Cain and Irvine
[2008] FMCAfam 1373
•18 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAIN & IRVINE | [2008] FMCAfam 1373 |
| FAMILY LAW – Parenting – alleged disclosure by child of sexual abuse by uncle when aged 2 – child aged 10 – question of whether child should spend time with uncle – question of unacceptable risk considered – no unacceptable risk. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61C, 61DA and 68B |
| H v W (1995) FLC 92-598 Johnson & Page [2007] FamCA 1235 M & M (1988) 166 CLR 69 R and R; Children’s Wishes (2000) FLC 93-000 S & S [1994] NZFLR 26 |
| Applicant: | MS CAIN |
| First Respondent: | MS IRVINE |
| File Number: | SYC 3592 of 2007 |
| Judgment of: | Sexton FM |
| Hearing date: | 28 November 2008 |
| Date of Last Submission: | 28 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid Commission NSW |
| Respondent: | In person |
THE COURT ORDERS THAT:
The mother’s application for the maternal grandmother’s time with the child [X] to be spent in the absence of Mr T be dismissed.
The mother’s application for the maternal grandmother to be restrained from allowing [X] to meet with or communicate with [X]’s paternal family while [X] is in her care without the consent of the mother be dismissed.
THE COURT ORDERS BY CONSENT THAT:
Orders be made in accordance with the document titled, “Consent Orders” dated August 2008, signed by the parties and the Solicitor for the Applicant.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Cain & Irvine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3592 of 2007
| MS CAIN |
Applicant
And
| MS IRVINE |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for [X] aged 10 years. The parties are [X]’s mother and her maternal grandmother. [X]’s father,
Mr C, was given the opportunity to participate in the proceedings but did not do so. [X] has not seen her biological father since she was six weeks old.
The parties substantially agree on the history of [X]’s parenting arrangements since she was born. Her maternal grandmother has played a very substantial role in [X]’s upbringing. Until mid-2001, the mother spent lengthy periods living with the grandmother with [X], and at times left [X] to be cared for by the grandmother. From the time [X] was a few months old the mother used heroin regularly which led to her erratic and unpredictable behaviour. In June 2001, the mother smashed a window at the grandmother’s home and grabbed [X] from the grandmother in the shower. The grandmother obtained a recovery order for [X]’s return to her and the Court ordered that [X] live with the grandmother. From then, when [X] was two and half years of age, [X] became the maternal grandmother’s full time responsibility, emotionally, physically and financially while the mother rarely saw her and had no involvement in any aspect of her care. The mother continued to use heroin and to work as a prostitute.
In January 2007, the mother sought the grandmother’s cooperation to re-establish a relationship with [X].
The mother told Mr Lemaire, Family Consultant, that she started the methadone programme in June 2006 and has not used heroin nor been involved in sex work since then. However, her drug test results reveal and she concedes in a later affidavit, that she continued to use heroin for a while after starting methadone. The mother said she has been in regular employment and has reduced her methadone dose. She had a baby in September 2008.
The grandmother, a registered nurse, has three other children. She separated some years ago from those children’s father, Mr P. Mr P is the mother’s stepfather and [H] 25, Mr T 22 and [B] 21 are the mother’s half siblings. It is common ground that Mr P sexually abused the mother and her half-sister [H] when they were children. He was later convicted and gaoled for abusing [H].
The mother and maternal grandmother have a poor relationship.
Mr Lemaire concluded in March 2008 that the grandmother, “continues to maintain real doubts about Ms Cain’s reliability”. At hearing, the grandmother said she believes the mother is manipulative and cannot be trusted.
In May 2007, the mother initiated these proceedings seeking a final order for [X] to live with her and spend time with the maternal grandmother. The mother also sought an order for sole parental responsibility. She proposed [X]’s time with her be introduced gradually. In July 2007, the Court made orders by consent on an interim basis providing for [X] to live with the grandmother and spend time with the mother on a supervised basis at a contact centre. From October 2007, [X]’s time with the mother was for the most part unsupervised and their time together gradually increased.
In May 2008, the court made a notation in the orders that the mother had concerns about [X]’s safety in the presence of her maternal uncle, Mr T. In late July 2008, [X] commenced living with the mother.
