Coley and Coley and Ors

[2018] FamCA 1008

FAMILY COURT OF AUSTRALIA

COLEY & COLEY AND ORS [2018] FamCA 1008

FAMILY LAW – CHILDREN – Parenting – Interim – Where the Department of Family and Community Services is an intervener in the parenting matter – Where the child is under an Emergency Care and Protection Order – Where the mother has made allegations that the child is a victim of sexual abuse by her half-brother – where these allegations have not been substantiated – Where the mother suffers from severe alcohol abuse – Where the mother is unable to care for the child – Where the child is at risk of psychological harm by continued exposure to abuse allegations – Where the mother has made allegations of abuse against the maternal grandfather – Where there is no independent expert evidence available to the court – Child to live with the father – Where the father is to ensure the child is not brought into contact with any persons alleged to have perpetrated abuse against the child – Where supervised time between the mother and child is granted pending further orders.

APPLICANT: Ms Coley

RESPONDENT: Mr Coley

INTERVENOR: Secretary, Department of Family and Community Services

2^nd INTERVENORS: Mr and Ms Scales

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1401 of 2015

DATE DELIVERED: 4 December 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 26 November 2018

REPRESENTATION

THE APPLICANT:	In Person
COUNSEL FOR THE RESPONDENT:	Mr Fowler

SOLICITOR FOR THE RESPONDENT: Sharon Moss Legal

COUNSEL FOR THE INTERVENOR: Mr Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitors Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McConaghy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Gosford

SOLICITOR FOR THE 2^ND INTERVENORS: DLO Lawyers

Orders

IT IS ORDERED, PENDING FURTHER ORDER

1. That all previous orders are discharged.

2. That the father will have sole responsibility for X, born … 2011, (“the child”).

3. That the child will live with the father.

4. That the father ensure that the child is not brought into contact with any person alleged to have perpetrated abuse against the child.

5. That the mother shall spend supervised time with the child for one period of two hours, every Saturday or Sunday at such times and places as are nominated by the Secretary of the Department of Family and Community Services (“DFCS”) and under the supervision of a supervisor or a contact service, approved or provided by DFCS.

6. That the maternal grandparents shall spend supervised time with the child for one period of two hours, every alternate week on Saturday or Sunday at such times and places as are nominated by DFCS and under the supervision of a supervisor or a contact service approved or provided by DFCS.

7. That the periods of supervised contact referred to in Orders (5) and (6) shall take place at times and places agreed between the father and DFCS.

8. That the mother and father are restrained by injunction from:

   (a)Being under the influence of illicit drugs while caring for the child or spending time with the child pursuant to these orders, and permitting another person to do so.

   (b)Denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

   (c)Discussing any allegation made or evidence given in these proceedings to, or in the presence of, the child and from permitting another person to do so.

   (d)Exposing the child to any form of family violence, including verbal violence or using abusive language to, or within the hearing of the child.

   (e)Physically disciplining or striking the child.

9. That the mother is restrained from consuming alcohol within 24 hours of the commencement of any time she spends with the child pursuant to these Orders.

10. That pursuant to s68B of the Family Law Act 1975 (Cth) the Mother is restrained from removing the child from any school, extra-curricular activity or from the care of any person in whose care the father has placed the child.

11. That the mother shall, at her own expense, attend random chain of custody urinalysis testing or carbohydrate-deficient transferrin (“CDT”) testing in accordance with the current Australian standard within 24 hours of a request by a delegate of DFCS.

12. That the father and the mother shall:

    (a)Permit DFCS to conduct random home visits to his or her residence or any residence where the child lives or spends time.

    (b)      Ensure that, at all times, DFCS may enter the premises where the child is.

    (c)      Ensure that, at any time, DFCS can meet with the child.

    (d)Accept all reasonable directions from DFCS in relation to his or her care of the child and provide to DFCS any information requested in relation to the child.

    (e)Participate in any risk assessment conducted by DFCS and comply with any case plan developed by DFCS.

    (f)       Cause the child to attend any medical appointments arranged by DFCS.

    (g)Authorise any treating medical practitioner to provide any information about the child sought by DFCS.

    (h)      Accept and facilitate all reasonable referrals made by DFCS for the child.

    (i)Engage with any support services recommended by DFCS, including but not limited to a psychologist, counsellor or alcohol support service.

    (j)Ensure that DFCS and each parent is provided with a contact telephone number and address for each parent.

13. The Court NOTES that it is the intention of the father and DFCS to re-engage Ms B as the child’s therapist if this is practicable.

14. In these orders the term DFCS includes an employee or delegate of the Secretary of the department of Family and Community services.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1401 of 2015

Ms Coley

Applicant

And

Mr Coley

Respondent

And

Secretary, Department of Family and Community Services
Intervenor

Mr and Ms Scales
2nd Intervenors

REASONS FOR JUDGMENT

1. The child X, who was born in 2011, is the child of Ms Coley (“the mother”) and Mr Coley (“the father”). The child’s parents separated in September 2014 and thereafter the child lived with the mother, and, from time to time, with the father and with the maternal grandparents.

2. The father has three children of his previous marriage with whom he has a good relationship and who spend time with him as agreed. The youngest of those children is 15 years old. The older children are adults.

3. The mother commenced a relationship with Mr C in 2014, and they began cohabitating in 2015.

4. The proceedings before the Court are interim proceedings to determine how the child can be cared for until such time as the proceedings can be heard.

5. The parties are the mother, the father, the maternal grandparents and the Secretary of the Department of Family and Community Services (“DFCS”). An Independent Children’s Lawyer (“ICL”) has been appointed for the child.

6. On 21 November 2018, DFCS was granted an Emergency Care and Protection Order placing the child in its care for a period of 14 days. That order expires on 5 December 2018. Counsel for DFCS has told the Court that they do not intend to seek an extension of the temporary order but rather that the matter should proceed in the Family Court of Australia and that DFCS consented to this Court exercising jurisdiction. However, if judgment in this application has not been delivered by 5 December 2018, DFCS will seek to extend the temporary order until orders are made.

7. It is acknowledged that the hearing is interim in nature and that no findings of fact can be made on the untested evidence before the Court.

8. The maternal grandparents filed an application to intervene in the proceedings which was allowed without objection.

ORDERS SOUGHT

1. DFCS sought an order placing the child in the care of the father with supervised time with the mother once each week and supervised time with the maternal grandparents each fortnight.

