Dawkins and Boreham

[2009] FamCA 390

FAMILY COURT OF AUSTRALIA

DAWKINS & BOREHAM [2009] FamCA 390

FAMILY LAW – ORDERS – Variation – Time the father spends with the child

Family Law Act 1975 (Cth)

APPLICANT: Ms Dawkins

RESPONDENT: Mr Boreham

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 2611 of 2006

DATE DELIVERED: 8 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: M K Steele & Giammario

THE RESPONDENT: In person

INDEPENDENT CHILDREN'S LAWYER Ms S. MacGregor

SOLICITOR FOR INDEPENDENT CHILDREN'S LAWYER Macgregor, Barristers & Solicitors

Orders

1. That paragraph 11 of the orders made on 23 October 2008 be varied to include:

   (a)That at the commencement of all changeovers, the father be restrained at all times from alighting from the motor vehicle.

   (b)That the child be handed to the father’s nominated representative at the gate of the driveway of the mother’s home and returned to the mother at the same location at the conclusion of the relevant periods.

2. That the orders made on 23 October 2008 be further varied:

   (a)that the father spend time with the child from 10.00am until 5.00pm on 9 May 2009; and

   (b)from 10.00am on 16 May 2009 to 5.00pm on 17 May 2009 and for a similar period in each alternate week thereafter.

3. That the application in a case filed by the mother on 23 April 2009 and the response of the father thereto filed 4 May 2009 be otherwise dismissed.

4. That my reasons for judgment be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLF 2611 of 2006

MS DAWKINS

Applicant

And

MR BOREHAM

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. In this particular matter I propose to order that paragraph 11 of the orders made on 23 October 2008 be amended.  From now until the resumed hearing in July, the changeover referred to in that particular paragraph will continue except that the following additional orders will apply.

2. I have read all of the material that the parties have asked me to look at as well as the April family consultant's report.  I do not propose to make orders removing the child from the mother; secondly, requiring the paternal grandmother to be present throughout the entire weekend; thirdly, ordering a psychiatric examination of the mother, or for that matter of either party; fourthly, restraining the parties from communicating from one another; fifthly, directing parties to undertake a parenting program, bearing in mind that I made suggestions of that in October 2008; or sixthly, from altering the restrictions that I set out in paragraph 10 of the orders on 23 October 2008.

3. I do propose ordering a suspension of paragraph 9 of the orders of 23 October for clarity's sake, and I therefore propose to order that the father spend time with the child from 10 am tomorrow morning 9 May until 5 pm that same afternoon.  I do so on the basis that I am taking into account it is Mothers Day, notwithstanding the father has not seen the child now for some weeks.

4. Secondly, the father will time with the child from 10 am on Saturday 16 May until 5 pm on Sunday 17 May and for a similar period in each alternate weekend thereafter.  These are my reasons for so ordering.

5. This matter is listed for completion of its final hearing to resume on 13 July 2009.  In the mother's application filed on 23 April 2009 she sought a complete suspension of all time between the child and the father.  The father responded by a response filed on 4 May 2009 seeking orders (1) that the child, born in October 2005 be removed from the mother's care immediately, (2) that the mother, Ms Dawkins, undergo a full psychiatric evaluation, (3) that the mother's parents and boyfriend be denied access to the child until full investigations have been undertaken into her welfare, and (4) that the child be place in my - meaning his - care or that of his brother and sister-and-law, Mr and Mrs B.

6. The father's position was also put as an alternative in that if I was not prepared to do what he wanted as I have just outlined, he wanted the order changed so that he had time with the child on each alternate weekend from Friday through to Monday.  He wanted me to otherwise remove any restrictions such as those that I made in October 2008 and, importantly, that the handover of the child occur at the McDonalds Restaurant at D.

7. The mother's position moved substantially from that which she had filed based upon the allegations that had previously been put, noting in this case that there is a form 4 notice of child abuse which has been investigated by the Department of Human Services.  Her position was, that the paternal grandmother be present at all times throughout all of the weekend that the father was to spend with the child.

8. First, I reject the need for that at this stage, although counsel for the mother challenged the father about protecting himself in respect of allegations and I have noted that challenge.  Secondly, she asked that the changeover at N be as it is currently, but with the restrictions as to the father's movement, and thirdly that there be restrictions on the communications between the parties.

9. The Independent Children's Lawyer's position was rather simple.  She suggested that the changeover be at the B Contact Centre.  It must be noted that this case has been on foot for quite some time now, and in the early stages of proceedings the B Centre changeover was used, and my impression is that it was a disaster.  Notwithstanding that, it was and still is my view that the B centre changeover point is a very sensible solution.  The dilemma for me is that the husband will not do it.  He therefore cuts off an option.  If the orders I now make do not work, it may be that I have no other option.

10. I have mentioned the father's position in relation to McDonalds.  He points to the fact that the mother currently has an arrangement with her former partner in relation to their child about McDonalds.  I have no evidence about any of that that I could rely upon, and in any event, as I see it, it will be of no real assistance because it will not alleviate the tension and stress that is currently present.  Even in an environment like McDonalds, the child will be subjected to that. 