In August 2008, the parties reached agreement on a final basis as to [X]’s living arrangements. The parties agreed that [X] would live with her mother and spend time with her grandmother on each alternate weekend and for periods during school holidays. At that time, the mother believed Mr T was living in the Northern Territory. When the mother discovered he had returned to live with the grandmother, she sought an order on a final basis that [X] be kept away from him when spending time with the grandmother. The grandmother opposed such a restriction and the matter was therefore listed for hearing and a further report ordered. Pending final determination, in October 2008, the court ordered [X]’s time with the grandmother to be spent in the absence of Mr T. Since this order was made, because of the grandmother’s strong opposition to the injunction, the grandmother has chosen to spend only limited time with [X]. The grandmother told the court she would stop seeing [X] altogether if the court granted the two injunctions sought by the mother.
The mother’s concerns about Mr T are based on her belief that he sexually interfered with [X] as a baby of two years, and on her belief that Mr T has behaved irresponsibly when [X] has been in his care. She alleges that Mr T recently left [X] outside his work truck depot, gave her a Stanley knife to protect herself and suggested to [X] that if she wanted to, he would introduce her to her father and paternal family.
It is common ground that [X] spent periods of time with Mr T during the first two years of her life. Mr T lived with the mother, her then fiancé and [X] for an 8 to 9 month period from 1999/2000 when he was 15 years of age and left there no later than July 2000, when [X] was
22 months. Between early August and 18 October 2000, the mother and [X] lived with the grandmother without Mr T. From the time [X] lived full time with the grandmother, [X] has spent time with Mr T, including overnight time, when he has been living with the grandmother. Mr T moved to the Northern Territory in 2004 and [X] has spent time with him there when she has visited him with the grandmother.
The mother believes [X] was sexually abused by Mr T when he lived with them in 2000, and that [X] is at risk of further abuse if left unsupervised in his company. The maternal grandmother does not believe [X] was sexually abused by Mr T and says he is a significant and loving figure in [X]’s life.
At hearing, the mother sought an additional order that the grandmother be restrained from allowing [X] to meet with or communicate with [X]’s paternal family while [X] is in her care without the consent of the mother. The grandmother opposed the application.
Dr Todd Jacobson, psychologist, interviewed Mr T, [X] and each party and prepared a report for the court. In Dr Jacobson’s opinion, [X] has a close relationship with Mr T and is not at risk if left with him unsupervised.
Legal principles
The principles governing all parenting cases are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of [X] as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3) to the extent each factor is relevant. Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The primary considerations are consistent with the first two objects of the Act set out in section 60B.
In the present case, the parties have reached agreement as to [X]’s parenting arrangements. She will live with the mother and spend time with the grandmother.
The issues in dispute are firstly, whether [X] should spend time with her grandmother if Mr T is or may be present and secondly, whether the grandmother should be required to consult the mother before allowing [X] contact with her paternal family when [X] is in the grandmother’s care.
Section 68B of the Family Law Act provides that the court may grant such injunction as it considers appropriate for the welfare of the child. It is a discretionary power.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents.
I accept the evidence of Mr Lemaire who met with [X], the mother and the maternal grandmother. [X] has been developing a close relationship with her mother since she started spending regular time with her in 2007, after a period of approximately 7 years of only intermittent contact with her. I am satisfied that as long as the mother continues on her present life course away from illicit drugs, [X] will develop and benefit from a good relationship with her mother.
[X] has not seen her father since she was a few weeks of age and he has taken no part in her life. The mother has a negative view of the father. The father has not participated in these proceedings despite having an opportunity to do so. There is no evidence to suggest that [X] will have a meaningful relationship with her father in the foreseeable future.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
This is the significant issue in this case. The mother believes [X] is at risk of harm if she spends unsupervised time with Mr T. She does not believe the grandmother will protect [X] from harm at the hands of
Mr T when [X] is in the grandmother’s care. The mother raises a number of matters in relation to her concerns. The question is whether I am satisfied an injunction should be granted restraining the grandmother from permitting Mr T to be present when [X] spends time with her.
The grandmother told Dr Jacobson and the Court that if the Court determined there was an unacceptable level of risk to [X] spending time with her uncle, she would not want to spend any time with [X]. Dr Jacobson quotes the grandmother at paragraph 18 of his report[1]:
If the court is to take the word of a drug addict prostitute, which she was at the time, over mine and my assessment, I won’t have any more involvement in [X]’s life. I won’t be there to see what’s going on in her life.
