DALEY & SAWYER
[2018] FamCA 108
•25 January 2018
FAMILY COURT OF AUSTRALIA
| DALEY & SAWYER | [2018] FamCA 108 |
| FAMILY LAW – CHILDREN – Whether mother presents unacceptable risk of sexual harm to child – Whether father presents unacceptable risk of psychological harm to child – Whether any assessed harm can be ameliorated by supervision – Where allegations of mother sexually abusing child were not supported by evidence – Where father presents unacceptable risk of psychological harm to child – Where father to spend no time with child FAMILY LAW – CHILDREN – Whether child’s surname should be changed for second time in life – Where child’s surname to remain unchanged |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 61C, 61DA, 65DAA, 65DAC Baghti & Baghti [2015] FamCAFC 71 |
| APPLICANT: | Mr Daley |
| RESPONDENT: | Ms Sawyer |
| INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
| FILE NUMBER: | BRC | 11648 | of | 2009 |
| DATE DELIVERED: | 25 January 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 1 December 2017 |
REPRESENTATION
| THE APPLICANT: | Self-Represented |
| COUNSEL FOR THE RESPONDENT: | Mr C F O'Meara (direct brief) |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr J Ashcroft |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dooley Solicitors |
Orders
All previous parenting orders be discharged save for the order dated 28 October 2011 granting the mother sole parental responsibility for the child L born … 2009 (“the child”) and the order dated 24 July 2012 changing the child’s surname.
The father spend no time with the child unless prior written agreement is first obtained from the mother.
The father not communicate with the child save for sending one card and/or gift at Easter, Christmas and the child’s birthday unless prior written agreement is first obtained from the mother.
The mother’s application to change the child’s surname be dismissed.
Any outstanding applications be dismissed.
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 Daley & Sawyer 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 BRISBANE |
FILE NUMBER: BRC 11648 of 2009
| Mr Daley |
Applicant
And
| Ms Sawyer |
Respondent
REASONS FOR JUDGMENT
The parties to this application for a parenting order are the parents of L born in 2009.
The child L lives with the mother and has not spent any time with the father since in or about July 2015.
conduct of the hearing
On 29 September 2017 this matter was set down for trial on 1 December 2017.
The father did not appear at the 29 September 2017 case management hearing. Nevertheless, an order was made requiring each party to file affidavits setting out the evidence they each wished to rely upon at the trial on 1 December and notice of that order was provided to the father.
A compliance check on 21 November 2017 was attended by all parties and it was noted that the father had failed to file any material.
By the time of the trial, the father had still not filed any material setting out his evidence. He was nevertheless given the opportunity to identify any earlier affidavit material which may support his case. The father was granted leave to rely upon an affidavit by a Mr C filed 5 May 2015. By the end of the trial, the father had failed to produce any evidence to support any of the allegations he made in his case.
Unfortunately, the father represented himself in the proceedings. I make that observation because not only did the father fail to rely upon any relevant evidence (despite repeatedly being given the opportunity to do so), but he presented his case in such a way that did little, if anything, to advance his case. The father was more intent on bemoaning the deficiencies in the ‘system’ and advocating on behalf of other fathers.
proposals of each party
The father did not rely on any application or affidavits other than the affidavit referred to above. However, the father was permitted to tender a handwritten document of the order sought by him in the following terms: [as per original]
·Orders I seek is to resume my relationship with my son.
·I would like 50 per cent access and time with my son. Same with holidays and public holidays.
·Would like for us to be a family again for him to be able to grow relationships bonds with his cousins grandfather aunties and uncles.
During his submissions, the father proposed that his relationship be recommenced with the assistance of a psychologist by the name of Ms P. There was no evidence from Ms P. The father informed the Court that he had met with Ms P on several occasions to talk about his case.
The mother applies for the following order:
a)That the mother have sole parental responsibility for the child (although the mother already has sole parental responsibility pursuant to the order dated 28 October 2011);
b)That the child live with the mother (although the child already lives with the mother pursuant to the order dated 28 October 2011);
c)That the child spend no time with the father; and
d)That the child’s surname be changed to L Sonata-Sawyer.
The independent children’s lawyer submitted that L should spend supervised time with the father for a period of six months after which the matter should be reviewed.
background
The father is 46 and has worked as a tradesman. The father provided no affidavit about his current circumstances although I note in a report from Dr Y, psychiatrist, that the father is reported to have stated that he lived alone and was not in employment. The father said in his oral evidence that he had a knee injury that precluded him from working at the time of the trial. I note that the father is reported to have informed Mr J, the family report writer, that he “work[s] big hours to pay for all this court stuff”. The interviews for the family report were conducted in mid-2017.
The mother is a 47 year old tradeswoman. She was previously married to a Mr Sawyer and has two children with him, namely, Ms D born in 1994 and Mr X born in 1996. The mother contends that L has a close relationship with his older half siblings.
