Banks and Wallace

[2016] FamCA 708

FAMILY COURT OF AUSTRALIA

BANKS & WALLACE [2016] FamCA 708

FAMILY LAW – CHILDREN - Interim - Whether the child should spend supervised time with the father - Where the mother has withheld the child for seven months - Where there are allegations of sexual abuse.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 60DA, 60DAA, 60DAC.

Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Banks

RESPONDENT: Ms Wallace

INDEPENDENT CHILDREN’S LAWYER: Ms Boulton

FILE NUMBER: BRC 4389 of 2015

DATE DELIVERED: 26 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 August 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ogge Law

COUNSEL FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boulton

Orders

By consent

1. Until further Order paragraphs 6, 7, 14, 15, 22 and 23 the Order made on 27 November 2015 be suspended.

2. Until further Order the parents be restrained from discussing any adult issues with the child including any allegations of abuse.

3. That the parents attend upon Mr B and ensure that the child also attend for the purpose of the preparation of a family report at times and dates advised by the Independent Children’s Lawyer.

It is further ordered until further order

1. That the father spend time with C born … 2008 at all such times as may be agreed but failing agreement for four hours each Saturday commencing on Saturday 3 September 2016 to be supervised by Ms D.

2. That the father meet the costs of the supervision in the first instance but be at liberty to seek a contribution to all or part of the costs incurred at the final hearing.

3. That the matter be listed for final hearing for three days commencing 10:00am on 4 January 2017.

4. That the father pay the setting down and hearing fee by 4:00pm 28 days prior to the commencement of the trial unless a fee exemption application has been approved beforehand.

5. That the father file and serve any affidavits of evidence in chief by himself and any witness by 4.00pm 28 days from the date of this Order.

6. That the mother file and serve any affidavits of evidence in chief by herself and  any witness by 4.00pm 14 days after being served with the father’s material.

7. That the father file and serve any affidavit strictly in response by 4.00pm 14 days after being served with the mother’s material.

8. That the Independent Children’s Lawyer shall forthwith notify the single expert/s in writing of the trial dates and confirm the availability of the single expert/s to give evidence on those dates.

9. That any applications for any party or witness to appear by telephone or video link shall be filed by no later than 4:00pm 14 days prior to the commencement of trial.

10. That the matter will be listed before Registrar Brooks for a Compliance Hearing on a date to be advised.

11. That each party including the Independent Children’s Lawyer shall file and serve a case summary document no later than 7 days prior to the commencement of trial including a chronology; list of applications or responses and affidavits to be relied upon at trial; list of witnesses proposed to be called at trial pursuant to subpoena; and a summary of argument with any authorities relied upon.

12. Leave is granted to only the Independent Children’s Lawyer to photocopy the documents produced by subpoena and provide the photocopies to counsel for the mother and father (if any) with any costs associated with photocopying to be paid by the parties and on the condition that the photocopies are returned to the Independent Children’s Lawyer at the conclusion of the trial.

13. The mother and father shall each provide to the Independent Children’s Lawyer a detailed list of documents (sufficient to enable to Independent Children’s Lawyer to identify the document) required by each of them to be included in a bundle to be tendered at trial by no later than 4:00pm on 4 November 2016.  The Independent Children’s Lawyer shall then provide a proposed index of the documents to be included in the tender bundle to the parties by no later than 4:00pm on 18 November 2016.

14. If any of the parties require these trial directions to be modified, that party may make an application to do so on the giving of 7 days notice in writing to each other party.

15. If any of the parties at any stage forms the view that the matter may not be ready to proceed to trial on the allocated dates, or may require a longer time for hearing than the allocated dates, that party must contact the Associate to Justice Carew on notice to the other parties to seek that the matter be urgently relisted.

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 Banks & Wallace 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: BRC 4389  of 2015

Mr Banks

Applicant

And

Ms Wallace

Respondent

REASONS FOR JUDGMENT

1. The parties to this interim parenting application are Ms Wallace (“the mother”) and Mr Banks (“the father”).

2. C (“the child”) born in 2008 is their child.

3. On 27 November 2015 an interim parenting order was made by consent providing inter alia that the child spend time with her father each alternate weekend and during holidays and special days.

4. The mother by her Application in a Case filed 24 March 2016 seeks a suspension of the ‘spend time with’ order.

5. By his Response filed 13 April 2016 the father sought an order dismissing the mother’s application but at this hearing did not press the dismissal and supported the order sought by the Independent Children’s Lawyer for supervised time pending a final hearing.

6. The father has not spent any time with the child since February 2016.

7. The only issue for determination at this interim hearing is whether there should be limited supervised time between the child and her father pending a final hearing.

