DODD & CARSON
[2011] FamCA 256
•13 April 2011
FAMILY COURT OF AUSTRALIA
| DODD & CARSON | [2011] FamCA 256 |
| FAMILY LAW - CHILDREN - Best interests of the child - Where there are allegations of sexual abuse of the child by the father |
| Family Law Act 1975 (Cth) |
| Johnson and Page (2007) FLC 93-344 Warsow & Warsow [2010] FamCA 591 |
| APPLICANT: | Mr Dodd |
| RESPONDENT: | Ms Carson |
| INDEPENDENT CHILDREN’S LAWYER: | Grant & Associates |
| FILE NUMBER: | BRC | 7589 | of | 2008 |
| DATE DELIVERED: | 13 April 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 30-31 August 2010, 24-25 and 27 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Boe, with him Ms Gass |
| COUNSEL FOR THE RESPONDENT: | Mr Farr SC |
| COUNSEL FOR THE INDEPENDENT CHLDREN’SLAWYER: | Dr Sayers |
Orders
The parties have equal shared parental responsibility for their child,
C (“the child”), born on … February 2002 subject to the exception set forth in Order 3(d).
The parties jointly make all relevant major decisions regarding the long-term care, welfare and development of the child, except in the case of emergency.
The procedure for making all relevant major decisions regarding the long-term welfare of the child is as follows:
(a)the party wishing to procure the consent of the other party shall provide in writing to the other party the proposal and the reasons therefore
(b)the other party, within seven (7) days of its receipt, shall notify in writing the proposing party as to whether he or she agrees with the proposal referred to in Order 3(a)
(c)in the event of disagreement, the other party, within seven (7) days of receipt of the notification referred to in Order 3(b), shall provide in writing to the proposing party notification of such disagreement and the reasons therefore; and the parties shall submit the disagreement to mediation by a mediator chosen by the proposing party from three recognised family law dispute mediators nominated by the other party
(d)in the event that mediation does not achieve agreement, the mother shall have sole parental responsibility for the making of the decision if it concerns the psychological or psychiatric treatment of the child or the education of the child.
The parties shall each have responsibility for the day-to-day care, welfare and development of the child while the child is living with or spending time with himself or herself.
The child shall live with the mother.
The child shall spend time with the father during the school term as follows:
(a)for two months, commencing 13 April 2011, each alternate weekend, from 9.00 am to 5.00 pm on Saturday
(b)
for the next ensuing three months, commencing 13 June 2011, each alternate weekend, from 9.00 am to 5.00 pm on Saturday and from
9.00 am to 5.00 pm on Sunday
(c)for the next ensuing three months, commencing 13 September 2011, each alternate weekend, from 9.00 am on Saturday to 5.00 pm on Sunday
(d)thereafter, commencing 13 December 2011, from the conclusion of school (or 3.00 pm if a non-school day) on Friday to the commencement of school (or 3.00 pm if a non-school day) on Monday (or Tuesday, if the Monday falls on a long weekend).
The time spent by the child with the father as set forth in Order 6(a), (b) and (c) shall be in the presence of and under the supervision of the paternal grandmother or such other person as the parties may agree in writing.
The first three months of the time spent by the child with the father as set forth in Order 6(d) shall be in the presence of and under the supervision of the paternal grandmother or such other person as the parties may agree in writing.
During the period of supervision as set forth in Orders 6-8, the child shall spend time with the father for up to four consecutive days of each school holiday period, in addition to any special occasions on which the child shall spend time with the father under these Orders. For the purpose of facilitating such time, the father shall give the mother written notice of the proposed dates at least one month prior to the first of those dates.
Following the period of supervision as set forth in Orders 6-8, the child shall spend time with the father for one-half of each school holiday period as the parties may agree or, in the absence of agreement, for the first half in
even-numbered years and the second half in odd-numbered years.
During the period of supervision as set forth in Orders 6-8, the child shall not spend any overnight time with the father other than at the paternal grandparent’s residence, unless otherwise agreed.
Following the period of supervision as set forth in Orders 6-8, the child shall only spend overnight time with the father at a residence where there is separate sleeping accommodation for the child.
Special Occasions
Notwithstanding any order to the contrary, the child shall spend time with the father from 3.00 pm on Christmas Eve to 3.00 pm on Christmas Day in
even-numbered years, and from 3.00 pm on Christmas Day to 5.00 pm on Boxing Day in odd-numbered years, unless otherwise agreed.
The child shall spend time with the father on the child’s birthday (if the child is otherwise in the care of the mother on that day) as follows:
(a)
if the child’s birthday falls on a weekend, from 2.00 pm to 6.00 pm on that day in even-numbered years, and from 9.00 am to 2.00 pm in
odd-numbered years
(b)if the child’s birthday falls on a school day, as the parties may agree or, in the absence of agreement, from 4.00 pm to 6.00 pm on that day.
The child shall spend time with the father on the father’s birthday (if the child is otherwise in the care of the mother on that day) as follows:
(a)if the father’s birthday falls on a weekend, from 9.00 pm to 5.00 pm on that day
(b)if the father’s birthday falls on a school day, from 4.00 pm to 6.00 pm on that day.
The child shall spend time with the father from 9.00 am to 5.00 pm on Fathers Day (if the child is otherwise in the care of the mother on that day).
The child shall spend time with the mother on the mother’s birthday (if the child is otherwise in the care of the father on that day) as follows:
(a)if the mother’s birthday falls on a weekend, from 9.00 am to 5.00 pm on that day
(b)if the mother’s birthday falls on a school day, from 4.00 pm to 6.00 pm on that day.
The child shall spend time with the mother from 9.00 am to 5.00 pm on Mothers Day (if the child is otherwise in the care of the father on that day).
During the period of supervision as set forth in Orders 6-8, the time spent by the child with the father as set forth in Orders 13-16 shall be in the presence of and under the supervision of the paternal grandmother or such other person as the parties may agree in writing.
Changeover
On all occasions on which the child spends time with the father, the mother shall be responsible for delivering the child to the nominated address of the father at the commencement of that time, and the father shall be responsible for returning the child to the nominated address of the mother at the conclusion of that time, unless otherwise agreed.
Telephone Contact
The mother shall facilitate the child making telephone calls to the father at any reasonable time.
The father shall facilitate the child making telephone calls to the mother at any reasonable time.
The father may telephone the child, while the child is in the mother’s care, at 6.15 pm each Monday, Wednesday and Friday.
The mother may telephone the child, while the child is in the father’s care, at 6.15 pm once each two days unless otherwise agreed.
Each party shall afford the child privacy in which she can communicate by telephone with the other party.
Other Matters
Each party is restrained from saying or permitting anything to be said in the presence or hearing of the child which denigrates the other party or their relatives or partners, or which is a discussion of these proceedings.