The mother is engaged to be married to a Mr W with whom she has cohabitated since in or about 2015. The mother contends that L has a close relationship with Mr W.
The father and mother were never in a relationship. They dated for a brief period in 2008 during which L was conceived. The father maintains that he was “trapped” into parenthood by the mother and this complaint has been a constant theme throughout the proceedings. The mother and Mr Sawyer were separated in 2008 when L was conceived but reconciled when the mother was three months pregnant. Mr Sawyer assumed a father role for L after his birth until he and the mother separated in or about 2014.
On 28 October 2011 a final parenting order was made by consent providing for the mother to have sole parental responsibility and for L to live with her and spend gradually increasing time with the father, initially supervised. The child’s name at that time was L Sawyer. It seems Ms Sawyer reverted to her birth surname at some point after her final separation from Mr Sawyer. As noted, the mother is now engaged to be married to Mr W.
The father and mother were unable to agree about a change of surname for the child in 2011 and that issue was adjourned. Ultimately, after a further hearing on 24 July 2012, the child’s surname was changed to ‘Sawyer-Daley’ and the mother was permitted to retain her previous surname as a middle name for the child but not as a surname.
Unsupervised alternate weekend time commenced in 2012 between L and the father.
On 29 March 2015 the father alleged that the mother had sexually abused the child by inserting her fingers into his anus. The father took L to two hospitals and to the police where L was interviewed.
The mother collected the child from the father at 9:00pm on 29 March 2015.
On 5 May 2015 the father filed an application seeking to have the child examined by a court appointed medical practitioner and the mother cross-applied for the father’s time to be supervised.
On 24 June 2015 the Department of Child Safety informed the mother in writing that the allegations made by the father had not been substantiated and that she had been assessed as a parent able and willing to provide for the protective needs of the child.
On 25 June 2015 a protection order was made against the father in favour of the mother. The order was to remain in force until 24 June 2016. In particular, the father was prohibited from using the internet to publish pictures or make comments about the mother.
On 7 July 2015 L commenced treatment with a psychologist, Ms Q, due to what the mother contends was ongoing disturbed behaviour such as wetting his pants, nightmares and clinginess. He had also been misbehaving at school. The father also described unusual behaviour of the child at the time e.g. grinding his teeth.
On 22 September 2015 an order was made suspending the father’s time and communication with L and on 17 November 2015 a psychiatric assessment of the father was ordered.
On 20 January 2016 a protection order was made in favour of the mother against the father for two years.
Issues for determination
The following particular issues have been identified as requiring determination:
a)Whether the mother presents an unacceptable risk of sexual harm to L;
b)Whether the father presents an unacceptable risk of psychological harm to L;
c)Whether any assessed harm can be ameliorated by supervision; and
d)Whether the child’s surname should be changed for the second time in his life.
how parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[1]
[1] see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637
The Court is not required to make findings of fact on every factual dispute raised by the parties.[2]
[2] Baghti & Baghti [2015] FamCAFC 71
The objects of the Act are set out in s 60B(1) and are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[3]
[3] Banks & Banks (2015) FLC 93-637
Cases involving allegations of sexual or other abuse or risk of harm
The High Court said in M & M: [4]
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
…
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.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 assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. …[4] (1988) 166 CLR 69 at 76 - 77
In considering the ‘unacceptable risk’ assessment, Fogarty J observed in The Marriage of N & S:[5]
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
[5] (1996) FLC 92-655 at 82713-4
does the mother present an unacceptable risk of sexual harm to the child?
In March 2015 the father made an allegation against the mother, accusing her of sexually abusing the child by repeatedly inserting her finger into the child’s anus.
The father based his allegation on the alleged statements of the child made on 28 March 2015 that the mother had hurt him and put her finger in his anus and the child’s demeanour. No sworn evidence is provided by the father in these proceedings of the alleged statements made to him by the child although as part of the police records a statement from the father is included and will be discussed below.
L was nearly six years old at the time.
The only evidence relied upon in the father’s case in support of the allegation is the affidavit from Mr C. Mr C is a hypnotherapist and a friend of the father who deposes to having been informed by L on 28 March 2015 of a “sexual assault” upon him by the mother. In Mr C’s affidavit he deposes to the following:
… while visiting [the father] and [L] mid afternoon on Saturday 28/3/14, [the father] came to me visibly shaken and upset and asked me to come and listen to, and witness, something [L] had just told him. … [The father] asked [L] to share with me, what he had just told his father. With very little hesitation, [L] said to me “sometimes mummy puts her finger up my bottom and hurts me”. I attempted not to react to this statement (despite being outraged) and asked [L] whether this was something that a doctor had asked mummy to do, as some type of medical check or the like. He said “No”. I asked where, when and how often mummy does this to him. To which he replied “sometimes when I get into mummy’s bed with her”. I asked [L] when mummy’s boyfriend was ever present when she did this to him, to which he replied “no”.
