Weinberg and Weinberg

[2010] FamCA 1253

FAMILY COURT OF AUSTRALIA

WEINBERG & WEINBERG [2010] FamCA 1253

FAMILY LAW – CHILDREN – With whom a child spends time – Supervision

APPLICANT: Ms Weinberg

RESPONDENT: Mr Weinberg

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 4857 of 2009

DATE DELIVERED: 15 December 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ashcroft of Counsel

SOLICITOR FOR THE APPLICANT: Hayley Ritchie, Solicitors

COUNSEL FOR THE RESPONDENT: Mr Sara of Counsel

SOLICITOR FOR THE RESPONDENT: Quinn & Scattini, Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. That all previous Orders be discharged.

Where the children shall live & Parental Responsibility

1. That the children, K born … September 2004 and C born … November 1999 live with the mother.

2. That the mother have sole parental responsibility for the major long term issues of the children.

3. That the mother is to keep the father informed of any decisions made in the exercise of her parental responsibility with respect to K.  The types of decisions about which the mother is to inform the father include changing the school of the child and a significant medical intervention for the child.

Time with the Father

1. That father shall spend with the child, K, at all such reasonable times as may be facilitated by a supervisor agreed between the parties and failing agreement as to a supervisor as follows:-

   5.1.Each second weekend at times nominated by the Contact Centre and with such contact to occur at the E Children’s Contact Centre in the first instance and, when a place is available, then at the N Children’s Contact Centre (with time being suspended at E once N is available).

   5.2.Or upon the parties giving to the Independent Children’s Lawyer the names of three potential supervisors each and the parties failing to agree on a supervisor then the Independent Children’s Lawyer is then empowered to interview the potential supervisors and determine whom in their opinion they consider is a fit and suitable person to supervise the time the father spends with the children.

   5.3.Should a supervisor be appointed by the Independent Children’s Lawyer in accordance with Order 5.2 above, then the time the father spend with the child K be extended from 9.am to 4.00pm on Saturday.

2. The father shall communicate with the child K, by telephone, each Monday, Wednesday and Friday between 5 and 5:30pm with the father to initiate the call and with the mother to:

   6.1.ensure that the child is available to receive the telephone call;

   6.2.arrange for the child to telephone her father on the following night if, for any unforeseen circumstance, the child misses the telephone call from her father;

   6.3.ensure that the child has privacy during the conversation.

3. That the child C spend time and communicate with the respondent every fourth weekend to coincide with time that K spends with her father and that C be at liberty to join K for some or all of her other time with her father according to C’s wishes.

4. The children shall be permitted to communicate with their parents on the telephone at such times as a child reasonably requests and that parent shall facilitate the call.

5. Each party shall:

   9.1.contact the N Children’s Contact Centre (“the N Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervised time;

   9.2.attend the assessment;

   9.3.comply with any appointments made by the E and the N Contact Centre for supervised time;

   9.4.comply with all reasonable rules of the E and the N Contact Centre; and

   9.5.comply with all reasonable requests or directions of the staff of the E and the N Contact Centre.

6. Until the N Contact Centre is able or willing to provide supervision of time as set out in Order 5.1 then contact is to remain at the E Contact Centre unless otherwise agreed between the parties subject to Order 5.2 of these Orders.

7. The mother shall cause a responsible adult known to the child and nominated beforehand in writing to the Contact Centre to deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.

8. In the event that the Contact Centre offers supervised time only at times which are less regular than specified in Order 5.1 then time will be spent at the times which are offered by the Contact Centre.

9. Time under Order 5.1 is to be supervised by the Contact Centre and the father shall pay all the fees charged by the Contact Centre for each occasion of supervision including any intake fees in respect to both parties.

10. The father shall not attend the Contact Centre or its vicinity before the time with the child is to start and shall promptly leave the Contact Centre and the vicinity when the time with the child is to end.

11. The period of time to be spent provided for in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, time will be spent at times when the services can be provided by the Contact Centre.