11. Because the father had moved from his original position, it is appropriate for me to deal with the whole of the matters, particularly those that are set out in his application.  Insofar as the mother alleges serious misconduct against the father upon what the child has said and done, her counsel made it abundantly clear, and it is now on the record, that she is not resiling from those concerns.  The Department of Human Services has indicated they are not intervening in the proceedings and have closed their file.  I do not take that to mean that there is no issue of concern at all. 

12. The dispute here is whether the child said and did what the mother and her boyfriend allege occurred.  In relation to the issues of sexual impropriety, the mother's evidence, which is corroborated by her boyfriend, is as follows.  She said that during January, February and March of this year she noticed changes in the child’s behaviour.  On a few occasions the child had asked her to smell her vagina stating, "Smell my fanny". "Fanny" was not a word that the child had commonly used prior to this time. 

13. The mother's evidence is that on 15 March this year, shortly after she was returned from the father, the child stated again the words "smell my fanny", but this time referring to the fact that her father had done so.  The mother said that the child told her that she was crying when she was with the father and that she had asked the father to take her home but the father had simply yelled at the child.  The child also said that she did not like being called like a puppy dog and she did not like it when her father screamed at her.

14. The mother's evidence was that on 18 March this year at the N home, the child asked the mother to touch her fanny and then laughed.  Four days later on 22 March whilst the mother and child were at the boyfriend's home, the boyfriend was resting on the couch and the child was in a beanbag watching a television program.  The mother said that as she walked of the room she heard her boyfriend say, "No, [Child]. You don't ask people to do that."  When she inquired about this, the child said that she had asked the boyfriend to smell her fanny.

15. The mother is not proceeding with those matters today and I therefore say nothing about the evidence upon she relies, save to note, as I have said, that the mother is not resiling from that position about those events occurring.

16. The father's evidence is that he firmly believed that all of the allegations made by the mother in her affidavit were false.  That is, I presume he means that the words were never said by the child, nor that the conduct referred to by the mother and her boyfriend occurred either.  He goes on to say in his affidavit that he believes that she has made up the entire abuse claims.  He said he was gravely concerned about what the mother had been saying to the child in her gross attempts to stop him from having contact with the child.  He said he was repulsed and disgusted with the statements that the mother had made.  He said the things that she had described were so foreign to him that he was nearly sick upon reading them.  He said he could not state strongly enough how mortified he was.

17. He then gave a number of reasons why he believed that the mother had falsified her statements.  He said that the mother encouraged the child to have further overnight contact with him on 28 March this year having regard to the fact that she had already heard the vilest of things from her daughter. 

18. He said there was a history of the mother making false allegations.  There have been constant claims of violence about him which he says the mother now acknowledges are not true.  He said that she has made false statements that she is happy for him to spend time with the child, yet was now putting a position that he had little to offer as a father and that her current partner is a better parenting figure.

19. He said she constantly taunted her former husband in the same way saying that he was in fact 10 times a better father than that particular person.  He alleged that the mother has made false allegations against her former husband of a similar nature and made false statements to police concerning his driving whilst disqualified.  He made clear that he denied that he had ever driven a car whilst he was disqualified.  He said she had made false statements to doctors including Dr R who, he said, was "furious" upon learning that the mother had deceived him to help her deny him contact with the child.

20. He said that the mother had given false reasons for contravening orders and that there was a long history of contraventions totalling over 30, and that this continued with both her ex-husband and himself. 

21. Finally, he said that a three-year-old could not possibly make up the things that I have referred to, so that she had obviously been coached. 

22. He made a statement of his belief that the mother would stop at nothing to try and remove him from the child’s life and that this time she overstepped the mark.  In his affidavit he said that he has grave concerns for the child, as he knew “for a fact” that these disgusting things had not occurred whilst the child had been in his care.  He said he was concerned that the mother was placing the words and ideas in the child’s head to achieve her goals of removing the child from his life and obviously therefore subjecting the child to abuse herself.

23. That is the evidence upon which the father wishes me to determine the question of his application.  I have no evidence to justify his first proposals.  I have previously indicated my reservations about his parenting capacity in October last year, and I have no evidence about the willingness and capacity of his proposed carers.  I have no evidence which would justify a psychiatric examination or assessment of the mother and no argument about my powers to order one anyway.

24. The father's fallback position, as with the mother and the Independent Children's Lawyer, relates to the changeover which has always been a problem in this case.  It will be remembered that on a previous occasion in 2008 I was grappling with how I could solve what seemed to be an interminable problem.  Although the father says that there have only been two occasions this year since I made the orders where there has been a problem, it seems to me that two occasions is still too many.

25. The issue here is to find a solution which is most likely to ensure a smooth transition from mother to father of the child.  I have no confidence at all about any of the proposals put by any of the parties. 