2. The ICL sought orders in similar terms as those sought by DFCS.

3. The father sought orders in terms similar to DFCS. He proposed that the child should attend her current school until the end of this school term and then attend a school near his home. He asked that the supervised contact with the child which is proposed by DFCS and the ICL occur at weekends because of his work commitments.

4. The maternal grandparents initially sought orders that the child live with them but after they heard the submissions made by DFCS, the ICL and the father, and became aware of some of the mother’s allegations, specifically those directed by her against the maternal grandfather, they conceded that it was not appropriate for the child to live with them and supported her living with the father. However, they sought unsupervised, alternate weekend time with the child, with the proviso that the mother be restrained from attending at their house or being present when the child is there.

5. The mother sought an order that the child live with the maternal grandparents. She appeared to concede that her time with the child should be supervised. She sought telephone contact with the child every night.

THE ALLEGATIONS

1. It is important to note that the material presently before the Court, which comes from a variety of sources including DFCS, Police, ambulance and hospital records, as well as affidavit evidence of the parents, the maternal grandmother, the father’s former wife and Ms D (a caseworker for DFCS), is entirely untested. It was apparent during submissions that the mother denies that a number of the alleged events occurred and that the matters recorded in documents tendered are accurately recorded.

2. Reports and records kept by the school, police, ambulance and hospital staff are likely to be given greater weight at this interim stage of the proceedings than reports (or denials) of parties and family members, because the former are required by law to keep records and have no subjective interest in the matter.

3. These reasons address the allegations which have been the subject of affidavits and documents tendered. It may be that not all allegations are the subject of evidence at this time.

4. All of the issues will be tested in the final hearing when witnesses will be called and cross-examined.

5. The present task is to determine how the child can be safely cared for until a final hearing, likely to be in July 2019. It is agreed that a Single Expert psychiatrist should be appointed to prepare a report. However, at the present time, no expert guidance is available.

6. DFCS prepared a Magellan report at the request of the Court. The report, dated 5 September 2018, detailed 27 Risk of Significant Harm (“ROSH”) reports to DFCS in relation to:

   Alcohol abuse by carer,

   Inadequate supervision for age,

   Sexual: indecent acts/molest,

   Physical abuse: excessive discipline,

   Sexual abuse: suspicious indicators consistent with sexual abuse,

   Sexual abuse: sexual act or exploitation,

   Neglect: risk of significant neglect,

   Parental risk factor: mental health,

   Physical abuse, threats to kill injure a child/young person,

   Psychological harm: risk of significant psychological harm

   (As per the original)

7. With the exception of the notification concerning alleged sexual abuse, the reports detailed concerns about the mother’s care of the child.

8. It is alleged that between 2010 and 2014, the mother attended drug and alcohol programs on at least three occasions. The mother has two convictions for driving under the influence of alcohol.

9. In February 2014, DFCS received a notification that the child was at risk because of the mother’s long standing alcohol addiction. At that time, the mother was in an inpatient program for alcohol addiction and the child was living with her maternal grandparents. DFCS conducted a safety assessment.

10. On 18 April 2014, the mother was alleged to have broken into a friend’s house and stolen alcohol.

11. A caller told DFCS that the child had been sighted crying and trying to attract her mother’s attention and appearing dishevelled when the mother smelt of alcohol.

12. DFCS noted a report on 1 October 2014 in relation to concerns about the mother’s alcohol use. The report outlined the fact that the mother had pending charges for drink driving and a suspended licence. The report detailed that a member of the community reported to Crime Stoppers that the mother had been found in a car smelling of alcohol with an unknown man when she collected the child from child care. On another occasion the mother was discovered passed out due to alcohol use. The mother was in the bedroom and the child was trying to turn the bath taps off, leaning over the bath. On the Sunday, previous to the report, the mother and father had argued, and the mother had fallen down the stairs due to intoxication.

13. On 28 October 2014, DFCS conducted a safety assessment which revealed that the child was residing with her maternal grandparents and the mother was attending an inpatient program for alcohol abuse. The mother disclosed to DFCS a longstanding addiction to alcohol, spanning between ten and 12 years.

14. On 6 December 2014, the police attended at the mother’s home at the request of the father. The police were told by the father that, when the father arrived, the child was standing in the rain outside the flat, wearing only her underwear. The father checked inside the flat and found the mother lying inside the house unresponsive.

15. The father put the child in his car and waited for the police. The mother woke and walked to the car and put her arm through the rear passenger window so that the father could not drive off with the child. The police arrived and spoke to the mother. She admitted to the police that she had come back from a friend’s house after having drunk four glasses of wine. The police noted they could smell alcohol on the mother. Clothing was gathered for the child and the child was taken back to the father’s home until such time as the mother was sober and able to look after her.

16. On 7 December 2014, and ROSH report was received to the effect that the mother was located unresponsive in the home and the child was present and unsupervised. The child was taken by the father and returned to the mother next day. When asked by DFCS about the incident, the mother denied being unresponsive and was unable to provide an explanation why the police believed she was unable to care for the child on that day.

17. On 5 February 2015, DFCS received a ROSH report when the mother had presented to E Hospital with a blood alcohol level of 0.46. The mother was unable to provide an explanation for the level of alcohol and disclosed consuming a “small amount of alcohol”. DFCS interviewed the maternal grandparents who confirmed that the mother had been intoxicated and had also taken Valium. They expressed a deep concern for the child’s safety in the care of the mother. The child was, at that time, in the care of her father and case workers visited the home without noting any concerns.

18. On 25 February 2015, DFCS met with the mother and discussed her attending an inpatient program for nine months to address alcohol issues.

19. On 2 March 2015, the mother removed the child from day care and notified the father that she would keep the child. DFCS contacted the mother who told them that she would not participate in the inpatient program.

20. The case was closed on 26 August 2015, because the level of risk had decreased for the child whilst she was in the care of her father and the maternal grandparents.

21. On 5 November 2015 DFCS received a report that the mother had been located in her home, unresponsive, and that the child, then aged four years, was unsupervised.

22. At this time, the concerns for the child were related to the mother’s alcohol use.

23. On 31 December 2015 DFCS received a notification alleging that the child had been sexually abused by both of her older half-brothers. The Magellan report summarises the allegation as a disclosure by the child that her half-brothers had put their fingers in the child’s vagina. It is understood that it was the mother who made the notification. The notes of the original notification made by the mother are not in evidence. No doubt they will be available in due course for the consideration of the Single Expert.

24. The matter was referred to a Joint Investigation Review Team (“JIRT”).

25. On 11 January 2016, the child was interviewed about the allegation and made no disclosures. The father was interviewed also and claimed he could not recall any time when either of the child’s half-brothers could have been on their own with her.

