Tindall and Saldo
[2010] FamCA 626
•10 May 2010
FAMILY COURT OF AUSTRALIA
| TINDALL & SALDO | [2010] FamCA 626 |
| FAMILY LAW - CHILDREN - Interim proceedings - Allegations of sexual abuse of the child by the father - Interim orders made for the child to live with the mother and spend time with the father for four hours each Saturday supervised by the paternal grandmother |
| Family Law Act 1975 (Cth) |
| Goode & Goode (2006) 36 Fam LR 422 |
| APPLICANT: | Ms Tindall |
| RESPONDENT: | Mr Saldo |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Carty, Mullane & Lindsay |
| FILE NUMBER: | NCC | 3176 | of | 2008 |
| DATE DELIVERED: | 10 May 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 3 May 2010 and 10 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kelly |
| SOLICITOR FOR THE APPLICANT: | Craney Family Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Burns |
| SOLICITOR FOR THE RESPONDENT: | O’Hearn & Bilinsky |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Not Applicable |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Carty, Mullane & Lindsay |
Orders
PENDING FURTHER ORDER, IT IS ORDERED THAT
All former parenting orders concerning the child T, born … May 2006, are discharged.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends time with the father, unless otherwise agreed, from 1:00 pm until 5:00 pm each Saturday, commencing on Saturday 15 May 2010, with such time to be supervised by the paternal grandmother.
For the purpose of implementing the preceding order:
a.The father shall cause the paternal grandmother to file and serve by Friday, 14 May 2010, a written undertaking to conduct herself as a supervisor of the time spent by the child with the father, pursuant to these orders, in the manner set out within paragraphs 21 and 22 of her affidavit filed on 6 May 2010.
b.The mother or her nominee shall cause the delivery and the father or his nominee shall cause the collection of the child at the commencement of the time to be spent with the father at the KFC Restaurant at G, New South Wales, and the father or his nominee shall cause the delivery and the mother or her nominee shall cause the collection of the child at the conclusion of the time spent with the father at the same place.
Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of any other person denigrating the other.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.
Each party is restrained from commencing or proceeding with any application to the Australian Department of Foreign Affairs or any consulate or other appropriate authority for the issue of a passport for the child.
Any and all outstanding interim applications are dismissed.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that 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.
BY CONSENT, IT IS FURTHER ORDERED
This matter is referred back to the Docket Registrar and is not to be relisted before a Judge until the parties are ready to proceed to final hearing in respect of parenting orders for the child.
IT IS NOTED that publication of this judgment under the pseudonym Tindall & Saldo is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3176 of 2008
| MS TINDALL |
Applicant
And
| MR SALDO |
Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This litigation requires the determination of proper parenting orders for the child T born in April 2006 (“the child”), being the only child of the relationship between the applicant mother and respondent father.
The parties separated in late 2008 and have regrettably been fighting about the child ever since.
The parties reached interim consent orders on 21 January 2009, which required the child to live with the mother and spend time with the father, some but not all of which time was supervised. Allegations of domestic violence against the father, refuted by him, lay behind the agreement for interim supervision.
The complexion of the case changed on or about 4 September 2009 when the mother filed a Form 4 Notice of Child Abuse alleging the father’s sexual abuse of the child. Those allegations, also refuted by the father, led to a cessation of the child spending time with him for a period of months.
In November 2009, the parties and the Independent Children’s Lawyer, who had been appointed in April 2009, and the Intervenor, being the Director-General of the NSW Department of Human Services, who had intervened in August 2009, agreed upon a further interim regime of parenting orders. For reasons which are entirely unclear, that agreement was not ratified by the Court and so no orders exist. Nevertheless, the agreement provided for the child to live with the mother and spend time with the father at the discretion of the Intervenor. Pursuant to that agreement, the Intervenor paid a delegate to supervise the time spent by the child with the father for a period of hours each fortnight.
