ELLISON & ELLISON

[2016] FCCA 2441

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLISON & ELLISON [2016] FCCA 2441

Catchwords:
FAMILY LAW – Parenting – interim application to suspend time or impose conditions – allegations of sexually inappropriate behaviour by a step-sibling – no evidence to substantiate claims.

Applicant: MR ELLISON

Respondent: MS ELLISON

File Number: TVC 610 of 2016

Judgment of: Judge Young

Hearing dates: 6, 7 and 8 September 2016

Date of Last Submission: 8 September 2016

Delivered at: Townsville

Delivered on: 9 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Mayes

Solicitors for the Applicant: Roberts Nehmer McKee

Counsel for the Respondent: Ms Hudson

Solicitors for the Respondent: Lee Turnbull & Co

ORDERS UNTIL FURTHER ORDER:

1. That the Father consult with a therapist of his choice (such as Ms C) regarding ways to reduce the child X’s anxiety in resuming time with A.

2. That the Father follow the recommendations of the therapist and inform the Mother by letter to the Mother’s legal representative of the recommendations and the steps he intends to take.

3. Once the Father has complied with Orders 1 and 2 herein, then the children, X born (omitted) 2007 and Y born (omitted) 2010, spend time with the Father from after school Friday until before school Monday in the first week and from after school Thursday until before school Friday in the second week of each alternate fortnight.  That the Father notify the Mother’s solicitor of the Father’s compliance with Orders 1 and 2.

4. That pursuant to Section 68L(2) of the Family Law Act 1975, the children X born (omitted) 2007 and Y born (omitted) 2010 be independently represented and that Legal Aid Queensland be requested to arrange such representation.  That each party comply with any lawful direction of the Independent Children’s Lawyer in relation to the preparation of any report or assessment.

5. That the matter be adjourned for further mention at 10.00am on 30 January 2017.

6. That the Reasons for Judgment made today be made available to any professional consulted and the Independent Children’s Lawyer.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

TVC 610 of 2016

MR ELLISON

Applicant

And

MS ELLISON

Respondent

REASONS FOR JUDGMENT

Ex Tempore

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

Introduction

1. This is an interim parenting case about two children, X, who is eight and a half and Y, who is six years old.  The parents separated in June 2014.  The children live with their mother and spend time with their father.  It is not entirely clear what the time spent arrangement was but the children apparently began to spend overnight time with the father in 2015.  In April 2015 the father began to live with a Ms U.  She had a child of her own, A, who was then probably about 11, whose birthdate does not appear in the materials before me but at relevant times he has been 11 or 12.

2. It appears that by July 2015 X and Y were spending about two nights a fortnight with their father.  The frequency of the time they spent with their father is somewhat unclear.  The father’s affidavit material complains among other things that there was no consistency in that time but nevertheless it is clear that the children were spending overnight time with the father.  The mother states in her affidavit of 30 August 2016 that there was an “incident” in October 2015 which led to a dramatic change in X.

3. After she said that after returning from the father’s home on 25 October 2015 she saw “a completely different child” and that he was “extremely anxious” and would not leave her side.  No actual incident is identified in the affidavit material but it is said in the affidavit that on that day X had watched his father (hobby omitted) apparently as a birthday activity for the father and that X was afraid.  That day had also been a birthday party for A and it appears that the children had had a long day.  After this the mother apparently made an appointment for X to see a psychologist, a Ms C and that appointment was made for 15 November. 

4. The mother did not inform the father of that appointment.  The mother annexes to her affidavit an email to Ms C dated 23 November 2015.  That email says that the mother had originally made the booking for X to see Ms C because she was concerned that X was having difficulty with the breakup between the mother and the father.  She said in that email that X had returned from the father’s unsettled and she went on to say that X enjoyed seeing his father and others that live in the same house too.

5. That was the information at the beginning of that email.  On 18 November – that is, some five days before the email I have just referred to – the mother had received a call from a friend, a Ms L, the mother of a school friend of X’s called B.  The mother said in her affidavit that Ms L told her that X had asked B to “kiss his penis”.  The mother says that she hung up the telephone and asked X about the incident.  He initially denied anything had happened but then Mr P, the mother’s partner took X for a drive in the car and on return X said that he had something to tell his mother.

6. According to her, X said that he, X, “had kissed B’s private area and vice versa”.  She says that she asked X “how he knew to do such a thing” and X’s response was “A told me to do it”.  Mr P tells a slightly different story in his affidavit.  He says that he took X for a drive and initially X simply told him that what had happened was that he had been looking under the toilet door in the toilet cubicles at school and Mr P recognised that as X making up stories.

7. He said X then said “B had put his mouth around his private parts”.  Mr P said he asked X how he learnt that and X had said “at school”.  Mr P says he returned X to the mother and there was some conversation.  He was not present.  He then says there was a second drive and Mr P took X on the drive and again asked X where he had learnt this.  He said that X eventually said he had learnt it from A.  Mr P in his affidavit points to a change in X’s behaviour two or three weeks earlier where it is implied, though not stated, that he believed that change in behaviour which the mother also refers to may have something to do with the alleged incident.

8. Mr P also said that since that time X had said he was afraid of seeing A because he is worried A is going to “bash him”.  It appears that the father spoke to X soon after this.  I will go back a stage.  It appears the mother communicated all this information to the father and it was agreed that X would not be brought into the father’s household pending some resolution of these various claims.  It appears that the father spoke to X soon after this and X told the father that what he had said about A was not true.

