CANTRELL & ADAMSON

[2015] FamCA 541

FAMILY COURT OF AUSTRALIA

CANTRELL & ADAMSON [2015] FamCA 541

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Narrow dispute – where orders were made by consent providing for the child to live with the mother and for her to have sole parental responsibility – where what remained for the Court to determine was what time should be spent between the child and the father – where the evidence did not support a finding of sexual abuse of the child by the father – child to spend time with the father on a graduating basis, on the provision that he complies with an undertaking to undergo monthly urinalysis for a period of 12 months

Family Law Act 1975 (Cth), ss 68P

APPLICANT: Ms Cantrell

RESPONDENT:	Mr Adamson
INDEPENDENT CHILDREN’S LAWYER:	Krstina Wooi

FILE NUMBER: NCC 1783 of 2012

DATE DELIVERED: 22 May 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 18, 19 & 20 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bithrey

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Mr Radojev

SOLICITOR FOR THE RESPONDENT:	Family Legal
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Carty
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Krstina Wooi

Orders

1. That all parenting Orders in relation to B born … 2010 (“the child”) made prior to 20 May 2015 in the Federal Circuit Court and in this Court are discharged.

2. That the father file an undertaking in writing to the effect that he undergoes screening by urinalysis on a minimum of one occasion in each calendar month with such screening by urinalysis to be conducted under supervision and chain of custody in accordance with the Australia/New Zealand standard (AS/NZS) 4308:2008 Procedures for specimen collection and the detection and quantitation of drugs for abuse in urine (“drug screen test”).

1. That the child shall spend time with the father as follows:

   3.1.Until 31 August 2015 supervised by C Contact Centre at Suburb D (“the Contact Centre”) for such periods as determined by the Contact Centre;

   3.2.Provided that the father has filed his undertaking pursuant to Order 2 and complied with that undertaking, then the child shall spend time until the commencement of school in 2016:

   3.2.1.From 9.30 am to 5.30 pm each Saturday, provided that the paternal grandmother, or if she is unavailable, another adult female family member known to the child, is present in the home;

   3.3.Provided that the father has complied with his undertaking, the child shall spend time with the father from commencement of school in 2016:

   3.3.1.

   On each alternate weekend from after school on Friday until

   
   

   5.00 pm on the following Sunday, commencing the first weekend after the commencement of each school term and alternate weekends thereafter;

   3.3.2.During school holidays:

   3.3.2.1.

   For one half of each New South Wales public school holiday period and, failing agreement, for the first half of the school holiday period in even numbered years from 9.30 am on the first Saturday of the school term until

   
   

   9.30 am on the Saturday which is closest to the midpoint of the school holiday period and for the second half of the school holiday period in odd numbered years from 9.30 am on the Saturday nearest to the midpoint of the school holiday period until 9.30 am on the Saturday before the school term commences.

2. That from the commencement of school in 2016, the mother’s time with the child will be suspended as follows, when the child will spend time with the father:

   4.1.On Father’s Day from 9.00 am until 5.00 pm;

   4.2.On the child’s birthday in the event that the child has awoken in the mother’s residence that day from 4.00 pm until 7.00 pm;

   4.3.From 4.00 pm on Christmas Eve until 5.00 pm on Christmas Day in odd numbered years.

3. That from the commencement of school in 2016 the father’s time with the child will be suspended as follows, when the child will spend time with the mother:

   5.1.On Mother’s Day from 6.00 pm preceding Mother’s Day and for the balance of the period of time that would otherwise have been spent with the father;

   5.2.On the child’s birthday in the event that the child has awoken in the father’s residence that day from 4.00 pm until 7.00 pm;

   5.3.From 4.00 pm on Christmas Eve until 5.00 pm on Christmas Day in even numbered years.

1. That if the father fails to present clear drugs screens at any time then the child’s time with the father shall be suspended and in lieu of such time the child shall spend time with the father in accordance with Order 3 until such time as he has provided three consecutive clear drug screen tests over a three month period.

