D and M - [2003] FMCAfam 209

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & M

[2003] FMCAfam 209

FAMILY LAW – Children – contact – interim orders – suspension of contact – allegations of sexual abuse – best interest of child.

CHILDREN – Separate representation – abuse allegation – child aged 3 years and 8 months.

Applicant:

M L D

Respondent:

G W M

File No:

PAM 1614 of 2003

Delivered on:

27 May 2003

Delivered at:

Parramatta

Hearing date:

26 May 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Grew

Solicitors for the Applicant:

Harmon & Co

Counsel for the Respondent:

Ms Spooner

Solicitors for the Respondent:

M. Lorraine Spooner & Associates

ORDERS

The child C D-M born 11 October 1999 is to be separately represented in these proceedings and I request the Legal Aid Commission of New South Wales to arrange such representation
Orders 3, 4, 5, 6, 7 and 8 made by the Family Court of Australia at Parramatta on 12 March 2002 are suspended until further order;
The respondent is to file and serve a response within seven days.
The Application is adjourned to Friday 16 June 2003 for further mention at 10.00am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1614 of 2003

M L D

Applicant

And

G W M

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an application by the mother of a little girl called C D-M who was born on 11 October 1999. C is 3 years of age. She resides with the mother.
There were final orders made by consent in the Family Court at Parramatta on 12 March 2002. Those orders provided that the child should reside with the mother and that the father should have contact with the child. Initially that contact was to be supervised by the Central West Contact Service and then from 1 June there was to be a graduated contact which would increase from 11 October.
Contact proceeded according to those orders but towards the end of 2002 the applicant became concerned about behaviour exhibited by the child prior to her going on contact with the father. The child began to show symptoms of extreme anxiety and extreme reluctance when contact with the father was about to proceed.
On 28 December the mother reports the child was crying very loudly and saying:
No mummy, I go you, I go you.
She described the child's body was stiff and she could not bend her into the child's car seat. She said the child would not look at the father but buried her head in her mother's chest.
The mother became concerned. She said she was not overly anxious, tried to settle the child. The child however was inconsolable and the father said:
Why don't you take her home, I don't want to take her when she's like this and so upset.
There was a further contact arranged for Sunday 12 January. Again, the child was reported by the mother to have exhibited extreme symptoms of antipathy towards the father. The mother described the child as going very stiff and hanging onto her, trying to twist out of the father's arms. She said the child screamed and cried and said words to the effect of:
I stay you mummy, I stay you.
Eventually the father is reported to have told the mother to leave. The mother walked towards the car and said she saw the child repeatedly kick and hit the respondent and scream at him, shouting out words:
No, no, no.
The child was described by the mother as appearing to be very frightened and her eyes were wide open and was crying and tears were streaming down her face. Her arms were stretched out towards her.
The child went on contact. The mother returned to collect the child that afternoon and she reported the child as being still and quiet and subdued. Later the mother described the child as saying that she was scared, she was scared of daddy and she kicked him and she hit him.
The mother said she was concerned and reported the matter to the Department of Community Services to seek advice. The mother was advised to take the child to see a counsellor at R C C. The mother did that and from the evidence that is now available the child made certain disclosures to a counsellor to the R C C to the effect that the father had been touching her in inappropriate places.
Needless to say that matter was notified to the Department of Community Services and the file which contains the notification has been admitted into evidence before me.
I have had the opportunity of reading the file. I note that the departmental officer whose name is G reported that the child did not make any disclosures of abuse to her. Nevertheless the Department has formed a view based on the descriptions of the child's behaviour and the notification from the counsellor that there is a serious risk of harm by way of sexual abuse and the probability has been described as likely. The future risk level has been assessed as high and the Department has given advice to the mother to commence proceedings through what they described as the Family Law Court, presumably meaning a Court exercising jurisdiction under the Family Law Act.
Such application has been brought and the application has been opposed by the father. There has been no contact since 12 January.
The father has put on an affidavit by himself and there is also an affidavit by his sister. The sister's affidavit indicates that she the sister has a daughter aged four months and the sister would have no hesitation in allowing her brother to supervise the child. The sister also refers to conversations with the applicant in which the applicant allegedly disclosed to her that she herself had been sexually abused when younger.
The father's affidavit contains denials of any impropriety, expresses suspicion as to the mother's motives, takes the view that the mother attending contact changeover contributes to the child's distress, expresses a belief that the mother was manipulating the child's behaviour and makes the statement that if the child has been sexually abused then it is an unacceptable risk for her to remain with the mother.
The allegations are matters of serious concern and indeed when the matter was before me yesterday I took the step of closing the Court to all but the legal advisors and the people directly concerned with the matter pursuant to section 97(2)(c).
I have been referred to two authorities, both decisions of the High Court of Australia dating from 1988. Those decisions are B v B (1988) FLC 91-978 and M v M (1988) FLC 91-979. Those decisions were handed down by the High Court of Australia on the same day,

