Dent and Little (No 2)

[2015] FamCA 786

FAMILY COURT OF AUSTRALIA

DENT & LITTLE (NO 2) [2015] FamCA 786

FAMILY LAW – PRACTICE AND PROCEDURE – Interim – Where the father’s counsel makes an application to cross-examine the mother in interim parenting proceedings – Where fresh disclosures of sexual abuse were made to police, a year after the alleged event and just prior to the commencement of the trial – Where the trial was adjourned pending police investigation – Where the mother deposes to having no prior knowledge of such allegation or disclosure until after the police notified her – Where these circumstances are exceptional – Application granted.

Family Law Act 1975 (Cth)

APPLICANT: Mr Dent

RESPONDENT: Ms Little

INDEPENDENT CHILDREN’S LAWYER: Tracy-Lynne Geysen

FILE NUMBER: BRC 8523 of 2008

DATE DELIVERED: 21 July 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 21 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Meara of Counsel

SOLICITOR FOR THE APPLICANT: Hodgson Lawyers

COUNSEL FOR THE RESPONDENT: Ms Umashev of Counsel

SOLICITOR FOR THE RESPONDENT: H & N Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Middleton of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Couper Geysen Family & Animal Law

Orders

1. Application granted.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dent & Little (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8523 of 2008

Mr Dent

Applicant

And

Ms Little

Respondent

And

Independent Children's Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. For decision this very moment is an application made by counsel who appears for the father in these contested parenting proceedings to cross-examine the mother. The application for cross-examination is opposed by counsel who appears for the mother.

2. This immediate application arises in a long contested parenting dispute between the parents of B, who was born in 2008. The matter has been before the Courts for several years. Indeed, in 2013 the matter came before me for a trial and on the first day of the trial the mother, who was unrepresented, was unable to go on with the appearance on her own behalf and was attended to in the sick bay of the Court by paramedics who were called to treat her for what was a described as a panic attack.

3. Without going into too much detail about the allegations and counter-allegations made by each against the other in respect of their respective parenting capacities, I am aware that the matter was in the Magellan list at that time and was designated a Magellan trial on the basis of allegations made by the mother against the father that he had sexually abused the child. Such allegation was that he had done so in a toilet at a McDonalds Family Restaurant on an occasion when he and the child were there at the restaurant and at which the mother was also present and that he had taken the child to the toilet and it was during some time in the toilet that it was alleged he abused the child.

4. The trial that was listed before me back then ultimately resolved with the parties asking me to make orders that they agreed to that regulated the parenting arrangements in respect of the child. Those orders were made on 26 September 2013 and included orders that the parents have equal shared parental responsibility for the child; the child live with the mother; and spend regular overnight periods of time with the father in block periods that moved quickly to a period each alternate week from after school Friday to before school on the following Tuesday, and in the other week from after school Tuesday to before school the next day, with such block time simply to continue through the school holidays without the school holidays specifically being dealt with by way of any other type of division.

5. Those orders provided for transitions of care to take place at the child’s school or if they were to take place on a non-school day they were to take place at the McDonalds Family Restaurant situated in Suburb L. There was no requirement for supervision of the child’s time with the father, and that was after the mother had made allegations that the child had been sexually abused by the father.

6. There were notations included at the foot of the order that the mother might attend upon a psychologist on a mental health plan. That came about because there was an order that the mother attend upon a psychologist and for the Independent Children's Lawyer to be involved. Indeed, the mother was already attending upon a psychologist and orders authorised her psychologist to provide a report to the Independent Children's Lawyer about that counselling and for the Independent Children's Lawyer to have the discretion to require the mother to attend upon a different psychologist if she considered it appropriate.

7. There was also a notation that said if the matter was required to be relisted as a result of non-compliance by the mother with the orders without reasonable grounds, then the Independent Children's Lawyer would seek orders requiring a change of residence of the child. A further notation said these orders apply and are in force until otherwise discharged or amended, which context is somewhat relevant.