26. The mother's evidence about the changeover is also set out in her affidavit.  She said that on 14 March the child refused to go with her father and ran inside the house and she went in after her.  She said that inside the house, the child was crying and asking her to phone the father and tell him that she did not want to go.  She said she told the child that was not going to happen and encouraged her that she would have fun with the father and perhaps they would go to a park.  She said her attempts to comfort the child were unsuccessful and she remained anxious and distressed.  She then picked the child up, walked down to the gate where the father and his mother were standing.  She said they were approximately 50 metres from the front gate and the child clung onto her leg.  She said she struggled to let her go.  After prising her free, the child ran to a nearby trampoline and gripped onto it.  She said that whilst this was occurring she heard the father yelling abuse at her, including calling her a dog and that the child was crying saying she did not want to go.  Eventually, the father came on to the property and walked towards her and she told him to get off the property.  She said he ignored her but eventually turned and left the property.  She said he continued to yell abuse at her.  She said the child had moved from the trampoline and then had her arms wrapped round a tree.  She said that the father was calling the child to come, but the child did not respond and stayed gripping on to the tree.  She said the father reached into his car and came up with a little pink bag and lipstick and knelt down patting his legs saying, "Come here, little puppy.  Come and get your bag and lipstick."  He then said, according to the mother, "It's great isn't it, treating her like a little dog."  She said eventually she was able to persuade the child to let go of the tree and they walked closer to the father and the paternal grandmother who were calling impatiently.  She said eventually the child went reluctantly that day.

27. On 28 March the same scenario occurred.  This time she said the child ran inside saying she was not going and the mother’s older daughter, L’s, carer was present.  She said that both she and the carer encouraged the child to come outside.  She said when they were walking through the garden towards the father, the child turned and ran in the opposite direction towards the father.  She said the father was standing at the gate saying things like, "For God's sake bring her here now, you're nothing but a joke, woman".  She said the child stood with her head hung low and would not look at the father or his mother.  They were yelling all sorts of things to attempt to induce the child to go, but the child was responding saying she did not want to.  She said she encouraged the child to go and eventually the child dawdled step by step with her eyes fixed to the ground.

28. It would not surprise anybody to know that there is a diametrically opposed version of all that from the father.  What he said was that on 14 February this year when he arrived at the property with his sister-in-law they waited half an hour and eventually discovered that no-one was at home.  He tried to call the mother several times but got no response.  Eventually he made inquiries through the Victoria Police who made the phone call on his behalf and he was informed by the police that the mother and the child were fine.

29. That was followed by a text message from the mother stating that she had informed him on the Friday that contact would not be occurring.  He said he never received the message. This is a good indication of the level of communication between the parties.

30. A month later on 14 March when he arrived at the N property to collect the child, he could see the child clinging to the trampoline and called out to the mother to walk the child up the gate.  He said the mother ignored him and then encouraged the child to go back inside the house.  He said he took steps inside the boundary in the hope that the child would come towards him, and the mother screamed in a shrill voice to get off the property.  When the mother screamed, the child was obviously upset.  He then said to the mother, "Don't make me call her like a dog".  Eventually the mother just walked away from the child and he and his mother were left to call her to come to the gate which eventually occurred.

31. Each party has put elements of a story which have distinct similarities, but each puts their own spin on it.  Without the opportunity to have that evidence tested, it is impossible for me to make any determination on the facts as to exactly what occurred.  No doubt I will get that opportunity in July.

32. The father said that on 28 March when he arrived at the N property with his mother he stood at the gate and waited for the child.  As usual, he observed that the child was 50 metres down the driveway.  I should extrapolate at this stage to point out that this is a rural or semi-rural property with a long driveway and a gate in the middle.  He said he could see that the mother was talking to the child and called out to her so that she would know that he was there.  He said the mother started screaming to do what was ordered by the court and wait in the car.  He said that the mother never brought the child to the gate, so he had to let the child see that he was there so that she would walk the 50 metres from where the mother had usually left her.  He said the mother then told the child to go back into the house.  He said his mother got out of the car at that stage so that she could also see that the child was getting confused.  He said the child was then standing in the driveway, and very slowly - with her head bowed, taking almost three minutes to walk the 50 metres - came to him.

33. Again, as I have just pointed out, there are distinct elements of similarity about the parties' respective positions, but I am unable to determine on the facts just exactly what occurred.  On that basis, I have to deal with the case on the best basis I can.

34. It is abundantly clear in this case that the problem is the handover.  I have already rejected the McDonalds proposal.  I would be tempted again in this case to order that B Centre be the handover place, but I could not say that that is in the best interest of the child because the father bluntly says that he would not comply with my order.  That may very well become an issue for trial.

35. The only option open to me, therefore, is to tailor something that will work.  The only solution that I can think of is that the existing arrangement be continued but the father be excluded from having face-to-face time in which the parents would be able to effectively thwart the time.  I have endeavoured to try and have the parties come up with some names of some people who might be a little less confrontational.  I have been unsuccessful in getting the parties to come up with that solution.  The best I can do is what I previously ordered in October.

1. It seems to me that the parties have to work this out themselves.  I say the orders I therefore earlier announced are in the best interests the child on the basis that I have no alternative.  Accordingly in this matter I make the following orders.

I certify that the preceding Thirty Six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 May 2009