C and C
[2002] FMCAfam 146
•20 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2002] FMCA fam 146 |
| FAMILY LAW – parenting orders – residence, contact and specific issues – whether child should be placed into the care of DOCS – assessment of risk factors – child abuse – violence and alcohol abuse. Family Law Act 1975 (Cth), ss. 60B, 65E, 68F Part VII A v A (1998) FLC ¶92-800 |
| Applicant: | RJC |
| Respondent: | AGC |
| File No: | NCM3284 of 2001 |
| Delivered on: | 20 June 2002 |
| Delivered at: | Sydney via telephone link to Newcastle (heard at Newcastle) |
| Hearing Date: | 18 December 2001 19 December 2001 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr M Bateman |
| Solicitors for the Applicant: | McDonald Johnson Lawyers |
| Solicitor for the Respondent: | Mr R Powe Rod Powe Lawyers |
Solicitor for | Mr P Hartley |
| Counsel for DOCS: | Mr M Graham |
ORDERS
THAT the orders made by the Family Court on 7 May 1999 and undertakings previously given by the father and mother be discharged.
THAT CC, born 14 December 1994 (“the child”), live with the father.
THAT the mother have contact with the child as follows:
(a)each alternate weekend from 5.00pm Friday until 5.00pm Sunday (or 5.00pm Monday if Monday is a public holiday) commencing on 21 June 2002;
(b)each Wednesday between 3.00pm and 7.00pm;
(c)for the first half of each school holidays (excluding the Christmas school holidays) commencing on the first full day of the holidays at 9.00am until 9.00am on the day that is the midpoint in the holidays between the first full day and the last full day of the holidays;
(d)for the Christmas school holidays (subject to order 1(e)) in even numbered years from 9.00am on the first full day of the holidays until 9.00am on the day that is the midpoint between the first and last full days of those holidays, and in odd numbered years, from 9.00am on the day that is the midpoint until 9.00am on the last full day of those holidays;
(e)on Christmas Day in even numbered years from 12.00 noon until 12.00 noon on Boxing Day and in odd numbered years from 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day;
(f)on the child’s birthday if it falls on a school day, between 4.00pm and 7.00pm in even numbered years, and between 4.00pm on the day before the child’s birthday and the commencement of school on the child’s birthday in odd numbered years, and if it falls on a day that is neither a school nor a contact day, between 12.00 noon and 6.00pm in even numbered years and between 9.00am and 3.00pm in odd numbered years;
(g)on Mother’s Day, if it is a non contact weekend, between 12.00 noon and 7.00pm;
(h)by telephone at any reasonable time if requested by the child or if initiated by the mother but at least each Tuesday between 6.00pm and 7.00pm, to be initiated by the mother, at which time the father is to ensure that the child is available and that the child has reasonable privacy for the duration of the call;
(i)at such other times and in such other manner as may be agreed between the parties.
THAT contact pursuant to order 3 is suspended:
(a)on Father’s Day from 12.00 noon should it fall on a contact weekend; and
(b)on the child’s birthday, should it fall on a contact weekend, from 12.00 noon until 5.00pm.
THAT contact pursuant to order 3 is to begin and end at the McDonald’s Family Restaurant at Cessnock, or at such other place or places as may be agreed between the parties.
THAT each parent is responsible for the day to day care, welfare and development of the child when she is in the care of that parent pursuant to these orders.
THAT the parent responsible for the care of the child is to contact the other parent as soon as practicable if:
(a)the child becomes seriously ill;
(b)the child is hospitalised; or
(c)the child is involved in an accident.
THAT each parent provide consents and authorities to:
(a)allow the provision to the other parent or to a medical practitioner of any medical report concerning the child;
(b)permit the child’s school to provide reports, notices and school photographs to the other parent;
(c)permit the other parent to attend the child’s school for any special event or at other reasonable times subject to the direction of the school authorities;
(d)permit the other parent to discuss with the child’s teacher(s) the child’s performance.
THAT each parent is required to use their best endeavours to ensure that the child maintains social, educational and sporting commitments during periods when the child is in the care of that parent.
THAT each parent is restrained from:
(a)allowing the child to have contact with the maternal grandfather except in the presence of the mother or another responsible adult;
(b)allowing the child to have any overnight contact with the maternal grandfather until the child attains 13 years of age;
(c)consuming alcohol to excess or consuming any illicit substance during any period when the child is in the care of that parent;
(d)denigrating the other parent or any member of the other parent’s family in the presence or within the hearing of the child, or knowingly permitting any other person to do so;
THAT the parents attend the Hunter Child Protection and Family Counselling Service and abide by the reasonable directions of the Department of Community Services for the purposes of the preparation of a proper assessment of the child’s care and welfare needs, and that the parents participate in that assessment as requested and abide by any report or recommendations prepared.