26. JIRT was unable to substantiate the allegation of sexual assault and assess the likelihood of any harm occurring as low. JIRT noted that the assessment was based on the safety measures that the father had put in place with the older children to ensure that they were never with the child without supervision.

27. On 23 February 2016, final parenting orders were made in the Family Court of Australia which provided for the parents to have equal shared parental responsibility for the child and for her to spend time with the father on alternate weekends from Friday until Monday and in school holidays.

28. Dr F, a consultant psychiatrist, who treated the mother, in a report dated 7 July 2017, noted that in the course of consultations, the mother had told him that she had been physically and emotionally abused by her father and that her mother (the maternal grandmother) had been an alcoholic until recently.

29. In the consultation with Dr F on 13 February 2018, Dr F noted:

    she spoke about her being abused by her father

    asked to speak to her mother and her father won’t let her

    she spoke about her mother needing rescuing from her father

    (As per the original)

30. In relation to a consultation on 14 February 2018, Dr F noted that the mother told him:

    worried about her mum is in a domestic violence situation – tells me she wanted her mum to come and visit

    she didn’t acknowledge till yesterday that it was fear that stops her mother from hanging out with her daughter

    (As per the original)

    Dr F noted that the mother told him that she had stopped drinking 2.5 years ago.

31. On 20 March 2018, DFCS received a report of an alleged disclosure by the child to the effect that her step-father, Mr C, tied her up and sent her to her room. The child said that Mr C tied her up with a rope and covered her mouth and she was not let out until her mother untied her.

32. In April 2018, the mother told the father that she was “stopping all contact between you and the child”. The child did not then see her father until supervised contact was arranged by DFCS in September.

33. Records produced by the New South Wales police indicate that on 6 April 2018 police were called to the home occupied by the mother and Mr C. Police noted that Mr C is a quadriplegic and requires a wheelchair to move around as he cannot move his legs and has limited control over his arms and hands.

34. Mr C told the police that he had attempted to wheel himself to his bedroom, but the mother locked the bedroom door so that he could not enter. He said that the catheter, which he needed, was in the en suite bathroom. Mr C contacted the police so that he could obtain his catheter and later that evening he knocked on the bedroom door, the mother unlocked it, Mr C obtained his catheter and slept in the spare room.

35. The police records states “Around 12:00 am on the same date, police attended the location and observed [the mother] in the kitchen slightly slurring her words [the mother] appeared affected by alcohol.”

1. Mr C told police that he had no fears in relation to the mother. A short time after the police left the address, they received another call. Mr C alleged that the mother entered the spare room where he was lying down, removed his blankets and grabbed both of his legs shouting “Stand up, stand up”. Mr C said that the mother then walked around to the side of the bed and started to punch him with closed fists on his torso several times and then punched him with closed fists around his face, resulting in lacerations to his right cheek and left eyebrow above his left eye. When the police returned to the home, they noticed the injuries to Mr C’s face, which had not been there when they had attended earlier. The mother was arrested and cautioned. A blood alcohol level of 0.26 was recorded.

2. The police noted that the mother was still affected by alcohol and slurring her words. When the police arrived at the Suburb G Police Station, the mother resisted entering the dock and the police used force to get her into the dock. The mother had continued to resist police and a decision was made to allow her to sit on the floor of the charge room. The mother then complained of a broken arm, and was taken by ambulance to Suburb G Hospital with a police guard. The police were told by the doctor who examined the mother that she had sustained no injury.

3. The mother was charged with assault and ultimately convicted. An Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of Mr C against the mother.

4. On 17 April 2018, DFCS interviewed the mother and Mr C about the allegation that the child had been tied up. The mother explained to DFCS that Mr C, who is a quadriplegic, could not have tied the child up because he lacks mobility in his fingers. Mr C uses a wheelchair. They could not explain why the child might have made that allegation.

5. On 30 April 2018, DFCS received police information in relation to the assault by the mother upon Mr C. The police advised DFCS that they noted that the mother was “well affected by alcohol”.

6. On 1 May 2018, the police records note that police received a telephone call from the mother stating that she was concerned for her mother’s welfare as her father may have disconnected the house phone. At about 10.30pm the same evening the police attended the home of the maternal grandparents who were asleep at the time. The police explained that they had been called by the mother to check on the welfare of the maternal grandmother. The police observed that the maternal grandmother was in good health, but admitted to having taken the phone off the receiver as they had received numerous phone calls from the mother who had rung the phone approximately eight times. Both of the maternal grandparents explained to the police that the mother is an alcoholic, who often abuses alcohol. The record notes “Her behaviour had become so erratic over the past months, verbally abusing her father; she was asked to leave the house. Since this time, she appears to have gone on a one person crusade, accusing her father of an array of abuse.”

7. The police rang and spoke to the mother, they noted:

   She informed police she was studying psychology, and while studying, came to the conclusion her father had been abusing her from the age of three years old, and had attempted to kick her out of the house when she was three years old. While she did not sound to be intoxicated while speaking with police, she would ramble on different topics, and on different occasions when her father was controlling over her; however since studying psychology has been empowered to stand up against her father; which is what she is doing now.

   The police concluded that the mother may have been suffering some “mental episode”, possibly linked to alcohol abuse.

8. The Magellan Report noted:

   On 4 May 2018 a report was received indicating the following:

   [The child] attended the school counsellor’s office accompanied by the mother alluding to a ‘Secret’ [the child] had with her brother.

   [The child] has made a further disclosure telling the reporter about a ‘stuck in the mud’ game that [her brother] played with her. [The child] said the chase was around the inside of her thighs and ‘it’ would go into her vagina and bottom hole.

9. On 4 May 2018, based on that report, the investigation was referred to JIRT. Between 5 May and 9 May 2018, there were five further reports that the child was continuing to allude to being sexually abused.

10. On 9 May 2018, the mother reported that she had taken the child to H Hospital as she was complaining of a sore vagina and sore bottom.

11. On 9 May 2018, the discharge summary produced by H Hospital, noted that the child was presented to the hospital for examination having been complaining to the mother about painful urination and pain around her genitals. The child had been seen by her general practitioner earlier in the week and vulvovaginitis had been diagnosed. The hospital notes state: “[The mother] looked at area this evening as the child told her she felt something was coming out. Noted what she reports is something that looks like a cervix, so presented for review”.

