Aligante and Waugh

[2010] FamCA 375

FAMILY COURT OF AUSTRALIA

ALIGANTE & WAUGH [2010] FamCA 375

FAMILY LAW – CHILDREN

APPLICANT: Mr Aligante

RESPONDENT: Ms Waugh

INDEPENDENT CHILDREN’S LAWYER: Fiona Reid

FILE NUMBER: SYF 3075 of 2004

DATE DELIVERED: 11 May 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 11 May 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Miller & Young Solicitors

SOLICITORS FOR INDEPENDENT CHILDREN’S LAWYERS Reid Family Lawyers

Orders

PENDING FURTHER ORDER IT IS ORDERED THAT:

1. Orders made 12 August 2009 be discharged apart from orders 10, 15 and 16.

2. Any other order made prior to today be discharged.

3. The mother’s Application in a Case filed 10 May 2010 be dismissed. 

4. The father have sole parental responsibility for …, born … May 2002 (“the child”) and that the child live with his father.

5. For a period of 7 weeks from the date of these orders, the child shall spend no time with the mother or members of the mother’s family. 

6. Thereafter the child shall spend time with the mother, such time to be supervised at E Children’s Contact Centre, E (“the centre”) each week for periods of two hours each week or for such duration as the centre is able to accommodate (“supervised visits”).

7. For the first four supervised visits pursuant to order 6, the maternal grandparents be restrained from attending the centre except for the purpose of delivering and collecting the mother if necessary.  After that time, the maternal grandparents may accompany the mother to see the child on each second visit by the mother.

8. The mother be restrained from:

   8.1.Attending at the child’s school;

   8.2.Denigrating the father or his wife or members of the father’s family in the presence or hearing of the child;

   8.3.Discussing the family law proceedings with the child;

   8.4.Discussing the alleged acts of violence against the mother by the father with the child.

9. The Independent Children's Lawyer do all things necessary to provide the centre with a copy of these orders and to request that in the event the mother or the maternal grandparents engage in any discussions with the child which would be in breach of orders 8.2, 8.3 and 8.4 above, that time between the child and his mother and/or maternal family be immediately terminated.

10. The Independent Children's Lawyer do all things to provide a copy of these orders to the child’s school and to request that in the event the mother or maternal grandparents attend at the child’s school and attempt to see or remove the child, that the school take steps to remove the child from the situation and notify the father immediately. 

11. The final hearing of this matter commence on 6 July 2010 for 3 days or until completed. 

12. Further evidence that is to be filed and served is to be from witnesses who the parties wish to call about any events that have taken place since 26 June 2009 relevant to any matter under s 60CC Family Law Act and about any assertions the mother makes in relation to Dr W. 

13. The mother file and serve any further evidence upon which she relies on or before 8 June 2010. 

14. The father and Independent Children's Lawyer file and serve any further evidence they rely upon by 22 June 2010. 

15. This matter be listed for mention on 28 June 2010 at 2.15pm. 

IT IS NOTED THAT:

1. On 28 June 2010 the court will consider whether any evidence the mother files in relation to the assertions that the mother makes in relation to Dr W will be admitted.

2. At this stage neither parent proposes the other have significant and substantial time with the child, particularly in the short term.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3075 of 2004

MR ALIGANTE

Applicant

And

MS WAUGH

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 30 April 2010, the Independent Children's Lawyer made an oral application for an interim order, in terms suggested by Dr W at page 17 of Exhibit AAA, which is his report of 12 April 2010.  Dr W suggested an immediate transition by the child from his mother to his father.  The interim application made by the Independent Children's Lawyer was supported by the father, who made an application in similar terms.  The interim application was opposed by the mother. 

2. The orders I made on 30 April 2010 were in the following terms:

   2.1.That the orders made on 12 August 2009 be suspended;

   2.2.All previous orders prior to 12 August 2009 be discharged; 

   2.3.The matter was adjourned until 3 pm today;

   2.4.The child was to live with his father (and, for that purpose, the father went home with the child from the court that day);

   2.5.The child was to spend no time with his mother (until the matter could be more fully ventilated today);

3. Both parties were given an opportunity to file further material.  The mother has done that. 

4. The reasons that I am giving are reasons both for the orders I made on 30 April 2010 and the orders that I will make today.

5. The documents that I have before me and other matters I rely upon are as follows:

   5.1.My reasons for judgment dated 12 August 2009; 

   5.2.The father’s affidavit, filed on 20 January 2010; 

   5.3.Orders made by me on 27 January 2010, 20 April 2010 and 30 April 2010. 

