Dean and Deluca

FAMILY COURT OF AUSTRALIA

DEAN & DELUCA

[2008] FamCA 1193

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time

APPLICANT:

Ms Dean

RESPONDENT:

Mr Deluca

INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

FILE NUMBER:

BRC

7511

2007

DATE DELIVERED:

10 December 2008

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

8 & 9 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sara

SOLICITOR FOR THE APPLICANT:

Aylward Game Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Foley

SOLICITOR FOR THE RESPONDENT:

Bill Morland, Solicitor

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr Linklater-Steele

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Doris Chan, Solicitor, of Legal Aid Queensland

Orders

The children L born … January 1998 and T born … March 2002 live with the mother.
The Applicant Mother and the Respondent Father have shared parental responsibility for the long term care, welfare and development of the children.
The Respondent Father spend time with the children:
(a)once per fortnight on Saturday from 10.00am until 2.00pm for four (4) periods;
(b)and then once per fortnight on Saturday from 10.00am until 4.00pm for four (4) periods;
(c)and thereafter from 9.00am on Saturday until 5.00pm on Sunday each alternate weekend subject to any objections being brought before the Court prior to the commencement of such spending time with.
(d)The time the father spends with the children pursuant to Order 3(a) and (b) be supervised by a person agreed upon by the parties and failing agreement as appointed by the Independent Children’s Lawyer;
(e)and should no suitable supervisor be appointed the father spend time with the children each alternate Saturday at a contact centre for the maximum time allowed by such contact centre;
(f)the father spend time with the children for a period to be agreed between the parties on either Christmas Day or Boxing Day.
The Respondent Father be at liberty to telephone the children at the Applicant Mother’s residence at 6.00pm each Wednesday, Friday and Sunday evening.
Each party shall keep the other informed of their current residential address and telephone number and advise of any change in relation to same within seven days of such change.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
The Independent Children’s Lawyer be discharged after four (4) weeks from today.
The matter be adjourned for mention at 10.00am on Friday 27 March 2009 unless otherwise agreed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7511 of 2007