Travel

1. That Orders 1 and 2 of the Orders made on 16^th September 2009 be discharged and the children’s names be immediately removed from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and for this purpose the Solicitors for the mother forthwith notify the Australian Federal Police and provide them with a copy of the Orders made.

2. That the mother and father deposit the child, K’s, passport with the Registrar of the Family Court who is hereby authorised to release the passports to either parent only upon receiving written consent from both parents or by order of this Court.

3. That if either parent proposes to take the child, K, for a holiday outside of Australia, they must provide to the other parent no less than two (2) months in advance a draft itinerary of the proposed travel, and provide no less than one (1) month in advance a detailed itinerary of the proposed travel including details of the departure and return dates, flight numbers, accommodation details and copies of the relevant airplane tickets. Upon receiving this information, the other parent is not to unreasonably withhold their consent to release the passports. 

4. If the passport is released to either parent:

   19.1.Then that parent shall hold the child, K’s, passport on their undertaking to use such for the purposes of holiday visit with notice to be provided to the other parent in accordance with the Order 18.

   19.2.That parent is to deposit the child’s passport with the Registrar of the Family Court within seven (7) days of returning from the holiday outside of Australia.

5. If either parent fails to consent to the release of the passport, the other parent is at liberty to file an application in the Family Court seeking the release of the passport.

Exchange of Information

1. That the Mother and Father shall:

   21.1.keep the other parent informed at all times of their residential address and contact telephone number;

   21.2.keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child, K, and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;

   21.3.inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child, K, and authorise any treating medical practitioner to release the children’s medical information to the other parent.

2. That the parents authorise the schools or day care centres attended by the child, K, to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).

3. That during the time the children are with either parent, that parent shall:

   23.1.respect the privacy of the other parent and not question the children about the personal life of the other parent;

   23.2.speak of the other parent respectfully;

   23.3.not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

   23.4.refrain from discussing any issues in dispute between the parents, with the children, or allowing a third party to do so.

   23.5.refrain from allowing the children directly or indirectly to read, copy or view any other Court documents or Court Orders prepared in these proceedings or allow any other person to do so.

Other

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

2. The matter be adjourned to a date to be fixed subsequent to the father’s criminal proceedings being determined.

3. Prior to the matter being relisted it is requested that pursuant to Section 62G of the Family Law Act, a short family report be prepared for the Court by Family Consultant Ms B or by a Family Consultant nominated by the Director of the Child Dispute Service.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4857 of 2008

MS WEINBERG

Applicant

And

MR WEINBERG

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Weinberg for parenting orders in relation, as she says, to one child of her relationship with the respondent, Mr Weinberg.  The respondent has replied or responded to the application seeking orders in relation to not only the child, which is his and the applicant’s child, that is K, but also in relation to a child by the name of C, who is in fact not the biological child of the father, but is the child of one Mr M, who is resident in New Zealand and has little contact with C since the child was very young. 

2. The children, as I have said, are C, who was born in November 1999, and K, who was born in May 2004.  I have already indicated, and emphasise, that K is a child of the applicant and respondent, C is not.  However, I emphasise also once again that C, the poor boy, was of the view that the respondent, Mr Weinberg, was in fact his father.  He has said that to one of the family consultants, I think it was Ms B, and that he said that “I always looked upon him as my dad,” or words to that effect, because the child came into the possession of the parties when he was very young and the only male person who he has looked upon as his father was, in fact, the respondent.

3. I make it quite clear that notwithstanding the fact that the mother seeks that there be no order because the father is not a biological parent, it can be, of course, that this court will allow a stranger to the applicant and the respondent, to seek orders for parenting, and I quite approve of the structure of the Act in relation to that.  I have on occasions ordered that not only did the applicant and the respondent not receive a parenting order in their favour, but they dragged someone up from the back of the court, who was known to the child, and I made an order in favour of that person.  Fortunately, I’m able to say it worked out remarkably well.