The parties shall enrol in and attend such post-separation parenting course as nominated by Mr P, the Family Consultant in these proceedings or, in the absence of such nomination, as nominated by the Director of Child Dispute Services.
The parties and the child shall attend forthwith on the Child Dispute Services of this Court so that the parenting arrangements created by these Orders may be appropriately explained to the child by Mr P or such other Family Consultant as is nominated by the Director of Child Dispute Services.
Pursuant to s 65L of the Family Law Act 1975 (Cth), these Orders shall be supervised for a period of one year from the date of these Orders so that the parties may during such period consult a Family Consultant of this Court for the purpose of seeking assistance in relation to compliance with or the carrying out of these Orders.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached to the engrossed Orders and these particulars are included in these Orders.
All material produced in response to subpoenas is to be returned to the party who produced it.
The matter is removed from the list of Active Pending Cases.
IT IS NOTED that publication of this judgment under the pseudonym Dodd and Carson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7589 of 2008
| Mr Dodd |
Applicant
And
| Ms Carson |
Respondent
And
| Grant & Associates |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Before the Court are parenting proceedings with respect to the only child of the applicant father, Mr Dodd (“the father”) and the respondent mother, Ms Carson (“the mother”); namely, C (“the child”), born in February 2002 and now nearly nine years old.
One of the major issues in these proceedings is whether the child has been sexually abused by her father. The father has denied such allegations against himself, as did the child in an interview with a Joint Investigation Response Team (“JIRT”) on 19 March 2007.
If that finding cannot be made, the issue then arises as to whether the child would, in the care of her father, be placed in a situation of unacceptable risk of harm.
Those issues arise out of alleged disclosures by the child to the effect that her father has inappropriately dealt with herself, and certain sexualised behaviour exhibited by the child.
Following the determination of those issues, the Court is asked to plan a future relationship between the child and her parents.
The Background Facts
Where, in this judgment, I make statements of fact, they are, unless otherwise specified, my findings of fact.
In 1970, the father was born.
In 1971, the mother was born.
In 1990, the parties met and, soon thereafter, commenced a relationship with one another.
In 1996, the parties married.
In February 2002, the child was born.
In about March 2006, the child allegedly first drew a drawing of what appears to be a group of people with male genitalia shown.
In about July or August 2006, the child said to the mother, in the presence of the father and the maternal grandmother, “Daddy kissed me on the lips and he used his tongue”.
In late 2006, on different occasions, the mother allegedly observed redness around the child’s vagina; a finger-length red mark on the child’s groin; and the child repeatedly trying to rub her vagina against the mother.
On 31 December 2006, the parties separated. At that time, the child was four years and ten months old. Following the separation, she remained living with the mother and the parties initially agreed as to the time spent by herself with the father. She did not see the father until 15 January 2007.
On 2 January 2007, the child allegedly said to the maternal grandmother, when the maternal grandmother told her to stop rubbing her vagina, “Mummy does when she puts Penaten cream on and Daddy puts his wee wee to my wee wee and also we rub bottoms but only when Mummy is not home”. This allegation is particularised in the Notice of Child Abuse filed by the mother on
24 September 2008 and set out hereunder.
Between about January 2007 and May 2007, on different occasions, the mother allegedly observed the child frequently exhibit certain sexualised behaviour, including masturbating, rubbing her vagina against others and wriggling her bottom in front of others.
On 2 and 3 February 2007, further disclosures were allegedly made by the child to the mother and the maternal grandmother suggesting that the father has inappropriately dealt with the child. These allegations are also particularised in the Notice of Child Abuse filed by the mother on 24 September 2008 and set out hereunder.
On 9 March 2007, the mother first made a notification by telephone to the Department of Community Services (“DOCS”) (as it was then known).
On 14 March 2007, the mother attended upon the Child Protection Unit of Hospital 1.
On 19 March 2007, an interview of the child was conducted by a Joint Investigative Response Team (“JIRT”). A video of that interview was tendered into evidence during the hearing. A more detailed description of that interview is set out later in these reasons.
In summary, in the interview, the child not only denied that the father has inappropriately dealt with herself, but also that she had ever told the mother that he had done so. The child’s denials in these regards were straightforward, unhesitating and gave every appearance of being spontaneous and genuine.
Nothing about the interview gives support to the allegations made against the father as to abuse of the child. In fact, the interview gives support to quite the opposite. If the child’s denials were genuine, then the allegations were false.
Experts called said that the interview was conducted appropriately and competently. However, the mother and the maternal grandparents, particularly the maternal grandfather appeared upset that no disclosure had been made in the interview by the child as to the father having inappropriately dealt with herself. They said that the interview should have been conducted by a “more experienced” officer.
Subsequent to the interview, DOCS closed its file on the matter.
On 18 and 25 April 2007, a further disclosure was allegedly made by the child to the mother and the maternal grandmother suggesting that the father has inappropriately dealt with the child. That allegation is also particularised in the Notice of Child Abuse filed by the mother on 24 September 2008 and set out hereunder.
On 18 May 2007, the father relocated from Sydney to Brisbane.
On 27 June 2007, the mother relocated with the child from Sydney to Brisbane.
On 23 September 2007, the mother first notified the father of the allegations against himself as to abuse of the child, and of the interview of the child by JIRT on 19 March 2007. She told him that the interview was inconclusive, and that there might not be any further action taken at that time. This is a misleading report of the outcome of the interview.
From 23 September 2007, when the mother first notified the father of the allegations, the father absented himself from the child’s life for a considerable period of time; specifically, for a period of about 14 months.
The father did not formally seek that the child spend time with himself until
19 August 2008, and the child did not spend time with him until 14 February 2009.
The father reports himself as having been “gutted” by the allegations and he remorsefully accepts that his action in absenting himself from the child’s life was not child-focussed, but rather was one of which the focus was himself. However, hindsight always produces a counsel of perfection. The action of the father in absenting himself from the child’s life fell short of that standard, and he acknowledged that.
In about January 2008, the child commenced her formal primary school education.
On 19 August 2008, the father, with appropriate advice, initiated these proceedings by filing an Application for Final Orders in relation to the child. As an explanation of some part of the delay, he said that he had previously been given some advice. That advice was not particularly helpful; for example, that he should end the financial dispute between the parties before turning his attention to the parenting dispute.
On 24 September 2008, the mother filed a Response to an Application for Final Orders and a Notice of Child Abuse.
That notice gives the following particulars as to abuse of the child, with the caveat that the acts allegedly constituting such abuse are only known by the mother so far as they have been disclosed by the child:
(a)In about July/August 2006 in the presence of [the maternal grandmother]… [the father]… and [the mother]… [the child] said: “Daddy kissed me on the lips and he used his tongue.”
