WALKEN & BODERT

[2010] FamCA 123

FAMILY COURT OF AUSTRALIA

WALKEN & BODERT [2010] FamCA 123

FAMILY LAW – CHILDREN – Best interests of the child – Consent to equal shared parental responsibility – Parties reside in Queensland and New South Wales – What time the children should spend – Teenage children – What weight to give to the children’s views

FAMILY LAW – EVIDENCE – Allegation of sexual abuse – Where alleged conduct said to occur in significant past – Standard of proof in civil proceedings – Whether unacceptable risk to the child in having contact with a member of the father’s family

HELD – No evidence to suggest there is an unacceptable risk to the child in spending time with a particular member of the father’s family – Children will spend half school holidays with their mother, subject to any contrary views they might express – Costs of travel for children spending time with their mother in New South Wales to be borne equally by the parties – Passports in possession of mother to be returned to the father by consent

Evidence Act 1995 (Cth) ss 140(1), 140(2)
Family Law Act 1975 (Cth): ss 60CA, 60CC(2), 60CC(3), 65DAA(1), 65DAA(2)

B & B [1988] HCA 66
Briginshaw v Briginshaw (1938) 60 CLR 336
Kings & Murray [2009] FamCA 565
M & M (1988) 166 CLR 69

APPLICANT: Mr Walken

RESPONDENT: Ms Bodert

FILE NUMBER: BRC 6132 of 2008

DATE DELIVERED: 10 February 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 10 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P. Lyndon

SOLICITOR FOR THE APPLICANT: Watts McCray McGuinness Eley

COUNSEL FOR THE RESPONDENT: Self-represented litigant

Orders

1. The young people C born …July 1994, and A, born … February 1996, will live with their father.

2. The children’s parents will have joint shared parental responsibility for the children.

3. a.     The children will spend up to one half of each of the school holidays with their mother however it will be a matter for the children to determine whether in relation to any particular school holidays they or either of them will spend that time with their mother.

   b.      If the children decide they will not spend one half of school holidays with their mother then they will give her not less than one month’s notice of their intention not to spend the time with her.

4. Additionally the children may spend time with their mother and their father will facilitate it if their mother travels, at her own expense, to Queensland provided that the father receives reasonable notice thereof and the children consent to the time that they will spend with their mother. 

5. The mother’s application for an injunction to prevent the children, and in particular C, spending time with Ms M Walken is dismissed. 

6. The mother will hand to the father’s lawyer, Ms Lyndon, today upon the conclusion of these proceedings the passports for the children.

7. a.     I direct that in relation to any period in which the children spend time with their mother pursuant to Order 3 each of the parents will pay one half of the costs of the children’s travel.

   b.      During the time the children are living with their mother the mother will pay for their normal living expenses.

8. While I do not formally reserve leave to either parent to apply to vary the question of the costs of the children’s travel in relation to the time they spend with their mother, I note that it would be expected that at the end of the mother’s period of study, she will be in a better position to contribute and either of the parties may, in such circumstances, file a new application relating to that matter if it is appropriate to do so.

9. The matter is finalised and is removed from the pending cases inventory.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

File Number:  BRC 6132 of 2008

MR WALKEN

Applicant

And

MS BODERT

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings before me relate to the children, C, born in July 1994, and A, born in February 1996.  The circumstances about the children are not significantly in controversy and there is nothing that I need to say by way of background, except that they had lived principally with their mother until the end of 2009 when they went, in difficult circumstances, to live with their father.

2. Subsequently, I arranged for them to be interviewed by a Family Consultant from the Brisbane Registry of the Family Court of Australia and as a result of that report the parents arrived at certain decisions.  These included the fact that the children would live primarily with their father, in accordance with their wishes, and each of the parents was agreed the children should spend time with their mother. The extent and quantity of that time and who pays to facilitate it, are matters that have been, and still are to some extent, in issue.

3. Towards the end of 2009, after the Less Adversarial Trial had been proceeding on a number of occasions before the Court, I made orders which facilitated C and A seeing their mother over the Christmas period.  This meant, in those circumstances, that she would travel to Brisbane and spend time with them on days in public places.  This met with the requests and the requirements of the young people and permitted what the mother wanted, which was that she should have an opportunity of spending time with them with her younger daughter, R, who is not relevant, except in that sense, to these proceedings.

The issues for determination

1. When the matter came back before me today after that time having occurred and my having received an affidavit which reported in part about that from the father, I was informed that there were four issues and it appears that those four issues are the matters that still require some resolution. 

