W and D (No.1)
[2005] FMCAfam 21
•24 January 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & D (No. 1) | [2005] FMCAfam 21 |
| FAMILY LAW – Children – interim – suspension of contact – ss.75, 76, 79 Evidence Act – weight given to hearsay opinion evidence in interlocutory proceedings – allegations of abuse – supervised contact. |
Evidence Act 1995 (NSW), ss.75; 76; 79
Family Law Act 1975 (Cth), ss.60B; 65E; 68F
AM Cowling & JH Cowling [1998] FamCA 19
| Applicant: | AW |
| Respondent: | MD |
| File No: | PAM409 of 2004 |
| Delivered on: | 24 January 2005 |
| Delivered at: | Parramatta |
| Hearing date: | 24 January 2005 |
| Judgment of: | Emmett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Solicitors for the Respondent: | Ms Soloman, Marsdens Solicitors |
ORDERS
Pending Further Order:
Orders made on 1 February 2002 are suspended save for Orders 1, 2, 3, 4 and 6.
Orders 1 and 2 of Orders made on 23 September 2004 are suspended.
The Respondent father have contact with the children, KD, JD and MDD (“the Children”), each Saturday only between 10.00am and 3.30pm at the Respondent father’s residence commencing 30 January 2005.
For the purposes of contact the Applicant mother is to deliver the Children to the Respondent father’s residence at 10.00am Saturday and the Respondent father is to deliver the Children to the Applicant mother’s residence by 3.30pm Saturday.
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 Annexure A and these particulars are included in these Orders.
THE COURT FURTHER ORDERS THAT:
The matter is hereby transferred to the Family Court of Australia at Parramatta and I request that the matter be listed in the Deputy Registrars list on 3 February 2005 at 9.45am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM409 of 2004
| AW |
Applicant
And
| MD |
Respondent
REASONS FOR JUDGMENT
The Applicant mother seeks Orders suspending contact of three Children, KD, JD and MDD (“the Children”) with the Respondent father pending further Order.
Orders were made on 1 February 2002 providing the Respondent father with, inter alia, alternate weekend contact and half school holiday contact. The Respondent father last had contact with the Children on Christmas Day.
The Applicant mother relies on her Affidavit sworn 23 December 2004.
The Respondent father relies on his Affidavit sworn 17 January, 2005.
In October 2004, due to behavioural difficulties, the Applicant mother took the child KD to see a paediatrician, Dr Westfaphalin who the Applicant mother said was looking for signs of Attention Deficit Disorder (“ADD”) but that he could not detect any.
On 10 December 2004 the Applicant mother was told by the Principal of the school attended by KD that he was no longer able to be at school because he was a risk to his teachers and his peers and that Dr Westfaphalin should be contacted again.
On 14 December 2004 the Applicant mother spoke again with Dr Westfaphalin who suggested that the Applicant mother arrange for Kristofer to see a psychologist, Stephanie Duvall.
The Applicant mother had a meeting with Ms Duvall on 15 December 2004 and took KD and JD to see her on 21 December 2004. Following this interview, Ms Duvall told the Applicant mother that she had grave fears for the boys, that she had put in a report to Department of Community Services (“DOCS”) and that it seemed to her that the problems the boys told her about are coming from the Respondent father’s home. In particular Ms Duvall stated in reference to the Respondent father that:
“ he is, in this situation, a perpetrator”.
There was no further evidence provided by the Applicant mother as to what the problems may be or the content of any report to DOCS.
On 22 December 2004 the Applicant mother and her partner attended Ms Duvall at which time Ms Duvall told the Applicant mother that she was concerned about KD and that he had very poor social skills or had been abused. In response the Applicant mother said she saw KD as being very social to which Ms Duval then said:
“Maybe then, he has been in a very abusive situation”.
The Applicant mother said that at the end of the interview Ms Duvall told her that she was going to ring DOCS again and stress her concerns. Ms Duvall later that day told the Applicant mother that she had spoken with DOCS who had put the matter on a high priority list.
I note that the Principal of KD’s school, on the Applicant mother mother’s evidence, was not prepared to continue to have him at school as he is a risk for the teachers and his peers. Such conduct in a 7 year old is anything but evidence of social skills.
Accordingly, I am extremely concerned about the Applicant mother’s response to Ms Duvall that KD was very social.
It was only following the Applicant mother’s assurance to Ms Duvall that she sees KD as:
“ being very social”
that Ms Duvall responded:
“Maybe then he has been a very abusive situation” .
In those circumstances, I place no weight on Ms Duvall’s conclusion that KD has been in a very abusive situation if her conclusion was based on the fact that he is otherwise very social and does not have very poor social skills.