(b)Date: 2 January 2007
In the presence of [the maternal grandmother], [the child] rubbed her finger repeatedly upon her vagina. [The maternal grandmother] told her not to do so. [The child] then stated:-
“Mummy does when she puts Penaten cream on and daddy puts his wee wee to my wee wee and also we rub bottoms but only when mummy is not home.”
(c)Date: 2 February 2007
[The mother] got into [the child’s] bed and began to read a story to her. [The child] said:-
“We are touching bottoms.”
[The mother] indicated that they were not and lifted the sheet to show [the child] her leg next to [the mother’s] leg. She then said:-
“Who touches bottoms with you?”
The following conversation then occurred…
[The child] - “Daddy”
[The mother] - “Does anyone else do this?”
[The child] - “No, only Daddy.”
[The mother] - “What does he do?”
[The child] - Demonstrated with her wriggling her bottom against [the mother] up on all fours.
[The mother] - “Does he do anything else?”
[The child] - “He touches my wee wee”
[The mother] - “Where does he do this?”
[The child] - “In his office”
[The mother] - “I thought there were people there when you went there”
[The child] - “No, only the fish”
[The mother] - “What does he do there?”
[The child] - “He touches my bottom and wee wee with his. Sometimes he tries to wee on me but I run away.”
[The mother] - “Do you have clothes on?”
[The child] - “No I don’t have any clothes on sometimes. He tried to put his thumb there (pointed to wee wee) but it was too big” (laughing).
[The mother] - “Daddy isn’t allowed to do that”
[The child] - “I don’t mind Mummy.”
(d) Date: 3 February 2007
In the presence of [the maternal grandmother]… [the child] lay on her hand, held her crutch and said:-
“Daddy does this, he pulls down my pants and puts a hand on my wee wee and makes me close my legs and he pats me on the bottom. Sometimes when he comes home late he wakes me up and pulls down my pants.”
(e) Date: Shortly thereafter on 3 February 2007
In the context of a conversation between [the mother] and [the child]…
[The mother] - “Do you have something you wanted to tell me…”
[The child] - “It’s not good”
[The mother] - “…it’s OK. You can tell me anything. I won’t be angry.”
[The child] - “Sometimes Daddy wakes me up and touches my wee wee and bottom”
[The mother] - “When does he do this?”
[The child] - “At night when you are sleeping”
[The mother] - “What does he do?”
[The child] - “He pulls down my pants and he does this” – demonstrated touching her vagina with her hand cupped over it.
[The mother] - “Does he say anything?”
[The child] - “He asks me if it feels nice and then he covers his ears.”
[The mother] - “Does he say anything else?”
[The child] - “He tells me I have an ugly wee wee and an ugly bottom and an ugly forehead and an ugly body and ugly cheeks when they are red…”
[The mother] - “When?”
[The child] - On the telephone… Stop thinking about it! Stop thinking about it! Stop thinking about it! (…[The child] was hitting herself repeatedly on the forehead whilst saying this and then changed the subject)
(f) Date: 18 April 2007
[The child] stated:-
“Daddy’s willy is long and thin like a noodle. Who wants to put daddy’s willy into their mouth while he is doing a wee wee.”
That notice also gives the following particulars of sexualised behaviour allegedly exhibited by the child:
(a)During 2006 at various times throughout the year, all [the child’s] drawings of people had penises drawn upon them.
(b) Commencing the 2006 Christmas holidays, [the child] began trying to rub her vagina against [the mother] while trying to sit upon her. This increased in its regularity until during the early few months of 2007 it occurred several times each day. Until this behaviour began gradually reducing in May 2007, examples of [the child’s] sexualised behaviour with [the mother’s] family members (those family members being [the mother]… [the maternal grandmother]… and [the maternal grandfather]… ) are as follows:-
(i)Trying to rub her genitals against their legs; arms; torsos; and feet;
(ii)Trying to put [the mother’s] finger between the cheeks of [the child’s] bottom;
(iii)Asking her family members to sit on her feet or lap;
(iv)Sticking her bottom at family members when she sat next to them and asking them to touch her bottom;
(v)Masturbating herself with her hand;
(vi)Laying across family members’ laps with one leg raised in a sexual type of position;
(vii)Stimulating herself with toys in the bathtub and saying that it is “Action time”;
(viii)Trying to wrap her legs around [the mother’s] neck telling her she was giving her a hug;
(ix)Trying to wrap her legs around [the mother’s] arm; pressing her vagina against [the mother’s] arm and saying that she was “Playing monkey games. Daddy plays this with me at work.”
(c)This behaviour was more marked after telephone discussions with her father or after seeing her father.
In November 2008, the child recommenced communicating by telephone with the father pursuant to Interim Orders of 25 November 2008.
In about November 2008, the mother allegedly again observed the child exhibit certain sexualised behaviour, including masturbating, rubbing her vagina against the mother and wriggling her bottom near her face.
On 18 November 2008, the first family report of Mr P, the Family Consultant in these proceedings was released.
On 29 January 2009, the first report of Dr M, a psychiatrist was released.
On 14 February 2009, the child recommenced spending supervised time with the father at a contact centre pursuant to Interim Orders of 25 November 2008.
On 8 May 2009, a second family report of Mr P was released.
On 3 August 2009, Consent Orders were made in relation to property.
On 11 February 2010, a report of Dr S was released.
On 24 February 2010, a second report of Dr M was released.
In May 2010, the child commenced spending unsupervised time with the paternal grandparents.
On 16 June 2010, the parties became divorced.
On 5 July 2010, a third report of Mr P was released.
The matter was set down for final hearing for four days commencing 30 August 2010, a period of time assessed as being appropriate. However, during the hearing, it became apparent that certain documents, which had been subpoenaed and produced, had not been inspected. Leave was granted for these documents to be inspected. Having regard to the volume of these documents, that inspection could not be undertaken in the time available. Given this case involved the rights and future of a child, and one in which serious allegations have been made as to abuse of the child by a parent, the matter regrettably had to be adjourned for further hearing commencing
24 January 2011.
In the interval between the hearing of the matter in August 2010 and January 2011, the child spent supervised time with the father at his residence.
The Issues
The issues for determination have been limited to an extent by the hard work of the parties, ably assisted by their legal representatives. However, serious general and particular issues for determination remain.
At the close of evidence, counsel for the mother conceded that the evidence did not support a finding that sexual abuse of the child by the father has occurred, but sought a finding of unacceptable risk of harm. The father asserts that the evidence did support a finding that no such sexual abuse has occurred.
During the hearing, a minute of orders sought by the father, and partly agreed to by the mother, was produced. It was the subject of submissions by the parties and the Independent Children’s Lawyer.
The Evidence
The mother, the father, the maternal grandparents and the paternal grandmother each filed affidavits and were cross-examined.
