Duncan & Dylan

[2012] FamCA 430

FAMILY COURT OF AUSTRALIA

DUNCAN & DYLAN [2012] FamCA 430

FAMILY LAW – CHILDREN – With whom a child spends time – Where Applicant Father seeks unsupervised time with the only child of the marriage – Where Father currently spends supervised time with the child on one day in every two out of three weekends – Where the Mother has made allegations of family violence – Where the Mother has made allegations that the Father possesses child pornography – Where the Mother has made allegations the subject child has been sexually abused by the Father – Child to spend time with the Father on an unsupervised basis, with such time to be graduated toward the child spending each alternate weekend in the Father’s care. 

FAMILY LAW – CHILDREN – Parental responsibility – Problems with communication between the parties – Mother to have sole parental responsibility for the subject child. 

APPLICANT: Mr Duncan

RESPONDENT: Ms Dylan

INDEPENDENT CHILDREN’S LAWYER: Ms D’Alton

FILE NUMBER: BRC 10156 of 2010

DATE DELIVERED: 28 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 24 – 25 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Waterman of Counsel appearing for the Applicant Father

SOLICITOR FOR THE APPLICANT: Morrison Lawyers

COUNSEL FOR THE RESPONDENT: Mr Selfridge of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Berck Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT:

1. The Mother have sole parental responsibility for the major long term issues in relation to the child, E, born … January 2007. 

2. Each party shall have sole parental responsibility for the day to day care, welfare and development of the child when the child is in his or her care.

3. The child shall live with the Mother.

4. The child shall spend time with the Father at all times as agreed between the parties or, failing agreement, as follows:

   (a)       for each alternate weekend from 10.00 am until 3.00 pm, with such time      to occur on either Saturday or Sunday, for eight (8) weeks;

   (b)       thereafter, each alternate weekend from 10.00 am until 5.00 pm, with           such time to occur on either Saturday or Sunday, for eight (8) weeks;

   (c)       thereafter, each alternate weekend from 9.00 am Saturday until 5.00 pm       Sunday;

   (d)       from September 2012, for half of the Easter, June/July and September          school holiday periods;

   (e)       from 2012 and each alternate year thereafter, for the first half of each           gazetted Queensland school holiday period;

   (f)        from 2013 and each alternate year thereafter, for the second half of each      gazetted Queensland school holiday period;

   (g)       in 2013 and each alternate year thereafter, from 2.00 pm until 6.00pm          Christmas Day; and

   (h)       in circumstances where the child is not otherwise spending time with the      Father pursuant to this Order, from 9.00 am to 5.00 pm on Father’s Day.

5. With respect to the child’s time with the Father as provided for in Order (4):

   (a)       for the purpose of Order (4)(a), the Father is to collect the child from the      Mother’s residence at the commencement of time and return the child to           the Mother’s residence at the completion of time;

   (b)       for the purposes of Orders 4(b) and (c), the Father is to collect the child       from the Mother’s residence at the commencement of time and the        Mother is to collect the child from the Father’s residence at the completion of time;

   (c)       in 2012, Order (4) is suspended for the duration of the June/July school       holidays;

   (d)       in 2012 and each alternate year thereafter, the Mother shall spend time         with the child from 2.00pm until 6.00pm on Christmas Day; and

   (e)       the time the child is to spend with the Father pursuant to Order          (4)(a),(b) or (c) is suspended from the first day of each school holiday      period referred to in Order (4) and is to recommence on the first      weekend following the recommencement of the school term.

   IT IS FURTHER ORDERED THAT:

6. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting   orders – obligations, consequences and who can help”, a copy of which is            annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duncan & Dylan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10156 of 2010

Mr Duncan

Applicant

And

Ms Dylan

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Mr Duncan, hereinafter referred to as the applicant, for contact orders in relation to a child of his cohabitation with the respondent, Ms Dylan.  The orders sought by the applicant are contained in his initiating application and if I may generally paraphrase such application, he seeks contact with his child unsupervised for those periods as particularised, particularly in the final orders sought heading, paragraph 2.  I might say in passing at this stage he is having two weekends out of three between 10.00 am and 3.00 pm at the H Shopping Centre, particularly at McDonald’s which has a playground attached thereto.  This was by order made last year.

