Zimmer and Kingsley - [2008] FMCAfam 1473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZIMMER & KINGSLEY

[2008] FMCAfam 1473

FAMILY LAW – Child’s best interests – presumption of equal shared responsibility – rebuttal of presumption where reasonable grounds to believe parent was engaged in abuse of child or another child who at time was a member of the parent’s family.

Family Law Act1975 (Cth) ss.60CC(2), 61DA(4)

Applicant:

MR ZIMMER

Respondent:

MS KINGSLEY

File Number:

BRC 7393 of 2008

Judgment of:

Burnett FM

Hearing date:

6 October 2008

Date of Last Submission:

6 October 2008

Delivered at:

Brisbane

Delivered on:

6 October 2008

REPRESENTATION

The Applicant appeared on his own behalf

Solicitors for the Respondent:

Cooper Grace Ward Lawyers

ORDERS

The children shall spend supervised time with the father at a contact centre for up to two hours every second weekend at times to be agreed between the mother and father and as can be accommodated by the contact centre.
The contact centre to be used for the father’s supervised time with the children shall be the Family Relationships Australia contact centre located at [omitted] in Brisbane.
If the contact centre is unable to accommodate the parents’ request for supervised time then the mother and father shall agree on a new contact centre that is able to provide supervised time services and the father’s supervised time with the children shall recommence as soon as the new contact centre can accommodate the request.
The father’s time with the children shall be suspended pending the parties’ agreement on a new contact centre and the father shall not be entitled to make-up time. Neither party shall unreasonably withhold their agreement to the use of the other parent’s proposal for the new contact centre.
On Father’s Days, the father shall be at liberty to spend time with the children, with the times as agreed between the parents and the contact centre. Should the contact centre not be able to accommodate the parents’ request for supervised time on Father’s Day, the father shall be at liberty to communicate with the children by telephone between 6:00pm and 7:00pm on Father’s Day, with the father to telephone the mother’s landline.
The children shall spend Mother’s Day with the mother. Should the father’s scheduled time with the children fall on Mother’s Day, the father shall not be entitled to spend time with the children that day. The mother shall make reasonable efforts to facilitate the father’s time with the children on the Saturday before Mother’s Day on the Sunday.
The mother and father shall share equally the costs charged by the contact centre for organising and using the contact centre.
If the children are scheduled to spend time with the father on the weekend on which Father's Day or either of the children’s birthdays fall, the children shall spend time with the father at the contact centre on that special day for an agreed time between the mother, father and the contact centre. If the children are not scheduled to spend time with the father on the weekend during which Father’s Day or the children’s birthdays fall, the father shall have telephone communication with the children between the hours of 6:00pm and 7:00pm with the father to telephone the mother’s landline.
The children shall spend time with the father on the weekend before Christmas Day, for an agreed time between the mother, father and the contact centre.
The father shall provide the mother and the contact centre with at least 3 days’ written notice (with email to be acceptable) of his inability or intention not to spend time with the children as scheduled, and the father shall not be entitled to make-up time with the children.
That the children [X] born in 1999 and [Y] born in 2001 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Brisbane.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 7393 of 2008