Mr C then describes telephoning his mother, who used to work for an organisation called the K Group, to get some advice about the “deplorable” situation. The father also spoke to this person and Mr C describes observing the father “openly crying”. Mr C deposes that L was crying and said that he did not want to get the mother into trouble.
On 29 March 2015 the father failed to return L to the mother at the due time of 4.30pm. The mother alleges that the only communication she received from the father was a text message in which he said, “we are talking to the police and docs [L] will not be coming home u are a very sick individual”. I accept the mother’s evidence.
L Hospital
The father presented the child to the hospital at 10.49 am on 29 March 2015 and the hospital records indicate that the father reported that L had disclosed to him overnight that the mother had been “inserting her fingers and objects” into the child’s anus. The father stated that he had been worried something had been going on for some time. The father said that the mother “had made his life hell”. L was observed to be a happy, well-groomed and well-dressed young man who interacted appropriately with the father and the doctor. No examination was conducted of the child’s genitals and anus. The father was noted to be teary throughout.
Police investigation
L was presented to police by the father on 29 March 2015 at 11.16 am and interviewed.
The police records indicated that the father informed police that L had told him that the mother had stuck her finger in his anus. The father is also reported to have said that the child had been seen by a doctor who had documented injuries. The father produced a video recording he had made at an earlier time which was viewed by police. The police records state:
[the father] directly tells the child what happened and asked the child to agree with him. Police state the video has no evidentiary value and cast into doubt the validity of the alleged disclosures in relation to the most recent incident. …
The written statement taken by police from the father includes the following:
8. About 4 or 6 months ago, I recall that [L] had a rash or aliments to his behind, anus area. The sore appeared to be very itchy and sore. [L] complained that it was irritating him. I initially didn’t know what to think of it. I thought that [L] may have been hurt.
…
12. After this time whenever I had [L] in my care, at times we would discuss that [L] would have a sore bum area. …
…
14. I recall that on the 28th March 2015, I was caring for [L] at my place. I recall that [L] and I were having a conversation and he said to me can I do something to make him (sic) his bum feel better because it was very sore.
15. I asked to look at what he was talking about. I then had a look at my son’s bum area. I recall seeing basically a really red tender skin area around [L’s] anus. It looked very painful and little scratch marks were evident. It looked like a nail or something had scapped (sic) the skin .
16. … It appeared to me that [L] was not suffering from worms, or any medical condition rather it appeared that someone had inflicted this pain onto him.
17. … I then asked if someone was touching him on his bottom area. [L] then said that every time he gets into bed with his Mummy that she Mummy sticks her finger up my bottom.
18. I asked [L] why she does that, I asked if she rubs cream on him or anything or why she would be doing that. [L] answered by saying she just does it.
19. I then asked [L] how it makes him feel when she does it and he said it really hurts. [L] couldn’t understand why his mum hurts him.
20. While I was talking to him about this, [L] was starting to get very upset. [L] said to me that he doesn’t want me to tell the police, or the doctor as Mummy will hurt him more. [L] said that I can’t protect him as I am not there to see anything and that is why he doesn’t want anything done.
…
22. When I was talking to [L] a friend was also home. [Mr C] (sic) walked into the room and also heard what we were talking about.
23. After a short while [L]eon was very upset so we stopped talking about the subject matter. …
25. … When seeing the doctor it appeared that he assessed [L’s] injuries to his anus area. The doctor said to me that it wasn’t chaffing at all and it appeared to be an inflicted wound to his anus. …
[emphasis added]
L was interviewed by a police officer for about thirty minutes. The audio of the interview is in evidence. After some preliminary chatter between the police officer and L, the officer asked L why he was at the police station. L responded that he was there because his mum had hurt him. He said on a number of occasions that the mother had put her finger “up his bum”. He did not know why she did so but it hurt. He also complained that she had pushed him into a coffee table and he had a big cut or crack on his “doodle”. He said this incident occurred about four months ago.
The police investigation (which included speaking to the doctor at the L Hospital and the mother) concluded “matter unfounded as investigation indicates highly doubtful offence occurred”.
F Hospital
On the same day at 3.53 pm the father presented the child at the emergency department voicing concerns of abuse by the mother. The father did not volunteer that he had already presented the child to the hospital at R Town earlier in the day. The father stated that the child had said the mother had inserted her fingers into his anus. The father also said he had concerns the mother was abusing the child physically and that the child was scared of the ramifications and was reluctant to tell the father much about it unless the father promised not to confront the mother about it. L was asked by the doctor if his bottom was sore and he said it was. An examination of the child’s anus was conducted and the following was noted:
Anus was red. No obvious skin tears/bleeding/worms seen. No further examination was done. Examination was done in presence of RN AA and dad.