4. This case has come down to a very, very short parameter.  The parties, unfortunately, could not get on, and they separated.  At the time that they were residing together, correct me if I’m wrong on this, there were in fact the applicant and the respondent, C, K and another child of the applicant mother, one G, residing in the premises, and on occasions another child by the name of R, who is now 19 or 20, was residing there.  R, once again, is a child of the mother from another father.  It is quite clear from the evidence of the father, he readily concedes that he and G did not get on together.  He seems to indicate that, in fact, it got worse since she started to get into the teenage years. 

5. The reason why I’m referring to G is that allegations made by her are, in fact, crucial in this case.  Up until about the month of April 2009, the parties, albeit separated, were getting on remarkably well in relation to contact.  The father was having, as he considers, I understand, adequate contact to K and to C.  Unfortunately, there were disclosures made by G in or about the month of April 2010, wherein there were allegations that the father had acted in a sexually inappropriate manner towards her.  This was reported to the police who, at that time, decided there was not sufficient evidence seeing that there were no witnesses and, for other reasons, that in fact that G was living with the mother and the mother could adequately look after her, they were not going to prosecute the respondent. 

6. Subsequently, further complaints were made by G.  This eventuated in an interview taking place at the police station, which has now been enshrined in a DVD, which is exhibit 3.  I've been unfortunate enough to have viewed this, which took place over some 80 minutes.  G is now aged about 15 years of age.  She was, at the time of the alleged incidents, some 13 and a half years of age.  She was born in October 1995.  As I have said, I've unfortunately been able to view the DVD of the interview, as I said, which took 80 minutes. 

7. I've also been supplied with an unauthorised transcript of what took place during that interview.  Quite properly, no objection was taken to it, and appears to me that, notwithstanding that it was unauthorised - I think prepared by the solicitor for the applicant mother, and I compliment her upon that, it must have been difficult because the sound was pretty poor on occasions, and it has been of great assistance to me.  It comes down to this, that is it is alleged by G that the father, on five or six occasions, acted in an inappropriate manner towards her, sexually. 

8. As a direct result of this interview, the father has been charged with five criminal offences.  A form of proceeding is taking place in or about the month of March next year, when a date will be set for the trial.  I suppose it used to be, in the old days, I don't know if it is still called a committal is being heard in or about the month of March and should he be sent to trial.  We understand that the trial will take place towards the end of next year with a bit of luck. 

9. The father has, of course, vehemently denied the allegations, and his counsel has put before me, first of all, that he objected to the evidence being put before the court.  I have dismissed his objection.  Secondly, that after looking at the interview, after hearing the evidence of the father, in particular to the, shall we say, somewhat constricted areas in which the alleged assaults took place, and in which the children, C and K were alleged to sleep, that I would have very grave doubts as to the veracity of the complaints.  Whilst I am in no way attempting to interfere with the criminal court, it may be that a jury, properly directed on the law, may find difficulty - taking those matters into consideration alone - in coming to the conclusion that the Crown has proved its case. 

10. But the standard of proof in this case is, of course, entirely different.  In passing, I must say that Sara, of counsel, has brought to my attention, which I have seen before, and never ceases to amaze me, section 140 of the Evidence Act, which seems to suggest that in civil proceedings that the standard of proof varies.  I'm quite staggered about that.  I would have thought, since many years ago the civil standard was a balance of probabilities - it is referred to at a later stage - but at 140(2)(b), it says:

    Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account ‑

    it is mandatory ‑ it is to take into account the gravity of the matters alleged. 

11. So when you have a standard of one out of 10, if it is a bad one, you have to apply it at point nine.  If it is an easy one, you apply it at point one.  Which, to me, seems totally ridiculous.  However, I don't practice in that jurisdiction, and I'm sure that many judges alone in the criminal law of Queensland have made certain comments about that as well.  I would find it exceptionally confusing for any jury to be directed that the matter, if in fact ‑ I think we do have, now, civil juries again - that the matters vary up and down.  However, that's perhaps not really germane to this case. 