MS DEAN

Applicant

And

MR DELUCA

Respondent

REASONS FOR JUDGMENT

This is an application instituted by Ms Dean (“the mother”) for parenting orders in relation to two children the product of a union between herself and the respondent, Mr Deluca (“the father”).
The orders as sought by the applicant are set out in her case outline which was filed on 13 November 2008, and I refer to and incorporate those in my reasons for judgment. It indicates that the two children the subject of this application are L who was born in January 1998 and T born in March 2002.
The history of the parties prior to the final separation is somewhat unremarkable in this Court in that the applicant was born in 1968, the respondent was born in 1973. They commenced a relationship in or about the year 1996 and commenced living together in 1998. The children were born in the years to which I have referred, and they separated in 2004.
The parties were able to resolve their differences in relation to spending time with and consent orders were made wherein the father was entitled to spend time with the children for two weekends out of three, which he did so.
Prior to the final separation the father, it can be said, was the primary caregiver in that the role models, so-called conservative role models, were reversed and he became a housefather and the mother went out to work. The mother has some muted complaints about the laziness exhibited, in her view, by the father. I do not think much rises or falls on that.
Nothing was remarkable until in or about the month of April 2007 when the child T, who clearly on the evidence before me is a perhaps emotionally brittle child, made allegations or disclosures through the paternal grandmother, a Mrs Dean Senior, of which - if I might use a generalised word - alleges some form of either sexual or inappropriate misconduct towards her by the father. Thereafter, unfortunately, the matter became a cause celebre.
As has fallen from Foley of counsel for the applicant father it is perhaps unfortunate that the Department of Family Services - or whatever it was called at that time - became involved at a very early stage. I am not critical of anybody involving the Department of Family Services, that is what they are there for, but unfortunately they gave certain advice which precluded (the grandmother and her daughter N, who she informed and did the running) the mother from becoming involved at an early stage. It was not until some time after the initial allegation, about 31 March 2007, that the mother became involved.
I say in passing that I have had the opportunity of seeing both the parties in the witness-box and it is one of those very few cases in which the mother exhibited, I consider, a conciliatory attitude towards the father. Equally, I considered that save for a couple of rather peculiar attitudes of the father he evidenced a somewhat conciliatory attitude towards the mother in relation, of course, to the welfare of the children.
The mother, subsequent to the allegations coming to her notice, allowed the father to have unsupervised contact with the children, for Easter if my memory serves me correctly, but thereafter contact has been restricted to supervised contact initially by a person who is known as Dr N who appears to disappear off the face of the earth, and subsequently by a contact centre.
The father has complied with the orders, as I understand, religiously, and there has been little or no difficulty in his spending time with the children in accordance with the orders as varied.
I have already indicated it was unfortunate the Department of Family Services became involved because I believe that if the mother and the father would have been given the opportunity without the bureaucratic pressure of the Department of Family Services to discuss this matter in depth, if they would have been able to consider alternative methods of dealing with these allegations this matter would never have come to Court. It has been, in my opinion, a very expensive exercise for the parties.
This a very expensive exercise, and obviously of course money is expended upon the legal advisers in this case I would have thought could quite easily have been better used towards the material advancement of the children. However, the matter has come before me.
The allegations I do not wish to dignify by investigating them in depth other than to say that the mother was quite properly concerned about the allegations, as was the maternal grandmother, and the daughter N who gave the impression of being a very very strong-willed and determined young woman who had certain views and she was going to stick by them and if she was informed by people in authority to do certain things she was going to stick by that too as well. It may be her experience - I have been informed from the Bar table - of being a member of the public service may have engendered that attitude towards the bureaucracy. She is a very strong-willed young woman; I can make that quite clear.
The disclosures were made not only to the maternal grandmother, Mrs Dean Senior, but also to her school teacher - this is referred to in the documents put before me - and to the acting principal, if my memory serves me correctly. She has never at any time, notwithstanding at least two interviews by case officers of the Department of Family Services, made any disclosures to them. She has made disclosures to the mother and subsequently to the initial disclosures she has on almost frequent occasions mentioned the allegations about the father to the mother.
As I said, the mother would be damned if she did not make some definite stand about this and damned if she did. She has. The father has exhibited surprise, shock, and horror concerning these allegations, and as I have already said in argument, it is one of the rare cases of this type which appear unfortunately too frequently in this Court wherein there is an explanation or explanations put forward by the father as to why perhaps T - and I am only referring to T at this stage because she is the more squeaky wheel - why T has made the allegations. One he concedes - insofar as the urinating is concerned - that is the urinating in the bath, in the shower on occasions with both T and L that that did take place. He recognises that it is now inappropriate, notwithstanding it does not appear according to Ms J, a well-known social-worker who has had some 35 years' experience in this Court, indicated that L thought it might be a little bit cheeky and a bit naughty and he gave the impression that he quite enjoyed the grass being greener on the other side of the fence.
Insofar as the allegation of his interfering with the vaginal area of the child he has explained this by two references, one to the placing of crème upon the child whose vaginal area or genital area appeared to be red and she was complaining of itchiness, and secondly, when he endeavoured to assist her, as he thought, with hygiene in relation to the cleaning of that area. I say in passing - and I emphasise that I consider one of the most pertinent statements in this Court in this case has been set out in the report of Dr V who was asked to do a psychiatric assessment of the parents - Dr M did a psychiatric assessment of the children - I refer to page 10 of his report wherein he says:
"I agree with Ms [J] that this behaviour” –
the behaviour to which I have immediately herein before referred –
“is inappropriate in the circumstances and [the father] also acknowledges in hindsight that it was inappropriate."
I emphasise the following:
