CANNING & HARTIGAN

[2015] FamCA 198

FAMILY COURT OF AUSTRALIA

CANNING & HARTIGAN [2015] FamCA 198

FAMILY LAW – PROCESS & PROCEDURE

APPLICANT: Mr Canning

RESPONDENT: Ms Hartigan

INDEPENDENT CHILDREN’S LAWYER: Stephen Tester & Associates

FILE NUMBER: LEC 447 of 2012

DATE DELIVERED: 19 March 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smith

SOLICITOR FOR THE APPLICANT: David Hunter

COUNSEL FOR THE RESPONDENT: Mr Mason

SOLICITOR FOR THE RESPONDENT: Bolt Findlay

INDEPENDENT CHILDREN’S LAWYER: Stephen Tester & Associates

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: Mr Tester

Orders

IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT

1. In the terms of the Minute of Order Annexure A.

AND IT IS FURTHER ORDERED THAT

1. The original Minute of Order signed by the parties be placed and kept on the Court file.

2. The Independent Children’s Lawyer provide Ms B, Psychologist, or such other psychologist upon whom the parents agree the child attends, with a copy of the Reasons delivered today, once settled.

3. The Applicant is at liberty to provide a copy of the Reasons delivered today, once settled, to the New South Wales Government Education & Communities Public Schools New South Wales Service.

4. In the event the Applicant seeks an order that Dr C pay the costs of and incidental to the appearances on 26 June 2014, 19 November 2014 and 13 February 2015:

   (a)the Applicant shall file and serve brief written submissions in support of such application for costs within seven (7) days of today;  and

   (b)Dr C shall file and serve any brief written submissions in answer to the submissions filed and served by the Applicant seeking costs within a further fourteen (14) days thereafter;  and

   (c)the Applicant shall file and serve any brief further written submissions, strictly in reply to the submissions served by Dr C, within seven (7) days of its service,

   and any such application for costs shall be determined in Chambers. 

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 447 of 2012

Mr Canning

Applicant

And

Ms Hartigan

Respondent

Ex TEMPORE

REASONS FOR JUDGMENT

1. The parties before the Court have reached agreement in relation to the terms of orders detailing future parenting arrangements for their son, D, born in 2008.  Those terms have been reduced to writing and each party has signified their consent to them by signing the last page of the document.  They have also heard discourse between myself and Counsel in relation to matters amending that document. 

2. I note that there is agreement in relation to those and certainly no demur in relation to any of those proposed amendments. 

3. The orders, if made, will progress the child’s time with his father;  they will see him continue to live with his mother, as he has for all of his life;  they will provide an opportunity for both of his parents to be involved in making decisions about major long-term issues in relation to him. 

4. Whilst on the face of it, it may have appeared from reading the affidavit material in this matter that it would be unlikely to conclude that these parties were able to make decisions jointly about the child and long-term issues that relate to him, I note from a perusal of the contents of Exhibit 1 and, in particular, the records of the Contact Centre, that the parties, albeit in somewhat of a supervised sense themselves, have been able to exchange cordial communications on a number of occasions. 

5. Whilst limited to requests for photos and queries about a number of matters - such as contributions to glasses and involvement in reading and involvement in creating stories about a toy of some sort that the child brought home - it seemed to me that the tone of those communications suggested that both parents have the capacity, should they choose to exercise it, to communicate with each other in a respectful manner.

6. The fact that each of them has determined that the orders, as set out in the proposed minute, are a reflection of matters that are in the child’s best interests, furthers such a conclusion. 

7. D’s time with his father has been, since January 2013, supervised at the Contact Centre in E Town.  The substantial records from that Centre, which form part of Exhibit 1, reveal only a close and loving relationship, attendant with appropriate demonstrations of affection and a significant commitment to the child as demonstrated by his father’s continued attendance at the Centre.  They also demonstrate an absence of undermining comments from the mother and a support by her of the child’s attendance at that Centre and time with his father in that place.

8. The observations of good interactions between the child and his father were apparent from the first visit after supervision was imposed and they have continued unabated since then. 