On 19 March 2010, the Intervenor was granted leave to withdraw from the proceedings. As a consequence, the Intervenor declined to continue arranging and funding the supervised time spent by the child with the father pursuant to the agreement reached in November 2009. Consequently, the parties and the Independent Children’s Lawyer are now in dispute about the interim parenting regime that needs to be implemented pending the final hearing.
By his Application in a Case filed on 8 April 2010, the father wants the child to spend much more time with him on an unsupervised basis, although during the course of the interim hearing the father changed position and indicated reliance upon fresh minutes of orders, set out within Exhibit F1, providing for the child to continue spending supervised time with him for several hours each week supervised by the paternal grandmother.
By her Application in a Case filed on 3 May 2010, the mother wants the child to continue spending time with the father for only two hours per fortnight supervised at a contact centre.
It also needs to be observed that this interim hearing is necessitated by reason of each party resisting the matter being listed for final hearing before the Court as soon as possible.
A police investigation was launched into the mother’s allegations against the father, as a consequence of which the father was charged with various offences against both the mother and the child. The father has entered pleas of not guilty to all charges. He was recently arraigned before the District Court of New South Wales and he expects to be tried on those charges towards the end of 2010 or early 2011.
The father wishes to exercise his privilege against self-incrimination and not give evidence about the allegations of the mother in this Court before the conclusion of the criminal proceedings. The mother wishes to see the father successfully prosecuted for the criminal offences before this Court embarks upon any hearing, because she anticipates that convictions of the father upon one or more of her allegations will influence the outcome of these parenting proceedings. The parties therefore paradoxically want a just outcome from a truncated interim hearing, but not a comprehensive evaluation of the evidence at an early final hearing. The Independent Children’s Lawyer is complicit in that approach.
Procedure
The procedure for conducting an interim hearing has been authoritatively established by Goode & Goode (2006) 36 Fam LR 422. At paragraph 68 of that judgment, the Full Court said:
The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
At paragraph 74 of that judgment, the Full Court also said:
Because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.
Relevant findings of fact may only be made by the Court based on uncontentious evidence, of which there is very little in this case, or inferences that fairly arise from the available evidence, of which there are relatively few in this case.
Unfortunately, the parties in this case have disregarded authority and ignored the Family Law Rules. In breach of the Rules, the parties have each attempted to adduce in evidence a multiplicity of affidavits for themselves (see Rule 5.09(a)), and each has attempted to adduce such an amount of evidence and/or conducted the case at such length that it has been impossible to adhere to the usual time limit of two hours allocated to the hearing (see Rule 5.10(1)). The parties have also each sought to agitate as a contentious issue the reliability of the allegations made by the mother against the father of his sexual molestation of the child, when it is a sheer impossibility for the Court to make findings of fact about that issue in the absence of cross examination of the parties and the single expert, and the fulsome examination of the salient evidence in a full trial.
Evidence
In support of his Application in a Case filed on 8 April 2010, the father was permitted to read:
a)The affidavit of the father filed on 21 September 2009 (with the consent of the mother and Independent Children’s Lawyer);
b)The affidavit of the father filed on 10 March 2010;
c)The affidavit of the father filed 6 May 2010 (with the consent of the mother and the Independent Children’s Lawyer);
d)The affidavit of the paternal grandmother filed on 6 May 2010;
e)The Family Report prepared by the Family Consultant on 6 July 2009;
f)The report of the single expert, Dr R, dated 20 January 2010.
In support of her Application in a Case filed on 3 May 2010, the mother was permitted to read her affidavit filed on 3 May 2010.
In relation to each Application the Independent Children’s Lawyer read the affidavit of Ms B, the caseworker of the New South Wales Department of Human Services, previously filed by the Intervenor on 19 March 2010.
Allegations of Sexual Abuse
The mother says that in about March 2009 she observed the child to be acting in a sexualised way and to make a comment which tendered to causally connect the father to the child’s sexualised behaviour. The mother told the Family Consultant that she reported the incident to the Department of Human Services but that no investigation ensued. There were no further disclosures and no more sexualised behaviour exhibited by the child up until the time of the interviews with the Family Consultant in May 2009 (see Family Report, paragraphs 29-30).