[1] Exhibit 1
The mother raised the question of [X] being in physical danger or being neglected if left in Mr T’s care. In late September 2008, [X] spent a weekend with the grandmother. The mother says that on her return, [X] told her she went out in Mr T’s work truck, “got to use the controls” and because children were not allowed in the yard to drop the truck off at the end of the day, “he [Mr T] gave me a stanley knife to protect myself while I waited outside the yard for him.” She concluded that Mr T could not be trusted to spend unsupervised time with [X].
The grandmother says Mr T is a truck driver. She says Mr T took [X] to work with him on 3 October 2008 and gave her a safety vest to wear. [X] spoke excitedly to her about the day asking when she could go to work with Mr T again. The grandmother says Mr T has told her what happened on that day and she does not accept [X] was in any danger. She said Mr T told her the Stanley knife was closed and that he gave it to [X] in jest when he left her for a minute or so outside the gate but within his and his colleagues’ view. She says she spoke to Mr T about the potential dangers of giving a 10 year old a Stanley knife, even a closed one, and she was satisfied Mr T would not give it to her again. The grandmother says Mr T allowed [X] to press the buttons to operate the lowering and raising of the tailgate of the truck. She says she questioned Mr T as to exactly what he allowed [X] to do, and is satisfied [X] pressed buttons only under Mr T’s direct supervision.
Except as to the date of the event, I find no inconsistency between the mother’s and the grandmother’s account of what happened on the day [X] went to work with her uncle. While I agree with the grandmother that it was unwise for Mr T to give [X] a closed Stanley knife, even in circumstances when he was close by, I am not persuaded [X] was at risk of physical harm or neglect on that day.
The mother raised the question of [X] being at risk of psychological harm if left in the care of Mr T. On 27 September 2008, the mother reports [X] telling her that Mr T told her that her father’s name is Mr C, that Mr T knows Mr C and knows his sister and would take [X] to meet them if she wished. The mother says when she last saw Mr C about three years ago, she saw him take illicit drugs. She says Mr T has no right to discuss issues concerning [X]’s father or paternal family with [X] and that it should be the mother’s decision as to when it might be appropriate for [X] to meet her father. The grandmother says she does not know, and has had no contact with [X]’s father or paternal family in the past, and has no present intention of initiating such contact. However, the grandmother does not agree to being restrained by injunction from making such contact if, at some time in the future, [X] wants her to do so and she believed it was appropriate in the circumstances at that time. The grandmother says she has made decisions for [X] all her life, and asks to be given the opportunity to continue to exercise her judgment as to what is best for [X] without being answerable to the mother.
There is no evidence before me to suggest the grandmother has any present intention of facilitating [X]’s contact with the father or his family. There is no evidence to suggest she would not handle any situation involving [X]’s paternal family appropriately. The mother and the grandmother propose an order for equal shared parental responsibility which obliges each of them to consult in relation to any major decision affecting [X]. While I accept the sensitivity of this issue for the mother, and agree it is a matter for the mother and the grandmother to address at a time they consider appropriate, I find no basis for an injunction against the grandmother on this issue.
The critical issue in this case is the question of whether [X] is at risk of sexual abuse if left in the care of Mr T. The mother believes Mr T sexually interfered with [X] in the year 2000 when he was living with the mother, her fiancé and [X] for a number of months. The mother reports [X] complaining of a sore stomach and sore and itchy bottom during that period, and although the mother wormed [X] and her neighbours gave their children worming treatment, the mother says the problem did not go away. She believes [X]’s complaint occurred because Mr T sexually abused her.
In her affidavit sworn in October 2008, the mother says about a week and a half after Mr T moved out of her house [X] said to her, “[Uncle T] picked my bottom” and “[Uncle T] did this to my bottom” and poked her finger on her bottom. The mother reacted with shock and distress. The Department of Community Services and JIRT were involved. [X] was interviewed by a departmental officer and made similar disclosures to those made to the mother.
A record of interview with [X] on 6 November 2000[2], when [X] was two years and two months of age, states:
Q: What happened to your bottom?
A: [Uncle T] ([X] pointing to bottom on doll)
Q: Who hurt you?
[2] Exhibit 2
A: [Uncle T]
Q:Where did he hurt you? ([X] pointed to her bottom; sitting on chair at time and leaned over to touch bottom with her finger.)
The case was referred to the Joint Investigation Response Team but no action was taken “on the basis of no corroborative evidence”. The family was referred to the Sexual Assault Unit for medical examination and counselling. The report states
Parents (mother and her then de facto partner) state they do not wish to take this any further as child is only now starting to not have nightmares about ‘[Uncle T]’. Parents are able to keep child from contact with alleged perpetrator.
