend time with the father.

7. The father has liberty to relist his application filed 16 May 2017 on 7 days’ notice to the other parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spriggs & Killen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVC1263/2012

Mr Spriggs

Applicant

And

Ms Killen

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By his Application in a Case filed 16 May 2017, Mr Spriggs (“the father”) sought interim orders in relation to his daughter, B, (born in 2012 and hence presently 5 years of age) (“the child”).  As ultimately formulated during the course of the hearing before me, specifically he sought to spend supervised time with the child, initially for two hours once per week for four visits, but then moving to two visits per week each of 2 hours.  He also sought orders that the costs of contact at the C Town Contact Centre be borne by the mother, and that if “the mother refuses to obey said order, that an order be made to the Australian Federal Police to locate and recover the child and place into the father’s care until final orders are made.”

2. Ms Killen (“the mother”) and the Independent Children's Lawyer did not oppose the father spending supervised time with the child, but proposed that it proceed at a slower and less frequent pace.  Specifically they proposed that the father should spend supervised time with the child for one hour per week for the first four visits, then moving to one hour twice per week for the following four weeks, before settling into a two hour block each alternate weekend.  They also proposed that in the event that Father’s Day, the father’s birthday or the child’s birthday falls on a day when the father would not otherwise be spending time with the child, that the father spend up to two hours of supervised time with the child at the C Town Contact Centre.

3. They further proposed that the costs of contact should be paid by the father.

4. During the course of the hearing they also supported orders requiring the mother to encourage and use her best endeavours to have the child attend the Contact Centre to spend time with the father, and further that the father have liberty to relist his application on 7 days’ notice to the others.

5. At the conclusion of the hearing I pronounced orders consistent with those sought by the Independent Children's Lawyer and the mother, but reserved my reasons.  These are those reasons.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (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; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (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 and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC.  Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Interim parenting proceedings

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. Recently in Salah & Salah [2016] FamCAFC 100 the Full Court at [36]-[40] said this in relation to the task of a judge conducting an interim hearing where disputed facts are unable to be resolved:

   [36] It is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial. His Honour recognised this and indeed at [14] referred to "the usual pathway as highlighted in Goode & Goode(2006) FLC 93-286". A paragraph relevant to this appeal in the Goode decision is as follows (at 80,901):

   68. ... the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

   [37] In Eaby & Speelman (2015) FLC 93-654 the Full Court (Thackray, Ryan & Forrest JJ) observed about Goode in disputed facts in interim hearings:

   18. ... that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

   [38] The Full Court in Eaby & Speelman went on to say (citing Marvel v Marvel (2010) 43 Fam LR 348) that findings (in disputed interim proceedings) should be couched with great circumspection.

   [39] In SS v AH [2010] FamCAFC 13, the majority of the Full Court (Boland and Thackray JJ) said:

   100. ... Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [40] The trial judge here faced just that challenge. His Honour, when confronted with significant allegations of violence was required to do more than merely note the contention (or "conjecture") and not to "simply ignore an assertion because its accuracy has been put in issue" (see SS v AH).

3. Finally I should advert to s 61DA(3) which provides:

   When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

4. In Salah (supra) at [34]-[35] the court said as follows:

   [34] Section 61DA and in particular, subsection (3), was discussed in Treloar & Nepean (2009) FLC 93-417 (Coleman, May & Dawe JJ) where the Full Court stressed its importance, and gave particular emphasis to what was said in Goode and Goode (2006) FLC 93-286 (at 83,750). The following paragraph from Goode (above) was emphasised in the decision of Treloar:

   78. The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult ...

   [35] Section 60CG requires a court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Had the trial judge referred to s 61DA(3), the interim orders provision, his Honour would have applied a cautious approach, absent any need for findings as to family violence, and applied s 60CG.

