Stamos and Mariakis
[2008] FamCA 727
•16 July 2008
FAMILY COURT OF AUSTRALIA
| STAMOS & MARIAKIS | [2008] FamCA 727 |
| FAMILY LAW – CHILDREN - Best interests FAMILY LAW – CHILD ABUSE - Sexual abuse - Allegation - Unacceptable risk - DVD evidence of disclosure tendered - Contamination of the child’s evidence |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| B and B (1988) FLC 91-948 G v M (1995) FLC 92-641 Johnson and Page (2007) FLC 93-344 Lindsay and Baker (2007) FLC 93-347 M and M (1988) FLC 91-979 N v S (1996) FLC 92-655 Napier v Hepburn (2006) FLC 93-303 Re C and J (1996) FLC 92-697 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 WK v SR (1997) FLC 92-787 |
| APPLICANT: | Ms Stamos |
| RESPONDENT: | Mr Mariakis |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
| FILE NUMBER: | SYC | 3203 | of | 2007 |
| DATE DELIVERED: | 16 July 2008 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta & Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 10 - 14 March 2008 17 – 18 March 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnston |
| SOLICITOR FOR THE APPLICANT: | Rockliffs |
| COUNSEL FOR THE RESPONDENT: | Mr Thistleton |
| SOLICITOR FOR THE RESPONDENT: | Frazi Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O'Connor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of New South Wales |
Orders
Interim Orders
The father, Mr Mariakis, is to have sole parental responsibility for the child born … August 2002 (hereafter called “the child”). The father is to consult with the mother by email or in writing in relation to important matters relating to the child’s health, schooling, religion and accommodation. The father is to take into account the mother’s views when making a decision about any such matter.
The child is to live with the father.
Orders 1 & 2 made herein are suspended until further order of the Court.
The father has liberty to apply to discharge order 3 hereof on 48 hours notice to the court and to the mother. Such application may be made in the event of the mother failing to comply with any of the orders made hereafter. In the event of the father’s application being successful the court may, at that time, consider what time the child should spend with her mother.
For so long as Order 3 operates the following orders shall apply as interim orders:
(a)The mother Ms Stamos is to have sole parental responsibility for the child. The mother is to consult with the father by email or in writing in relation to important matters relating to the child’s health, schooling, religion and accommodation. The mother is to take into account the father’s views when making a decision about any such matter.
(b)The child is to live with her mother at all times not specified by these orders as time when she is to live with her father.
(c) The child is to live with the father at the following times.
(i)Until 1 November 2008 each Sunday from 10.00 a.m. until 4.30 p.m. The child to be collected from and returned to a contact centre as provided for hereafter.
(ii)From 10 September 2008 until 1 December 2008 and during school term time, from after school each Wednesday until 5.30 p.m. with the child to be collected from school at the start of this time and returned at a contact changeover venue to be nominated by the Independent Children's Lawyer. This time is additional to the time the child is to spend with her father on Sundays.
(iii)From 1 November 2008 and until the commencement of the 2009 1st term of the school year, each alternate Saturday from 10.00 a.m. until Sunday at 4.30 p.m. The child to be collected from and returned to a contact centre nominated by the Independent Children's Lawyer. This order is to operate during school term time and during school holiday periods until the commencement of the 1st school term in 2009.
(iv)From 1 December 2008 each Wednesday from after school until school time the next day during school term.
(v)During the school holidays commencing at the conclusion of the 4th school term in this year and until the commencement of the 2009 school year, each Wednesday from 4.30 p.m. until 10.00 a.m. the next day. This to be in addition to the time provided for in order (5)(c)(iii) hereof. The changeovers to take place at a contact changeover centre nominated by the Independent Children's Lawyer. Should there be no ability to arrange this through a contact centre the Independent Children's Lawyer is to recommend an alternate proposal which would see the child have an overnight period with her father during each week. If the proposal is consented to, in writing, by the parties then the agreed form will operate as an order of the Court. Otherwise the matter may be re-listed before me.
(vi)Commencing with the 1st term of the 2009 school year and during school term, each alternate weekend from after school Friday until school time on Monday morning. The child to be collected from school at the commencement of this time and delivered to school at the conclusion of this time. The first of these weekends is to occur on the first Friday of each school term.
(vii)Commencing with the conclusion of the first school term of the 2009 school year, the first half of the holidays at the conclusion of the 1st, 2nd and 3rd school terms.
(viii)In the holidays at the end of the 4th term of the school year each alternate week commencing with the first week of the said school holidays in 2009 and commencing in the second week of the said school holidays in 2010. This order to operate until the 4th term holiday period in 2011 when the child is to spend the first half of the 2011 4th term holidays with her mother and the second half with her father. Thereafter for the holidays at the end of 4th term the mother will have the first half in years ending in uneven numbers and the second half in years ending in even numbers and the father will have the first half in years ending in even numbers and the 2nd half in years ending in odd numbers.
(ix)Each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2009.
(x)Each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on the 26 December. First such time to commence 25 December 2008.
(xi)The mother is to have the child with her each alternate Christmas Eve from 10.00 a.m. until 10.00 a.m. on Christmas Day. First such time to commence 24 December 2008. She is to have the child with her each alternate Christmas Day from 10.00 a.m. until 10.00 a.m. on 26 December. First such time to commence 25 December 2009.
(xii)The changeovers for the child on the Christmas Eve, Christmas Day, Boxing Day and the mid point of school holidays or any other time not specifically provided for in these orders is to be a site to be nominated by the Independent Children's Lawyer. Neither the mother nor the father is to be present at the changeover. The mother is to ensure that her mother is not at or in the vicinity of the changeover. Each of the parties to advise the other no later than seven (7) days before any such event who will be participating in the changeover on behalf of that parent.
(xiii)As from the commencement of 2009 the child is to spend time with each of her parents on her birthday. If the child is in her mother’s care on her birthday morning then the father is to have the child from after school until 6.00 p.m. on that day. If the child is in her father’s care on her birthday morning then the mother is to have the child from after school until 6.00 p.m. on that day.
(xiv)The parties are to make arrangements for the child to spend time with each of them during Greek Easter commencing in the 2009 year.
(xv)Such other time as the parties may agree to in writing communicated by email, mail or personal delivery.
Upon order 3 hereof being discharged or set aside the mother has leave to apply to the court for orders to spend time with the child.
Subject to order 8 and 9 hereof, the child’s time spent with the father, as set out herein, is to be monitored by Ms. A, who is to be present at all times the child is with her father and is to be available to the child should she require any attendance at the toilet, or with bathing, or changing her underclothing, swimmers or the like. This order is to operate for twelve (12) months from 1 November 2008. On and after 1 November 2009 Ms A is to reside with the father whilst the child is in his care, however, she will not be required to be present with the child at all times when she is with her father.
Order 7 is to operate only where Ms A has signed the form of undertaking attached to these orders and provided a copy of same to the Independent Children's Lawyer who shall forthwith provide a copy of same to the mother’s solicitor and to the court.
The time the child spends with her father under these orders from the date hereof until 1 November 2008 is to be closely supervised by a person or persons acceptable to the Independent Children's Lawyer or to the court. The father may make application for the appointment of a particular supervisor/ supervisors where the Independent Children's Lawyer has approved that person/persons as a supervisor and where the mother continues to oppose the appointment of that/those person. To qualify as a supervisor a person must have signed the form of undertaking attached hereto and provided it to the Independent Children's Lawyer. The Independent Children's Lawyer is to provide a copy of any such undertakings to the court and to the mother’s solicitor where the Independent Children's Lawyer approves the appointment of that person as a supervisor. The mother may challenge the appointment of the nominated supervisor at her own risk as to costs.
In the event of the father being unable to obtain the services of a supervisor for any particular period of time he is able to spend with the child pursuant to these orders then he is to notify the mother of that fact by email or text message as soon as possible prior to the occasion and the mother thereafter is relieved of the obligation to provide the child for that particular changeover.
In the event of Ms A not being available to monitor the time the child spends with her father as provided for herein then the father has liberty to apply for an alternate order to deal with the provision of monitoring of his time with the child as is provided for in these orders.
The father is not to bath the child or assist her with toileting. He is not to assist her with dressing other than to assist with the putting on and removal of outer garments. The father is to ensure that the child does not see him nude and not see his exposed genitals at any time. He is to ensure that the child does not remain in his bedroom at any time he is unaccompanied by a third person. The father is to discourage the child entering his bedroom at any time.
The parties may vary the provisions of any of these orders by consent provided that variation is in writing and has been signed by each of them.
On any occasion the child spends with the father overnight, the child is to have a separate bedroom from the father’s bedroom.
When the child is spending time with either party for school holiday periods, the party with whom the child is then living is to ensure the child telephones the other parent at least once on each occasion of the shorter school holiday periods, and at least weekly during the long school holidays.
The parties are to do all acts and things necessary to ensure that the other receives, in a timely manner, school reports, school photos and notices of parent/teacher meetings and school concerts. Each parent is permitted to attend such meetings or concerts.
Neither party is to discuss any sexual abuse or other abuse allegations with, or in the presence or hearing of the child, or permit any other person in the presence of hearing of the child to discuss such allegations. If the child makes any such allegation to either of the parents they are to listen to what she has to say. They are not to question her about any of her allegation. They are to commit to writing, in the absence of the child, as soon as possible after such event, exactly what the child said and a description of her affect/disposition throughout the whole of the disclosure. The child is not to be required to repeat any such allegation to either parent or any other person other than as provided for herein.
