DENT & LITTLE

[2015] FamCA 591

FAMILY COURT OF AUSTRALIA

DENT & LITTLE [2015] FamCA 591

FAMILY LAW – CHILDREN – INTERIM – Where the matter was listed for a three day trial – Where the child made sexual abuse disclosures to police just prior to the commencement of the trial – Where there is an ongoing police investigation in relation to the child’s disclosures – Where the mother seeks an adjournment of the trial – trial adjourned and interim parenting orders made.

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: 24 July 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 20 and 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. Any previous parenting Order is discharged.

THAT UNTIL FURTHER ORDER

1. The father and the mother shall have equal shared parental responsibility for the child, B born … 2008 (“the child”).

2. Each parent shall have sole responsibility for decisions taken in the day to day care of the child whilst the child is in his or her respective care.

3. The child shall live with the mother.

4. The child shall spend time with the father as agreed between the mother and the father but in default of agreement as follows:

   (a)From immediately after school until 6:30 pm each alternate Friday commencing Friday, 24 July 2015;

   (b)From 8:30 am until 6:30 pm every Saturday commencing Saturday, 25 July 2015;

   (c)From 8:30 am until 6:30 pm each alternate Sunday commencing Sunday, 26 July 2015;

   (d)From immediately after school until 6:30 pm each alternate Monday commencing Monday, 27 July 2015;

   (e)From immediately after school until 6:30 pm each alternate Tuesday commencing Tuesday, 28 July 2015;

   (f)From immediately after school until 6:30 pm each alternate Wednesday commencing Wednesday, 29 July 2015;

   (g)From 8:30 am until 6:30 pm on Royal Queensland Show holiday, Wednesday, 12 August 2015;

   (h)To be clear, from 8:30 am until 6:30 pm on Father’s Day, Sunday, 6 September 2015;

   (i)From 8:30 am until 6:30 pm on each of the days, Monday to Friday, of the first week of the September/October Queensland School holidays with there to be no suspension of any of the preceding paragraphs of this Order during that time;

   (j)From 8:30 am until 6:30 pm on the Public Holiday, Monday, 5 October 2015.

5. Where the child’s time with the father is to commence immediately after school, the father and/or one or both of the paternal grandparents shall collect the child from school and otherwise the father shall not attend at the child’s school save for the purposes of meeting with a staff member of the school for an appointment arranged in advance.

6. Where the child’s time with the father is to commence on a day that is not a school day the child shall be collected by the father and/or one or both of the paternal grandparents from the mother at McDonalds Family Restaurant at Forest Lake.

7. The child is to be returned to the mother at the McDonalds Family Restaurant at Forest Lake at the conclusion of the time she spends with her father by the father and/or one or both of the paternal grandparents.

8. The child’s time with the father is to be supervised by one or both of the paternal grandparents.

9. The child shall communicate by telephone with the parent in whose care she is not at any particular time, as agreed between the parents.

10. Each of the parents is restrained from discussing any aspect of these proceedings, including any allegation of sexual abuse, with the child or with any other person in the presence or within the hearing of the child and each parent shall use their best endeavours to ensure that no other person, save with the authority and consent of the Independent Children’s Lawyer first obtained, discusses any aspect of these proceedings with the child or with any other person in the presence or within the hearing of the child.

11. Neither parent shall take the child to be interviewed by any person, including a Police officer, officers of the Department of Communities, Child Safety and Disability Services or to be medically examined in respect of alleged sexual abuse without the authority and consent of the Independent Children’s Lawyer first obtained or an Order of this Court. 

12. Neither party shall physically discipline or use any physical force on the child and each shall use all of their best endeavours to ensure that no other person does either.

13. The mother shall present the child as directed by the Independent Children’s Lawyer at an appointment with Ms C as soon as that can be facilitated for Ms C to explain this parenting Order to the child and to speak with her about suitable protective behaviours.

14. The matter shall be listed for mention before his Honour Justice Forrest at 9:30 am on Thursday, 1 October 2015 for the parties to inform the Court as to the progress and/or outcome of the current police investigation into the complaint made by the child on 9 July 2015 and for the making of any further directions, including trial directions considered appropriate.

15. Each of the parties has liberty to seek to relist the matter for mention on a date earlier than Thursday, 1 October 2015 if that is considered appropriate having regard to the state of the said Police investigation.

16. Any Applications for Contravention or other interim orders shall be listed before his Honour Justice Forrest, unless his Honour is unavailable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dent & Little 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

REASONS FOR JUDGMENT

1. On 26 September 2013, I made an interim parenting Order in these proceedings between the parents of B born in 2008. Now I am asked to make another interim parenting Order for the child.

1. The interim parenting Order I made in 2013 provided for the child’s parents to have equal shared parental responsibility for the child, for her to live with her mother and to spend regular time with her father, staying with him from after school Friday until before school the following Tuesday, each alternate week, and from after school Tuesday to before school Wednesday in the other week. Those parts of the parenting Order were made with the consent of the mother, the father and the Independent Children’s Lawyer.

2. The Order was made after a trial of the competing applications was unable to properly commence, as the mother, who was unrepresented, asserted to the Court that she was unfit to proceed as she was having a “panic attack”. She retired to the sick bay of the Court and paramedics were called and attended upon her. She did not reappear in Court until the next day for the hearing of the application of the father for an interim parenting Order that the child live with him. The parenting Order that I refer to above was then made.

