Telling and Mines

[2009] FamCA 794

FAMILY COURT OF AUSTRALIA

TELLING & MINES [2009] FamCA 794

FAMILY LAW – CHILDREN – With whom a child spends time

Family Law Act 1975 (Cth) s 60CC(3)

Ciabo v Ciabo (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT: Ms Telling

RESPONDENT: Mr Mines

INDEPENDENT CHILDREN’S LAWYER: Ms Cruttenden

FILE NUMBER: BRC 11542 of 2008

DATE DELIVERED: 17 July 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 17 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Pagliarino
Carswell & Company

SOLICITOR FOR THE RESPONDENT: Ms Badke
Bell Dixon Butler Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cruttenden

Legal Aid Qld

Orders

IT IS ORDERED THAT:

1. The matter be adjourned to the Magellan Registrar at 3.00pm on 7 August 2009 for the making of directions and listing the matter to a 3 day final hearing and that such hearing shall be conducted by telephone.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The children S born … February 1999 and K born … February 2006 shall spend time with father supervised by the paternal grandmother from after school Tuesday until 7.00pm each week and each Sunday from 10.00am to 6.00pm supervised by paternal grandmother with changeover to occur at the mother’s residence.

2. The child T born … September 2008 shall spend time with the father supervised by the paternal grandmother from 3.30pm to 4.30pm each Tuesday and from 10.00am to 11.00am each Sunday until the first period of time after 15 September 2009 at which time the period on Sunday be extended until 12 midday.

IT IS FURTHER ORDERED THAT:

1. The Independent Children’s Lawyer have leave to issue a subpoena to the Department of Community Services (Child Safety Services).

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11542 of 2008

MS TELLING

Applicant

And

MR MINES

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In August 2008 consent orders were made between these parties for S born in February 1999 and K born in February 2006 to live with their mother and spend time with their father. 

2. Some four months later, in mid-December 2008, the mother filed an application seeking that those two children live with her and spend supervised time with their father.  The reasons for that application can be seen reflected in the notice of child abuse in Form 4 filed by the mother on 19 December 2008.

3. On 24 December 2008 Demack FM ordered that the two children live with their mother and the father spend supervised time with the children and appointed an independent children's lawyer.  On 3 February 2009 the father filed a response seeking shared care with the children and, a couple of days after that, Demack FM ordered that the proceeding be transferred to this Court. 

4. Approximately a week later on 12 February 2009 a Registrar of this Court designated that the matter was one which was appropriate for inclusion in this Court's list of matters dealing with allegations of sexual abuse and serious physical violence, commonly known as "the Magellan list".  At the same time a family report was ordered. 

5. Thus far the paternity of another child, T born in September 2008 had been in issue.

6. On 9 April 2009 a family report was prepared by a family consultant attached to this Court, Mr F, who recommended that T be the subject of a DNA test.  That DNA testing has subsequently occurred and I am told from the Bar table that the results of that testing is to the effect that the parties now accept that T is a child of the father. 

7. Accordingly, orders are sought by him - indeed by both parties - in respect of all three of the children.

8. At the time of the instant application, then, S is aged about 10, K about 3, and T about 10 months.  The mother asserts that T is still being breastfed. 

9. In broad terms, the notice of child abuse alleges that the father has engaged in inappropriate sexual activity with K.  That sexual activity, or indeed any sexual activity, with K is denied by the father.

10. This case, then, is progressing to a trial at which allegations of sexual abuse and the broader issues relating to the family dynamics resulting from those assertions and counter-assertions will need to be examined at a trial and findings made.

11. The current application is for the father to spend time with the children pending that trial. 

12. I indicated to the parties during the course of argument that they could expect a trial, in all likelihood, not earlier than about February next year.  Accordingly, the current application relates to what interim arrangements are in the best interests of these children, in the light of the allegations made by the mother, in the approximate six or seven months until the trial of this matter is to be heard.

13. The difficulties created for this Court when allegations are made that require, ultimately, findings to be made about hotly disputed and acutely important facts have been commented upon by the Full Court.  In particular, Ciabo v Ciabo (1996) FLC 92-651 outlined the unfortunate, but nevertheless necessary strictures will apply when dealing with matters in a list such as this on an interim basis in circumstances where none of the evidence, including I should emphasise, any expert evidence, has been given in Court and subjected to cross-examination and thereby tested.