THAT until the child attains 13 years of age the following additional orders apply:
(a)each parent must report in writing to the Department of Community Services any allegation of abuse of the child, including but not limited to sexual abuse;
(b)neither parent is to submit the child for any medical examination pertaining to any abuse allegation without the prior agreement of the Department;
(c)each parent is to provide whatever consents and authorities may be necessary for the Department to supervise the child from time to time as it sees fit;
(d)each parent is to notify the Department forthwith of any change of address of either of them, or of the child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM3284 of 2001
| RJC |
Applicant
And
| AGC |
Respondent
REASONS FOR JUDGMENT
Introduction
RC (“the father”) and AC (“the mother”) are the parents of a special little girl called CC (“the child”). The child is seven years of age. The parents have made competing applications for final residence, contact and specific issues orders. Either of those applications would require the Court to discharge earlier final consent orders which provided for a shared care arrangement, week and week about. Both of these parents have had trouble in their lives. Serious issues were raised in the proceedings and the conduct of the proceedings was somewhat vexed. I made a series of interim orders on 26 July 2001, 1 August 2001, 10 October 2001, 30 November 2001, 19 December 2001 and 15 February 2002. The mother foolishly failed to return the child to the father on 27 July 2001 as required by orders that I had made the day before. I suspended the previous residence order in favour of the mother on 1 August 2001 and since then the child has lived with the father, subject to a progressively increasing amount of contact with the mother.
As well as the parents there was a child’s representative and the New South Wales Department of Community Services (“DOCS”) was also represented. There have been at least nine separate notifications to DOCS about this child. Very serious issues of sexual abuse, violence, alcohol abuse and other inappropriate behaviour were raised in the proceedings. I must decide between the competing residence and contact applications, as well as considering whether the child should be removed from both parents and placed into the care of DOCS. Important risk factors relating to abuse and violence need to be weighed in order to ensure that appropriate specific issues orders are made to protect the child if she is to live with either parent. This is a heavy burden placed upon me but it has been made lighter by the assistance I have been given by the legal representatives for each of the parties. The trial took place over five days and there has been extensive evidence given. I have been assisted by written submissions prepared by each of the legal representatives. I understand that the parents were each in receipt of limited legal aid but that Mr Powe, for the mother, in particular, acted for most of these proceedings without receiving any fees. I could not have dealt with this matter effectively without the dedicated and professional assistance of the practitioners. They should not have to work for nothing. The fact that Mr Powe has done so for much of the time of this matter is a credit to him.
This was a complex matter. The hearing was completed on 28 March 2002 but written submissions were not received from all of the representatives until 22 May 2002. I mean no criticism. Significant additional time has been taken up in the preparation of these reasons. Having regard to the length of the hearing, the burden placed upon the Court and the legal representatives and the complexity of the issues and extensive nature of the evidence presented, a serious question arises whether this matter should have been transferred to the Family Court. That issue will need to be kept in mind when future such cases arise.
Background
The present proceedings were commenced by the mother in the Local Court at Maitland on 22 May 2001. The father responded in this Court and the matter has proceeded in this Court since then. The orders finally sought by each parent are generally unremarkable in that each parent seeks orders that the child live with them but have regular contact with the other parent. It is conceded on both sides that contact with the maternal grandfather should be at least restricted, in view of a sexual abuse allegation made against him. Both the child’s representative and DOCS support orders controlling any contact between the child and the maternal grandfather. The separate representative submits that the issue of who the child should live with should be determined by the view I take concerning the sexual abuse allegation against the maternal grandfather. DOCS seeks either an order that the child be placed into the care of DOCS if both parents are found to be unsuitable or, alternatively, orders ensuring that DOCS is able to supervise the parenting of the child.
In resolving these issues I have had regard to affidavits by the parents which they rely upon and also affidavits by the mother’s de facto husband, AS, the mother’s maternal aunt MC, the father’s de facto wife, LS and an affidavit by a private investigator, GP. GP did not appear when required for cross-examination and although I received his affidavit in evidence I give it minimal weight.
Two family reports are in evidence, both prepared by Dr Robyn Cotton. The first report was prepared for prior proceedings in 1999 and only exists in draft, because those proceedings were settled. The second report is dated 29 October 2001. Dr Cotton was cross‑examined on both reports. In the first report Dr Cotton recommended that the child live predominantly with the father. In the second report Dr Cotton recommended that the child live predominantly with the mother. I also admitted into evidence the New South Wales Police / DOCS Joint Investigation Team (“JIT”) file in respect of the sexual abuse allegation made against the maternal grandfather and the subsequent retraction of that allegation by the child. The file also deals with a separate allegation against the father. In addition, I received into evidence and viewed in closed court two video tapes of police interviews with the child on 11 April 2001 and 4 May 2001. I also received into evidence and listened in closed court to an audio tape of an intervening interview on 3 May 2001. Dr Cotton also viewed the video tapes and listened to the audio tape and gave further evidence afterwards.