3. The issues that presented at that time included an allegation by the mother that the father had sexually abused the child in a toilet at a McDonalds Restaurant when she was spending time with him and the paternal grandfather at the restaurant and whilst the mother was also there. The allegation was supported by an alleged disclosure made by the child to the mother after the event. That allegation had been investigated by the Police who had interviewed the child. It had also been investigated by the State Government Department responsible for child protection.  It had been carefully considered by the family report writer. The Police had determined not to charge the father. The Department had determined the allegation to be unsubstantiated and the family report writer recommended a parenting regime in accordance with what was agreed to by the father, the mother and the Independent Children's Lawyer on 26 September 2013.

4. That same day, I ordered the matter be removed from the Magellan list of matters in this Registry as the mother, by agreeing to the Order that was made, was not asserting that the child was at an unacceptable risk of sexual abuse in the father’s unsupervised care.

5. In April 2014, Registrar Brooks made fresh trial directions so that the matter could be readied again for trial.

6. In early December 2014, the mother unilaterally stopped allowing the child to spend time with her father and brought an Application in a Case seeking to formalise that. In support of that application, she filed affidavits in which it was asserted that the child had again disclosed sexual abuse by the father. This time it was alleged that the child had disclosed to the woman who the mother regards as her own mother figure, Ms D, that the father “comes into [the child’s] bedroom at night and wakes [her] up and rubs cream on [her] private parts”.

7. The mother’s application was heard by Principal Registrar Filippello who ordered that the child’s time with the father recommence in accordance with the September 2013 parenting Order. The Principal Registrar also ordered make up time for the time the child had missed with her father and there was a notation on the Order that the time the child was to spend with the father, (which included overnight time) is to be in the presence of either the paternal grandfather or the paternal grandmother.

8. The mother did not seek to have that decision reviewed, as was her right. Any review would have been a fresh hearing on the merits by a Judge of this Court.

9. I have not read the Principal Registrar’s reasons but must assume that she was satisfied that such a parenting Order did not expose the child to an unacceptable risk of sexual abuse in the father’s care, even overnight, with the child’s grandparents present in the same house.

10. The matter was listed for a final trial before me again over three days from 15 - 17 July 2015. On 9 June 2015, I mentioned the matter to determine if it was ready for trial and made some directions for the filing of further affidavits and relisted the trial for 20 - 22 July 2015.

11. On Monday 20 July, 2015, when the matter was called on, I was informed that the mother sought to have the trial adjourned and that the father opposed that adjournment.

12. The mother obtained leave to file an affidavit by her, sworn on 16 July 2015, and an affidavit sworn by her solicitor on the same day. Her evidence was that she had taken the child to the Springfield Police Station on 9 July 2015 as requested by police officer, Constable E, from the Child Protection and Investigation Unit.  The child’s sister, F, had been interviewed by police about a complaint the mother said she had made to her about a month before that the father had approached her at her school and told her that he was going to kill her, the mother and her sister. F is a named Aggrieved Person on a State Temporary Domestic Violence Protection Order obtained by the mother in July last year. The mother took her to the Police Station to report the matter as an apparent breach of the Temporary Order.  F had been interviewed by Police and it was asserted that the child had witnessed the father’s approach and threat at the school. The police wanted to ask the child some questions about this.

13. After the child was interviewed by police officers, the mother says, the police officers told her that the child had disclosed sexual abuse by her father to them during that interview and that a criminal investigation would now commence. The mother says, the police officers told her that she did not have to send the child to spend time with the father pursuant to the existing parenting Order and that they would “override the family court orders”.

14. The mother says that the police told her that the child had disclosed that sexual abuse had happened outside “[Ms C’s] office”. Ms C is the family report writer who has prepared several reports in this matter over the years. The mother says the police told her that the child had disclosed that this had happened whilst she was with her father during the time her mother was with the family report writer. The mother says the police told her the child had drawn a picture for the police of the carpark where she said the abuse happened and that the police had looked for carparks in the vicinity and had said that the picture the child had drawn was almost an exact picture of “the carpark”. The mother said the police told her that they would refer the matter to the Department and to “SupportLink”.

15. The mother says that she has spoken with the police officer, Constable E, a number of times since the child’s interview and he has told her that he is going to get statements from witnesses before inviting the father in for an interview and that it was most likely that “charges would be laid”.

1. The mother’s solicitor says in his affidavit that he spoke to the police officer handling the investigation, Constable E, who had told him that he was waiting on statements from the family doctor and another family member to whom the child had made disclosures and that he intended to interview the father after obtaining these statements. The solicitor says he was told by the police officer that charges were likely to be laid.

2. Counsel for the mother submitted that these fresh matters justified an adjournment of the trial pending conclusion of that police investigation.

3. I determined to hear evidence from the police officers involved, if that was possible. The Independent Children's Lawyer and her counsel were able to locate the two police officers and they were contacted. They both gave evidence by telephone and were cross-examined by the three barristers appearing in the case.

4. Plain Clothes Constable E told the Court that he was the investigating police officer in respect of a complaint that the child was sexually abused by her father. He had interviewed the child’s sister F about the complaint that the father had approached her at school and threatened her and had told the mother after that interview that he wanted to interview the child as the child was said to be “an eyewitness” in relation to that incident.