14. Equally, the Court has not had the opportunity to properly analyse the evidence and to make cogent findings based upon that analysis resulting from its testing and challenge in the manner just described. 

15. Accordingly, as the Full Court made clear in that case and has also been made clear in the post-Reform Act decision of the Full Court in Goode v Goode the Court is restricted in applying the statutory mandates, including the Objects and Principles of the legislation.  They include, of course, among which the necessity for both parents to cooperate and be involved in the co-parenting of their children and for parties to enjoy a meaningful relationship with their children to the maximum extent consistent with their best interests. 

16. That restricted confine, distracted by the nature of the proceedings, is bounded by facts upon which the Court can be satisfied by reason of them being agreed or by reason of them being not open to reasonable challenge.

17. Almost inevitably in cases of this type there are very few facts that fit within that description.  Almost inevitably in cases of this type allegations of things said or done by children are observed by one parent in the absence of the other and form the foundation for assertions about the cause of that behaviour by one parent which the other parent meets with both denials and, frequently, with counter-assertions as to the possible reasons for the behaviour. 

18. In these cases it is extremely difficult to find the substratum of agreed or unchallengeable facts which is said to form the basis upon which interim decisions with respect to the best interests of children should be made. 

19. The Court is thus on the horns of an acute dilemma which it is obliged to resolve in favour of the best interests of children. 

20. Because the Court is obliged to resolve that dilemma in the best interests of the children it is axiomatic that the Court proceeds conservatively with a view, as much as is possible via Court orders, to eliminating all such risks as are reasonably open on the basis of the untested, challenged evidence currently before the Court.

21. It is frequently the case that matters are raised at an interim hearing that might have real cogency and persuasiveness at the end of a final trial when the evidence has been tested and assessed, but which in the context of interim proceedings, have little persuasive effect.  This is such a case. 

22. Here, as is evident from the family report of the family consultant, Mr F, there are different conclusions that can be reached on the basis of the various allegations and counter-allegations. 

23. Mr F - quite properly if I may say so - postulates his evaluations and recommendations based on differing alternatives.  Those differing alternatives take account of the fact that the Court has as yet not made findings about the essential factual matters in dispute between the parties.  It can be seen, for example, at para 102, that Mr F says:

    If it is the case that the Court makes a finding that [K] has been sexually abused by her father such that he has masturbated on her or rubbed his penis against her genitals …

24. By contrast, for example, at paras 104 and 105 Mr F postulates an opinion:

    If the Court is of the view that the children are not at risk of sexual harm from their father and that [K] has not been sexually abused …

25. In circumstances where one parent denies any form of inappropriate conduct towards a young child, it is perfectly understandable that that parent would seek to maximise his co-parenting relationship with the other parent in respect of that child and any other children that they have together. 

26. Unfortunately, that understandable desire to spend significant time with the children and/or to have them live with him for periods of time must, in circumstances where the evidence remains untested and no findings are capable of being made in respect of the central issues, give way to a more conservative approach which pertains until those determinations can be made.

27. The parties, in part, recognise this by agreeing, on an interim basis, that time between the father and the children should be supervised. 

28. However, that recognition by the father is ameliorated somewhat by the nature and extent of the time that he seeks to spend with the children in that interim period, including periods of time which include overnight time.

29. In the course of argument, the father’s solicitor indicated to the Court that, if the Court was concerned that that overnight time was considered to present too great a risk then he would vacate his home, leaving his mother with the children overnight. 

30. I am not persuaded that I should order overnight time between the children and the father in the interregnum between now and the date of trial. 

31. I consider that, whilst it is understandable that the father might wish to make the offer that fell from his solicitor, I do not consider that that move by him, particularly given that S is aged 10 and, one assumes, as inquisitive as what a 10 year old would ordinarily be, would be of assistance in his co-parenting of his children or in their best interests.