12. I have to decide upon the standards which have been set out in the numerous authorities before this Court as to whether I think either, one, that there has been a proof of the allegations, or there is an unacceptable risk that harm may come to the child, taking into consideration the material - not that the material is correct, right or wrong - but taking into consideration that material and any other matters.  As I said, as a result of this, the father has had little or no contact with the children since April 2009.  I have had the opportunity of reading the family reports prepared by Ms Q and Ms B. 

13. Both Ms Q and Ms B, particularly in the first report of Ms B, indicate that C had a relationship with his father.  He was somewhat distressed as to not being able to understand why his contact would have to be supervised, and eventually he was informed by the mother, I think it was, of the reason, and he says ‑ this is in the report of Ms B ‑ that he was told that the father had touched the private parts of G.  There was some little complaint made by Sara as to whether this was appropriate.  He cross‑examined Ms B on this, and she, herself, conceded that perhaps it wouldn't be the right way of doing it, but nevertheless we're not dealing with experts, such as Ms B, we are dealing with the mother, who was obviously distressed about the allegations made by G. 

14. It has not, in any way, been suggested by the applicant mother that the father is other than a good father, save for this problem.  As I understand, she does not object to contact taking place between K and the father, so long as K is protected by way of some form of supervision order.  The father, on the other hand, says this is totally unnecessary.  He denies it, and he points to the fact that not only does he have a good relationship with K - the mother has conceded that he has a good relationship, and “I think that she thinks he's the bees knees," or words to that effect were used by the mother, I think she said, “as most girls look upon their father.” 

15. C, as I was touching upon, did have a good relationship with his father, subsequent to his being informed.  He was also informed, I think by the father, that Mr Weinberg was not his biological father.  He does not seem to be distressed, to any great extent, about that, but indicates some interest in finding out about Mr M, whom, as I've said, is resident in New Zealand.  But after being told about "the father allegedly having touched [G’s] private part," there seems to have been a change, and that now he doesn't trust the father.  I refer to the statements made in Ms B’s report that he is somewhat apprehensive;  that he is worried that "he might do the same things to us," I think the words he used were that, meaning himself and K. 

16. That is a tragedy and, as I've said, it is one act, or one or two rather, two complaints which have caused this disaster;  the one in April 2009, and the second interview in 2010, which, of course, following from that interview are the criminal charges against the father.  I do not intend to dignify the contents of the complaints made by G by repeating them in this Court.  I think it is unnecessary, suffice to say I've heard them.  The father saw them on the DVD at the same time as I did for the first time.  He now knows the complaints.  I don't know if the mother had seen them before.  The solicitors for the applicant had, in fact, seen it because she couldn't have done a transcript otherwise. 

1. It is tragic that up until that time we were having parties who, notwithstanding, the fact they couldn't get on, were getting - perhaps with some difficulties - but were getting on quite well in relation to contact between K, C and the father.  I do not for one moment criticise the mother for the stand that she has taken.  Some people would say she would be damned if she did or damned if she didn't.  She's virtually in a no win situation.  At this stage, it appears to me that the father has considered his position and now is recognising that, in fact, the mother perhaps is justified for the stance, notwithstanding the fact he said it is wrong, but justified in her stance which she has taken.

2. The question which arises, as I said, and it is really a discrete point, is whether in fact I am satisfied on the evidence before me, at this stage, the father has sexually interfered or acted in an inappropriate manner towards G, and if I'm not so satisfied, whether the evidence shows an unacceptable risk for the welfare of the children.  Both Ms B and Dr H, the psychiatrist, who has had vast experience in this Court, is of the view that if in fact I am satisfied that the allegations are correct, then it would be very dubious for me to order other than there be supervised contact, in particular in relation to K.  If I am persuaded to make such an order in relation to C, I understand Dr H was not that confident that C would, in any way, be subject to any form of sexual assault by the father ‑ call him the father ‑ but he does have some doubt about K.  Equally Ms B has. 