9. Supervision arose because the mother alleged that the child made disclosures to her that suggested to her the father had acted inappropriately toward him and had touched his penis and had the child touch his penis.  These allegations were conveyed to the Department of Families and Communities in New South Wales on 2 January 2013.  the child was interviewed, albeit informally, by a member of that Department and a Police officer the next day.  No disclosures of inappropriate behaviour were made by the child. 

10. The records from the JIRT interview, which comprised part of Exhibit 1, reveal that the officers interviewing the child could not get any narrative in relation to his assertion that he and his father play in the shower.  They record that he was responsive to leading questions in relation to an issue – but, included within those responses were denials of a question as to whether the father played with his penis.  Additionally, the child, when asked whether he told his mother the father rubbed his penis, said that he had not.  The interview between the Police officer, Departmental officer and the child led to the Department concluding that there were no disclosures made by him on that day.   

11. When Departmental officers spoke with the child’s mother on 3 January 2013 to inform her as to what had happened during the interview, she informed them - when asked whether staff from the F Centre, (at which it seems the child had attended) had noticed any behavioural issues or expressed any concerns about him - in the negative.  She also told the Department, at that time, that she had no real concerns about the child’s oldest half-brother, G, being assaulted by the child’s father whilst she and the child’s father lived together.

12. The mother’s concerns - which led her to involve the Department - arose in the context of a background of her (according to her affidavit material), earlier observations of the child returning from unsupervised time with the father in the period between March 2012 and June 2012 displaying upset behaviour.  She also says that, in May 2012, he returned home and told her that the father had hurt him and had placed his finger into his bottom.  There is no evidence before the Court that the mother reported her concerns at that time to any Department, authority or Police.

13. Additionally, the evidence contained within Exhibit 1 records that, on 31 July 2012, the mother took the child to a general practitioner, a Dr H, to check milestones.  The doctor’s notes of that attendance record the mother’s complaints about the child waking at night and displaying some behavioural concerns - which she, at that time, attributed to the father.  The notes also record her telling Dr H that F Centre had not raised any concerns about the child’s development at that time.  The notes do not record any report of any concerns or assertion about the allegation that the father had inserted his finger into the child’s bottom. 

14. Additionally, included within a document headed “LPR Briefing Meeting-Form 2 Notes”, (which forms part of Exhibit 3), the Department records information that the mother informed that, when the child returned home from time earlier with the father, his bottom was sore; that he was at that time too young to elaborate further; and that she had checked his bottom and found no trauma. 

15. When Departmental officers spoke with the father on 7 January 2013, he confirmed the mother’s report: he, too, had observed the child - to use the terms of the records - “playing with himself a lot” and said that this occurred when the child was showering and when he was playing with toys. 

16. The Departmental records record the child’s father informing the Departmental officer that he did not want to say anything to the child to disturb him - because he understood it was part of development - but it seemed more pronounced than he had remembered behaviour from his now grown sons.  He also raised the prospect that the child’s behaviour could be explained, in one sense, by the fact that he was sharing his home with G, his much older teenage brother. 

17. As I have said, the Department’s investigations led that organisation to conclude an unsubstantiation in relation to the assertions made. 

18. There has been no complaint by the child to any person other than his mother.  It is relevant, I think, to record that this has occurred in circumstances where he attended on Mr I on ten occasions between June 2013 and December 2013.  Reference can be had to Mr I’s correspondence, dated 27 May 2014 (which may be found at page 297 of Exhibit 3).  Mr I indicates that at no stage during his involvement with the child did he, the child, indicate - either in play or in words - that there had been any sexual behaviour between him and his father.

19. It is clear, I consider, from a perusal of the documents from the Contact Centre, that the child loves both of his parents.  Those documents record occasions of joyful interaction with his father and occasions on which he has sought to return to his mother.

20. It is, I think, clear - and could not be suggested otherwise from a perusal of the proposed orders that his parents seek be made today in relation to his future parenting arrangements - that they accept he has an established relationship with both of them and that he loves and cares for them. 

21. The time at the Contact Centre has, from a perusal of the records, had the consequence for the child that (understandably from the perspective of that Centre) there has not been an opportunity for him to enter into discussions about overnight stays with the father or time with him away from the Contact Centre.

