ENGLISH & EKLUND
[2021] FamCA 89
FAMILY COURT OF AUSTRALIA
| ENGLISH & EKLUND | [2021] FamCA 89 |
| FAMILY LAW – CHILDREN – Interim parenting – Where at this interim stage the parties agree that the child should continue living with the mother and only dispute the time the child is to spend with the father and whether an order should be made for parental responsibility – Where the mother contends that the father sexually abused the child in the past, and thus a risk of sexual abuse arises in the future – Where the mother also contends that there is a risk to the child’s physical and psychological wellbeing arising from the father’s alleged neglect of the child’s diet in his care – Where father denies that he poses a risk of harm to the child on any basis – Where expert report is yet to be prepared in the proceedings – Where mother seeks interim orders that the child spend no time with the father pending the expert becoming available and that there be a further interim hearing following its release – Where father seeks interim orders to re-establish a relationship between he and the child – Where the ICL supports the mother’s position but contends that if the Court finds that it is in the child’s best interests for her to spend time with the father, that such time be supervised by a private supervision agency until a place becomes available at a contact centre –Where upon weighing the probabilities it is unlikely that a finding of sexual abuse by the father will be made by a court at final hearing– Where the Court considers that the child receives a benefit from having a meaningful relationship with both parents and that any risk the father may be found to pose may be properly mitigated by orders that the child’s time with him be supervised – Orders made as proposed by the father as to the time he is to spend with the child and communicate with her and as proposed by the ICL in relation to other matters. FAMILY LAW – Restraints – Where concerns were raised about the child’s medical care and in particular the sheer number of health professionals involved over the years – Where restraints on certain health practitioners are also appropriate in order to have a fresh lens through which the child’s health needs and any required treatment can be assessed. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, s 65D |
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Mr English |
| RESPONDENT: | Ms Eklund |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 3379 | of | 2019 |
| DATE DELIVERED: | 26 February 2021 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 15 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batley |
| SOLICITOR FOR THE APPLICANT: | Bateman Battersby Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms DeVere |
| SOLICITOR FOR THE RESPONDENT: | Genlaw Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid |
Pending Further Order:
All previous parenting orders in relation to X born … 2012 (“X”) (with the exception of those made on 15 October 2020) are discharged.
X is to live with her mother.
X is to spend time with her father as follows:
(a) Each alternate Sunday from 10.00 am to 2.00 pm;
(b)On Father’s Day, if that day falls on a weekend that X is not spending time with the Father from 10.00 am to 1.00 pm;
(c)The time X spends with her father is to be supervised by B Services, or such other service as may be nominated by the Independent Children’s Lawyer (“ICL”).
The father is to pay the costs of B Services.
The parties are each to do all things required of them by B Services or such other supervision service nominated by the ICL forthwith to facilitate the child’s time with her father commencing as soon as is practicable.
Changeover of X between the parties is to occur at a place agreed to by the parties in consultation with the supervisor.
The mother is restrained from remaining at any place where X spends with the father during that time.
The father is to communicate by phone with X each Friday and the alternate Sunday on which he is not spending time with X, with the father to phone the mother’s mobile number between the hours of 6.30 pm to 7.00 pm and the mother is to ensure:
(a) X is available to receive the father’s phone call;
(b) The mother’s mobile phone is fully charged; and
(c)The mother is restrained from interfering with such phone calls and is to give X privacy during such phone calls.
If X suffers a medical condition, accident or emergency which requires emergency, ongoing or specialist care or hospitalisation, the mother shall as soon as practicable and by no later than 24 hours:
(a)Inform the father in writing of the nature of such circumstances including any diagnosis, prognosis and treatment plan;
(b)Authorise any health care practitioner who may assess or treat X to communicate with and provide information to the father in relation to X’s health care and provide the father’s contact details to facilitate such communication;
(c)Provide the father with the name and contact details for any health care practitioner.
The father is authorised to communicate with and obtain from X’s school all documents and information ordinarily made available to parents including but not limited to school reports, school photo order forms, newsletters, progress reports and invitations to parent teacher interviews.