The mother reported [X] having nightmares for 2 months after her interview, and the mother says she therefore moved from the home she shared with her fiancé, to her mother’s home. She claims [X] made further disclosures in front of the mother and the grandmother that
Mr T had rubbed his hands on her genital area. The mother claims the Department told her that if she permitted [X] to have any involvement with Mr T, they would remove [X] from her care.
Upon examination, there were no physical findings of sexual interference and JIRT took no action. The mother deposes to the DOCS worker telling her they believed something happened but Mr T would not be charged because there was no corroborative evidence and [X] was too young to give evidence. The mother said, “From the time [X] made the disclosure to me I have not allowed Mr T to have any contact with [X].” The mother does not refer to any court proceedings about this issue at that time.
The mother said the grandmother’s reaction to her was “you’re just after attention” and never showed any concern for [X] during the investigation.
The grandmother says at the time the allegation was made, “I did not know what to think” but now does not believe anything happened. She accepts [X] said these things to the mother, but believes the comments were misinterpreted. The grandmother’s recollection of events and the timing of events at that time differs in significant ways from the mother’s recollection. The Department records show the mother notified [X]’s disclosure on 30 October 2000. The grandmother says Mr T left the mother’s home no later than July 2000, well before she became ill in August 2000 which resulted in her having major surgery in September 2000. She recalls the timing because of her illness. The mother moved to the grandmother’s home with [X] sometime before August 2000 because the mother told the grandmother she was having difficulties in her relationship with her fiancé. Mr T did not live at the grandmother’s home at that time. The mother’s fiancé then moved in with the mother and [X] to the grandmother’s home until the mother entered a drug rehabilitation unit on 18 October 2000. The mother left that unit within 24 hours, left [X] alone with the grandmother for a week before taking [X] with her to live with her fiancé in [omitted]. The grandmother says [X] used to complain of a sore bottom when having her bottom wiped after a bowel movement and always when in the care of the mother. The grandmother says [X] no longer had a sore bottom when her mother stopped caring for her. The grandmother says the mother and [X] returned to her home in February 2001 when the mother finally separated from her fiancé. One day in early 2001, the grandmother claims to have been watching [X] when the mother suddenly started throwing her arms about and pointing at [X] saying “did you see that?” The mother claimed to have seen [X] touch herself which the mother said proved the claim she made against Mr T. The grandmother claims to have been watching [X] closely and says [X] did not touch herself as the mother alleges.
The grandmother said the mother initiated apprehended violence proceedings against Mr T in [location omitted] in early 2001 in which the mother raised the allegations about Mr T interfering with [X]. The grandmother said in 2007 she checked with that Court as to the outcome of those proceedings and was told that the complaint was dismissed on 30 April 2001.
There is no dispute that the mother and her half-sister [H] were sexually abused by the mother’s step-father, Mr P, as children and that Mr P was later convicted of sexual abuse of [H] and sentenced to
5 years imprisonment. The mother recalled being approximately
12 years of age when she disclosed to the Department of Community Services that Mr P had molested her. She says neither the Department nor her mother believed her. Eighteen months later the mother says her sister [H] ran away from home to live with Mr P and was sexually abused by him while living with him. She alleges the grandmother did nothing to protect [H]. The grandmother, for her part, says when the mother was interviewed by DOCS at the age of 12, the mother denied anything had happened and when the grandmother encouraged the mother to tell her the truth after the DOCS worker had left, again the mother denied anything had happened. It was years later before the mother told the grandmother much more, and the grandmother accepted what the mother’s step-father had done.
The principles I must apply in relation to this issue are set out in the High Court decision of M and M[3]. The question is whether the evidence establishes that making an order for [X] to spend time with the grandmother, given Mr T lives there and is a significant person in her life, would expose [X] to an unacceptable risk of sexual abuse.
[3] (1988) 166 CLR 69
Recently, the Full Court of the Family Court in Johnson & Page[4] cited with approval a passage from the New Zealand Court of Appeal decision of S & S[5]:
It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts…
There must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture…
[4] [2007] FamCA 1235
[5] [1994] NZFLR 26
In the first instance decision in the same case, Thomas J said at 670:
In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.
