Delahunty and Delahunty

[2016] FamCA 828

FAMILY COURT OF AUSTRALIA

DELAHUNTY & DELAHUNTY [2016] FamCA 828

FAMILY LAW – CHILDREN – Where allegations of unacceptable risk – where alleged risk arises from a relative of the mother – assessment of risk if child returned to care of mother pending hearing.

APPLICANT: Mr Delahunty

RESPONDENT: Ms Delahunty

FILE NUMBER: SYC 4163 of 2016

DATE DELIVERED: 30 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 28 September 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Marsdens Law Group

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Phillips Family Law

Orders

IT IS ORDERED

1. That the Application in a Case filed by the father on 27 July 2016 be dismissed.

IT IS ORDERED UNTIL FURTHER ORDER

1. That Ms B be restrained from questioning the child C born on … 2010 (“the child”), or from discussing with the child any matter concerned with, or arising out of, the matters which are the subject of these proceedings, and that she be further restrained from having such discussions in the presence or hearing of the child.

2. That on the next occasion that the father will spend time with the child, that time is to be spent in the Brisbane area.

3. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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 Delahunty & Delahunty 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 SYDNEY

FILE NUMBER: SYC 4163 of 2016

Mr Delahunty

Applicant

And

Ms Delahunty

Respondent

REASONS FOR JUDGMENT

1. Mr Delahunty (“the father”) and Ms Delahunty (“the mother”) are the parents of C (“the child”) who was born in 2010 and is almost six years old. The child’s parents separated shortly before she was born. They entered into final parenting orders on 17 September 2012 which provided for the child to live with her mother in Brisbane.

2. The orders of 17 September 2012 included an undertaking by the mother that she would not leave the child in the unsupervised care of her uncle D.

3. That undertaking was included because of concerns about D’s sexualised behaviour in relation to children.

4. The mother swore an affidavit on 25 January 2012 in which she deposed:

   ...I confided in [the father] when we were planning to get married that my brother, [D], has been convicted of a sexual offence involving a child. He lives with my mother…and I do not allow the child to spend time there without my direct supervision. There is no possible way of her being harmed and [the father] knows that I would never endanger the child’s well-being.

5. The father was not aware of the extent of the offences committed by D until a subpoena was issue to the Queensland Police Service and the records were produced in the course of these proceedings.

6. Documents produced by Queensland Police Service indicate that on 9 March 2001, D was brought before the court on charges of attempted indecent treatment of children under 16 and possession of an objectionable computer game. No conviction was recorded and D was placed on probation for two years with the condition that he undertake such courses and counselling in relation to sexual problems as are considered appropriate.

7. In 2004, D was convicted on charges of attempted sodomy of a person under 12 years and indecent treatment of children under 16. He was sentenced to a term of imprisonment for 12 months to be served by way of an intensive correction order with conditions that he abide by any directions to attend medical psychiatric or psychological treatment and counselling and to attend the Community Sexual Offenders Program.

8. Upon release from jail, D was required to report his address to the officer in charge of police at Suburb E and thereafter to keep the police informed of his place of residence. He failed to do so.

9. In 2005, an application was made for revocation of the probation order imposed in 2004. The application was granted and D was resentenced on all charges. A conviction was recorded and a term of imprisonment for six months imposed, wholly suspended for two years.

10. In 2007, D was convicted of failing to comply with reporting conditions and sentenced to three months imprisonment.

11. Again in 2007, D was charged with a further two counts of failing to comply with reporting conditions. He was convicted and sentenced to one month, cumulative on the sentence of three months he was currently serving.

12. Also in 2007, D was convicted of unlawful stalking and sentenced to a term of imprisonment for 34 days, time being already spent. On release from custody he was placed on probation for three years with conditions that he undergo medical, psychiatric and psychological treatment.

13. In 2009, D was convicted of a breach of bail condition and fined.

14. In 2012, D was convicted of using a carriage service to make child pornography material available, possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service, possessing child exploitation material. He was sentenced to a term of imprisonment of two years with a non-parole period of six months.

15. In her affidavit sworn 22 July 2016, the mother deposed:

    I am unaware of the details of any offences committed by my brother, [D]. I understand that [D] has a history of looking at pornography involving children and that he has served time in jail in relation to those offences. Those offences occurred when [D] was 18. I was only 10 years of age at the time and [D] has not divulged to me the details of the offences since that time.

16. The mother was born in 1990. At the time of D’s first conviction, she was 10 years old. D was living in the family home at Suburb E, in Brisbane. At the time of the second conviction the mother was 14 years old. D’s address in the records of the proceedings remains the Suburb E address. When D was imprisoned for three months in 2007, he was still living at the Suburb E home. D was still living at the Suburb E home in 2012, when the mother was 22, when he was convicted and imprisoned for two years with a non-parole period of six months.