Upon any allegation being made of the type referred to in Order 17 hereof the parent to whom the allegation was made, or in whose care the child was at the time any such allegation was made, is to forthwith report the matter to the Child Protection Unit at the Prince of Wales Hospital and thereafter follow the recommendation of the members of that unit. The parent is to forthwith notify the Independent Children's Lawyer of the allegation and the action taken by the parent.
Neither party is to denigrate the other parent or any member of that parent’s family or that parent’s partner in the presence or hearing of the child, or to permit any other person to denigrate the other parent, his or her partner or members of his or her family in the presence or hearing of the child.
The parent with whom the child is living, or spending time, from time to time, is to be responsible for the day to day decisions (as opposed to decisions which have long term impact and which are addressed earlier in these orders) involving the care and well being of the child.
Each party is to notify the other of any medical treatment which the child receives while in that parent’s care and ensure that the other parent is notified of any ongoing treatment which needs to be provided whilst in the other parents care.
Where these orders require a changeover of care from one parent to another to take place at a contact centre then that is to be a contact centre nominated by the Independent Children's Lawyer. Each party is to pay their share of the cost of using the contact centre for the changeovers.
The parties are to ensure that the child has a common medical practitioner to attend to her medical needs whilst in each household. The general practitioner is not to be Dr G and is to be a general practitioner whose rooms are reasonably proximate to the parties’ respective residences. Each party is to ensure that the child attends upon that practitioner when required unless it is an emergency. The mother is to choose the practitioner and notify the father and the Independent Children's Lawyer within twenty-eight (28) days from the date hereof. Each party is to authorise the doctor to share information with the other parent about any aspect of the child’s health.
Neither party is to relocate their residence to a place outside ten (10) kilometres, by road, from the M school attended by the child without the written consent of the other parent.
Neither parent is to change the child’s primary school without the consent of the other or an order of the court.
The appointment of the Independent Children's Lawyer is extended for a further initial period of eighteen (18) months from the date hereof.
In the event the matter is not re-listed for a period of eighteen (18) months from the date hereof the interim orders made herein are to become final orders of the Court.
Each parent is to pay to the Legal Aid Commission of NSW the sum of $7,647.20 within two months being his or her share of the costs incurred by the Independent Children's Lawyer.
At the conclusion of six (6) weeks from the date hereof, or within twenty-eight (28) days of the determination of any appeal filed against these orders, whichever be the later, the mother is to destroy all copies of the DVD she caused to be taken of the child making disclosures of sexual abuse. This order will not apply to the court exhibit.
The Manager of the Sydney Registry of the Family Court or his nominee, at the conclusion of twelve (12) months from the date of these orders provided any appeal lodged against the orders made has been heard and determined, is to destroy the DVD marked as exhibit F2 in the hearing determined by these orders.
The child is to be required to attend upon Dr T, psychologist, for the purpose of the therapy recommended by Dr Q in her report. She is to attend at such frequency as Dr T recommends. The parent with the residential care of the child (the mother for the time being) is to forthwith make arrangements for the child to commence attending upon Dr T and should she not be available then upon a psychologist nominated by the Independent Children's Lawyer in consultation with Dr Q. The cost is to be born by the parent with residential care pursuant to these orders (the mother for the time being). The residential parent may seek a referral to the subject psychologist from a general medical practitioner. The psychologist is to be provided with a copy of Dr Q’s report, a copy of the orders made herein and a copy of the reasons for judgement delivered today. The documents are to be provided by the Independent Children's Lawyer who is to satisfy herself that an appointment is made by the mother, or father, as required herein.
It is to be a condition of the child’s continuing residence/time with the mother that the mother attends upon a psychologist/therapist, approved by the Independent Children's Lawyer in consultation with Dr Q. The purpose of the attendance is to assist the mother with parenting of the child and in dealing with allegations the child has made and might make against her father. The mother is to continue attending upon the psychologist for the next two (2) years at times recommended by the psychologist. The cost of attending upon the psychologist is to be manageable within the mother’s financial circumstances and if possible and appropriate, be supported by a referral from her general practitioner. Should it be contended by the mother that she cannot afford the cost which this order imposes upon her she has leave to apply to discharge the order.
The Independent Children's Lawyer is to provide to the psychologist engaged by the mother pursuant to order 32 hereof, a copy of the court orders and the judgement delivered herewith.
In the event of the mother not being able to engage a psychologist/therapist for herself within one month from the date hereof (as required by these orders) then she is to have the opportunity to seek advice from a Family Consultant attached to this court for a period of twelve (12) months from the date hereof. To that extent I make an order for the orders of the Court to be supervised by a Family Consultant who would then be available to each of the parties to assist in the implementation of the orders of the Court. The Director of Court Mediation Services is requested to appoint a Family Consultant for the purpose of this order. The appointment is for a period of twelve (12) months from the date hereof and is to be reportable with a report to be prepared for the Court upon an order being made for such report to be prepared.
It is to be a condition of the orders for the child to live with the mother that the maternal grandmother sign the form of undertaking to the court which is attached to these orders and that the signed undertaking be provided to the Court and to the Independent Children's Lawyer forthwith. The maternal grandmother is also to be provided with a copy of the Court orders made this day.
The Independent Children's Lawyer is to provide to the father the name of two psychologists who Dr Q recommends for the father to attend upon to assist him with the parenting of the child. It is a condition of the time the father spends with the child that he forthwith makes an appointment to meet with one of the psychologists advised to him by the Independent Children's Lawyer and thereafter inform the Independent Children's Lawyer promptly of the date of the first appointment. The father is to attend upon the psychologist at frequencies recommended by the psychologist for not less than 12 months from the date hereof. The father is to authorise the psychologist to notify the Independent Children's Lawyer in the event of the father failing to attend upon any such appointment.
The Independent Children's Lawyer is to provide to the psychologist chosen by the father a copy of the court orders and a copy of the judgement.
All communication between the parties is to occur by email or, if that is not available, mail unless other specific orders permit otherwise.
The mother is to obtain and commence a communication book which is to pass between the parents with the child. Each parent is to write in the book information about the child’s activities since the child was last in the care of the other parent. Details of the child’s school commitments, medical requirements or any other relevant information is to be included in the book. The mother is to renew the book when required and keep all copies of the book until the child is sixteen (16) years of age when the books are to be given to her.
Neither parent is to enrol the child in any activity which is likely to commit her time whilst she is in the care of the other parent unless there is prior written consent from the other party.
Each of the parties is permitted to attend any extracurricular activity in which the child participates.
The Independent Children's Lawyer is to cause the matter to be re-listed before me in the event she ascertains that any of the orders of the court have not been complied with.
Until further order the mother is restrained from accepting any employment at the school which the child attends.
Each party and the Independent Children's Lawyer has permission to re-list the matter before Justice Le Poer Trench in relation to any of the interim orders.
Neither party is to remove the child from Australia without further order of this Court.
The Court requests that until further order the Australian Federal Police place the name of the child, born … August 2002 (a female) on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
The matter is to be marked completed for the purpose of casetrack.
IT IS NOTED that publication of this judgment under the pseudonym Stamos & Mariakis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3203 of 2007
| MS STAMOS |
Applicant
And
| MR MARIAKIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case calls for determination whether the child, a daughter born in August 2002, would be exposed to an unacceptable risk of harm if she was to live with or spend time with her father and/or continue to live with her mother and her family of origin.
The determination of the question of unacceptable risk carries with it a consideration of allegations raised against the Father by the child principally through her mother and her mother’s family. These allegations, taken literally, suggest extensive sexual abuse by the father on the child. They also suggest other types of abuse.
Being able to determine whether the allegations are founded in truth where they are made by a very young child is difficult at the best of times. When there has been considerable contamination of the child’s evidence before an objective and skilled team of experts can interview the child makes it even more difficult. Not being able to adequately judge the emotional environment at work in the mother’s home and the father’s home at the time the first allegation was made by the child adds to the problem significantly. The Court is compelled to do the best it can within a framework which requires the best interests of the child as the paramount concern and further realises that an erroneous decision could expose the child to further abuse.
It is against that background that the case proceeded before me.
The Nature Of The Proceedings
These are proceedings to which Division 12A of Part VII of the Family Law Act (Cth) 1975 applies. The proceedings came into the court as a “Magellan” case. The case was managed by the Magellan Judge to a point where it was listed for hearing before another judge. That judge was not me.
The matter was listed for hearing for five days to commence Monday 10 March 2008. It was listed in reserve and consequently came to my list as I am the Case Management Judge for the Sydney Registry. I had another two day matter listed for hearing the same day and other commitments in my diary for the balance of the five days. There was no judge available in the Sydney Registry to hear the case. The case needed to be determined urgently. I therefore commenced to hear this case around the hearing I already had listed. I took some evidence from the court expert in this case on the first day of the hearing and again some evidence from the parties on the second day. I have since proceeded to hear the case as I could and I was largely able to provide full days of hearing to the case.