The mother says that in September 2009 she observed the child to be acting in an identical sexualised way. In response to a leading question from the mother, the child said that the father had touched her in that way (see Expert Report, pages 4, 8). The maternal grandmother corroborates the child acting in a sexualised way (see Expert Report, pages 4, 12) and also attributes to the child suspicious statements about the father (see Expert Report, page 13).
The mother filed her Form 4 Notice of Child Abuse on 4 September 2009, which detailed the child’s complaint to her and the maternal grandmother that the father had touched her vulval area and that she was feeling discomfort in that area of her body.
The criminal charges pending against the father, according to the submissions made to this Court, have nothing to do with the allegations of child sexual abuse disclosed in the Form 4, or as discussed with the Family Consultant or single expert. The criminal charges relate to allegations of physical and sexual assault of the mother, and a single charge of physical assault in respect of the child.
By orders made in October 2009, Dr R was engaged as a single expert to investigate and report upon, among other things, the allegations of physical and sexual abuse of the child. The parties and child conferred with the expert in November 2009 and the expert prepared his report in January 2010. The expert is dismissive of the mother’s allegations of physical and/or sexual abuse of the child by the father. He considers that the child has been questioned inappropriately and extensively by the mother, and there was nothing about the child’s presentation which suggested that the allegations had any proper foundation. He concluded that the child is not at an unacceptable risk of harm from the father (see Expert Report, pages 19-20) and was prepared to characterise the mother’s allegations are spurious (see Expert Report, page 22).
The mother does not accept the conclusions of the expert witness and intends to challenge that witness in cross examination at the final hearing.
In the absence of the conflictual evidence being properly tested and evaluated, the Court is unable to reach any findings about the veracity of the mother’s allegations against the father.
Summary of Parenting Law
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA).
However, the presumption either does not apply or is rebutted in certain circumstances (ss 61DA(2), 61DA(3) and 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
Child’s Best Interests
In light of that summary of parenting law under Part VII of the Act, I will turn to consider the child’s best interests pursuant to s 60CC of the Act.
The child has a meaningful relationship with both parents. She has been observed by the Family Consultant and single expert to interact with the father in just as positive a way as she interacts with the mother. It is important to preserve the importance and value of the child’s relationship with the father, consistently with the implementation of measures to ameliorate any suggestion of her being at an unacceptable risk of harm with the father. Although the single expert is dismissive of such risk, the allegations of the mother and the maternal grandmother have not yet been fully evaluated. The Court should therefore be slow to reject the mother’s allegations at this interlocutory stage.
The child is too young to express any view which can influence the outcome of the proceedings. Her behaviour is a more reliable indicator of her feelings.
The father is willing to encourage the child’s relationship with the mother. If the mother’s allegations against the father are fabrications then she does not demonstrate a willingness to encourage the child’s relationship with the father. However, she does petition the Court for orders that the child continue to spend supervised time with the father to guard against the risk of physical or sexual assault. If her allegations against the father are either true, or honestly misconstrued, then her behaviour does demonstrate a level of commitment to the continued relationship between the child and father.
Although each party proposes different outcomes in respect of the time spent by the child with the father, they each press for orders in these interim proceedings for the child to live with the mother and to see the father on a regular basis. Excepting interruption between September and November 2009, that has been the regime since January 2009. There will be no significant change of circumstances for the child.
The parties each live on the Central Coast of New South Wales. There will be no practical difficulty or expense in the parties implementing the orders for the child to spend time with the father. According to the Family Consultant and single expert, in the main, each party has the capacity to adequately parent the child.
Despite the pending criminal prosecution against the father, in which it is alleged that the mother and child are both victims of his conduct, there is no evidence of any interim or final Apprehended Violence Order in existence involving either party or the child. If there is a relevant Apprehended Violence Order in force then the lawyers have failed in their duty to tender a copy in evidence, as required by s 60CF of the Act.