2. Very briefly, and I tend to be particularly brief in the whole of this case, notwithstanding I think it is an important case for the parties.  The parties entered into a relationship in around about 2006 or late 2005.  The applicant had previously been married and had two children from that relationship, B, born in January 1998, and L, born in January 2002.  He indicates in his affidavit that he and his initial first wife separated in November 2005.  They reached consent orders in relation to contact between himself and B and L.  Such consent orders are continuing in force and effect, save for slight variations.

3. The present regime is that he has the children for at least two out of three weekends.  The children live on the Sunshine Coast and he lives in the Brisbane area.  As I have said, the applicant and respondent got together in late 2005 or early 2006.  They entered into a relationship and married.  They separated on 30 June. The wife has made much that during cohabitation, the father exhibited family violence towards her.  The mother, on the one hand, emphasised that these matters were of grave concern to her.  The father, on the other hand, tends to, as is natural, minimise any family violence.  He concedes that family violence did take place.  He says on the material before me that he was provoked, but then again, provocation generally is not, as far as I am concerned a defence to allegations of family violence.

4. There appears to me to be only three matters which the mother is concerned about.  They are emphasised in her material and have, to a certain extent, been explained by the father.

5. It is quite clear that towards the end of the cohabitation between the parties there was an enormous deal of pressure brought to bear upon them, particularly insofar as the financial relationships between the applicant and his former wife.  Subsequently, that was resolved and he received an amount of something like $149,000.  By way of property settlement, his former wife accepted something in excess of $200,000.  He has expended all that money, as he says, in an endeavour to renovate the house in which he and the respondent had been living, general living expenses and subsequently spending some monies, up to $50,000 in relation to the purchase of a subsequent home which he is still residing in, and this is the home that he moved to after separation to which I have already referred.

6. There is one child and that is the subject child of the marriage, E, and she was born in January 2007.  Since her birth, the mother had three months maternity leave.  Thereafter, she returned to work and the father who was operating either a gardening business or was, as his trade, employed in the transport industry, entered into both forms of work.  The gardening business initially seemed to be reasonably successful but as it moved out of summer into the colder weather, it became not as successful as it was and he returned, as I understand it, to the transport industry.

7. However, the mother, as I said, returned to fulltime work and he became the “househusband”, for some four out of five days per week, and the child was taken either to day care or went with the mother one day per week.  He therefore had a great deal of contact with the child and this went on for a considerable period.

8. As I have said, they separated in 2008.  Thereafter, the father was having a considerable amount of contact until in or about the month of September 2009 when it is alleged by the mother and the father that at that time she was concerned about the conduct and the exhibitionism of the child and she ceased unsupervised contact.  Since that time, the father has not had unsupervised contact with the child and I refer to the regime that is taking place at this time.

9. The respondent has indicated that she was afeared to give unsupervised contact to the father because of, perhaps, three headings:  (1) the family violence to which I have here and before referred;  (2) the predilection, as she says, for the applicant to view pornography on the Internet and, in particular, child pornography;  and thirdly, the allegations made by E which concerned her to such an extent she came to the conclusion that the father was sexually abusing E.

10. I have touched upon the family violence briefly as I have indicated before.  It is a matter which I have to take into consideration.  I do not commend any male for exhibiting signs of violence towards his mate but, as he says – and I am not in any way excusing him for this – he says he was provoked.  The mother, and I will be touching upon this at a later stage, has had an unfortunate relationship insofar as sexual abuse is concerned, not only in relation to herself but to her son, N, who is now 22 years of age, and he is, of course, a child from a previous relationship.

11. The second of the allegations is the question of pornography.  It is alleged by the respondent that she “caught” the father considering pornography and that this caused her a great deal of concern because she was of the view that not only was there general pornography but also pornography particularly in relation to young girls.  She exhibited quite a degree of angst, as she said, towards the father, perhaps quite justifiably, and indicated to him that she thought he was sick, or words to that effect and she recommended that he do attend counselling.

12. I understand he has attended counselling with a Mr R, from whom we have heard nothing, because as Mr R has said in a letter exhibited to one of the affidavits, he does not keep any notes because of some question of confidentiality, but he was able to give to us the dates that the father attended upon him.  So really, we do not know what Mr R was for other than what has fallen from the applicant wherein he says that he was attending him for communication problems between himself and his wife, the respondent.  He says that she was very difficult.  She denies this and says he was very difficult, which, perhaps I should say, is not unknown in this court, for parties to be diametrically opposed to each other.