Relevant background facts

1. The mother and father commenced cohabitation in May 2007 and separated in October 2014.

2. The mother is twenty-seven years of age having been born in 1989.

3. The father is thirty-five years of age having been born in 1981.

4. Each of the parties has re-partnered.

5. On 7 July 2015 the parties consented to an order providing inter alia:

   a)The parents to have equal shared parental responsibility;

   b)The child live with the mother;

   c)The child spend time with the father each alternate weekend from after school Friday until Sunday afternoon commencing 8 August 2015;

   d)The child communicate with the father by telephone each Tuesday and Thursday;

   e)That a family report be prepared.

6. Mr E prepared a family report annexed to an affidavit filed 29 September 2015. Mr E recommended inter alia that the child spend time with her father each alternate weekend from after school Friday until before school Monday with an increase at some future point of a further 1 – 2 days a fortnight.

7. A further interim consent order was made on 27 November 2015 providing inter alia the child to spend alternate weekends with her father from after school Friday to before school Monday, holidays and special days.

8. On 14 April 2016 the mother’s Application in a Case came before Judge Demack. While an order was made for both parties to undergo an intake session with Ms D at the Suburb F Contact Centre it is common ground that the mother’s application for a suspension of time was not dealt with before the matter was transferred to this Court.

9. The mother opposes the father spending any time with the child, even supervised.

10. The Independent Children’s Lawyer proposed an interim order as set out in exhibit 8 and the father adopted that proposal. The mother consented to an order in terms of 3 and 4 of that draft.

How interim parenting applications are determined

1. Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper (Goode & Goode (2006) FLC 93-286), but such consideration will focus in particular on issues that will be determinative at an interim hearing. As the Full Court observed in Banks & Banks (2015) FLC 93-637:

   48. … By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   49. … It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.

   50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

2. In any event, whether the hearing is interim or final, the Court is not required to make findings of fact on every factual dispute raised by the parties (Baghti & Baghti [2015] FamCAFC 71).

3. Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:

   a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

5. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.

6. Section 60CC then outlines the primary and additional considerations that the court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

8. Family violence is defined in s 4AB of the Act to mean violent, threatening or other behaviour that coerces or controls a member of a person’s family or causes the family member to be fearful. Making repeated derogatory taunts is an example included as behaviour that may constitute family violence.

9. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

10. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

11. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.

The mother’s case

1. The mother’s case is that the father presents an unacceptable risk of harm to the child even with supervised time. She contends that the child has made statements to her which cause her to believe that the father has sexually molested the child. She contends that the child is acting out, having nightmares and has stated a wish not to see her father.

2. The quoted statements attributed to the child are set out in the mother’s affidavit filed 24 March 2016 and it is clear that the mother asked the child questions which elicited certain responses, as follows:

   Monday 8 February 2016 – “My private is really, really sore”; “it’s all the time”; “no, I think someone touched me on it”; “I think I remember someone doing it.. but I was asleep”; “I think it might have been daddy”; “well we were staying at [G’s] house and usually I sleep in with [G] when we have sleepovers but daddy wouldn’t let me and wanted me to sleep with him which I think was his plan .. but I had undies on”; “so he could touch my private when I was sleeping”; “on a mattress in the lounge room where the pool table is”; “he probably did.. BUT I was sleeping”; “well if he did touch my private he would of pulled my undies and my shorts down and just touched it”; “I am telling the truth”.

3. The mother contacted the Department of Child Safety in Queensland and reported what the child had said. On their advice she contacted the Police and took the child to a doctor. On 9 February 2016 the child was examined by Dr H. The mother contends that she told the doctor they were attending because “[The child] thinks maybe someone touched her vagina when she was with her father on the weekend”. The mother states the doctor asked the child who she thought had touched her on the vagina and the child responded – “him” and when the doctor asked who is him, the child replied “Daddy”. The mother contends that during the examination of the child’s genitals, the doctor invited the mother to look “as the Vulva and vagina walls were extremely inflamed (swollen) and irritated”.

4. On 9 March 2016 the child was interviewed by police but the mother states the child did not divulge anything concrete to support a prosecution.

5. The mother contends that since 8 February 2016 the child has had night terrors that the father will “steal her from school or our house” and has stressed herself to a state of physical illness. The mother states the child has been having extreme mood swings, tantrums and fits of crying since February.

6. The mother contends her fears for the child’s safety and mental state have increased since the child drew a picture and in response to questions from the mother explained that the picture depicted two people with nooses around their necks and blood from their bodies representing the father and his grandmother. The mother contends that the child stated she had stabbed them both seventeen times and hung them up and that she hated them because they are horrible people. The mother annexes the child’s drawing.  