Consideration and findings
Mr Bateman, for the father, submits, and I accept, that events of sufficient importance have occurred since 7 May 1999, when the existing final consent orders were made, to warrant the exercise of my discretion to alter those existing orders. The shared care arrangement put in place by the orders made in 1999 has resulted in unremitting conflict between the parents and their extended families over the past year and is clearly unworkable. New residence, contact and specific issues orders are called for. These are all parenting orders which arise in proceedings conducted under Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). Section 60B sets out the objects of Part VII and the principles which underlie those objects. These are subject to s.65E which establishes that the best interests of the child is the paramount consideration.
The issue of the abuse allegations that have been made against the maternal grandfather and the father are of fundamental importance in these proceedings, but the paramount consideration remains the best interests of the child: M v M (1988) 166 CLR 69. I accept that it is not my role to determine the truth of these allegations in a way that a criminal court would do. I should not make a finding that sexual abuse has occurred unless I have to and a positive finding of sexual abuse must be satisfied according to the Briginshaw standard. I also accept that if I cannot determine whether or not there has been abuse, I must determine whether, in all the circumstances, there is an unacceptable risk to the child should the child live with or have contact with a particular person: A v A (1998) FLC ¶92-800.
I was referred to the above cases by Mr Bateman, Mr Powe for the mother and Mr Hartley, the separate representative. In addition, I was referred by Mr Bateman to the decision of the Full Family Court in B v B (1993) FLC ¶92-357, especially at pages 79,780 and 79,781. In that case the Full Family Court considered the responsibility of supervisors when a court has found an unacceptable risk of future harm. The Full Court said this:
Family and friends are not neutral, but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is necessary. In a practical sense, they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period. … For the above reasons, it is in most cases undesirable for friends and family of the access parent to supervise children during access periods in the circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.
Those observations by the Full Court are particularly apposite in this case where there is a history of grave conflict between the families of the parents, and the parents themselves and where the capacity of family members to view objectively the allegations of abuse that have been made is open to serious question.
In deciding what orders will best serve the interests of this child I must consider the various matters set out in s.68F(2) of the Family Law Act. It is clear from that provision that the list of factors is not closed and that the infinite variety of individual children’s circumstances can be addressed. I have taken into account the following matters.
The child’s wishes
Little weight can be given to the child’s expressed wishes. This is because of her age and because the child’s wishes have been confused by the volatile relationship between the mother and father and their families which, in my view, has led the parents to unwisely seek to influence the child. At different times, the child has expressed wishes to live with both parents. Her comments to Dr Cotton and JIT indicate that the child is outgoing with a strong emotional attachment to both of her parents and her extended family. Dr Cotton observed in her second report at paragraph 119 that the child had told her she would like to live with one parent, then the other. This probably reflects the shared care arrangement which operated until about 12 months ago. While I give little weight to the wishes expressed by the child I am satisfied that those wishes indicate that the emotional attachments of the child to both parents does not establish any basis for choosing between them. Of more significance is the child’s attachment to her extended family, especially her step siblings. The strength of the child’s attachments to her extended family indicates to me that placement of the child into the care of DOCS and her placement in a foster home would require a very significant adjustment from her.
The nature of the child’s relationships
The nature of the child’s relationships with her parents and other relatives was analysed by Dr Cotton in her two reports. It is clear that the child has a close and loving relationship with both parents. It is also clear that the relationship between the child and the present partners of both parents is more distant. Under cross-examination, both AS and LS displayed a fairly reserved attitude to questions concerning the interests and welfare of the child. Both appeared to be conscious of the fact that the child was not their natural child and that she had a mother and father who could be expected to take a more direct interest in the child.
The child appears to have a strong relationship with her half sister who lives with the mother and the two daughters of LS who live with her and the father. In the second family report, Dr Cotton expressed concern that if the child did not live with the mother she would be denied a close and loving relationship with both her mother and her half sister, and that she may become alienated from them both. I agree that that risk exists but I do not agree that such a denial would necessarily flow from a residence order in favour of the father. The risk is no more than a risk and it needs in my view to be weighed against other risk factors arising in this matter.
The child also appears to have a normal relationship with her paternal grandparents and her maternal grandmother. The child has expressed contrasting accounts of her relationship with her maternal grandfather. She has both expressed affection for him and accused him of sexual molestation. The existence of affection (which I accept) does not exclude the possibility of abuse. I will deal with the issue of abuse separately.
The likely effects of any changes in the child’s circumstances
Up until approximately twelve months ago the child lived with each parent week on week off. When that arrangement made under the earlier consent orders broke down the child resided with each parent for longer periods while the other sought to secure the return of the child to their respective residences. Following a serious breach of interim orders I made I ordered that the child live with her father on an interim basis. A series of further interim orders has established a gradually increasing regime of contact with the mother. In the light of the abuse allegation levelled at the maternal grandfather there has been no unsupervised contact permitted between the child and the maternal grandfather for approximately twelve months.