5. B was interviewed about a week after her sister F in a video recorded interview. Constable E said that he had asked Plain Clothes Constable G to sit in on the interview with him and that he had started to conduct the interview. He said that he had commenced with all the usual preliminary rapport building process and that after he asked the child what she was there at the Police Station to speak with the police about she had said straight away that her father had touched her inappropriately. He said that the child looked at Constable G who then began asking questions of the child which the child seemed quite comfortable and “forthcoming” in answering. 

6. He said the child had said that her father had touched her private parts whilst standing outside a car in a carpark on a day that she was seeing Ms C. He said she had said after she saw Ms C she went with her father to a carpark where he had put his hand down her pants and started to rub her private parts.

7. He said that she drew a picture of the carpark in Constable G’s notebook and that later he and Constable G searched for and found, on Google Earth, a carpark in Woolloongabba, near to the office out of which Ms C conducted interviews for her family report on 29 July 2014. He said that the carpark they found was very nearly 100 per cent like the one the child had drawn and described.

8. Constable E said that when he told the mother of the disclosure after the interview she appeared shocked and upset and said “oh my God” and started crying. 

9. He said that he will have to conduct a full investigation into the complaint, including offering the father an opportunity to participate in a recorded interview. He said that he might obtain statements from Ms C and Ms D.  He said he had already obtained a statement from the mother.  He said that he would be getting in touch with a doctor and picking up medical records too, as the mother had told him that the child had told the doctor that the father had touched her.  He agreed that the mother has told him the child has previously disclosed that she had been touched inappropriately by her father but he could not be sure if it was the incident in the carpark that the child disclosed in the interview or another one that the mother was talking about. 

10. He later said the mother might have said something along the lines of “I haven’t heard that one before” after she said “oh my God” and started to cry when he told her of the disclosures made during the interview.

11. He also agreed that he has since been told of the allegation that the father sexually abused the child at a McDonald’s Restaurant and also of the allegation that the child disclosed to Ms D that her father rubbed cream on her private parts.

12. Constable E said that his investigation would be “90 per cent complete” within 2 weeks to a month and he would hope it would be completed soon thereafter. He confirmed that he had told the mother that he would not be letting the child go to spend time with the father if she was his child, having regard to the disclosure she had made and that he had told her the father might well be charged with an offence.

13. Plain Clothes Constable G gave evidence that corroborated the evidence of Constable E. She said that the child said her dad pinches her “on the bum” and makes her cry and that he had touched her private parts.  She said that the child had said that her father had pulled out her pants and put his hand down on her private parts and that it happened at Ms C’s office, in the carpark. She said the child showed them with actions what she said her father had done, by pulling her leggings out and shoving her hand down them.

14. She said she asked the child if she could do a drawing and she did in the police officer’s notebook. The Constable said she later looked up Google Earth and found a carpark that was very similar in detail to the one drawn by the child.

15. Constable G said that the child had also said:

    ·   [Mr Dent] [her father] says mean things to [F].

    ·   [Mr Dent] says I don’t want [F] to come back, I want to smack her, hit her and punch her in the stomach.

    ·   I saw my sister hiding behind the tree.

    ·   [Mr Dent] told me he kidnaps children.

    ·   [Mr Dent] told me don’t tell the mother.

    ·   I told mum and mum said I might have to go to the police.

16. After the police officers had completed their evidence, counsel for the father conceded that the trial of the proceedings would have to be adjourned having regard to that evidence. In my judgment, that was an appropriate concession. I was then asked to let the parties have some time to discuss the form of the parenting Order that was then to be made in the matter pending the hearing of the adjourned trial.

17. Later that day, I was presented with a draft of terms of a proposed parenting Order that the parties were asking me to make. It provided for equal shared parental responsibility, and for the child to live for equal time, on a week about basis, with each of the parents and for the father’s parents to continue to supervise the time the child spends with the father. I was informed that Order was sought by the parties, acknowledging that it included overnight stays in the father’s household and that the grandparents would have to sleep through the night, meaning that supervision was not anticipated to be provided by way of one or both of them watching over the child twenty four hours per day.

1. I pointed out to counsel for the mother that by asking the Court to make such a parenting Order, having regard to the provisions of s 60CG of the Family Law Act 1975 (Cth) (the “FLA”), the mother was effectively telling the Court that she did not consider the child to be at an unacceptable risk of sexual abuse in the father’s care provided the paternal grandparents were around in the house whilst the child was there, even if they were asleep overnight. Counsel for the mother informed the Court that she understood that and accepted that.

2. I then told the Court that I wanted to hear that the mother was asking the Court to make this parenting Order without feeling under pressure from her legal representatives or the Court to do so. I stood down to give the mother time to speak with her solicitor and barrister about this.

3. When I reconvened, I asked the mother if she could herself stand and tell the Court that she did not feel under pressure from the Court in asking the Court to make an interim parenting Order in the terms presented to the Court. The mother told the Court that she did feel under pressure from the Court to agree to that Order. Having heard that, I immediately informed the parties and their legal representatives that I would not make an interim parenting Order in the terms presented to the Court, by consent. I adjourned the matter to 10:00 am on Tuesday 21 July 2015 to hear further from the parties as to what Order should be made. I directed the mother to file and serve an affidavit before that time in which she deposed to details of what she knew of the child’s latest disclosure to police, as best she could. I also directed her counsel to inform me at the commencement of the next day what interim parenting Order the mother did ask the Court to make.