7. The mother also relies on exhibit 7 (doctor’s records) dated 7 April 2016 where a Dr I has recorded inter alia:

   Needs mental health care plan:
   Has seen a psychologist:
   Nightmares
   Fear of her father stealing
   Persistent anxiety going to school
   Fearful
   Suspected sexual abuse report – no further action taken
   Mum refusing to let father having (sic) the child
   Significant mood swings
   Waking up crying
   Temper tantrums

The father’s case

1. The father denies the mother’s allegations but submits that supervision is appropriate pending a final hearing in order to protect him from further allegations.

2. The father states that the child had complained of being sore in her genital area at one point on the last weekend she spent with him but seemed fine when he dropped her at school on Monday.

3. The father refers to a telephone call he and the mother had on 8 February 2016 wherein he alleges the mother said inter alia – “Well I think you have been touching her up”. The father also states that he told the mother that the child had complained of some discomfort the previous evening and reminded her that ‘[The child] has had this type of issue previously and the doctor said it was some type of urinary tract infection’. He also states that he reminded the mother that on another occasion ‘she had sent the child to his house with a canister of cranberry effervescent tablets that are supposed to assist with urinary infections.’

The Independent Children’s Lawyer’s submissions

1. The Independent Children’s Lawyer points to the fact that the child has had no contact with the father for nearly seven months and according to the mother has been having nightmares and exhibiting behavioural difficulties.

2. It is submitted that the child should re-commence time with the father but it should be supervised so as to provide some support for the child and to enable the Court to receive some independent evidence from the supervisor as to the progress of that time.

Other evidence

1. In the documents produced by the Queensland Police Service it is noted:

   a)An allegation was made that the child slept in the same bed as her father on the night of 6 February 2016 and that the father had pulled the child’s pants down and digitally penetrated her vagina;

   b)The GP who examined the child conducted a superficial examination of the inner labia and the vagina looked inflamed. In the absence of the information from the mother the doctor would have diagnosed a mild fungal infection;

   c)The prior child protection history includes a ‘child concern report’ from 30 June 2015 including ‘concerns’ that the child disclosed she was fearful of her father and a statement allegedly made by the child that ‘sometimes its ok for daddy’s to have sex with their daughters’.

2. In relation to the child concern report there is no information as to who may have made the ‘complaint’ and the mother does not disclose any such statement attributed to the child. The report did not become a child protection notification it would seem and no further action appears to have been taken.

1. In the records produced by the New South Wales Police it is noted:

   a)On 9 March 2016 the mother and the child attended the J Town Child Abuse Squad office and the child was interviewed. the child stated that she had slept in a separate bed to her father on the relevant night and drew a picture indicating that. The drawing forms part of exhibit 6. the child stated that she had been to the doctor and the doctor thought the father had touched her rude part. She explained that she knew the doctor thought this because her mother told her.  

   b)As the child did not disclose any offences the matter is no longer the subject of police investigation.

2. The doctor’s records which were produced pursuant to subpoena indicate that on 9 April 2016 the child was brought to the surgery by her mother. the child had complained of a stinging vagina. The notes record that the mother informed the doctor ‘that the child mentioned to her that her dad touched her there, when she spent the weekend time with him’. the child described to the doctor the sensation as ‘bees and wasps sitting there’ but that symptoms were lightly better. The mother informed the doctor that there was a similar episode last year when the child complained of vaginal soreness and the mother noticed ‘mild spotting’ but did not mention it to anyone. The doctor conducted an external examination of the vaginal/vulval area. It is noted that ‘[The child] had her eyes covered with her hands all the time’. There were ‘no obvious external injuries. The labia and vaginal walls – inflamed. No other abnormal findings noted.’ There is no record of the child making any statements to the doctor suggestive of sexual abuse. The notes also record ‘normally, I would have advised topical HC for the inflammation, but for now, advised her to try simple vaseline’.

Discussion

1. On the evidence before me I am not satisfied that the child would be exposed to an unacceptable risk of harm were she to have supervised time with the father. I am concerned about some inconsistencies in the evidence relating to the allegations made against the father but those are matters to be dealt with at trial.

2. I am unable to determine the reasons for the child’s alleged behavioural issues. It may well be that she is missing her father. She has undergone police interview, medical examination and significant questioning by her mother. The evidence of alleged abuse taken at its highest is at best equivocal.

3. The child has a right to spend time with her father and I am satisfied that it is in her best interests to do so. I propose to adopt the Independent Children’s Lawyer’s recommendation for supervised time, as supported by the father, but I consider the time should be more than two hours fortnightly, if possible.  

4. The Independent Children’s Lawyer has arranged for an updated family report to be prepared with interviews to occur on 12 September 2016 and this matter will be listed for trial in early January 2017.

5. Ms D operates a contact service and provides supervision. The Independent Children’s Lawyer has informed me that she has the capacity to facilitate supervised time each week for four hours and the father is prepared to pay any costs associated with same.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 26 August 2016.

Associate: 

Date:  26 August 2016