2. The first is the extent of the time that the children spend with their mother.  The second was whether or not I should continue previous orders that involved ensuring that Ms M Walken, who is the father's step-daughter, not be brought into contact with C.  This arose out of an allegation, which was clearly believed by the mother, that when C was young (a little over four) he had been in some way sexually molested by M.  She was a relatively young teenager, somewhere between the ages of 13 and 15 years.  That was never the subject of any criminal proceedings or indeed any judicial determination in any Court, and I will return to the consequences of that in due course. 

3. The third issue related to the father’s desire to seek the return of the children's passports, which have been in the mother’s possession.  I note that she says she has the passports with her in court today. I propose to make an order in due course that they be surrendered to the father’s lawyer. 

4. Finally, there was an issue relating to the costs of travel.  This arose because there had been some confusion about whether or not there was to be a reversal of previous orders which had involved when the children were primarily living with the mother that the father paid for costs associated with the time that they would spend with him.

5. The father’s position is that any time that the children spend with their mother should be at their mother's cost.  The mother's position is that either the father should pay for it or the costs should be shared equally.  

6. I will deal with the issues in this way. 

The legislative pathway: the best interests of the child

1. The Family Law Act 1975 (Cth) prescribes that in deciding whether to make a parenting order in relation to a child, I must make a determination regarding the best interests of the children as the paramount consideration.[1]  The parties are agreed that they will share equally parental responsibility. Accordingly, in such circumstances, I am obliged to consider whether it would be appropriate for the children to spend equal time with each of the parents,[2] or substantial and significant time with each of the parents.[3]

   [1] Family Law Act 1975 (Cth) s 60CA.

   [2] Family Law Act 1975 (Cth) s 65DAA(1).

   [3] Family Law Act 1975 (Cth) s 65DAA(2).

2. This is not a matter that I need to spend a lot of time dealing with because equal time is completely impracticable because of the geographic location of the parents and because the parents themselves are not seeking orders of that sort.  What the mother seeks in relation to the time the children spend with her is that they should spend one half of the school holidays, if that is what they want.

3. This is a proper acknowledgement by her and by the children's father that the children are of an age where substantially they will make their own determinations about what they want to do about the time they spend with each parent. Indeed, if there were orders imposed on them which were not subject, at least in part, to their consent, it would mean that the orders may never have any effect given their ages and the ability they have, in effect, “to vote with their feet.”

4. In determining what is to be regarded as the children's best interests, I must have regard to a number of matters under the Family Law Act 1975 (Cth), and in particular my primary considerations are the benefit to the children of having a meaningful relationship with both of their parents,[4] and the need to protect the young people in this case from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.[5] This, in part, it is suggested by the mother, is the reason for her seeking an injunction restraining the young people from being brought into contact, (in particular C,) from being brought into contact with M Walken. 

   [4] Family Law Act 1975 (Cth) s 60CC(2)(a).

   [5] Family Law Act 1975 (Cth) s 60CC(2)(b).

5. The additional considerations I am to take account of include the views expressed by the children.[6] I am satisfied in this matter from the evidence from the Family Consultant and from the acceptance (appropriately) of the parents of the importance of the children's wishes, that I should give way to those considerations and that means, in effect, that they should be able to determine whether or not they are going to spend time with their mother.

   [6] Family Law Act 1975 (Cth) s 60CC(3)(a).

6. I am satisfied also that there is an appropriate relationship between each of the young people and each of their parents.[7]  This is, and has been, a variable relationship in the sense that there have been differences between each of the parents and the children in the past, and more recently between the children and their mother.  However, there is no doubt from the family report and from the account of the father about the time the children spend with the mother that there is a relationship and that relationship should become, so far as it is possible to do so, a “meaningful relationship” in accordance with the primary considerations I am obliged to take into account.

   [7] Family Law Act 1975 (Cth) s 60CC(3)(b)(i).

7. Each of the parents is willing to facilitate a continuing relationship between the young people and the other parent.[8]  This is significantly prescribed, defined and restricted in this case because of the respective financial circumstances of each of the parents and the distance they live apart from each other.  In this regard, I accept that neither of the parents is particularly well‑off.  I accept that in the past when the children spent time with their father, their father was the one who made the contribution; however, at that time he was earning significantly more money than he is at present.

   [8] Family Law Act 1975 (Cth) s 60CC(3)(c).

