Dixon & Dixon

[2014] FamCA 686

FAMILY COURT OF AUSTRALIA

DIXON & DIXON [2014] FamCA 686

FAMILY LAW – CHILDREN – Interim parenting – Magellan identified – What time the child should spend with the father and under what conditions if any – What risk the father and/or his son of a previous relationship poses to the child

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

Dieter & Dieter [2011] FamCAFC 82
George and George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Dixon

RESPONDENT: Mr Dixon

INDEPENDENT CHILDREN’S LAWYER: Ms Bevan

FILE NUMBER: PAC 3611 of 2013

DATE DELIVERED:	Orders:     30 June 2014
Judgment: 25 August 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 30 June 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Bainbridge Legal

COUNSEL FOR THE RESPONDENT: Sharon Payne Family Lawyers

SOLICITOR FOR THE RESPONDENT: Sarah Bevan Family Lawyers

Orders

1. Orders are made in accordance with the Independent Children’s Lawyer’s proposed minute of order, as follows:

   It is ordered, pending further order:

   1. That the mother and the father have equal shared parental responsibility for the child of the relationship, namely B born … 2009 (“the child”).

   2. That the child live with the mother.

   3. That the child spend time with the father each Wednesday from 9.30 am to 3.00 pm.

   4. That the parties forthwith do all things necessary to engage in family therapy with a family therapist nominated by the Independent Children’s Lawyer, including obtaining a mental health care plan for each of the parties if appropriate, from their General Practitioner, and complying with all reasonable requests of the family therapist.

   5. Noted that the family therapy is aimed at addressing the relationship between the child and her sibling C, as well as all other relationships in the family sub-system.

   6. The father is restrained from allowing the child the child to have any form of contact with C, except during family therapy sessions as recommended by the family therapist.

2. The child is to otherwise spend time with the father as agreed between the parties.

3. Reasons for Judgment are to be published on a date to be advised.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dixon & Dixon 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 PARRAMATTA

FILE NUMBER: PAC 3611 of 2013

Ms Dixon

Applicant

And

Mr Dixon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter came before me in a duty list on 30 June 2014 in respect of the interim parenting arrangements for the child, who was about four and a half years old at the time of the hearing.

2. The parties are in agreement that the child should continue to live with her mother. The issue for determination is what time the child should spend with her father and whether their time together is to be subject to any restrictions, such as the father being supervised or the child not coming into contact with her half-brother, C.

3. On 30 June 2014, after hearing submissions from each of the parties, Orders were made in accordance with the Independent Children’s Lawyer’s minute, which, in summary, provided as follows:

   Pending further order

   a)That the parents to have equal shared parental responsibility for the child;

   b)That the child live with her mother;

   c)That the child spend time with her father each Wednesday from 9.30 am to 3.00 pm and otherwise as agreed between the parents;

   d)That the parties engage in family therapy with a family therapist nominated by the Independent Children’s Lawyer, including obtaining a mental health care plan for each of the parties, if appropriate, from their general practitioner; and

   e)That the father is restrained from allowing the child to have any contact with C, except during family therapy sessions if recommended by the therapist.

4. These are the reasons for making the Orders proposed by the Independent Children’s Lawyer.

Background

1. The parties commenced a relationship in about mid-2005 and then commenced living together in about August 2006. They married in 2008 and the child was born in 2009.

2. The father has a son of a previous relationship, C, who was born in 2002 and was nearly 12 years old at the time of the interim hearing.

3. During the parties’ relationship the mother was very involved in caring for the father’s son C.

4. The parties separated on a final basis in August 2012 when the mother and the child moved out of the family home. The parties divorced in December 2013.

5. The mother has been the child’s primary carer since birth, and this has continued to be the case since the parties’ separation. The father has spent regular time with the child post-separation until the mother’s allegations of the child being sexually abused by C arose in late 2013, which are outlined below.

6. Following an investigation by the Joint Investigative Response Team (“JIRT”) into the sexual abuse allegations, the mother has not permitted the child to spend any time with C and has only facilitated limited time between the child and the father, mostly at a shopping centre. The father has also had some telephone contact with the child.

7. These proceedings were initiated by the mother in October 2013 and the mother at the same time filed a Notice of Child Abuse, Family Violence or Risk of Family Violence in respect of the allegations of sexual abuse by C of the child. In her application she also sought interim orders that provided, in summary, for the mother to have sole parental responsibility for the child, for the child to continue to live with the mother and for the child to spend time with her father each alternate Monday from 3.00 pm to 7.00 pm and at times on some special days, to be supervised by specified persons. She also sought a restraint against the father taking the child to his place of residence, and from bringing the child into contact with her brother C.