The level of contact that the child now enjoys with her mother leads me to the view that orders that the child live with the mother would not cause the child to undergo a significant adjustment provided that the child continued to enjoy extensive contact with her father, his partner and his family. Likewise, an order that the child continue to live with her father and enjoy extensive contact with her mother, her partner and their family would maintain the status quo and the child would therefore not be required to make any significant adjustment.
Placement of the child into the care of DOCS and a foster home would require a very significant adjustment. That would be a dramatic change that, in my view, should not be contemplated unless the risk to the child’s welfare in both the mother’s and father’s homes were found to be unacceptably high.
An order that the child live with the mother would need to be reconciled with orders that dealt with the risk of abuse. If the child were to spend most of her time in her mother’s household without any contact with her maternal grandfather it could be expected that some strain would be put on the arrangements within her mother’s household. These are families who have regular contact between relatives.
Practical difficulties and expense associated with contact
The parents live within reasonably close proximity to one another and have a strong family support base nearby. Should the child live with either parent there would be no practical difficulties and little expense associated with the other parent having contact with the child.
Capacity of the parents to meet the child’s needs
The separate representative has submitted, and I accept, that there is no evidence pointing to anything in the behaviour of either of the parents within their own households which would suggest that the child, when in their care, is other than properly cared for and supervised, including the provision of appropriate and adequate housing, personal hygiene, nourishment and medical care.
Dr Cotton formed a positive view of the father’s capacity in her first report dated 7 May 1999. He was described as being coherent, sensible, articulate and a man who has taken on the responsibility of parenthood very seriously. Dr Cotton said that the father seems to be aware of the child’s intellectual, social, emotional and medical needs and said that “there is no doubt that he will be able to provide her with a supportive and appropriate environment in order for her to achieve her potential”: paragraph 29. At paragraph 114 Dr Cotton said:
RC assumed the role of a responsible parent and took over the full-time parenting of Cody at a time when her mother, AC, was still heavily addicted to drugs and alcohol and was unable to care for Cody. RC presented as a loving father who has a very high and realistic awareness of CC’s needs in terms of her ongoing treatment and surgery for a cleft lip and palate. He has shown that he is attentive to and aware of her physical, medical, social and emotional needs. The observation suggested that his attachment to CC is very strong.
In her first report Dr Cotton recommended that the child live with the father.
Dr Cotton’s second report dated 29 October 2001 drew conclusions less favourable of the father. While the father was once again described as a “caring father who clearly loved CC” he was also described as “a person who has his own interests as a very high priority” and who has been “deliberately obstructive in arranging contact” between the child and her mother. Dr Cotton said that the father “presented as a person in a position of power … as someone ‘smug’ about his perceived relative position of power”. Dr Cotton concluded that while the father has the capacity to be an adequate father, and that he undoubtedly loves the child, he was much more worldly wise and system wise than the mother and would do whatever it took to secure full time residency.
Dr Cotton formed a generally negative impression of the mother’s capacity in her first report. At paragraph 56 the mother was described as a person having a somewhat simplified understanding of the child’s general needs, displaying no recognition of the child’s possible emotional difficulties and the support that she would probably need and, in Dr Cotton’s then view, did not appear to be sufficiently emotionally mature herself to address the child’s needs for support. Dr Cotton noted, however, that the mother “may develop this maturity in due course”. Dr Cotton described the mother at paragraph 115 as follows:
[she] is a 23 year old unemployed woman who has a history of at least five years’ duration of drug and alcohol abuse. … AC appears to have been unable to care for CC without considerable assistance from family and friends. … [she] appears to have less awareness of CC’s needs than does RC… [she] expressed her understanding of Cody’s needs in a rather simplified form, without explicit recognition of the possible emotional support she may need over the next 10 to 15 years or more.
Some 17 months later in her second report, Dr Cotton formed the assessment that the capacity of the mother had improved significantly. Dr Cotton described the mother as a “more than adequate mother… she presents as a caring and loving mother.” The mother presented to Dr Cotton as a mother who loves both of her children (she has another daughter who is half sister to the child), who generally believes that the child’s best interests would be served by her being with her. She presented to Dr Cotton as being naïve in some respects and totally bewildered by the litigation process that has occurred since March 2001.
In her second report, Dr Cotton recommended that the child live with the mother.
There is a marked contrast in these two reports of Dr Cotton’s assessment of the two parents. It is not so much that Dr Cotton has formed a poorer view of the capacity of the father as a parent, but rather that she has formed a better view of the capacity of the mother as a parent. An important factor in that assessment was that the mother convinced Dr Cotton that she has overcome her drug and alcohol abuse problems. Dr Cotton also formed a negative view of what she believed to be the father’s manipulation of the “system” to secure full time residence of his daughter.