17. On behalf of the father, it was submitted that the mother must have known of the later convictions because D was in prison at a time when the mother was still living in the family home at Suburb E. The mother gives no explanation for her lack of knowledge of her brother’s convictions. No doubt that is an issue which will be relevant in the final determination of the parenting proceedings but it cannot be resolved here.

18. The mother and the child lived with the maternal grandmother, Ms F, after the child was born at her home at Suburb E. After a time, they moved into their own rented accommodation. At the end of 2014, the mother and the child moved back to live with Ms F and remained there throughout 2015.

19. During the period when the mother and the child lived with Ms F in 2014 and 2015, the mother’s brother, D, also lived in the home.

20. Both the mother and Ms F swore affidavits in these proceedings in which they deposed that the child had never been left unsupervised with D.

21. The mother deposed:

    I provided an Undertaking in the final parenting Orders to the effect that I would not leave the child unsupervised in [D’s] care. In accordance with that Undertaking I have not allowed the child to spend unsupervised time with [D]. I have made my family fully aware of this Undertaking and I have at all times made necessary arrangements for the child to be cared for by someone other than [D] when I have been unable to personally care for the child.

22. The maternal grandmother, Ms F deposed that, during the time the mother and the child lived in her home, the child was never left alone with D. Ms F deposed that D was aware of the terms of the undertaking which had been given by the mother and she, D and the mother ensured the undertaking was complied with.

23. The father, who is a public servant, lives in Sydney, with his partner Ms B. The child has spent very little time in the care of her father.

24. The mother, in her affidavit sworn 22 July 2016, details the time the child has spent with her father. She saw him during the day between 18 December 2012 and 21 December 2012. She did not then see him until July 2013. They spent day only time together between 19 July 2013 and 21 July 2013. The father attended the child’s ballet recital in December 2013 and spent time with her during the day on 18 and 19 January 2014.

25. In November 2014 the child began spending overnights with her father for one night at a time. In 2015 the father was deployed overseas. He spent time with the child in January and returned to Australia in August 2015. He did not spend time with the child until January 2016 when she commenced spending short blocks of time with him in January, February and April.

26. It was agreed between the parents that the child would spend time with her father from 25 June 2016 to 4 July 2016. That time was then extended so that the child was due to return to her mother on 9 July 2016. The visit in June 2016 was the child’s fourth period of block time with her father.

27. The father deposed that on 27 June 2016, when he and Ms B were bathing the child, he noticed that there was a bruise on her pubic bone. When the child was asked how she got the bruise, the child said “It was [D], he hurt me and he pinches me.” The father called the family doctor who suggested that the child be taken to hospital. In the meantime, Ms B had another conversation with the child and said to the father “I’ve just had another conversation with [C] (sic), I said to her ‘[C] (sic) what you told us was that you have a bruise and that [D] did it when he was playing with you’ and I asked her if this was correct and she said yes”.

28. Ms B’s version of the event is more expansive. She deposed that, when the child was being bathed on 27 June 2016, she noticed a bruise on her pubic bone. The following conversation ensued:

    Me:[the child] do you know that you have a bruise on your vagina?

    [The child]:Yes

    Me:Is it sore?

    [The child]:No

    Me:[the child], do you know how you got that?

    [The child]:No

    Me:You know you can trust us, you can tell us what happened.

    [The child]:It was [D], he hurt me and he pinches me.

29. I note that it was Ms B, not the child, who used the term “vagina” which is a term that, according to the mother, the child did not know.

30. Ms B made a statement to police on 30 June 2016. In that statement she said that after the child was dressed, following her bath on 27 June 2016, Ms B said to the child “So, [the child], what you have told me in the bath is that you have a bruise on your vagina and it came from [D] pinching you when you were playing, is that right, the child?” the child replied “Yes”.

31. The father and Ms B took the child to the Children’s Hospital at Suburb G where she was examined by a doctor. On arriving at the hospital, the father told the doctor “I noticed my daughter, [C], has a bruise on her pubic bone, I suspect that it’s as a result of touching by her uncle, we’re very concerned and we’d like you to have a look at it please.”

32. The discharge summary notes that the child presented with a small bruise. The discharge summary notes the report of Ms B in the following terms:

    The following are quotes reported by [Ms B] about her interactions with the child prior to admission. I did not interview the child about the incident.