13. I say in passing that in my 36 years experience of this court, I have clearly come to the conclusion that both parties maximise the good side of their case and minimise the bad side.  I think that is perhaps the case here and there is probably a little bit more in it than a stranger as I am to the facts of this case can possibly ascertain on the type of court case that we have before us which took place over a period of two days, having been transferred by the proper magistrates court, for what reason I have no idea.

14. I must say that insofar as the pornography is concerned, the mother took control of the hard drive of the computer and handed that to an expert who has given evidence in this case – and I am generalising this – she got it in September 2011.  I could be corrected on that and I sincerely hope that I am.  Because it is alleged that the pornography that she observed took place in 2008-2009 and then obviously the father left the former matrimonial home and did not, as I understand, take the computer with him.  The mother has said that she did hand it over to this lady, who is Ms K, who quite impressed me as being an expert in this field, and she was of the view as appears from her affidavit material that there were 21 to 30,000 files on the hard drive and that of them, about 2000-odd – about 10 per cent – consisted of pornography.

15. She being pressed in cross-examination was of the view that only one or two – perhaps a few more – but one or two concerned her to any extent because it appeared to her that the participants in that pornography included girls and a boy who were prepubescent in their exhibition to her.  There is no sufficient evidence for me to be satisfied that in fact the pornography, which the father concedes he viewed, consisted of anyone prepubescent.  No one has been able to say it was.  The mother herself, quite honestly, has said she could not say that they were prepubescent but she thought they looked young, under 18.  Ms K was also somewhat – perhaps a little stronger than the mother – but she herself did not totally convince me that he was viewing prepubescent pornography or, if he did, it was of a very, very limited nature, I think Ms K said once or twice.

16. And of course, the third one, which the respondent is concerned about is the disclosure initially made by E in relation to her having a bath with her father in a shower bath, as I understand that he was touching her vagina – as she called it, her “gynie”, that she also exhibited to the mother a form of hand movement which the mother interpreted to be male masturbation.  This, in effect, is the only incident to which E has referred during the whole time.  She has made further disclosures which appear in the mother’s affidavit on three occasions and at paragraph 19 of her affidavit of 12 October 2011, she sets out the first disclosure.  I incorporate in this, my reasons for judgment, the facts as alleged therein.

17. On 22 December 2010, see paragraph 23, a further statement was made by E.  According to the mother:

    “[E] made mention of my private area.  She told me that it was yucky and has hair on it.  I told her that it was fine, just what happened when girls got older.  She told me that daddy liked hers because it was small and had no hair on it.  I asked her why she thought that.  She said “because he says so”.”

18. And as I understand it, the final statement made by E was on 15 January 2011, where she exhibited rather peculiar behaviours while the mother and E were in a hospital waiting room.  She carried on rather badly.  She has, at the time, alleged to have been singing out that stuff about licking “gynies” and “doodles”.  May I say that from about the end of September 2009 until today’s date, the father has had no unsupervised contact with E.  I must say that if in fact it is alleged – and I do not think it is – by the mother that these subsequent disclosures were engendered by some action on the part of the father subsequent to 2009, I totally reject that.  It must be something that happened prior, in my view, to September 2009 and it makes it exceptionally difficult for me to consider.  I will not find that it took place subsequent to September 2004.

19. The father has endeavoured to explain what took place;  the mother is concerned about that.  She says that the father, who initially alleged that there was a question of hygiene – either smelling on occasions when coming to him and he bathed her, also that she was complaining of soreness in her tummy and in her genital area for some period prior to September.  He says that he bathed her and put Dettol in the bath and that he also gave her, some cream to place on her vagina.  This, in itself, was not accepted by the mother.  She said she had concerns because there had never been any concern, she says, about E’s hygiene before this. 

20. She has come to the conclusion on what she considers to be the uncontested facts that the father has been sexually abusing his daughter.  Perhaps the matter – there is an explanation from the father which has been put before me but subsequent to the child making the initial disclosure to the mother, it appears that the child was taken to a Dr C, who examined the child and came to the conclusion the child was suffering from mild thrush.  Whilst it is not totally clear, I am of the opinion that the soreness of the vagina and the lower tummy pains could quite easily have been caused by this thrush and not any interference with the child’s genital area by the father.  I am more than satisfied on the evidence before me that I could not find that he has in fact sexually abused the child and I do not believe the submissions of Selfridge of counsel that the mother was pushing for that, but she is emphasising the fact that as a result of the matters, not only of family violence, of the pornography and of the alleged interference with the child, that there is an unacceptable risk of the child being put at danger should she be in the contact with her father.