When the matter came on for hearing I had not been able to read all of the written evidence nor the directions which had been made in the case prior to the hearing commencing. I did not at the commencement of the hearing before me consider with the parties whether this was a case where the provisions of the Evidence Act 1995 (Cth) excluded by the operation of Division 12A should be applied to the issue of the alleged abuse. Prior to the evidence of the father commencing I raised this matter with the parties and sought submissions about whether I should apply the full weight of the Evidence Act to the evidence of the parties to determine what evidence I could have regard to in deciding the issue. This was particularly directed to the affidavit evidence. The affidavits of the mother and her witnesses in many respects were drafted in a way which suggested little knowledge of the rules of evidence or the provisions of the Evidence Act, so far as they related to admissibility of evidence.
It seems to me that proceedings conducted under Division 12A of the Act (absent the trial judge making an order under section 69ZT(3) of the Act) require the drafters of affidavits to have a greater skill than was ever the position prior to the introduction of Division 12A. Prior to July 2006, proceedings conducted in the Sydney Registry of the court were usually conducted in a manner which saw each of the parties identifying material in the affidavits of the other to which objection was raised. Time would then be spent ruling on those objections. The result of the rulings was often that parties were permitted to adduce oral evidence in relation to relevant material which was excluded on the basis of “form”. Thus important evidence was put in proper form and weight could then be given to that evidence by the trial judge. That process is usually not provided in a case conducted under Division 12A of the Act. Thus, absent some initiative or intervention by the trial judge, at the end of the case the trial judge is left to sift through the evidence and apply weight to the evidence having regard to its relevance and reliability. Given that in many circumstances the trial judge is confronted in the affidavit evidence with submissions and conclusion rather than fact and given the seriousness of some of the matters which need to be determined by the trial judge, in many circumstances no weight of any substance can be afforded much of the affidavit evidence.
On 9 November 2007 Justice Watts made the following order:
11. Each party on or before 4pm Thursday 31 January 2008 file and serve the affidavits that they rely upon, which affidavits are to be confined to the issues that are identified in Appendix “A” to these orders from the witnesses identified in Appendix “A”.
Appendix “A” was as follows:
APPENDIX “A”
1.What disclosures has [the child] made about being sexually abused by her father?
2.What are the circumstances in which each disclosure has been made?
3.What other observations does the mother rely upon for her assertion that [the child] has been sexually abused by her father?
4.What evidence is there that the mother and her family have placed pressure on [the child] to make disclosure?
5.Whether or not there is an unacceptable risk to [the child] of being the subject of sexual abuse in the care of the father.
6.[The child’s] views and the weight to be put on them.
7.[The child’s] needs, perceptions and attachments.
8.Any family violence involving [the child] or a member of [the child’s] family.
9.If supervision is required for some or all of [the child’s] time with the father, who would be an appropriate supervisor.
10.The adequacy of the care [the child] is currently receiving from the mother and her capacity to promote the needs of [the child].
11.The father’s capacity to undertake full time parenting responsibility for [the child] and his capacity to provide for the needs of [the child].
12.The history of [the child’s] time with her father between 29 June 2007 and 9 November 2007.
WITNESSES
In the father’s case
1.The father
2.Ms [A]
3.The paternal grandmother
4.The paternal grandfather
5.[Ms L]
In the mother’s case
1.The mother
2.Maternal grandmother
3.Maternal grandfather
4.Maternal uncle ([C])
5.Dr [G]
On 9 November 2007 Justice Watts noted as follows:-
16.The parties agree on the chronology of non contentious relevant facts which is appendix “B” to these orders.
Appendix “B” is as follows:-
CHRONOLOGY OF NON CONTENTIOUS RELEVANT FACTS
[…] Sept 1973 Mother born […] Sept 1975 father born […] June 2001 Parties married […] Aug 2002 [Child] born 20 Jan 2003 Parties separate 30 April 2003 Mother obtains AVO against father for two years – contact ceases for three to six weeks 27 May 2004 Consent orders made for contact between father and [child] – these provide for graduated contact July 2004 (Mother and [child]) Move to the maternal grandparent’s home where they have resided ever since Jan 2006 [The child] meets the father’s partner [Ms A] May 2006 Father relocates to Canberra for work related reasons and mid week contact ceases 16 July 2006 After certain alleged behaviour by [the child], mother contacts police and makes a formal statement 18 July 2006 Mother takes [the child] to GP for examination. Doctor makes a notification to DoCS Sept 2006 Father returns from Canberra and resumes mid week contact 20 Jan 2007 The police again contacted and further AVO sought by the mother 14 Feb 2007 The child undergoes an audio visual interview with JIRT team but as [the child] does not make any disclosure to the officers the matter is not taken any further 20 Feb 2007 A DVD recording is made by the maternal uncle wherein [the child] refers to certain incidents allegedly occurring between herself and her father 22 Feb 2007 The second AVO proceedings are withdrawn 3 May 2007 Mother commences these proceedings 29 June 2007 Matter first listed in the Magellan program before His Honour Justice Watts during which proceedings certain orders are made in relation to parenting and in particular time [the child] is to spend with her father 9 July 2007 Parties attend the rooms of Associate Professor [Q] for the preparation of a Chapter 15 Expert Report. Subsequently [Dr Q] files a Notice of Child at Risk based on her observations during the interview process. 27 Sept 2007 [Dr Q] releases her report.
I here incorporate into these reasons the document titled “Appendix B” to the orders of 9 November 2007.
In relation to the application of the provisions of the Evidence Act to the determination of this matter, each of the mother and father, at my request, made submissions as to how I should approach the receipt of evidence in this case. The submissions dealt with sections 69ZT and 69ZV of the Act.
The father submitted that the rules of evidence should be applied to this case. By that I take the submission to be that to the extent that section 69ZT operates to exclude any parts of the Evidence Act that section should not be applied to the hearing of this case.
This type of approach is not a novel approach where there are serious allegations made in a children’s case.
It was submitted by the father that if the Evidence Act was applied to the hearing of the case the evidence of the words spoken by the child could be admitted to evidence as provided for in section 69ZV of the Act.
It was further submitted by the father that all which is not admissible as evidence (such as comment, submission, unsupported conclusion) should be disregarded.
The counsel for the mother agreed with the submissions of the father in relation to section 69ZT. He agreed that the provisions of the Evidence Act should be applied to the evidence in the case. The said no weight should be given to matters which were hearsay unless fitting within the exception provided for in section 69ZV. He further submitted that no weight should be given to matters which were submission or conclusion.
In another area of submission by the mother I was told by her counsel that the mother’s affidavit did not comply with the orders which had been made for the filing of affidavits because the mother insisted that material which her lawyers sought to exclude, be included. I will deal with this matter later in these reasons.
As stated above, consent orders were made on 27th May 2004. They provided for a graduating process of time for the child to spend with her father. They also contained injunctions. The orders were as follows:-
THE COURT ORDERS BY CONSENT THAT:-
Parenting orders
1.That the husband have contact with the child of the marriage […] born […] August 2002 as follows:-
1.1 From the date hereof until the end of November 2004:-
1.1.1 each Wednesday from 4.30 pm to 7.00 pm;
1.1.2 each alternate Sunday from 10 am to 5 pm; and
1.1.3at such other times as arranged and agreed between the parties.
1.2 Subject to Order 2 herein from the first weekend in December 2004 and for a period of six (6) months thereafter as follows:-
1.2.1each alternate weekend from 4 pm Saturday to 5 pm Sunday;
1.2.2on each alternate Monday (being the Monday immediately following a weekend when contact is not to take place pursuant to Orders 1.2.1) between the hours of 4.30 pm and 7.30 pm; and
1.2.3at such other times as arranged and agreed between the parties.
1.3At the expiration of the period referred to in Order 1.2 and subject to Order 2 hereof as follows:-
1.3.1each alternate weekend from 10 am Saturday to 5 pm Sunday;
1.3.2on each alternate Monday (being the Monday immediately following a weekend when contact is not to take place pursuant to Orders 1.2.1) between the hours of 4.30 pm and 7.30 pm;
1.3.3at such other times as arranged and agreed between the parties;
1.3.4 from 10 am to 4 pm on Father’s Day each year;
1.3.5from 4.30 pm to 7.00 pm on Christmas Day each year; and
1.3.6 reasonable telephone contact.
2.That contact pursuant to Order 1.2.1 shall not commence until such time as the husband obtains accommodation independent of the paternal grandfather.
3.That during all periods of contact the husband be and is hereby restrained from bringing the child into contact with the paternal grandfather during periods when the paternal grandfather is consuming alcohol or is under the influence of alcohol.
4.That during all periods of contact the husband shall ensure that the child is not left in the unsupervised care of the paternal grandfather.
5.That during all periods of contact the husband shall ensure that he is personally available to supervise and care for the child.
…
8.That for the purposes of compliance with these Orders, the Husband shall be responsible for the collection and return of the child from and to the Wife’s residence during each period of contact.
Notwithstanding the orders provided for the father to have overnight time with the child he has never done so. His evidence was that he pressed for overnight time with the child, however the mother and her mother never permitted it.
In May 2006 the father relocated to Canberra and was there for work until September 2006. During that period the father saw the child each alternate Sunday in Sydney.
In September, after the father’s return from Canberra, he resumed seeing the child on the basis set out in the consent orders of 2004.
