TALMAN & BECKLEY

[2019] FamCA 1056

FAMILY COURT OF AUSTRALIA

TALMAN & BECKLEY [2019] FamCA 1056

FAMILY LAW – CHILDREN – where the Court finds the father does not pose an unacceptable risk of sexual abuse to the child – final consent orders made for the child to spend unsupervised overnight time with the father.

Family Law Act 1975 (Cth)

APPLICANT: Mr Talman

RESPONDENT: Ms Beckley

FILE NUMBER: BRC 11030 of 2018

DATE DELIVERED: 21 November 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 21 November 2019

FINAL ORDERS PRONOUNCED: 9 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms L Barnes

SOLICITOR FOR THE APPLICANT: Finnigan Santoso Law

COUNSEL FOR THE RESPONDENT: Ms S Downes

SOLICITOR FOR THE RESPONDENT: KLM Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K Carmody

INDEPENDENT CHILDREN’S LAWYER: Ms S Duncan, Legal Aid Queensland

Orders made 21 November 2019

1. That by no later than 12 noon on 27 November 2019, the Independent Children’s Lawyer shall circulate to the parties her minute of proposed interim orders.

2. That the parties shall engage in discussions about competing proposals for interim orders.

3. That these proceedings be adjourned for Interim Hearing at 2.00pm on 9 December 2019 in the Family Court of Australia at Brisbane.

FINAL ORDERS MADE BY CONSENT 9 DECEMBER 2019

1. That all previous parenting Orders are hereby discharged.

2. That the Respondent mother and Applicant (“the Applicant”) have equal shared parental responsibility for the child, X born in 2015 (“the child”) to the exclusion of the child’s biological father, Mr C.

Living arrangements

1. That the child live with the mother.

2. That the child spend time with the Applicant at all times as may be agreed between the parties, but failing agreement on a fortnightly cycle as follows:

   (a)in week one (1) from Thursday 4.00pm to the commencement of day care/school Friday; and

   (b)in week two (2) from Thursday 4.00pm until Sunday 5.00pm.

Special occasions

1. That notwithstanding any other order, where the child is not travelling with either party pursuant to these Orders, the child shall spend time with each party over the Christmas period as follows:

   (a)in odd numbered years with the mother from 8.00am Christmas Eve until 1.00pm Christmas Day, with the Applicant from 1.00pm Christmas Day until 8.00pm Boxing Day; and

   (b)in even numbered years with the Applicant from 8.00am Christmas Eve until 1.00pm Christmas Day, with the mother from 1.00pm Christmas Day until 8.00pm Boxing Day.

2. That notwithstanding any other order, for the Easter period, the child shall spend time with each party as follows:

   (a)in even numbered years with the mother from 8.00am on Good Friday until 8.00pm on Easter Monday;

   (b)in odd numbered years with the Applicant from 8.00am on Good Friday until 8.00pm on Easter Monday.

3. That notwithstanding any other order, on the child’s birthday, the child shall spend time with the party they are not in the care of pursuant to these Orders from 3.30pm until 6.00pm.

4. That notwithstanding any other order, if the child is not already in the care of the mother on the mother’s birthday, the child shall spend time with the mother on the mother’s birthday:

   (a)if a school/day care day, from after school/day care until 7.30pm; or

   (b)if a non-school/day care day, from 1.00pm until 7.30pm.

5. That notwithstanding any other order, if the child is not already spending time with the Applicant for the Applicant’s birthday, the child shall spend time with the Applicant on the Applicant’s birthday:

   (a)if a school/day care day, from after school/ day care until 7.30pm; or

   (b)if a non-school/day care day, from 1.00pm until 7.30pm.

6. That notwithstanding any other order, if the child is in the care of the Applicant on Mother’s Day pursuant to these Orders, the child shall spend time with the mother from 9.00am to 4.00pm.

7. That notwithstanding any other order, if the child is in the care of the mother on Father’s Day pursuant to these Orders, the child shall spend time with the Applicant from 9.00am to 4.00pm.

School holidays

1. That the time spending arrangements in Order 4 herein be suspended during school holiday periods and the child shall spend time with the Applicant during the Queensland gazetted school holiday periods as agreed between the parties and failing agreement, each alternate week, with the child spending time with the Applicant for the first week of each school holiday period in odd numbered years (and each alternate week thereafter), and the second week (and each alternate week thereafter) in even numbered years.

2. That for the purpose of these Orders, each school holiday period is deemed to commence at 4.00pm on the final day of the school term and is deemed to conclude at the commencement of the following school term.

Changeover

1. That where changeover does not occur at the child’s school/day care, changeover is to occur at a location agreed between the parties but failing agreement, at Suburb D Train Station.