21. Mr D, a well known family consultant, gave evidence and in paragraph – I commend Mr D for his in-depth discussions.  I must say that he quite surprises me that he emphasised what were the father’s run-ins with the law, if I may put it that way, which is on one occasion in 2000 for being in possession of marijuana when he did not emphasise to any great extent the fact that the mother has cut herself on quite a few occasions, that she concedes that she has drunk – and I emphasise the past – that she has drunk alcoholic liquors to excess.  But nevertheless, at paragraph 95 of his report, which was exhibited to his affidavit, 9 March 2011, he indicates that:

    “Based on the reports that [the mother] has made regarding [E], I suggest that the current schedule for [E] spending time with her father be maintained –“

    That is, the supervised contact.  I do not know if I said this, it is supervised by the mother –

    “until [the mother] and [the father] be assessed by an independent psychiatrist.”

22. This took place.  Dr G was the psychiatrist – a well known psychiatrist – in Queensland and she put before the Court her report by way of affidavit dated 31 August 2011.  Whilst I do not believe it is necessary to enter into the in-depth report of Dr G, but I do refer to the last paragraph of her report, which is paragraph 63, where she said:

    “It is not my impression that the mother has deliberately made false allegations but I do consider that there is a possibility that her concerns about [E] may not be reality based.”

23. The reason why I am emphasising that is that the mother has, I have already said – has had an unfortunate upbringing with the fact that she, herself, was sexually abused as a young person and more particularly – whilst I am not for a minute minimising the shock that she would have had from being sexually abused – it has been exacerbated by the fact that N, her son, was abused by a person, if not necessarily in authority, by a person who one would have thought could look to for support and comfort.  That, in itself, would cause any mother, I would have thought, a great deal of concern and I do not criticise the mother for putting before us the matters which she has said.  As I said to her counsel, she would be damned if she did not, she would be damned if she did.  She did the right thing but, with great respect to her, because perhaps of this unfortunate experience herself and perhaps with N, that she has jumped to a conclusion which perhaps in all the circumstances she should not have done. 

1. She is protecting her child and a mother would as I have said, be condemned if she did not.  But she has heard the full evidence;  she does not accept the explanation of the father, as I said, but to me it seems more than reasonable in all the circumstances.  I take into consideration her concerns about the family violence;  may I say that the items of family violence or the incidents which were three in number at least, but three that concerned her, did not take place in such a manner as they would affect E, save on one occasion – the last occasion – of which when she was very young as she woke up when the father was throwing the mother across a bedroom and perhaps ..... hands around her throat and the father ceased and picked up E as she woke to endeavour to comfort her.  Whilst I have to – because of our political masters coming to the conclusion which the Court had known for about 15 or 20 years beforehand – that family violence is a nasty thing in any relationship, I take that into consideration. 

2. The pornography, I have already touched upon.  He concedes he does, but I do not believe that I could be satisfied on the evidence that it was of a child nature.  And, thirdly, the explanation of the father is reasonable in all the circumstances.  I must say one thing.  I had “perhaps” cross-examined the mother about two statements she made in relation to her belief that the child was not only subject to physical sexual abuse by the father, but that the fact that he may have been using her for the purpose of photographic pornography.  This was engendered in the mind of the mother by the fact that the child in 2009 when she was to get a photograph at the kindy group, became inconsolable and really lost the plot.

3. From that, she opines, as I understand her, that perhaps he was using the child for pornographic photographs, and the second one was that his violence to her could transfer itself to violence towards E.  Dr G was asked by the mother’s counsel and Dr G said, “It is understandable that the mother would fear that.”  All these things, I think, are understandable, and I do not criticise the mother to any great extent.  I think she has exaggerated, as I said, and in those circumstances, I will be ordering contact on an unsupervised basis being graduated.  I am directed, of course, to look at two things.  One is a presumption insofar as joint parental responsibility is concerned.

4. I must confess I agonised over this.  The mother opposes it, the father is proposing it.  I must say that I think in a case such as this that the parties are not communicating exceptionally well with each other.  The mother conceded that she could use a communication book, and that may diminish the feelings at this stage, but for years the expert has said unless there can be some sort of communication between the parties which puts aside the dislike, distaste or whatever you would like to say – the distrust of the other party, it is almost impossible to have joint parental responsibility.  I think in this case, because of the mother’s – and I am saying not unreasonable fears that she would not be able to advance the welfare of the child if there was joint parental responsibility, and at this stage I would order that she do have sole parental responsibility.  Insofar as the section 60CC factors are concerned, in a case such as this it appears to me that it is patently obvious that the child should have – and will have as a result of my order – a meaningful relationship with both of the child’s parents.

