ANSON & LACE

[2018] FamCA 125

FAMILY COURT OF AUSTRALIA

ANSON & LACE [2018] FamCA 125

FAMILY LAW – CHILDREN – Interim Proceedings – with whom a child spends time – consideration of allegations of sexual abuse and family violence – assessment of risk – best interests decision – interim orders made for supervised time.

Family Law Act 1975 (Cth)

Marvel v Marvel [2010] FamCAFC 101
Jopson & Lilwall (No. 2) [2016] FamCAFC 262
Banks & Banks [2015] FamCAFC 36

APPLICANT: Ms Anson

RESPONDENT: Mr Lace

FILE NUMBER: LEC 76 of 2017

DATE DELIVERED: 18 January 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 18 January 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: GJ Legal Solicitors

SOLICITOR FOR THE RESPONDENT: Claire Newton Family Lawyer

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

1. That the child, B born … 2012 (“the child”) live with the mother.

2. That the mother maintain the child’s enrolment and ensure the child’s attendance at C School.

3. That the child shall spend time with the father supervised at D Children’s Contact Centre at E Town (“the Centre”) on such dates and at such times as can be accommodated by the Centre.

4. That the parents shall not denigrate each other or their families and not speak about the allegations raised and the issues in these Court proceedings, in the presence or hearing of the child.

5. That the parents attend and participate in any parenting program as recommended by the Centre.

6. That the Independent Children’s Lawyer be at liberty to liaise with the Centre to discuss the progress of the child’s time with the father.

7. That the Independent Children’s Lawyer be at liberty to issue a subpoena to the Centre.

8. That pursuant to s.121 of the Family Law Act1975 the parties be at liberty to publish and provide to their treating health professional/s a copy of the family report prepared by Ms F dated 7 December 2017 and the psychiatric report prepared by Dr G dated 13 December 2017

9. That within seven (7) days of the date of these Orders the mother file with the Court the evidence of her results of the hair follicle testing undertaken by her.

10. That noting the Independent Children’s Lawyer on next occasion hopes to be in a position to provide to the Court information from the Centre, seven (7) days prior to the next Court event both parties shall file and serve a short Affidavit setting out:

    (a)how, from their perspective, the current parenting arrangements have progressed; and

    (b)any proposed variation to this current Order and proposal for the next six (6) months.

11. That these proceedings be listed before the docket Registrar on a date to be fixed, noting that such date ought be within six (6) months.

12. That the Independent Children’s Lawyer be at liberty to apply.

IT IS NOTED:

A.That the Court would have no difficulties with the parties and their legal representatives appearing by telephone on the next occasion unless ordered to be physically present by a Registrar.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Anson & Lace has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 76 of 2017

Ms Anson

Applicant

And

Mr Lace

Respondent

EX TEMPORE REASONS FOR JUDGMENT

(Settled from the oral reasons delivered)

1. B (‘the child’) is a little girl who turned five this year.  She is the only child of a somewhat ambivalent relationship between the parents, who commenced cohabitation in November 2011 and separated initially in June 2014, when the child was nearly two years of age.  I am satisfied on the evidence that since that initial separation, the child has primarily lived with the mother.  It seems that at least for a period from June 2014 until early 2015 the parties attempted some form of reconciliation.  There are different views in the material about how successful those attempts were and who motivated them.  What is clear, however, is that the father’s time with the child continued to reduce and has now not occurred for well over 12 months.

2. The reasons for that, at least to a large degree, arise from an allegation made by the child to the mother in October 2016.  This was, all the parties accept, a long weekend.  The mother says the child appeared to be masturbating and acting in a sexualised manner, and upon enquiry she says and swears to the fact that the child disclosed to her that sometime earlier the father had subjected her to a very significant act of sexual assault.  It is suggesting that the father inserted a hard object into the child’s anus, causing it to bleed.

3. The allegation of sexual abuse, however, has been investigated by a number of persons, and none are able, understandably, to make any specific finding about it.  That will, ultimately, be a matter for the Court.  I merely note, as I did in my exchange with the lawyers at the bar table today, that the disclosures of this quite young child (bearing in mind she was only four when they were first raised with the mother in October 2016) use different words on most occasions.  A court would, of course, be very concerned if a parent merely ignored any serious disclosure of abuse of their child.