[emphasis added]
The hospital records indicate that the father said that the mother’s other children no longer talked to her and the father described the mother as “cruel” and “calculating”.
Suburb M Medical Centre
Dr N is a general medical practitioner and provided a report relating to L dated 14 May 2015 in which it is stated, among other things:
This young man has been a patient of this surgery since 2010.
…
[L] appears to be well cared for and happy when in [the mother’s] care, and has been seen with typical minor childhood illnesses only.
His last consultation prior to today was on 1 April 2015 and involved a minor fungal rash in his natal cleft which was treated with topical antifungal cream. I understand that an allegation has been made against [the mother] … however my view of [L’s] condition on this date was that it was a simple fungal condition not related to any form of abuse.
Dr V from the same practice prescribed a topical cream for the treatment of a fungal infection in L’s anal area in August 2014.
Department of Child Safety investigation
The child was interviewed by a child safety officer on 21 April 2015 and while he spoke about when the mother was asleep on the lounge and he tried to wake her up and fell onto the coffee table and hurt his “doodle”, he said nothing about his mother putting her finger in his bottom.
The father and mother were also interviewed.
The mother informed child safety officers that when L was about two or three he had hurt himself on a coffee table and suffered a minor abrasion to his penis for which he received medical attention. Exhibit 4 corroborates the mother’s information. It is a discharge summary provided by the emergency department at the F Hospital dated 29 Sept 2012. It confirms that L was presented to the hospital after he fell into a coffee table the evening before injuring his penis. He slept all night but in the morning it was noted that the end of his penis was red and swollen and the child had complained when urinating. He was examined and discharged.
On 5 May 2015 a facsimile was received from the medical surgery attended by L which provided his medical history with nothing of note. L had a history of “bugs in his bowels” and fungal infection of his anus in August 2014 and 1 April 2015.
The Departmental history notes that the 29 March 2015 was the first notification raised for L with one previous child concern report and one intake inquiry recorded in relation to alleged domestic violence between the mother and her former husband, Mr Sawyer. There was also a substantiated finding of physical harm by Mr Sawyer of his children. The mother was assessed at the time of those concerns to be acting protectively.
The mother was assessed as providing stable and safe care for L. The mother was assessed as showing positive insight into L’s needs and L was noted to have a “strong, positive attachment” to his mother.
The Department concluded that the allegations against the mother by the father were unsubstantiated and assessed the mother as capable of providing for L’s care and protective needs.
School records
I note that L has been the victim of bullying at his school from time to time both before and after the March 2015 incident. There have been some behavioural issues from time to time, but his most recent school report (semester two 2017) indicates that he is performing well at school and has made strong progress in all subject areas. He is described as a polite child who has developed many new bonds and has begun to build more confidence in social settings. He is described as a valued member of the class and a pleasure to teach.
conclusion in relation to child sexual abuse allegations
I make the following findings relevant to the allegations made against the mother:
a)The child has a history of fungal infection to his anal area which required the application of a topical cream;
b)It is likely that the child experienced discomfort at the time the mother applied the treatment to his anus;
c)The child’s statements that his mother put her finger ‘up his bum’ and that it hurt are explicable given his condition and the treatment;
d)The inconsistent statements alleged by the father to have been said by L;
e)The father has subjected the child to repeated questioning and examination of his anus even after the child has shown distress;
f)The father has suggested answers to the child about other alleged abuse of the child by the mother in a video assessed by police to be of no evidentiary value whatsoever;
g)The father told Dr Z that he had suggested answers to the child about the sexual abuse allegations (see below);
h)The father has subjected the child to questioning by a third party, namely, Mr C;
i)The father has been unable to contain his emotions around the child when the subject of the allegations have been discussed including the father crying;
j)The child has been subjected to Mr C’s ‘outrage’;
k)The child has been subjected to numerous discussions about the allegations against the mother in the presence of Mr C, Mr C’s mother, doctors, police, child safety officers;
l)The father has shown an inability to consider other reasonable explanations for the child’s statements and presentation;
m)The father told police that there were scratch marks consistent with a nail having caused injury to the child and that a doctor had told him that it appeared a wound had been inflicted on the child’s anus;
n)The father’s statements are contradicted by the medical evidence;
o)The child has a history of being bullied at school and being subjected to the conflict between his parents which may account for his behaviour in the lead up to March 2015;
p)The father has made sustained and unrelated criticisms of the mother to police, child safety officers and doctors (in addition to the criticisms made to doctors outlined above the father has made criticisms and accusations to other doctors and professionals outlined below).
Having regard to those findings I reject the father’s allegations that the child has been sexually abused by the mother or at all.
does the father present an unacceptable risk of harm?
Many of the findings made above have relevance to this assessment.
The mother contends that if the father spends time with the child, even supervised time, he will continue to be fixated upon the belief that she has sexually abused the child and will expose the child to his views either directly or indirectly thereby causing the child emotional and psychological harm.