Unless otherwise agreed between the mother and father in writing and notwithstanding Order (10), the father shall not attend upon X’s school whilst X is present on school grounds or any location at which X is participating in an extra-curricular activity.
The father may provide X a letter or card not more than once a month and may provide X a birthday and Christmas card and gift.
Each parent is restrained from discussing these proceedings or allegations raised in these proceedings with or in the presence or hearing of X, except :
(a)As reasonably necessary to facilitate compliance with these orders or X’s attendance for court-ordered appointments;
(b)As necessary to facilitate X meeting or communicating with the ICL.
The mother is restrained from causing X to be examined or interviewed in relation to alleged sexual abuse or harm unless:
(a) With the father’s consent to the same; or
(b)At the direction of the Department of Communities and Justice or NSW Police.
The ICL shall have leave to issue in excess of 5 subpoena.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym English & Eklund has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3379 of 2019
| Mr English |
Applicant
And
| Ms Eklund |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties (“the mother” and “the father”) cannot agree about the future parenting arrangements for their eight year old daughter (“the child”) following the breakdown of their relationship of around 10 years.
Since the parties’ separation in early 2017, the child has lived with the mother and spent inconsistent time with the father. This previously included overnight and unsupervised time until orders were made in September 2019 for the father to spend limited time with the child in a public place on specified dates. These orders largely covered a period until an interim hearing in the Federal Circuit Court was to take place, but on the date listed for that to occur, the proceedings were transferred to this Court with no further orders made regarding the child’s time with the father. As a result, there are currently no orders in place regarding the child’s time with the father and the child last spent time with him in February 2020.
The parties agree that at this stage the child should continue to live with the mother so the only dispute is whether the child is to spend time with the father and whether an interim order for parental responsibility for the child is to be made. The applicant father seeks interim orders in summary that the child spend time with him for four hours each fortnight supervised either by his sister or a professional supervision service and that the parties share parental responsibility for the child.
The mother holds concern for the child’s physical and psychological safety in the father’s care. She asserts that the child has made disclosures to her and others which she considers to be disclosures of sexual abuse. The mother also holds concern as to the child’s health in the father’s care, arguing that the father seriously neglects the child’s dietary needs which in the past has caused the child to experience significant health problems.
At the interim hearing, the parties agreed to an expert being appointed to prepare a report in the proceedings. The parties are expected to meet with the expert in March 2021. The mother seeks orders that pending the expert’s report becoming available, the child should not spend time with the father and proposes that there be a further interim hearing following the release of the expert’s report.
The Independent Children’s Lawyer (“ICL”) supports the mother’s position that there should be no orders for time with the father until the expert’s report is available and following the release of the report a further interim hearing should proceed. The ICL proposes if the Court finds that it is in the child’s best interests for her to spend time with the father, that such time be supervised by a private supervision agency until a place becomes available at a contact centre.
The father contends that orders should be made pending the parties attending upon the expert to re-establish a relationship between he and the child.
The question for me to determine is whether the child should spend any time with the father pending a further interim hearing that is to take place following the release of the expert’s report and whether an interim order for parental responsibility should made, and if so the terms of that order.
Orders were also made on the day of interim hearing restraining the parties from continuing to obtain treatment from the child’s paediatrician. This order was opposed by the mother and as indicated at the interim hearing, short reasons for that order will be included in this judgment.
Background
The mother aged 43 and the father aged 48 met in January 2005 and began living together in November 2006. At that time the mother had another child from a previous relationship who formed part of the household (“the older child”).
In 2012 the only child of the parties’ relationship was born.
In August 2015 the parties separated and a few months later the mother began a new relationship. The mother remained living in the family home throughout this period until she discontinued the new relationship and reconciled with the father in December 2015.
At around the time of the parties’ separation and the mother’s new relationship in 2015, the parties observed that the child was frequently suffering with diarrhoea and stomach cramps. The child attended upon a general practitioner and then a dietician who was of the view that the child was suffering from food allergies causing her immune system to react abnormally to specific foods. It was recommended that the child cease consuming certain kinds of foods and follow a more limited diet.