NOTATION relevant to s 68P of the Family Law Act:

(A)The Court has made parenting orders that provide for a child, B born … 2010, to spend time with the father, Mr Adamson.  There is an existing Interim Family Violence Order; Apprehended Domestic Violence Order made 4 March 2015 in the Local Court at Raymond Terrace.  The parenting orders are not inconsistent with the Family Violence Order.

IT IS NOTED that publication of this judgment under the pseudonym Cantrell & Adamson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1783 of 2012

Ms Cantrell

Applicant

And

Mr Adamson

Respondent

And

Krstina Wooi

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

introduction

1. In this matter there are competing parenting applications for one child, a girl aged four years and five months.  The child is the only child of the parties’ relationship. 

2. The matter was included in the Magellan Protocol due to allegations of possible sexual abuse of the child and a Joint Investigation Response Team (“JIRT”) investigation.

3. The parties are the applicant mother, aged 42, and the respondent father, aged 37. 

4. The parties began living together early in 2008 and separated in mid-2011, when the child was about six months old. Since separation there have been a variety of arrangements, none of which have been particularly successful. 

5. In addition to the allegations of sexual abuse of the child, the key issue is the extent to which each of the parties has abused alcohol and illicit drugs. 

Short History of Relevant Events

1. After the parties separated in June 2011, they entered into a parenting plan for the child to spend three nights with the father and four nights with the mother each week.  This arrangement broke down, perhaps unsurprisingly, given the child’s very young age.

2. The mother made at least one trip away to Queensland with the child without reference to the father, and the father withheld the child from the mother in mid-2012. 

3. On 3 July 2012, during the period where the father withheld the child, the mother attended the home of the paternal grandmother, where the father was living, and searched for the child.  She was intoxicated, aggressive and destructive.  The father and child were in fact not present in the home.  The police were called and the mother was charged with common assault. She was later convicted and placed on a good behaviour bond for 12 months.[1]

   [1] Exhibits 7 and 8

4. On 6 July 2012 the mother filed an Application in the Federal Magistrates Court (as the Federal Circuit Court was then known) seeking final parenting orders and an urgent recovery order.

5. On 12 July 2012 interim orders were made by consent for the child to live with the mother, for the parties to have equal shared parental responsibility, and for the child to spend regular time with the father.

6. Late in 2012 a Family Report was ordered and released early in the following year (“the first Family Report”). 

7. What emerged from the first Family Report was that the father was categorised as an alcoholic, as was his father, who was living in the same household.   The mother was also categorised as “drinking to excess during the relationship”. Both parties had used marijuana to different degrees as well. 

8. The recommendations from the first Family Report were as follows: 

   a)That the parties share parental responsibility;

   b)That unless the court found the child was at an unacceptable level of risk of harm in the mother’s care, that the child should live with the mother, who was assessed to be her primary psychological attachment figure;

   c)That any overnight time for the child with the father should occur in the home of the paternal grandmother, whilst ever the father consumed any alcohol at all;

   d)That the father attend a residential rehabilitation program and abstain from using alcohol and illicit drugs, or in the alternative that he attend upon a drug and alcohol service;

   e)That the mother restrict her use of alcohol to the legal driving limit whenever the child was in her care;

   f)That the child not be left in the sole care of the paternal grandfather;

   g)That the child not co-sleep with any adult other than the mother and father, and then not with them either if intoxicated; and

   h)That in the event that the court found that the child would be at an unacceptable level of risk in the mother’s care, then it was recommended that the Department of Family and Community Services (“the Department”) be invited to intervene.

9. In January 2013 the police were contacted by the father after he had received a series of text messages from the mother.  Police described the mother as “well affected by alcohol” when they visited her at home.  That visit took place at night with the mother and child asleep and awoken by police.