During 2012 to 2015 the mother describes ongoing difficulties with L’s behaviour which she puts down to the father undermining her as a parent because of statements made to her by L, e.g. “Daddy [Daley] told me to do it” and “Daddy [Daley] pays for everything” and “Why does Daddy [Daley] hate you so much”.
After the police interview with L in 2015 the mother contends that L told her that the father made him lie to police. The mother also contends that L said he wanted to kill himself. He was having nightmares and wetting his pants. He also defecated his pants on one occasion. His behaviour at school had deteriorated. It was at this time that the mother retained the services of a psychologist for L.
I note that at least for part of the period leading up to March 2015 the child was being bullied at school and the mother and Mr Sawyer were going through a separation which involved some conflict to which it is likely L was exposed. It is not clear on the evidence whether L maintains a relationship with Mr Sawyer. These issues are also likely to have had an impact on L’s behaviour.
Child inclusive conference – memorandum to court
Ms O, family consultant, conducted an interview with the parents and L on 21 October 2015 and prepared a memorandum to the court.
During the father’s interview with Ms O the father told her, among other things:
a)He had spoken to L about why he did not tell the truth to the police (the truth according to the father being that the mother had abused him) and told him he was very disappointed L had not told the truth about the mother abusing him and that he told L that the reason L had not told the truth was because of the mother’s abuse and threats of harm;
b)L had begged him not to explore possible corruption within the police force for not properly investigating L’s disclosures against the mother;
c)He ensures he feeds L pork products even though to do so is against the mother’s religious beliefs because he disputed that she was Muslim;
d)This is why there’s double digits of father’s killing themselves each week because of Court decisions;
e)The mother was trying to destroy him financially and wishes to alienate him from L;
f)He often talked about how he and L were dismayed and upset about the mother’s actions over the past six years.
Ms O observed that both parents admitted that they had spoken to L about his interview with police on 29 March 2015 and subsequent recanting of the statements made during that interview. In Ms O’s view:
… [L] presents as having been impacted negatively by not just the experience of the police interview but the excessive scrutiny of what he says. …
Ms O opined:
[The father’s] descriptions of [L’s] feelings, thoughts and wishes identically mirror his unique concerns and criticisms of [the mother]. For example he alleged that in a variety of settings [L] has to reassure him that [the mother] is crazy and that [L] understands that he and his father are a “team” against [the mother]. Essentially [the father] experiences [L] as an extension of himself. It is very difficult for him to consider that L might need to rely on his mother. This perception justifies [the father] trying to separate and damage the relationship between [L] and [the mother] without concern for the child.
Ms O opined that the father’s perceptions of his son and what was happening in his life “appears so unstable that there is a risk he will likely fabricate or exaggerate L’s disclosure and feeling to fit [Mr Daley’s] picture of reality” and that he is likely to foster dependency in the child and enforce “sameness in attitude, feeling and behaviour as much as possible in the child.” Ms O expressed a “considerable concern about the harm to [L’s] personality, identity and emotional wellbeing” in spending time with the father.
Under the heading ‘future directions’ Ms O opined:
Generally, the decision to recommence supervised time between a parent and a child should not commence unless it has a reasonable prospect of unsupervised time as an end goal point. This is because the process of developing a bond with a parent involves the child being vulnerable…
… The short term and long term utility of supervised contact should be carefully considered before commencing because of the short term and long term risks to [L’s] mental health.
Father’s mental health
The father has been assessed by three psychiatrists during parenting proceedings involving L.
Dr H
Dr H prepared a report in 2010. The father is noted to have complained that the mother was setting him up and had made up stories about him. He also accused her of being infatuated with him. He admitted putting a message on his computer saying that he “had had a gutful of this woman and he felt like killing her”. He accused the mother of stalking him and of assuming someone else’s identity. He disclosed a number of matters to Dr H including:
a)That he opposed vaccination because he did not want aluminium or mercury in the vaccination shots;
b)That the media do not tell the truth about the 9/11 attacks;
c)That a third building had been dropped and that all building collapses were controlled by the same people;
d)That the majority of terrorist attacks had the CIA behind them;
e)George Bush and Clinton had been drug runners;
f)9/11 was an inside job;
g)Ms S (the family report writer from 2010) should be investigated because she had taken a “golden handshake” from the mother in order to express the views she did in her report;
h)When he got a huge apology for deceit and perjury he might be able to act cooperatively with the mother;
i)He described the mother as the smiling assassin;
j)That the mother had deliberately injured L by dropping him;
k)That the mother had the judge wrapped around her little finger;
l)The mother was going to be charged with stalking, entrapment and perjury and she thinks she owns him;
m)The magistrate had called security when he was last at court;
n)The police felt sorry for him.
Dr H noted that the father spoke with intensity and that the major content of his discussion was denigration of the mother and paranoid ideas about 9/11 and Ms S. Dr H expressed concern that the father seemed to see the child as an extension of himself and was unable to attribute any attachment between the child and the mother.