Holidays and overseas travel

1. That each party is at liberty to take the child overseas for up to two (2) weeks over the Queensland gazetted Christmas school holiday period, with the child to travel with the mother in odd numbered years and the Applicant in even numbered years, and to that end:

   (a)the child shall spend time with the mother from 22 December 2019 to 27 December 2019 for the purpose of visiting Country E; and

   (b)the child shall spend time with the Applicant from 19 December 2020 until 3 January 2021 for the purposes of visiting the United Kingdom.

2. That unless otherwise agreed between the parties in writing, each party shall be at liberty to take the child on one two-week holiday per year outside of the Queensland gazetted Christmas school holiday period.

3. That the party wishing to travel with the child shall provide written notice of their intention to travel to the other party not less than thirty (30) days prior to the proposed date for travel and that the other party will not unreasonably withhold consent.

4. That the travelling party shall provide the other party a detailed itinerary of any travel, including telephone contact numbers where the party and the child can be contactable each day, copies of all relevant air tickets, and copies of all other necessary documents not less than fourteen (14) days prior to that travel.

5. The child’s travel to any overseas destination is subject to the Australian Department of Foreign Affairs and Trade Travel advice, and if the travel advice to the particular destination is “advised not to travel” of if the proposed country is not a signatory to the Hague Convention, then the party is not to travel with the child to that destination.

6. That the child’s passport shall be released to the travelling party no less than seven (7) days prior to the date of departure.

7. That during all such overseas travel of the child, the non-travelling party shall be permitted to speak to the child at all times requested by the child but at least twice per week, with the travelling party to facilitate such communication.

Child’s passport

1. The child’s passport is to be retained by the mother.

2. That the Applicant return the child’s passport to the mother within forty-eight (48) hours of returning from overseas with the child.

3. That pursuant to Section 11 of the Australia Passports Act 2005, the mother and Applicant be permitted to obtain or renew the child’s passport and for the avoidance of doubt these Orders operate to cease the parental responsibility of the child’s biological father Mr C such that his signature and/or consent to the issuing of the child’s passport is not required.

Miscellaneous

1. That each party keeps the other informed as to the residential address, email address and contact telephone numbers for that party and the child at all times and within forty eight (48) hours of any change to same.

2. That if one party is unable to care for the child pursuant to these Orders, that party will first ask the other party if they are able to care for the child.

3. That neither party is permitted to relocate the child outside of a one hundred (100) kilometre radius of the Region G without the other party’s written consent, or failing that, without an order of the Court authorising such relocation.

4. That neither party shall denigrate the other party or their family to the child, or within the hearing of the child and shall direct third parties to refrain from denigrating the other party or their family to, or within hearing of, the child and failing their compliance with such a direction shall remove the child from that environment immediately.

5. That when the child is in their care the parties shall not discuss any aspect of this court matter in front of, or within the hearing of, the child and shall direct third parties to refrain from also doing so and failing their compliance with such a direction shall remove the child from that environment immediately.

6. That the parties shall each provide to the other, the names of any medical centre and/or health care providers attended by the child or providing care to the child.

7. That these Orders shall be sufficient authority and direction to:

   (a)the said medical centre and/or health care providers to forward to each party such information as may be requested by either party at the requesting party’s expense; and

   (b)the respective school/s or day care or other similar institutions of the child to enable both parties to obtain copies of all school progress and behavioural issues, and all school curricular activities relating to the child at the requesting party’s expense.

8. That the parties shall keep the other informed of any school, day care, educational facility or extra-curricular activity provider and authorise those providers to provide the other party with information that they are lawfully able to provide about the child and this order shall serve as such sufficient authority for this, and both parties will be at liberty to attend any functions at any school, day care, educational facility or extra-curricular activity provider to which parents would normally be invited regardless of whether the child is in their care at the time.

9. That neither party shall use illegal drugs or consume alcohol in excess of the legal driving limit whilst the child is in their care.

THE COURT FURTHER ORDERS ON A FINAL BASIS:

1. That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That the Applicant is not the biological father of the subject child, however the biological father has not participated either in these proceedings or in the life of the child since her birth.

B.That the Court makes these Orders being aware that if the biological father wishes to be involved in the life of the child and seeks some parenting orders then he has the right to do so.

C.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11030 of 2018

Mr Talman

Applicant

And

Ms Beckley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

Introduction

1. I listed this matter for discrete hearing, as the history would show, to deal with an issue which has shaped the care arrangements for X, a child born in 2015 (aged 4 and a half years).  The two parties who are before me are the biological mother, Ms Beckley and the psychological father of the child, Mr Talman.