Evidence was also received in the form of expert reports prepared by
Mr P, the Family Consultant in these proceedings and a number of other experts; namely, Dr W, Dr S and Dr M. These experts, along with Dr J, a therapist treating the child, were cross-examined.
Exhibit “7”: Digital Video Disc of the Interview of the Child by JIRT on
19 March 2007
At the commencement of the proceedings, the Court was provided with a Digital Video Disc of the interview of the child conducted by JIRT on
19 March 2007 following a complaint by the mother. During the proceedings, the interview of the child was the subject of comment by a number of the witnesses.
When viewing the Digital Video Disc, it appeared to the Court that, at the commencement of the interview, the child was relaxed and the interviewer sought to put her at ease. She was given coloured pens and invited to colour in a picture. She seemed happy to do so.
The interviewer commenced the interview by taking the child through the usual questions as to what it means to tell the truth and what it means to tell a lie. The child not only agreed that it is not good to tell a lie, but said that lying would likely cause her to be in trouble. She also undertook to tell the truth for the duration of the interview, and to say that she did not understand a question if that was the case, or to say that it was too hard to talk about a question if that was the case.
When asked whether she still saw the father, the child said that she did still see him and she gave some details about that.
In response to the question of whether there was anything that was making her unhappy, the child said, “No”.
The interviewer showed the child a picture of a girl, which she correctly identified as such. She was taken through the various parts of the body of that girl and asked whether anyone had ever touched those parts of her body. Her responses reflect what one would expect. She said that the only people who were allowed to touch her “tummy” were “…Mummy and Daddy if they want to put Vicks on it”. She said that no one was allowed to touch her “wee wee” or her “bottom”. She said that, if someone tried to touch her “bottom”, she would “…just shoo them away”.
The interviewer then showed the child a picture of a boy, which she correctly identified as such. Initially, she was reluctant to identify the difference between male and female anatomy, but went on to say that the difference lies in what is between the legs of a person. When asked what is between the legs of a boy, she reluctantly said, “A willy”. She said that she had been told so by a girl living next door to her. She was reluctant to say so because “…someone might get angry”; namely, “Mummy”. When asked whether she had ever seen a “willy”, she said that she had seen that of a boy living next door to her.
The questioning turned to the father. The child confirmed that she was spending time with him without the mother being present. She said that, on those occasions, they played games together. She was unable to recall those games.
The child’s only negative comment about the time spent by her with the father related to an incident when he knocked over a mug of hot chocolate, causing it to spill onto her. She said that, because of this incident, she preferred the mother being present when she spent time with the father.
When asked what she had told the mother and the maternal grandmother about the time spent by her with the father, she said, “I don’t know, and I don’t remember”. She first agreed that it was a question that was too hard to talk about, and then that it was a question of which she could not remember the answer.
The child denied ever having taken off her clothes when the father was present. She said without much thought, “No”.
In relation to what she does not like about spending time with the mother, she said, “… I don’t like shopping with Mum… cause it’s too cold”. As regards the maternal grandmother, she said, “Sewing or knitting because I don’t know how to sew or knit”. She could not identify anything that she did not like about spending time with the maternal grandfather, or the father. She said, “Nope. Nothing I don’t like doing with Daddy”.
The child was then asked whether anyone has ever touched her somewhere on her body that made her feel uncomfortable. She responded, “No”. She denied anyone ever having touched her on her “bottom”. As to whether anyone has ever touched her on her “wee wee”, she said, “Only Mummy if I have a sore wee wee… Mummy needs to put Penatin cream on it. It really is for nappy rash but I don’t really wear a nappy anymore… Just sometimes germs get in there”.
The interviewer then put it to the child that she had told the mother that the father had touched her on her “bottom” and “wee wee”. She denied ever having told the mother that. She denied that the father had ever touched her on her “bottom” and “wee wee”, or any other part of her body that made her feel uncomfortable. She denied that she had touched the father, saying, “Oh no I’ve never done that. Cause he’s too hairy! … All over him and he’s too spiky for me to kiss him on his chin because too many whiskers! Ah spiky!” She said that she knew that the father was hairy because she had felt his chest, but nowhere else on his body.
When asked by the interviewer whether the father has a “willy” and whether she had ever seen the father’s “willy”, the child said that he did and that she had seen it “…[w]hen he’s in the shower… And when he’s in the bath”. She said, “Cause sometimes I duck under the water and see”. She further said, “…his arms are around his willy so I don’t see it when I duck under water… he’s covering his willy up… Because he doesn’t want me to see… just because it’s embarrassing for him”.
The interviewer then put it to the child that she had told the mother that the father sometimes tried to “wee” on her, but that she would run away. She denied ever having told the mother that. She denied that the father had ever tried to do so. She did not know why anyone would say that she had told the mother so.
The child affirmed that she liked to spend time with the father.
The child was lastly asked whether she had told any lies during the interview, to which she responded, “No”.
The Court’s impression of the interview is that the child responded directly and gave spontaneous answers to the questions put to her by a competent interviewer in a relaxed environment. Nothing about the interview gave the Court the impression that the child did otherwise than give frank answers. There was no significant hesitation or avoidance of questions on the part of the child. The only occasion on which the child said that she did not want to talk about something was in relation to the allegation that the child had told the mother that the father had tried to “wee” on her. However, when asked whether it happened and she did not want to talk about it or whether it did not happen, the child said, “It didn’t happen”. The child’s denials in the circumstances of the interview seem genuine. Accepted on their face, they belie the allegations of disclosures made by her that the father has inappropriately dealt with her.
Because of the spontaneity of the child’s answers and the lack of significant hesitation or avoidance of questions on the child’s part in the context of an interview conducted by a competent interviewer, weight is given to the child’s denials.
However, there is alleged to have been, subsequent to the interview, a further disclosure by the child as to the father having inappropriately dealt with her, and further sexualised behaviour exhibited by the child. That allegation and that sexualised behaviour are particularised in the Notice of Child Abuse filed by the mother on 24 September 2008 and set out above.
Evidence of Mr P
Mr P, the Family Consultant in these proceedings has prepared three reports: the first dated 18 November 2008; the second dated 8 May 2009; and the third dated 5 July 2010.
In the preparation of the first report, Mr P interviewed the father alone, the mother alone and the child alone. He observed the father and the child together. He also considered some of the material filed and otherwise provided in these proceedings.
In the first report, Mr P observes that, during the interview, the child was comfortable with talking about the father and that she repeatedly recalled the father’s departure from the former matrimonial home. He observes that “[a]s she talked about not seeing her father she looked sad and sat motionless. As she talked about her memories of him she became excited and smiled”. In relation to spending time with the father, the child said, “… I’m not allowed to see him on my own… Because he pulled my undies down in the street and he pointed and laughed…”
That incident was one of no great significance to anyone but the child. The father said that he had simply “daked” the child, and that he had only pulled down the child’s pants and not her underwear. However, the evidence suggests that that incident did have a significant impact on the child. Mr P says that the child may have retained memory of that incident because of, inter alia, “her confusion and sadness associated with her father’s absence [from] her life”. He assesses the child as having been “terribly hurt by the father’s decision to not communicate with… or spend time with her over the past 12 months”.
