Daldron and Daldron

[2012] FamCA 846

FAMILY COURT OF AUSTRALIA

DALDRON & DALDRON [2012] FamCA 846

FAMILY LAW - CHILDREN – Best interests of child – Whether children live with mother and spend day periods only with the father – interim arrangements – Where there is a risk of abuse – Where the abuse is unsubstantiated – Whether interim parenting orders be discharged and previous final orders reinstated.

Family Law Act 1975 (Cth)

APPLICANT: Ms Daldron

RESPONDENT: Mr Daldron

FILE NUMBER: PAC 2876 of 2011

DATE DELIVERED: 8 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 23 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Livingstone

SOLICITOR FOR THE APPLICANT: Greater West Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Thomas

SOLICITOR FOR THE RESPONDENT: Caldwell Martin Cox

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Curren

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

Orders

1. That I discharge all interim parenting orders made since the final orders of 30 June 2011.

2. I direct that the proceedings be listed before me for determination on a Rice & Asplund issue at 9.30am on 13 November 2012.

3. Leave is granted to all parties to inspect documents produced on subpoena by NSW Police and W Public School.

4. The Magellan report be released to the parties.

NOTATION

1. It is noted that I have made today’s orders on the application of the Independent Children’s Lawyer with the consent of the father and on the objection of the mother.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2876 of 2011

Ms Daldron

Applicant

And

Mr Daldron

Respondent

REASONS FOR JUDGMENT

Proceedings

1. Ms Daldron (“the mother”) and Mr Daldron (“the father”) are the parents of three children:

   ·     E born on … June 2000 (12);

   ·     B born on … January 2003 (9);

   ·     T born on … March 2006 (6).

   Pursuant to final orders made by consent on 30 June 2011 the children live with each parent in a week about arrangement.

2. On 12 June 2012 the mother filed an Application by which she sought to discharge these orders. On an interim basis the mother sought that “the orders of 30 June 2011 are suspended” and that the children live with her. During submissions on 23 July 2012 counsel for the mother indicated that she sought orders that the children spend day periods only with the father, pending a final hearing.

3. By his Response filed on 28 June 2012 the father sought that the mother’s application be dismissed. The effect of such an order would be to reinstate the week about regime put in place by the orders of 30 June 2011.

4. On 12 June 2012 the mother filed a Notice of Child Abuse or Family Violence which was said to relate to all three children. Part E of the Notice invited the mother to “describe any acts or omissions which you allege constitute abuse”. This section of the Notice was left blank.

5. In Part F of the Notice the mother was invited to “describe the facts alleged to constitute any risk of abuse”. This section of the Notice read: “child showing sexualised behaviour by gyrating against other students, when asked what she was doing she replied ‘I was thinking of daddy’.” It was apparent from the mother’s affidavit sworn on 5 June 2012 that this allegation referred to the child T.

6. The proceedings are listed for hearing on a Rice & Asplund issue on 13 November 2012. On 23 July 2012 the Independent Children’s Lawyer and the father submitted that the orders of 30 June 2011 should continue until that issue is determined and the future of the proceedings is known to the parties. Following submissions on 23 July 2012, I discharged all existing interim parenting orders made since 30 June 2011 and indicated that I would publish my reasons at a later time.

Background

1. The mother and father, who are aged 40 and 42 years respectively, commenced a relationship in 1992 and married in 1998. They separated on 17 December 2010, when the mother left the former matrimonial home. The children remained in those premises with the father.

2. According to the father’s affidavit filed 28 June 2012, the children spent overnight time with the mother each Tuesday and Friday and on alternate weekends until April 2011. The parties then reached an agreement for shared care of the children.

3. On 5 July 2012 the parties and the Independent Children’s Lawyer consented to orders that the children’s time with the father be supervised pending an interim hearing. As noted, I determined the competing interim application on 23 July 2012.

Consideration

1. In support of her application, the mother relied on affidavits sworn on 5 June 2012 and 28 June 2012. In the first affidavit the mother gave this account of the alleged incident involving the child, T, at her school:

   8.I received a phone call at approximately 2.00pm from the primary school in which my two youngest girls attend, [W] Public School on 1 June 2012.

   9.Whilst I was on the phone I was advised that [T] had shown some unusual sexual behaviour towards other children in the play ground.

   10.I was advised that a teacher saw her rubbing against some other students in a sexual manner. She was making gyrating motions.

   11.The Teacher intervened and the girls went back to class at the end of play time. The teacher then called my daughter [T] and the other students into a room to talk about the incident.

   12.Although I was not there I understand that the girls stated that she had done some sexual things towards them. My daughter [T] originally did not admit to the behaviour but after hearing what the other girls said, she apparently admitted to the sexual behaviour.

   13.I do not know the extent of the behaviour, except for that she was gyrating in a sexual manner against other students. I do not know the extent as the school would not advise me.

   14.I was advised by the school that when asked by the teacher why she had done this behaviour (rubbing herself against other students) she replied “I was thinking of Daddy”.

   15.I understand that the teacher continued to talk to [T] and she broke down and disclosed other issues to the teacher including being struck by her Father and that he was always mean her and her sisters. I am aware that she disclosed further issues but I do not know what they are.

   16.I then understand that DOCs were called, a mandatory report was made by the school and the Police were also called.

   17.The school advised me that [T] made a statement to Police.

   18.I am extremely concerned that [T] may have been sexually assaulted by her father – due to the above disclosure, I am fearful of returning her to her Fathers care.

   19.She has never previously shown sexualised behaviour before.

   20.She has not seen this kind of behaviour in my household.