12. The mother told the triage nurse that she wanted the JIRT interview to take place and would like the child to be tested for sexually transmitted infections. The notes record that the child was examined by a consultant who noted:

    Gentle, non-invasive examination of genitalia completed following verbal consent from mother and the child ... no evidence of bruising or erythema noted on examination.

    No obvious discharge present, noted to have slight whitish exudate not thought to require treatment.

    Normal female genitalia identified – mother pointed out area of concern that she considered similar to cervix – but normal anatomy only visualised, with no tissue consistent with cervix.

    The notes record that the child provided a urine sample and denied any pain on urination.

13. On 16 May 2018, JIRT interviewed the child at school. The child denied being touched on the bottom or vagina. When allegations were put to the child that her brother had put his fingers in her vagina, the child said “He never did”. When the child was asked whether she would tell anyone if that had happened she said “yes, but that doesn’t happen”. Also on that day the JIRT caseworker recorded that the police had taken the mother’s phone based on what was classified as “child abuse” material on the mother’s phone in relation to the child.

14. Also on 16 May 2018, DFCS spoke to the mother at her home. The mother showed DFCS video and audio recordings on her phone of the child naked while the mother filmed the child’s genital area. DFCS seized the mother’s phone and told her that she was not to film, record or question the child about the allegations of abuse.

15. The child was interviewed by JIRT at school on 29 May 2018. The child told the JIRT officers that one worry was that her half-brother touched her genitals and she used a body chart to indicate where she had been touched. The JIRT workers attempted to attain further information from the child. When asked who told her to talk about the allegations, the child said that her mother had told her and that she was told that she had to tell the truth and “This is the truth”.

16. The child was asked whether her half-brother had touched her vagina and the child said “If I said no is that ok”? The child was asked “why did you ask if it’s OK to say no?”, and the child said “He did it”.

17. Prior to the interview with JIRT, the mother had provided JIRT with a mobile phone to view recordings made by the mother of the child, making a disclosure. JIRT police took the mother’s phone after finding a video of the child naked in the bath and a video of the child lying naked on her back with her legs in the air, while the mother was touching her anus and genitals. The report to the Department of Community Services (“DFCS”) stated “Further to the videos are several voice recordings whereby [the mother] can be heard questioning the child about being abused by [her half-brother] and despite the child denying this [the mother] repeatedly asks the child leading and challenging questions.”

18. DFCS concluded:

    [The child] did not appear upset or distressed and happy to talk with JIRT officers. Although [the child] has not displayed any obvious signs of distress or worry it is highly likely that her emotional adjustment is being affected, particularly given her mother’s obsession that the child has been sexually assaulted. [The mother] appears to be fixated and convinced that the child has been sexually abused by [her half-brother] and this is evidenced by ... The voice recordings and videos on her phone where she appears relentless in questioning the child, her presentation of the child to hospital and making appointments with a gynaecologist to have the child assessed.

19. In relation to that interview, JIRT prepared a report stating:

    It is highly likely that the cumulative harm that the child is being exposed to will have serious implications on her mental health as her mother is relentless and persistent. If an assault on the child has occurred it is highly likely that the child may find it difficult to recognise her own memories due to the persistent questioning and challenging by her mother. Furthermore if the child has been assaulted she may feel discouraged and fearful of disclosing due to the response she has received from her mother.

    JIRT will not be substantiating sexual harm for the following reasons. The child was interviewed and did not make any disclosures of sexual abuse by [her half-brother]. The child was asked leading and non leading [sic] questions and when the allegation was raised the child denied [her half-brother] ever touching her vagina. Although it has been reported on several occasions that the child has made ongoing disclosures, as well as voice and video recordings where the child has allegedly disclosed, JIRT have been unable to elicit a disclosure from the child. JIRT hold concerns that the child has been exposed to repeated and persistent badgering and questioning by her mother regarding being sexually assaulted. Voice recordings obtained from the mother’s phone indicate that her mother has continually questioned the child about being sexually assaulted and despite the child denying this her mother challenges her and continuing to ask leading questions. Further concerns are that the mother has presented the child to [H Hospital] saying that the child’s cervix was prolapsing and demanded that the child have an internal exam. In addition the child’s mother has made appointments for the child to see a gynaecologist and has called police claiming that the child has been sexually assaulted. When police arrived at the home the mother was observed as being highly delusional and displaying erratic behaviour which resulted in the mother being scheduled by police due to her behaviour. The child’s mother appears convinced with the idea that the child has been sexually assaulted and despite JIRT explaining that we are unable to substantiate harm, she continues to challenge the child. There are concerns that the persistent nature of questioning towards the child will result in significant psychological harm to the child, and as a result JIRT will be substantiating Risk of Psychological Harm. The mother ... will be identified as (person of interest) in relation to the matter.

20. There was an incident involving the child and the mother on 1 June 2018. Because of the seriousness of the incident, the records produced by the hospital, the ambulance and the police will be considered.

21. Records produced by the New South Wales Police, state that on 1 June 2018, the mother telephoned the police stating that the child had been sexually abused and that the police were not helping. The mother also stated that she wanted to kill herself. When the police arrived at the mother’s home at 6.30pm, the mother pushed the child towards the police stating “Now is your time to talk”. The child began to explain that her half-brother would “put his bits on her face”. The police noted that the child continually looked at her mother, as though requiring prompting. The police noted the mother appeared very scattered, highly delusional and erratic. She had large fixed pupils and would often jump from being highly belligerent to being overcome with emotion, screaming things like “My daughter was fucked in the arse”. When police tried to calm the mother down, she grabbed hold of the child and began to run through the house screaming at police to “get the fuck out of her house”.

22. The police noted that the child was extremely distressed and began to cry loudly. The mother and the child ran out of the house, and into the back grass area, before attempting to run back into the house and closed the door on police. When inside the house, the child broke free and ran crying to her bedroom. The mother then attempted to run after the child but was stopped by the police and handcuffed. The mother began to scream loudly which caused the child to become highly stressed as well.

23. The police took the child to her bedroom where she was comforted and distracted. An ambulance was called. The police noted that the mother remained highly irrational, again flipping from delusional, to belligerent, to emotional. At any time that the mother came near the child’s bedroom, the child grabbed hold of police and said how scared she was, even going so far as to attempt to hide under her bed. The child stated things to the police such as “You shouldn’t say no to mummy, she gets really mad”, and “My mummy doesn’t take her brain tablets anymore because she says she doesn’t need them”.

24. The police reported that the child became very attached to the police officers and would not let them out of her sight, wanting to have her hand held and wanting to be carried. When the mother was calm enough to be transported in the ambulance, the child was able to ride in the ambulance with the mother. Within the ambulance the mother “Flipped again” and became abusive towards the ambulance officers, at the same time congratulating the child for saying everything perfectly to the police.