32. If that is the case a further central issue remains between the parties and that is whether any supervised time should occur only at a contact centre, E Centre, or whether the paternal grandmother should be a supervisor for the purposes of the order.

33. Mr Pagliarino, who helpfully provides written submissions for the Court, argues in respect of that issue that:

    There is no evidence in the family report regarding the impact on the mother in the event that the grandmother is appointed as a supervisor.

34. Mr Pagliarino goes on to argue on behalf of the mother that, by reference to what Mr F at paras 65 and 66 of his family report, that the grandmother:

    …rejects the notion that the father has harmed [K] in any way.  This has clearly reinforced a serious doubt in the mother's mind about her ability to supervise appropriately.

35. Reference to those paragraphs in the family report sees Mr F saying:

    65.      Ms [Mines] is the paternal grandmother.  She supports her son's application and rejects the notion that her son has harmed [K] in any way.  She expressed concern that by virtue of the shift in structure she is spending considerably less time with her grandchildren especially when it has been the case in the past that she has been more extensively involved with them.

    66.      While she does not agree that supervision between the children and their father is warranted she indicates that she would be prepared to act as a supervisor if the Court deems this necessary.  With this she suggests she would take the role seriously and comply with the terms of a supervision order.

36. Reflecting Mr Pagliarino’s submission made on behalf of the mother, Mr F says in his report:

    67.       [The paternal grandmother] expresses concern about [the mother] as a mother insofar as her ability to control her temper and maintain patience with [K].  She said that she has seen her slap [K] across the face in the past when struggling to get her into a car seat.

37. That comment can be seen to evidence the significant degree of conflict and the dysfunctional nature of the co-parenting when these parties were together that is otherwise referred to at some length in the report of Mr F. 

38. Mr Pagliarino would argue inferentially, by reference to the matter referred to earlier, that comments such as that find reflection in the mother's concern about the capacity of the grandmother to provide supervision.  Mr Pagliarino also argues that the family report refers to home-based supervision as being inherently less secure and independent when contrasted with a contact centre.

39. The points made by Mr Pagliarino are, with respect, well made.  However, it seems to me that there is a significant distinction between, on the one hand, the position of a mother who says in respect of her son that she has doubts that he has perpetrated the sort of behaviour that is alleged of him, with a consequent belief that there is no need for supervision, and, on the other hand, that attitude resulting in a degree of lack of attention or appropriate rigour in the task of supervising time when that is ordered pursuant to a Court order.

40. It seems to me to be a large step to say that someone who does not believe of their child that he is capable of disgusting behaviour to then say that that person would not nevertheless intervene on behalf of young children in circumstances where she saw any behaviour that would cause her, or any decent human being, concerns about those children's safety.

41. Moreover, in assessing any potential risk, even on an interim basis, account must be taken of the nature and extent of that risk and how that risk might be measured in terms of the conditions put in place by orders.

42. The father well knows, and can be in no doubt, and the father's mother well knows and can be in no doubt, that a mother who, on any view, is very vigilant, will be watching every step taken when these children are spending time with the father. 

43. The father's mother also knows, because the independent children's lawyer has indicated to the Court that she has spoken to the father's mother about the responsibilities of supervision, and explained that the eyes of the Court will be on the paternal grandmother in and about her conducting that task as supervisor.  It seems to me that, in the absence of debilitating factors such as, for example, alcohol, drug use and the like, (which do not apply here) that those matters are important matters in ameliorating any risk that might be said to be associated with the grandmother as a supervisor.

44. In a similar way, whilst account must be taken of the feelings of the mother as the clear primary carer of these three children that nevertheless any such concern that the mother has about supervision being provided by the grandmother needs to be measured against the sort of considerations just outlined.

45. In any event, in assessing any orders made in respect of children which must, on their face, have as their central concern the best interests of the children, a balance must be struck between, on the one hand, the nature and extent of any postulated risk, ameliorated by other orders of the Court, and, on the other hand, the Objects and Principles enshrined in the legislation and the other Considerations relevant to the best interests of the children referred to specifically in s 60CC(3). 