The father’s time with the child under the 2004 orders ceased on 10 January 2007. Since that time the father has had supervised time with the child at a supervision centre. The father commenced his supervised time in December 2007.
Having considered those orders I say the following about the affidavits filed in this case pursuant to the directions made on the 9th November 2007:
The Mother’s affidavit sworn 7 February 2008
Contrary to the orders of 9 November 2007 the mother provided 23 paragraphs of general introduction. It was not until paragraph 24 that the affidavit commences to confine itself to the topics directed by the judge.
The heading “Any family violence involving [the child] or a member of [the child’s] family” became “Father’s abusive and violent behaviour”. What gave the wife and her solicitors the opinion the headings could be adapted in this way is not evident.
The heading “If supervision is required for some or all of [the child’s] time with the father, who would be an appropriate supervisor,” was changed subtly but significantly.
At paragraph 176 the mother took it upon herself to provide a further 70 paragraphs which purported to answer matters raised in the report prepared by the Court Expert. This was done without the leave of the court.
The affidavit of the maternal grandmother sworn 7 February 2008.
Contrary to the orders made on 9 November 2007 this deponent has provided 6 paragraphs under a heading “My Relationship with my Granddaughter [the child].”
Like the mother in her affidavit there is repetition of the heading “Father’s abusive behaviour”. Other headings have been slightly changed to highlight the mother’s case in relation to those headings.
The affidavit of the maternal grandfather sworn 8 February 2008.
This affidavit commences with a heading “My relationship with my Granddaughter [the child]”. This was not an approved topic. It also contains a heading “[The Child’s] Wishes”. Again this is not an approved topic. The topic which was approved along these lines was “[The child’s] views and the weight to be put on them”. This is quite a different topic to the one addressed in this affidavit. Thereafter the affidavit did not recite in full any of the topics approved for the affidavits. The topics listed in the affidavit have been an adaptation of the original topics and as such do not serve the purpose designed by the orders made on 9 November 2007.
The balance of the affidavits filed on behalf of the Mother
The remaining affidavits of Dr G and Ms S do not have any structure which acknowledges the orders made on 9 November 2007. There was no approval given for the affidavit of Ms S.
The affidavit of the Father sworn 7 February 2008
He did not address any of the topics ordered to be addressed by the orders of 9 November 2007.
The balance of the affidavits filed on behalf of the Father
These included the affidavit of Ms A sworn 7 February 2008, the affidavit of the paternal grandmother sworn 7 February 2008 and the affidavit of the paternal grandfather sworn 7 February 2008. None of these affidavits address any of the topics approved by the orders of 9 November 2007.
The Parties’ Proposals
The applicant mother commenced the hearing relying on her “Application for Final Orders” filed 3 May 2007 (wrongly referred to be the applicant as 4 May 2007). The mother’s counsel in submission requested that I allow the mother to seek an order for sole parental responsibility. This was an order not sought in her original application.
The respondent father commenced the hearing before me relying on his “Amended Response to Application for Final Orders” filed 8 February 2008. Each party filed in court a “Minute of Orders Sought” during submissions.
The orders sought by the mother in her application of 3 May 2007 in broad terms were that earlier orders made on 27 May 2004 be discharged and that the child have very limited time with her father.
The orders sought by the father in his response filed 8 February 2008 were, broadly speaking, for the child to live with him and have alternate weekend time with the mother. She was also to spend time with the mother on Thursday of the other week. There were other provisions.
The Independent Children's Lawyer provided me with a minute of the orders being recommended by her during the course of submissions.
The Issues
The contentious facts for determination are as specified in the orders of 9 November 2007. They are the matters which the parties affidavits were ordered to address. The matters identified were as follows:-
1.What disclosures has [the child] made about being sexually abused by her father?
2.What are the circumstances in which each disclosure has been made?
3.What other observations does the mother rely upon for her assertion that [the child] has been sexually abused by her father?
4.What evidence is there that the mother and her family have placed pressure on [the child] to make disclosure?
5.Whether or not there is an unacceptable risk to [the child] of being the subject of sexual abuse in the care of the father.
6.[The child’s] views and the weight to be put on them.
7.[The child’s] needs, perceptions and attachments.
8.Any family violence involving [the child] or a member of [the child’s] family.
9.If supervision is required for some or all of [the child’s] time with the father, who would be an appropriate supervisor.
10.The adequacy of the care [the child] is currently receiving from the mother and her capacity to promote the needs of [the child].
11.The father’s capacity to undertake full time parenting responsibility for [the child] and his capacity to provide for the needs of [the child].
12.The history of [the child’s] time with her father between 29 June 2007 and 9 November 2007.
Credit
The Mother
The mother gave her evidence in a way which could best be described as obstructive and unhelpful. Early in her cross-examination it became apparent that she was not listening to the questions she was being asked or, alternatively, she was deliberately avoiding the question being asked. I cautioned her against continuing to answer questions in that manner. I pointed out that at the conclusion of the hearing I will be asked to make findings of fact where the parties are in conflict. I said that one of the submissions which she could expect to hear from counsel for the father is that the mother’s evidence could not be accepted because of the way she answered or did not answer the questions asked of her. Notwithstanding that caution to the mother she continued to deal with the questions asked of her in a similar manner. There were many occasions where I marked in my bench book that the mother was not answering the question asked of her. I noted in excess of 70 occasions where the mother evaded answering the question asked of her.
In the evidence of the mother I was left with the overriding opinion that she was not accurate in remembering events and conversations whilst at the same time professing the information in her affidavit to be all inclusive.
I do not accept the evidence of the mother in relation to some of the matters she says she overheard in the office of Dr Q. I will later in these reasons refer to the specific evidence was said to be overheard by the mother.
I did not form the opinion that the mother deliberately told untruths except in relation to the incident at the Caramella night club. I do accept the description by Dr Q of the mother that she is an anxious person and consequently, likely to interpret things she does hear or see in a way which a person who was not anxious or emotionally involved might see or hear in the same incident.
The mother has made many allegations against the father stating he threatened her. She has also alleged that he assaulted her. She relies in part on the imposition of an AVO against the father to establish that he has assaulted and threatened her life. The father has denied virtually all of the allegations made against him. I do not accept all of his denials. I find that he has threatened her from time to time. I find that some of those threats were made in relation to her family. On the balance of probabilities I find that the father has made threats to the mother which she would have understood to be threats to physically harm or kill her. I do not accept that the father ever intended to carry out any of those threats. I do not accept that the mother ever thought the father would carry out any such threat. I also find that the mother has made serious threats against the father (see the evidence of the father and Ms A in relation to the mother at the Caramella night club).
The mother clearly has some significant intellectual capacity. This can be seen by her ability to gain tertiary qualification as a school teacher. However, in her oral evidence in my court, she showed signs of selective obtuseness. It was almost as if she was incapable of accepting certain information which did not fit in with her view of things, whatever that view may be.
It alarms me that I have made a finding that the mother has been deliberately untruthful about the events described by the father and Ms A in their evidence relating to the Caramella night club. I am left to seriously consider the consequences of that finding. I accept that on that occasion the mother was deliberately meaning to convey to the father and/or Ms A a threat to kill or seriously maim each of them.
I conclude I have real reservations about accepting any of the evidence of the mother unless it has been verified by others’ where the evidence of the corroborating witnesses is soundly given. In this respect I have concerns about the evidence of the maternal grandmother as a corroborating and/or primary witness.
The maternal grandmother
The maternal grandmother suffered in the same way as the mother in the giving of her evidence. Again she avoided answering many of the questions asked. She appears to have the same anxious and suspicious personality as the mother. She regards herself as somehow superior to the father and his family. She was unrelenting in her questioning of the child in relation to the time she spent with her father and concerns about sexual and other abuse of the child by the father. She took a role in relation to the child which was quite usurping of the mother’s role as a parent to the child.
As she gave her evidence I was left with the uncomfortable feeling that she was not telling the court about all of the circumstances which surrounded the disclosures of the child now labelled as sexual abuse allegations.
Like the mother, I felt that I could not safely rely upon her evidence unless it was corroborated by another witness whose evidence I could accept.
The maternal uncle
This gentleman is the brother of the mother. He clearly accepts that the child has been abused by her father as she has told her mother and other members of the family. He appeared to me to have a great deal of animosity towards the father. This appeared to be born out of the knowledge he held of the father prior to the separation and since. He answered the questions asked of him. He did not appear to me to seek to evade questions. He appeared to give his evidence honestly and in a way which was helpful to the court.
The paternal grandfather
This witness is the father of the mother in these proceedings. He appeared to give his evidence honestly. He was obviously very distressed by the circumstances of his granddaughter making allegations of sexual abuse against her father. He had worked with the father during the time the father was married to the mother. He knew him as a work employee and as a son in law.
Dr G
Dr G gave his evidence by both affidavit and oral evidence. In his oral evidence he seemed very confused. I have difficulty in accepting the oral evidence of Dr G as accurate. I accept that the report attached to his affidavit is accurate. Dr G, although being in practice as a general practitioner for many years, professed no expertise or experience in dealing with allegations of sexual abuse made by young children. He was convinced that what he was being told by the child was true and accurately described what had happened to her at the hands of her father. Or did it? I was somewhat surprised to hear that Dr G’s solution to the matters reported to him by the child was to instruct her to tell her father that he was not to touch her in the genital region. Would any sensible, reasonable person see that as an appropriate response to the words of the three year old child? It could not be so. I can only conclude that Dr G must have had doubts about the accuracy of the allegations to have made that statement to the child. I accept that Dr G did refer the child to a paediatric specialist and further reported the matter to DOCS as he was a compulsory reporter.