9. Although, I say “appears” because any such conversation is not specifically addressed in the father’s affidavit but I infer it took place from other information.  As I have already mentioned, on 23 November 2015 the mother had emailed Ms C and told her about the allegations and she said in passing to Ms C that the father did not believe the allegations.  Ms C saw X on that day, 23 November 2015, and again on 30 November 2015.  X told her he liked his father’s and wanted more time with his dad and he missed him.

10. He said that dad’s partner and her son can be “mean”.  He said the partner makes him clean up and the son hurts him.  These are Ms O’s notes.  X said that they fight – a reference to A, apparently – but dad helps him.  And he said that the other boy is bigger and he is scared.  On 7 December X saw Ms C again.  Again, he said he was really missing his dad and reported only positives in each household.  He was reluctant to discuss the incident at school.  It is apparent from the material that Ms C engaged both the mother and the father in this and reported to each of them by telephone on the discussions with X.

11. That appeared to me to be entirely appropriate.  The mother deposes that X had told her he would not tell Ms C about his “A secret” and she says that X was becoming more upset.  There was a text exchanged on 15 December 2015 between the mother and Ms C and the full text exchange is not included in the mother’s affidavit material so I don’t know what she wrote to Ms C in the first instance but Ms C suggested that if X was not happy with her he could see someone else. 

12. There was no indication in Ms C’s notes that she was not establishing therapeutic rapport with X – on the contrary.  So the decision of the mother to cease X’s counselling with Ms C is, in my view, not entirely explained.  In early 2016 the mother arranged for referral to a different psychologist – a Ms A.  The mother did not provide details to the father of Ms A’s involvement and she said in her affidavit that she refused to do so because she said the father was saying that X was lying about A’s sexual conduct towards X.

13. On 17 February 2016 the mother sent an email to Ms A.  She referred to the father visiting her home and there being an angry scene a few days before on 13 February 2016 where the father said, according to the mother, that X had told him the incident with A did not happen.  The mother said that X later told her that he had in fact lied to the father because the father was asking too many questions.  Nothing further was said by X according to the mother until 17 February 2016 when the mother deposes that she picked X up from school.

14. She says that X straight away said, “Mum, nothing happened with A.  I never touched or he touched me.  We were only playing games.  So get that out of the picture now.”  The mother said according to her email:

    “X, your story has completely changed, and all you need to do is tell the truth.  You were very frightened of A, and remember you were very scared you would be made to see him on Boxing Day,”

    and the mother said X is now saying no he isn’t scared. 

15. At that point, it appears from the email that the mother may have been encouraging Ms A to make a report to the police.  There is certainly discussion of that.  It is of very serious concern that the mother emphasised the conversation of 13 February 2016 with the father but nowhere in her affidavit material has she mentioned the conversation of 17 February 2016 with X where X unequivocally said that nothing had happened. 

16. It is, in my view, inexplicable that the mother failed to mention this conversation in her affidavit material.  On 16 March 2016 Ms A wrote a letter back to the referring GP saying that her assessment of X was that he has “severe anxiety with obsessional features”.  She said that he was not relaxed and he was hypervigilant.  She referred to the allegations of sexual molestation but reached no conclusions about them. 

17. On 22 April 2016 child safety officers from the Department of Child Safety came to X’s school and interviewed X and Y.  On 29 April 2016 they interviewed A at his school.  On the same day they interviewed the father and Ms U at their home.  I will summarise what the child safety officers recorded in their report.

    a)Y stated she does not have worries at either mum’s or dad’s house.

    b)X said of A that he is “super annoying” and “once A punched him”.  X denied that A had asked him to touch his private parts and X had said he feels safe at his father’s house when A is not there. 

    c)A was interviewed, and nothing exceptional was said. 

    d)In the father’s interview he said he spoke to X about the allegations and he said that X was “scared shitless”. 

18. The assessment of the Department of Child Safety was that there was no evidence to indicate that X, Y or A have been exposed to any harm.  There were no disclosures by X during therapy sessions and there was no evidence that A had engaged in inappropriate behaviour.  The assessment was that in both households there was a low risk of harm to the children in the households.  On 4 May 2016 the Department of Child Safety wrote a letter, I infer to each of the parents but the only letter annexed to an affidavit was a letter to the father, and the letter said “There is no evidence to indicate that X or Y have experienced harm or have been subjected to an unacceptable risk of harm.” 

19. There was no reliable evidence that X had been subject to sexual conduct by A and the claim was not substantiated.  In submissions before me Mr Connolly for the mother conceded, as he must, that there was no reliable evidence of sexually inappropriate behaviour by A towards X.  He said, nevertheless, that there was a risk of psychological harm to X and referred to evidence of the fearfulness of X towards A.  There does appear to be clear evidence about that. 

20. It is, however, difficult to see what the source of that fear is.  It is not suggested by X that it is because of any sexually inappropriate behaviour.  What X says is that A punched him once and is bigger.  It might be speculated that he is also afraid of the consequences of a false claim against A.  I am not satisfied that there is any unacceptable risk of harm to X in the father’s household.  The Department of Child Safety found that there was no evidence of harm or of any unacceptable risk of harm and I see no reason to doubt that assessment. 

21. I do not intend to accede to the mother’s application to suspend time or impose conditions that A be absent. Nevertheless, it is clear that X is anxious about returning to the father’s home for whatever reason.  I am satisfied it is not fear of sexual conduct but possibly the result of a false claim, possibly because A is bigger than him, possibly because A has punched him or hurt him.  I consider that it is important that the father, in particular – but the father and the mother need to take steps to deal with X’s anxiety.  The mother needs to accept the result of the Department of Child Safety assessment. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 21 September 2016