Donoghue and Alton

[2010] FamCA 866

FAMILY COURT OF AUSTRALIA

DONOGHUE & ALTON [2010] FamCA 866

FAMILY LAW – CHILDREN – with whom a child spends time – where there are concerns about the mother’s capacity to parent – best interests – orders that the child spends time with the mother – protective injunctions in place

Family Law Act 1975 (Cth)

APPLICANT: Ms Donoghue

RESPONDENT: Ms Alton

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

FILE NUMBER: ADC 4515 of 2009

DATE DELIVERED: 20 SEPTEMBER 2010

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

JUDGMENT OF: BURR J

HEARING DATE: 20 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS PARKER
SOLICITOR FOR THE APPLICANT:	NORMAN WATERHOUSE

COUNSEL FOR THE RESPONDENT:	MS KOVACS
SOLICITOR FOR THE RESPONDENT:	ADELAIDE FAMILY LAW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	MRS REED
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	LEGAL SERVICES COMMISSION

Orders

UPON NOTING that the matter has an adjournment date before the Honourable Justice Burr at 10.00 am on Monday 29 November 2010

IT IS ORDERED THAT:-

1. The Application in a Case filed by the paternal grandmother on 2 September 2010 and the Response to an Application in a Case filed by the mother this day be dismissed.

2. The mother is restrained and an injunction is hereby granted restraining the mother from taking the child K (“the child”) born … July 2004 to any prison facility.

3. The parties are restrained and an injunction is hereby granted restraining each of them from discussing these proceedings or any of the allegations which have emerged in these proceedings with the child or within the child’s hearing and from permitting any other person to do so.

4. Leave is granted to the Independent Children’s Lawyer to file and serve a subpoena directed to Families SA for the production of their file in relation to each of the said child K, R, A and C, and that such documents be produced at this Court on or before 10.00 am on Friday 29 October 2010.

5. If there is no objection and subject to any privilege claimed, leave is granted to the Independent Children’s Lawyer and the legal representatives of the parties to inspect and copy the documents produced by Families SA pursuant to the aforesaid subpoena.

6. The question of whether or not the parties themselves are entitled to inspect and receive copies of the documents produced by Families SA is adjourned for further consideration at 10.00 am on Monday 29 November 2010.

AND IT IS FURTHER ORDERED, DURING THE PERIOD OF THE ADJOURNMENT, THAT:-

1. The operation of the orders made on 8 February 2007 be suspended.

2. K live with the applicant paternal grandmother who shall have sole parental responsibility for the said child.

3. The child spend time with the mother from 10.00 am until 5.00 pm on the Saturday of each week  UPON CONDITION THAT:-

   (a)the mother shall be personally available to supervise the child for all visits save and except that the mother shall be at liberty to arrange for her sister L to care for the child for short periods during such visits;

   (b)all handovers shall take place at the B Children’s Contact Service;

   (c)the mother shall notify the paternal grandmother in writing in the event that the mother gains employment and the details of such employment, including the name of her employer and the hours worked;

   (d)the mother shall notify the paternal grandmother in writing in the event that the mother permits any other person to reside in the mother’s household;

   (e)all time spent by the mother with the child is to be in the absence of any other adults or children save and except for her son A and for short periods of time, her sister L.

4. The paternal grandmother shall ensure the child’s continued attendance at the Oral / Aural Unit at the H Primary School.

5. All parties and their legal representatives shall attend a review conference at the Family Dispute Resolution Unit of the Legal Services Commission on Thursday 25 November 2010 at 10.00 am.

6. The mother is at liberty to obtain school reports and any medical reports prepared with respect to the said child K.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4515  of 2009

MS DONOGHUE

Applicant

And

MS ALTON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today the paternal grandmother’s Application in a Case filed on 2 September 2010.  In it she seeks orders suspending the mother’s time to be spent with the child K (“the child”) born in July 2004 and who is hence 6 years of age.  Particulars of the paternal grandmother’s concerns that give rise to her Application are contained in her Affidavit also filed on 2 September 2010.  Whilst she raises a number of concerns, those clearly of the most significance to her relate to her concern that the child may have been sexually abused within the mother’s household during times spent by the mother with the child pursuant to Orders of this Court, and in relation to the alleged chaotic nature of the mother’s household.  There is also a specific concern raised by her, with which I agree, as to an occasion on which the mother took the child on a prison visit.