Mr T told Dr Jacobson he had never been the subject of a child protection investigation, had never been sexually abused and had never sexually interfered with a child. The grandmother says [X] has never made any complaint directly to her, or in her presence that Mr T or anyone else has behaved inappropriately towards her. The grandmother has not observed any behaviour in [X] to raise her concerns.
The grandmother told Dr Jacobson that [X] loves to see her [Uncle T] and they play together. The grandmother said Mr T changed [X]’s nappies as a baby and had occasion to wipe her bottom and apply cream to her bottom. She told Dr Jacobson she had never seen Mr T interact with [X] in a sexual way. The grandmother believes [X] would have alerted someone if something untoward happened. The grandmother told Dr Jacobson that although she may have had blinkers on in relation to the sexual abuse of her two daughters, “I[6] do not have blinkers on now ‘vis-à-vis’ [X]”.
[6] Exhibit 1 at paragraph 44
Dr Jacobson believes [X] has no knowledge of the allegations concerning Mr T. Dr Jacobson observed a “fun” relationship between [X] and her uncle and [X] told Dr Jacobson how much she enjoyed her time with him. [X] denied ever being hurt by Mr T or being touched by him in a way she does not like. [X] told Dr Jacobson Mr T spoiled her, taking her for drives in his truck and playing active games with her.
Mr T told Dr Jacobson that [X] loves him “dearly”. Dr Jacobson observed Mr T interact appropriately with [X] and [X] obviously enjoying their interaction. Dr Jacobson concluded they have “an obvious relationship”. [X] told Dr Jacobson she would like regular and frequent time with Mr T.
Dr Jacobson stated in his report:
It appears that Ms Cain strongly believes that [X] has been subjected to sexual abuse by Mr T, despite what appears to be obvious information to the contrary.
Under cross examination, Dr Jacobson conceded that the disclosure itself and the Department’s decision to investigate the allegation in 2000 may not justify the words “obvious information to the contrary”. However, a number of factors, including the lack of corroborative evidence at the time of investigation, led him to the conclusion that [X] is not at risk if in Mr T’s care and [X]’s time with him should not be restricted. He says, although one could never say unequivocally that nothing happened, the disclosure in 2000 needs to be put in context. He referred to these factors to support his opinion:
i)[X] may have made statements to the mother when she was 2 years of age that worried the mother, but [X] was too young to explain why her bottom/stomach were sore. It is plausible that Mr T touched [X]’s genitals but being young and inexperienced did not do so adequately resulting in soreness.
ii)[X] has spent time with Mr T, including overnight time, since the allegations were made and has made no disclosures. In his view, [X] would have been capable of reporting from 3 to 4 years of age.
iii)[X]’s language skills have improved since the alleged disclosures were made, when she was only 2 years of age, and she has made no other disclosures and has shown no signs of behavioural disturbance.
iv)At the time of the alleged disclosures by [X], the mother, on her own admission, was using heroin and her judgment may have been impaired.
v)[X] is considerably less vulnerable at the age of 10 than she was at the age of 2 years because she is able to inform important people in her life if she receives inappropriate treatment. [X] is articulate and likely to readily report.
vi)The grandmother is an interested and concerned grandmother who is likely to act protectively if [X] were to make a disclosure to her about future sexual abuse by Mr T or anyone else.
Dr Jacobson said if a child is abused at two years of age, then he would not anticipate the child suffering any repercussions. If a child were abused at aged 10 years, there could be profound repercussions. In cross examination, Dr Jacobson said the fact that Mr T had lived in a sexually abusive household does not make him an abuser although it is a predictive factor. Dr Jacobson concluded there was a low likelihood something happened in 2000. However, Dr Jacobson readily accepted that because the mother’s position is so strongly held, [X] spending time with Mr T may cause her distress. In his view, this would be the only reason for any kind of supervision of [X]’s time with Mr T. He thought the mother might be reassured if she arranged for [X] to participate in a protective behaviours course.
Ms Finn for the mother submits that Mr T has not been in [X]’s life for lengthy periods as he was living in the Northern Territory from 2004 until earlier this year. Ms Finn submits the Court should not accept that [X] could protect herself if something happened and the fact that [X] might now have the confidence to report inappropriate behaviour, after the event, should offer the court no comfort, given the terrible repercussions of sexual abuse on a child. Ms Finn submits that the disclosure in 2000, coupled with the fact that Mr T was part of a household in which sexual abuse of a child occurred, should satisfy the test of “unacceptable risk.”