8. As I understand it, the parenting arrangements between the parents with respect to the said child continued pursuant to those orders for some time. The fact that the orders were actually only interim orders lead to the matter coming back before the Court and in December last year the matter was before Principal Registrar Filippello who, after a contested hearing, made some further orders.

9. At that stage a fresh allegation of sexual abuse of the child by the father had been raised in evidence by the mother. Without having the benefit of any reasons for judgment of Principal Registrar Filippello I note that after the contested hearing, her interim orders included that the father’s time with the child recommence in accordance with my orders previously referred to; that the father have some make-up time with the child for time that he obviously missed following unilateral termination by the mother arising from the fresh allegations. There was a notation at the foot of those orders that without admission the time spent by the father with the child was to be in the presence of the maternal grandmother or the paternal grandfather.

10. The matter then proceeded towards its final hearing before me and I had a pre-trial mention of the matter in early June at which I was told the matter was ready for trial. I made directions in respect of the filing of further affidavit material by each of the parties. The matter was listed for a trial over three days commencing yesterday at 10.00 am on Monday, 20 July 2015. Just over the weekend before, I was notified by my Associate that some information had been received by the Court by way of a letter signed by all the parties suggesting that there might be a difficulty. In fact, I was told there had been some agreement reached that the matter could not proceed.

11. When I called the matter at 10.00 am yesterday morning, it quickly became clear that things were not as cut and dried as that. Indeed, the mother made an application for the matter to be adjourned, which was at that stage opposed by the father but apparently supported by the Independent Children's Lawyer.

12. Affidavits of the mother and her solicitor were filed by leave in which evidence was deposed to by each of them that the subject child, the child, had been taken to an interview with police officers of the Child Protection and Investigation Unit (“CPIU”) at the Suburb M Police Station in connection with their investigation of an allegation by the mother that the father had breached a family violence order. It was alleged he had attended at the school that the said child the child and her sister, F (who is not the father’s child) attend and had made contact with F and made threats to her and the mother’s physical safety, which contact and threats were said to have been witnessed by the child.

13. As I understand it, it was alleged that this occurred sometime in a period of weeks prior to the first week or two of July 2015. The evidence went on to describe the child being interviewed by police officers in what was referred to as a 93A interview and the mother having been informed afterwards that the child, the child, had made disclosures that her father had sexually abused her and that such sexual abuse was said to have occurred in the open, beside his car in a car park situated in or around Woolloongabba in the vicinity of the place at which Ms C, the social worker who had been engaged by the Independent Children's Lawyer to prepare reports in this case, conducted her practice and had seen the parties for the preparation of the latest report filed by the Independent Children's Lawyer in this case.

14. It is not a matter of dispute that the last time the parties saw Ms C was in or around July 2014, which is, as can be clearly understood, about a year prior to the interview with police officers at which the child is said to have disclosed to the police officers the sexual abuse that is alleged to have occurred in that car park. The evidence also went on to say that the mother had been informed by the investigating police officer that the father is going to be charged with a criminal offence arising from the child’s disclosure. After reading that evidence and hearing from the parties, I determined that it was appropriate to attempt to have the two police officers who were involved in the interview of the child, or who were said to have been involved in the interview of the child, contacted and if they were ready, willing and able to do so, to give evidence in the proceedings by way of telephone, if necessary.

15. After some adjournment, that was able to be facilitated and achieved and both of the police officers who took part in the interview were able to give oral evidence via telephone to the Court. Each of them was able to be cross-examined by each of the barristers who appear for the three parties in this particular case. Their names were Constable E and Constable G. Both of them hold the rank of Plain Clothes Constables attached to the Child Protection Investigation Unit at N Town, based at the Suburb M Police Station. Their designated ranking reflecting that neither of them has yet passed their detective examination and qualification, but each has been working in the capacity of plain clothes Police Constable investigating child protection issues for a couple of years, as I understood their evidence.

