Dillon and Dillon

[2016] FCCA 2471

FEDERAL CIRCUIT COURT OF AUSTRALIA

DILLON & DILLON [2016] FCCA 2471

Catchwords:
FAMILY LAW – Parenting – urgent application to suspend child’s time with father – no substance in allegation – application dismissed.

Cases cited:
Rice v Asplund (1979) FCL 90-725

Applicant: MS DILLON

Respondent: MR DILLON

File Number: TVC 561 of 2014

Judgment of: Judge Young

Hearing date: 8 September 2016

Date of Last Submission: 8 September 2016

Delivered at: Townsville

Delivered on: 9 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Bevan

Solicitors for the Applicant: Bevan & Griffin

Counsel for the Respondent: Mr Pack

Solicitors for the Respondent: Groves & Clark

ORDERS

1. That the interim Application filed by the Mother on 16 August 2016 to suspend the Father’s time with the child be dismissed.

2. That pursuant to Section 68L(2) of the Family Law Act 1975, the child X born (omitted) 2008 be independently represented and that Legal Aid Queensland be requested to arrange such representation. That each party comply with any lawful direction of the Independent Children’s Lawyer in relation to the preparation of any report or assessment.

3. That the matter be adjourned for further mention at 10.00am on 31 October 2016.

IT IS NOTED THAT the report of the Department of Communities, Child Safety and Disability Services may be available by the adjourned date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

TVC 561 of 2014

MS DILLON

Applicant

And

MR DILLON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application by the mother on an urgent basis to suspend consent orders made on 7 July 2015.  Relevantly, those orders provided for the child of the parties, X, who is currently eight years old, to spend five nights a fortnight with the father.  The mother has filed affidavit material making five specific allegations:

   a)that the father bites, hits and punches the child;

   b)the father tried to shoot the child with a bow and arrow;

   c)that the father’s friends drink and fight around the child;

   d)that there was a letter from Dr F, a general practitioner, to the Department of Child Safety where Dr F reported suspicions of sexual abuse based on the child’s reluctance to undress in front of him;

   e)that the father said to the child that, if she misbehaves, he will hurt her.

   The father denies these allegations.

2. At the outset, I should say that these matters have been referred to the Department of Child Safety.  Ms Bevan, who is solicitor for the mother, has told me that she made inquiries yesterday and was told that the assessment and report from the Department of Child Safety was not completed and was still some weeks away.  Ms Bevan quite properly informed me that she had been told by the Department of Child Safety that the assessment was that the allegations against the father were not substantiated.

3. By way of background, the child has been seeing a number of counsellors:  a school counsellor and a private counsellor retained by the mother.  The records of the counsellors have been subpoenaed.  The school counsellor was Ms S.  It is of significance to record some of her notes concerning this child. 

4. On 20 March 2015 she recorded that there was, according to the child, a history of fighting between the parents prior to separation.  X said “she does not really like going with the father, as the mother has told her she did not want the father to take her” – that is X – “for visits”.

5. On 27 March 2015 X told Ms S that she wants to spend time with the father but was reluctant after a “big fight” between the mother and father the previous week.  On 8 May 2015 X reported that the mother was “going to Court today to fight Dad”.  She was worried about that.  On 28 May 2015 X said she was confused about who to believe.  On 23 July 2015 X said she enjoys time with her father but he was sometimes “mean”.  There was no elaboration. 

6. On 8 October 2015, the mother reported that X had expressed a worry that the father might shoot her with bow and arrows.  In the session X told Ms S that when the mother says “going great guns” X has “random thoughts” of the father using a bow and arrow on her.  In this session X said that she enjoys time at the father’s and feels safe but is sad her parents do not get on.  She would like to spend more time at the father’s but knows that mother does not like it.

7. On 22 February 2016 X told Ms S that she wants to be able to talk to the father on the phone but feels the mother will be upset if she sees X enjoying talking to the father.  X said that she says she is “too tired” when the father calls to avoid the situation. 

8. On 8 March 2016, X told Ms S that she feels “like the rope in a tug of war”.  She also said in this session that when she had picked flowers at the father’s house the father got angry and chased her with a frying pan, saying “come back, you little mongrel”.  She said they ended up playing a game with the father and it was fine. 

9. Beginning on 29 January 2016, that is contemporaneously with the last notes I have read from Ms S, the mother arranged for X to see another counsellor, a Ms C.  The mother attended with X on Ms C on 29 January 2016 and she informed Ms C of her various allegations of family violence against the father going back over a considerable time.  She also mentioned that X had said “dad went crazy with a bow and arrow” and mentioned “Uncle Mr C” – who I will refer to a little bit later on – who had to save her.