I note that the Children stayed with the Respondent father on
21 December 2004 having been dropped there by the Applicant mother. The Applicant mother deposes that when asked by the Children how many nights they would be staying with the Applicant Respondent father she replied about 10 to which MDD said he only wanted to stay for one night.
It seem extraordinary to me that if the Applicant mother was so concerned about the possibility of abuse by the Respondent father, that she would deliver the Children to the Respondent father on
21 December without comment to him.
There is no evidence by the Applicant mother of any attempt by her to discuss with the Respondent father the interviews with Ms Duvall or even that she informed the Respondent father of any concerns expressed by Ms Duvall, nor that she was intending to see Ms Duvall the following day to discuss these concerns.
It would appear that the Respondent father was not given any opportunity by the Applicant mother to participate in or obtain feedback from any sessions involving the Children and Ms Duvall. Ms Duvall also expressed concern about what she says the boys KD and JD had told her was coming from the Respondent father’s home and from which she concluded that the Respondent father is a perpetrator.
It would appear from the Respondent Applicant mother’s Affidavit that Ms Duvall based that conclusion on the fact that JD told her that he has a hiding spot at his Respondent father’s house, that he goes there every time he’s in trouble so his Respondent father can’t get him and that he is always in trouble and gets the blame for everything. It is difficult to distil from this evidence what conduct of the Respondent father was of such “grave concern” to Ms Duvall.
The Applicant mother filed her Application on 23 December 2004.
However, I note again there is no evidence before me as to any further discussion that the Applicant mother had with the Respondent father about her discussions with Ms Duvall or the circumstances in which she collected the Children on Christmas Day. I can only assume that despite the concerns expressed to her by Ms Duvall only days earlier contact occurred on Christmas Day in accordance with the original Orders. Thereafter contact ceased.
On 30 December 2004 the Applicant mother filed a Notice of Child Abuse.
The Applicant mother submits that because Ms Duvall, being a psychologist, identified to the Applicant mother the concerns that she has in respect of the child KD and indeed also JD, that she had no option other than to bring the Application to suspend contact.
Further, the Applicant mother submits that on the evidence, whilst unproven, an unacceptable risk would exist if the Children were to continue to have contact with the Respondent father, the Applicant mother having been advised by a health professional, Ms Duvall, of her grave concerns about the possibility of abuse by the Respondent father.
The Respondent father denies absolutely any abuse of any of the Children however he acknowledges the behavioural difficulties of KD.
The Respondent father states in his Affidavit that on 9 December 2004 the Applicant mother telephoned him and told him that she was concerned that the school principal had smacked KD and that she was considering the possibility of a formal complaint. The Respondent father further deposed that on 14 December 2004 the Applicant mother told him that she had spoken with the Counsellor and the Principal about the incident with KD. The Respondent father said that during that same conversation the Applicant mother told him that she was intending to consult a pediatrician and that the Principal and School Counsellor had also advised her to do so.
The Applicant mother said that the Respondent father told her that MDD had an accident in the bath and the Respondent father, in his Affidavit, agreed that the MDD had fallen twice whilst in his care.
The Respondent father was prepared to agree to supervised contact pending the hearing and proposed that contact occur between 10 and 2 each Saturday and Sunday at the Respondent father’s residence and, if necessary, in the presence of Michael Cleary as supervisor.
I raised with the Applicant mother at the outset of the hearing the concerns I had about the admissibility or weight of the evidence of the Applicant mother in respect of what she said she was told by Ms Duvall given there was no evidence to satisfy me of the expertise, qualifications or experience of Ms Duvall.
Whilst s.75 of the Evidence Act allows for the admission of hearsay evidence in interlocutory proceedings as long as the party adducing the evidence also adduces evidence of its source, ss.76 and 79 still need to be addressed where the hearsay evidence is in the nature of opinion evidence.
Relevantly, s.76 says that opinion evidence is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Section 79 states that: “If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.” However, the Respondent father did not object to the evidence of the Applicant mother of what Ms Duvall told her and the evidence was admitted subject to weight.
I told the Applicant mother that there was no evidence to properly qualify Ms Duvall, no evidence of what she may have reported to DOCS and no evidence of any treatment plan. The Applicant mother’s Counsel said the Applicant mother relied on the inference of expertise arising from Dr Westfaphalin’s referral. However, the Applicant mother’s evidence was not of a referral to Ms Duvall directly but a recommendation to a child psychologist.
Again, I expressed concern at the lack of weight in the circumstances that I was of the view was able to placed on what the Applicant mother said Ms Duvall told her.
The Applicant mother declined an offer from me to adjourn the proceeding in order to address by way of further evidence the concerns I had expressed in respect of the Applicant mother’s evidence of what she was told by Ms Duvall.