22. Understandably, any such discussion is likely to have been discouraged in order not to cause conflict or confusion to the child, nor to cause an expectation which may or may not have come to fruition. 

23. It is against that background, however, that Ms B, the psychologist upon whom the child has most recently attended, has interacted with him. Her affidavit contains evidence to the effect that he has evidenced some distress when the topic of overnight time with the father has been discussed:  against the background to which I have adverted, it seems highly likely that, perhaps, is not surprising given I suspect such a topic has been very much a “no-go” zone for him for the last two years.

24. The parties are agreed - I think sensibly and with significant focus upon assisting the child - that they will ensure that the child attends upon a clinical psychologist for as long as such person thinks is reasonably necessary.  I accept the submissions made by Ms Smith on behalf of the father – without contradiction by Mr Mason on behalf of the mother – that it is the child’s father’s intention to engage in that process.

25. That could only be thought to be beneficial to the child and is, again, a reflection of both parents’ commitment to ensuring that his future parenting arrangements provide him the opportunity to continue to develop and enjoy meaningful relationships with both of them. 

26. Ms B’s evidence contains an assertion in relation to the child’s development.  A reading of it, absent reference to other material, would suggest that he is a child who is developmentally delayed. It is, I think, relevant to record that an assessment undertaken by the New South Wales Government Education and Communities Department, (which produced a confidential report which may be found at pages 520 to 522 of Exhibit 3), records that “[D] is a happy child with a delightful personality whose speech and language is well developed and socially appropriate for his age.  He is, it seems, a child able to clearly articulate information about topics that interest him and he is described as having a good general knowledge.”

27. The assessment records “that his working memory is very weak” – this is said to be a contributing factor to his difficulties in the development of reading skills.  The assessment indicates he could have a mild intellectual disability. It is clear, from regard to that report, that the school intends to review that.

28. It is to the credit of both of the child’s parents that they have been able to reach agreement about the terms of the orders as outlined in the draft minutes.  It is heartening to hear the information conveyed by Mr Mason on behalf of the mother in relation to what I will describe as an amiable telephone communication between the two of them more recently.  It is to be hoped - for the child’s sake - that they will be able to continue to communicate in a respectful manner into the future.

29. By way of reminder to both of them as they seek to embark upon this new stage of the child’s parenting regard can, I think, helpfully be had to the comments and assessments made by the Department (in records completed on 13 February 2013, which form part of Exhibit 3) to the effect that:  ongoing conflict between the child’s parents about the appropriateness of parental care provided to him by each of them and exposure to this poses to him an additional risk of harm because it is likely to interfere with him having a positive and nurturing relationship with his parents and damage his sense of safety and security, which of itself may have longer term implications for his healthy development and ability to form strong and sound peer and adult relationships in the future.

30. The terms of the order proposed by the parents - which I am persuaded are in the child’s best interests for the reasons I have expressed - are, I hope for his sake, an indication by both of his parents that they have taken on board some of those comments and that they can embark upon future co-parenting in a manner that minimises the chance that the child will be exposed to conflict and it’s potentially significant deleterious effects into the future.

31. I intend to make an order in terms of the minute, as amended through discussion with Counsel, that has been signed by the parties.  I intend also to make an order that the Independent Children’s Lawyer provide to Ms B, or other such psychologist upon whom the parents agree that the child attend or upon whom he attends, a copy of the Reasons I have delivered once settled.

32. Given the contents of the second page of the confidential report prepared by the New South Wales Government Education and Communities (at page 521 of Exhibit 3 - the second paragraph at the top of that page) I intend to record that it is the mother’s belief – as outlined by Mr Mason – that the child had been abused by his father.  The father shall be at liberty to provide a copy of these Reasons, once settled, to the New South Wales Government, Education and Communities Public School, New South Wales Service so that their records can accurately reflect the position.

33. I have arrived at the determination that this order is in the child’s best interests because of my concern as to the existence of that assertion contained within the records of the Education Department, given that, at his age, there are many years of educational involvement ahead for him. 

34. For these reasons, then, orders will issue in the terms of the minute as amended with the additional orders I have outlined.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 March 2015.

Associate:     

Date:              19 March 2015