4. At the commencement of proceedings on Tuesday, 21 July 2015, counsel for the mother sought and obtained leave to file a further affidavit of the mother sworn the same day. Counsel also informed the Court that the mother sought an interim parenting Order that had the child continuing to spend time with the father in accordance with the existing Order of September 2013, but conditioned on (1) the child only spending time with the father between 9:00 am and 7:00 pm on each of the days she is to spend time with him (from after school until 7:00 pm on those days that are school days); and (2) the time continuing to be supervised by the father’s parents.

5. Counsel for the mother also told the Court that the mother sought such an Order to be in place until the conclusion of the police investigation into the complaint that the child has been sexually abused by her father and that if the police investigation resulted in a determination that the allegation was unsubstantiated, the mother would accept that a parenting Order in terms sought by the father and the Independent Children's Lawyer would be appropriate.

6. Counsel for the father told the Court the father still sought an interim parenting Order in terms of the draft handed to the Court the day before. Counsel for the Independent Children's Lawyer also told the Court that the Independent Children's Lawyer sought an interim parenting Order in those same terms.

7. Counsel for the father made application to cross-examine the mother and, for reasons I gave orally at the time, I allowed cross-examination of the mother.

8. In the affidavit she filed by leave, the mother repeated the assertion that she felt pressure from the Court. About that, she said:

   I did not mean that I felt pressure from His Honour.  However, I felt that by not consenting, I would not be having my daughter’s best interests and orders could be made that my daughter could be removed from my care, based on me not supporting this consent order. The police and the Department of Child Safety might use this against me as evidence I was not supporting the child properly in considering her best interests where and who she is in the care of.

   I can’t even begin to describe the position I feel like I am in. I am trying so hard to put my daughter’s best interests and be protective and still facilitate and comply with court orders to the full extent. [exact words quoted]

9. As for the allegation that the father sexually abused the child in the carpark when they were attending upon Ms C, the mother said she first learned of that from the police on the evening of 9 July 2015, after the child was interviewed by police in respect of the other issue. The mother said that the last time she and the child and the father had attended upon Ms C was on 29 July 2014. The mother asserted that the child had never said anything to her about this allegation before. She asserted that she has not spoken with the child about it but that she believes the allegation to be true.

10. She went on in her affidavit to assert that she has concerns about the paternal grandparents being supervisors of the child’s time with her father. She said:

    I don’t feel that they understand their obligations, and I don’t feel that they have the capacity to understand the supervisor role, even when it is explained.

    I also feel that [Mr Dent]’s parents are intimidated by him.

    My opinion is based upon events in 2012, when [Mr H Dent] was supervising. When it was explained to him, he told the ICL that he understood these obligations and he agreed to these obligations. I consented to these orders in 2012 with the understanding he knew his obligations. However, when he was supposed to be supervising, he was in his car smoking cigarettes. On his own admission, in his own affidavits, he spoke to the manager of McDonalds about me, rather than supervising the child.

    Likewise, when the child went to the toilet, [Mr H Dent] waited outside. I believe he should have waited outside the door given that the child was only 5 at the time. She was in the toilet for 11 minutes. I timed it. I was permitted to be in the vicinity by the court without interfering. I was moving around but I was not interfering. I sat down with a book, a piece of paper, taking notes. the child had no idea what I was doing. I was just writing on a piece of paper for all she knew. My husband was with me.

    I ended up speaking to the manager who told me to call the police. [Mr H Dent] did nothing during this entire time. I am almost certain that he did not hear my conversation with manager. But he had seen me get up and walk away.

    When [Mr Dent] does something against the orders, [Mr H Dent] does nothing. In a McDonalds visit, [Mr Dent] was saying bad things about me and pulling her hair while she was going up the slide. There are better ways to get a child back down than pulling her hair. This was occurring while [Mr H Dent] was supposed to be supervising, however I don’t believe he actually was watching at that time.

    I thus have grave concerns about [Mr H Dent] as a supervisor.

    I am aware that [Ms I Dent] used to be wheelchair bound two or three years ago.

    I do not believe that she still needs a wheelchair; however I believe that she is still mobility limited, but I am not sure to what extent.

    [B] has given me the impression that she usually stays in bed all day. However, the child has also told me that she has gone for a coffee date with [Ms I Dent].

11. That is all of the mother’s evidence about the paternal grandparents as supervisors.

12. In his cross-examination of the mother, counsel for the father asked her about the reference to McDonalds in her affidavit. I confirmed with the mother that she was talking about the incident where she had previously alleged the father had sexually abused the child in the toilet at a McDonalds Restaurant during a supervised visit.

13. I then asked the mother if she still maintains that the child was sexually abused by the father that day. Her simple and precise answer was “no”. I then said to her:

    So, you don’t say she was sexually abused by her father?

    The mother answered:

    It was found unsubstantiated from the police, and …

    Judge:   I’m not asking what the police found. I’m asking about what you say

    Mother:         I have no opinion on that

    Judge:           No opinion whatsoever. That’s not a very good answer, frankly.

    Mother:         It’s difficult when your child tells you something has happened... and you take her to the police and they tell you it’s unsubstantiated, it’s something that I’ve accepted and I need to move on from

    …

    Counsel:        You’re not saying that the father sexually abused [the child] when he took her to the toilet at McDonald’s in August 2012, is that correct?