10. On 1 March 2013 final parenting orders were made by consent in the Federal Circuit Court (“the March 2013 Orders”).  Those orders provided for the parties to have equal shared parental responsibility, for the child to live with the mother, and for the child to spend increasing periods of time with the father, progressing to alternate weekends and half school holidays after she commenced school.  The parties were directed to engage with qualified drug and alcohol counsellors.  There was a restriction on overnight time with the father being only in the home of the paternal grandmother until the child was 10 years of age.  There were other protective orders put in place.

11. In May 2013 the paternal grandfather died. 

Current Application

1. The current application was commenced by the mother on 18 September 2014. The events leading up to that application are as follows.

2. The mother says she observed a change in the child’s conduct, and observed the following matters involving the child’s behaviour and reactions.

3. In April 2014 the child became anxious and inordinately distressed by the closing of doors.[2]  Both the father and the paternal grandmother confirmed that she was upset about doors at this time. The evidence was that the father, after the paternal grandfather’s death, had begun a conversion of the garage on the paternal grandparents’ property into a granny flat. That took about 12 months, from May 2013 to May 2014.

   [2] Affidavit of the Mother filed 10/04/2015, par 44

4. During May 2014 the child became resistant to spending time with the father.

5. In June 2014 the mother reports the child was upset about visits with the father and made statements about wanting to enter the paternal home only through the paternal grandmother’s door and not the father’s door.  The mother began teaching self-protection messages, I am satisfied, with the best intentions for the protection of the child. 

6. On 15 June the paternal grandmother refers to the child telling her that she was not to be touched when the grandmother was assisting her after use of the toilet. 

7. On 16 June 2014, after the mother collected the child from the father’s home, at bath time the mother noticed the child’s genitals were red. When she tried to apply cream the child became upset, screamed, closed her legs and is reported to have said to the mother twice, “please don’t go inside”.   The mother asked “who goes inside?”  The child said “Daddy”. 

8. The mother was uncertain about what to do and whether or not to send the child to the father’s home. The considerations in her mind were that there were current orders which she should not breach, that she was not sure how to interpret what the child had said, she was not sure what to do about what the child had said, and that she was reliant on the father to care for the child at weekends when she was working.

9. She continued to give the child protective messages.   It has to be said that the message to the child that nobody was to touch her genitals was probably not helpful to the child since it was clear that both parents and the paternal grandmother regularly touched the child’s genitals to assist her in the bathroom, at the toilet, and for bathing. 

10. On the following weekend the child again spent time with the father.  That was the weekend of 21-22 June 2014.

11. On the Monday following the end of that weekend for the child with the father (23 June 2014), the mother reports that when she collected the child from the father’s home, the child said to her “Daddy is naughty because he touches my fanny.”  There were no physical or other signs as there had been on the previous weekend.  The word ‘fanny’ was the child’s word for her genital area. 

12. The child also made a similar statement to her brother, then aged about 16 years. 

13. That night the mother contacted police who attended the home and spoke to the child.   Thereafter, there was no contact between the child and the father for a period of about eight months. 

14. Three days after the report was made to police on 26 June 2014 the child was interviewed by JIRT.  The interview was conducted professionally and without leading questions.

15. In answer to questions about which part of her body had been touched by anyone at all, the child was prepared to concede “only her hair and her fanny”.   Otherwise, nobody at all had touched any part of her body.  It was clearly inaccurate and represented some confusion in the child about touching.

16. The child reported that the father touched her fanny all the time with his hands, “that’s not very nice.  He keeps doing it”, and also that “he spoke naughty words”. 

17. The child otherwise accurately reported that she spent her time in the home of the paternal grandmother, that she often saw the father there, and that his name was Mr Adamson.   She said she had spoken to ‘Aunty Sis’, identified as her sister, the mother’s adult child Ms E, and advised that she had asked the police to get “her dad to stop touching her fanny”. These statements by the child appear to be consistent with the mother’s advice to her that no one should touch her genital area.