10. Ms C saw X again on 13 March 2016.  It appears the mother was not present on this occasion.  She noted the child’s anxiety and the child had talked of the father threatening to send her, X, to foster care.  On 13 June 2016, Ms C told the mother that,

    “As yet, X has not told me anything that would require a notification to DOCS, but we will make further appointments straight after she returns to mum’s to talk about the time with dad.  Jen [that is the mother] happy with this”

11. On 22 June 2016, there is a note from Ms C that she discussed with X what it is like at dad’s.  The note goes on “initially, a lot of shoulder shrugging until she finally opened up.  Stated she was “scared of Dad”.”  It was noted that he “yells and swears”.  She apparently said, “a lot of people coming around to father’s but they don’t stay long, and she, [X] hides under the bed.”  When asked about parental discipline X said that the father “smacks her forearm and demonstrated using all her force.  She also stated that dad bites her hand.”  Ms C made a notification to the Department of Child Safety on that day.

12. On 12 July 2016, at a conference with Ms C, X reported being asked questions by two counsellors who I infer were Department of Child Safety workers.  According to the mother’s affidavit of 7 July 2016, on 25 June 2016 one of X’s school friends was sleeping over and X bit the other girl.  The mother told X to write down anything that was bothering her.  X then wrote a note which said:

    I bit my friend because she made me feel like I was going to suffocate.  Dad bit me.  Dad yelled at me.  I thought I closed the door, and I let the bugs and worms in the house, and Dad yelled at me.  Dad [it’s unclear] sent at me.  He made me hide under the bed.  Dad made me hide under the coffee table.  He threatens me.  Dad nearly shot me with a bow and arrow because he got too crazy.  I always have to hold onto Mum’s hand.  Dad says that “I’m going to hurt you next time”. 

13. The reference to a bow and arrow first appeared in October 2015 as a “random thought” or fear recorded by Ms S, the school counsellor.  It is highly coincidental, in my view, that what first appeared in October 2015 as a fear rather than an event was now recorded as an event.  The mother’s affidavit material reports the child as relating this incident and that Uncle Mr C had had to remove the child to safety, apparently when the child spent time with the father in January 2016.  There is an affidavit from a Mr C, who I understand is Uncle Mr C, a friend of the father.  His affidavit is specific.  He denies that anything like the bow and arrow incident occurred.   He denies ever having gone hunting or camping with the father at any time in 2015 or 2016.  He denies ever seeing the father firing arrows during that time. 

14. It is also, in my view, of significance that the reports recorded by Ms C as at 13 June 2016 were that there was nothing requiring a notification to the Department of Child Safety.  It is clear, I think, that the mother was at least considering that there would be material disclosed in these interviews that could be referred on to the Department of Child Safety.  It appears to me significant that five days later that the child made these claims.  They do not appear to me to be consistent with what is recorded by Ms S, the school counsellor, which really portrays a picture of a highly anxious child showing signs of psychological harm because of the conflict between her father and mother.  Throughout late 2015 the child was saying she enjoyed her time with her father but was very conscious of the mother’s disapproval.  In February 2016, in other words, after the alleged bow and arrow incident in January 2016, X told the counsellor that she wants to talk to the father on the phone but feels the mother will be upset and in March 2016 she felt “like a rope in a tug of war.” 

15. There are highly concerning elements about the manner in which these allegations have been made which raise concerns about their reliability. Without making any definite finding, which I do not believe I can do, there is certainly a great deal of material which points to these allegations being a reflection of the child’s anxiety about her relationship with her mother and father and her anxiety about the relation between the mother and the father and her feelings of “feeling like a rope in a tug of war.”

16. I am not satisfied that there is any unacceptable risk to the child from spending time with her father.  I am not satisfied that there is any substance in the allegations and I propose to dismiss the application.  However, that does not dispose of the mother’s Initiating Application and there will have to be a determination about whether the requirements in Rice v Asplund (1979) FCL 90-725 have been met.  It seems to me appropriate that that should wait until the Department of Child Safety report has been completed and is available to the Court.

17. I also propose to make an order for the appointment of an independent children’s lawyer.  The reason for that order is that I have very serious concerns that this child has been psychologically harmed by the process of litigation by the claims and counterclaims of her parents and by their hostility and denigration of each other.  I am satisfied that there is clear evidence of that.  It may be that there are some steps that can be taken to help the parents see what is necessary in X’s interests.  What they are doing at the moment, in my view, is not in X’s interests.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 23 September 2016