The paternal grandmother has been assessed by the Department of Human Services as a satisfactory supervisor of the time spent by the child with the father. That vindicates the agreement by the parties, at the time interim parenting orders were previously made in January 2009, that the paternal grandmother was a satisfactory supervisor.
The paternal grandmother has given evidence of her understanding of the role and her willingness to undertake it. The recent allegations by the mother suggesting the paternal grandmother’s unsuitability as a supervisor are largely refuted by the paternal grandmother. Although the father implies that the paternal grandmother failed in her supervisory duty on one occasion, on 1 March 2009, that dereliction pre-dated the paternal grandmother’s positive assessment as a supervisor by the Department of Human Services, and I am satisfied on the evidence that the paternal grandmother now has fresh insight into the obligations cast upon a supervisor.
I am inclined to act on agreed historical facts rather than on recent contentious and untested allegations in determining the disputed issue of the identity of a supervisor of the time to be spent by the child with the father.
Conclusions
The presumption of equal shared parental responsibility ought not apply on an interim basis, pursuant to the provisions of s 61DA(3) of the Act. That is because of the serious allegations of both physical and sexual abuse pending against the father which, if sustained, will mean that that presumption does not apply. It would be absurd to apply the presumption for an interim period in light of that important unresolved issue. For the time being, the parties will retain parental responsibility for the child as provided by s 61C of the Act.
Therefore, no occasion necessarily arises to consider the child spending equal time in each household, or substantial and significant time in the non-residential household. Neither party advocates for such an outcome. This dispute is much narrower and pertains only to the time spent by the child with the father.
Unless and until vindication of the single expert’s opinion that the mother’s allegations against the father are spurious, the Court should tread carefully and accord the mother’s allegations the gravity they deserve. They are indeed heinous allegations against the father and are properly described in that way by counsel appearing for the mother.
Both parties properly acknowledge that the child needs to continue seeing the father. Her relationship with him is important, valuable and significant to her. As counsel for the father ably pointed out, the single expert was of the view that continuation of restricted supervised time spent by the child with the father risks alienating the child from the father and the loss of her relationship with him. But the only measure that the Court can satisfactorily employ to guard against the alleged unacceptable risk posed by the father to the child is to ensure that the time spent by the child with the father is supervised.
I have concluded on the available evidence that the paternal grandmother is a suitable supervisor for that purpose.
The mother has not adduced any evidence to support her proposal that the child spend her supervised time with the father at a place called H Centre. The only evidence adduced by the mother is evidence which denigrates the paternal grandmother’s role as a suitable supervisor. There is no evidence before the Court about what steps would need to be taken to implement the child spending time with the father at the contact centre nominated by the mother, and no indication at all in the evidence as to what delays might be entailed in implementing the time spent at that centre.
In terms of the limited issues of the duration of time spent by the child with the father, whether that time should be supervised and, if so, by whom, I am satisfied that the orders I am about to announce will most adequately address the child’s best interests.
Given that the child will spend supervised time with the father on an interim basis, the parties were also at odds about the venue where changeovers would be implemented, in the event that the Court was not persuaded to accept the mother’s proposal of a contact centre.
It is abundantly plain from the evidence that the parties feel entrenched enmity towards one another. It would be advisable for any changeover venue to be a public place. I am satisfied that it would be inappropriate to require the parties to effect the changeovers at, or in the near vicinity of, their respective homes.
The evidence indicates that the parties have previously discussed through their solicitors the use of public venues such as the McDonalds Restaurant at U and the KFC Restaurant at G. In fact, the KFC Restaurant at G was a proposal put by the mother to the father as late as August 2009. That proposal was submitted by the mother to the father at a time which post-dated the allegations of physical abuse against the father, and also the initial allegations of sexual abuse of the child by the father, which were first made in March 2009. On balance, I am satisfied that the KFC Restaurant at G is an acceptable changeover venue.
For those reasons, I make the following orders.
I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.
Associate:
Date: 10 May 2010
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