    At the time of noticing the bruise, [Ms B] asked questions of the child to determine the nature of the injury

    [Ms B]: ‘Who touches you there?’ [the child]: ‘My [D]’

    At other times:

    [C]: D did it

    [C]: D is naughty

    [C]: D hurts me

    [Ms B] reports that she asked how it happened and [the child] said they ‘were playing’, she then asked [the child] what she did next and [the child] stated she asked ‘him to stop’, but he ‘kept doing it’

    [Ms B] attempted questioning in regards to if mum was present, if [the child] and [D] were wearing clothes and how many times it happened but was unable to obtain an answer or [the child] was vague on details. The family received a video from Mum and [D] and upon seeing [D], the child stated ‘Oh no, not [D], he hurts me’

33. There is a disparity between the version of the conversation with the child to which Ms B deposed in her affidavit and the version she gave the doctor as noted.

34. The discharge summary noted that the child’s bruise was not specific for sexual assault but sexual assault could not be ruled out. There was no obvious sign of forced penetration or restraint and the child’s labia were observed to be normal.

35. In the car on the way home, Ms B had another conversation with the child. The father listened. The father deposed that the conversation occurred as follows:

    [Ms B]: ‘[C], you’re a brave little girl, you’re a good girl and you can trust us, is there anything else that we should know?

    [C]: ‘Sometimes [D] gets me to pinch him’.

    [Ms B]: ‘Where does he get you to pinch him, on the arm, head, chest, leg, crutch, on his penis?’

    [C]: (Giggled) ‘Yes’.

    [Ms B]: ‘What you’re telling me is that [D] gets you to pinch him in different places including his penis?’

    [C]: ‘Yes’.

36. In her statement made to the police on 30 June 2016, Ms B stated that, after the conversation referred above, she said to the child “What you have told me is that D gets you to pinch him as well when you play and you have had to pinch him on his penis?” the child said “Yes”.

37. The inappropriate nature of that conversation will, no doubt, be explored in the course of the final hearing.

38. On the following day Ms B had yet another conversation with the child. She reported to the father:

    I had another conversation with [the child] and I said to her ‘Does your mummy know that you have this bruise?’ and she said to me that she doesn’t know. She also said to me that when mummy was in hospital, [D] looked after her and they drove to pick mummy up and they went to McDonalds and that she told her mummy that [D] had hurt her, but then she said to me ‘[D] said I shouldn’t have told my mummy’.

39. Ms B made a report to the Department of Family and Community Services.

40. Ms B deposed that on 29 June 2016, the child said to her “… what do I do if [D] hurts me again?” And Ms B said to the child “He is never going to hurt you again the child. He should never have hurt you.”

41. On 30 June 2016, the child was interviewed by, I assume, the Joint Investigation Response Team (“JIRT”). The record of the interview was in evidence. Leading questions were asked and propositions put to the child. She was vague in her answers. The effect, on the reliability of the interview, of the leading propositions put to her in the preceding days by Ms B cannot be evaluated. It is sufficient to say that, contrary to the submissions made on behalf of the father, I do not accept that the child made a disclosure of sexual abuse in that interview.

42. Ms B deposed that on 1 July 2016, the child said to her “[D] would ask me to come over and tell me that he has a present and then he would pinch me on the vagina.”

43. On 4 July 2016, the father filed an Initiating Application seeking an order that the child live with him and spend time with the mother as agreed. By way of interim order the father sought an order that the child live with him and spend time with the mother, either in his presence, or at a contact centre from 9am to 5pm on one day each calendar month, presumably in Sydney.

44. The father did not tell the mother of his concerns about the child before he filed the application.

45. On 5 July 2016, Ms B deposed that the child was lying in bed with her father and Ms B and the child said “Daddy, lie on top of me.” The father told the child that was not a good idea and the child said “[D] lies on top of me lots. He did this before the time he pinched my vagina and when I told him to get off me he did.”

46. Ms B deposed that on 5 July 2016, she was helping the child get dressed. She observed the child adopt a pose that Ms B interpreted to be suggestive and to pout her lips. The child said “Do you like this? This is how [D] has asked me to stand for him.”

47. Ms B deposed that on 6 July 2016, she said to the child “[C], today we’re going to let your mummy know about what [D] has done to you, is this okay? I know you must be very frightened when [D] hurt you and we know that all of this is really difficult for you right now.” the child then replied “When [D] pinched me on the vagina, he said ‘[C] open your underwear.’” Ms B deposed that when the child said that she demonstrated by pulling her underwear away from her skin.

48. Ms B deposed that on two or three occasions the child has said to her “[D] tickles me lots. He tickles me on the bum. [D] is much more playful than my other uncle [J].”