In her view the father had a differential diagnosis of paranoid personality disorder or delusional disorder, although noted:
It is entirely possible for him to be a good parent to the child while exhibiting this disorder but present indications are that he would be likely to alienate the child from the mother.
Dr Z
Dr Z conducted an assessment of the father in 2011 and produced a report dated 24 October 2011. A copy of that report is not in evidence but it seems Dr Z did not agree with Dr H’s diagnosis.
In 2016 the father was again assessed by Dr Z and was seen on four occasions, namely, 6 July, 28 July, 2 September and 21 September 2016. The father told Dr Z a number of things including:
a)For seven years he had had suspicions that L was being abused;
b)From the time the child was six months of age he would masturbate a lot and at times would reach out to touch his (the father’s) penis;
c)When asked why, the child said “that’s what we do in the shower”;
d)The child said his step-father walked around naked;
e)The child said that he watched R rated movies with the mother;
f)The child complained of a sore bottom and the father noted that his anal area was red;
g)On inspection of the child’s anus the father noted “a friction soreness” or “forced entry”;
h)He asked the child if someone had been hurting him and that he said that he did not want the father to tell because “you don’t know what she would do to me”;
i)He believed the mother was sexually abusing the child;
j)He told the child that he knew the injuries were not due to chaffing;
k)He confronted the child and told him that he wanted him to tell the truth;
l)He asked the child if the mother had put her finger up his bottom. He said “every time mummy does this you get a sore bottom don’t you?” to which the child replied “yes”;
m)The father referred to the mother as a “lying, manipulating, sociopath” and that his evidence has been ignored by police and the courts;
n)He accused the mother of being the last person to see a person before she was murdered and that she was an accessory to her murder and a beneficiary of it;
o)The mother is hanging out with a known paedophile and murderer;
p)The mother is part of a group of women who entrap older men and embezzle money from them;
q)The mother knows how to “play the system” and may have “got to someone”;
r)He had worked out a secret phone code with the child so that he could tell him if he was being abused.
Dr Z formed the opinion:
… [the father] is suffering from a delusional disorder of persecutory type. There is evidence both from my own interviews with [the father], as well as the video observed by the police to suggest that he has coached [L] to agree with his own beliefs regarding the sexual abuse. However, I doubt that it is necessary that [the father’s] time with [L] needs to be supervised. … I think it is unlikely that he would denigrate his mother to [L], although it is difficult to be certain about such matters and his own opinion about [the mother] may be represented to [L] in less direct ways.
Dr Y
Dr Y interviewed the father on 21 September 2017 and prepared a report dated 5 October 2017.
In his view:
There is some bad news from a psychiatric point of view.
He does present with a state of extreme mental perturbation about a mixture of things that have happened concerning his relationship with his son.
These centre on the fact that he has formed the belief that his son was sexually abused by the mother.
This is the first piece in a puzzle that continues to stress the father.
His distress is maintained for fear that his son remains at risk of this abuse (and variations of other abuse and neglect).
He remains of the view that his son was assaulted by his mother and that she “stuck her finger up his bottom”.
The next issue which distresses him is that the investigating authorities have failed to act with regard to this matter.
…
The next issue which flows on from issues one and two which distresses him is his perception that the Family Court system has failed to listen to him …
…
… he has garnered the support of other un-named persons who support his views.
There is an important harbinger of [the father’s] reaction to the issues of current concern in his life, when he spoke of the very beginning of his relationship with the mother.
This clue is his ongoing belief that:-
“She’s always had it in for me.”
And
“She lied to me about … being on the Pill.”
And
“About everything”
It remains a fundamental problem for [the father] therefore that his son is the product of such lies.
…
I chose not to label [the father] with any label from the vast dictionary of psychiatric labels.
…
His current perceptions and beliefs are the product of his basic nature and personality and intellect, which by this age are immutable.
[emphasis added]
Dr Y considered that there was no psychiatric reason impeding the father having supervised planned structured meetings with L at a contact centre “beginning as soon as possible” but stressed the need for the supervisor to be completely au fait with the background to what has been an eight year process of conflict between the parents. Importantly, Dr Y added the proviso:
These statements are based on the proviso that [the father] provides age and child development appropriate comments, and plan according to strict rules and regulations endorsed in such Centres…
Dr Y stated that the father would do very well to take his advice and stop searching Google to find material in support of his claims and stop listening to various people who seem to be fuelling his fears that he will not get a fair go. In particular he said:
… [the father] needs to start to take some personal responsibility to participate in the plan that gives him the best chance to commence the redevelopment of the father-son relationship …
…
If he continues to advocate for a Royal Commission such a quest will take a lot of his time and energy and I have a concern that he will not be able to successfully commence a rapprochement with his son.