At the time Dr Cotton prepared her second report in October 2001 interim orders had been made by me that the child live with the father and have only limited supervised contact with her mother. It is likely in these circumstances that the father presented to Dr Cotton as a rather “cocky” figure who probably believed at that time that he had got what he wanted already. Both of these parents are relatively unsophisticated people who have taken some time to develop an understanding, no doubt with the assistance of their legal advisers, of the real issues that must be determined in parenting proceedings. As the proceedings advanced between October 2001 and March 2002 the father became progressively less sure of himself and more subdued in his demeanour. By the close of proceedings it was apparent that the father had accepted that the outcome he was seeking could not be taken for granted and that he needed to do more to demonstrate his capacity as a parent. It is probably with that in mind that the father has undertaken counselling to assist him with anger management and the abuse of alcohol, which it seems has been a problem for him. My assessment is that the father is a caring parent who has the capacity to meet the physical and emotional needs of the child adequately and who has a developing understanding of his role as a parent. He is taking positive steps to enhance his capacity.
The mother presented to me as an unsophisticated woman who has only slowly come to a realisation of what she needs to do to perform properly her role as a parent. I accept that the mother’s ability to provide for the physical and emotional needs of the child has improved significantly between the preparation of the first and second family reports. The mother appears to have abandoned the use of illicit drugs and moderated her use of alcohol. The mother clearly loves the child and would not willingly see her come to harm. It is, however, of concern to me that the mother did not respond properly when presented with the allegation of sexual abuse against the maternal grandfather. I will deal with this further later. Nevertheless, it does seem to me from the responses given by the mother under cross-examination that she is slowly and perhaps unwillingly coming to the realisation that there is an abuse risk factor within her family that she needs to deal with. The mother’s lack of maturity and sophistication has in the past left her open to undue influence from the maternal grandmother and other more forceful relatives such as her aunt MC. I find from the second family report, the mother’s evidence and that of MC that both the maternal grandmother and MC have fostered a highly partisan attitude by the mother in relation to allegations against the maternal grandfather. While the mother clearly has the best interests of her child at heart I am not convinced that the mother has yet developed the level of maturity necessary to ensure that she forms a view independently of her more strong willed relatives about what the interests of the child really are.
I also have some concern that the mother has displayed an unhealthy attitude of animosity to the father’s partner LS, which at one point required an apprehended violence order (“AVO”) to be made. Those feelings of animosity are evidently reciprocated by LS, who has herself been the subject of an AVO, and the mother should not bear all of the responsibility.
The mother showed a lack of maturity in “doctor shopping” in March 2001 to provide support for her decision not to return the child to the father in accordance with the consent residence orders. Further, the child’s school report of 19 June 2001 contains the comment, in relation to the child’s absences from school that she is “more likely to be absent when with the mother”. This supports my belief that, during the period of conflict over application of the shared residence orders, the mother was more likely than the father to use a claimed illness as justification to keep the child with her.
The child’s maturity, sex, background and other characteristics
The child appears to be emotionally developed at a level to be expected at her age. I have viewed her on videotape and she appears to be an intelligent, outgoing and reasonably articulate child. This is corroborated by the second family report. Dr Cotton has noted that the child was born with a cleft lip and palate and that corrective surgical treatment began when she was three months of age. The child had corrective surgery when she was 12 months old and is expected to have further surgery when she is eight. Her condition will probably require treatment into her teenage years until physical maturity. The child is also reported to suffer from asthma. Dr Cotton found the child to be “… a delightful, cheery, happy, articulate little girl”. Dr Cotton found that although her condition is obvious it is not of sufficient magnitude to be a significant problem for her at school.
The need to protect the child from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
Four allegations require consideration. The first is that the maternal grandfather sexually abused the child. The second is that the father sexually abused two of his nieces. The third is that the father threatened the child with a knife and the fourth is that the father himself sexually abused the child. The evidence of the father and LS is that in March or April 2001 the child reported to LS sexual molestation by the maternal grandfather. The father brought the allegation to the attention of JIT. JIT interviewed the child on 11 April 2001 and, as a result, the police laid two charges against the maternal grandfather on the same day. He was arrested at his house but released on bail. On the same day the father refused to return the child to the mother in accordance with the then consent orders. The mother sought a recovery order in the Local Court at Maitland and obtained an order on 3 May 2001. On 3 May 2001 the child returned to the care of the mother. Within thirty minutes the mother contacted the police and the child retracted her allegation against the maternal grandfather. In a second interview with JIT on that day and in a further interview on 4 May 2001, the child blamed her father for telling her to make a false accusation against the maternal grandfather. As a result the charges against the maternal grandfather were dropped.
The police video tape of the initial interview with the child satisfies me that the interview was professionally and carefully conducted by JIT and that the child was permitted to bring forward her statements about the abuse allegedly perpetrated by the maternal grandfather in her own way and in her own time. There are obvious inconsistencies and implausibilities in the child’s account in terms of some details of what she said occurred but that is understandable in a child of seven recalling past events. The police interview on 11 April 2001 created a strong impression that the maternal grandfather had in fact touched the child’s genitals and that he had required the child to touch his genitals.