16. In summary, their evidence was that the child, F, the subject child’s sister, was brought to the police by her mother for an interview by police in connection with an alleged breach of a family violence order on or around the date of the first week of July 2015 and that she told the police that her sister might very well have witnessed or been present on an occasion when the father attended at their school. Arising out of that information, the police informed the girl’s mother that they would like to interview the child, the child. One can only assume that was in connection with the suggestion she might have witnessed what was alleged to be a breach of the family violence order.

17. Apparently she was unable to be interviewed at that time for a reason not known to me and was brought to the station around about a week later for an interview. She was interviewed by the two police officers, Constable E taking the lead, he being the investigative officer in charge of this matter and Constable G simply sitting in with him to be the observing officer. It seems that she might very well be his “partner”, as police officers who work in tandem are often described as each other’s partner.

18. The evidence is that after the initial fairly standard, innocuous rapport building questions that police in the CPIU 93A interview context are trained to ask children at the start of such interviews, the child was then asked did she know why she was there to talk to them or why she had come to the police station to talk to them. In response, the child immediately made a disclosure that her father had touched her private parts and then gave the information about it being at Ms C’s, which led to the female police officer taking over the interview and getting further information from the child, including the drawing of a map which the police officers said was surprising in its detail as to the location and nature of the car park where the alleged sexual abuse is said to have occurred. The evidence of Constable E was that he told the mother that the child had made a sexual abuse disclosure and, to him, she appeared to be surprised by it and shocked and upset.

19. Constable E informed the Court in his evidence that it is his desire to interview the father and his intention to do so if the father is willing to participate in a record of interview with him. He was hoping to do that in this period of days during which this trial is set. His plans had been somewhat thwarted by an urgent requirement to attend in New South Wales in respect of an extradition matter, but that he was hoping to still do that later this week. He also said in evidence that he had indeed informed the mother that it was likely or highly likely (or words to that effect), that the father could be charged with an offence following his investigation into this matter.

20. Constable E told the Court that he would be seeking statements from other people such as Ms C. He told the Court that he had a witness statement already signed, declared or sworn by the mother setting out what could be used by the police as evidence in proceedings against the father. He said that he hoped that the matter could be concluded at least one way or the other, that is by way of either determination not to proceed any further or a charge being laid against the father, within a couple of months.

21. After hearing that evidence counsel for the father quite appropriately, albeit with some degree of disappointment conveyed on behalf of his client’s position, agreed that these proceedings would need to be adjourned until more clarity could be obtained as to where the matter is in respect to those police investigations.

22. The parties then asked for some time and ultimately presented to the Court a draft of terms that they asked the Court to make as orders regulating and setting out the parenting arrangements that are to take place in the meantime. Interestingly, they included an increase in respect of the child’s time with the father from what it currently is in the orders previously described that is, from Friday afternoon to Tuesday morning and overnight in the other week for one night, to an equal shared care arrangement. I say that was surprising because it was in the context of an adjournment being required because of an allegation of sexual abuse made against the father. The orders provided in the draft of the terms that the Court was being asked to make provided that the father’s time with the child including all of the overnight time that would be provided for under the order, be supervised by his parents, the paternal grandparents of the child.

23. I read them. Discussion was had with the parties at the bar table about them and I was assured by counsel for the mother that the mother had given consideration to the terms of those orders, particularly in respect of the Court’s obligations to be satisfied about making orders that do not pose any unacceptable risk to the child contained within s 60CG of the Family Law Act 1975 (Cth). I pointed out to counsel for the mother that by asking the Court to make such orders the mother was effectively conceding that in her view there was no unacceptable risk presented by the orders.

24. Having regard to the history of the matter and still being somewhat concerned, I asked if the Court could be assured that in agreeing to ask the Court to make such orders the mother did not feel under any pressure from the Court and from her legal representatives to enter into such orders. I called on the mother to answer those questions directly so that her answers would be recorded on the Court record and in response to my first question as to whether she was asking the Court to make those orders without feeling under pressure from the Court, she told the Court that, in fact, she did feel under pressure from the Court to agree to those orders.

25. Having heard that, I determined I would not make the orders in those circumstances and adjourned the matter for further consideration in respect of interim orders that had to be made at 10.00 am this morning. I also directed that the mother swear and file an affidavit by 10.00 am this morning in respect of her knowledge of the fresh disclosure made by the child.