5. I note Mr D has given evidence that E related well to the father, and that there was no fear shown, that she enjoys the father, and the mother even herself on one occasion says that E adores the father.  What the mother is attempting to do, as I keep emphasising, is protect her child.  She has done everything she possibly can, and I regret that I find that she has just jumped to the wrong conclusion.  The child, of course, is too young to express any views, but having heard the evidence of Mr D and read his evidence, it appears to me that there is a relationship.  The willingness and ability of each of the child’s parents to facilitate and encourage a close and a continuing relationship between the child and the parent - the only obstacle there was the mother’s belief which I feel, as I said, was exaggerated.

6. She is a good mother, he is a good father, and they deserve E to be happy and protected in the future, and I am sure both of them will do their very best to maintain E’s stability, which she has.  She does have some night terrors but they have been getting much less.  Mr D was of the view that they are not that important, if my memory serves me correctly.  There is no difficulty or expense of spending time with and communicating with either of the parents, although I must say in passing that there was another matter which was raised by the father insofar as contact is concerned.

7. L and B, his children from the previous relationship to which I referred – B was born in January 1998, and L was born in January 2000.  I say in passing that each of the children involved in this case were all born in January.  He says that they are living in northern New South Wales, and his having two out of three weeks does cause some difficulties in that the weekends get out of sync because of the difference in the school holidays of New South Wales and Queensland.  I have taken that into consideration.  I have also taken into consideration the evidence of Mr D wherein the children, L and B, appear to have a close relationship with E, and E enjoys their company, and as a result of my order I would sincerely hope that such companionship will increase and develop into a warm and loving relationship equal and increasing, as I have said all the time.

8. I must take into consideration section 60CC(4) and consider whether, in fact, each of the parents have fulfilled or failed to fulfil their responsibilities.  I make it quite clear on the evidence before me I have already found that.  They are both doing a good job as best they can.  The mother has done a very good job.  She is attempting to protect her child quite properly, and I believe that perhaps her decision to restrict the contact to supervised contact by herself is not in the best interests of the child, and as I have said, I am lifting such supervision.  I do not believe that there is anything else that needs to be particularly highlighted since I am of the view that the authorities suggest that I need not go through each one seriatum, but to emphasise the ones which I think are relevant.

9. The father is seeking two out of three weekends.  The mother has considered that, and if, in fact, I am against her in insisting that there be supervised contact, which I am, she says that she should be entitled to have some time on the weekends to enjoy the child.  She is working, and the child is attending Prep, and I believe that notwithstanding there may be a slight diminution in the time initially that the father spends with E.  Such time will be supervised, and I think it is in her interests that she be entitled to have weekends with her mother as well as with her father.

10. In those circumstances, I consider that there should be only contact during the non-school holidays between 10.00 am and 3.00 pm for the first eight weeks on alternate weekends on either Saturday or Sunday, and thereafter from 10.00 am until 5.00 pm for a period of eight weeks, thereafter each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday.  So far as school holidays are concerned, I am satisfied that for school holidays other than the school holidays in June of this year, that the father have one half.  The father was seeking an order that they coincide with the New South Wales school holidays.  I regret I am not going to make that order, and I have a draft here which will be prepared and given to you, but it indicates that there will be alternate school holidays in 2013.

11. Obviously, with there being alternate Christmas holidays one year, the child will be with the father.  The other year the child will be with the mother.  When the child is not with one parent they will have contact between 2.00 pm to

    
    

    6.00 pm on Christmas Day.  Insofar as collecting of the child, for the purposes of these orders you will be given a copy of this.  The father is to collect the child from the mother’s residence and to return her.  That is for the first eight weeks.  Thereafter, the contacting is to be shared.  I order as per draft which will represent – and I give leave to the parties to approach me if they wish to make any submissions in relation to the order.

RECORDED  :  NOT TRANSCRIBED

1. I order accordingly, and we will prepare this, and, as I said, I give leave to any of you to approach me if there is any confusion about it.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 28 May 2012.

Associate: 

Date:  28 May 2012