The fact that the child retracted her story immediately after returning to the mother’s care on 3 May 2001 is a matter of serious concern. It is clear from the audio tape of the second interview with the child on 3 May 2001 that the police were concerned that at that stage the child may have been manipulated. It is plain that the child came to the view that she had been “put up to” the initial allegation against the maternal grandfather by her father as a result of discussing the matter with her mother. It is also apparent from that interview and the third interview that the child had become concerned that her allegation against the maternal grandfather had caused a serious problem in her mother’s family and that her retraction was necessary in order to resolve that problem.
Both the mother and the father in their evidence admitted that the child, from time to time, makes up stories. Dr Cotton stated in her second report that the father admitted when interviewed on 15 October 2001 that the child was confused. He said:
She has been subjected to so many allegations that she doesn’t know whether she is Arthur or Martha.
On the same day LS told Dr Cotton that the child told lies; “silly things” after being on contact with her mother. At the same time she and the father both told Dr Cotton that the child reported that the maternal grandfather had instructed the child to deny that they had played “special games”. On the same day the child told Dr Cotton that she had been sexually abused by her maternal grandfather and that she was scared. This was five months after the child had retracted her allegation to the police. It is apparent to me from the video tape of the initial interview that at times the child has difficulty in distinguishing fantasy from reality. The intervention by the mother has had the result that any evidence that the child could give is now hopelessly contaminated. It is possible that, as the child subsequently alleged, the whole story was concocted by the father. That is clearly what the mother believed and what other members of her family continue to believe. It is also apparent from the second family report that that is what Dr Cotton concluded. It is also possible that the child herself made up the story and that the father reported it to JIT in good faith.
After viewing the videotapes and listening to the audio tape the mother was cautious. She appeared to accept that the risk of abuse having been perpetrated by the maternal grandfather was a risk factor that must be taken seriously. Dr Cotton also seemed more cautious after having viewed the videotapes and listened to the audio tape. Whilst she maintained that it was impossible to tell whether the allegation of abuse had a factual basis or not or whether it was a concoction of the father she appeared uncomfortable in dealing with the subject. When pressed her evidence was that in respect of the first video interview “I would say that the child would have to be believed”. The conclusion I drew from the first video interview was that it was reasonably likely that there had been at least one incident involving the child and the maternal grandfather touching each other’s genitals. Viewed in isolation, the second videotaped interview in which the child blamed her father for concocting the allegation is also quite plausible. I formed the view, however, that when seen in the context of the events as a whole the child’s subsequent retraction of her allegations and her blaming of her father was both troubling and unconvincing.
Neither the maternal grandfather nor the maternal grandmother (who was allegedly present in the house when the alleged abuse occurred) gave evidence. I was told that the maternal grandfather was undergoing psychiatric care as a result of the abuse allegation. I am unsure why the maternal grandmother did not give evidence. I draw no adverse inference from their failure to give evidence but the result is that there is no evidence available from them which may lead me to a different impression from what I gained from viewing the video tape and listening to the audio tape. I should not draw a conclusion that the maternal grandfather has committed an act of abuse against the child unless I have a high degree of confidence that he in fact did so. I make no positive finding because I cannot be satisfied that any incident of abuse occurred with a strong degree of confidence. We will never now know for sure. The mother’s intervention on 3 May 2001 was the critical factor. There are others. On 14 May 2001 LS telephoned JIT to report that on 12 May 2001 the child disclosed to her further abuse by the maternal grandfather. LS alleged that the child had said to her:
Grandad did it to me again because he said you [LS] were a cunt.
That allegation was highly implausible and JIT did not act on it. By that stage the child’s recollections had been hopelessly contaminated.
It is, however, sufficiently likely that an incident of abuse did occur involving the maternal grandfather, that the risk of abuse must be treated as a significant risk factor were the child to live with the mother and have contact with the maternal grandfather. There is an unacceptable risk of abuse should the child have unsupervised or overnight contact with the maternal grandfather.
The other risk factors relate to the father. It is alleged against him that approximately four years ago two of his nieces (daughters of his brother and sister-in-law) were caught masturbating and when spoken to about it by the sister-in-law they accused the father of teaching them how to masturbate. The father was confronted by his brother about the allegation and denied it. Nothing was reported to DOCS or the police and it seems that within the father’s family a decision was taken that the matter could not or would not be pursued because of uncertainty as to what actually happened.