    Mother:         That’s what [the child] told me

    Counsel:        Well I’m asking what you are saying now, to the Court  

    Mother:         I’m unsure

14. Counsel for the father put it to the mother that she “coached” the child, to which the mother responded “no”. He put to her that she had discussed matters with the child before taking her to the police, to which the mother responded “no, I have not”.  He asked her was it just coincidence that two weeks or so before the trial was to start that the child made disclosures about her father sexually abusing her almost one year ago, to which the mother responded “yes”.

15. Counsel for the father also asked the mother about another matter said to have happened on or around 12 January 2013 regarding F. F’s paternal grandmother made a complaint to authorities about bruises she found on F when F visited her at around that time. The mother agreed that there had been a complaint that F had disclosed that the mother’s husband, Mr J, had disciplined her for riding her sister’s bike, by pulling her pants down and smacking her repeatedly with a brush. The mother agreed that there was also another complaint that F had disclosed that she was locked in her room and was unable to get out of her room. When it was put to the mother that the police had executed a search warrant at the mother’s house on 13 January 2013, she said she was not there at the time. She agreed that she spoke to police at around that time though.

16. Counsel put to the mother that the police found that there was no door handle on the inside of F’s bedroom and the mother’s response was “I wasn’t there so I don’t know”. When asked if it was the case that F was locked in her bedroom, the mother responded “not from my recollection, no”.

17. Counsel then asked the mother if the child had told the report writer that F had been locked in her room and could not get out whether that would be true or not, and the mother said she did not know if the child had said that to the report writer.

18. I then asked the mother if she had any knowledge of F being locked in her room and the mother said she did not. She said she had never seen F being locked in her room. I asked her whether she had talked about it with her husband and she said she had. I asked her if she had asked him directly if he had ever locked F in her room and she said she had. I asked her what his answer had been and she said “no”.

19. She said she believed her husband when he told her he had not locked F in her room and she repeated that she had no knowledge of the child, F, ever being locked in her room. However, she was not prepared to say that F or the child were not telling the truth if either of them had told someone else that F had been locked in her room.

20. Again, I asked her if she had ever seen her husband lock F in her room, to which she responded “no”. I then asked if there was anyone else at the home who might have locked F in her room. After a moment, the mother said “only [the child]”. I then asked her if she had ever seen the child lock F in her room and again the mother took a moment before she said “perhaps, maybe”. She then said “I’m not saying it was deliberately done”.

21. I then asked her if she wanted me to accept that neither she nor her husband had locked F in her room but that the child probably did. She responded “I’m not saying that she probably did, but there is, there is reason to believe that one of us could have but I do not recall.” I then asked her what was the reason to believe that one of them could have and she said “I don’t know” before going on to say “I don’t know, ... the door handle was broken”. She then said she accepted that the door handle on F’s door to her bedroom was broken. She said both the handle on the back and the front of the door were broken and the door, if shut, could only be opened with the handle being used from whichever side the handle was on.

22. After all that, I asked the mother again whether, if F had told someone that her mother or her step-father, Mr J, had locked her in her bedroom, that would be untrue, and, again, the mother said she could not say. When I suggested to the mother that her answers carried the implication that she did not believe her husband’s assurance that he had not locked F in her bedroom, she said she believed him and F had not told her otherwise.

23. Unsatisfied then, as to why the mother was not prepared to say that her daughter was not telling the truth if she had told someone like the report writer or the police that her step-father had locked her in her bedroom, I let the cross-examination move on.

24. Counsel for the Independent Children's Lawyer took me to other evidence. Relevantly, there was evidence that the Temporary Domestic Violence Protection Order that the mother obtained in ex parte proceedings in a Magistrates Court in July 2014 was obtained on the basis of allegations made not long before the interviews with Ms C, that F said the father had approached her at school and was yelling and screaming at her. Ms C in her report records that the mother said that F’s teacher witnessed the incident and F had sought her teacher’s protection. Ms C then referred to a letter from the school Principal that said the allegation had been investigated and that the nominated teacher who had been reported to have seen the incident had no knowledge of it and did not see any such incident.

25. Interestingly, the mother had said in her evidence in cross-examination when asked some questions about her Domestic Violence Protection Order application that the child had said this particular teacher “may or may not have” seen the first incident upon which the ex parte Temporary Order was first obtained. That is clearly inconsistent with what Ms C says the mother stated and inconsistent with that which the Principal has commented upon in the letter he wrote about it.

26. The allegations that the mother says caused her to take F to police again recently in the weeks before the trial was going to take place, were again allegations that the father had approached F in the school yard and threatened her. Of concern is the evidence contained in Police records adduced into evidence before me by the Independent Children's Lawyer that the mother actually told the police that she could not be sure as to whether her daughter, F, was telling the truth as she “is going through a few mental health issues at the moment and sometimes fabricates stories.” The mother maintained that position in her oral evidence at the hearing before me.

27. The mother had told police that the child, F, had reported to her that a school friend had been with her and witnessed the father’s actions but the police records reflect the child as telling them in their interview of her that her sister, the child, had been a witness. This is what prompted the police to tell the mother that they would like to interview the child. When the child was interviewed, the first thing she told police when asked why she was there to speak to them was that her father had touched her private parts in an inappropriate way almost a year before. 

28. Police records adduced into evidence note that the child did not say that she had witnessed the event at the school. They also confirm that the police determined not to take the alleged breach of the Temporary Domestic Violence Protection Order any further.