In relation to the father absenting himself from the child’s life for such a period of time, Mr P says, “The only conclusion I can draw is that his decision to avoid contacting [the child] was a selfish act which appears to have been aimed at preserving his pride rather than an advancement of [the child’s] welfare”. He questions the father’s capacity for empathy. He says, “[the father] does not appear to have given adequate thought to [the child’s] experiences and her perceptions of why he has not bothered to respond to her attempts to contact him”. He further says, “…I suspect [the father’s] lack of emotional attunement to [the child] is more a result of ignorance rather than a conscious or deliberate intention to harm her”.
Notwithstanding the criticism and concern about the father absenting himself from the child’s life for a considerable period of time, Mr P observes that “it is obvious that [the child] desires a relationship with her father” and that “[the] father appears to desire a relationship with [the child]”.
Mr P takes the view that continued contact between the father and the child ought to be conditional on the father’s capacity and willingness to make shifts in his thinking and attitude about parenting. He finds the father’s acceptance of his critical comments in relation to the father’s parenting, and the father’s interaction with the child during the interview encouraging. He expresses some concern that “…given [the father’s] history… his enthusiasm in… remaining in [the child’s] life might… wane”.
Mr P recommends that the child spend supervised time with the father at a contact centre on a regular basis. He says that, that way, “… the relationship will be better positioned to allow [the father] to demonstrate and re-establish trust and consistency in [the child’s] eyes”.
Mr P further recommends that, if the Court does not come to the conclusion that there is an unacceptable risk of harm to the child if placed in the father’s unsupervised care, the supervision of the time spent by the child with the father only occur for a period of no more than four months. He recommends that, if the Court does come to the conclusion that there is such a risk, there be a psychiatric assessment of the mother and the father.
In the preparation of the second report, Mr P interviewed the father alone, the mother alone and the child alone. He observed the father and the child together from behind a one-way screen. He spoke by telephone with Dr J, a therapist treating the child. He also considered some of the material filed in these proceedings.
In that report, Mr P expresses concern about the mother’s monitoring of telephone communication between the child and the father. He says that her monitoring of such communication “could have an undesirable effect on [the child]”. He accordingly recommends that it cease.
Mr P observes that the mother was able to acknowledge that the child wanted the father in the child’s life, and that the mother was gradually accepting the father’s presence in the child’s life. However, he observes that the mother emphasised that such acceptance was only because the child was spending supervised time with the father.
The mother reported that, subsequent to the child recommencing communicating and spending time with the father, the child exhibited what she described as “some worrying non-verbal behaviours”, including insisting on sleeping in her bed and some of the sexualised behaviour particularised in the Notice of Child Abuse filed by her on 24 September 2008. Mr P interprets such behaviour to be situational and age appropriate. He says, “It must have been very confusing and confronting for a child of [the child’s] age… that… she would be speaking again to her father and then… seeing him in person” and “I believe [the child] has done what the majority of normal children would do in the [same] situation”.
Mr P observes that the child “eagerly and willingly” talked about spending time with the father at the contact centre and that the child said that she liked speaking with the father on the telephone.
Mr P had watched the father and the child interacting with one another from behind a one-way screen. He says:
The session was characterised by very high levels of active and energetic play which at times… verged on being boisterous… [The child] and her father appear to ‘egg’ each other on… [The child] clearly enjoys her father’s style of relating… The feeling I got was more akin to watching two peers interact… The potential risk with this type or mode of parenting is that the child does not know when the parent is being serious and when they are being playful… I suspect this may have been what happened in regards to the incident when [the child] was left confused after [the father] pulled her pants down in public.
The father clearly expressed a wish for the child to spend time with him outside of a contact centre, although he accepted that supervision of that time would still be required for some time. He explained that he remains fearful that the mother or the maternal grandmother could make further allegations against himself as to his parenting of the child.
The mother opposed the child spending time with the father outside of a contact centre on the basis of there being, in her view, no suitable alternative. She was opposed to the paternal grandparents supervising the time spent by the child with the father. She maintained the belief that the father had sexually abused the child.
Mr P observes that the child was “pleased and excited about having her father back in her life”. He says, “When I first saw her in November she was very despondent because of her perceived rejection by her father but since has been communicating and spending time with him this appears to have dissipated”.
However, Mr P recommends that the time spent by the child with the father continue to be supervised at a contact centre. He says, “I am perhaps being over cautious but despite her overt signs of excitement and joy… Based on my assessment I am inclined to suggest that a continuation of supervised time at the contact centre is currently indicated as best serving [the child’s] needs”. That recommendation is said to have been based on a number of issues and factors, including: the history of the father-daughter relationship; the mother’s allegations against the father; the level of risk to the child if the arrangements were altered; and the father’s parenting capacity.
Mr P notes that, based on the contact centre visit reports, the contact between the child and the father was “progressing very well”.
Mr P also notes that the child has been attending on Dr J. He recommends that that continue “in parallel to [the child’s] adjustment to spending time with her father again”.
In the preparation of the third report, Mr P interviewed the father, the mother, the child and the paternal grandparents. He observed the father and the child together from behind a one-way screen. He spoke by telephone with the mother. He also considered some of the material filed in these proceedings.
In that report, as regards the father, Mr P makes observations as to changes in his relational style. He says, “I… felt many of his responses reflected improved insight on his part”. He notes that the father had completed two parenting courses and continued to receive counselling.
As regards the mother, Mr P says, “… she does appear to be a somewhat anxious person and I suspect this is a more… constitutional feature rather than a secondary quality to the stress of the proceedings”. He says that the mother found it very difficult to talk about possible future options for the child and that the mother asked whether the child’s safety could be guaranteed if the child spent time with the father outside of a contact centre. When the mother later telephoned Mr P, she confirmed that she could not see any suitable alternative to the child spending supervised time with the father at a contact centre. She is also said to have been critical of the reports of Dr S and Dr M.
During his interview with the child, Mr P says that she was excited about seeing the father and repeatedly asked when she would be seeing him. From his observations of the child and the father together from behind a one-way screen, he says:
Overall, the father-daughter interaction was positive and appropriate. There was good proximity-seeking behaviour by [the child]… The father provided appropriate supervision… I observed qualities such as humour, fun, reciprocity and playfulness in the interaction… I observed a clear parent-child hierarchy…
As regards the paternal grandparents, Mr P says that they expressed “regret and sadness over what they termed the loss of their relationship with [the child]”. He notes that the child had commenced spending time with them outside of a contact centre. He also notes that they spoke civilly about the mother.