3. It's difficult.  I was of the opinion that it would be unnecessary for me, in this case, to find whether there was proved, or whether there was unacceptable risk.  I have been persuaded by McGregor of counsel, for the Independent Children's Lawyer, that it would be necessary for me to decide whether in fact it has been proved to the standard required in this Court that the assaults took place, or whether there is an unacceptable risk.  I have sufficient concern to say that I cannot accept that it has been proved, but it is there.  I put that to the father in the witness box.  Perhaps I should not have interfered as much as I did, but I have no regrets for that, and do not for one moment withdraw it, since I found the father to be an intelligent man, and a person who was capable of hearing which way I was going. 

4. As I said, I do not find that he did it, but I am satisfied that, for several reasons, that the second leg has been proved, that there is an unacceptable risk for several reasons, one, as is said by Ms B and Dr H, that G presented quite well in the interview, and the attempt by Sara to suggest that her actions by looking to the left and looking to the right, touching her ears, are symptomatic of a person who is lying - he put this quite properly to Ms B, and Ms B was of the view that it could equally be that she wasn't, that she was telling the truth. 

5. She recognised, of course, that this is perhaps not necessarily proven, but it is a matter by which some people come to the conclusion whether in fact a person is telling a lie or not.  I was impressed by Ms B’s evidence.  I thought she obviously showed a great deal of compassion for all the people concerned, and a great deal of interest in the case.  As I've said, I was impressed by G.  I thought she, in a most difficult situation, did the best she can.  But I have taken into consideration, as has been quite properly put before me by Sara, the circumstances surrounding the alleged incidents, and as a result, I can't find that he did it, but I have an uncomfortable feeling that something may have taken place which could probably be adequate explained. 

6. I understand that in his material, or in a reply to one of the experts, he indicated that he thought it could be when he went in to look after either C or K on one occasion that he may have bumped G, and this has caused her some concern.  No, I don't know, but that is another reason why I do not find it has taken place.  But as a result of the fact that I am satisfied that unacceptable risk has been proven, I regret to say - and I regret because it was a good relationship by the father with the children prior to April 2009 I would have order some form of supervision. 

7. I’ve already indicated during the trial that what I was endeavouring to find is that the supervision take place at other than a contact centre.  Contact centres are all very well.  They can only be used, I believe, for a comparatively limited time.  There also is a suggestion that the person, whose contact is to be supervised – that there may be something wrong with them, because there wouldn't be supervision if there wasn't something wrong with them.  That's the way I think some children look at it, and it does concern me gravely.  But, unfortunately, both parties are New Zealanders.  All their family, as I understand, are in New Zealand.  They have few, if any, friends.  They appear to be somewhat isolated. 

8. They are, at this stage, financially incapable of paying for some of these commercial organisations to supervise, who would, of course, charge a considerable amount of money, which the parties could not afford.  The mother is, at present, on some minimal Centrelink benefits probably for the children.  She is employed in the aged care industry, which is notoriously not well paid.  The father has changed his job from a truck driver to lolly pop man, and is hoping, after some form of apprenticeship, to get a job which will bring him in something like 1000 to 1200 per week.  He does not pay child support at this time.  I can assure him that if this matter comes back, and after the job he is not paying adequate child support, he'll hear from me.

RECORDED:   NOT TRANSCRIBED

1. I'm sorry, I did confess it seemed to be highly paid for a lolly pop person, but as he said, it was $23 per week.  Before I make such orders, it is incumbent upon me, as directed by our political masters, to consider the presumption of equal shared parental responsibility, not equal shared time.  I am satisfied, if only for the allegations made by G, if only for the difficulty that the mother is finding in accepting that those allegations are not true ‑ and I'm not for one moment saying she is making it up, she genuinely believes it ‑ but I doubt very much ‑ I can't order that there be joint parental responsibility.  It just wouldn't work. 