   5.4.What took place before me on 27 January 2010, that is, what evidence I heard and what people said;

   5.5.What evidence I heard and what people said on 30 April 2010;

   5.6.The mother’s application in the case, filed on 10 May 2010; 

   5.7.The mother’s affidavit, filed on 10 May 2010; 

   5.8.Four reports from Dr W.  Those reports are dated 31 August 2005, 24 July 2006, 5 September 2008 and 12 April 2010;

   5.9.I also have in evidence the letter that the maternal grandparents wrote to the father.  That is exhibit BBB, and I will talk about that in a minute;

   5.10.I have the Independent Children's Lawyer’s applications for orders that are sought by the Independent Children's Lawyer today.  That is exhibit CCC.  An application is made by the father in similar terms to the application made by the Independent Children's Lawyer in exhibit CCC;

   5.11.I also have a supplementary note provided to the Independent Children's Lawyer by Dr W, which is exhibit DDD.  It relates to his opinion about the child’s behaviour which the mother has reported to the Independent Children's Lawyer as having occurred the week before last, upon the child returning from the long weekend with his father.

6. Dr W suggests, as I have said, that there be an immediate transition.  His reason is that he has got no confidence that the mother and her family would be able to properly prepare the child for such transition.  He was of the view that he thought it most likely that whatever they did would make any transition of the child from his mother to his father more difficult, if they were given that opportunity. 

7. The proposal in Dr W’s most recent report was that the child would be with his father for a period of eight weeks without spending time with his mother or the maternal family.  After that, Dr W suggested a weekly or fortnightly professionally supervised contact.  Dr W was of the view that supervision may need to be maintained for quite a long time, maybe 12 months, but that opinion, as with all of the opinions expressed by Dr W in his report of 12 April 2010 and in Exhibit DDD, will be the subject of further testing.  Dr W suggests that the first four supervised visits be with the mother only, with the maternal grandparents only attending after the first four visits, every alternate visit.

8. In accordance with a previous order made by me, in line with the recommendation made in Dr W’s report, the child was secured in the counselling section of the Family Court prior to the release of Dr W’s report on the last occasion, to ensure that there would be an immediate implementation of the orders of the court, should those orders be that the child go home with his father.  That, in accordance with Dr W’s suggestion, was to avoid risk of flight or any other harm to the child. 

9. The mother attended court on 30 April 2010.  She was with her parents and other people who supported her.  The Independent Children's Lawyer had sent to my chambers after Dr W’s report had been released on that day a copy of the letter to which Dr W refers in his report.  It is a letter addressed to the father from the maternal grandparents, dated 6 March 2010.  I have referred to it already;  it is exhibit BBB. 

10. Dr W’s report at page 4 indicates that the father said that the maternal grandparents had given the letter to the child to give to him.  The father offered the letter to Dr W to read, but he declined.  The father outlined what was in the letter to Dr W.  Dr W eventually came by the letter.  I infer it was sent to him by the Independent Children's Lawyer.

11. On 30 April 2010, the mother indicated to me that she had seen the letter.  She had not studied it, but she was generally familiar with its contents.  I will just refer to particular parts of that letter, dated 6 March 2010.  The maternal grandparents, in the letter, asserted that the father had, in open court, admitted that he had taught the child how to access pornography on the internet.  That is not something that the father did admit before me.  The letter intimated that the father had violated the child by allowing him to access three pornographic sites. 

12. The letter questioned why the father would go to the “world’s legal system” instead of going to the church, as the Bible says.  There is a reference to Jesus calling a court the “world’s system.”  The letter says that one of the authors - it was not clear which grandparent it was - had sat many times in the Family Court … and had heard court orders being made where children are sent back to their fathers to be sexually abused:

    “In fact, the Family Law Courts is commonly known as the “men’s sex rights court” with a very strong free-masonry influence, where children are considered only as sex objects for the father’s pleasure.”

13. One of the authors, one of the grandparents, said that they had personally witnessed this many times.  The letter also refers to the power of the court even to the point that this little child can be “forced by unbelievers to live by their orders.”  On 30 April 2010, in a conversation with me, the mother could not remember the statement in the letter that the court orders are made where children are sent back to their fathers to be sexually abused, but she added:

    “But I know that that is a reality.”