2. Today the paternal grandmother handed to the Court a further Affidavit in which she detailed the nature of her concerns in relation to the alleged sexual abuse of the child in the mother’s household.  Those matters disclosed in the Affidavit are of a particularly bizarre nature.  Whilst I am not entitled to presume as to the reasons why Families SA have determined not to take the matter further, it is most probably a decision taken in light of the bizarre nature of the allegations and the lack of probative evidence that would support the allegation.  I note that it is not a matter that Families SA intend to refer to the Child Protection Services.  Thus certainly I am entitled to assume that they do not have sufficient concern about the potential for the child to be sexually abused in the mother’s household to pursue the matter further.

3. A finding of sexual abuse in this jurisdiction requires the person alleging the abuse to satisfy a quite strict standard of proof.  In my view, even if the paternal grandmother was able to establish to the Court’s satisfaction that she had truthfully relayed the conversations that she had with the child, that does not necessarily amount to proof that what the child said was true.  It would fall short of satisfying that burden of proof.

4. The Independent Children’s Lawyer has maintained fairly regular contact with the child’s school.  It is interesting to note that the school has informed her that of relatively recent times the child has been engaged in various protective behaviours classes and her information is that occasionally young children find those classes quite confronting and exhibit a variety of reactions to that information and tutelage.  The school reports that there are indeed some changes in the child’s behaviour over the last couple of months.  They are concerned as to the deterioration in her behaviours and the number of disruptions in which the child is involved, but otherwise report that the child’s progress and socialisation at the school is satisfactory.

5. The mother effectively denies all of the allegations that are made by the paternal grandmother, save as to acknowledging that she did take the child with her on a prison visit.  She has indicated through her Counsel that she now understands just how wrong that was and she has assured the Court that it will not happen again.

6. The mother’s own case though, as contained in the affidavit filed by her, is to the effect of a quite chaotic household with many people visiting and being present during the times that the child is with her. 

7. The child has had a very unfortunate beginning to her life and has experienced more trauma and change than any young child should have to bear.  In the Families SA Magellan report letter of 20  November 2009 they say this:-

   “Families SA records show an extensive history of child protection concerns with a total of 30 notifications for the fore mentioned child.  There are 19 Tier 2 notifications, 4 Tier 3 notifications, 1 assessed as No Grounds for Intervention and 6 assessed as Notifier only concerns.  The total history of allegations encompass all forms of alleged abuse including sexual, physical, emotional and neglect allegations.  Notifications have been received for this child between November 2004 until October 2009.  In most instances, the mother has been the primary caregiver at the time of the notifications.”

8. Earlier in these proceedings I ordered the preparation of a Family Report. That report was undertaken by Ms D and is dated 19 April 2010. In Ms D’s Assessment, which begins on page 7 of that report, she makes a number of observations which appear to remain particularly pertinent to the continuing dispute between the parties now raised in this application before me and they relate generally to the paternal grandmother’s inability to recognize the stress upon the child of separation from her mother, and the mother’s inability at times to recognise the need to rebuild her relationship with the child in a carefully structured and child focussed way.  Ms D had this to say:-

   “35.The conclusion from this assessment is that the situation of least risk for [the child] for the foreseeable future is to continue to live with her paternal grandmother.  While [the mother] is a loving mother who has strong intentions to do her best to provide excellent care for both her children, there appear to be risks associated with returning [K] to her care at this time.  Those risks include that [the mother] may struggle at times to cope with the care of two children, and that [the mother] may in particular struggle with managing [the child’s] behaviour.  [The child] also needs to be able to continue to attend [H] School and while [the mother] expressed her intention to move house so that she would be in the [H] area, it is not clear when this could occur.

   36.It is also the conclusion from this assessment that [the child] is likely to be missing her mother and that the grief she clearly feels may be contributing to the child demonstrating some worrying behaviours at various times such as when she returned from her mother’s care after spending time with her. Children can express their grief and confusion through angry or confused behaviours and statements.  In the writer’s opinion, [the child’s] behaviours as reported by the paternal grandmother may be associated with the child’s sense of confusion about her mother, rather than with experiences of abuse by her mother.  Sometimes children’s statements about a loved parent can reflect the child’s anger toward a parent whom they perceive as having abandoned them.

   37.[The mother] has, overall, been [the child’s] most consistent parenting figure.  [The child] demonstrated clearly that she was deeply attached to her mother and that she experienced emotional pain in regard to having to separate from her mother at the end of the observation period for this assessment,  [the child] is experiencing a very long period where her mother is effectively absent from her life.  It has to be conjectured that this is very confusing for [the child].