2. The history, I think, is fairly simple.  These parties commenced a relationship before the birth of the child.  It seems clear that the father who arrived – according to the father, notwithstanding that he is not the biological father, the father arrived in Australia from the United Kingdom sometime in 2013.  Not long thereafter the father, who is now aged 28 years and the mother who is now aged 27 years, began a relationship.  During the course of their relationship, a child X conceived between the mother and X’s biological father.  X was born in 2015.

3. Notwithstanding how the events of the last 12 months may have changed people’s perceptions of those earlier years, it seems to me, as much as can be expected of a young couple probably under financial pressure and coping with a new relationship and a young child, they supported each other to co-parent little X.  That is apparent from the evidence I have heard today about the roles they played, many of them forced upon the parties by the continued occupation of the mother as a health care worker and the need in such occupation for night duties and the like.

4. The father gave evidence and/or told police that he came to Australia as a labourer.  He remained in Australia under a de facto visa with the intention to marry the mother on his birthday in 2018.  He says that with the birth of the child, he chose a different occupation so he could be, effectively, on land more often.  He is now a tradesman and has some certification in that respect.

5. Although I can accept that there would have been, like all young couples, tensions from time to time, it did seem on the evidence, including that of the maternal grandmother who conceded this to be the case, that up until February 2018 the relationship was supported by her and by the extended family.  However, a nagging issue that involved this couple was the true paternity of the child and however it came to pass, the parties agreed it was appropriate to have some proper paternity testing undertaken.

6. The results of that paternity test on 18 February 2018 have been, it seems to be, defining for this family unit.  Whilst I say “defining”, it does not seem to have caused, as best I can see, any renewed interest by the biological father in the care and welfare of the child, despite it seems the mother’s attempts at times to attract his interest.  That is a matter that may need to be dealt with in future.  Nonetheless, notwithstanding that the determination of the true paternity of X caused a fracture in the parties’ relationship, it seems to me out of proportion to the, in fact, event.  The parties separated within a couple of days.

7. From then on there were issues, which I will deal with shortly, that caused the time the child spent with the father – remembering that the child at separation was about three years of age – being shaped by the mother’s capacity to support time, and the amount of time that the child spent with the father was sporadic (his description).  In the circumstances, therefore, one might be a little surprised that the parties, without it seems the benefit or what I say pressure of extended family, went through community mediation as envisaged by the Family Law Act 1975 and, on 11 June 2018, entered into a parenting plan.

8. The effect of the parenting plan was that there would be effectively a shared care arrangement, not equally, but with the father to spend, he says and it is not disputed, approximately five nights a fortnight with the child.  In view of the history that I have now had to deal with today, a further issue of some unusual character was that with the benefit of nothing more than a parenting plan and with the fractured relationship which was caused by the DNA testing result in February, the mother supported X travelling to the UK with the father for a period of well over two weeks.

9. Again, those actions in my view speak volumes about the mother’s true attitude to what she understood to be the best interests of her daughter.  The fact that the father returned with the child, even though there was probably no legal requirement for him to do so, again reflected in my view his focus on the best interests of the child by returning the child to the primary care of the mother.  Sadly, however, almost immediately upon the return of the child to Australia, in my view on the evidence, the maternal grandmother’s concerns about the father’s behaviour towards the child, that first surfaced it seems from her report to police on or about 10 May 2010, gained significant traction.

10. In view of the findings which I am being asked to make, namely that the father does not pose an unacceptable risk, at this stage and bearing in mind that there may be further actions required by this Court and/or this Judge in other issues, I carefully choose my words.  I am comfortable in saying that I find that the basis for which a finding could not possibly be made, in my view, that the father presents as a risk is at least for the reasons identified by the Independent Children’s Lawyer through her Counsel, Ms Carmody, as the transcript will reveal, but at least as follows.

11. The only allegation the child made, really, was of touching.

12. It seems to me, based on further discussions of which there were many, particularly between the maternal grandmother and the child, that there were attempts to explain that disclosure more fully.  It, really, in my view did not get any higher than the consistent allegation that the child gave to the police on 30 October, set out in the tendered documents “daddy touched my [privates] last night”.

13. The mother acknowledged that she would make no significant comment about the difference and the use by the child of this young age of the word “touch” or the word “play”.  The mother, for example, did not accept as likely a disclosure made some time later about a sparkler being placed in the child’s anus.  In my view, that again showed some common sense on the mother’s view.