14. I note, at that point in the proceedings on the last occasion, the mother became hysterical.  I have not, in my long experience in family law, heard a person react in such an inconsolable way.  I adjourned the court for a time.  On the resumption, the Independent Children's Lawyer made an application the matter be adjourned to today in order to give the mother some time to compose herself to further consider what was in the report.  I note, by the way, that the mother did have a reasonably long time during the morning to read the report dated 12 April 2010, but I do not for a moment pretend that it was adequate to fully prepare, and the time has now been given for that to have happened.

15. On resumption, the mother did, however, describe Dr W’s report as being inaccurate, and being written by a man that is not credible.  The mother inferred that Dr W had caused children to be with the father in another case in circumstances where the father was sexually abusing them.  That theme has been expanded upon in the written submissions attached to the mother’s affidavit that was filed on 10 May 2010.  On the last occasion, the mother screamed at the father at the bar table that he was an abuser, and that she repeated allegations which were the subject of much evidence and my considered deliberations in my reasons of 12 August 2009.

16. For the second time on that day, she became so severely distressed, wailing inconsolably, that it was not appropriate for me to deliver formal written reasons on that day.

17. I did make orders on 30 April 2010 which I have already outlined.

18. Dr W formed the view that the allegations which were raised in January 2010 by the mother, as well as the grandparent’s letter in March 2010 (in the middle of a period which Dr W correctly observes must have been a period when it was clear that the court was open to making an order to the effect that the child live with his father), gives a clear indication that the mother and her family have no intention of changing their views or behaviour. The father has expressed a fear to Dr W that the types of sentiments expressed in the letter of 6 March 2010 are commonly expressed openly in the household of the mother.

19. That assertion has not been fully tested by cross-examination, but based on what I have just referred to, I find prima facie that the father has a reasonable fear in that regard and, prima facie, and it has not been tested, and there has not been cross-examination, but on the papers there seems to be an unacceptable risk that what the father fears has happened from time to time in the mother’s household.  As I have noted, on 30 April 2010, the mother did nothing to distance herself from the sentiments expressed by her parents in the letter which they wrote. 

20. The applications I have before me today, as I have said, are contained, so far as the Independent Children's Lawyer is concerned, in exhibit CCC.  The father supports those applications.  The mother’s applications before me today are contained in her application filed on 10 May 2010. 

21. The matter first came before me as a less adversarial trial on 13 March 2008.  At that time, there were criminal charges pending against the father arising from allegations of rape during marriage made by the mother.  The final and main part of this hearing took place over a period of six days in April and June 2009.  At that time, I accepted the submissions made by the Independent Children's Lawyer to the effect that interim orders only should be made.  I found, at that time, that it was in the child’s best interests for final orders not to be made, but for there to be a nine month period where the proposal, which was contained in the orders, could be tested.

22. The Independent Children's Lawyer was to do everything that was necessary to arrange for the parties to attend further interviews with Dr W, the child psychiatrist who had been appointed under chapter 15 of the rules to produce a further report within nine months of 12 August 2009 for the purposes of providing an updated report.  The intention was that the matter would be relisted before me within a period of two weeks for release of Dr W’s report and for further directions to be made for evidence to be put on so that the trial could be concluded on a final basis.

23. The matter was prematurely listed before me as a result of the mother failing to make the child available as scheduled when he should have been with his father.  The father commenced an application that the mother be dealt with for contravening my order.  The mother made an interim oral application to suspend my orders, but that application was dismissed.  At that time, the father gave an undertaking that until the court could further look at the matter, his current wife would be present at all times when the child was with him.

24. The new allegations were to be looked at by Dr W.  Dr W was asked to see the child and his parents and stepmother again.  As is clear, Dr W has considered the various allegations arising from the child’s sexualised behaviour, and an allegation in relation to the father massaging the child. Dr W has discounted the father acting in any inappropriate manner.  Dr W has expressed grave concerns, when giving oral evidence at the initial hearing, of the threat posed by the behaviour of the mother and her parents to the relationship between the child and his father. 

25. The behaviour of the mother and her parents in the interim period was clearly such, so far as Dr W was concerned, having spoken to the mother, the father, and the child, on the face of his report which has not yet been tested, to recommend an immediate transfer of the child to his father. 

26. Dr W’s most recent report leaves open a number of proposals which will have to be considered at the final hearing.  Possible future proposals for the child are discussed by me in my reasons for judgment dated 12 August 2009, particularly at paragraphs 340 to 356.  One possibility is that the child stays with his mother in the maternal household and has no further contact with his father.  That is certainly what the mother wants; that is her application; and that is a possibility at the final hearing. 