25. While at the hospital, the mother repeatedly yelled at police that her daughter was “fucked in the arse” and that it was not being investigated. The police noted that the mother was very fixated and obsessive towards any persons within her reach, often staring for long periods of time, and then becoming very hostile and abusive towards these persons. The mother had no recollection of running away from the police at her home. The mother was scheduled under section 22 (I presume of the Mental Health Act) and the child was placed in the care of the maternal grandmother.

26. The police noted:

    Attending police are of the belief that [the child] is in a very disturbing environment, one which her primary carer ... is extremely fixated on sexual abuse, given her previous employment with [DFCS]. It is believed that significant trauma may have been experienced by [the mother] and this has lead [sic] to a Munchausen’s type syndrome being projected on to [the child]. Attending police are strong in their opinion that [the child] should not return into the care of [the mother]. Given this [the paternal grandmother] is very capable and willing to take care of [the child].

27. Suburb G Hospital records state that on 1 June 2018, the mother was brought to the hospital by police in an intoxicated state “on police schedule”. The records note that the mother had called the police, saying that the child had been raped. The notes record that the mother admitted drinking one bottle of alcohol today, but stated that although she used to have a problem with alcohol, she denied this to be the case now. The record notes:

    when police arrived she was manic, flight of ideas, saying she wanted to kill herself, not coherent at times, telling her daughter to tell the police exactly what happened then dragging daughter around the garden shouting ‘She has been fucked in the ass’.

    (As per the original)

    The records note that on admission, the mother smelt of alcohol, and although she was compliant with the hospital, she had been aggressive towards police.

28. The hospital records note that the mother was reviewed the following morning “when she was more sober” and that she appeared to be minimising her level of consumption of alcohol. Her blood alcohol level was 0.25.

29. New South Wales Ambulance records relating to the incident on 1 June 2018, state that when the ambulance officers arrived the mother was initially handcuffed and then walking around the home, at one stage stating that her lawyer was standing outside listening to everyone’s conversation. The ambulance noted that the mother was being extremely erratic and irrational, especially to police officers and that the mother “Had no issue with talking in front of her daughter in regards to the claims that she has been making and using explicit language.” The ambulance officers noted that the mother admitted having drunk alcohol that evening and also stated that she had not been taking her medication. In the ambulance on the way to the hospital, the ambulance officers noted that the mother said “I am proud of you the child, you said everything just right”. The ambulance officers noted that the mother was tearful and crying both in the home and in the ambulance.

30. DFCS received further information from police to the effect that the mother’s behaviour had observed to be erratic and that, in an intoxicated state, she had been coaching the child to tell police what happened to her. The report noted that the mother had expressed thoughts of drowning herself and the child. The mother’s blood alcohol level on arrival at hospital was 0.25 and the mother was assessed as suffering a depressive mood as a result of a situation or disturbance, which was exacerbated by alcohol consumption.

31. The clinical notes recorded significant concerns about the mother’s mental health and that the mother was subjecting the child to lots of unnecessary examination. The medical staff expressed the concern that the child had been coerced to make disclosures. The notes state “We are concerned with psychological harm caused to the child by the mother and do not feel that examination of the child’s genitals will lead to further assist the child but rather detrimental effect to the child’s psychological wellbeing.”

32. The child was placed in the care of the maternal grandparents and the mother told DFCS that she would leave the child with the grandparents from Saturday until the following Thursday.

33. The maternal grandmother swore an affidavit in the mother’s case on 20 September 2018. She deposed that around 2 June 2018, when the child was staying overnight at their home, the child told her that when she stays at her father’s house she sleeps with her father and her half-brother sleeps with them in the same bed.

34. Ms J Coley, the father’s former wife, swore an affidavit on 13 June 2018. She deposed to a telephone call from the mother on 9 June 2018 where the mother told her:

    I must tell you as a mother, [the child] tells me she is sick of seeing [the father’s adult daughter] and dad in sexual positions all the time because it upsets her.

35. Ms J Coley deposed that the mother continued:

    [The child] also said that the real reason [the father’s adult son] broke his leg wasn’t the horse, it was because dad kicked him in the shin and pushed him down the stairs and broke his leg.

36. Ms J Coley deposed that she told the mother that when her son broke his leg, the father was not present but that she had witnessed the accident when her son caught his foot in a stirrup. Ms J Coley deposed that she heard the mother say words to the effect of:

    “[X! the child!] What have we been practicing all week about lying? Stop telling lies”.

37. On 11 June 2018, DFCS received a report that police had again attended the mother’s home on 9 June 2018, based on information that the mother was irrational and delusional. The police reported that the mother presented as “completely irrational” and that they were concerned about her mental health. It was reported to DFCS that the police contacted the maternal grandmother to come and support the family.

1. On 12 June 2018, DFCS received a report that the videos viewed by the police on the mother’s phone revealed the mother berating the child when she said no to allegations and praising her when she provided the answers the mother wanted.

2. On 15 June 2018, the police reported to DFCS, that at times the mother seemed to conceal the camera on her phone when filming the child, and when the child denied abuse the mother was heard to ask overtly leading questions and challenge the child’s denials.

3. Ms B, the child’s therapist, noted that on 27 June 2018, the child attended at her therapy session with a letter which she handed over at the beginning of the session. The letter read:

   [Ms B]

   [The half-brother] has been doing bad things to my jinu.

   The child handed the letter over to Ms B in front of her mother. Ms B noted that the child very clearly wanted her to have the letter. Ms B asked the child “How did you know how to spell my name?” And the child replied “Mummy told me”. Ms B asked the child how she knew what to write and the child did not answer. Ms B asked if her mother had told her what to write and the child said “Yes”. The child said that it was her idea to write the letter saying “My idea cause it’s the truth. OK? [sic]”

4. Asked how she had written the letter the child said “I thought about it in the car. Mummy said it might get me medicine.” the child said she needed medicine because she was scared of the dark.

5. Ms B asked the child if she had written the letter all on her own and the child said “Mummy helped me”. When asked what mummy helped her with, the child said “Mummy helped with the words”.

6. The child told Ms B “mummy got out the pen and said ‘perhaps you should write to [Ms B]’”.

7. Ms B noted that later in the session, she again raised the question of the letter with the child, and asked the child whether or not the things that she was complaining about were still happening and the child replied “Yes”. Ms B said “Do you still see [the half-brother]? And the child said “No”. Ms B queried how the things could still be happening if the child was not seeing [the half-brother].