The father was cross-examined about this allegation at some length by Mr Powe on 19 December 2001. He gave evidence quite frankly and consistently maintained his denial of any abuse of his nieces. Mr Powe sought to introduce evidence from the sister-in-law about the matter. I refused to accept that evidence on the basis that I considered it was unlikely to assist me in drawing any firm conclusion about the allegation. On the same basis I refused to accept evidence sought to be introduced by Mr Bateman from the paternal grandmother about the matter. It is impossible to draw any conclusion whether the father abused his nieces. As I cannot substantiate the allegation at all I accept his denials.
The second relevant allegation against the father is that he threatened the child with a knife. This allegation comes from the mother who says that the child reported the threat to her in July 2001. AS’s two daughters, who do not live with him, allegedly stated that the child had confided in them that the father had threatened her with a knife. The threat was allegedly made to force the child to make her allegation against the maternal grandfather. Dr Cotton, in her second report, appears to give credence to this allegation: paragraph 154 of the second report. In my view, the allegation lacks credibility. The child’s school reported the allegation to JIT on 5 July 2001 after being told by the mother that the child had complained to a teacher about the threat. All teachers were interviewed by the Principal but all stated that the child had said nothing. JIT did not pursue the matter.
I accept the submission of the separate representative of the child that the video tape of the first JIT interview with the child in which she made her abuse allegation against the grandfather gives no indication that the child was acting under duress or was saying something she had been coached to say. Secondly, there is, in my view, every indication that the child was put under intense pressure by the mother when the child returned to her care from 3 May 2001 and that the child told the mother what she wanted to hear. That is not the only incident of the child apparently making up stories to please one or other of the parents in connection with the conflict between them. For example, I was told by the father that the child reported to him in October 2001 that she was required to telephone her maternal grandfather using her aunt (MC’s) mobile telephone. I accept MC’s evidence that this incident simply did not take place. While Dr Cotton held serious concern for the welfare of the child in the father’s care in her second report, apparently based upon the alleged knife incident, I do not share that concern. I find that there is no risk that the father would intentionally harm the child.
Finally, the mother alleged that the child had disclosed to her that the father had “touched her fancy”. This disclosure was apparently made on 6 July 2001, the day following the child’s statement to the mother about the alleged knife incident. The only evidence advanced in support of the allegation was evidence that the father had carried the child with his hand over her crotch. Many parents carry children that way. I think it highly likely that the child told the mother what she thought the mother wanted to hear. I find that there is no risk of the father abusing the child.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents
Both of these parents have been prepared to make unilateral decisions concerning the child that serve their own interests but not those of the child. Both during 2001 refused to return the child to the care of the other upon supposed medical or welfare grounds that were either baseless or exaggerated or at least unproven. Their attitude rendered unworkable the shared care arrangement put in place by the consent orders made in 1999. The mutual loathing which these parents now have for each other has clouded their judgment. I have already referred to the mother’s defiance of interim orders that I made. Even more significantly, the mother demonstrated appalling judgment in assuming that the child had been coached to make false allegations against the maternal grandfather. Even worse, I find that the mother pressured the child to retract those allegations and blame her father for them, which aborted the police investigation. In this, the mother was herself pressured by her family. I did not hear from the maternal grandmother but I did hear from the mother’s aunt MC. She presented as an extraordinarily partisan witness. Apart from satisfying me that the child had not used her mobile telephone to call the maternal grandfather in October 2001 I was not assisted by her evidence. Neither was I assisted by the evidence of GP, a private investigator engaged by the mother’s family in an attempt to find something to use against the father. GP did not attend when required for cross‑examination. His affidavit is remarkable for its blandness. He revealed nothing of significance. What is of more significance is that the mother and her family felt that it was appropriate to engage the services of GP and to use his affidavit.
The father has made much of the allegation against the maternal grandfather but I find that he acted appropriately in reporting that allegation to JIT. He has himself been guilty of advancing what he sees as his own interests without due regard to the interests of the child but I find him less culpable than the mother. I am satisfied that the father has developed an improved understanding of his responsibilities as a parent during the course of the proceedings. His enrolment in alcohol management and anger management courses is indicative of this.
I am also satisfied that the mother has come to understand better her parental responsibilities during the course of the proceedings. She still does not believe that her father abused the child but she now understands that such matters, if reported by the child, must be taken seriously and dealt with properly. I consider that she has also come to understand that the welfare of the child should be placed before her loyalty to her family. I am less certain about her ability to put that understanding into practice.
One further incident which came to light during the course of the proceedings needs to be mentioned. Both parents and their partners gave evidence about a scurrilous document (exhibit M2) apparently circulating in the Cessnock area which identified the maternal grandfather as a paedophile. The document accused the mother and the maternal grandmother of complicity. It provided their names and addresses. The handwritten document apparently was placed in letterboxes in the area. The mother alleged that the document was authored by the father. He had the motive for doing so but there is no persuasive evidence that he did so. The father gave evidence that he saw the mother’s partner AS placing the document in his letter box. LS provided some corroboration. AS denied it. Why he would do such a thing is incomprehensible and I make no finding against AS. Whoever wrote and distributed the document behaved outrageously. It was an act calculated to cause harm to the maternal grandfather, the maternal grandmother and the mother and it was done in complete disregard for the welfare of the child. I do not know who wrote the document and who distributed it. The fact that it was done shows that there is still a very high level of conflict between these two families and that the parents must be strong willed enough to resist pressure from their families to continue that conflict.