27. Another possibility, which seems now not to be one that is likely, is the proposal that I attempted to test in the orders I made on 12 August 2008.  That was, that the child remain in his mother’s household, but have unsupervised and substantial and significant time with his father. 

28. The third proposal is that the child primarily live with his father, and Dr W now seems to be proposing restrictions on the child’s time with his mother, certainly in the short term. 

29. What proposal will, in the end, be one that is considered by the court in the child’s best interests will be a matter for determination at the final hearing in July.

30. I am satisfied on the papers, and particularly Dr W’s report, that the child’s relationship with his father is currently being severely jeopardised, and I am convinced in the short term that there is a real risk that needs to be considered.  In my reasons for judgement of 12 August 2008, I deal fairly comprehensively with all of the allegations the mother has made against the father, particularly allegations in relation to her saying the father abused her, and I now have regard to those parts of my reasons.  At paragraph 376 of my reasons, I summarise my findings as follows. 

31. Firstly, I accepted the father’s version over the mother’s version in relation to the history of family violence, and that version includes the various witnesses that were called on both sides and were cross-examined.  I accepted on that occasion that the best possible option for the child was that he would live with his mother in her household with her family and have unsupervised time with his father in an atmosphere where the child was free to enjoy both households.  I did, however, indicate I held significant fears that the mother’s household would not be able to facilitate the proposal that I had put in place in circumstances where there was a lack of motivation arising out of a lack of acceptance of the court’s findings to make that proposal work.

32. On an interim basis, the considerations that I have to give to section 60CC Family Law Act (“FLA”) matters are not as extensive as I otherwise would explain in full reasons. I have, in fact, extensively dealt with my view about all the factors and matters under section 60CC(2) and (3) FLA in my reasons for judgment of 12 August 2009, so far as I knew the facts up until the date of the last day of the hearing of the matter, which was 26 June 2009.

33. I substantially accept and adopt the submissions made today by the Independent Children's Lawyer in relation to section 60CC FLA matters as they currently apply. Given the lateness of the hour, I do not intend to repeat everything the Independent Children's Lawyer has said, but simply to say that I accept what she says about the need for the child to have a meaningful relationship with both his parents, and what she says about the difficulties that the mother and her household pose to that relationship between the child and his father at least prima facie and at the current time.

1. On the other hand, there does not seem to be any evidence at all that the relationship between the child and his mother is threatened by the father.  The father, as the Independent Children's Lawyer said, was very patient through a very long period of supervised contact in circumstances where, at the end of the day, it was found that that supervision was not something that, in hindsight, was warranted.

2. The allegations of the child demonstrating sexualised behaviour, both through accessing the internet, through allegations by the mother both in her interview with Dr W and her email to the Independent Children's Lawyer about the child’s masturbation; the father had inappropriately massaged the child; and the information given by Mrs Aligante in relation to what happened in respect of the child coming into the bathroom when she was showering behind an opaque screen; all of those have been looked at by Dr W, and he has not formed any basis to criticise the fathering a way which would lead to a finding that there was an unacceptable risk, on its face, in the father’s household for the child.

3. On the other hand, there is, prima facie, a psychological risk of the child staying in his mother’s household.  That risk is one discussed by Dr W in his most recent report, particularly at pages 14 and 15.

4. As the Independent Children's Lawyer said, it is probable that the child’s view is that he would not want to leave his mother’s household. The child is almost eight. He will be eight this week. He still sleeps in his mother’s bed, he is very protective of her, and Dr W describes their relationship as enmeshed. All those circumstances mean that the weight which I put on any view expressed by the child, in the context of all the other matters that I have to consider under section 60CC, is not all that weighty.

5. The child has a strong and comfortable relationship with his father, and Mrs Aligante, based on the information I currently have, which I stress is untested.  Also untested is Dr W’s view that his observation of the child’s current relationship with his mother has an anxious element to it.

6. One of the most important matters that I take into account, as I have already indicated, is the willingness and ability of the mother and her parents to support the child’s relationship with his father.  Dr W deals with the impact of change at particularly paragraphs 14 and 15 of his report, and I note what he says in that regard. 

7. The mother has raised a number of issues which I take into account.  The first submission challenged Dr W’s expertise.  There was a submission made that there was a difference between the practice of child psychiatry and the practice as a psychologist.  I did note in my discussion with the solicitor for the mother that Dr W does seem to have a Diploma of Psychology as part of the many initials next to his name. 