After summarising his conclusions, Mr P says:
It is beyond my ability to fathom how two adults who each claim to have their daughter’s well-being at heart can justify the type of relational experience they are directly modelling to her. Their respective justification for their potentially destructive co-parenting behaviour strikes me as nothing other than self-preservation of their own conscience and an attempt to vindicate them self from any blame.
Mr P then sets out some of the difficulties which the Court may face in making its determination. He says that whether supervision of the time spent by the child with the father ought to continue will depend on the Court’s finding on the allegations against the father as to abuse of the child.
Mr P offers the following:
Little research on the impact of supervision of children has been undertaken. It is not fully known whether children are able to emerge from long-term supervised contact with the possibility of a normal relationship with the parent in question. I would consider it important to consider, on a case-by-case basis, individual child factors (e.g. Age, temperament, resilience, coping style, attachment) as well as external factors (E.g. each parent’s behaviour and support of the arrangement, degree of risk) After these factors are taken into account I believe the issue of whether the ‘contact’ arrangement is likely to allow the child to develop and maintain a meaningful relationship and a genuine sense of connection with the parent they see must be considered…
There are few more well-established findings in the area of child development than that which posits that the quality of a child’s early relational and emotional experiences is a strong predictor of later outcomes, namely bio-social development, attachment style, and the capacity for self-regulation of emotional states. More than any other factors, these three core outcomes appear to be the mechanism by which a child is predisposed to later social and mental health problems.
Mr P reiterates his assessment of the child’s personality and character, saying, “I have described [the child] as a robust child… She has healthy, well formed attachments with both her parents. She does not have an easy temperament but otherwise she is… a well-functioning child”.
Mr P concludes as follows:
In trying to frame my thoughts around what is then likely to be in [the child’s] best interest, I am inclined to believe that it may not be much longer before the current type of relational experience she is having with her father becomes increasingly unfulfilling and perhaps ‘un-meaningful’ to her… I believe that [the child] spending time with her father that is supervised at a contact centre on a long-term basis may negatively affect her social and emotional development. I suspect [the child’s] comments to her mother that she would like more time with her father because he talks too much to the staff at the contact centre is a result of [the child] feeling she does not have full control of her father’s attention. The issues of [the child’s] individual characteristics aside, I cannot but think that she is ready to spend more time with her father and that this would be to her overall benefit…
…The foundations and markers are there to indicate that the father-daughter relationship would probably progress in proportion to the amount of time [the child] spends with her father. Furthermore… I believe it is fair to think that the relationship would further develop if exposed to the issues and demands that arise out of day-to-day parent-child interactions. At the moment the relationship is governed and contained by factors other than those inherent in the father-daughter relationship.
After further consideration of the competing issues, Mr P’s recommendations are, in summary, as follows:
a)That the child live with the mother.
b)That the child spend time with the father pursuant to the current arrangements.
c)That, if the Court finds that there is no unacceptable risk of harm to the child in spending unsupervised time with the father, the father explain to the child, in front of the contact centre staff, that she will soon commence spending time with him outside of the contact centre.
d)That, subsequently, for a period of no less than six months, the child spend time with the father, during the day, as frequently as can be agreed to by the parties, outside of the contact centre and supervised by the paternal grandparents.
e)That, after a period of no less than six months, the child spend time with the father, during the day, as frequently as the Court thinks fit.
f)That, after a further period of no less than six months, the child spend time with the father each alternate weekend.
Evidence of Dr M
Dr M, an independent expert in these proceedings has prepared two reports: the first dated 29 January 2009 and the second dated 24 February 2010. In addition, she has provided some further comment after observing the child and the father together in the interval between the two hearings of the matter.
In the first report, Dr M describes the father as being egocentric and somewhat grandiose, and not empathetic. In her view, he exhibited symptoms of hypomania. The mother had expressed a concern about the father suffering from depression and Dr M recommends that he consult a psychiatrist. She says that the mother did not demonstrate any psychiatric abnormality.
Dr M says that the child presented as “bright” and “confident”. When she asked the child for three wishes, the child said that her first wish was to see her father. The child asked whether she could see the father that day. The child said that her favourite thing in the world was to see the father. However, the child then spontaneously referred to the incidents when the father pulled down her pants and when he spilled hot chocolate on her.
When asked whether there was anything that she did not like about the mother, the child said that she did not like her mother being cranky. When asked whether there was anything that she did not like about the father, she again referred to the incident when the father pulled down her pants. She then said, “Did Mummy tell you anything that Daddy had done. I can’t remember”, and shouted, “Girlie bot bot”. She said that “bot bot” meant “bottom”, and, “I am not a bottom, I don’t have poos coming out of my mouth”.
Dr M assesses the child as being “active; controlling; assertive; intelligent and imaginative; after an initial period… she made good eye contact and interacted quite comfortably”. She says: “[The child] didn’t demonstrate sexualised behaviour apart from at one stage undressing one of the dolls and putting her in a bath and laughing about the fact that she had no clothes on”.
In the second report, Dr M revises her initial opinion as to the father’s mental health, saying, “In view of [her observations, the comments of
Dr S as to the view of Dr W] and the father’s presentation at interview…at this stage [I] do not believe that he suffers from a bipolar affective disorder”. She says that the father did not present at interview as being hypomanic. She says: “In fact there was no disorder of thought, mood or perception. There was a considerable change in his presentation from when last seen”.
Dr M also produced two letters dated 21 December 2010 and 21 January 2011. In the latter, after noting that she has considered the report dated
11 November 2010 by Ms G, a contact supervisor, she states the following:
The report is entirely favourable and indicates sensitive and appropriate conduct by the father with the child; also the child’s enjoyment of the contact and her reluctance to leave her father. There is no indication that sexualised behaviour has occurred.
Whilst this does not resolve the problem of whether sexual abuse has occurred in the past it tips the balance in favour of it having not happened.
Dr M also gave oral evidence in these proceedings.
In cross-examination, counsel for the father asked Dr M about the alleged sexualised behaviour exhibited by the child as particularised in the Notice of Child Abuse filed by the mother on 24 September 2008. Dr M said that she did not agree that all of the alleged behaviour is within the normal range of behaviour for children of the child’s age. She said that such behaviour could be suggestive of sexual interference. She said, “Each of the individual activities could be normal behaviour. The cumulative activities… is what’s of concern”. She conceded, “…[C]ertainly my opinion… is that there is no specific symptom which is incontrovertibly linked to child sexual abuse… there is nothing in particular which can point definitely to sexual abuse”. However, she said, “…there would be a high index of suspicion because of the degree of behaviour”.
