Baillon & Baillon

[2012] FamCA 1018

FAMILY COURT OF AUSTRALIA

BAILLON & BAILLON & ANOR [2012] FamCA 1018

FAMILY LAW – CHILDREN – Best interests of child – Where the maternal grandmother made an application for interim parenting orders pending final determination – Where the child’s maternal grandmother made allegations that the child disclosed sexually abusive behaviour by the father – Where orders were made appointing an independent children’s lawyer and for the Director-General of the Department of Community Services to furnish a report concerning the maternal grandmother’s allegations – Where the application is determined without the benefit of either the independent children’s lawyer or the report – Where orders made that the child live with the mother upon the father’s undertaking to vacate the home they share and that the father have limited supervised time with the child.

Family Law Act 1975 (Cth)

APPLICANT: Ms B Baillon

1st RESPONDENT: Ms Baillon

2nd RESPONDENT: Mr Dacio

FILE NUMBER: SYC 7058 of 2012

ORDERS MADE: 3 December 2012

DATE DELIVERED: 7 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 3 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr McDonald

SOLICITOR FOR THE 1ST RESPONDENT: Mr Bell

SOLICITOR FOR THE 2ND RESPONDENT: Ms Cantrall

Orders made 3 december 2012

Pending further order or the further hearing to be listed in accordance with the directions of Stevenson j

1. Upon the undertaking of Mr Dacio that he will vacate his parents’ home and remain away therefrom the child, C born … October 2007 shall live with the respondent mother Ms Baillon.

2. That the child shall spend time with the father from 10.00 am to 4.00 pm each Saturday which time is to be supervised by the child’s paternal grandfather, Mr D Dacio.

3. That the child shall spend time with the maternal grandmother from 9.00 am Sunday to the start of school Monday or 10.00 am whichever is applicable.

4. All parties are restrained from discussing with the child the allegations that have been made in these proceedings.

5. Other than with the mother’s consent the parties are restrained from presenting the child to doctors or other health professionals unless it is an emergency or at the direction of the NSW Police or a Child Protection Agency.

6. The Court notes these orders are made on the basis that the mother will reside during the period of the adjournment at the paternal grandparents’ residence.

7. Liberty to apply on 48 hours notice.

8. The parties have leave to approach the chambers of Stevenson J with a view to a further interim hearing following the release of the Magellan Report.

9. Other than as is provided above the father is restrained from having contact with the child.

10. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7058 of 2012

Ms B Baillon

Applicant

And

Ms Baillon

First Respondent

And

Mr Dacio

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for interim parenting orders in relation to five year old C.  Ordinarily, interim applications focus on uncontroverted facts and where risk issues arise, an assessment of those issues.  Central to this case are allegations made by the child’s maternal grandmother that the child disclosed sexually abusive behaviour by her father.  The application came before me in a duty list when time constraints made it impossible to deliver reasons.  Thus orders were made with the reasons for the orders to be given later.  These are those reasons.

2. On 27 November 2012 orders were made for the appointment of an Independent Children’s Lawyer (“ICL”) and for the Director-General of the NSW Department of Family & Community Services to furnish a report concerning the maternal grandmother’s allegations.  This application is determined without the benefit of either. 

3. So that it is clear, the maternal grandmother’s allegations have been brought to the attention of the Department of Family & Community Services, NSW Police and two hospitals.  In relation to the hospital examinations, the child was diagnosed with vulvitis and discharged home with “advice to give salt baths and observe proper hygiene”.  It is understood that no action has been taken by the Department of Family & Community Services or Police.  The effect of this is that while the maternal grandmother has brought her concerns and evidence to these agencies and the child has twice been seen by hospital staff, at this stage, there does not appear evidence that those agencies consider that the child may have been sexually abused or at risk of it.

4. In her affidavit the maternal grandmother says that other than for a few months, the child has always lived with her and she has been her primary carer.  She gives evidence about the mother and father being drug users whose relationship has been marred by the misery so often involved in a life bedevilled by addiction.  Namely, relationship violence, abuse, an itinerant lifestyle along with personal neglect and risk taking behaviour. 

5. Subject only to a concession in relation to marijuana use, the mother denies virtually all of her mother’s evidence.  According to her, she and her mother have had an unhappy relationship.  She says her mother is controlling and denied her the opportunity for a relationship with her own father.  Although she agrees that she and the child have lived with the maternal grandmother for much of the child’s life, she says this has occurred in circumstances where the maternal grandmother has tried to take the child as her own.  Thus, when the maternal grandmother raised allegations of child sexual abuse in the manner described in the grandmother’s affidavit, she decided the situation was untenable and left with the child.  This occurred in early November 2012 since when the mother and child have stayed with the father’s parents and the father.  That the mother did this without hearing the results of the hospital attendances is disturbing and bespeaks a lack of judgment in relation to the assessment of risk.