8. Equally, the mother was previously earned significantly more money than she does at present. The mother is now a full-time student and will be for the course of the next year.  This means, in effect, that neither parent has sufficient funds to facilitate regular visits between the children and the mother or, alternatively, the mother and the children.  Nevertheless, I will make an order in due course about the way in which this would occur and I am satisfied that although it is a point of contention between the parties, it does not illustrate on the part of either of them, that he or she is unwilling to facilitate and encourage a continuing relationship between the young people and the other parent.

9. There are practical difficulties and expense about the time the children will spend and communicate with their mother,[9] however, these are factors that will have to be just overcome in the course of the next few years given the factors I have previously mentioned. I am satisfied that each of the parents has an ability to, and wishes to, contribute to providing for the needs of the young people, including their emotional and intellectual needs.[10]  I suspect that they would have different views about which way that would occur in each case and what are the more important and crucial elements. But I am satisfied that each of them has that capacity.

   [9] Family Law Act 1975 (Cth) s 60CC(3)(e).

   [10] Family Law Act 1975 (Cth) s 60CC(3)(f)(i).

10. The attitude of each of the parents to the young people and to their responsibility as parents[11] is a matter that has been fraught with contention over the years but which seems to now have settled into an acceptance of the present arrangements as being appropriate.  I am not satisfied there are any issues of family violence,[12] other than the matter to which I will turn to in a moment, which would impact upon the sorts of orders that I might reasonably make.

    [11] Family Law Act 1975 (Cth) s 60CC(3)(i).

    [12] Family Law Act 1975 (Cth) s 60CC(3)(j).

Allegation of sexual abuse

1. The issue that has occupied and preoccupied to some extent the mother over a protracted period, is the fact that she believes implicitly that C, when he was very little, had been sexually molested by M Walken.  This has not been the subject of detailed evidence before me on this occasion.  I do have the benefit of Exhibit ‘M1’ being a report from the child care centre which relates some sexualised activity on the part of C at that point, when he was quite little.

2. I am satisfied that there were investigations of this both by the police and by other professional units, whether it was the Sexual Assault and Child Abuse Team or the Child at Risk Assessment Unit is probably not relevant.  Owing to age of both children, apparently it was decided no proceedings would be undertaken and so it is difficult to see whether or not there would have been a specific finding in a criminal sense about what had occurred.  Equally, there were no proceedings that were the subject of judicial determination in this Court as the matter was resolved, in part, by consent on the basis that the father agreed that he would keep M away from C.

3. On the evidence as it is, it is difficult for me to come to any conclusion in any satisfactory way about precisely what happened. Section 140(1) of the Evidence Act 1995 (Cth) requires that the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[13] In making such a determination, the gravity of the matters alleged may also be taken into account.[14]  In a civil proceeding involving a serious allegation such as this, I am also required to consider the evidentiary standard commonly referred to as the “Briginshaw standard”, named after the case of Briginshaw v Briginshaw[15] determined by the High Court of Australia. 

   [13] Evidence Act 1995 (Cth) s 140(1).

   [14] Evidence Act 1995 (Cth) s 140(2).

   [15] Briginshaw v Briginshaw (1938) 60 CLR 336.

4. I recently considered the law in relation to the evidentiary standard in the matter of Kings & Murray.[16]  I do not purport to quote from either of those cases as it is unnecessary but it is probably significant to say that it is important that if I were to make a finding based on the evidence that I would have to feel a sense of certainty that something had occurred.  Obviously, if I felt absolutely certain, then it would not be a difficult matter at all. In circumstances, however, where there is no conclusive evidence, I cannot simply come to a conclusion by weighing in a mechanical way the probabilities that something may have happened.  I need to feel certain to a substantial degree or have some sense of conviction that something has happened.

   [16] Kings & Murray [2009] FamCA 565, [7] to [9].

5. In this matter, I could not possibly feel that way about what had occurred so many years ago, based on the evidence I have before me.  I need to consider whether, at this point, there would be an unacceptable risk to C if he were exposed to contact with M Walken.

6. I think there are a number of considerations I should take into account.  In this regard the first point is, of course, that no one can be certain about what will happen in any circumstances in life.  Hence it is not the case that I could make a finding either positively or negatively that nothing will happen to C.

7. The High Court of Australia in M & M,[17] (which was a parallel decision with B & B[18] decided at about the same time on a substantially similar issue), considered questions of child abuse in a number of different ways.  Essentially, the High Court made it clear that if a court was unable to come to any conclusion about whether or not abuse had occurred, or even if it were to determine that abuse had occurred, it should make orders that would, in the circumstances, not impose upon the children involved to any “unacceptable risk” of being exposed again to abuse.