29. Counsel for the Independent Children's Lawyer also took me to evidence of the mother given in affidavit form last December where the mother said that she believed that the child did not make disclosures to police in interviews as she was scared of the police after having been taken to so many interviews by the father over the years. Counsel then pointed out the inconsistency between that evidence and the child apparently being very “forthcoming” with the police on 9 July this year, telling them of an incident of alleged sexual abuse perpetrated on her that she had never even told her mother of in just under a year since it is said to have occurred.

The Submissions of the Parties

1. Counsel for the Independent Children's Lawyer, in his oral submissions, took me to the expert reports of Dr K, psychiatrist, who had examined the parties and reported two years ago, and of Ms C who had done a number of family reports in respect of this family over the last several years 

2. Counsel pointed out that Dr K had opined in his report of March 2013 that the mother:

   [A]ppears to struggle to separate her own fears and anxieties from what might be best for her children.

   It is likely that her post traumatic stress disorder symptoms contribute to this by exacerbating her perception of danger, but she does not appear to have insight into this. This is likely to continue to influence her perception of the father.

3. The mother had reported to Dr K that she had been abused by her mother as a child, which physical abuse had included punching and similar violence. Her parents had separated when she was 12 and her mother left her and her father and moved to Sydney.  She had reported moving out of home with her boyfriend when she was 15, falling pregnant unexpectedly and giving birth to F.

4. Of the father, Dr K said:

   He appears to be able to focus on the needs of the child in this situation but retains significant suspicion about the motivation of the other parent. It is likely that he does not entirely trust the mother with regard to the safety of [the child].

5. Dr K said in his 2013 report there was no psychiatric reason why the father’s contact with the child should be supervised.

6. Counsel then highlighted the mother’s attitude to the father. He took the Court to evidence supporting a submission that the mother considers the father a long time abuser of her and of their daughter and that the mother thinks he cannot be trusted.

7. Counsel then took me to Ms C’s report filed on 12 September 2014. He pointed out that Ms C held the opinion that the two parents negatively interacted with each other in the presence of their daughter and that the child was able to sense that behaviour. Counsel submitted that this would be a problem if the mother’s latest proposal was implemented as it would require the parents to come into contact with each other six times over the weekend that the child was to spend time with the father at handovers at the McDonald’s Restaurant each morning and evening.

8. That submission has some merit in my view. It is but one of the many matters to be considered in this case.

9. Counsel took me to the opinion of Ms C that the “emerging central issue” in the dispute is whether the mother is able to make a genuine commitment to a change of attitude towards the relationship between the child and the father and whether she can provide the child “with permission and freedom to develop and maintain a relationship with both her parents without involving the child in the adult dispute”.

10. Counsel then pointed out Ms C’s opinion that the child is at risk of being emotionally and psychologically harmed as “a direct result of the unhealthy relationship she currently has with [Ms Little] and [Mr J]”, as well as Ms C’s view that the mother has not been able to demonstrate her capacity to co-parent the child by supporting her to develop to her full potential free of a continued struggle with Mr Dent.

11. Counsel also took me to Ms C’s clearly expressed concerns about the long-term implications for the child’s emotional and psychological wellbeing due to the ongoing dispute between the parents and the “never-ending exposure to allegations and the child being subjected to police and departmental interviews”. I was also taken to Ms C’s expression of a lack of confidence that the mother can affect the major changes of attitude and behaviour required to bring about a balanced parenting and home life for the child and to Ms C’s opinion that the mother and her husband “appear to be continuing to undermine the child’s love, attachment and relationship with” her father and her paternal grandparents.

1. Counsel referred to Ms C’s “continuing opinion” that the father “represents a critical positive balance in the child’s future development.” Ms C also expressed the view, last year, that if the child continued being subjected to formal interventions and investigations, her future emotional and psychological health will be adversely affected. Ms C said:

   [E]xposing a child to repeat false allegations of abuse can lead to possible emotional harm for such a child as it causes the child to become frustrated and torn between their own real experience, and the false experience thrust upon the child by a caregiver.

2. Counsel for the Independent Children's Lawyer submitted that the proposed week about equal shared care parenting regime fits the recommendations made by Ms C in her September  2014 report, in that it significantly minimises the opportunities for the parents to come into contact with each other, it increases the child’s opportunities to further her relationship with her father that the expert report writer has observed is critically positive for the child, and it provides necessary balance in the child’s life at this point in time, where the expert family report writer’s opinion is that, ultimately, the Court might determine that changing the child’s living arrangements so that she lives principally with her father is in her best interests.

3. Counsel for the Independent Children's Lawyer, in his submissions, clearly acknowledged the need for the Court to consider the requirement of protecting the child from unacceptable risk of sexual abuse in the father’s household having regard to the most recent allegations that police, who have recently come into the matter, are taking seriously at this point in time. His submissions were, however, clearly made in a manner that carried the implication that these most recent allegations must be treated with a great deal of scepticism.

4. I accept the merit of that submission against the evidence and the history of this case.

5. Counsel’s submissions were, effectively, that just as the Principal Registrar was clearly satisfied that there was no unacceptable risk of sexual abuse to the child in the father’s household whilst one or both of the paternal grandparents were there in the household with the father and the child, including for overnight periods, that I, too, should be so satisfied.