The Father
The father gave his evidence in a straightforward and apparently honest manner. He answered the questions asked of him in an unhesitating manner. I accept that he has been predominantly truthful in the giving of his evidence. Having said that, there is one area of his evidence which I need to comment upon. That area relates to the allegations by the mother and the maternal grandmother that the father made serious threats to or against them. I accept that the father may have been strictly honest when he denied the precise wording of the allegations as to threats of violence allegedly made against the mother and to the maternal grandmother. I do not accept that the father did not make any threats to the mother that he would harm her or members of her family. This is not a case where there are but a few such allegations. There are many such allegations. I do not accept that the mother has fabricated all of her evidence about the threats made against her or to her by the father.
It was submitted by the mother’s counsel that there was a serious difference between the evidence of the father and the evidence of his mother. In particular the father gave evidence of discussion between he and his mother about the allegations said to have been made by the child. The father said that his mother had threatened to disown him if she became aware that he had harmed the child. In her oral evidence the father’s mother denied such statements and further said there had not been discussion with the father about the allegations.
The paternal grandmother gave evidence with the aid of an interpreter. She was apparently nervous and at times defensive in her answers. By the content of her oral evidence she clearly understood the seriousness of the allegations being made by the mother and the maternal grandmother against her son. She described the allegations as lies and the Stamos family as liars.
Given the importance of this issue I did not accept the evidence of the paternal grandmother to the extent it was at variance with the evidence of the father.
The impact upon the court’s decision of finding that the father has been less than honest in some of his evidence needs to be considered. If I doubt the father in relation to some part of his evidence, should I then doubt him in relation to other important parts of his evidence? I consider it would be open to me to extrapolate from one finding in relation to the father’s credit that other parts of his evidence should not be accepted. In this case however, the stakes are very high for the child of reaching the wrong conclusion in relation to the father’s honesty and as to his denials that he has or ever would sexually abuse the cjo;d. I therefore need to consider carefully all of the evidence which might assist me in reaching a decision about whether there would be an unacceptable risk of harm to the child should she spend time in his care.
Ms A
This lady was an impressive person and witness. I thought she was honest and attempting to assist the court. She clearly supports the father and trusts him implicitly. She would not contemplate a future with him if she suspected that he had been abusing his child.
The paternal grandmother
This witness is the mother of the father in these proceedings. She gave her evidence in an apparently honest manner. She did, however, give her evidence with the aid of an interpreter. She appeared quite nervous and at times she was defensive to the point where I thought she was denying propositions or facts put to her without really listening to them. She told me the Stamos family were all liars. She agreed she regarded herself as having had a good relationship with the maternal grandmother at one time. As stated earlier I did not accept some of her evidence.
The paternal grandfather
This witness is the father’s father. He answered the questions asked of him. He gave his evidence in an apparently honest manner.
Relevant Law
Legal Principles
The principles governing this case are set out in the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. I here set out the provisions of section 60B:
FAMILY LAW ACT 1975 - SECT 60B
Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that: “…When making a parenting order in relation to a child, 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.”
Subsection (4) provides as follows: “…The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Consideration of Section 60CC
In determining what is in the best interests of the child I am required to consider the provisions of subsections (2) and (3) of section 60CC.
I am required to consider the following “Primary Considerations”.
a)the benefit to the child of having a meaningful relationship with both of the child’s parents
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I understand and accept the application of the primary considerations in the determination I am required to make in this case.
I am also required to consider the other sub-sections of section 60CC.
Unacceptable risk
The best interests of the child remain the paramount consideration
S60CA of the Family Law Act requires this Court to regard the best interests of the child as the paramount consideration when parenting orders are sought. That this remains the paramount consideration- even in cases where there is an allegation of sexual abuse of the child by a parent- is a position which has been reiterated by the High Court:
“…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the other sought is in the best interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.” (M and M (1988) FLC 91-979)
The general test of “unacceptable risk”
In determining what orders are in the best interests of the child, it has been well settled that the Court must determine whether there exists an “unacceptable risk” of sexual abuse to the child:
“…the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” (M and M, supra)
An ‘unacceptable risk’ is, broadly, a finding that the benefit of the child spending time with both parents is outweighed by the potential risk of harm to the child if that time is continued. (For a similar formulation, see the decision of Carmody J in Lindsay and Baker (2007) FLC 93-347, cited with approval on appeal by Bryant CJ, supra). The Court seeks, ultimately, “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”: M and M (supra). As in any balancing exercise, the scales may be tipped more or less favourably by variations in the conditions. Even if a risk is found to exist, its magnitude may be reduced, by example, by an order which allows for supervised contact: M and M (supra).
The assessment of ‘risk’ encompasses more than a strict legal exercise. It requires the Court to make a reasoned assessment on the facts as to the potential harm to the child. The importance of the consideration of the facts was stated by the learned Fogarty J (N v S (1996) FLC 92-655, cited with approval by the Full Court in Napier v Hepburn (2006) FLC 93-303):
"[T]he essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard."
His Honour then proceeded to usefully set out some questions which may assist the Court in the assessment of risk (cited with approval by Bryant CJ in Lindsay and Baker (supra), Napier v Hepburn (supra)):
“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”
In answering these questions, the Court is reminded to be transparent in affording adequate reasons for their finding. But more than that, it is a reminder that the test of ‘unacceptable risk’ goes beyond a positive finding of the existence of a risk of harm to the child, to also require a qualitative and quantitative assessment of that harm: N v S (supra).
A positive finding on the allegation of sexual abuse is unnecessary and sometimes undesirable
In light of these considerations, it is apparent that resolution of the question of whether the parent has sexually abused the child is secondary to the determination of the arrangements that are in the best interests of the child. The duty of this Court, therefore, is of an entirely different kind to that charged to courts of criminal jurisdiction in which a similar allegation may arise.
“The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.” (M and M, supra)
Moreover, “there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.” (M and M, supra).
Making a positive finding of sexual abuse
If a positive finding were to be made, then the Court must be satisfied according to the civil standard of proof:
“Sexual abuse allegations are serious allegations and defining of sexual abuse can only be made upon a proper consideration of the Evidence Act 1995 (Cth) and the rules of evidence if appropriate. In addition when a trial Judge makes a finding of sexual abuse in a case involving custody or access, he or she must apply the civil standard but have regard to the seriousness of the allegations being made and the gravity of the consequences flowing from a particular finding.” (Full Court, G v M (1995) FLC 92-641. See also WK v SR (1997) FLC 92-787; W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235, Johnson and Page (2007) FLC 93-344).
A positive finding will “in all but the most extraordinary cases” (M and M, supra) have a decisive impact on the broader question of the parenting arrangement that is in the best interests of the child. However, it does not follow that if the negative finding were to be made, that also determines the issue of the best interests of the child.
Where the Court has ordered supervised contact partly to protect the father from further allegations
In the matter of B and B (1988) FLC 91-948, the learned Gee J ordered that the father spend supervised time with the children. [Note that it is unclear whether his Honour had the benefit of the High Court decision in M and M]. Although his Honour was not satisfied that the mother’s allegation was made out, an interim order for supervised time was nevertheless made in order to allay the fears of the mother and to protect the father from further allegations of sexual abuse:
“In the present case, it seems to me that it is necessary for a period to do two things. One of those things is to safeguard the father for a period from further allegations of sexual abuse which, on the evidence, could be likely for a period, if access were unsupervised, and secondly, to give some reassurance to the wife, in her undecided frame of mind, so that she will less believe than she presently does, although it is not a belief to any great extent, that the father might be guilty of sexual abuse, whatever I might find.
To my mind, those are very relevant considerations as to supervised access and they appear from the judgment of Ewbank J. in Re G (Minors) Child Abuse (Evidence) (1987) Fam. L.R. (Eng.) 310, with which observations I agree.”
In the more recent Full Court decision of Re C and J (1996) FLC 92-697, Fogerty and May JJ considered that supervised time with the child was appropriate for similar reasons:
“Our view of this case is that it is one where supervised access, probably through the paternal grandparents, would be desirable in the interests of these children for a further period of time during which C. could have counselling and therapy and that the matter be reviewed in the light of her progress. This would provide some comfort to the mother, provide protection to the father against further allegations, and lessen the conflict at handover times whilst the child has counselling. After a period of time that could be reviewed and, if it were in the interests of the children, changed to unsupervised access.”
Background Facts
The mother lives at M in southern Sydney with her parents and the child. The mother is a school teacher by occupation. She is 34 years of age.
The father lives at V in southern Sydney with his parents and his partner Ms A. The father runs his own business. He is 32 years of age.
The background facts include the matters determined in the orders of 9 November 2007 as set out earlier in these reasons.
The Evidence and the Identified Issues
I propose to address the headings specified in the orders of 9 November 2007 and make reference to the relevant evidence. I may deal with more than one topic at the same time. I may not deal with them in the same order as recited in the orders of the 9 November 2007.