46. In that respect, there is no doubt that the legislation evidences a desire for both parents to fulfil a meaningful role, to the maximum extent consistent with that interest, in the post-separation co-parenting of their children.  Of course, assessments of risk, even on an interim basis, must be factored into that because a primary concern of the Court is protecting children from any form of harm. 

47. It seems to me that, on the evidence before me, providing for supervised time with the grandmother strikes the balance just referred to.

48. Accordingly, I propose to make orders that reflect those reasons by ordering that the paternal grandmother be the supervisor.

49. That order also has the effect of providing greater flexibility, in the amount of time that the children can spend with their father.  In that respect it seems to me that a distinction needs to be drawn between S and K on the one hand and T on the other. 

50. T is a tiny baby still being breastfed by the mother.  There is a factual dispute about whether the mother can or wants to put T on the bottle.

51. I am not persuaded that any order I make should be such as to interfere with a desire by a mother, properly held, to breastfeed a child, and I would need significant persuasion that that I should make an order which interferes with that process or that the statutory Objects and Principles produce, or point to, any such result.

52. The orders postulated by the independent children's lawyer seek time each week from after school Thursday until 7 pm, and each Sunday from 10 am until 6 pm.  The grandmother is unavailable to supervise on Thursdays.  I am minded to make orders, then, to accommodate this:

53. I will not make an order for telephone time.  It seems to me that, with these young children seeing their father twice each week, telephone time in addition, in circumstances where Mr F speaks of dysfunction and conflict between the parents, and where the children comment on the dysfunction and conflict between their parents, is likely to make a rod for the parents’ own back and make the time more difficult for the children.

54. The mother seeks an order which would effectively restrict the father from taking any of the children to his home in circumstances where I have made orders that supervised time between the father and the children take place. 

55. On the one hand Mr F says, for example:

    In many respects the mother's stance when it comes to these allegations is intractable.  I am of the view that the mother is acting with a genuine desire to protect her children based on a belief - whether mistaken or not - that they are at risk. 

    However, Mr F also says:

    The mother's views however might create a potential risk for the children if there is no positive finding made by the Court.  This relates to whether or not she would be able to protect the children from her mistrust of the father as a sexual abuser and support a structure in which they spend unsupervised time with him.

56. There are clear indications within Mr F’s report that the children want to spend time with their father.  For example, Mr F reports that:

    [S] however clearly indicated a preference to be able to spend time with her father and to do so without having to worry about whether or not [K] would get hurt.  In that respect she indicated she wants to see him on her own.  She made very positive and affectionate observations about both of her parents.  I asked her what she might like to change about them.  With her mother she said: "Not her yelling so much and being so angry"; with her father she said: "Spend more time with us and put us away at grandma's.  I love spending time with grandma but I love spending time with dad, too."

1. In respect of K Mr F said:

   For [K] to develop a meaningful relationship with her father she should ideally have the opportunity to experience him as a caregiver to her so that she understands and trusts him as someone who meets her basic needs.  If there is to be a meaningful relationship these structures should be put in place as soon as possible.

2. In seeking to place any restriction on time between these children and their father, including the father not being at liberty to take the children to his house, the issue is the extent to which any risk to the children is measured against any benefit of the relationship to be established between the children and the father.

3. In my view there is good evidence before me that the children want to "normalise" a relationship with their father.  I have concluded, on the evidence before me, that any such risk as might be posed in circumstances where ultimate findings cannot be made about the significant and acute issues in the case that no further risk is posed to the children by them spending time at the father's house provided that the time is supervised by their paternal grandmother. [The children are best able to “normalise” their relationship, within that supervised environment, if time can occur at the father’s home.

4. Moreover, it seems to me that there is significant potential benefit for the children in doing so.  For example, it seems to be more consistent with the desire of S to spend the sort of time with her father that she indicated to Mr F, more consistent with the development of a meaningful relationship, and, as Mr F puts it: “the opportunity for them to experience him as a caregiver”.

5. If the children are to experience the father as a caregiver, albeit protected in the way that I have ordered, then that potential is maximised by them having as normal a time as possible with him, within the confines of ensuring their safety.  That, it seems to me, should include time spent at his home.  For those reasons I decline to impose the condition sought by the mother.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  31 August 2009