8. At the end of the session, Ms B thanked the child for the letter and the child said “I want medicine, can I have medicine now?” Ms B said “Remind me why you want medicine”. And the child said “Medicine takes away your fears.”

9. Ms B asked the child “Will mummy be happy or sad about this letter do you think?” And the child replied, ”Happy. Definitely happy.” Ms B noted that at the end of the session, the child said “Does that mean I can get my medicine now”?

10. On 27 July 2018, Ms B wrote a letter to the child’s general practitioner stating, inter alia,

    It became evident to me in the first session that mum’s own anxieties about the child’s disclosures have complicated things, and I encouraged her to be reassured by my role and the child’s need for time and space to process what has happened. I understand the child’s father’s… parenting orders have been suspended and I have therefore not contacted him to date.

11. The child’s therapist, Ms B, noted that on 30 July 2018, the child told her that she had been pushed by a boy at school one hundred times. Ms B said “Did you make that up?” and the child replied “Yes”. Ms B told the child “You shouldn’t make things up… because when you tell the truth people won’t know you’re being serious.” The child told Ms B “I’m scared my mum might get angry.” When asked whether her mother got angry a lot, the child said “Yes, alot [sic]. She sometimes forgets I’m a kid”. Ms B asked how the child knew that and the child said “Because she told me last night” ... she said “Sometimes I forget you’re a kid and think you are an adult’”.

12. On 7 August 2018, the child told the maternal grandmother that her half-brother had been mean to her and tied her up. The child said “He tied me up in a net you know and pushed me in the water.”

13. Also on 7 August 2018, DFCS received a progress report from Functional Family Therapy (“FFT”) advising that FFT could no longer work with the mother because the mother was not addressing her own mental health issues and alcohol addiction.

14. On 15 August 2018, Ms B advised DFCS that she had seen the child seven times in total but the child had not attended for the last two appointments. Ms B said that the child had not made any disclosures of abuse to her.

15. The maternal grandmother deposed that on 19 August 2018, she said to the child “Remember you were going to tell us what happened after [your half-brother] pushed you into the water” and the child responded “It was sticky”. The maternal grandmother said “I hope you told an adult” and the child responded “I told mum”. The maternal grandmother said “But your mum would have been at her house ...” the child said “Yes I told [the father]”. The maternal grandmother said to the child “And what did [the father] do?” the child responded “He hit [my half-brother] on the bum. Another time he did it he hit [my half-brother] on the face ...”

16. On 22 August 2018, the school noted concerns about the mother’s behaviour the previous day when the child was in afterschool care and the mother arrived and sat with the child watching her. The teacher expressed concern that:

    …on several occasions over the past week [the mother] has been hanging around the [junior school].

    This week, she came to the classroom door to tell me that [the child] had been pushed over by another child and that several older girls had been telling the child that her mum was stupid. (I have investigated this and the child can’t identify anyone who might be involved in this, or even give me a physical description). Anyhow, about 10 minutes into the day, she appears at the inside door of the classroom with the excuse of dropping off a permission note.

    When I spoke to [K] this afternoon, [K] has said [the mother] has been hanging around [the junior school] inside near the ... classroom lockers later on some afternoons, with the excuse of looking for some of [the child’s] things...

    I don’t want to make more of this than it is, but I am concerned that this is becoming a pattern.

    (As per the original)

17. On 23 August 2018, the child’s psychologist, Ms B advised DFCS that the mother had stopped the child’s sessions and was no longer bringing her for therapy. Also on 23 August 2018, the mother had a telephone conversation with DFCS. The mother said that she was unhappy with the child’s counselling with Ms B because she did not know what was going on in the sessions. The mother said that the child would now be having weekly counselling with the school counsellor.

18. On 29 August 2018, the mother advised DFCS that she and Mr C had separated and the mother had moved out with the child. The mother told DFCS that she was not taking the child to therapy because she herself was not permitted to be part of the sessions. The mother disclosed that she would listen to the child’s sessions from the room next door so that she could hear what was being said through the wall.

19. Also on 29 August 2018, Ms B wrote to DFCS in relation to the child’s counselling and expressed the concern that the mother was coaching the child to disclose and / or to obtain medication.

20. The Head of the Junior School noted that on 30 August 2018, the mother arrived at his office unannounced at about 2 pm visibly upset and confused, demanding to see him. The mother yelled that she was angry and wanted to speak outside because she needed fresh air. She was asked to return inside as there were children present and the teacher was not willing to speak to her in front of the children. The mother entered the interview room but refused to allow the door to be closed and it was observed that she was wearing brand new clothes with the price tags and labels still connected and visible from the outside. The mother told the teacher that she was very angry because he had called DFCS and was “going behind her back”. After a conversation, the Head of Junior School left the room to attend the child’s classroom, to be there when the mother collected the child. He stated:

    Upon arriving at the room, [the mother] entered unannounced through another door. When she saw [me], she stated, “I hate you, you are going behind my back and trying to spy on me, the word conniving was mentioned. [The teacher] asked [the mother] to collect the child, and leave as she was agitated. [The mother] refused saying she would not leave and she sat at a student’s desk with the student.

    (As per the original)

21. On 31 August 2018, DFCS again spoke with the mother who advised that she and Mr C had reconciled and she had returned home. The mother told DFCS that Mr C “keeps telling her that he wants her to leave” and that they were having trouble with their relationship.

22. Mr L, a family therapist, who had been conducting therapy for the mother, Mr C and the child, in a report dated 31 August 2018, noted:

    An area to work upon was that was [sic] seen throughout these sessions, was that [the mother] would initially allow the child the space to engage in the conversation, but as it progressed, would frequently begin to interpret on the child’s behalf or steer the conversation towards the child’s alleged sexual abuse.

23. Mr L stated:

    Areas of concern that are still being worked upon are primarily around the family’s ongoing struggle with the idea of the child’s alleged sexual abuse and the impact this belief has had on the family; primarily the impact this has had on [the mother’s] perceptions around keeping the child safe and an all-consuming desire to have the child’s experiences known. This particular behaviour by [the mother] has been raised as being potentially harmful to the child, forcing a narrative that may confuse her by believing particular events did actually occur, when they may not have, or may have occurred in a different manner; as well as potentially keeping the child in a perpetual state of living in a traumatic moment, whether real or imagined.

24. The maternal grandmother deposed that on 8 September 2018, when the child was staying overnight she was playing in the bath and pushed one of the dolls under the bath water the child said “Quick, Quick [sic]. She’s caught in the net. We have to rescue her”.