5. Later at [46] the Full Court continued:

   [46] In view of the allegations made by the mother and as this was an interim hearing, the trial judge should have applied s 61DA(3) and given reasons for not applying the presumption (such as he was unable to make any findings and could therefore neither apply nor rebut the presumption) but his Honour said that the presumption applied. In part, it was the application of the presumption which triggered well known obligations within the Act, and that led to his discretion being exercised in error.

THE COMPETING PROPOSALS

1. I have already set out the parties’ respective proposals.  However it is useful to highlight that there is no dispute that the father should now be again re-introduced into the child’s life; the dispute is as to how long the father should spend with the child on each visit for the first eight weeks, and how often those visits should occur both for the second block of four weeks and thereafter.

THE AGREED OR UNCONTESTED RELEVANT FACTS

1. Significant to this application are the following uncontroversial matters:

   ·In 2014 parenting orders were made which operated, seemingly without controversy, for approximately two years after they were pronounced.  Those orders permitted the child to spend time with the father;

   ·The father has not seen or had any communication whatsoever with the child since 14 February 2016;

   ·It follows therefore that the child was barely four years of age when the father was stopped from spending time or communicating with her, and it is now slightly in excess of 15 months since that time;

   ·The Department of Communities, Child Safety and Disability Services supports the father spending only supervised time with the child on the basis that the child “has experienced significant emotional harm with [the father] as the person responsible;”

   ·The father remains charged with one count of possessing child exploitation material, although he contends he is not guilty of that charge and it will likely be summarily dismissed;

   ·The mother has made numerous allegations of direct sexual assault by the father against the child, which after investigation, have not been pursued against him by the relevant authorities.

THE MATTERS IN DISPUTE

Length of first four visits

1. The father proposed that the first four visits with the child, those visits should be of two hours duration; the Independent Children's Lawyer and mother contend that that they should only be one hour.

2. The basis for the father’s assertion of two hours seem to be firstly that that length of time can be accommodated by the Contact Centre, and secondly that under the 2014 orders, visits of more than one hour had been proceeding successfully.

3. On the other hand the mother and Independent Children's Lawyer emphasised that the father has not seen nor communicated with the child for more than 15 months when she was last four years of age, and to enhance the prospects of those visits proceeding successfully, it would be better to have them over a shorter period of time so as to maintain the child’s engagement.

4. Unfortunately this is not a case where there is any report from a family consultant to assist me in determining the respective merits of either parties’ proposal, however as a matter of common sense, it seems to me as though it is sensible to proceed with shorter periods of time initially, so that any stress or anxiety associated with the child being re-introduced to the father is minimised, and further so as the child’s interest in re-engaging with the father can be maintained at an optimum level rather than subsiding.  For those reasons I am satisfied that the orders sought by the Independent Children's Lawyer in this respect more likely lay a platform for successful re-introduction of the child and father.

Length of visits for second four week period

1. The mother and Independent Children's Lawyer conceded that for the second four week period, the father should spend time with the child twice per week.  Again the parties were only at odds in relation to the length of time which each of those sessions should have.  Their justifications for their respective positions seemed to be similar to that in relation to the first four weeks.  However the Independent Children's Lawyer emphasised that the effect of her proposal was to double the time which the child was spending with the father each week, whereas the father’s proposal would quadruple it.  I am satisfied again, although unfortunately without the benefit of any expert evidence, that prudence suggests that increases in time be done in a stepped fashion, without excessive increases, so as to again enhance the prospects that the regime would succeed.  If I were to progress to two weekly visits of two hours each, I am troubled that the firm foundation which has hopefully been established by the first four weeks may be threatened by a too greater increase in the time.  I am therefore persuaded that the orders sought by the Independent Children's Lawyer were the appropriate ones and in the child’s best interests.

Regularity of visits after eight weeks

1. The father proposed that thereafter he would spend two hours twice a week with the child; the mother and Independent Children's Lawyer proposed that he spend two hours each alternate weekend with the child.  The Independent Children's Lawyer justified these orders on the basis that the mother was entitled to have an uninterrupted weekend with the child herself, and that the amount of time she was proposing would be sufficient to maintain the relationship between the child and the father, assuming that it was successfully reignited over the first eight weeks.