8 December 1998.
In B v B the High Court held that:
The ultimate and paramount issue to be decided in custody or access proceedings is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the ultimate and paramount issue which the Court has to determine.
Their Honours went on to say that:
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. The existence and magnitude of the risk of sexual abuse is a fundamental matter to be taken into account in deciding issues of custody and access.
Their Honours went onto say that:
A Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the decision of M v M handed down on that same day, Their Honours affirmed what they had said shortly beforehand in B v B.
These proceedings before me are of an interim nature, indeed the application was returnable at the Court yesterday. I have made the decision that because there are allegations of sexual abuse it is appropriate for the child to be separately represented and I indicated yesterday I would make such an order.
It will take approximately three to four weeks for the Legal Aid Commission of New South Wales to arrange for a child representative and I would look forward to the submissions which a child representative would make once he or she has been appraised of the matter and commenced his or her enquiries.
What I must do today is consider whether contact should continue between now and when the matter next comes back before the Court, and if it does continue whether it should continue in its present form. There are in effect three options:
i)To make no alteration of contact arrangements on an interim basis.
ii)To act as the father's legal representative submitted to me would be appropriate which is to make an order that contact should continue but that the contact should be supervised and the suggestion is that there are members of the father's family who would be adequate supervisors, not least of which I understand would be the father's sister, M, who is already on affidavit before the Court.
iii)The other option which is urged on me by the attorney for the applicant is that contact should be suspended and the reason for that is the evidence of unacceptable risk.
This is not a matter where I would make no decision about contact.

I am concerned at the seriousness of the allegations. Notwithstanding the fact that there has been no disclosure to a district officer at the Department of Community Services and consequently I understand there are no proceedings being contemplated by the police, the evidence of the disclosures to the counsellor at R are matters of serious concern and they are reinforced by the mother's descriptions of the child's behaviour on the two contact occasions.
The child's behaviour, and I accept the fact that this is untested evidence, but the child's behaviour as described by the mother in her affidavit is to my mind consistent with a child expressing considerable fear and antipathy towards the father. That is evidence which to my mind would appear to corroborate the disclosures of abuse said to have been made to the counsellor. I stress that this is all untested, that I am taking the evidence at fact value.
At this stage until the matter can come back before the Court when I have assistance from a child representative I am of a view that the Court should err on the side of caution. I am concerned that the assessment of risk made by the Department of Community Services is a high one and at this stage I am of the view that the appropriate course for the child's best interest is to take the serious step of suspending contact. It may well be that after further investigations have taken place, after evidence has been presented and tested by cross-examination or further evidence has been brought to the Court that a different order may appear to be appropriate but at this stage until further order I am of the belief that contact should be suspended.
I note that the father's solicitor was going to file a response, that may well have been filed and not reached the Court file by now.
I will adjourn this matter for further mention for approximately three to four weeks to allow the appointment of a child representative. I would appreciate it if both solicitors would write to the appropriate officer of the Legal Aid Commission and make copies of their material available so that the solicitor who is appointed can commence investigations at an early stage.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: C. Soliman

Date: 13 June 2003