Counsel for the father asked Dr M about factors relevant to the question of whether abuse has occurred where a child has made a disclosure to the effect that it has occurred. Dr M agreed that the following are relevant: the circumstances surrounding the disclosure, including stressors such as the separation of the parents; the person to whom the disclosure was made; the subsequent actions of that person; any inconsistencies in the reporting; the motivations of the reporter; any denial by the child in a formal interview as to abuse having occurred or as to making any disclosure; the conduct of a formal interview; the demeanour of the child in a formal interview; the observations of the interviewer; the lack of any admission by the alleged perpetrator; the response of the alleged perpetrator; the lack of any medical or physical corroboration; the subsequent progress and generalised behaviour of the child; and, the subsequent interaction of the child with the alleged perpetrator. She agreed that no single factor has conclusive weight.
In relation to the mother’s initial response to the alleged disclosures by the child on 2 January 2007, and 2 and 3 February 2007, in reporting the disclosures and notifying the father, Dr M said, “In my experience it’s not uncommon for a parent to experience a period of denial after such a disclosure… [M]y impression is that there was a reluctance to believe it…”
In relation to the child’s positive interaction with the father subsequent to the alleged disclosures, Dr M agreed that “[i]n general terms” a victim of abuse does not wish to associate with the perpetrator. However, she said that the foregoing is “by no means universal”.
In relation to retractions and denials by the child as to abuse having occurred or making the disclosures, Dr M said, “[f]alse retractions are not uncommon. Often the child who makes a disclosure is quite thunderstruck at the response of adults around her. So I wouldn’t regard the retraction of being of great significance… This is not unusual in a child at her developmental age”.
It is notable, however, that she made this comment not having seen the video of the interview of the child conducted by JIRT on 19 March 2007.
In cross-examination by counsel for the mother, Dr M confirmed that her opinion is still that, if the Court accepts that the child exhibited the behaviour, including the disclosures, as particularised in the Notice of Child Abuse filed by the mother on 24 September 2008, it is highly probable that some inappropriate sexualisation of the child has occurred.
In re-examination by the Independent Children’s Lawyer, Dr M confirmed that no single factor is determinative as to whether or not sexual abuse has occurred. She agreed that there is a constellation of factors to be taken into account, including frequency.
Dr M gave further oral evidence after the production of the letters dated 21 December 2010 and 21 January 2011. In cross-examination by counsel for the mother, in relation to the opinion expressed by her in the latter that the child’s positive interaction with the father and the lack of any indication of sexualised behaviour tips the balance in favour of sexual abuse not having occurred, she said:
One of the likely things that would happen as a result of past sexual abuse is that the child may be aversive of contact with the father… [T]his observation shows that she enjoys contact with the father. It makes it just a little less likely, but it doesn’t preclude the possibility that sexual abuse has happened. Sometimes children who are sexually abused continue to love the abuser and continue to want contact with them, but it’s a little less likely, but it’s a little less likely.
She also noted, “In the circumstances, the father is under scrutiny [and] is much more likely to be very careful in his own interaction, and the likelihood is that the child would respond to that”.
She confirmed that her position was by and large unchanged from that which she has previously expressed.
In cross-examination by counsel for the father, Dr M clarified her position, by saying:
It tips the balance, but I didn’t feel that it resolved the problem of whether the sexual abuse had occurred or not… My position is that: I don’t know whether sexual abuse occurred or not. I think that there are certainly grounds for suspecting it may have, and essentially, that position is unchanged.
She said that it tips the balance “slightly” in favour of sexual abuse not having occurred.
She confirmed that the alleged sexualised behaviour exhibited by the child as particularised in the Notice of Child Abuse is within the spectre of normal child behaviour. She agreed that observations of behaviour exhibited by children are subjective. She also agreed that Mr P, Dr S, Dr J and herself are skilled observers of behaviour exhibited by children. She said, “I think if there was a consensus across a variety of professionals, then it would be something that the Court should take seriously”.
When asked by the Court whether it is commonplace for children when placed in a stressful situation such as the separation of parents to engage in
self-comforting behaviour, Dr M agreed that it is.
Evidence of Dr S
Dr S, an expert employed by the father in these proceedings prepared a report dated 11 February 2010. She was asked to specifically address, in that report, the issue of the allegations against the father as to abuse of the child. In its preparation, she interviewed the father alone, and spoke with Dr W.
In the report, Dr S says that she had sought from the father details of any behaviour on his part towards the child which might be open to misinterpretation. She says that the father recounted playing a “dribbling game”, subsequently described as “tongue kissing”, with the child in 2006. She says that the father also recounted the incident when he pulled down the child’s pants; but, that he said that the mother was present at the time and made no objection to his action and that he perceived his action as innocuous and non-offensive. She says that the father was unable to recount any other behaviour on his part capable of misinterpretation.
Dr S says that “[the father] was adamant in his denial of any inappropriate sexual touching of or interference with [the child]”.
In relation to the father’s mental health, Dr S says that “[the father] gives no history of any prolonged episode of mood disturbance that would suggest either Major Depression or Hypomania”. She notes that:
Over the eight months that [Dr W] has been consulting with [the father], he has come to the opinion that [the father] does not suffer from any form of pervasive mood disorder. [Dr W] acknowledges that [the father’s] personal quality of intensity is capable of being misleading and suggestive of Bipolar Affective Disorder but is confident that [the father] does not suffer from any major psychiatric condition. [Dr W] was quite clear that he did not consider that [the father] suffered from Bipolar Affective Disorder.
Dr S considers the father’s capacity for self-evaluation and says that he appeared to make honest and reasonable assessments of himself. She says that he appeared to have seen the value of gaining psychological insight and emotional support from a consultant psychiatrist who has assisted him to deal with the current situation.
In relation to allegations of child abuse, Dr S notes the following:
a)The lack of any of the usual antecedents in the father’s history; specifically, the lack of any criminal history, contact or non-contact sex offences and a history of impulse control difficulties.
b)The presentation by the father of merely narcissistic traits as opposed to psychopathic traits.
c)The non-presentation by the father of schizoid-avoidant and dependent personality traits, indicating serious and diffuse personality disorder; disordered attachment orientation; difficulties with intimacy; fear of rejection; or, excessive reliance on others as a coping stratagem.
d)The lack of a history of the father of difficulties with self-regulation, either personal or sexual.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
There seems to be no lack of willingness or ability on the part of either the mother or the father to facilitate and encourage a close and continuing relationship between the child and the other parent. The mother is thought of by the father as seeking to limit that relationship between the child and himself. It is noteworthy that the mother has not opposed a close and continuing relationship between the child and the father, although she maintained throughout the hearing that the time spent by the child with the father should be supervised.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The changes in the child’s circumstances proposed by the Court in the orders to be made are seen as being beneficial to the child. It appears that the evidence does not suggest that she has any significant difficulty in passing from the care of the mother to that of the father. It is true that she will spend more time with the father than she has hitherto; but, with her age and memory, it is found that there is unlikely to be any difficulty for her in this regard. None of the proposed orders will cause her to be separated in any significant way for any significant period from any of the important persons in her life.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no evidence before the Court as to there being any significant practical difficulty or expense of the child spending time with and communicating with either parent, or any impediment to the child exercising her right to maintain relationships with and direct contact with both parents on a regular basis.