2. The father’s justification for the orders he sought was apparently again on the basis that the time could be offered by the relevant Contact Centre, and secondly that the mother and Independent Children's Lawyer’s proposal ignored the fact that he was also the child’s parent and had a right to spend time with her regularly.  Implicit in that submission was the father’s assertion that it was better for the child to spend more time with him.

3. The difficulty with the father’s proposal, given the orders which prevail in relation to the first eight weeks, was that it is presently not possible to discern the likely success or otherwise of the re-introduction of the child into the father’s life.  For instance, it may be that the child experiences some anxiety or distress which is still in existence at the end of the eight week initial period.  To then double the time which she is spending with the father on each occasion may be positively counterproductive.  It is impossible to tell. 

4. Again, although it is unfortunate that there was no expert evidence to assist me, it seems sensible to proceed slowly and cautiously, but to permit the father, should the re-introduction develop in a way that suggests that greater time between the father and child would be in her best interests, to be permitted to further agitate his application in due course.  Therefore I should make it plain that I do not have any view as to whether ultimately the father’s proposal of two visits per week for two hours each might be appropriate; one simply cannot make that prediction based upon the relatively scant material and the absence of the father from the child’s life for an extensive period of time since she was four.

5. I was therefore persuaded that it is in the best interests of the child that the proposal as sought by the Independent Children's Lawyer be made, however that the father have liberty to apply to re-list his application on notice to the other parties.

Special days

1. The father did not appear to oppose additional time on Father’s Day, his birthday or the child’s birthday, although he did make the point that his birthday is not for a long period of time.  I was satisfied that that additional time should be ordered as proposed by the Independent Children's Lawyer.

Costs of contact

1. Although this was not the subject of any real argument before me, the father says that the allegations raised by the mother against him were malicious and were intended to effect alienation of the child from him.  He further said that the mother has otherwise excluded him from the child’s life since she made those allegations.  Inferentially therefore he argued, firstly, that the need for supervision is the fault of the mother, and secondly, that he ought not bear the costs of the consequences of those false allegations.

2. For her part the mother says that she has the full-time care of two children, and to attend the C Town Contact Centre will require her to travel from D Town on each occasion.  As to that the father does not dispute that she has the full-time care of the two children, but points out that he also has some costs associated with travel to and from his home.

3. Neither party relied upon a financial statement.  It is therefore not possible to accurately determine their respective capacities to meet the costs; rather I am left simply with the mother’s bald assertion that the father earns more money than she does.  I am satisfied, given that she has the full time care of two children, that is indeed likely, and therefore I am satisfied that at least for the foreseeable future, the father should meet the costs of the Contact Centre.

Recovery order

1. As I have already indicated, the father sought that “if the mother refuses to obey” the orders, that the child should go into his care pursuant to a recovery order.  For her part the mother said she has no intention of not complying with the orders, and further highlighted that the Department only supports supervised time, and that the effects of the children being removed from her care and living with the father could be catastrophic.

2. I am well satisfied that, in circumstances where the father has not spent time or communicated with the child since she was four years of age, the prospect that, without further consideration of the court, the child should go into his full time care until trial, is fraught with the risk of disaster.  Such an order could not possibly be in the child’s best interests, or at least I could not be satisfied as to that on the present material.

3. During the course of the hearing I suggested to the father that if the mother were obliged by order to encourage and use her best endeavours to have the child attend Contact Centre visits, and it were to prove that she was unable to have the child do so, then he could, pursuant to his liberty to apply, seek to have the matter again agitated.  In my view that is the preferable course because it would enable the court to then be appraised as to the circumstances under which any failure of the child to present for time with the father had occurred, and to then consider, in the light of the specific facts, the best way in which to seek to have the child re-introduced to the father.

CONCLUSION

1. For these reasons I made the orders which I did on 31 May 2017.       

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 July 2017.

Associate:

Date: 10 July 2017