…
The prognosis needs to be monitored in this manner until … 2030 (when the child turns 18 years of age).
…
I accept that some doctors might choose to diagnose the continuing belief that [the father] has about his son being sexually abused as being delusional.
I call this an overvalued idea …
family report dated 1 July 2017
Mr J, family consultant, prepared a family report after interviews with the mother and child on 12 June 2017 and with the father on 13 June 2017. The father’s failure to attend on the scheduled date for interviews, namely 12 June 2017, resulted in Mr J being unable to consider observing the father and child together.
The father informed Mr J that he wanted the child to live with both parents on a shared equal time basis but added - “If it’s proven that she’s abused him then I want him in my care.”
In Mr J’s view the father would begin to address a question appropriately but then digress into often unrelated content that “carried highly suspicious, persecutory, or conspiratorial themes”. The many examples provided by Mr J in his report support his conclusions, in my view.
The father informed Mr J that he went to a neighbour of the mother’s in 2015 who had expressed concerns about L’s welfare in the mother’s care. He told Mr J that he had a recording of the conversation. No recording was produced by the father and an affidavit of the neighbour, Ms T, filed 15 December 2015 (annexed to the mother’s affidavit of evidence in chief) does not support the father’s version. The father had told Ms T, a person he had never met before, that the mother was sexually abusing the child. Indeed I note from the reasons for judgment of Forrest J relating to contravention proceedings (also annexed to the mother’s affidavit of evidence in chief) that the father cross-examined this witness whom His Honour accepted as a witness of credit. The father was found to do himself no credit whatsoever in his attack of this woman’s credibility.
During his interview with L the child denied that he had ever told the father that the mother had put her finger up his bottom. He said that the father had lied about his mum putting her finger up his bottom. L said that he used to have a good time with his father and appeared upset as he said it. He said he liked living with his mother.
Although L said little to Mr J about the father, it is his impression that L loves and misses his father and wishes he could see his father again. It is not entirely clear on what basis these ‘impressions’ are formed.
In Mr J’s opinion:
42. The difficulty in assessing whether L should spend time with his father does not lie in the nature of the father-son relationship itself. It lies in evaluating the father’s individual functioning and his capacity to relate appropriately to [L] in a manner that will not cause psychological harm. …
…
50. … the father’s belief that [L] has been, and possibly still is, sexually abused by the mother is a dominating conviction in his mind. …
51. In terms of risk factors, what I think is an issue is not necessarily the nature and quality of [the father’s] ideas and beliefs but rather it is his ability to contain these beliefs and not involve [L] in them. …
…
54. I hope it follows from what I have said in regards to [the father’s] poor insight and seemingly unshakeable beliefs that I have little confidence that he can contain his beliefs. If I am correct, then the obvious option is for [L] to spent time with his father at a children’s contact centre. …
55. Putting aside what I have said about [the father’s] personal functioning, I think there are still issues to be considered in regards to [L’s] future living arrangements. With all that has happened between these two parents, I struggle to see how [L] will not be exposed to the inter-parental dispute. The parents’ antipathy and prolonged litigation, together with the fact they have not demonstrated a willingness or ability to co-parent must raise concerns.
Mr J’s recommendations that L spend time with the father at a contact centre was made as an interim measure, pending an updated psychiatric report being obtained.
The father’s communication to L’s school
On 1 May 2015 the father sent an email to L’s school in which he said, among other things:
a)The mother is under investigation for assaults and sexual abuse of L;
b)The mother is very mean, violent and nasty to L and it has been a problem for six years;
c)The mother does not care who she hurts for her own personal gain and gratification;
d)He as doing everything he can to have L removed from her care;
e)He only got to speak to L for one minute on his birthday where he was being bullied by his mother and said “I don’t want to talk to you dad. I’m angry with you because you got mummy in trouble with the police”;
f)If all goes well L will come to live with him and cease being “abused or assaulted or mentally disturbed by his sick twisted so called mother”.
The father’s conduct during the trial
It was submitted by counsel for the independent children’s lawyer that the father’s behaviour during the trial was appalling. I consider that to be a fair assessment however I am conscious that the father was acting for himself and has historically been diagnosed as suffering from a mental illness. The father certainly made his views about being victimised by the system well known throughout the proceeding. He continually spoke over the top of people and interjected making speeches about the deficiencies in the court system and how fathers are treated badly.
Ironically the father chose to conduct his case without putting a shred of evidence before the Court to support his many accusations against the mother. And despite being reminded on numerous occasions that this trial was about his son, the father was fixated on ‘proving’ the mother to be a liar and perjurer. At one point during his cross-examination he asked the mother a question and when she responded he loudly commented “strike one, perjury”. His conduct was consistent with the presentations described by many who have encountered him during the proceedings. He was fixated on his views about the mother and how the system had let him down.
conclusion in relation to whether the father presents an unacceptable risk of harm
I do not find it necessary to make a finding as to whether or not the father suffers from a recognisable psychiatric illness. That is because the psychiatrists agree that the father’s psychiatric illness (if he has one) does not, of itself, preclude him from having a relationship with his son. As Mr J identified, the question is whether or not the father can protect L from his views and whether a failure to contain his views is likely to cause emotional or psychological harm to the child.