8. On 27 November 2013 a Judge of the Federal Circuit Court transferred the proceedings to the Family Court.

9. On 22 January 2014 the matter was identified as Magellan and an order was made for an independent children’s lawyer to be appointed.

10. In late January 2014 the child had surgery to remove her appendix at the Westmead Children’s Hospital. The father raises some concern about the mother not keeping him informed in a timely manner about the surgery.

11. From March 2014 the child has been attending child care four days a week as the mother’s work commitments during the week increased.

12. The father filed a Response on 4 April 2014 which only sets out the orders he was seeking on a final basis. He later filed a Response to the mother’s application for interim orders on 3 June 2014, in which he sought, in summary, for the parents to share parental responsibility for the child, for the child to continue to live with her mother and for the child to spend time with him each alternate Sunday from 9.00 am to the commencement of pre-school the following Monday, each Tuesday from 6.00 pm to Wednesday at 6.00 pm and at times on special days. One of the father’s proposed orders provided that he will supervise the child at all times whilst she is in his care. Therefore, the father was not seeking any restriction on an interim basis in respect of the child and C coming into contact, however this was one of his orders proposed on a final basis.

13. On 17 April 2014 Magellan directions were made and a Magellan Report was prepared by Community Services. The matter was stood over for interim hearing on 30 June 2014.

14. On 30 May 2014 the Magellan Report was released. The contents of the report are outlined below. The Department declined to intervene in these proceedings.

15. On 30 June 2014 the interim matters came before me for hearing.

16. Currently, the father lives in a three bedroom home. C occupies one of those rooms and a housemate occupies another. If the child were permitted to spend overnight time at the father’s home in future, the father says that he would set up a mattress for her on a short-term basis, but would have his housemate move out so she could have her own room. The father’s home is about one kilometre from the mother’s home and near the child’s day care. He works flexible hours.

The contested facts

1. In addition to the uncontested facts, in accordance with the decision of SS & AH[1], the Court may have some regard to the matters in dispute. In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [1] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George [2013] FamCAFC 182, a decision of the Full Court citing Dieter & Dieter [2011] FamCAFC 82).

3. In Dieter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

4. In this matter, the primary matter in contention is the sexual abuse allegations and what risks of harm are posed to the child in respect of her spending time with her father.

Concerning behaviour of the child and the sexual abuse allegations

1. During the parties’ relationship and since separation, the mother says there have been some incidents of sexual inappropriateness by C towards the child.

2. On a couple of occasions prior to the mother raising the sexual abuse allegations in respect of the child, the father says that the child had said words to the effect “my vagina hurts”. He says she had only recently been toilet-trained at the time of her saying this and was still wearing pull-ups. When the child complained of her vagina hurting, the father says he cleaned her with wipes and applied cream to the area. The father says she has suffered nappy rash on occasion.

3. Since about mid 2013 the mother says the child’s child care centres have raised concerns about her behaviour, such as the child hitting and pushing other children and frequently being unable to manager her anger.

4. In early July 2013 the mother alleges the child returned home from spending time with the father and reported that “C bit me on my pee pee”. The mother inspected the child’s vaginal area following the disclosure and could see no bite marks. The mother did not investigate the matter further.

5. From mid-August to early September 2013 the mother and the child travelled to Canada to stay with the maternal grandparents. Whilst away the mother says that the child disclosed that she plays naked with C following questions raised by the mother when she found the child playing naked with two of her cousins aged two and five years. The mother says the child continued to display concerning behaviour during the trip, mostly in the form of hitting and pushing. The mother also says that the child reported to both her and the maternal grandmother that C hurts her and pinches her, saying to the maternal grandmother that he did this to her “pee pee”.

6. The father denies that the children play together naked and he recalls they have only been naked together on one occasion during summer in 2012 when they got soaking wet in the backyard, hosing each other under the father’s supervision. He says they have only had a bath together on two or three occasions since the parties’ separated and he supervised them on these occasions.

7. Shortly after returning from the Canada trip, the child bit a child at her day care centre.

8. On 10 September 2013 the mother took the child to see a doctor about her concerning behaviour and regarding C’s behaviour towards the child, including incidents of alleged sexual abuse of the child. The doctor referred the child for further assessment at the Westmead Children’s Hospital and the allegations raised by the mother were reported to Community Services.

9. B was then interviewed by JIRT on 11 September 2013. the child allegedly made the same disclosure to JIRT workers in the interview that C had touched her “pee pee” and she had indicated that her “pee pee” was her vagina. Later the father and C were interviewed and apparently C admitted touching the child on her vagina at a time when she was an infant, rather than when the child alleges at about three years of age (around the time of separation).