What disclosures has the child made about being sexually abused by her father? What are the circumstances in which each disclosure has been made?
The heading in the mother’s affidavit commences at paragraph 24. It is not until paragraph 33 that the mother first addresses a “disclosure”.
The first disclosure appears in paragraph 33 of the mother’s affidavit sworn 7 February 2008.
In that paragraph the mother reports that on or about 10 July 2006, having bathed the child and whilst in the process of dressing her, she noticed that the child started pinching her nipples. She did that approximately three or four times. The mother said to the child:
“[Mother]: What are you doing?”
[Child]:You are supposed to do this.
[Mother]: Who taught you that?
[Child]:Daddy did.”
The mother says that she did not react in any negative manner in the presence of the child to show her surprise. She said she tried to change the subject. She said she never mentioned this incident to the child again.
In paragraph 34 of her affidavit, the mother refers to an incident which occurred on 16 July 2006. This occurred on a Sunday and presumably at about 5.00 p.m. The mother described observing the child “rubbing her genital area with both her hands and then immediately placing her hands on my face repeatedly”. The mother noticed that the child’s hands smelled of her genital area. She said that the child told her “Mummy it smells”. The mother describes the child persisting with this behaviour and applying considerable force. The mother says:
“When I finally managed to stop her, I then rushed straight into my mother’s bedroom to tell her what I had witnessed. A few seconds later [the child] followed me into my mother’s bedroom. She then jumped on the bed naked from the waist down and had her legs open. We then watched her as she began touching and rubbing her genital area repeatedly which appeared very red. I then asked [the child] words to the effect: “Why are you doing this?” [The child] replied: “Daddy is doing this to me and you can put the finger in” whilst pointing with her index finger towards her vagina.”
The mother went on to say that the child then “rolled onto her side and pointed with her index finger towards her anus and then said words to the effect: “Here too””.
The mother then said:
“I was in a state of shock. I then asked [the child] “Who, who?” and then [the child] said “Daddy Daddy””. I then said to her words to the effect: “Are you sure it wasn’t someone at preschool?
[Child]: ‘No, no, Daddy, Daddy.”
Me: ‘Oh my God, I think we need to go to the Police.”
Upon [the child] hearing that I wanted to go to the Police, she became very upset and said: “Oh no”. I then said to her: “I won’t go”. I made that comment to calm her down.”
The mother says she then “left the room in a distressed state but her mother stayed with [the child] to ask her further questions about what she had just said and shown us”.
The mother says she heard her mother then asking the child questions. She reported this conversation as follows:
“[Grandmother]: Is Daddy touching you?
[Child]:Yes, Daddy has been touching me.
[Grandmother]: Where were you at the park, in the lounge or on the bed?
[Child]:On the bed
[Grandmother]: Do you like Daddy touching you?
[Child]: No his hands are cold I tell him stop.”
The mother says that on that same evening she and her mother went to a police station to “advise them of what [the child] told us and demonstrated to us”. The mother annexed to her affidavit as annexure “C” a copy of a report prepared by the police following that interview. The report states that “Date/Time Reported: 16/07/2006 22:25”. The mother says that when she obtained a copy of the report in January 2007, she realised there were a number of inaccuracies in the statement. She thereafter asked the police to correct the information which they did and a further report was prepared which is annexed to the mother’s affidavit and marked as annexure “D”.
There are some important discrepancies between the description set out in paragraph 34 of the mother’s affidavit and the material contained in annexure “C” to her affidavit. Firstly, the mother’s affidavit suggests that the incident described in paragraph 34 occurred very shortly after the child had been returned from time with her father at about 5.00 p.m. on the subject day. Annexure “C” suggests that the incident occurred at about 9.00 p.m. at night.
In paragraph 34 the mother says she saw her mother take the child to the toilet. In annexure “C” the mother allegedly told the police that the child had gone to the toilet on her own. Annexure “C” further states that the child had come out of the toilet after she had removed her skirt and her underwear. In the mother’s affidavit there is no mention of what clothing, if any, the child was wearing. In the police report there is no mention of the material contained in the mother’s affidavit that the child had been rubbing her genital area and then attempting to have her mother smell her hand which had been in contact with the genital area. Annexure “C” suggests that the mother and the child walked into her mother’s bedroom for the purposes of dressing the child.
In the mother’s affidavit she refers to the child “pointing with her index finger towards her vagina”. In annexure “C” to her affidavit she is alleged to have told the police that the child was “putting her finger in and out of her vagina”. There are other substantial differences such as what the mother said to the child. In annexure “C” the mother is reported to have said to the child, “Why are you doing this, who has taught you?” There is no mention in annexure “C” of the mother asking the child whether “Are you sure it wasn’t someone at preschool?”
In addition to those discrepancies, the police report refers to the mother having observed the child “pinching her nipples” and when asked “Who taught you that?” The child allegedly said “Daddy did”. The mother said this incident had occurred approximately “four days ago”. In the mother’s affidavit at paragraph 33 she alleges that that same incident occurred on 10 July 2006. The report in annexure “C” was made to the police on 16 July 2006.
The annexure marked “D” to the mother’s affidavit contains reference to events on 16 January 2007. It reports that the mother attended at M Police Station in relation to concerns she had with the police report she had received relating to an incident she had reported on 17 July 2006 (this date is incorrect and the report the mother was referring to was made late on the evening of the 16 July 2006). The mother had requested a copy of the police report in respect of that date. She said she told police that there were discrepancies with the report. The discrepancies can be categorised as follows:
c)She did not agree with the report when it stated that she did not want to seek medical attention for the child;
d)There was a suggestion in the report that she attended on 17 July 2006 merely because of the redness and rash to the victim’s genital area;
e)She was concerned about the comments from JIRT stating that the actions were that of a three year old involved in body exploration. The mother told the police “no other three year old does these actions or makes such claims towards their father or any other person.”
In paragraph 37 of the mother’s affidavit, she says that on 22 February 2007 whilst attending Waverly Local Court for apprehended violence proceedings she noticed inaccuracies in the police report in respect of her account of 16 July 2006. She said she raised these inaccuracies with Constable Y. She claimed that she was never given another opportunity to make a subsequent statement. She confirmed that the events set out in her affidavit accurately record the events of 16 July 2006.
In paragraph 39 of her affidavit, the mother confirms that on 17 July 2006, in the early morning hours, the mother sat on the side of the child’s bed as she began to awake. She then had a conversation with the child about the events of 16 July 2006. The conversation was as follows:
““Honey that game yesterday where you touched you bobbili (vagina) and put your hands on my face, who taught you that?
[The child] said: “Daddy”
Me: “Who?”
Then [the child] clearly said: “Daddy”.
Me: “What is his name?”
[The child] said in a loud voice: “[Father’s first name]””
On 18 July the mother and her mother took the child to see Dr G. During the consultation, the mother said she heard Dr G ask the child a number of questions in her presence. These questions included:
“Dr [G]: “Why are you sore?”
[Child]: “It hurts when you touch it.”
Dr [G]: “Who was touching you there?”
[Child]: “Daddy is touching me there, and also here” whilst pointing to her anal area.””
Dr G prepared a report dated 6 February 2007 which is annexed to the mother’s affidavit as annexure “E”. The report is identical to the report annexed to an affidavit by Dr G also sworn and filed in the proceedings. The report reveals that a medical examination disclosed that the child’s hymen was intact. The doctor noticed that there was redness of the vulval area.
In paragraph 44 of her affidavit the mother says that she and her mother took the child to see Dr G again a few weeks later (after 18 July 2006). She said that on that occasion Dr G had said to the child in her presence “Tell Daddy that the doctor said that you are not to touch me there any more”. The notes produced by Dr G (which became exhibit ICL1) suggest that the conversation referred to by the mother in fact took place on 18 July 2006. The notes further go on to refer to an incident which occurred in Dr G’s surgery on 23 January 2007. On that occasion the doctor said that the child had demonstrated with her own finger inserting it into her anus and vagina. The note refers to “repetition movements in and out. Also states her father makes “funny sounds”” (there is nothing else in the note to indicate what the funny sounds were, however, in the report which is annexed to the affidavit of Dr G, such report being prepared on 6 February 2007, he says in relation to the visit on 23 January 2007 “she also stated that while her father was doing this to her he was making ‘funny sounds’ e.g. groaning”.)
The next disclosure or potential disclosure referred to by the mother is contained in paragraph 46 of her affidavit. She says this incident occurred at the end of July 2006. She said:
“[The child] started jumping up and down whilst holding her vagina. I found this behaviour odd and I said to [the child] words to the effect:
Me: Do you need to go to the toilet?
[Child]: “No that’s where Daddy holds me when I’m jumping” whilst placing her hands on her vagina.””
The next disclosure reported made by the child is referred to in paragraph 52 of the mother’s affidavit. She said this occurred on 20 January 2007. She said:
“My mother and I decided to ask her again about the things she was hiding from us during our brief conversation last night. [The child] initially displayed reluctance to return to this subject. However after asking her and pleading with her to tell us what her father was doing with her [the child] said words to the effect, “I will show you”. Whilst [the child] was lying on her bed she turned around lying on stomach, then partially pulled her pants down and put her middle finger in her anus. She then proceeded with repeated movements to put in and take out her middle finger from her anus and said to us ‘this is what Daddy is doing’, she then turned around and pointed her finger to the front of her genital area and started doing repeated rubbing movements with her index finger to her vagina and also made groaning noises. [The child] then said:
“also here yaya (grandmother)” whilst rubbing her vagina with her index finger.