25. The maternal grandmother deposed that she has made six reports to DFCS and three reports to police in relation to the child.

26. DFCS arranged for the father to have supervised time with the child. Between 13 September 2018 and 15 November 2018, the father had weekly contact with the child for a period of one and a half hours supervised by a case worker from DFCS. Copies of the reports of the contact visits were tendered in the proceedings. All of the reports indicate that the relationship between the child and her father is loving and the father’s behaviour with the child was entirely appropriate.

27. In conversation with DFCS on 18 September 2018, the child’s teacher told DFCS that the school was genuinely concerned for the child both academically as well as emotionally and socially.

28. On 1 October 2018, the mother was admitted to M Hospital for a three week inpatient program treating alcohol addiction. The child lived with the maternal grandparents. The mother was discharged on 22 October 2018.

29. DFCS met with Mr C on 2 October 2018. He told DFCS that he wanted to separate from the mother but that she would not leave the house. Mr C said that he had put a lock on his door two months ago due to verbal abuse by the mother.

30. In late October 2018, DFCS discussed with the mother re-engaging Ms B to counsel the child. Although the mother agreed to this, by 7 November 2018, Ms B informed DFCS that the mother had not been in touch with her.

31. The mother did not present for a scheduled drug and alcohol test on 31 October 2018.

32. There was an incident at the home of the maternal grandparents on 27 October 2018. There is no mention of this incident in the affidavit of the maternal grandmother sworn on 23 November 2018. The police were called to the house because the mother was reportedly screaming to get into the house to get the child and screaming about rape. The maternal grandfather told the police that he did not want to take any further action against the mother and stated that the mother may have been intoxicated by an unknown substance.

33. The maternal grandmother deposed that on 31 October 2018, she and the maternal grandfather took the child to spend time with her father under DFCS supervision. After the supervised time, the maternal grandmother asked the child whether she had had a nice time and the child told her that her paternal grandfather had been at the visit and that he was “Scary. He said I wasn’t to tell you and did this”. The child moved the first finger of her right hand across her throat in a “cut throat” motion.

34. The maternal grandmother deposed that on 2 November 2018, when she and her husband collected the child from school, the child pointed at one of the seating booths near McDonalds in Suburb N and said

    “That’s where I sat with [the father] and [the paternal grandfather] did ...” and the child again made a gesture of drawing her first finger across her throat in a “cut-throat” motion. The child said: “I think it must be Scottish language for quiet. After that me and [the father] sat in a booth and [the paternal grandfather] sat somewhere else”.

    (As per the original)

35. The visits between the child and her father on 31 October 2018 were professionally supervised and the supervision report is in evidence. The supervisor does not mention any threatening gesture from the paternal grandfather towards the child.

36. In an affidavit sworn by the maternal grandmother, in support of the maternal grandparents Application in a Case, on 23 November 2018, the maternal grandmother deposed that the mother “has significant issues with depression anxiety and alcohol addiction and does not presently have the capacity to care for the child.”

37. The maternal grandmother also deposed “I am concerned that the child may not be safe in the care of [the father]”.

38. The mother did not present for a scheduled drug and alcohol test on 7 November 2018.

39. There was an incident on 9 November 2018 at the home of the maternal grandparents. Police records state that the mother arrived at the home of the maternal grandparents at approximately 4.20 pm that afternoon.

    On arriving home, [the mother] has started verbally abusing her father. [The maternal grandmother] was of the belief [the mother] had possibly abused her medication throughout the day leading to her arriving home and abusing her father. [The mother] has yelled “I’m not staying in this house a moment longer, I’m not staying with that paedophile who caused me anorexia.” As [the mother] yelled this over and over again, she yelled “I’m getting my daughter and we’re going”. [The maternal grandmother], fearing for her grand daughter… intervened and said “You can leave now, but you’re not taking that little girl; she can stay here where she’s safe”. The verbal argument continued with [the mother’s] behaviour becoming erratic. [The mother] got up off the couch and walked towards the door, where [the maternal grandmother] was standing ... [the mother] screamed at her mother ... before falling to the ground in an emotional wreck, bumping her right eye on the door as she fell. At this time [the paternal grandfather] has rang police fearing his daughter ... was becoming mentally unstable.

    (As per the original)

40. The police noted that when they arrived at the scene the mother appeared to be affected by drugs or alcohol although they accepted that this might have been attributed to her being emotional and that after a short period of time she calmed down and appeared to function at an acceptable level.

41. The police stayed but the child did not appear to be scared or upset and had not witnessed any part of the incident.

42. The mother did not present for a scheduled drug and alcohol test on 10 November 2018.

43. Ms D, a DFCS employee, made a note of a telephone conversation on 13 November 2018, between herself and the maternal grandparents. Ms D asked the maternal grandparents what had happened. The maternal grandfather said that the child was with them on Friday at 3.30pm when the mother arrived. Ms D was told that the child was with her maternal grandfather in the family room, when an argument occurred between the maternal grandmother and the mother. The maternal grandfather said that there was physical contact which he firmly believes was initiated by the mother. The maternal grandfather told Ms D that the mother called him names and he told the mother that she needed to leave the home. The mother wanted to take the child but the maternal grandparents were adamant that they were responsible for the child.

44. Ms D noted “States that things got ‘completely out of hand’ ... states profanities were getting thrown around in front of the child ... states he didn’t like this happening in front of the child ... states he contacted police”.

45. The maternal grandfather told Ms D that the mother had been living at their home for 15 or 16 days, although the first weekend she and the child had stayed overnight in a hotel in Suburb O and come back the next day. Ms D asked the maternal grandparents why they had not contacted DFCS about these incidents and she noted that the maternal grandfather stated that they needed to be careful, had sought their own legal advice and that they are “battling their own demons”.

46. Ms D informed the maternal grandparents that they were concerned that the incidents had not been reported and would appreciate communication in future. The maternal grandparents told Ms D that they believed the child was safe with the mother and that they would have let her go with the child and avoided the argument.

47. On 14 November 2018, the maternal grandparents sent an email to Ms D which stated, inter alia,

    Both incidents on 27/10 and Friday 9th November could have been avoided had we known that in reality we had no right to demand that the child remain with us, as we believed was the case. The police officer on 9th November unlike the officer on 27th October decided that [the mother] was entitled to have the child to go elsewhere – we are still not clear on everyone’s rights and responsibilities. Can you let us have something in writing or a copy of the safety plan you refer to.