18. Although the investigation remains open, the view of JIRT was that allegations of sexual abuse had not been substantiated. 

19. It is common ground that the child has suffered from pain and other consequences of constipation throughout her life, and that the paternal family have used suppositories to address this problem, and that the mother has not. The child has suffered from rashes and soreness, and according to the father, at least on one occasion, an anal fissure earlier in life. She was still being assisted for bathing and at the toilet by members of her family. 

20. The mother was distressed at the possibility of the child having been intentionally abused in a sexual way by the father, although not convinced about it and acted protectively.  There is no evidence that she repeatedly questioned the child or took any step to establish that she may have been molested.

21. On 8 July 2014 an interim apprehended violence order (“AVO”) was made for the protection of the child from the father.  That AVO has been continued and the proceedings are listed back before the Local Court in December 2015 for further consideration.

22. On 11 July 2014 the father’s solicitor wrote about the failure of the mother to provide the child for time with him, and it appears that this was at least one factor prompting the mother to file her application in September 2014. A Notice of Child Abuse was also filed setting out the allegations discussed above. 

23. In September 2014 the matter was allocated into the Magellan protocol. 

24. The next day the father was interviewed by the Department.  He denied touching the child inappropriately.  He also estimated that at that time his drinking had escalated to about four to six long neck bottles of full strength beer, approximately 12 to 18 standard drinks.   The father said, and I accept, that he was immensely upset at the thought of losing all contact with the child. 

25. On 29 October 2014 the Magellan Report was received by the Court.

26. An analysis of the issues in the Magellan Report were that the Department had considered the information before this Court, and the interview with the child, and had concluded that due to her age, developmental stage, and inability to clearly articulate her experience of the father touching her “fanny”, together with the requirement for help with toileting and bathing, that it was unclear if her disclosure of the father touching her was in relation to those matters or something that could constitute a sexual or indecent assault.   

27. Due to the limited information that was able to be obtained from the child, the Department did not substantiate that harm had occurred.  It appears to be in all of the circumstances, having heard all of the evidence, an appropriate conclusion.   The Department did not intervene in these proceedings. 

28. On 14 November 2014 interim orders were made by consent that the March 2013 Orders were to be suspended and that the father was to spend time with the child in a nominated contact centre. A Family Report was also ordered.

29. In December 2014 that Family Report was released (“the second Family Report”).   The recommendations of that report were that the child live with the mother, that the mother have sole parental responsibility, that the mother engage with the Brighter Futures Programme and undertake a parenting course, and that in the event that the court found that the father posed an unacceptable risk of harm to the child, then supervised time in a contact centre on four occasions per year was recommended.

30. The Family Consultant noted that the mother was the child’s primary carer and the child was reliant on her to meet her needs. The Family Consultant found it difficult to comment on the nature of the attachment between the mother and child, other than to say that nothing occurred during the current interview observation to raise any concerns in that regard. 

31. Whilst noting the history of both parties in relation to alcohol and drug use, the Family Consultant highlighted the father’s apparent unconcern about his own history of serious alcohol abuse and regular marijuana use over a 20 year period.  Further, that he appeared to be unmotivated to change that pattern. 

32. The Family Consultant’s view was that there were fewer risks for the child in the mother’s household than the father’s, noting the strong loving bond between the child and paternal grandmother.

33. The father commenced to have supervised visits in the contact centre in February 2015, and these have continued, other than for two occasions when the child and the father respectively were ill. 

34. The mother in her oral evidence stated that the child reported enjoying the visits and that she, the mother, had no concerns about any of the visits.   This is a positive aspect of capacity for both parents.

35. On 6 March 2015 the mother filed an Amended Application proposing time for the father supervised by the paternal grandmother, at particular times during the day.

36. The father filed a Response on 20 April 2015 setting out for the first time the orders he was seeking, including an order that the child live with him. 

1. By the date of hearing, the mother’s position shifted to supervised time for the father only, and it is probable that her new position related to the father having sought an order for residence.