4. The mother took steps to immediately contact (through the police as I understand it) the JIRT team.  The evidence suggests that they suggested to the mother that a forensic examination of the child be undertaken, but that the mother, for reasons not quite clear to me at this stage, declined.  I do not make any, of course, adverse inference from that, if in fact the mother did decline to take up the opportunity for forensic examination.

5. It is apparently agreed that there was only one opportunity for any such abuse to have occurred to the child, to the mother’s knowledge, which is not able to even be determined by date, but appears to be associated with a decision by the mother to leave the child with the father for an hour or so while she did some shopping, possibly in August 2016.  I merely note that there is no evidence at all that the child made any complaint or disclosure to the mother or any other person at about the time of or shortly after the alleged serious sexual abuse upon the child nor, if as a child asserts to the mother, the act of the father caused bleeding to occur, is there any evidence that this highly vigilant and capable mother saw any bleeding on any of the undergarments of the child.

6. These troubling aspects of this one event will no doubt need to be fleshed out at the trial.  The consequence of, however, those events and the understandable (from the mother’s perspective) need to protect the child from the father’s actions, particularly in circumstances where she raises other risks about the father, forced the father to commence proceedings in the Federal Circuit Court in the E Town registry in February 2017.

7. The matter came before Judge Vasta in that registry, sitting as a visiting Judge on 29 May 2017, when his Honour ordered the father to undertake a hair follicle test; appointed the Independent Children’s Lawyer and sought a s.11F report from Family Consultant Ms H.  Time was not ordered, and understandably so at that early stage.  When the matter came before Judge Coates on 17 July 2017, his Honour had the benefit of the report from Family Consultant Ms H.

8. Whilst the Family Consultant noted that the parents’ relationship appears to have “been volatile for many years.  Conflict appears to quickly escalate into violence and the child has been at risk as a result”, and whilst the child, it should be noted, by this stage had spent very little time with the father for quite some time did raise some concerns about being exposed to family violence, and showed no “curiosity about her father despite an invitation to see him with the family consultant”, Ms H, doing the best she could, made the following comments about further or future directions:

   The parents are very unlikely to be able to reach any agreements about [the child’s] parenting arrangements and her wellbeing.

   The allegations are complex, and if true, pose various and significant threats to [the child’s] well being in one or both parent’s care.

   [The child] appears to have experienced traumas, fears and distress as a result of exposure to violence between the parents.

   [The child] would benefit from involvement in pre-school to ensure she is not behind in her learning to ensure that there are people with expertise in child development who can monitor her progress.  Children of parents who are in conflict often benefit from relationships with people not involved in the conflict, and they often suppress their views and need in order to please parents and/or avoid causing conflict.

   [Mr Lace’s] hair follicle test results may soon be available to the Court to consider.

   [The child] is not protected from [Ms Anson’s] very negative views of [Mr Lace] and a non-denigration order and orders for the allegations and issues not be discussed with the child are required to help ensure [the child] is not embroiled in conflict.

   Without orders for contact with her father, [the child’s] relationship with him is likely to be total severed and this could have a long term detrimental impact on her.  It is likely to be very difficult emotionally for [the child] to see her father while her mother believes the relationship should be severed because of abuse.

   Supervision of interim contact between [the child] and her father would preserve a connection pending assessment of [the child’s] best interests and well being.  It is suggested that [the child] spend time with her father at a children’s contact centre because of the complexity of the dispute and family dynamics.  It is however unclear whether supervision of [the child’s] time with her father is necessary to preserve her safety and wellbeing.  This setting would provide [Ms Anson] with assurance that [the child] is safe and offer some support for [the child].  Supervision by family members is likely to add to concerns and conflicts as [Ms Anson] reports problems with [Mr Lace’s] family members.

9. When the matter came before Judge Coates in the E Town circuit on 17 July 2017, for the reasons which he published and which are on the file, he regarded the issue as complex and transferred the matter to the Family Court of Australia.  No interim orders were made.  Since then the matter came before Senior Registrar Spink on 31 July 2017 and it must be said that the steps undertaken have, consistent with the Magellan protocols, been applied quickly.  A Magellan report before the Court, which is in evidence, was released on 18 September 2017.  On 19 September 2017, Senior Registrar Spink ordered the mother undertake a hair follicle test.  There is also suggestion she undertake a liver function test.

10. Interviews for a family report by Family Consultant Ms F were scheduled and on 29 November 2017 the family attended before Ms F and Ms F released a report on 7 December.  It is appropriate to at least acknowledge that although not bound by the report, of course, that Ms F was unable in any way, understandably, to make any finding or assessment of the sexual abuse allegation.