    (As per the original)

48. The email concluded:

    Let us be crystal clear, there is no way whatsoever the child would be better off with [the father] and the incidents which, in the child’s words, have occurred in his household. You have copies of our Police Reports. Such a decision would be wrong and catastrophic to the child. No doubt in years to come she may be able to articulate this even more clearly – as other mature people are now doing in respect of their abuse.

    (As per the original)

49. On 14 November 2018, the mother tested positive for benzodiazepine.

50. As a result of the incidents reported by the police on 27 October 2018, and 13 November 2018, a decision was made by DFCS to assume care of the child. The father was asked to care for the child. On 15 November 2018, DFCS had a telephone conversation with the child’s school and spoke with the head of the junior school and the assistant principle. DFCS informed the school that the child was being assumed into care. The assistant principle informed DFCS that the mother took the child to school with one of her friends from church that day and that he had been advised that the mother was intoxicated.

51. On 15 November 2018, DFCS arranged for the father to collect the child from school and take her to his home. Also on that day DFCS attended the home where the mother was living with a friend for the purpose of discussing the assumption of the child’s care and to serve the documents upon her. During the meeting the mother told DFCS that she was recording the conversation and said “The FBI are investigating this, they told me to record this”. When DFCS informed the mother that the child was with the father, the mother said “Your [sic] sick, the child’s going to be raped”. DFCS observed that they could smell alcohol on the mother.

1. On 21 November 2018, DFCS collected the child from school, took her to the DFCS office in Parramatta where she was collected by her father.

2. The child has lived with the father since 21 November 2018. She continues to attend her school.

3. Records produced by the child’s current school suggest that, in the care of the mother, her attendance has been problematic for a long period of time. Between 31 May 2018 and 16 November 2018, the child had 25 days being late or absent from school. The child’s teachers have noted concerns about her attendance, noting that, for some time, she has missed approximately one day of school each week.

DISCUSSION

1. As can be seen from the narrative of the allegations, the risks for the child can broadly be categorised as:

   ·    The mother’s allegation that the child has been sexually abused by her half-brother/s.

   ·    The risks to the child posed by the mother’s abuse of alcohol.

   ·    The risks to the child posed by the mother’s encouragement of the child to disclose abuse, and her continued presentation of the child to authorities with allegations of abuse.

   ·    The risk to the child of the mother’s persistence in gathering evidence to prove that the child has been abused.

   ·    The risk that the mother’s behaviour will cause psychological harm to the child.

   ·    General neglect including, but not limited to, poor school attendance.

2. Of the three contenders for the child’s care, only the father is not the subject of an allegation that he has abused or caused harm to the child or the mother.

3. The mother conceded that she is not able, at this time, to care for the child. However, it was her position that, if the child were not to live with the maternal grandparents, then she should live in foster care.

4. Although the maternal grandparents initially sought an order that the child live with them, they resiled from that position after hearing some of the allegations about events involving the child and the mother.

5. In any event, on an interim basis, the maternal grandparents are not an appropriate placement for the child.

6. Although the mother denied the accuracy of the police records, she is recorded as accusing the maternal grandfather of abusing her since she was three years old. The mother denied that she had made that allegation, or that she was referring to abuse of a sexual nature. I note that either the maternal grandfather or the maternal grandmother told the police that the mother had called the maternal grandfather a paedophile.

7. The mother also told her treating psychiatrist that she had been abused by her father.

8. The mother has also alleged both to the police and to her treating psychiatrist that the maternal grandmother is a victim of family violence at the hands of the maternal grandfather. She alleged that she has asked to speak to her mother and her father won’t let her and she spoke about her mother needing rescuing from her father.

9. Until such time as those allegations have been tested, the child could not be placed in the household of the maternal grandparents.

10. The father will consent to an order that the child is not brought into contact with her half-brother. He will ensure that the child continues in her present school until the end of the current term when he will look for a school close to his home.

11. The father, DFCS, the maternal grandparents and the ICL all agree that the child should live with her father until the final hearing.

12. There is no evidence on which a proper consideration could be given to the mother’s submission that the child should live in foster care. That submission was made at the end of the proceedings without notice to the other parties. No suitable carers were proposed.

13. The mother did not oppose the order sought to the effect that she have supervised contact with the child once each week. DFCS will arrange that contact and provide for supervision. Although it was not specifically proposed by DFCS, I have assumed that the contact will be reportable.

14. The issue which remains to be determined is the contact the child should have with her maternal grandparents. DFCS, the father and the ICL propose fortnightly supervised contact. The maternal grandparents ask for alternate weekend time and an overnight in the off week. On their behalf it is submitted that they could collect the child from school and return her to school and so save the father and the child considerable travelling time.

15. However, the same considerations apply to the child’s contact with her grandparents as to her living with them. Unsupervised contact is not appropriate until such time as the serious allegations that the mother makes against the maternal grandfather can be tested.

16. The father lives in the S Region and will start a new job in R Town shortly. Presently, he drives the child to school in Suburb N and drops her in before school care each morning at about 8.30 am, collecting her from after school care in the afternoon about 6.00 pm.

17. The maternal grandparents live in Suburb P. The mother told the Court that she is living with Mr C in the Suburb Q area. The permanence of that accommodation must be in doubt having regard to Mr C’s statements to the police and to DFCS and the mother’s conviction for assaulting Mr C and subsequent ADVO for his protection.

18. The supervised time, during school terms, will need to occur on weekends. It would be unreasonable to expect the father to wait after school to collect the child after a supervised visit and then drive back to S Region.

19. Counsel for DFCS assured the Court that arrangements would be made which met the convenience of the father.

20. The mother sought an order that she have daily telephone contact with the child. Having regard to the evidence about the mother’s unrestrained and dysregulated behaviour with the child when she has been drinking, I am not prepared to make that order. The risk of the child’s being exposed to the mother’s emotionally abusive behaviour is too great.

21. The only place where the child can safely live until this matter has been finally determined is with her father.

22. Arrangements will be made for the appointment of a Single Expert and the preparation of the matter for final hearing as soon as dates are available.

NOTE

1. In drafting the orders in this matter, I have not named the persons against whom allegations of abusing the child have been made. I am conscious that it may be necessary for a copy of the orders to be provided to public officials such as school principals or to medical professionals. The allegations are made against a child and publication of those allegations, even inadvertently, has the potential to cause harm to that child. It is clear from these reasons that the restraints in Order 4 are directed to the child’s two half-brothers.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 4 December 2018.

Associate: 

Date:  4 December 2018