   [17] M & M (1988) 166 CLR 69.

   [18] B & B [1988] HCA 66.

8. There are two parts to that phrase, one is "unacceptable" and the other is "risk."  There is always a risk in life in almost anything that is undertaken. To some extent the degree of risk depends upon the circumstances.  If, for example, one were to stand in the middle of a road at midnight and the road happened to be a road in the middle of the country, the chances of being run over are relatively remote.  Standing in the middle of the road on a busy highway in the middle of the day would raise a very distinct possibility that one would be run over. 

9. In both cases, the consequence of the risk are identical.  It is the likelihood of the occurrence of the risk coming to fruition which is in question. In the first case, the risk would probably not be an unacceptable risk.  In the second it probably would. 

10. The same sorts of things apply in a situation like this, and it is important that I perhaps outline my reasons for saying, in my opinion, there is no unacceptable risk in C having contact with M Walken. If C were younger than the nearly 16 years he presently is, then it may be possible that a determined person, be it male or female, might overbear his will and reason and thereby inflict on him some form of assault, whether it be physical or sexual.

11. It is possible that a woman of determination could effect a rape on a man and I do not doubt, as it was submitted by the mother, that could occur.  In circumstances such as this, however, where there is no evidence of any recent suggestion that M Walken has engaged in any inappropriate or predatory sexual activity with younger people – let alone upon a boy such as C – in another few months he is going to be of an age where he can give consent to sexual contact, in a statutory sense, it seems to me improbable, not impossible, but certainly highly improbable that there could be an incident in which M Walken would impose her will on C to the extent that he be obliged to have some form of sexual congress or some sexual activity with her, contrary to his will.

12. I am also satisfied that he is of an age, and I have looked carefully at the family report from the family consultant, that he is able to express himself effectively and reasonably, and that if he felt any concerns about any predatory activity of any person, be it M Walken or any other person, he would be able to reflect on that to his father or to his mother or to both and that he would be able, in such a way, to ensure that he was not exposed to any unacceptable risk.

1. Accordingly, in my opinion, the injunction sought by the mother is inappropriate and unnecessary, although I understand the reasons why she wants it. 

Time to be spent with each of the children and their parents and the cost of travel

1. I turn now to the question of the time the children are to spend with their mother and also the cost of that travel.  The parties both accept that the children will substantially determine what time they will spend with their mother.

2. The mother seeks that there should be an order that they should spend one half of each of the school holidays with her, but this should be subject to their consent.  It seems to me that it is reasonable that I should provide some sort of guidance to the children about the sort of the time which might be appropriate for them to spend with their mother.  Again, it seems important to me that this should be subject to their being able to decline to spend that time if they do not want to do so.

3. In such circumstances, if I am to impose an order, as I discussed with both parties in open court, that the children would spend up to one half of all of the school holidays with their mother but such that this would be in accordance with their wishes and that if they did not wish to spend such time with their mother they would give reasonable notice to her in advance, then it seems to me to fulfil both the considerations that I am obliged to take into account to support the relationship between the young people and their mother and also to provide some guidance and a default mechanism.

4. The cost of the children or the mother's transport to see them is a vexed question.  The mother claims that as a full-time student.  She has the benefit of accommodation she has purchased, but this is certainly not luxurious accommodation.  She gave evidence that she has very little money in the bank and she has a debt.  The father says he has very little money left over because he has had to restrict his working hours as a result of the children coming to live with him, and that he has to pay out significant sums on their behalf.

5. Both of the parties’ respective circumstances were in a better state a little while ago, however, there is no point in looking back on what might have been, or what was. We must consider will be for the future.  In my opinion, it is appropriate that both parents contribute, at least in part, to the cost of travel.  I think in the circumstances that it should be on the basis that each of them pays one half of the cost of such travel.  I accept that this imposes a difficulty in relation to both the father and the mother, but it seems to me to be the only fair way to proceed.

6. I recognise that at the end of 2010, if the mother has achieved what she intends to do with her studies, then she may well be in a better position to contribute more significantly and it would be fair, particularly as in the past, she insisted that the time that the children spend with their father had to be funded by him in circumstances where she was earning more money that she should then move to a situation in which she contributes significantly more than is the case here.

7. It also seems to me that if the mother wants to, or is able to, see the children in Queensland, and there is agreement between her and the children, then the father should facilitate that time with her if she is able to get there using her own resources.

8. I note that the passports are to be returned, and I am grateful for the mother's cooperation in this matter.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  24 February 2010