(f) The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The evidence supports the view that each parent and grandparent has the capacity to provide for the child’s needs, including her emotional and intellectual needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There is no evidence of there being any particular lifestyle, culture or tradition of the child or either of the parents which might be lost by reason of her spending time with each parent.
Each parent impresses as mature and intelligent, albeit that the father has engaged in the past in non-child-focussed behaviour. The father has undertaken courses to assist him in those areas in relation to the care of the child where he requires assistance. The Court accepts his sincerity in undertaking those courses and his evidence that he will continue to do so. The father concedes that, notwithstanding the mother’s involvement in the making of serious allegations against himself, she is a good parent and generally cares well for the child.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
There is no evidence that this child is an Aboriginal child or a Torres Strait Islander child.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both the mother and the father have debated this question. It seems that the father was found wanting in his conduct in relation to absenting himself from the child’s life on becoming aware of the allegations against himself. He has since expressed remorse in this regard. He has gained insight into the impact of such conduct on the child, and he has undertaken remedial therapy and sought support and education to enable him to be a good parent. He is to be commended for that.
The mother, for her part, is a good and responsible parent. In the past, she perhaps has been a little over anxious and ill informed as to what is normal behaviour in many children of the child’s age. She has acknowledged that this litigation process has been an educative one, with her understanding of these matters having been improved by the evidence given by the various experts.
The Court accepts that both parents will contribute to the child’s progress on the path towards achieving her maximum potential.
(j) Any family violence involving the child or a member of the child’s family
There is no evidence of there having been any violence by either parent against the other parent, or involving a member of the child’s family; and the evidence does not support a finding that there has been violence against or involving the child.
(k) Any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no such family violence order.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As children grow older, their needs change. As the child develops peer relationships and pursues social, cultural or sporting interests, her care will require an even more child-focussed attitude and greater flexibility in thinking and action on the part of each parent in their dealings with the other parent. It is hoped that, if they disagree in future, they will not again require the intervention of a Court. On leaving this battlefield, they only have to observe the time, money and emotion expended in the process to be assured that there is a better way to resolve disputes. If they maintain a child-focussed attitude, the foregoing can be achieved.
It is, however, the view of the Court that no change should be required for at least the period of the child’s primary education. For this reason, an order is made in terms set forth above as to variation of these orders.
Conflict between those who love a child and who that child loves, particularly continuing conflict of that kind is anathema to a child’s interest. The Court is constantly informed that such conflict can scar a child for life by rendering that child unable to form relationships, making that child prone to depression and/or giving that child low self-esteem. This child has had enough of it and she must now be given the opportunity to develop her maximum potential, untrammelled and unfettered by the bondage of those unnecessary chains.
(m) Any other fact or circumstance that the court thinks is relevant
The matter of singular concern to this Court is the possible attitude of the mother and the maternal grandparents to the changes proposed by the Court in the orders to be made. While the Court rests confident in their assurances that they will obey the orders, the Court does not have the same confidence that they will approach the implementation of them absent ongoing anxiety. In this case, the Court has already seen a household redolent with anxiety at the time of and a chain of reactions to the separation; and the Court notes the evidence of Dr M as to the impact of that on the child and her behaviour. The mother, in a state of anxiety, is not going to provide the support and assistance that the child requires in life; and that will not be beneficial to the child.
Equally, as set out in the expert evidence, continued supervision of the time spent by the child with the father might be harmful for the child.
For this reason and this reason alone, it is the view of the Court that there needs to be a period during which the time spent by the child with the father is supervised. Hopefully, that period of supervision will serve as a demonstration to the mother that there is no cause for any anxiety on her part about that time, and that the child not only survives it, but thrives from it.
Having said that, it is not, in the Court’s view, necessary that the time spent by the child with the father continue to take place in a contact centre. The sort of supervision necessary to afford the mother a reasonable degree of comfort, while balancing the need of the child to have a meaningful relationship with the father, can be provided as set forth in these orders.
It is of course open to the mother, at any time before the expiry of the period during which the time spent by the child with the father is to be supervised, to agree with the father that such supervision is no longer required. Absent such agreement, however, it is the Court’s view that the proposed period of and the manner of supervision should be sufficient for the mother and the maternal extended family to adjust to the new reality created by these orders.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing the Section 60CC Considerations
Balancing the matters set out in s 60CC and the evidence recited in these reasons, I find that the orders I propose are practicable and will operate to foster the best interests of the child for the reasons specified above.
Section 61DA
This section recites a presumption to be applied by the Court unless one of the excluding factors applies. It requires the Court to presume that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.
However, the presumption does not apply where there has been family violence. As stated earlier, in this case, there has been no finding of family violence.
The section further provides that the presumption, if it were to apply, may be rebutted if it is determined to not be in the best interests of the child.
In this case, there is no reason for the presumption not to generally apply. However, in respect of the areas of decision-making in relation to the child specified in my orders, there will be a partial sole parental responsibility to act as a circuit breaker in the event of disagreement, but only where consultation, discussion and mediation has first occurred and agreement nevertheless has not been reached. That partial sole parental responsibility in those circumstances will lie in the mother. This reflects to some extent what has happened in the past in relation to the parental decision-making. The father wants to be involved in future parental decision-making and he should be. However, it is not desirable that the only circuit breaker for disagreement in respect of important decisions in relation to the child be the Court.
The Court has confidence that the mother will genuinely consult with the father in respect of the areas specified in my orders, and that, in the event that she is to exercise sole parental responsibility, she will make a decision, taking into account the views of the father and in the best interests of the child.
Section 65DAA
This section requires me to consider the making of an order for equal time where the making of an order for equal shared parental responsibility is proposed.
The order for equal shared parental responsibility is to be qualified in the manner set forth in that order.
I do not propose to make an order for equal time to be spent by the child with each parent. I find that to be in the child’s best interests at this time. The father is still developing his parenting skills and I have no doubt that he will acquire all that is required in that regard. Until his parenting skills are fully developed and he has had greater experience in caring for the child, it is inappropriate for there to be an order for equal time.
The order I propose to make will afford the child substantial and significant time with the father.
The Orders to be Made
I therefore propose to make the orders in relation to parenting as set forth above.
I certify that the preceding three-hundred and sixty-six (366) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 13 April 2011.
Associate:
Date: 13 April 2011
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Consent
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