6. The matter came before the Court in a duty list on which occasion the mother and maternal grandmother were each represented and the father appeared with the duty solicitor.  Evidence was filed by his father, essentially in support of the mother’s application that the child lives with her and offering to supervise the child’s time with the father.  The Court was informed that the father supported the mother’s position.  In the event it was agreed that the matter would be further considered after a Magellan Report is received (mid January 2013) and that these orders would endure for no more than about eight weeks.  The father agreed he would vacate his parents’ home and it was common ground that the father would have time with the child supervised by his father. 

7. At the Court’s request the paternal grandfather gave evidence in relation to his responsibilities as a supervisor.  He confirmed that the child would not be alone with the father and that the father would have no role with her bathing or toileting.  The latter aspects of the child’s care will be attended to by the paternal grandmother.  The paternal grandfather said on his oath that if he observed anything by the father which caused him concern or the child said anything which indicated he may have behaved towards her inappropriately, this would be reported to the ICL and Police.  The paternal grandfather is a retired Police Officer and notwithstanding some misgivings engendered by his disbelief that his son may have abused the child, he is accepted (indeed put forward by all parties) as an appropriate supervisor for the period of the adjournment.

8. The father and mother proposed that the father have more time with the child than the one day 10.00 am to 4.00 pm period which is ordered.  Since 2009, the child has routinely spent each alternate weekend with the father at his parents’ home and has had time with the child at other times by arrangement with the mother.  One day each week is assessed as sufficient to maintain the child’s relationship with the father without creating a thoroughly disorganised living arrangement.  In addition, a single period each week does not impose too great a strain on the paternal grandfather for vigilant supervision; the point being, more frequent or longer periods may make it difficult to maintain an appropriate degree of vigilance.

9. The more difficult issue is whether the child should return to the maternal grandmother’s home where there is no doubt she has lived for at least the last two years (albeit also with the mother).  An order along those lines would have the child in familiar surroundings and cared for by her maternal grandmother who has obviously played a very significant role in her day to day care.  This would come at the expense of living with her mother.  Presently the mother and maternal grandmother’s relationship is fractured and in the interregnum it is unlikely this will improve.

10. The gravamen of the submissions made against the notion that the child should not be left in the mother’s care focussed upon the maternal grandmother’s fear that the mother will not protect the child from the father.  The point being there is no evidence that the mother has used illegal drugs or engaged in risk taking behaviour this year.  Nor is there any issue that just as the child has lived with the maternal grandmother for the last couple of years, so has the mother.  However, the volatile nature of the mother and maternal grandmother’s relationship has meant that most weeks the mother has spent a number of days away from her mother’s home.  For a period she had her own bedsit accommodation and she also regularly stayed with her great aunt.  It follows that the maternal grandmother has probably been more consistently involved in the child’s day to day care than the mother.  Whether, as the mother contends, when they were both present she rather than her mother was primarily responsible for the child’s care is contentious.  There is also a factual dispute about whether for the preceding year and a half the mother and child lived independently of her mother.

11. Ultimately, irrespective of past difficulties, the evidence would indicate that during 2012 at least the mother has been undertaking full-time study, has not abused illegal drugs and been actively involved in the child’s care.  The child has attended preschool, spent alternate weekends with her father and his parents.  The maternal grandmother has been consistently involved in the child’s care albeit, according to the mother, she started to refuse to allow the child to call her “mummy”, insisted the child call her by her Christian name and tried to take the child over. 

12. If what the mother says is right the parent-child relationship could be at risk if the child resides with the maternal grandmother.  Provided the mother has adequate accommodation those risks do not arise viz the maternal grandmother or the child’s paternal relatives.  Injunctions can be put in place which protect the child, as well as the efficacy of further child protection investigations.  Then, as was mentioned earlier, equipped with better evidence as to both  risk and relationships, the Court will be in a position to make longer term, albeit another interim decision.

13. It was argued by the father and mother that the child’s time with the maternal grandmother should be supervised.  This was said to be necessary in order to protect the child from being pressured to disclose against the father.  Although the maternal grandmother’s evidence would appear to reveal suggestive and leading questions, these have been disclosed and the risk of further such conversations is able to be addressed by appropriate injunctions.  In this regard, it is understood that injunctions are not a complete answer to the risk of contamination of investigations but short of the child being removed from the family (which the Department of Family & Community Services has not done) this risk must be managed along with the other risks already referred to.  Thus, it will be ordered that the child spends weekly unsupervised overnight time with her grandmother.

14. In the difficult circumstances of this application I am satisfied that for the next few weeks, these orders are in the child’s best interests.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 7 December 2012.

Associate:     

Date:              7 December 2012