There is no evidence before me from Dr Westfaphalin or Ms Duvall as to any opinions or treatment that either may have recommended. Further, there is no evidence that Dr Westfaphalin, a pediatrician, and someone whom KD saw particularly for his behavioural difficulties having been referred by the Principal of his school and his family doctor, made expressed any concerns about the possibility that KD may be suffering abuse, rather that he may have ADD.
The Applicant mother also referred to two earlier instances that caused her concern today about the conduct of the Respondent father although there is no evidence of any earlier complaint by her of that conduct.
I also note that in March 2004 JD told his Applicant mother that:
“Daddy smacked me and wouldn’t stop”.
The Applicant mother’s mother, in her Affidavit, also annexes photographs of MDD, the 4 year old, depicting bruises that she said were occasioned during visits with his Respondent father in June 2004.
I am concerned that both the smacking incident in March 2004 and the bath incident in June 2004 did not seem to cause the Applicant mother any concern at the time, although the Applicant mother relies on these incidents as evidence of her allegations of abuse by the Respondent father.
However, having regard to the evidence before me that the Applicant mother has reason to believe:-
a)there are obviously some difficulties with KD;
b)the fact that Ms Duvall expressed to the Applicant mother the view that some problems may be coming from the Respondent father’s home; and
c)that the Children may be at risk with their Respondent father given what the Applicant mother says she was told by Ms Duvall,
it is relevant to consider the Applicant mother’s state of mind as it affects her mothering ability in determining what orders should be made in the interests of the Children. In those circumstances, I am satisfied that any fear held by the Applicant mother is not irrationally based. However, the evidence on which she bases her fear I find not to be sufficient evidence, even in interlocutory proceedings that the Children are at an unacceptable level of risk that warrants suspension of contact with their Respondent father.
Against the impact of the Applicant mother’s attitude to the Respondent father upon the Children, it is relevant to have regard to the importance and benefit to the Children of regular contact with their Respondent father, subject to any unacceptable risk. It is easy to say no risk to Children is acceptable. However, I have regard to the sad history of the relationship between these parties as reflected in the numerous times they have been before courts. This is the third application before me in 6 months and there have been many others before that. It is difficult to conclude otherwise than that it must be extremely damaging for the Children to be so continuously exposed to such conflict between their parents.
It goes without saying that the welfare of the Children is of paramount consideration. I have considered particularly ss.60B, 65E, 68F of the Family Law Act and the principles in AM Cowling & JH Cowling [1998] FamCA 19 in determining what orders are in the best interests of the Children. In seeking to manage the Applicant mother’s fears, I am of the view that it is in the Children’s best interests in the short term to have some limited contact only with their Respondent father pending final determination of these matters.
I also have particular regard to the fact that there is no evidence that the Children to not wish to have contact with their Respondent father. The only relevant evidence of the Applicant mother is what she says the MDD said to her on 21 December, 2004 about preferring to stay only one night with his Respondent father rather than 10 nights. There is no evidence of anything being said by either of the other two boys to the Applicant mother about not wanting to have contact with their Respondent father. I also have regard to the regular contact that has otherwise taken place to date between the Children and their Respondent father. Further, I have regard to the absence of any evidence of Dr Westfaphalin or any concern of abuse of KD despite seeing him on several occasions.
In considering what contact is appropriate I also have regard to whether it is necessary to supervise any such contact. It is relevant it seems to me in that determination to consider the duration and frequency of the contact. The longer and more frequent the contact the greater would be the fear of the Applicant mother and the greater the need may be to provide supervision to provide some comfort to the Applicant mother. Both parties were asked whether there was a suitable supervisor. The Applicant mother suggested no-one. The Respondent father called Mr Michael Cleary to give evidence as to his suitability as a supervisor. Mr Cleary has been supporting the Respondent father over the last 3 to 4 years during litigation between the parties and describes himself as a core member of a Respondent father’s Support Network. He is opposed by the Applicant mother as a supervisor.
I do not propose to make any finding about his suitability as I am of the view that unsupervised contact each Saturday from 10am to 2pm is an appropriate balance and in the best interests of the Children. This will allow the Children to continue and maintain contact with their Respondent father and yet is a sufficiently contained period of time and does not include overnight contact that the Applicant mother ought to derive some comfort in the short term until the matter can be finally determined.
Subsequent to making the Orders for 4 hours contact each Saturday, the Respondent father submitted that if he was to deliver the Children home at the end of contact he would lose 1½ hours with the Children in travel time. Rather than collect the Children from the Respondent father’s residence at the conclusion of contact, the Applicant mother agreed to the contact time being extended from 10am until 3.30pm on the basis that she would deliver the Children to the Respondent father at the commencement of contact and the Respondent father would deliver the Children home to her at the conclusion of contact.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 28 January 2005
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