MR ZIMMER

Applicant

And

MS KINGSLEY

Respondent

REASONS FOR JUDGMENT

These parties met in September 1992 and married in November 1998. There were two children of the marriage – the first was [X] born in 1999 and the second was [Y] born in 2001.
The parties separated in April 2003 and each have since that time progressed in their own way, the children continuing to live with the mother and to spend time with the father.
There were, for reasons that I will come to shortly, sporadic arrangements in place until 2006 leading into 2007 and since late 2007 the mother has not permitted the father to have overnight time with the children.
The father has brought an application today which seeks, among other things, orders in effect for the children to spend time with him on an unsupervised basis, at least until further order or until the matter is resolved at trial from after school on Fridays to before school on Mondays.
The mother seeks orders in terms of paragraphs.2 to 11 of exhibit 1, which essentially is a regime of supervised time. The parties otherwise agree to the other orders which are contained in exhibit 1.
The principal concern of the mother has its basis in events which are articulated in the notice of risk of abuse, which are that the father Mr Zimmer was convicted of common assault against a minor in relation to an incident which occurred on 2 June 2006 and in respect of which he pleaded guilty.
He was fined the sum of $1000 in respect of that particular offence, in default three days' imprisonment and those matters, it is said by the mother, came to her attention late in 2007 and gave rise to her present attitude towards unsupervised time on the part of the father. That is, in effect, the only issue that has to be resolved today.
As with all disputes of this kind one starts with the objects of principles provided for in pt.7 of the Act which provide that the Act is to ensure that the best interests of children are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives and by protecting the children from physical or psychological harm or being subjected to or exposed to abuse, neglect or family violence.
The principles underlying those objects are that children have a right to know and to be cared for by both parents and they have a right to spend time with both parents on a regular basis and communicate with both parents on a regular basis.
The approach to resolving these issues when in contest between parties is best approached, in my view, my commencing with the broad ambit of the Court's powers which provide that the Court may make any parenting order as it thinks proper. The appropriate place to start is with the adoption of the presumption provided in s.61DA of the Act which provides:
“On the making of a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child that the children's parents have equal shared parental responsibility.”
That presumption does not apply where there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or another child who at the time was a member of the parents' family or family violence.
In this case, of course, there has been a parenting application and the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order. Of course, as always, despite the matter being an interim application the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests for the child's parents to have equal shared parental responsibility for the child.
In this case while there is clear evidence before me which suggests there are reasonable grounds to believe a parent has engaged in abuse of a child. The child in the instant case was not, I think, a child of the relationship or of a member of the parents' family.
So the question to my mind then becomes whether or not the presumption should be discharged in the ordinary course by reason of that matter. I am going to address that matter first because obviously if I do not discharge the presumption then one must move to determine whether or not there should be orders made for the child to spend equal time or substantial and significant time with each parent. If I discharge the presumption by operation of evidence supporting its discharge or rebuttal in terms of s61DA(4) then there is no need to proceed to undertake that exercise.
In considering what are in the best interests of a child the Court must have regard to the matters detailed in s60CC and the various subsections provided therein. They introduce the primary and additional considerations. In this case the first consideration is the benefit of the child of having a meaningful relationship with both the child's parents.
It is fair to say that irrespective of which of the two competing proposals is considered the children will have the opportunity to continue and maintain a relationship with each of their parents and the question, of course, of an arrangement that sees the children spend time in an unsupervised environment is to be preferred, but notwithstanding that matter, regular time spent by the father with the children, even in a supervised environment that will, until such time as the Court can further investigate these matters, at least afford the benefit of the primary consideration of the progression of a meaningful relationship. To that end it seems to me that neither particular proposal could be said to be preferred one to the other, as both proposals I think achieve that particular outcome.
The next consideration is to consider the need to protect the child from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence. This is the real issue in this case and it requires some examination of the evidence which went before the local Court at Beenleigh where the applicant father appeared on a charge that he had committed a common assault on a 12 year old child.
The circumstances of the particular offence are disturbing. They are related to the transcript at annexure H to the affidavit of the wife, in particular at page 2, where it was noted that in the particulars outlined to the Court on that occasion it was said:
“The complainant was a 12 year old child, she resided at home with her mother and stepfather at [J]. [[J] is situated approximately 50kms from Brisbane.]
The defendant was a friend of the complainant stepfather, he was not a – although this is not stated – I am told he was not a resident of the house. He said on 2 June 2006 the defendant stayed overnight at the [J] address and at about midnight the complainant, that is the 12 year old, was asleep in her room.
He said the defendant, that being the father, entered the room and has got into bed with the complainant. He got under the bedcovers and put his hand under the complainant's shirt and he has rubbed her side near her breasts. The defendant pressed his body against the complainant and the complainant woke up after feeling the defendant's hand touching her side. The complainant then told the defendant to get out of her bed and her room and he has left the room.”
Broadly, the facts of the case were accepted by the defendant. He entered a plea of guilty and he was convicted of an assault. I have to say I too shared the concerns expressed by the Magistrate on that occasion as to why the matter came to the attention of police. It does seem somewhat unusual without there being some significant event to bring the matter to the attention of police, but one can readily infer that there must have been some complaint made by the girl about these events to bring the matter to the attention of police, which in turn brought the matter before the Court.
The Magistrate quite properly noted that there was no direct evidence which enabled the charge to be upgraded to that of an indecent assault and, as he says in his reasons, he accepted the material before him did not disclose that. However, I do infer from the manner in which the proceedings ensued before the Magistrate and the reasons given by him that he was not entirely satisfied, but took strictly the legal view based upon the evidence that was then before him.
I am not, however, hearing a criminal case here I am dealing simply with a civil case and a case that affords a little more latitude than that which might naturally accord a criminal proceeding. The evidence I think is disturbing. In my view it is quite odd that a man aged about 35 at the time would climb into bed some time after midnight with a