The mother also asserts that around the time the child began exhibiting these physical signs, she also began displaying behavioural challenges, including hitting other children at childcare and behaving in an oppositional manner.
The mother also claims that from about late 2016 the father threatened to harm the child if the parties separated, a matter which the father disputes.
The parties separated in January 2017 but both continued living in the family home. In the same month the mother travelled overseas with her older child and left the child in the care of the father. The mother deposes to the child making concerning claims that the father had been taking photographs of the child’s “private parts” and “poo” in the same month.
The mother moved to a new home a few months after separation, taking both of her children with her.
Following their separation the parties reached agreement for the child to spend time with the father each alternate weekend and half of each school holiday period. This arrangement remained in place but there was significant conflict reported by both parties, largely resulting from disagreements between them regarding the child’s diet and the mother’s contentions about the child’s ill health. Each of the parties describe incidents of significant conflict at changeover in their respective affidavits to which the child was exposed.
In around mid-2017 the mother began a relationship with a new partner (“the mother’s partner”).
In July 2017 when the child was almost five the mother ceased making her available to spend time with the father.
The following month the mother took the child to see an “allergist” who is said to have opined that the child has food intolerances rather than allergies. This doctor referred the child to a gastro paediatrician.
The child was seen by the gastro paediatrician in November 2017 who recommended that the child be fed foods containing gluten for 12 weeks. The mother says that when the child was fed this diet she did well and did not become ill.
The father did not spend time with the child from July to December 2017. In December 2017 the parties participated in Family Dispute Resolution and reached an agreement that the child live with the mother and spend time with the father each alternate Sunday and one weekday each week (after school on school days and for the entire day during school holidays). This agreement was embodied in a parenting plan.
Other aspects of the parties’ agreement was that the mother was to pack all meals for the child to consume while she was in the father’s care, and that the father was not to feed the child any other food without the mother’s approval. It was also part of the agreement that the father would follow a vegetarian diet or any specific diet prescribed by the child’s dietician and that he would not force or encourage the child to eat meat.
In 2018 the child missed 19 days of school. School records indicate that four of these occasions are explained as being by reason of illness with the remainder of the absences being unexplained.
In April 2018 the mother sought a second opinion from another gastro paediatrician who recommended a gluten free diet for the child. Although the mother deposes to an improvement in the child’s health for about a week after she followed this advice, she also deposes to the child complaining about abdominal pain after spending time with the father and becoming so unwell that the mother took her to hospital, though there is no suggestion that the child was admitted.
In June 2018 the child’s school contacted the mother and advised that the child had complained of a sore “front bottom”.
In August 2018 the parties participated in a further mediation and reached agreement that was subsequently embodied in a parenting plan and provided for the child to spend time with the father overnight each alternate weekend and on a weekday in each alternate week. Again, the parties agreed that the father would provide a vegetarian diet for the child and would not encourage her to eat meat. The parties also agreed that the mother would provide the father with a diet for the child including specific brands of products and recipes. The father also undertook to maintain a food diary outlining all foods the child consumed while in his care and to provide a copy of that diary to the mother at the conclusion of every period of time the child spent with him.
Later that month, the mother emailed the child’s school teacher and requested that the teacher make a written report of the teacher’s observations of the child’s change in behaviour during a period in which the child was apparently eating gluten in her diet (described as “the gluten challenge”). The mother’s email request included the following:
As [the child’s] teacher during her gluten challenge I am sure you saw first hand the huge difference in her behaviour while on gluten and now that she is off gluten again.
...
...I remember you saying she was very defiant and would not follow instructions. She was also mean to [name omitted] calling her names. I imagine you probably also noticed a huge difference in her concentration as I certainly found it difficult to do home readers with her during that time.
To give you the back story, I am going to try allowing her father to prepare her food again and whilst I always pray for the best I have learnt to prepare for the worst... The last two times we have tried this it did not go well, so if he again decides making different food for her is too inconvenient therefore her food intolerance must not be real I am going to be ready...