The grandmother says she could not continue to see and support [X] if there were conditions imposed on their time spent together. She says the mother is manipulative and cannot be trusted. She says she would find such a situation untenable. She says she needs to think of herself now ahead of the mother and [X].
On a careful consideration of all the evidence before me, I accept
Dr Jacobson’s opinion that the likelihood [X] was sexually abused by Mr T in 2000 is low, for the reasons Dr Jacobson has given. I also accept his evidence that the grandmother is no longer in denial, if she once was, about the possibility of [X] being at risk of sexual abuse in the future. I am not satisfied [X] faces an unacceptable risk if left in the care of her uncle, Mr T.
THE ADDITIONAL CONSIDERATIONS
The child’s expressed views and the weight those views should be given.
Dr Jacobson found [X] an articulate child of average maturity for her age. [X] told him she would like to spend more time with Mr T, every second weekend or after school, including overnight if Mr T had his own accommodation, but not when the grandmother was around because she called her “fat” and asks her to perform chores around the house.
[X] wants to spend time with her grandmother and with her mother.
There is no evidence before me as to [X]’s views about spending time with her father or members of her paternal family.
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
…including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
[X] is only 10 years of age. Given the seriousness of the issue before the Court, and [X]’s young age, I give minimal weight to her expressed views in reaching my decision.
The nature of the relationships between the child and each parent and the child and other persons.
I have already referred to [X]’s relationships with each of her parents.
[X] has spent the majority of her life living with the maternal grandmother. I accept Mr Lemaire’s evidence that [X] has a strong and loving relationship with her maternal grandmother. I accept that [X] enjoys a good relationship with the mother’s half sister, [H]. As already noted, I accept that [X] loves her uncle Mr T.
These are matters to which I have regard.
The willingness and ability of each parent, and in this case, each party, to facilitate and encourage a close and continuing relationship between the child and the other parent.
I accept the evidence of both Mr Lemaire and Dr Jacobson that the mother and the grandmother both recognise and acknowledge the importance of the other in [X]’s life. Despite her lack of trust in the mother, her reservations about the mother’s commitment as a parent and her view that the mother is manipulative, the grandmother has accepted that [X] wants and needs a relationship with the mother, and has not stood in the way of that relationship developing. The grandmother has agreed on a final basis to an order providing for [X] to live with the mother. I am impressed by the grandmother’s willingness to put [X]’s needs ahead of her own misgivings.
I am satisfied the mother will facilitate a close and continuing relationship between [X] and the grandmother, having regard to the spending time orders she has asked the court to make.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs; the attitude to the child and to the responsibilities of parenthood demonstrated by each parent.
The mother, on her own admission, demonstrated a complete lack of parental capacity when she pursued a life dominated by heroin use and prostitution from the time [X] was a baby until the second half of 2006. Since then, I am persuaded she has maintained a more stable lifestyle and is now showing a commitment towards responsible parenting.
I have concerns about whether the mother will be able to sustain her present approach into the future, but can make no findings at this stage.
The grandmother has demonstrated a capacity to parent [X]. Both
Mr Lemaire and Dr Jacobson describe [X] in positive terms. The credit for her healthy development lies with the grandmother. The grandmother, in extremely distressing and difficult circumstances, took on the role of mother to [X] when she was only a few months old, and has demonstrated a commitment to her welfare and happiness over the whole of [X]’s ten years.
I do have some concerns about the grandmother’s rigid position in these proceedings. [X] will need her grandmother into the future. She says she will not spend time with [X] if their time together is subject to conditions. Dr Jacobson found the grandmother “pig-headed” on this issue. While I understand the grandmother cannot accept the notion of being answerable to her daughter, whom she has found over many years to be untrustworthy and manipulative, I find it difficult to reconcile her obvious love and concern for [X] with this position.
I give some weight to these findings.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his/her welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
I have already dealt with this factor.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
[X] has been living with the mother since the end of July 2008. Although she had been spending increasing time with the mother in the months leading up to the agreed timing of the change of living arrangements, [X] faced a significant adjustment in July. The parties have agreed [X] will continue to live with the mother. The proposed consent orders provided for [X] to spend alternate weekends, time during school holidays and time on other special days with the grandmother. [X] has spent only limited time away from her grandmother over the last at least 7 years. [X] has depended on her grandmother for everything in her day to day life. I find the change is likely to have a significant impact on [X] and it will be important for her to spend regular time with the grandmother.