[Grandmother]: “Is that what Daddy is doing to you?
[Child]: “This is what he is doing to me yaya (grandmother)”.
Whilst [the child] was demonstrating what her father was doing to her she appeared very distressed and upset.”
In paragraph 53 the mother says that this same behaviour was subsequently displayed to her father. The mother in that same paragraph then says: “The contents of the above conversation were recorded by me on a Dictaphone device. These demonstrations were very short. A matter of seconds. I was very distressed by this.” The mother subsequently said she had taken the tape recording to the M police.
In paragraph 56 of her affidavit the mother says that on 30 January 2007 she had a further conversation with the child “...in relation to what she had disclosed to us over the last few days. I then asked [the child]:
“Who has done these things to you that you have shown Papou, Yaya and Doctor [G]?
[The child] said in a sad tone of voice: “My Daddy”.”
On the last day of the trial I was advised by Ms O’Connor, counsel for the Independent Children's Lawyer, that it was her last case as a counsel. She is proposing to retire and not renew her practicing certificate. I wish her well in her retirement and for my part thank her for the assistance she has rendered to this court during her many years of practice as counsel. She has on many occasions appeared as counsel for the Child Representative and has built a reputation for reliability, clear insight and even handedness.
The Orders Which Should Be Made
The Mother has given evidence that she would not comply with an order for the child to spend time with her father which was supervised by Ms A. She said she would not comply with an order which provided for the child to spend time with her father supervised by an independent supervisor. It seems on the Mother’s evidence she would only comply with an order which saw the child spending time with her father in a supervised contact centre. In those circumstances should the court consider making an order for the child to live with her father?
There needs to be an order for supervision of the time the Father spends with the child as is explained in these reasons. Ms A would be a vigilant supervisor notwithstanding she is convinced the Father has never abused the child. She is prepared to strictly supervise the time spent by the child with her father. I accept she is a strong person and I accept that she would not allow herself to be manipulated by the Father to “turn a blind eye” to his disobeying of the court orders. I absolutely accept she would not be party to allowing the Father to harm the child in any way. She told me that she would not be continuing a relationship with the Father if she felt in the slightest way that he was the kind of person who could abuse children. She is planning to have children with him. I accept her evidence. She was a very impressive witness.
As against those findings I need to consider the best interests of the child as paramount. I accept the evidence of Dr Q that it would be very difficult and traumatic for the child to be separated from her mother at this time in a way which saw her living full time with her father and spending limited and perhaps supervised time with her mother. It is therefore incumbent upon the court to seek out further solutions.
Although I find it is not necessary for the protection of the child from abuse at the hands of her father, it would be prudent to require strict supervision of the time the child spends with her father. That supervision should be put in place for a short period of time. The supervisor should be someone who is prepared to give an undertaking to the court to strictly supervise the time the child spends with her father. The supervisor should know that he/she could be dealt with by the court for not complying with that undertaking. The supervisor should be told of the allegations which the child has made and should be provided with a copy of the orders of the court. If requested the supervisor should be provided with a copy of these reasons.
The requirement for supervision of the nature envisaged in the previous paragraph is onerous on the party required to organise the supervision. If family members or friends cannot be prevailed upon to provide the supervision then it can be very expensive. It is even more onerous where the requirement for the supervision is to placate the fears of a residential parent and where those fears have been found to be misplaced.
Once the period of strict supervision by a person other than Ms A is complete then there should be different arrangements which change as time progresses. Ms A should be residing with the Father at times when he has the child in his care at least until she attains the age of 10 years. She should be required to sign a form of undertaking to the Court to ensure she is aware of the responsibility she takes on.
What then is the alternative? The only real alternative is to change residence for the child. In this case the child’s best interests dictate that the Mother at least be given an opportunity to show she can comply with the courts orders.
Another approach I can take is to give the Mother an incentive to adhere to the court orders and at the same time make it crystal clear to her what the consequences are likely to be if she choses to disobey the court’s orders. To provide this incentive I propose to make an order in favour of the Father for him to have sole parental responsibility for the child and for the child to reside with him. I propose those orders are suspended and that the Father has leave to approach the court to lift that suspension in the event of the Mother disobeying the court’s orders.
I accept Dr Q’s view that it may be necessary to change the residence of the child from the Mother to the Father, however, that should only be seriously considered further if the Mother illustrates a disinclination to abide by the orders of the court.
The transfer of care between the parents for the purpose of the child spending time with each parent should take place as far as possible in circumstances where the parents do not meet. The handover should commence at a supervised contact centre.
Each of the parties and the Independent Children's Lawyer made submissions about whether there should be an order made for joint or sole parental responsibility. I have considered those submissions carefully. I reach the conclusion that the only viable order to be made is that the parent who has the principal residential care of the child should have sole parental responsibility for her and be required to consult with the other parent by email or in writing in relation to important decisions relating to the child including matters of health, schooling, religion and accommodation. That parent should then take those matters into account when making a decision about the particular matter under consideration.
The evidence of the Mother is that she proposes to establish a residence for herself and the child independent from her parents at some time in the future. She should not be permitted to unduly disrupt the child’s life by a move of considerable distance from her current location. All the evidence of the Mother leads me to believe that she would try to find accommodation in the M area. This consideration would likewise apply to the Father. He has told me he would be looking for accommodation in the M area. To move a long distance away from the child is likely to considerably disrupt her life. An order which restricts the area in which they can relocate would be appropriate and a distance of up to 10 kilometres, by road, from the child’s school reasonable.
Neither party should be able to change the child’s current school without the consent of the other. Once the child concludes her primary schooling then the high school she is to attend will be decided by the parent with parental responsibility in the manner provided for in the orders of the court.
Dr Q recommends the Mother receive personal therapy to help her deal with her defensive personality so that the child is not raised in an environment which is suspicious of the world.
The child is not to be removed from Australia. Her name is to be placed on the Airport Watch List.
If the child is to live with her mother then it will be part of her every day life to have contact with her maternal grandmother. Dr Q has pointed out behaviour on the part of the maternal grandmother which she regarded as abusive of the child. It is to be a condition of the residence order in favour of the Mother that the maternal grandmother sign the form of Undertaking to the Court which is attached to these orders.
The Father is to forthwith prepare himself to take the child into his full time care. Such preparation is to not only include having suitable living accommodation for her but also for him to obtain the professional help he wished to avail himself of prior to her commencing to live with the Father.
On 27 May 2004 orders were made by this Court. The orders contained injunctions. I need to consider whether any of those injunctions should continue. Those injunctions included a provision that the Father have accommodation separate from his parents. The order was made by consent and the Father gave evidence about the circumstances in which he agreed to that injunction. I accept that evidence. I have heard no evidence which suggests to me that the physical environment proposed by the Father for the child in his parents’ home and later in a home which he and Ms A will own is in any way unsatisfactory. The injunction I understand was sought by the Mother because of concerns she had that the Father’s father abused alcohol and was frequently affected by alcohol. I have not accepted any evidence which would establish that fact. The subject gentleman gave evidence by affidavit and orally in the hearing before me. He agreed that he consumed alcohol. He denied drunkenness. Allegations were made by the Mother and her family that the paternal grandfather was inebriated at the parties’ engagement party. This was denied by the Father. I am not satisfied that the Mother’s evidence on that matter is correct nor the evidence of her corroborating witnesses.
As a consequence of the above I would not continue an injunction which prevented the Father from accommodating the child in his parents’ house.
Should there be any circumstance where the paternal grandfather or any other person was inebriated and thereby a risk to the well being of the child I would trust both the Father and Ms A to take appropriate action to remove her from that threat. I would not continue injunctions which I deem unnecessary and potentially insulting to the Maniakis family. I would also not trust the Mother and her family not to try and use such an injunction to manipulate reports from the child to their advantage and prevent the child spending time with her father.
The balance on the orders made on the 27 May 2004 I determine are no longer necessary or have been provided for by other orders I propose to make.
Each of the parties is to pay to the Legal Aid Commission of NSW the sum of $7,647.20 as their share of the costs incurred by the Independent Children's Lawyer. Payment to be made within two months from the date hereof.
The parties have agreed that the DVD made by the Mother of the child demonstrating “what Daddy did to her” should be destroyed. There will be an order to that effect.
In the course of submission the Mother’s counsel, on her behalf, supported the appointment of a Family Consultant for the parties to meet with if there are further problems in relation to the care of the child. No submission supporting the requirement for the Mother to attend upon a psychologist was made. However, I am of the opinion that the Mother may require some quite intensive therapy in order to enable her to deal with the child in an appropriate way and not to subject her to further psychological abuse as was found by Dr Q to be the case. The only reason this should not occur is if the cost was too much for the Mother to reasonably accommodate. It should be a condition of the orders made in favour of the Mother that she obtain such assistance for herself. Should it prove not possible for the Mother to obtain this treatment then the question of whether the order in favour of the father providing for the child to live with him should immediately take effect would need to be reconsidered. I consider it absolutely imperative that the Mother have some suitable professional help in caring for the child. Without that help it seems to me quite likely that the child would continue to be subjected to the type of abuse referred to be Dr Q in her evidence.