49. On 7 July 2016, Ms B telephoned the mother and said to her words to the effect of:

    Hi [the mother] this is [Ms B] do you have time to chat I have t (sic) talk to you about something important. It is not going to be a pleasant conversation. I need to let you know that the child let us know that [D] has sexually abused her, we found a bruise on her vagina when we were giving her a bath. I saw the bruise and I had to report this as I am a teacher.

    Ms B deposed that the mother replied:

    No …, [D] would never hurt the child, I don’t believe you, I don’t believe that [D] would hurt the child, put her on the phone now I have full custody of her.

    Ms B deposed that the mother insisted that the child be returned to her care.

50. The mother, by way of response to the father’s application, sought an order for the child to be returned to her care, the transfer of the proceedings to the Federal Circuit Court in Brisbane and for the preparation of a report for the purpose of the proceedings. The mother offered an undertaking to the Court, that she would not allow the child to come into contact with her brother D and would not discuss the proceedings with the child.

51. The mother deposed that the child often played on an upright pole in the living room of the house and that the child liked to run at the pole, wrap her legs around it, and slide down the pole.

52. Both the mother and Ms F deposed that the child played rough and tumble games with her uncle D which involved pinching and tickling.

53. The matter came before Senior Registrar Campbell for hearing on 26 July 2016, Senior Registrar Campbell made orders for the child to be returned to the mother that day. He restrained all parties from discussing the proceedings with the child or in her hearing and transferred the proceedings to the Brisbane Registry of the Family Court of Australia. The Senior Registrar noted the undertakings of the mother in relation to contact between the child and her father.

54. Further the Senior Registrar ordered:

    That pursuant to section 68B(1)(a) of the Family Law Act 1975 (Cth) [D] born … be injuncted and restrained and is hereby injuncted and restrained, from approaching or entering within 200 metres of the child [C] (“the child”) born … 2010 and granted leave to [D] to approach the Court to relist the matter if he wished to amend or discharge that order.

55. The father, on 27 July 2016, filed an application seeking to review the orders of the Senior Registrar. The matter therefore comes before the Court for hearing de novo, in circumstances where the child has been returned to live with her mother in Brisbane and has been there since 26 July 2016.

1. The child was interviewed by the Department of Child Safety in Queensland at her school. She told the interviewers that she had “Got Uncle [D] in trouble, for tickling her” and was laughing while she said this. The records produced by Queensland Police Service note that the child was happy and willing to speak to police but kept saying that she could not remember anything. The child said she had not seen or spoken with her uncle D in over three weeks. When asked specifically how she had been injured, the child told the interviewer that the bruise had been caused by the pole at home.

2. The matter to be determined is where the child should live between the present time and the final determination of the proceedings.

3. The father’s position is that the child should live with him and have contact with her mother in Sydney and for half of all school holiday periods in Brisbane.

4. The mother’s position is that the child should remain with her and that the undertakings and orders by way of injunction in relation to D should remain in place.

5. It was conceded in the father’s case that the only issue for the Court to determine is whether the child is placed at an unacceptable risk if she is returned to her mother. If the Court determined that there was no unacceptable risk, then she should live with the mother pending the determination of the parenting proceedings.

6. It is not clear from the submissions made on behalf of the father how the child will be placed at unacceptable risk if she remains in the care of her mother.

7. The father does not allege that the mother was complicit in any inappropriate behaviour by D towards the child.

8. The father does not allege that the mother had any knowledge of inappropriate behaviour by D towards the child.

9. The height of the father’s case is that the mother was not sufficiently protective of the child.

10. What happened between the child and D is not known. It will probably never be known. What is certain, however, is that the mother knows, in the starkest possible terms, that she risks losing the child if the child has any contact from this time forward with D. I do not accept that the mother is either foolish or reckless.

11. The need to protect the child is the primary consideration but I do not accept that the mother will fail to be vigilant and protect the child.

12. It is necessary to consider the risks posed to the child of remaining in the care of her mother, in the circumstances outlined, with the risk of psychological harm to the child if she is removed from her mother’s care.

13. The child’s parents separated before she was born. The child has lived with her mother for the whole of her life. She has had limited time with her father.

14. The mother is the child’s primary carer and is assumed to be her primary attachment figure.

15. The child also has a close relationship with her maternal grandmother, Ms F.

16. Until June 2016, the child had a close relationship with her uncle D. Because of the events that occurred in June, and the order made by the Court, the child is no longer permitted to see D. The mother deposed that the child is confused and does not understand why she can no longer see her uncle and misses him.