14. However, despite investigations by medical authorities which, I might say, would have been unlikely to have been able to show any forensic result from mere touching anyway; despite two interviews from police, one in which no disclosure was made and then a disclosure of limited amount was made on the second interview after, it seems to me on the evidence, a significant amount of discussion at the mother’s home between the child and most likely and most often the grandmother; the police and the Department of Child Safety, Youth and Women, both of whose records are before me, neither chose to take any action in respect of the disclosure.

15. The police summary that appears in the subpoenaed records is, I think, one which I could easily adopt, and noting that the father was himself the subject of police interview voluntarily without legal assistance in which, for the part I saw, seemed to be quite open at times and made concessions about past behaviour.  The records says as follows:

    The suspect denied all allegations made and stated he had never indecently touched or dealt with the victim child.  The suspect said he had only ever touched the victim child’s vagina when he needed to wipe her after the toilet or when he was giving her a bath.  The suspect stated he believed the allegations had been made up as a way to stop him from seeing the victim child who he still regarded as his daughter.  Although the victim child has made a disclosure that “Daddy touched my [privates]”, there is insufficient particularisation and no contextual information surround this disclosure.  During the victim child’s disclosure, she stated the incident occurred the previous evening.  However, the informant stated…”

    and the Court accepts in this case on the evidence:

    “…the suspect had not had any contact with the victim child since the 27^th of August 2018 [save for 2 September in a visit for Father’s Day 2018 that the mother was present at].  During the interview, the victim child also appeared at times to be speaking of two separate people when using the terms ‘daddy’ and ‘Mr Talman.

    The suspect has denied indecently touching or dealing with the victim child.  At this time there is insufficient evidence to prove that the suspect has intentionally touched the victim child in an indecent manner for the purpose of sexual gratification.

    In light of the above, this matter is to be filed pending further information.”

1. In my view, on all the evidence, the position taken by the police, adopting a criminal standard, was correct.  In my view, on the evidence before the Court, a finding of unacceptable risk of sexual harm could not be made, even applying the standard civil onus of proof.  Of course, there are other aspects inconsistent with the alleged abuse apart from those which have already been referred to.  Sadly, I form the view that the grandmother’s conduct is so inconsistent, it is hard to give any weight to many of her allegations.

2. I do not say that the child may not have said the words to her.  As I say, the child expressing a view that the father touched her “[privates]” is really a statement of fact that has probably occurred many occasions over the length of her life.  At no time was there really any allegation of any penetration or other actions of the father that could be construed from a child’s words as moving from the position of touching consistent with toileting and other bathing activities for a child of that age to something of a more sexually inappropriate nature.

3. It seems to me that the grandmother may, no doubt I would like to think from a point of view of concern for her granddaughter, have formed a view and has persisted with the allegations so as to keep putting pressure on her daughter to accept her view, other than the view the mother, in my view, very correctly formed having seen her in the witness box.  I think as a competent mother who loves her daughter she has the skills to parent her and not necessarily yield to the views of her mother.

4. But even in the witness box today, we hear for the first time a very, very significant allegation.  One might have been surprised that the grandmother would retain the soiled underpants of this little girl for so long.  She brought them with her to Court.  I do not know what she expected the Court to do with them.  They have been placed in safekeeping here in the Court’s subpoenaed records section.  But the mother for the first time today (and in my view on the evidence, I strongly doubt that she ever made any such disclosure to the police) suggests that she had a very real fear that the underpants that she took from the child back in May 2018 contained semen, inferred to be the semen of the father.

5. There is a doubt that the grandmother, who swore she told her daughter of the “semen”, that that she did so.  There is no evidence from the mother that she ever heard such a comment.  There is no evidence it has ever been raised in the Court before or with any of the authorities who investigated this matter.  The presence of “semen” on this little girl’s undies, if it was in fact there, is the sort of unusual forensic evidence that Courts like this rarely get, and in my view, the mother, a health care worker who has an understanding of many medical issues, had she ever been told her daughter’s undies may have contained “semen”, any concern she had about seeing it would have been wiped away.  She would have known how serious that was.

6. Therefore, in my view, the likelihood of it:

   a)either being semen or;

   b)the grandmother truly believing it was semen,

   is totally inconsistent with any of the other evidence.

7. The mother and the grandmother, of course, say that they wish to believe the child and that she tells the truth.  I am sure most three year olds from their perspective do tell the truth, from their own perspective.  This little girl who I saw for a brief period in the police interviews as being an energetic, articulate, playful little girl who clearly loves toys and having fun, who I am told by the mother (which I accept) will sometimes talk like a parrot or like an animal.  She sounds to me to be a delightful little girl with a great imagination.

8. It is curious to me however that when for so long the mother and grandmother say that the consistent disclosure of the child must be true because of their consistency, they were able so easily to dismiss the retraction of those comments as recently as October this year.  Now, of course, the Court would be alert to the prospect in this case of a child being influenced by people, either to make allegations, maintain allegations or to retract allegations.