The Independent Children's Lawyer is to provide to the psychologist engaged by the Mother a copy of the court orders and the judgement delivered herewith.
The appointment of the Independent Children's Lawyer needs to be extended for a period of eighteen months from the date hereof. There are a number of matters for the Independent Children's Lawyer to participate in if the orders of the court are to be effective.
In the event of the Mother not being able to engage a psychologist within one month from the date hereof then she is to have the opportunity to seek advice from a Family Consultant attached to this court for a period of twelve months. To that extent I propose to make an order for the orders of the Court to be supervised by a Family Consultant who would then be available to each of the parties to assist in the implementation of the orders of the Court. The supervision would be reportable and if required by a judge to prepare a report at the conclusion of the period of supervision, or any time prior thereto, then a report should be provided.
The Independent Children's Lawyer is to provide to the Father the name of two psychologists who Dr Q recommends the Father to attend upon to assist him with the parenting of the child. It is a condition of the time the Father spends with the child that he forthwith makes an appointment to meet with one of the psychologists advised to him by the Independent Children's Lawyer and advise the Independent Children's Lawyer promptly of the date of the first appointment. The Father is to attend upon the psychologist at frequencies recommended by the psychologist for not less than twelve months from the date hereof. The Father is to authorise the psychologist to notify the Independent Children's Lawyer in the event of the Father failing to attend upon any such appointment.
The Independent Children's Lawyer is to provide to the psychologist chosen by the Father a copy of the court orders and a copy of the judgement.
The order for the Father to spend time with the child will need to be supervised to varying degrees between the date of the orders and the time the child turns ten years of age.
I also propose to order that the child not be permitted to enter the Father’s bedroom unless Ms A or another adult is present. I will also order that the Father discourage the child entering his bedroom at any time.
The orders will require some changeovers to occur at a contact centre. The parties are currently known to P Contact Centre. They could, I assume, continue to use that venue for changeovers. On the other hand there might be restrictions to using that service which are unknown to me. The Mother, through her counsel, said that there appeared to be no current objection to the use of the E Interrelate Contact Centre as a site for changeovers. I propose to leave it to the Independent Children's Lawyer to make inquiries and advise the parties where the handovers are to take place. Given the number of changeovers to take place it may be that both centres will need to be used. Each party is to pay their fees associated with the use of the contact centres for the purpose of these orders.
In submissions counsel for the Mother told me that in reference to exhibit ICL4 the mother would prefer Sunday as the day for the child to spend with her father. Further I was told that the Mother would consent to orders as set out in paragraphs 8, 9, 10 and 11 of the orders sought by the Independent Children's Lawyer. She would also consent to the order as set out in paragraph 13 of the minute of order sought if it was framed to relate to serious medical treatment. I propose to make those orders and to accommodate the Mother’s request for Sunday in the first part of the orders.
In his evidence the Father told me that he and Ms A were planning to obtain a residence of their own in the M area so that they might be close to the child’s school. In her evidence the Mother told me that within the not too distant future she was planning to obtain a residence for herself and the child which is independent of her parents. The inference, if not the fact, of the Mother’s evidence was that her accommodation would be in the M area. Neither party should be able to relocate outside of an area 10 kilometres from the child’s school at M without the written consent of the other party or an order of the Court. To do so could well be very disruptive to the child and her relationship with each of her parents.
The child should commence to spend frequent time with her father which, at this stage, is not overnight. The reason no overnight time is seen as appropriate at this time by me is that it could place real strain on the mother and upon the child. The child has had a great deal of her time which she would normally have been expected to have spent with her father taken from her. She needs to be allowed to recover some of that lost time by being able to see him frequently from now on. Initially I propose to order she spend each Sunday and Wednesday with her father. After a short while this can progress to one overnight per fortnight and then later progress to alternate weekends from Friday after school until Monday at school time. There should be provision for holiday time to commence in 2009.
The parties are to communicate by e-mail in the event that each has access that form of communication. If not, they are to communicate by a communication book. The book is to be commenced by the Mother. Each party is to write a report about the child’s activities since the other parent last saw the child. Each party is to ensure the communication book travels with the child to the next household.
Given the level of hostility between the parties and their poor communication capacity it is very much in the child’s best interests that she have one general practitioner which each of the parties are to use unless an emergency dictates otherwise. Each of the parties are to be provided with access to her medical records if that is required. The medical practitioner is not to be Dr G as the Father is likely to feel uncomfortable with him and Dr G might feel uncomfortable with the Father. Further, he is the Stamos family doctor and he should be able to continue attending to their medical needs.
The Mother in her oral evidence told me she was applying for teaching positions closer to her parents’ home at M. The Mother should be restrained from taking up employment at the child’s school without further order of the Court. If the Mother was to work at the same school which the child attends it must be reasonably predictable on the evidence I have heard that it would place the child under considerable pressure at the time when she was do to go to her father after school. Further it would considerably increase the prospect that the parents could meet at a changeover. I could not trust the Mother to behave appropriately in such a circumstance. Further, I would be concerned that the Mother would share her views of the Father with other teachers and staff members at the school and make it very uncomfortable for the Father to attend the school. This should, however, be open to the Mother to seek to vary should circumstances transpire in the future which would work unreasonable hardship against the Mother.
Earlier in these reasons I referred to the failure of the Mother’s solicitor to comply with the orders of the court in relation to the preparation of affidavits. In submissions I was told that part of the reason for failure to comply with the orders of the court was the insistence of the Mother that certain information be included in the affidavit which was contrary to her lawyer’s advice. I was also critical of the Father’s lawyers for the manner in which the Father’s affidavits had been prepared. The Father had not structured his affidavit to address the topics specified in the orders of the court.
I raised with each of the parties’ lawyers the question of costs to be charged by them for the preparation of the affidavits. Wilful disregard for the orders of the court is a serious matter. This is especially so when it involves a lawyer aiding and abetting that disobedience. The orders are made to assist the court with the simplification of procedures and to contain the issues to be addressed in the hearing. To disregard those orders potentially lengthens trials and adds costs for parties.
In my view the type of disregard for court orders which was seen in this case warranted the court requiring the solicitor for the Father to undertake to the court not to charge for the preparation of the affidavit and likewise the Mother’s solicitor. In the affidavits of the Mother there was a considerable amount of material which was submission or argument. No client should be charged for the provision of material to a court where no weight can be given to that material.
In this case I conclude I have been able to raise the solicitors’ awareness of the fact that serious consequences will be expected to flow if this type of wilful disobedience of court orders continues. I propose at this time to take this matter no further. Part of the reason is that the solicitors should have been alerted to this problem by a case co-ordinator or a docket registrar as a pre-hearing check and part of active case management.
I certify that the preceding six hundred and fifteen (615) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 16 July 2008
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UNDERTAKING TO THE COURT TO BE PROVIDED BY [THE MATERNAL GRANDMOTHER]
I, [the maternal grandmother], of [address at M], do hereby undertake to the Family Court of Australia that I will not question [the child], born […] August 2002, about any aspect of the time she spends with her father, nor will I require her to report on the time she spends with him. I will not allow any other person to question [the child] about any such matter otherwise than specifically provided for in the orders of the Court made 16th July 2008.
Should [the child] say anything to me which concerns me about the time she spends with her father I will listen in silence to what she has to say and I will not ask any questions of her about that matter. As soon as time allows I will, in the absence of [the child], write down what I heard from [the child] and what I observed about her behaviour as she was saying the words written down by me.
I further undertake to the court that I will not seek to record by any audio or visual recorder any allegations or any actions by [the child] which I believe may be matters of concern so far as her safety is concerned.
I acknowledge that I have been provided with a copy of the Court orders made on the 16th day of July 2008 and I undertake that I will not aid any person to contravene those orders.
Signed:………………………….. Witnessed:…………………….
Dated:………………………….
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UNDERTAKING TO THE COURT TO BE PROVIDED BY [MS A]
I, [Ms A], of [address in V], do hereby UNDERTAKE TO THE FAMILY COURT OF AUSTRALIA that I will carry out the orders of the court attached hereto so far as they require any action on my part diligently and without dissuasion by the father. I will ensure that the Independent Children's Lawyer is notified of any concern I have about the time [the child] spends with her father and/or should the father hinder or prevent me in carrying out my obligations.
Signed: ………………………… Witness:…………………………….
Dated:…………………………..
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UNDERTAKING TO THE COURT TO BE PROVIDED BY ANY SUPERVISOR OF THE FATHER’S TIME WITH [THE CHILD]
I ………………………………… of ………………………………………… do hereby UNDERTAKE TO THE FAMILY COURT OF AUSTRALIA to diligently supervise the time [the child] born […] August 2002 spends with her father [Mr Mariakis] on any occasion upon which I have been nominated as the supervisor. I understand that the father is not to be alone with [the child] at any time. I have read the orders of the court made the 16th day of July 2008 and have been supplied with a copy of same. I have noted the activities which the father is not to participate in with [the child].
I have been provided with a copy of the judgement delivered on the 16th day of July 2008 and have noted the detail of the allegations which were made against the father.
Signed:………………………. Witnessed:………………………..
Dated:………………………..
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Costs
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