17. The removal of the child from the care of her mother would be to remove her from all that is familiar to her. She attended kindergarten in Brisbane in 2015. In 2016, she started school in Brisbane in the same class as many of her friends from kindergarten.

18. The mother does not engage in employment and is the child’s full-time carer. She takes the child to school each day and picks her up.

19. The risk that the child will be at risk in the care of her mother must be considered against the certainty that removing the child from her mother’s care would cause her to suffer grief and psychological harm.

20. There are risks to the child in her father’s household. The primary risk is the psychological harm caused by separation from her primary carer. A lesser but real risk is the risk that the child will be exposed to further inappropriate questioning from the father’s partner.  

21. The best arrangement for the child is that she remain in the care of her mother until the parenting proceedings are finally determined, with the undertakings and restraining orders made, remaining in place.

CHANGE OF VENUE

1. The father seeks to review the order of the Senior Registrar transferring the proceedings to Brisbane in accordance with the application of the mother.

2. The factors to be considered in an application to transfer proceedings are set out in Rule 11.18 as follows:

   11.18(1)  In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:

   (a) the public interest; 

   (b) whether the case, if transferred or removed, is likely to be dealt with:

   (i) at less cost to the parties;

   (ii) at more convenience to the parties; or

   (iii) earlier; 

   (c) the availability of a judicial officer specialising in the type of case to which the application relates; 

   (d) the availability of particular procedures appropriate to the case; 

   (e) the financial value of the claim; 

   (f) the complexity of the facts, legal issues, remedies and procedures involved; 

   (g) the adequacy of the available facilities, having regard to any disability of a party or witness; and 

   (h) the wishes of the parties.

3. The father brought no evidence to demonstrate that the matter would be dealt with at less cost or earlier if it remained in the Sydney Registry.

4. If the mother and the child are living in Brisbane, then it is more convenient to the mother that the proceedings are conducted in Brisbane. In that event, the single expert or Family Consultant should be a Brisbane practitioner, and more easily able to attend the Brisbane Registry for cross-examination. More importantly, the child will be easily able to attend for interviews in Brisbane. Ms F will be a necessary witness in the mother’s case. D may be a witness. They are both in Brisbane.

5. Brisbane is less convenient to the father.

6. None of the remaining factors in Rule 11.18 have any relevance.

7. The balance of convenience lies in the matter being transferred to Brisbane.

THE ORDERS SOUGHT BY THE MOTHER

1. In her affidavit sworn 1 September 2016, the mother deposed that the child has been secretive since she returned to her care. The child has said that “Daddy told me not to say anything” and “[Ms B] told me to ask you for my privacy”. The mother sought advice about counselling for the child but her doctor advised against it.

2. The child has told her mother that her father told her that she was not coming back to Brisbane and that her father said that D will go to jail.

3. The mother deposed that the child has woken up screaming that she did not want to go back to Sydney. For a few weeks after she returned to her mother’s care, the child refused to speak to her father on the telephone although that contact has resumed.

4. The mother sought two orders in addition to those made by the Senior Registrar.

5. Firstly, she sought an order that Ms B not be permitted to spend unsupervised time with the child. The purpose of that order is to ensure that the child is not inappropriately questioned by Ms B. The father was present during two of the occasions when the child was questioned by Ms B. He did not intervene to stop her. Rather he deposed to the conversations in his affidavit. Supervision by the father will not have the effect that the application seeks.

6. The order of the Senior Registrar enjoins the father but not Ms B as she is not a party.

7. Ms B, although not a party to the proceedings, was present in Court when the matter was heard. The solicitor for the father told the Court that Ms B offered an undertaking. She was present during discussions with the legal representatives and the Court about the appropriateness of imposing an injunction. I am satisfied that she is aware of the mother’s application and the intention to make an order by way of injunction restraining her from questioning the child. It is appropriate to make the order enjoining Ms B for the child’s protection.

8. The second application of the mother is that, on her next occasion of time with the father, the child not be removed from the Brisbane area.

9. The mother’s evidence about the child’s behaviour since her return from Sydney is untested. However, the behaviour which she described, if it occurred, raises concerns about the child if she were to return to Sydney in the next school holidays.

10. For only the next holiday period that the child will spend with her father, it would be preferable that she not be removed from the Brisbane area for the four nights she will spend in his care. Lest there be a dispute about what geographical constraint is imposed, I would envisage that the Brisbane area includes Region H.

CONCLUSION 

1. The Application in a Case filed by the father on 27 July 2016 will be dismissed. The orders of the Senior Registrar made 26 July 2016 will remain in effect. Additional orders will be made in accordance with the mother’s application.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 30 September 2016.

Associate: 

Date:  30/9/2016