   38.An additional concern emerging from this assessment was that the paternal grandmother may misunderstand, or minimise, the child’s experience of pain about being separated from her mother.  When an adult is unable to recognise a child’s experience accurately, a child’s sense of confusion may increase and this certainly can lead to a range of behaviours in young children which can include confusing statements and disturbing behaviours as the child attempts to gain the attention he or she needs in order to make sense of experience.  [The paternal grandmother] presented as deeply critical of [the mother] and it was difficult to ascertain whether she had the capacity of sympathetic understanding of [the mother’s] own love of the children and inherent wish to have both the children with her.  It is noted that during a phone call at the end of the assessment [the paternal grandmother] acknowledged that she understood that [the child] would be missing her mother and her little brother.

   …

   40.It is likely that [the child’s] behaviour is challenging at times.  This conclusion is supported, in the context of the overall information, by the note in the Families SA report of an intake received on 18/9/2009 (pg 4 of the report).  This intake, while ‘assessed as No Grounds for Intervention’, notes that the mother’s partner ‘had been angry and had thrown [the child] across the room’, and further notes that the ‘partner was upset with his own actions towards [the child].  A picture is perhaps painted here of a normally protective adult care situation where the child’s behaviour may have become significantly challenging in the blended family situation.

   41.It is evident from some of the accounts in the Families SA report that at times there have been concerns about [the mother’s] parenting.  It is difficult not to conclude that [the mother] has struggled at various times to maintain her parenting role effectively.  [The mother] was able to express an understanding of the needs of her children quite well. At the same time, the background information needs to be taken into account and [the mother] is in the process of learning to parent in ways that are different from her own experience of parenting.  Such a process is intensive and demanding and [the mother] needs to maximise her experiences of success, and not be in a situation in which she cannot cope well.”

9. In my view, it would be essential that the lawyers representing each of the parties sit down with their clients and yet again go through the Family Report with them and specifically assist them in trying to understand the messages and information that Ms D was trying to convey to each of them.

10. Much of the allegations made by the paternal grandmother and the seeming confusion in which the child again finds herself, appear to be somewhat of a repeat of history.  As Ms D observed in her report, the paternal grandmother has a tendency to assume the worst in the child’s care by the mother and her experiences are potentially coloured by that view that she takes.  Those experiences may not necessarily be those of the child.  Equally, it is important for the mother to have regard also to paragraph 46 of Ms D’s report as follows:-

    “46.In light of the possibility that over time it may be in [the child’s] best interests to return to her mother’s primary care in the future, a tentative recommendation has been made as to how such a return might be considered, assessed and put in place. It is likely that [the child] should always have a significant part of her care provided by the paternal grandmother during her childhood years.”  

11. In my view, the mother has failed to exercise the caution that Ms D implored her to exercise.  If I was being charitable to the mother I could say that I could understand how encouraged she was by Ms D’s report and was somewhat impatient to move to a position where she spent quality time with the child, with maybe the possibility one day of the child being returned to her care.  She must learn to, in the vernacular, “walk before she runs”.  She needs to be far more patient in her engagement with the child and she needs to ensure that she affords quality opportunities to the child to enjoy their time together.  Having a house full of other people is not the way to ensure that the child will be able to engage in a quality relationship with her mother.  In my view those times spent together should be restricted to occasions where only the mother, the child and the child’s brother A are present.

12. I agree with the Independent Children’s Lawyer that some changes do need to be made to the present arrangements.  It is not my view, and is not the view of the Independent Children’s Lawyer, that it would represent the child’s best interests to have all of her time with her mother terminated.  Indeed the words of Ms D to which I have earlier referred, in my view, ring true and it would do more harm than good to the child for her to again suffer a separation from her mother.  That said, the present structure is clearly not working for the child as evidenced by the school’s report and potentially by the behaviour reported by the paternal grandmother.

13. The paternal grandmother’s position, despite having heard the Independent Children’s Lawyer’s recommendation, remains one of opposition to the mother having any unsupervised time with the child.  For her part the mother proposes not just time each Saturday as was recommended by the Independent Children’s Lawyer, but that she also spend overnight time with the child on Wednesdays.  In my view, neither of the proposals of the parties represents the best outcome for the child.

I certify that the preceding thirteen (13) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 20 September 2010.

Associate: 

Date:  22 September 2010