11. Her recommendation is that if the Court determined the child has been sexually abused by the father, the Court has two options:  either no time or periodical supervised time, and at paragraph 151, that if the Court determines the child has not been sexually abused by the father, the child should initially spend supervised time with the father, then transition to limited unsupervised time, at which time this matter be further assessed.  This suggests that the Court will be in a position to determine the sexual abuse allegation, and that in a sense nothing should happen until it can do so.

12. If that is what the recommendation is meant to be, I do not accept it.  In my view this is a case that is prime for interim determination, and that is why, when the matter came before me this morning for the first time, I indicated that an interim determination today would be undertaken.

13. Ms F’s report, within the context of her uncertainty about why and how the sexual abuse allegation could be determined, at least observes, at paragraph 135, that:

    [The child], during this assessment, did not volunteer any information, or display any behaviour that would lead me to assess [Mr Lace] as responsible for sexually abusing her.  I should say I did not interview with this goal in mind.  However, as there is no ‘usual’ set of behaviours for child victims of sexual abuse to exhibit, [the child’s] lack of disclosures, and otherwise unremarkable behaviour, cannot be viewed as evidence either for or against the mother’s allegations.

14. I have also taken into account the observations of the interaction between the child and the father, set out at paragraph 124 to 128.  I note that the child was unable initially to demonstrate any affection towards the father.  I note that, at paragraph 127, Ms F identifies that the child appeared to relax in the father’s company as time progressed, and that Mr Lace was appropriate in his behaviour towards the child.  Again, it must be recalled, that this is a quite young child.

15. The Independent Children’s lawyer, no doubt with the benefit of funding from Legal Aid, procured a psychiatric examination of the parties by a psychiatrist, Dr G.  That report, attached to an Affidavit affirmed 15 December 2017, is before the Court.  Again, as with Ms F, every Magellan Report and the psychiatric report – none of these helping professionals are able to make a definitive finding on the evidence.  That is, as everybody knows, the role of the Court.  However, the recommendations of Dr G are, at least, capable of being applied, based on the facts as Dr G accepted them to be.  The recommendations are (noting of course, that Dr G did not see the child) as follows:

    a)That if any risk is identified to the child, B, that such measures are put in place as are necessary to ensure her safety;

    b)For the mother, Ms Anson, abstinence from illicit substance use and maintain alcohol use within safe drinking guidelines for females;

    c)Participation in dialectic behaviour therapy program, if available.  Otherwise, to engage in counselling with a practitioner experienced in working with personality disorders, who can assist Ms Anson in understanding her emotions and behaviours and the impact on her parenting of the child;

    d)Non-denigration of the father or the father’s family, to the child;

    e)If available, engagement in a parent/child community group, such as a playgroup or library reading group for preschool children;

    f)Ensure that the child commences school in the 2018 year;

    g)For the father, abstinence from illicit substance use and maintain alcohol use within safe drinking guidelines for males;

    h)Consider drug and alcohol counselling to manage ceasing cannabis use and assist in developing alternate strategies to manage sleep;

    i)Continued engagement with the psychologist to address symptoms of anxiety, monitor the mental state and facilitate adaptive coping mechanisms;

    j)Discuss with a General Practitioner the potential role of anti-depressant medication, should mood or functioning deteriorate or, as advised by a psychologist, with review by a psychiatrist, should the General Practitioner deem that appropriate;

    k)As noted above, there is no psychiatric reason identified in the father’s assessment that supervised contact with the child should not occur.  Further supervised contact would allow for assessment of the father/child relationship and the father’s parenting capacity;

    l)For both parents, completion of a co-parenting course, such as the Parenting Orders Program; and

    m)Completion of a relationally based parenting group, such as Circle of Security.

16. It is not clear, from the submissions I have heard today, how many of the recommendations of Dr G the parties are prepared to take up.  It should be noted that there is, in my view, a difference between a parent having read all the material and having some insight into some improvement in their capacity or attitude that might be occasioned by taking up some of the recommendations, doing so voluntarily as opposed to being forced to do so by the Court.  Merely ordering people to do things, when they believe to have nothing wrong with them or nothing to deal with is akin to parties just ticking boxes for the Court as opposed to seriously considering their need for further help.  I have received no submissions today about any conditions that should apply.