   21.The Respondent Father in these proceedings was sexually assaulted as a child when he was the same age as [T], and I am concerned he may be replicating this behaviour.

   22.As I do not know the extent of what occurred at the school, I do not know the level of disclosures made by my daughter and I am extremely concerned for her safety.

2. In this affidavit the mother also alleged that [T]’s behaviour has recently changed in a way which she described as follows:

   24.Recently [T]’s behaviour has changed. She has gone from being a well settled child to losing her temper at the smallest things. She is being very argumentative at home and has started hitting her sisters.

   25.She also has started throwing things around the house and screaming.

   26.[T] has also displayed disruptive behaviour in the classroom as expressed by her teacher.

   27.I am very concerned that she is being affected emotionally by what has occurred to her and I believe that she may need some counselling/assistance to help her through these issues.

3. There was no evidence that T has complained to any person that she was sexually abused by the father. There was no evidence that she has complained to any person of sexually inappropriate behaviour on the part of the father. It appears that the mother raised this possibility with T on 7 June 2012. In her affidavit sworn on 28 June 2012 the mother deposed:

   On 7 June 2012 upon putting [T] to bed we had a conversation with words to the following effect:

   “Mummy, there’s one thing only that I like about Daddy’s place”.

   When I asked what, she said “I get to sleep in Daddy’s bed”.

   I said “When?” She said “Every night”.

   I said “Why don’t you sleep in your own bed?”

   She said “I sleep in Daddy’s bed and he cuddles me.”

   I asked her if I could ask a different question and she said “yes”.

   I said “Remember when we talked about your private parts?” She said “yes”.
   I said “Has a grown-up person touched any of your private parts?”

   She said “No, why did you ask me that?”

   I said “Because it is wrong if anyone touches your private parts because they are yours and no one else should see or touch them.”
   She said “What about your mouth or your boobies Mum?” I said “yes, they are your private parts too.” She said “Some people don’t think they are, but I know they are private.”

   I then said goodnight and tucked her in.

4. A Magellan report dated 13 July 2012 stated inter alia:

   On 31 May 2012 a report was received which raised concerns about the use of excessive discipline on the children.  The report alleged that [T] was in trouble at school for throwing things and that she pushed herself into another student, with her chest touching the other student and was gyrating and saying to the student I want to hump you.  The report further stated that [T] said [the father] hits and kicks her and is always angry with her and her sisters.  The report indicated that [T] did not want to go home with [the father] and lay on the floor refusing to leave until her older sister dragged her out.  This report was not investigated and closed without assessment due to competing priorities.

5. Records of W Public School in respect of the child, T, were tendered in evidence (Exhibit “1”). A “Primary School Record of Performance and Application” noted:

   Kindergarten
   [T] began kinder confidently and happily. She does become upset easily and has occassional separation anxiety in the mornings. [T] is a perfectionist with her written work and works to a high standard independently.
   Sightwords = excellent, Burt = 24, Reading Level = 18.
   Not as confident with maths.

   Year One
   [T] is a delightful, hardworking student. She continues to make pleasing progress in all subject areas. [T] responds extremely well to praise and encouragement and she is always eager to please. 6/12

6. T’s school reports for semester 1, 2011 praised her conduct in kindergarten and described her as “a pleasure to teach”. Her report for semester 2, 2011 referred to her as “a very restless member of the class” and a child who “at times … has difficulty with social skills and … can become upset if she does not get her own way”. Nonetheless, this report described T as “a delight to teach”.

7. T’s report for semester 1, 2012 described her as a “delightful, enthusiastic class member”. The reporter opined that she displayed “pleasing academic progress” and “positive social growth”.

8. As noted, T made no complaint of sexual abuse or sexually inappropriate behaviour on the part of the father to any person. She failed to make such a statement even when asked directly about inappropriate touching by the mother, immediately after a conversation about sleeping in the father’s bed. The allegation of sexualised behaviour by T at school was brought to the attention of the Department of Human Services, Community Services and no action was considered necessary. Records of W Public School were produced on subpoena but no document which referred to this this alleged incident was tendered. None of the evidence offered by the mother persuaded me that there is any unacceptable risk of sexual harm to one or all of the children at the hands of the father.

9. The mother also sought to discharge the existing final orders on the basis of numerous allegations to the effect that the father suffers from “mental illness and alcoholism”, engages in violence, that there is conflict between the parents and that he physically mistreats the children. In her affidavit of 28 June 2012 the mother sought to raise matters including allegations as described above, which pre-dated the consent orders of 30 June 2011. In two instances the mother’s complaints in relation to the father’s alleged behaviour related to incidents which supposedly occurred in the early 1990’s.

10. The father placed these matters in issue and raised a number of allegations about the conduct of the mother. The father alleged that the mother and her partner hit the children; that the mother pinched E’s arm and caused bruising as chastisement and that she involved the children in a discussion about where they want to live in a manner which must have upset them.  He responded to the mother’s historical allegations and, in turn, made a number of complaints which might suggest unstable behaviour on her part.

11. It was impossible in the context of an interim hearing to make any findings of fact in relation to these mutual allegations.  It seemed to be that there was no reason to consider one party’s allegations as inherently more credible than those of the other, in circumstances where they agreed to final orders for a week-about arrangement on 30 June 2011.

12. For these reasons I concluded that the parenting arrangements to which the parties consented on 30 June 2011 should be reinstated pending a final hearing. On 30 November 2012 I will determine whether the mother has demonstrated a change in circumstances sufficient to warrant a reconsideration of those arrangements.

I certify that the preceding twenty-one paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 October 2012.

Associate:

Date: 8 October 2012