"Unfortunately many fathers who see their children occasionally forget that they are not their primary caregivers and engage in such behaviour. They fail to see what may be age-appropriate one time is inappropriate at a later point. Moreover they fail to see that what is age-appropriate in an intact family with a mother present is inappropriate without a mother present. Many such men are attempting to hold on to the intimacy of family life which is of necessity no longer present following the break-up."
I note that the father in this case has indicated great distress at the break-up of the relationship between himself and the mother. I am of the opinion that this is a very apposite comment by Dr V. I consider that in all of the circumstances that this apposite is more probably than not is the cause of his inappropriate conduct towards - I think it was inappropriate and he concedes at this stage it was inappropriate - conduct towards T.
He has, subsequent to these allegations being raised, taken part in a PPP course with Lifeline, and he indicates that he learnt certain things there and he has taken that on board and I am sure he has.
Insofar as L’s complaints are concerned L’s complaints are more directed towards, as I understand, two things: what could be suggested his father's addiction to marijuana and that he takes L around to various houses in an endeavour to purchase weed and places it in his pants in an endeavour to hide it, and secondly - there are three, I am sorry - his assaulting L with a wooden spoon - I am sure it had a smiley face on it - and thirdly, that he has on occasions called him a dickhead, being useless, and of no worth whatsoever.
I do not believe that the extent that L complains about this is correct. I have some doubts about marijuana: I note that there are some blood tests or urine tests attached to the affidavits, some of which are qualified in relation to dilution but others are not. The father has conceded that he has partaken of marijuana but not recently. I do not believe in this case that I would consider that the smoking of marijuana - if it takes place - would be a disentitling conduct towards the father in relation to spending time with his children.
The mother has conceded in the witness-box that the children do enjoy their father and that they have the right to see him and they have the right to maximise the relationship between themselves and their father, but as is quite proper she is concerned that the children should be safe, in particular T, as I said, who is the more squeaky wheel.
The evidence of Ms J to whom I have referred is set out in two family reports relative to this matter. There is a third family report in which she decides whether a proposed supervisor would be able to do it in a proper manner and I think it is relevant to the proceedings today, but she was of the view that the complaints of T may have some substance, that they should be taken seriously. Dr M was of a similar view.
I take them seriously, but I consider that they are admitted by the father, admitted as being inappropriate, but I do not think either: (a) they are evidence of sexual abuse per se, nor do I consider that there is an unacceptable risk of the father carrying out these actions upon the children now that he is aware of in particular what I have referred to in Dr V’s report, and also his attending on the Triple P. He must also be aware, as has fallen from Linklater-Steele for the independent children's lawyer, that if he does step out of line - if I put it that way - if he does step out of line he is gone and he will not see those children again, in particular T unless under very, very strict supervision which he, himself, recognises is not in the interests of either himself or in particular of the children.
I have made it quite clear on many times in this Court over a period of some 33 years that parents have no rights, they only have duties insofar as the children are concerned, and one of the most important duties is to allow a child to grow up loving their parents and not being afeared that their parents will inappropriately attack them, which of course is a very very cowardly thing too. As well, more so than anything else, it does not show the person who perpetrates such acts upon a child in any good light whatsoever. So it is not a threat to the father, it is a promise from me that if in fact anything like this happens again and it is proved he has had it - that is to use the vernacular - he has really had it and the children will be better off without him.
I have no hesitation however in finding that I am not satisfied that sexual abuse has been perpetrated upon either T or L, nor physical abuse upon L. I do not believe that there is an unacceptable risk that any of the allegations which have been made which have been conceded in greater particulars by the father will take place again. I emphasise Dr V’s report and I think it is very important that he reads it again; the old adage that two cannot live as cheaply as one is unfortunately very similar to that. The father of course being, as he considered, the primary caregiver for a considerable period perhaps has gone too far, but I am sure he is aware of it now and it will not happen again.
What are we going to do, though? The mother has conceded that there should be spending time with the father. She considers it for a period of up to six months or more, that the contact should - sorry, cannot use that, it is no longer in the lexicon of family law - that the spending time with should be supervised. It has been said by Foley of counsel why? It has been going on for a period of 12 to 18 months, that the spending time with has been supervised; what are we going to protect the child from? Why not cut the Gordian knot and get to it straightaway; there is much in what he says.
There is the concern, however, expressed by Dr M as well as Ms J that T is a little bit fragile. I do not think they use that word, but she is not assertive - she is not an assertive child and that is why Dr M did not, as I hoped she would have, recommended some form of counselling for the child in relation to bodily safety. She believes that she is not sufficiently assertive enough to use any of the protection devices which may be indicated to her.
Ms J also is of a similar view that T must be given the opportunity of starting to know that she will in fact spend time with her father without it being supervised. It must be gradually introduced to her - by gradually I do not suggest over a period of years - but I have endeavoured yesterday to indicate my interest in finding some person other than a contact centre who could supervise the children having time with their father on a beach or a playing field, or McDonalds without having the contact centre - whose job is extremely difficult - hovering over their shoulder. I have not received any assistance at this stage in relation to that, and consequently the order which I will be making will be subject to a person being found to do that onerous task by the independent children's lawyer.
I have mentioned Salvation Army or Dial an Angel. This would be for a period of about three months. I intend to order that the father - in accordance with orders sought by the applicant in (1), (2), (4), and (5) and I am now on to the difficult part, the part which the mother is concerned about, and quite properly so, too, and that is whether in fact it should be supervised for what period.
Obviously, I believe it should be supervised in some form or other. I would prefer it not to be at a contact centre. I think they do not promote a confident relationship between the parties. However, that is a matter for the parties. I will be ordering that the father spend time with the children once per fortnight on either a Saturday or a Sunday.