9. In my view, it is more likely than not that the child may have said something about the father touching her, but it was not in any way of a sexual nature, and that any repeating of it, often in my view on the evidence elicited by leading questions and behaviour which was inappropriate towards the child by giving her closed questions to answer, only started to play in the child’s mind.  I do not have an explanation as to why the child would so forcefully retract and provide an explanation for past alleged behaviour of the father.  I can understand why the grandmother might, and the mother may think, that something that was said by the father to the child.

10. However, what is abundantly clear and all Counsel, including, I think properly, Counsel for the mother conceded, there is nothing in the reports of F House to suggest that the father has, in the limited opportunity he has to spend with his daughter, used that as an opportunity to get her to try and retract her allegations.  Yes, I accept he has been upset about, as he sees it, having allegations made against him.  Yes, I accept he has not been happy with not being the biological father.  Yes, I accept he is concerned that the child is being distanced from him by having her name changed and calling him Mr Talman rather than Dad.

11. But that is a long way from a man who is guilty and then taking some actions with a child in a supervised environment to get her to change a story she had earlier given.  No.  In my view, almost very comfortably, whatever comments were made by the child were consistent with what were most likely innocent normal parent behaviour of a father and a daughter, but they have been maintained through the system that has caused understandably a very cautious approach to allegations of this nature for young children whose verbal skills are not well developed and who are renowned for having a poor understanding with time and place.

12. In my view, the father does not pose an unacceptable risk of sexual abuse to this child.  In my view, supervised time for that reason should cease as soon as possible because, in my view, the child’s best interests have not been served by the limiting of time between the man who she regards as her father; who played the role of her father with the support of not only the mother but the mother’s family for over three years, being denied the opportunity for a proper relationship with him.

13. Having made that finding, the question is what now?  It is now after 6 o’clock.  I accept that the parties will need to take accord of my finding and then to reframe their thinking as to what are orders in the best interests of this child.  I saw the mother give evidence.  I think, in my view, her evidence was consistent with a continued ambivalence and lack of confidence that the man who she chose to share her life with for over three years was capable of the acts which were being suggested of the little girl with whom he has spent so much time and who he clearly is devoted to.

14. She is a young mother who lives in an environment where it seems it may be difficult to disagree with her mother.  She did so in the early days, as the grandmother quite rightly indicates.  In my view, the maternal grandmother should have accepted the initial judgment of her daughter.  It was, in my view, both well-founded and appropriate and much more balanced than that being offered by the maternal grandmother.

15. So this case now must proceed in a different framework.  I say that because the family report that was prepared and submitted to the Court had, in my view as I have already noted, a somewhat unusual recommendation about having a three year old examined by a forensic child Psychiatrist.  I make the observation again now as I made then, I found that a recommendation not supported by the body of the report and totally inconsistent, in a case of this nature, with the evidence.  I am not rushing the Independent Children’s Lawyer to get a further family report at this stage from that report writer or anyone else.  I do not make any comment about that.

16. What I think is important is that we allow the Court, if the parties cannot so agree, to consider what further interim orders ought be made that are different than those that have been in place since those made by Judge Spelleken as long ago as 14 December 2018.

17. I will direct that the Independent Children’s Lawyer circulate a minute of interim order to the parties by 12 noon on Wednesday, 27 November 2019.  I am going to direct that the parties shall engage in discussions about competing proposals for interim orders.  I am going to list the matter before me for further interim determination.

18. I propose to give this mother and this man who has been the father an opportunity to show that they are capable of being parents of this little girl.  Now, I am going to have to deal with the uncertainty arising from the true paternity of the child.  I do not see whether it has ever been raised that Mr C be invited to intervene in these proceedings.

Addendum to oral Reasons delivered

1. At the conclusion of the oral Reasons, Ms Carmody for the Independent Children’s Lawyer asked that I make a finding that both parties acknowledged they administered Paw Paw ointment on the child’s red vulva area during the relationship and that both parties accepted that on a number occasions the child already suffered from that condition.  I do so as it was consistent with the evidence.

Further addendum to oral Reasons

1. Subsequent to the delivery of the oral Reasons, I pronounced further Orders which appear at the commencement of these Reasons.  I was, on 9 December 2019, asked by all of the parties (who all continued with their legal representation), to make the orders by consent on a final basis.  I did so because, on all of the evidence (some of which was not tested at the discrete hearing on 21 November 2019), the orders are in the best interest of the child X.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 21 November 2019

Associate: 

Date:  16 July 2020