6. Counsel submitted that the mother’s position in respect of the paternal grandparents was remarkably inconsistent. He referred to the distinct lack of any complaint about them in the performance of their supervisory roles in any affidavit filed by the mother in the proceedings until the affidavit filed by leave on Tuesday, 21 July 2015. He submitted that given they had been in supervisory roles since December 2014 and had also been supervisors in earlier years pursuant to parenting Orders the mother had consented to, the absence of earlier complaint was more reflective of the mother’s attitude to them. In fact, he pointed to the mother’s evidence in her other affidavit sworn and filed on 16 July 2015, as evidence of her positive feelings about them and their relationship with their granddaughter.

7. He most particularly pointed to the apparent incongruence in the position the mother had reached the day before with respect to being prepared to consent to the child being in the care of her father on an equal time basis including with overnights with the grandparents being supervisors and the position she was now adopting that the time the child spends with the father should not be increased and should be limited to daytime only but with the grandparents still supervising that time.

8. Counsel went on to inform the Court that the Independent Children's Lawyer had spoken with the family report writer, Ms C, with a view to presenting her to give evidence on the matter, but that she was unable to. However, he informed the Court that she had been brought up to date with all of the developments and had expressed her complete support for the interim parenting regime proposed by the Independent Children's Lawyer, notwithstanding the latest allegations, including as to an increase in the child’s time with her father and overnights but with the grandparents supervising. Counsel also informed the Court that Ms C had  volunteered to make herself available to speak with the child about such matters on Friday 24 July, if considered appropriate, and to explain any Order to her, as well as talking with her about protective behaviours.

9. Although it is unorthodox to receive evidence the way this was received, it is not uncommon for Independent Children's Lawyers at interim hearings to convey information received by them from retained single experts to the Court to assist the Court in determining proper parenting Orders to make in the best interests of a child. As counsel submitted, these are child-related proceedings being conducted within the provisions of Part VII Division 12A of the FLA and the Court has broad and flexible powers conferred by the provisions of that Division in respect of the receipt of this sort of evidence. That is true, particularly when s 69ZX is considered.  At the same time, there was no objection made by counsel for the mother to the Court receiving that information into evidence and no application made for cross-examination of the family report writer.

10. Counsel for the father made very brief oral submissions. He principally adopted and endorsed the submissions made by counsel for the Independent Children's Lawyer.

11. The submissions of counsel for the mother were also brief. She pointed to the mother’s asserted belief that the paternal grandparents are not capable of overnight supervision but are suitable for daytime supervision “if they are advised of their obligations” and submitted that is the reason why the more cautious approach should now be taken.

Other matters to consider

1. The existing interim Order, made by consent two years ago, provides for the parents to share parental responsibility for the child equally. The draft that was presented to me on Monday 20 July that I was asked to make into an interim parenting Order, included provision for equal shared parental responsibility to continue. After I determined that I would not make the interim parenting Order with the consent of the parties when the mother said she felt pressured into that position, no party asked for any other Order to be made in respect of parental responsibility, so I see no reason not to make an Order for equal shared parental responsibility at this time.

2. Accordingly, pursuant to s 65DAA of the FLA, as the parenting Order I intend to make will provide for the parents of the child to have equal shared parental responsibility for the child, I must consider, even on this interim determination, whether the child spending equal time with each parent would be in the best interests of the child and whether that is reasonably practicable, and, if so, I must consider making such an Order.

3. Until 9 July, 2015, the child had been spending five nights each fortnight in the father’s care, living in the same house as the paternal grandparents who have been cast in a supervisory role, at least since December last year. That has required the father to collect the child from school and get her to school. The practicalities of the arrangements have plainly worked. The parents clearly live close enough to each other and the child’s school for that to work. Indeed, the mother deposed in one of her affidavits of 16 July 2015, as to the apparent practical effectiveness of the arrangements that were then in place.

4. As such, I am quite satisfied that the child spending equal time with each of the parents is reasonably practicable in this case.

89.As to whether or not it is in the child’s best interests, the opinions of the psychiatrist and, most particularly, the family report writer are very weighty, even at this interim stage where, I acknowledge, they have not yet been subjected to cross-examination by legal representatives for the mother. The maintenance by Ms C of her recommendation that, at this time, the child should spend equal time with each of her parents, even with knowledge of the latest allegations of sexual abuse, is indeed significant.

1. In determining what is in a child’s best interests, the Court must have regard to the Objects of Part VII of the FLA and the Principles underlying it that are all set out in s 60B, and must consider the matters set out in s 60CC(2) and (3) . I will not set out all of those matters here but have considered them. It is also to be observed that these are necessarily circumscribed proceedings having regard to the circumstances of the trial having to be adjourned and the nature of the interim determination the Court is asked to make. In such circumstances, the Court is not able to make all the necessary findings that would inform a more considered determination of the parenting Order that is in this child’s best interests.

2. In this particular instance, I did indeed have the benefit of observing the mother in the witness box under cross-examination and answering questions that I put to her. I, therefore, have had that opportunity that I do not often have on interim determinations. Frankly, some of the mother’s evidence troubled me and caused me to consider that there might very well be much in what both Dr K and Ms C have said in their reports. There will be much to consider when the trial of the competing parenting Orders applications in this matter eventually comes back on.

3. However, I have not seen the experts in the witness box. I have not observed them under cross-examination by legal representatives of the mother and seen their opinions tested and challenged. Similarly, I have not had the important benefit of having seen the father, who is accused of one of the most heinous crimes a person can be accused of, namely, the sexual violation of the innocence of his own young daughter, giving evidence and being cross-examined in the witness box before me. The father did not even have the opportunity of putting on affidavit evidence in which he deposes to his response to the allegations that he now must face. Equally though, the mother has not had the opportunity to consider his evidentiary response and to test and challenge it, having regard to her clearly stated belief in the truth of her daughter’s disclosure as reported to her by police.