2. There's been no violence in this case.  There's perhaps been verbal violence, but no physical violence, of such a nature that would affect the children.  I can't make that order.  Insofar as the question of the shared parenting, I am somewhat concerned about that.  I feel that it is necessary in this case for one person to have that responsibility, and that has been the submission of the Independent Children’s Lawyer, through her counsel, McGregor.  I have to look at the provisions of section 60CC(2) as well.  McGregor has quite properly pointed out that really there are only about two or three of the section 60CC subsections which are of any importance in this matter, and they are section 60CC(2)(b), (3)(a), (3)(b), and perhaps (3)(c). 

3. Naturally, of course, they're overriding.  Subsection, of section 60CC, (2)(a), where I have to be satisfied that there is a benefit to the child in having a meaningful relationship with both of the child's parents.  I'm going to look at both the children, at this stage, as children of the applicant and the respondent, notwithstanding C’s biological father being in New Zealand.  It is to their benefit.  C, as he said, looks upon Mr Weinberg as his dad.  He gives me the impression that he looks upon as a dad, not as a father, which I think there is a vast difference in.  There is a warmth in the relationship of dad and son, and it is tragic that it cannot be prosecuted as well as it should be.

4. I've already touched upon the need to protect the child from physical or psychological harm.  Regrettably, and I say regrettably advisedly, I have found that there is that unfortunate second leg available, and consequently I take into consideration (2)(b).  The children have expressed a view.  C, in particular, would like to see the father, but not as much as he used to like to see the father, and K is quite excited about it, and, as appears from Ms B’s report, gets on well with the father, and that really follows with (3)(b) of section 60CC. 

5. The mother, at this stage, is unable to facilitate and encourage a close relationship because of the matters I've touched upon hereinbefore.  She is willing to facilitate such an arrangement so long as the children are supervised;  save, of course, she has the view that because C is not the biological son of the father, there should be no order made in relation to him.  C is a different kettle of fish.  He is now 11 and has expressed a view to Ms B and Ms B has come to the opinion that he is a comparatively mature boy and that his view should be listened to with some emphasis, and I will be doing so. 

6. I do not believe that the practical difficulty and expense of a child spending time with the other parent will, as a result of my orders, be of any great extent, although the mother does point out that the contact position at this stage is a contact centre, I think it is at E.  She lives at R and it is a considerable time she spends in a car, approximately one hour each way in delivering the children to that.  As a result, she says that if orders are made, that it should be made in relation to N Centre, which is much closer to R than E.  Her car is not in that great a shape, and she does find it expensive fuel‑wise. 

7. The father opposes that for the reason that, at this stage, he has a good relationship with E Centre, that the children are allowed to have contact with him outside the centre.  In other words, they can go for walks down to McDonalds, or something dreadful like that, albeit with an apprentice, I think he said, or apprentice supervisor with them.  He indicates that his information is that that would not happened at N centre for a period of at least six to 12 months until, I suppose, they had viewed his relationship, and that he believed that the children get on well with the staff there, and he thinks that it will be too much of an upheaval. 

8. MRR v GR requires me to consider whether it is reasonably practicable for contact to take place.  I say quite clearly it is; secondly, whether it is significant and substantial time.  I consider that it is not sufficient significant and substantial time for the primary order which I will be making, that is the so‑called normal contact order, but that I hope, as a result of the orders I'm going to make, that we may get an independent person to come in and supervise, and as a result of that, the time for contact will increase enormously. 

ORDERS DELIVERED

1. I've had the opportunity of reading the draft order put before me by McGregor, of counsel.  The parties' counsel have seen that and they've made various submissions in relation to it. 

ORDERS DELIVERED

1. There was much that was said, I think it was Ms B who said that further consideration should be looked at this matter after the determination of the criminal matters, and I think that is wise, notwithstanding McGregor's strong submissions that there should be a final order.  I'm of the view that it should come back before me at a period subsequent to the criminal matters being determined, and that prior to it coming back before me, a short family report should be prepared by Ms B. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 15 December 2010.

Associate:     

Date:              10 February 2011