10. On 26 September 2013 JIRT attended at the mother’s home for a follow up interview with the child. The notes from the second interview indicate that the child was able to identify the difference between a truth and a lie, but was difficult to keep engaged and focused on the questions being asked of her and wanted to play instead. She stated that “my brother pinched my pee pee” when prompted about visiting her father. She was shown a female body chart and identified the location of her “pee pee”. She did not respond to questions of what her brother pinched her with.

11. The father says he is not aware of any incident in which C has bitten the child anywhere. He says the child has not reported any incident to him of C touching her genital area or touching her in a sexual manner.

12. As noted above, the mother has not permitted the child to spend any time with C since the allegations arose, and only limited time with the father. The father also says that on a number of occasions since March 2014 the mother has sent him text messages cancelling his time with the child or Skype chats, stating that the child said she did not want to attend.

13. The Magellan Report, released on 30 May 2014, indicates that a single risk of significant harm report had been received since September 2013 and three non-risk of significant harm reports had been received between October 2013 and April 2014. The risk of significant harm report proceeded to secondary assessment. The investigation was completed in early October 2013 and the allegation substantiated that C had sexually harmed the child. C was at that time recorded as a “Person Causing Harm” on their database and the child was referred for sexual assault counselling.

14. As to the investigation, it was noted that the child had limited ability to engage in a structured investigative interview due to her young age and developmental stage. the child did not respond to questions for further information of the alleged harm and was focused on playing with toys.

15. When C was interviewed by JIRT he admitted touching the child’s on “her private parts”. He said this was when the child was about one and a half years old (and he was about seven years old). He said he knew what he had done was wrong. He denied biting the child’s vagina and denied there had been any other occasion. He did not provide any context and it was unclear when and where the incident had occurred.

16. Upon receiving the request for a Magellan Report, Community Services reviewed the risk assessment conducted in late 2013 and reversed their decision, concluding that sexual harm was not substantiated and C’s “Person Causing Harm” record was to be at an end dated from 23 May 2014. Their reasons for reversing their decision included that the child was unable to provide context about the alleged incident, C’s responses and that his behaviour at the time could be considered developmentally appropriate and could have occurred as a result of curiosity and exploration as opposed to a sexual abuse context. Community Services found the likelihood of harm or risk to the child in the father’s care as low and the matter was closed.

17. The mother maintains that C has sexually abused the child and that the child is at risk of harm in the father’s care, in that the father is not sufficiently supervising C and the child together.

18. The father denies that the child is at risk of harm in his care or at his home. He presses for overnight and unsupervised time, but agrees to supervise the child at all times whilst she is in his care. He denies witnessing any incident as alleged by the mother of abuse of the child by C.

19. The JIRT investigation focuses upon whether there is evidence that a person (in this case C) had allegedly sexually abused the child. Although this investigation firstly substantiated but later reversed the decision, the question of risk of harm is broader than whether an allegation of sexual abuse has been found substantiated. In this case, although Community Services found that C’s behaviour may have been due to curiosity and exploration, which means that “sexual abuse” is not substantiated, it does not necessarily follow that there is no risk of harm to the child. There seems to be no dispute that the child has shown some disturbing behaviour since separation, including hitting and biting other children.

The parties’ respective proposals

1. The mother sought orders providing for the child to spend only supervised time with her father on an interim basis and that the child and C be restrained from coming into contact with one another.

2. The father sought orders for him to spend unsupervised and overnight time with the child and that he supervise her at all times whilst she is in his care.

3. If a supervisor was deemed necessary, the mother proposed a number of persons, which the father objected to, saying they were either friends or strongly influenced by the mother. He proposed his sister Ms D supervise.

4. The Independent Children’s Lawyer’s proposal, as was adopted by the Court, provided for the father to spend unsupervised time with the child each Wednesday for a five and a half hour period and that the father be restrained from allowing the child and C to have any form of contact, other than in family therapy as recommended by the Independent Children’s Lawyer.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].

   [2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In Dieter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.

3. Goode (supra) sets a framework for the conduct of interim proceedings. After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility. 

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Parental responsibility

1. In this matter, the mother seeks sole parental responsibility for the child, whereas the father and the Independent Children’s Lawyer seek that the parties share parental responsibility for the child.

2. Under section 61DA(1), when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence or when the Court is making an interim order, the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

1. In my view, there is no reason why the presumption should not apply. The main issue that the mother is concerned about, the risk of sexual harm to the child is not suggested on the basis that the father has perpetrated abuse, but rather that he has not provided adequate supervision. There are no circumstances in this matter that require such an extreme order that excludes the child’s father from making decisions concerning her.