17. With that history, as identified, we come to what are the competing proposals.  Ultimately, the mother says it is contrary to the best interests of the child, on an interim basis, that she be exposed to time with the father.  Although, to be fair to Ms J, from the exchange that is undertaken before her with Ms Ross and Ms Newton, for the Independent Children’s Lawyer and the father, respectively, Ms J’s concerns, on her instructions from the mother, about the father sexually abusing the child in the future, being affected by drugs other than cannabis (noting that both hair follicle tests of the parties reflect continued use of cannabis although, to what extent, cannot be determined) and family violence – she conceded that those risks will all be ameliorated if time was to occur at a supervised environment, such as the E Town Children’s Contact Centre.

18. Thankfully, as a result of orders, made properly by Senior Registrar Spink, I am told that the parties have completed all the intake procedures and should be able to get their first visit at the E Town Children’s Contact Centre within about eight weeks from now, the risk that remains on the mother’s case is, it seems, two-fold:

    n)the child will be distressed by being required to spend time with her father and will get no benefit from it; and

    o)the mother will have some distress arising from being required to facilitate that time.

    These are all very much triable issues and disputed.

19. These matters have to be weighed up; one against the other.  I can accept, with the history that I have given, that the mother will find it difficult to support an order of the Court that the child spend time with the father, even in a supervised environment, but I am not satisfied that that risk overrides the benefits of the child on an interim basis, of being given the opportunity to spend time with the father, in a supervised environment, where the other risks cannot sensibly amount to unacceptable to the child in a supervised environment, even if found to be true.

20. Initially, the Independent Children’s Lawyer was opposed to time occurring but, by final submissions, indicated that she would support supervised visits.  Of course, the father, sensibly in my view, does not seek today for his ultimate relief, which is that the child live with him.  He does not seek orders today for unsupervised time.  He accepts that there will be a need to be cautious.  Caution is something which must always be uppermost in a Court’s mind, whilst weighing up the relevant provisions of the Family Law Act 1975.  In this case, as the Full Court identified in Marvel v Marvel [2010] FamCAFC 101 at paragraph 120:

    As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party…

    In this case, I would say the mother:

    …who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.

1. Ms Newton also brought to my attention the remarks of Murphy J, sitting as a Full Court, constituted by a single judge, in the decision of Jopson & Lilwall (No. 2) [2016] FamCAFC 262 where, at paragraph 56, his Honour says:

   The notion that the judges of this court, or judges of the Federal Circuit Court, are not haunted by the prospect of erroneous assessments of risk is as offensive as it is false. But assessments have to be made. Best interests involve a balance. Some assessments of risk are to be made after a trial and a careful assessment of the evidence. But, some assessments of risk have to be made at interim hearings in the absence of the deliberations inherent in a trial. If it were otherwise, there could never be an interim decision that did not default to the entire acceptance of a case that asserted risk.

2. I am also reminded, having briefly canvassed with the parties today, every one of the relevant primary and additional considerations set out in s.60CC(2) and (3), that the Full Court in Banks & Banks [2015] FamCAFC 36 made clear that the Court, on interim decision, should focus on those considerations which are likely to be determinative. In this case, the issue here is risk. The issue is taking the mother’s case at the highest, whether that risk is unacceptable on an interim basis, if the time spent between the child and the father is in a supervised environment. I do not say that the Court, when all the evidence is considered, will make any particular finding about the matters raised by the mother and denied by the father of sexual abuse, compromised parenting as a result of ice addiction and of family violence. The issues within the genre of parenting styles are more difficult and really are triable issues, but the length of time that has occurred since the child spend time with the father, and the other evidence persuades me that even if the mother has some concerns about the father’s relationship, then she could well undertake the steps identified by the independent Psychiatrist Dr G, and if she does so and that evidence is before the Court, it will be properly considered at a trial.

3. For these reasons, I am satisfied, on an interim basis, that it is in the best interests of the child, that she begin spending supervised time with the father.  In my view, that should occur as soon as possible.  I am told, from the bar table, by the three experienced practitioners from K Region, that time can occur within about eight weeks and that the most that can be offered would be two hours a fortnight.  It is not available to the Court to extend that time.  On the evidence before the Court, at this stage, I am not prepared to consider other supervisory arrangements.

4. I therefore make the orders which appear at the commencement of these Reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 January 2018.

Associate: 

Date:  5 March 2018