8. It is, however, common experience in this court that, particularly in cases involving serious allegations of abuse, for child psychiatrists, rather than psychologists are recommended to the court, as a chapter 15 expert.  I have not shut the door on the mother attacking Dr W’s credibility but that would have to be done on proper evidence, and I would have to be convinced that the exercise was worth embarking upon.  For that purpose, I intend to give the mother an opportunity to file evidence, and there will be a further mention before me to consider that evidence and for me to make a decision about whether or not I will allow this hearing to expand into an inquiry, in relation to Dr W’s competence.

9. The mother relies on the fact that the victim’s compensation tribunal made a decision the balance of probabilities that she had been sexually abused by the father.  Apparently, that decision was made in early June 2009 but it was not brought to my attention during the trial.  I have already said in my discussions with the solicitor for the mother that the assessor at the tribunal made a decision based on papers submitted by the mother, and a report from a clinical psychologist whom she had seen.  I do not know what other material was given to the tribunal.  I infer, though, that it would have been dealt with on the papers and there was not any testing of the evidence and I infer that the tribunal did not see the material that the father had filed before me.

10. I note in the submissions there was complaint against the Independent Children's Lawyer that she did not appropriately, and in a timely manner, raise the allegation that the mother had informed the Independent Children's Lawyer that the child had masturbated in front of his mother, and the maternal grandmother, upon his return from his father’s home the week before last.  Given the highly charged nature of the proceedings before me, on the last occasion, I do not find that there is any substance to that complaint.  And when it was raised by the mother the Independent Children's Lawyer immediately informed me as to the nature of the complaint.  In any event, it has now been considered by Dr W and I have Dr W’s reaction to that complaint, in exhibit DDD.

11. Taking all of those matters into account, I consider that in the short term, until the court finally determines the matter, it is in the child’s best interests for me to adopt and make orders in accordance with the application of the independent children’s lawyer.

12. The one addition that I would make to the orders sought by the Independent Children's Lawyer and the father is that I would adopt Dr W’s recommendation that the paternal grandparents only see the child on every second occasion, after the mother commences seeing the child.  The reality may well be, if I am able to deliver a speedy judgment after the final hearing, that the orders that I make will not be fully implemented because the time that it will take to have the hearing and me deliver a judgment will be quicker than some of these orders coming into effect.

13. The mother has applied for an order that a new expert, a psychologist, see the child over an extended period and provide a further report to the court.  I note that Dr W has seen the child on three occasions, over a period of four and a half years.  And he’s done so in the context of seeing him, not just alone, but with both of his parents, on each of those occasions.  And with his step mother on two of those occasions. 

14. Rule 15.49 of the Family Law Rules provides that where an expert, such as Dr W, has been appointed by the court to prepare a report and give evidence in relation to an issue, a party must not adduce evidence from another expert unless the court gives permission. 

15. In order to get permission, the court has to be satisfied that, firstly, there is a substantial body of opinion, contrary to the opinion given by the single expert witness and that contrary opinion is, or may be, necessary for determining the issue, or another expert issues knows of matters not known to the single expert witness and that may be necessary for determining the issue, or there is another special reason for adducing evidence from another expert witness.  I do not find on any of the material that I have been given that any of those criteria are satisfied, to the extent that I would exercise my discretion to give the mother permission to involve another expert in this case, particularly given the history of the child being seen by the current court expert.

16. The mother currently, under the existing orders, has sole parental responsibility.  I gave reasons in my judgment of 12 August 2009, as to why, at that time, a sole parental responsibility order was indicated.  Those reasons have not changed.  But, given that the child is to live with his father, in the interim, it is appropriate that parental responsibility also change in favour of the father and that that parental responsibility be sole parental responsibility. 

17. I note, at this stage, neither parent proposes that the other have significant and substantial time with the child, particularly in the short term. 

18. Finally, the solicitor for the mother has asked that the mother see the child on his birthday.  I am cognisant of the fact that the child missed seeing his mother on Mother’s Day.  Unfortunately, he is going to have to miss seeing his mother on his birthday this year.  That is consistent with what Dr W has recommended, consistent with what I’ve just decided.

19. I note, that with the consent of her lawyer, these reasons were delivered with the mother outside the court room. She has reacted in court today in a very similar way to her inconsolable behaviour I have already described on two occasions on 30 April 2010. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  19.5.2010