2. An order will be made on an interim basis for the parents to exercise equal shared parental responsibility for the child, as sought by the Independent Children’s Lawyer. It is considered that it is in the child’s best interests for both of her parents to be involved in significant decisions regarding her future.

Section 60CC considerations – What order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3). The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.

4. Protecting the child from any physical harm in the father’s care is the matter to be given primary consideration in this case. Whether C poses a risk of harm to the child as alleged by the mother and denied by the father is a matter that will need to be examined and determined at the final hearing. The Independent Children’s Lawyer’s proposal for the child to spend some day time with the father and for the child to be restrained from coming into contact with C are orders that are sufficiently protective of the child, whilst allowing the child to benefit from having time with her father. It is not considered necessary for the father’s time to be supervised if the restraint against the children coming into contact (save for in the context of family therapy) is put in place.

Views expressed by the child

1. The mother gives evidence in her affidavit that suggests that the child’s current wishes appear to be unclear. She says that the child has not been willing to speak to the father by telephone or FaceTime on a number of occasions recently, and has on occasion requested not to see him. On the other hand, the mother says that the child has on occasion asked if she can “go to Daddy’s house”. The mother says that the child has also indicated that she wishes to see and speak to C.

2. In any event, the child is only four and a half years old and for this reason alone, no weight will be placed on her “wishes”.

B’s relationship with each of her parents and other significant persons

1. The mother is the child’s primary carer and has been her entire life. the child has been spending time with her father since the parties’ separation, but on a less frequent basis recently because of the sexual abuse allegations.

2. B has had a close sibling relationship with her half-brother C until recently when they have been prevented from spending any time together since late 2013.

Extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spending time with or communicating with the child

1. The parties appear to have been able to communicate and cooperate at times since separation, with initially an agreement in place for the father to spend regular time with the child. Their communication appears to have become less effective in recent times because of the sexual abuse allegations  and the commencement of these proceedings, and the father makes some complaint about the mother not having notified him in a timely manner of significant matters, such as the child needing surgery at the start of this year.

2. The parties have been able to communicate and cooperate recently to put in place the father spending some day time with the child, mostly at a shopping centre.

Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child

1. The mother has been primarily financially responsible for the child, but the father pays child support of about $250 per month, which assists with child care expenses.

Likely effect of change in the child’s circumstances

1. The Independent Children’s Lawyer’s proposal would provide for the child to spend some more regular time with the father than is presently the case. It also continues the current situation of the child living with her mother and spending no time with her half-brother C on an interim basis, which has been the situation since about September 2013.

Practical difficulty and expense of the child spending time with and communicating with the father

1. This is not a relevant consideration in this matter.

The capacity of each parent to provide for the child’s needs, including emotional and intellectual needs

1. It is the mother’s case that the father has not adequately supervised the child when she has been in his home and in the presence of C. This is a contested matter which will be examined at the final hearing.

2. B appears to be expressing a wish to see her brother C and, on an interim basis it appears appropriate to continue the suspension of their time together, but this matter will be examined also at final hearing in respect of the child’s emotional needs in this regard.

Attitude to the child and responsibilities of parenthood demonstrated by each parent

1. Upon the child making disclosures of her brother sexually harming her, the mother acted in a protective manner and has not permitted any further contact between them for the time being. It will be a matter for determination at the final hearing whether C represents an unacceptable risk of harm to the child and whether this situation should continue. The mother’s actions in limiting the father’s time with the child also appear to be driven by protecting her from harm, however it will also be a matter for final hearing whether the mother has actively tried to facilitate them spending time together and communicating with each other in a safe environment.

2. The father has accepted the concerns raised by the mother in proposing to ensure that the child is supervised at all times whilst in his care, and has been proactive in trying to spend time and communicate with her since the allegations arose. He has been responsible in ensuring that the children have not come into contact with one another, such as when the parents and the children unintentionally were at a doctor’s clinic at the same time. He has also explained to the child in an age-appropriate manner why she is not able to currently spend time with C.

Family violence involving the child or a member of her family

1. The mother alleges an incident of family violence during the relationship whereby the father pushed her. This is a contested matter and will be examined at the final hearing.

Conclusion

1. The orders proposed by the Independent Children’s Lawyer are protective of the child, whilst facilitating her continuing to have a meaningful relationship with her father. They provide for the child to spend day time, unsupervised, with her father once per week.

2. The proposal also requires the parties to engage in family therapy, which is considered appropriate in the circumstances of this case.

3. Accordingly, Orders were made in accordance with the Independent Children’s Lawyer’s proposal on 30 June 2014 for the reasons set out.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 August 2014.

Legal Associate:       

Date:    25 August 2014