26. Such an affidavit was sworn by the mother and filed by leave this morning. Relevantly, the mother deposes in that affidavit to having learned for the first time about this allegation of the child that the father sexually abused her in the car park near Ms C’s only after the police interview that took place on the evening of 9 July 2015. Relevantly, the mother also said that whilst she had a conversation with the child as she was walking back to the car, it was nothing more than the child telling her she had told the truth to the police and the mother reassuring her that she should always tell the truth and that her mother was proud of her for telling the truth.

27. The mother says that she simply assumed the child was talking about the allegations of having been sexually abused by the father that the police had informed her of following that interview, but that she did not discuss it any further at all with the child. She goes on to depose in the affidavit to the fact that she had been asked whether she believes the child’s allegations that she was sexually assaulted and follows that up by saying “the police told me about the allegations the child made on 9 July”, and she says “I believed these allegations were true”.

28. The rest of her affidavit deposes to evidence about her concerns about the supervision of the child’s time with the father by the paternal grandparents. In essence she says she is not satisfied or comfortable with the grandparents supervising overnight time and she sets out evidence as to the basis of her concerns. I just have to digress to say, with respect to what I have just said, there is nothing in the page and a half of her deposed concerns about the supervisors that says anything about specifically being troubled by their supervision of overnight time as opposed to their supervision of day time. She simply talks about her concerns about them not being adequate or appropriate supervisors. I refer specifically to paragraphs 12 through to paragraph 21 of that affidavit.

29. After I read that affidavit I was informed by counsel for the mother that the mother maintains her opposition to the order that was proposed to be made yesterday and effectively seeks a variation to the existing orders being those that I made in September 2013 by consent of the parties, to the extent that those orders provide for overnight time. She seeks that they be varied such that the child only goes to spend time with the father during the day from 9.00 am until 7.00 pm.

30. Specifically, when I asked about it, the mother’s position was made clear. She wants the father’s time with the child to be reduced from what that order provides for so that she only goes to him on alternate Fridays after school, returning to the mother at 7.00 pm that night, going back to the father at 9.00 am the next day and spending the day with him until 7.00 pm when she goes back to the mother; doing the same on the Sunday and then going to him on the Monday after school until 7.00 pm and then going back to the mother. She wants the same in the other week when the child was otherwise having overnight time. She now wants her to just spend the afternoon from after school on the Tuesday until 7.00 pm with the father.

1. I understood the mother’s position, although I will have to get clarification on it, was also that her advocacy of that position was conditioned upon an understanding that the supervisors, being the paternal grandparents, would still be supervising even that day time contact between the child and the father.

2. In the context of the father opposing that through his counsel and seeking to have the Court make interim orders pending final hearing in terms of those that were handed up to the Court yesterday, ie giving him equal time with the child subject to his parents supervising all of it, including overnight, the father opposes that and presses on with his application for the orders to be made in terms of those that were handed to the Court yesterday.

3. It is in this context that the father through his counsel seeks to cross-examine the mother, arguing that although it is an exception for parties to be cross-examined in interim proceedings, that the nature of this case is such that the exception ought to be applied, particularly given that we are talking about interim proceedings that arise in the course of a trial that has been adjourned, having regard to fresh allegations of sexual abuse that relate to a historical allegation of abuse. By that I mean that the fresh disclosure is made, just prior to trial, a year after the alleged event, in circumstances where the disclosures made to police in an interview for which the child was taken for some other purpose unrelated to the purpose that she disclosed, and in circumstances where the mother deposes to having no prior knowledge of such allegation or disclosure until after the police told her.

4. The mother’s counsel opposes leave being granted to cross-examine but in the circumstances, particularly having regard to the matters I have outlined, I am satisfied that the circumstances are exceptional and that the Court may very well be assisted by hearing evidence from the mother under cross-examination by counsel for the father and I intend to allow the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 21 July 2015.

Associate:  

Date: 23 September 2015