2. By the conclusion of hearing the parties had each dramatically changed their position. 

3. Orders were made by consent providing for the child to live with the mother, and for her to have sole parental responsibility for the child.  Many other specific issue orders were also made. 

4. The father through his counsel indicated that having heard all of the evidence, he understood that the child would be best off with the mother and that he had some work to do.  A document which became a late exhibit[3] was put forward on behalf of the father, reflecting his commitment to having drug testing in accordance with the recommendations of the Family Consultant.

   [3] Exhibit 18

5. Accordingly, what remained for the Court to determine was what time should be spent between the child and the father. 

6. The consent orders effectively acknowledged that the evidence did not support a finding of sexual abuse of the child.  It did not.  However, I stress that the mother acted protectively, and that the child, perhaps innocently, created a loop of suspicion about the matter of her genitals being touched. 

7. In coming to a set of orders about the time between the child and the father, in the context of the child continuing to live with the mother, and the mother having sole parental responsibility, I have taken the following matters into account.

The Law – Additional Considerations

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The child does have an important relationship with the mother, and her two adult siblings, Ms E, who has her own daughter aged about two, and Mr F, now 18 years of age. 

2. In the father’s household, the paternal grandmother, and her three maternal cousins are very important relationships for the child.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. Each of the parents has made decisions unfortunately unilaterally and without consultation with each other.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The father currently has a carer’s pension.  He cares for the paternal grandmother.

2. The mother has worked at weekends when the child was with the father, although she has given up work as a result of these proceedings. 

3. The time that the child spends with the father had to be considered in relation to the propensity of both parties to drink, but, in particular, the father drinks at risky levels in terms of the ability to provide appropriate care for a four year old girl.

If the child is an Aboriginal child or a Torres Strait Islander child

1. The evidence suggested that the paternal grandfather was of Torres Strait Islander descent.   Nothing was made of that in the evidence in particular, but if it is the case that the father identifies with that heritage, then respectful recognition of that should be available to the child.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. Each of the parents loves the child, but lost sight of her needs through their anger and fear associated with this case. 

Any family violence involving the child or a member of the child’s family

1. There is a current interim AVO which was made in March 2015, although the AVO contains a qualifying order that says that if there is a Family Law order it will not be inconsistent with a protective order.

2. I have made a notation to the Orders that the parenting orders made by me are not inconsistent with that AVO.

Any other fact or circumstance that the court thinks is relevant

1. In considering the particular orders to be made, the father has expressed an intention and a wish to be bound to provide clean drug screens as a condition of restoring his relationship with the child.

Conclusion

1. On that basis I have made an Order that the father provide an undertaking to the Court in the terms that were sought that he undergo urinalysis on a minimum of one occasion in each calendar month for a period of 12 months.

2. Provided that he makes that undertaking and complies with it, the Orders provide:

   a)For time at the contact centre until the end of August 2015, to give the father the opportunity to provide the undertaking and to undergo the first test;

   b)That from the end of August 2015 until the child starts school in 2016, that she spend each Saturday during the day with the father in the presence of the paternal grandmother or another female relative, but without express supervision;  and

   c)That providing the father has complied with his undertaking after the child starts school, the child spend time with the father on alternate weekends from Friday after school until Sunday evening. 

3. I note the submission of the Independent Children’s Lawyer that the weekends should extend to Monday before school, however, the evidence suggests that this could be a difficult burden for the paternal grandmother, the father not having a licence, and she having three other grandchildren who she looks after on weekends.   There is a benefit to the child in returning home to the mother on Sunday evening. 

4. There is otherwise provision for holiday time and other special occasions as proposed by the Independent Children’s Lawyer. 

5. Orders and the declaration under s 68P of the Family Law Act 1975 (Cth) are made accordingly. 

I certify that the preceding seventy five (75) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

22 May 2015.

Associate:

Date:  13 July 2015