The fact is that for many years the father has made accusations against the mother to anyone who will listen. His focus has largely been about how he has been victimised by the mother and how she has sexually abused and mistreated the child. Extraordinarily the father submitted that he had never put the mother down. Unfortunately, the father appears to have surrounded himself with people who support his victim status including his sister who unwisely exposed the child to the ongoing dispute between the parents when she recently gave L a letter which said, among other things - “your mummy has put things in place so your Dad has to stay away”.
I accept the mother’s evidence that L has asked her why his father hates her so much. The child could not be unaware of the father’s feelings and views. The father’s own evidence persuades me that he has involved L in what I find to be his ‘campaign’ against the mother, e.g. repeated questioning of the child. I am particularly concerned about the father’s leading questions to L as exposed in the video the father gave to police and to his admissions to Dr Z.
I accept Dr H’s opinion that the father is likely to alienate the child from his mother if he spends time with him. At the very least his behaviour is likely to make the child so uncomfortable that he is conflicted about his relationship with his mother.
I accept Ms O’s opinion that that the father experiences L as an extension of himself and finds it very difficult to consider that L might need to rely on his mother. I also accept her opinion that spending time with the father is likely to foster dependency in the child and enforce “sameness in attitude, feeling and behaviour as much as possible in the child.”
I accept Dr Y’s opinion that the father’s “perceptions and beliefs are the product of his basic nature and personality and intellect, which by this age are immutable” and that the father’s belief that the mother has sexually abused the child is an “overvalued idea”.
I have no confidence that the father can or will change his behaviour. Contrary to the advice to the father provided in Dr Y’s report, the father did not demonstrate any ability to focus his attention on reconnecting with L. The suggestion by Dr Y that the father could spend supervised time with L and that this be monitored until the child is eighteen is completely impracticable in my view and I am not satisfied that it would serve any positive purpose for L. Importantly I do not consider that the father could contain himself and I do not consider it likely that any supervisor could successfully manage the father’s behaviour.
I reject the submission by the independent children’s lawyer that a further interim order should be made. L needs some finality as do the parties. Making an interim order would not be in L’s best interests given my findings that the father would not be able to contain the expression of his views about the mother. Additionally the evidence as to the availability of an appropriate supervisor and capacity of the parents to meet the costs was unsatisfactory. I consider a final order to be less likely to lead to the institution of further proceedings.
L is progressing well at school and in his extra-curricular activities and his problematic behaviour, e.g. wetting his pants, nightmares, playing up at school, etc. has ceased.
While Mr J opines that L misses his father, it is my view that the benefits to L in spending time with the father are overshadowed by the detriment to him in being exposed to the father’s unrelenting perceptions and beliefs about the mother.
miscellaneous
I find that L is well cared for by his mother and I accept the recommendations of Mr J and the independent children’s lawyer that L should continue to live with his mother. I do not intend to vary the 2011 consent order which provided for L to live with the mother.
Given the complete inability of the parties to communicate I do not consider it to be in L’s best interests that his parents have equal shared parental responsibility. As L will continue to live with his mother she will continue to have sole parental responsibility for major long term issues relating to his welfare in accordance with the 2011 order.
As indicated above I consider that the need to protect L from psychological harm outweighs any benefit that L may have received by spending time with the father. It is important to stress that my findings in this regard rest in large part on the actions admitted to by the father in the evidence from various witnesses including the experts. The father can have no cause to blame any accusations made against him by the mother for the result in this case.
The mother supports the father being able to send L a gift and/or card at special times. I consider that to be worthwhile so that at least L is aware that his father thinks about him and has some affection for him. The mother will be at liberty to vet any such communication to consider whether it is appropriate for L.
Finally, the mother has also sought to again change the child’s surname. The 2012 decision added the father’s surname as a hyphenated surname. This was a matter that was ventilated in proceedings in 2012 and a decision made. While the mother is no longer married to Mr Sawyer and has changed her own name back to Sora she is again to be married and history suggests she may well change her surname to W. The child L has two older siblings with whom he shares at least part of his surname. I am not persuaded that it is in L’s best interests to again change his surname.
summary
I have come to the conclusion that it is in L’s best interests to remain living with the mother and to spend no time with the father. The mother will retain sole parental responsibility for decisions regarding L’s welfare. The father will be at liberty to send a gift and/or card to L on special occasions. The child’s surname will not be changed.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 25 January 2018.
Associate:
Date: 25/1/2018
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Natural Justice
-
Procedural Fairness
-
Remedies
0
3
7