Any family violence involving the child or a member or the child’s family, and family violence orders
The mother has had to deal with serious issues of drug and alcohol abuse in the past but I accept the evidence of Dr Cotton that the mother has matured in the past two years and has been able to rehabilitate herself. She has a criminal record but has not offended recently. She does not pose any risk to the child in terms of physical neglect or family violence. There is no evidence that anyone else in the mother’s family poses a risk to the child in terms of violence.
The father is still dealing with issues of alcohol abuse, violence and anger management. The father was involved in a serious incident at the home of his parents on 9 September 2001. He was charged with malicious damage to a window at his parents’ home and offensive language to the police when they attended and arrested him. The father was drunk at the time and had also been taken prescribed medication. He sought to downplay the extent of his drinking. LS, under cross‑examination, gave a more frank account. She was in other respects, however, supportive of the father and did not regard herself or the child or her own children as being at risk from the father. The father has prior convictions for malicious damage and other anti-social behaviour although these are quite dated.
While the father does not pose a threat to the child in terms of the risk of intentional violence there is a risk that the child might be exposed to an act of thoughtless violence from the father if he fails to deal with his drinking problem. I am satisfied that the father is attempting to resolve his drinking problem but the risk factor remains and must be taken into account.
The mother and LS have apprehended violence orders against each other. I understand that other AVOs have been taken out at various times by members of both families against each other. Such orders are not generally difficult to obtain and I do not place much significance in them, except as an indicator of the level of conflict existing between these two families.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the child
It is going to be of particular importance to the welfare of this child that the parents seek to put behind them the intense conflict that has arisen in the last twelve months. The conclusion of these proceedings should be seen by the parents as an opportunity to move forward. It follows that I should put in place orders which minimise the risk of further litigation being seen as necessary.
Any other fact or circumstance the Court thinks relevant
The role of DOCS in these proceedings has been significant. Also significant has been the attitude of the parties to the involvement of DOCS. The father and his partner have been generally supportive of the DOCS involvement. The mother, her partner and her aunt were extremely hostile to the involvement of DOCS. That hostility is understandable, given the intervention of DOCS following the allegation against the maternal grandfather but the attitude is not justifiable. DOCS has at all times acted properly to protect the welfare of this child and its efforts should be respected. DOCS seeks orders placing the child in its care in accordance with s.65C(c) of the Family Law Act and relied upon the decision in Faulkner v McPherson and the Department of Community Services (unreported, Family Court of Australia, 11 August 1995, per Lindenmayer, Finn, Joske JJ) which dealt with the equivalent provision of the Family Law Act before 1996.
The DOCS submissions foreshadowed that the Court might be persuaded to make orders in favour of one parent over another in preference to orders in favour of DOCS. In that eventuality, DOCS seeks orders that it supervise both residence and contact. DOCS also seeks specific issues orders to deal with particular risk factors concerning the maternal grandfather and alcohol and drug abuse. I have found the involvement of DOCS in these proceedings to be valuable and a continuing role for DOCS in protecting the welfare of this child is, in my view, necessary.
Conclusions
Both of these parents have the capacity to provide for the physical needs of the child and both have the capacity to provide for the child’s emotional needs. Both are caring parents and I am satisfied that neither would knowingly see the child come to harm. There are risk factors in that the father could unknowingly allow the child to come to harm as a result of his abuse of alcohol and potential anger. The willingness and ability of LS to intervene in those circumstances to protect the child is open to some question.
There is a risk that the child may be exposed to abuse at the hands of the maternal grandfather and the mother has previously responded quite inappropriately to that risk. She has in the past put her loyalty to her family before the welfare of the child. The mother has learned from that experience but she has not yet fully come to terms with it. Her partner, AS, would not be of great assistance to the mother in dealing with this risk factor.
The child has a strong emotional attachment to her mother and father and her other relatives and I am not persuaded that I should put the child into the care of DOCS. She should remain in the care of her parents. On balance, I have decided the child should continue to reside with her father but have liberal contact with her mother. Specific orders are required to deal with the risk factors of sexual abuse and alcohol abuse and violence. The issue of contact between the child and her paternal grandfather needs to be addressed with particular care. Supervision of contact by adult members of the mother’s family will assist but is not a complete solution. Given their past behaviour, these parents need also to be restrained from acts which promote conflict between them and are contrary to the welfare and interests of the child. A continuing role for DOCS is called for in order to provide an appropriate level of assurance that the child’s welfare is being protected and respected.
I will therefore make the orders set out at the start of this judgment.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 June 2002
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