The grandmother says that if [X]’s time with her must be spent in the absence of Mr T, she will not see [X] at all. She says she needs now to consider her own needs ahead of [X]’s. She has had enough. She does not accept that Mr T poses any risk to [X], and finds it difficult to understand why her judgment should now be questioned by the mother who has proved so unreliable. I am highly critical of the grandmother’s stated intention to abandon [X] if the Court does not agree with her.
I have regard to these findings when reaching my decision.
The practical difficulty and expense of a child spending time with and communicating with a parent.
This factor is not relevant.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested.
In July 2001, an apprehended violence order was made for 2 years against the mother for the protection of the grandmother, [X] and the mother’s sibling [B][7]. There are no current apprehended violence orders in place.
The orders which would minimise the risk of there being further court proceedings about the child and whether those orders would be preferable.
[7] Annexure B to grandmother’s affidavit sworn 23 October 2008
This is not a factor to which I have regard.
PARENTAL RESPONSIBILITY
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption applies only to parents and has no application to orders for parental responsibility made in relation to other people.
In this case, the parties have agreed to an equal sharing of parental responsibility. Given the history of this matter, it is not surprising that there remains a level of acrimony and distrust between the mother and the grandmother. There has only been a relatively short period since the mother claims to have been drug-free and to have radically changed her lifestyle and approach to parenting. It is likely to take time for the parties to build a working relationship. However, on balance, I am satisfied it is in [X]’s best interests for the parties to consult in relation to the major decisions in her life and to try to reach agreement on those issues. I have therefore decided an order for equal shared parental responsibility is appropriate.
Conclusion
[X] is 10 years of age. She has experienced considerable instability in her childhood. She has never experienced a father in her life. Her mother became a drug addict when she was a baby and consequently failed to focus on [X]’s welfare until [X] was 9 years of age. The mother handed [X] to the maternal grandmother as a two year old and left her there. The grandmother accepted the parental role and looked after [X] day to day. She accepted full responsibility for her physical, emotional, financial and intellectual welfare. Dr Jacobson describes the child who emerged from this experience as “effervescent”, “articulate” and “intelligent”.
Mr T lived in a household with a father who sexually abused his sister and his half-sister as children. As Dr Jacobson says, this is a “predictive factor” for later abuse perpetration, but by no means determinative.
Dr Jacobson says not every child who grows up in a sexually abusive household is an abuser. [X] made statements of concern at the age of two about Mr T which triggered an investigation. However, those statements were never corroborated by other evidence, and [X] has spent time with her uncle many times since then. [X] has not been told about the abuse allegations. [X] has made no complaint about Mr T over the last 8 years and has formed a strong and loving relationship with him. [X] now presents as a happy and well adjusted ten year old.
I agree with Dr Jacobson that it is impossible to say whether or not
Mr T touched [X] inappropriately when she was aged 2. I accept his evidence that there must be a level of risk. The question is whether that risk is unacceptable. On a careful assessment of the evidence, on the balance of probabilities, I am not satisfied that unacceptable risk has been established.
As already noted, I find that [X] has a close relationship with her grandmother and is developing a good relationship with her mother. The grandmother has shown a strong commitment over many years to [X]’s welfare, despite the acrimony and distrust in her relationship with the mother. [X] has developed well under her grandmother’s care, and the grandmother has accepted [X]’s wish to now live primarily with the mother. I am impressed by the grandmother’s focus on [X]’s needs in difficult circumstances.
I am not satisfied [X] is at risk in her grandmother’s care, whether in the presence of Mr T or otherwise. I take into account Dr Jacobson’s view[8] when he says:
Ms Irvine impressed the writer as an interested and concerned maternal grandmother who is likely to act protectively if [X] were to make a disclosure to her about future sexual abuse perpetrated on her, whether it be by Mr T or another person.
[8] At paragraph 48
I am confident the grandmother will continue to monitor and meet [X]’s needs to the best of her ability. I am confident the grandmother will take whatever steps she considers necessary to keep [X] safe. I am satisfied that despite her view that Mr T did not behave inappropriately towards [X] when she was two years old, the grandmother is open to the possibility of [X] being exposed to inappropriate behaviour. I am not persuaded on the evidence before me that the two injunctions sought by the mother are either necessary or appropriate.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons, agreed by the parties, are in the best interests of [X].
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 18 December 2008
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