4. The mother is well and truly on notice, through the firmly expressed expert opinion of Dr K and Ms C, and the fact that the father seeks a parenting Order that puts their daughter, the child, in his principal care, that the Court will be very carefully considering all of the evidence in this matter, and paying particular attention to not only the determination of the mother’s allegation that the father sexually abuses their daughter but also to issues surrounding the mother’s physical and emotional care of the child and her capacity to promote and facilitate the child’s relationship with the father on an ongoing basis.

5. But for the sexual abuse allegations, the evidence certainly points towards a finding that it would be in the child’s best interests to spend an equal amount of time in the father’s care as in the mother’s care at this interim juncture. However, as authoritative principle dictates, where an allegation of sexual abuse is a feature of a contested parenting matter, central to the determination of a proper parenting Order that is in a child’s best interest is the determination of whether making an Order putting a child in the care of the alleged abuser would put the child at an unacceptable risk and, if it would, then whether that unacceptable risk can be suitably ameliorated by the imposition of other conditions such as supervision. Indeed, s 60CG of the FLA mandatorily enjoins me to ensure that a parenting Order, interim or final, does not expose a person to an unacceptable risk of family violence, the relevant statutory definition of which includes “a sexual assault or other sexually abusive behaviour”.

6. Because of the very circumscribed nature of an interim determination, in most circumstances, on an interim hearing where there is evidence from police officers that a child has disclosed, in interview, matters that support, prima facie, a finding that the child has been sexually abused by her father, and the Court is not in a position, for whatever reason, to make findings about many other matters relevant to the determination of whether the child would be exposed to an unacceptable risk of sexual abuse in the unsupervised care of the father, a cautious exercise of the Court’s discretionary powers is required. As difficult as it might be for the father and his parents, and even for the Independent Children's Lawyer in this case who has advocated strongly in support of the position that the father proposes, particularly where, on the first day of the trial, when it became clear the trial would have to be adjourned, the mother was also expressing her agreement to the proposal, I cannot see that this case is not one of those where that cautious exercise of discretion is nevertheless required.

7. I cannot say, right at this point in time, I am satisfied that the father did not sexually abuse the child as alleged. I hasten to add, equally, I cannot say that he did. Of course, as the High Court has made clear, even at the end of the trial in the matter, I am not required to make one or other of those two findings. The determination that I cannot avoid making though is the determination of the level of risk. If that risk is unacceptable then particular outcomes will necessarily follow.  That determination is one that necessarily has to be made even when the hearing is a circumscribed, interim hearing.

8. As I said to counsel during the hearing of this matter, the determination I am being asked to make is between equal shared care of the child that includes overnights in the father’s household, albeit with the paternal grandparents also living there, and the proposal put forward by the mother for the child’s time to be limited to between the hours of 9:00 am and 7:00 pm on the days that she currently spends with the father pursuant to the existing Order, still supervised by the paternal grandparents.

9. Of course, as has been authoritatively recognised, the Court is not restricted in its determination to a choice of one or other of the two proposals and can determine that some other outcome best meets the child’s interests.

10. In this case, I am comforted by the fact that although the mother belatedly raised some complaints about the suitability of the paternal grandparents as supervisors, based on some very limited historic observations, she nevertheless proposed that their supervision of the child’s time with the father would be acceptable to her, and, therefore, it follows, should be considered suitable by the Court to be made the subject of an Order. Clearly though, the mother’s position was ultimately that the child would be exposed to an unacceptable risk of being sexually abused by the father on such overnight stays even with the proposed supervision by the grandparents,  given that they could be naturally expected to sleep during those nights. Otherwise, her position can only be interpreted, as I have earlier alluded to, as being satisfied that their daytime supervision of their granddaughter’s time with their son does not present an unacceptable risk to the child’s physical and/or emotional wellbeing.

11. Given that I cannot make sufficient findings about the allegations of sexual abuse at this point so as to be clearly satisfied that overnight stays in the father’s household, during which time the grandparents must be expected to sleep, do not present an unacceptable risk to the child, I consider that I cannot make an interim parenting Order that provides for that.

12. I will make an interim parenting Order that provides for the child to spend time with her father that is supervised by one or both of her paternal grandparents. I will limit that time to times when the grandparents would not normally be expected to both be sleeping. I will not limit that time to the days the child is currently in the father’s care pursuant to the existing Order but will give the child some time with the father on the other weekend and some other days as well, to make up partially for the overnight time he is now not going to have until the matter is finally determined and to ensure that the child’s relationship with him and her paternal grandparents, otherwise assessed by Ms C to be critically positive for her, is maintained and is as unaffected by the loss of overnight time as possible.

13. The child is only 7 years of age. The Order I will make will have her return to her mother’s care earlier than the mother’s proposed 7:00 pm each night, so that she can be readied for bed at a suitable time.

14. Given my involvement in this matter now, having prepared for and having to adjourn two final hearings on the day they were to start, I consider it practical and appropriate that the matter continues to be managed by me through to trial and that I preside over that trial.

15. I make the interim parenting Order and directions set out at the commencement of these reasons, satisfied that it is proper, in the child’s best interests, and does not expose the child to an unacceptable risk of family violence.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 July 2015.

Associate:

Date:  24 July 2015