12 year old and rub her in the manner in which it was alleged and to which he pleaded guilty.
There is other evidence which is in dispute between the parties and which I cannot afford any great weight to and that, of course, is the evidence of the mother about the history of the relationship and what she describes in paragraphs 11 to 20 as the father's broader sexual boundaries.
I note that those matters are in dispute and given they are in dispute I am not in a position to rely upon those allegations for the purpose of this application. However, putting those matters to one side the facts of the case which came before the Magistrate are themselves sufficient in my view to suggest that there is something on the part of the father which would indicate that he does not have an appropriate appreciation of the boundaries of appropriate behaviour, particularly when dealing with young children.
It seems to me that, on balance, there is a question of the need to protect the children from in this case being exposed to abuse and on that basis it would seem that the mother's proposal is to be preferred to that of the father.
Now, the next matter concerns views expressed by the children. In this case the children are too young or at least no views are properly expressed or advanced on their behalf and so that consideration does not assist either party.
Next is the question of the relationship of the children with each of the child's parents and other persons. Having regard to the confined limit of the application I do not think that this particular consideration is unduly weighty. I simply make the observation that the children have lived with the mother, time spent with the father has been somewhat sporadic and that to that end it is clear that there is a reasonable relationship between the children and each of the parents, but perhaps there is a close relationship between the mother and the children, although I do not think that necessarily bears upon either of the two proposals.
The next question is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the children and each of the other parents. That requires the Court to consider the extent to which the father has fulfilled his responsibilities as a parent and, in particular, the extent to which each of the child's parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children and have facilitated, or failed to facilitate, the other parent to do likewise.
This is a case where the evidence, on the part of the mother at least, is that she has sought to do all she can do. The father to a large extent seems to have also taken, or sought to take, opportunities that were available to him, although it does seem that there was a period of time shortly after June 2006 when the father spent some time at 1770 where he was perhaps not necessarily taking full advantage of and/or exercising rights in the manner in which he expected. But having said that, when he returned to the geographic area of south-east Queensland he seems to have resumed his former time with the children. So it seems that to that end it could not be said that he has failed in his responsibilities as a parent.
Having regard to those matters and having regard to the principal basis upon which the mother says that she withdrew overnight time with the father it would seem to me that again neither proposal could be preferred or advanced as being preferable to the other in the context of that consideration.
Next, any likely effect of changes to the child's circumstances, including the likely effect on the child of any separation from the parents. Again, having regard to the background facts in this case it does not seem to me that either proposal could be said to be preferred in terms of advancing that particular consideration.
Next, the question of practical difficulty and expense for the child spending time with or communicating with a parent. I note in this instance the father resides in [M] (approximately 30kms from Brisbane), but again I do not think that is a particular material consideration.
The real issue here is not addressed, in my view, by either proposal and neither proposal could be said to be preferred one against the other.
The next question is the capacity of each of the children's parents or either parent to provide for the needs of the children, including emotional and intellectual needs. Again, there is nothing particularly special about the application which suggests that one proposal can be advanced against the other in terms of that consideration.
The next question is of maturity, sex, lifestyle and background of the children and either of the children's parents or any other characteristics the Court thinks are relevant. And the only matter that perhaps raises itself as an issue – and it has in part been addressed by consideration of the earlier matter in relation to abuse – is the age of the children. They are young and could be seen to fall in an at risk group in the event that the father did have somewhat unusual predispositions.
Next are questions of attitude to the child and responsibilities of parenthood demonstrated by each of the child's parents. Again, I have addressed those matters earlier in terms of the s.60CC sub-s.4 considerations and I do not think I can take that matter any further.
Next are questions of family violence. Again, I have earlier addressed that when considering the presumption point, which I will come back to shortly and then I need to make an order which is least likely to bring the matters back before the Court. That is not necessarily apposite in the context of an application dealing with interim orders.
Coming back then to the question of presumption, for reasons that I have earlier addressed when dealing with the abuse issue and looking at the s.60CC considerations I think the facts in this case are sufficient to warrant a rebuttal of presumption based upon the admitted facts that were before the Court in November 2006.
Having regard then to the two proposals that are placed before the Court and accepting that they are not in issue and need here to consider whether there should be orders for equal time or substantial and significant time the real question here concerns the two competing interests. When one considers each of the s.60CC(2) considerations individually and cumulatively it seems to me that the proposal advanced by the mother is to be the preferred proposal and is one that would advance the best interests of the children and I will make orders then in terms of paragraphs 2 to 11.
Now, we have provided for the appointment of an Independent Children’s Lawyer. We will have a report I expect some time by early next year and we can bring the matter back on on 30 January for further hearing and we can work out then what is going to happen in the long-term.

I will mention the matter again at 9.30am on 30 January 2009.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 16 February 2009