Throughout the balance of 2018 the child continued to spend time with the father, though not always in accordance with the parties’ agreement. It is generally the mother’s case that the child continued to experience behavioural and health difficulties which she connects to the child’s time with the father. As I understand it, the father contends that the child appeared to enjoy her time with him and disputes the severity of the child’s physical symptoms.
Some of the symptoms displayed by the child when she returned from her father’s care according to the mother’s affidavit are very alarming. On one such occasion, the mother deposes that the child “had severe brain fog”, “couldn’t even walk properly” and “was sick all night, defecated in her pants several times and was crying with belly pain”.
In December 2018 the child commenced seeing a new paediatrician (“the child’s paediatrician”).
The child’s paediatrician was apparently at first concerned that the child’s behaviour could be contributed to by exposure to toxins or mould. The mother contacted the father informing him of the doctor’s recommendations and sought clarification about various matters including the child’s diet and toileting when in his care. The mother had also been complaining to the father at this time that the child’s underwear was regularly soiled following her time with him, and for these reasons the father began checking the child’s underwear for soiling prior to changeover to the mother’s care.
The child did not spend time with the father from late December 2018 for two months to the end of February 2019 while she participated in “gluten testing” as the mother determined that in order for the child to have a consistent environment while she engaged in this testing, she could not see the father.
The child then resumed spending time with the father at the end of February 2019. This was short lived and in April 2019 the mother notified the father (who at that time had last seen the child the previous month) that she would not be facilitating time between he and child for a period of 12 weeks. As a result, the child had a total period of five months without contact with the father.
The mother deposes in her affidavit to continuing to make a connection between a deterioration in the child’s behaviour and health and spending time with the father. For example, she deposes that after the child returned from spending time with the father at the end of February 2019 “[the child] was again behaving as though she was drug affected” and “she started pooing her pants again after that day”.
During the time in which the mother did not facilitate the child’s time with the father in the first half of 2019 the mother claims in her affidavit that the child’s health, behaviour and concentration improved dramatically and that she was able to consume gluten without any symptoms.
Although the mother contends that the child’s performance at school greatly improved in 2019, in April, the mother requested that the child attend upon a counsellor at school. In the school counsellor’s records produced on subpoena, the following is attributed to the mother in conversations between she and the counsellor:
I want [the child] to see a counsellor. A lot of trouble with [the child’s] father. She has quite severe food intolerance. He was emotionally verbal abusive.
He’s the trigger.
When she doesn’t go there.
She goes there she gets vomiting, diarrhoea.
No formal custody arrangements.
Separated since beginning of 2017.
No DV.
The mother spoke with the school counsellor again in May 2019 and it is recorded:
When she doesn’t see him (father), she doesn’t get sick.
We have to see if it’s the food or him.
…
If I’m going to stop her seeing her dad, I have to prove its visiting him that causes it.
He’s made threats against her.
He made several threats, he never actually said what he would do, but he made it clear she was his possession.
He’s run into people with cars.
He tried to stab someone with a screwdriver.
In around mid-2019 the mother began living with her partner and his son then aged about 11.
The father commenced proceedings in the Federal Circuit Court in July 2019 seeking interim and final parenting orders largely in accordance with the parties’ previous agreement.
In September 2019 the mother facilitated the child’s first attendance upon a psychologist (“the child’s psychologist”). The mother told the child’s psychologist that the child “gets sick whenever she goes [to the father’s house]”. She also advised the psychologist of the child’s food and chemical intolerances and symptoms.
On 26 September 2019 the matter came before a judge in the Federal Circuit Court and orders were made that the child live with the mother and spend time with the father for two hours on two specified Sundays each month until 16 February 2020, with the time to occur in a public place.
In early October 2019 the Department of Communities and Justice (“the Department”) received a report that the father was “dismissive of” the child’s health issues. It was reported that the child had food intolerances, chemical sensitivities and is on an “elimination diet” and that the father’s dismissal of the child’s health issues was causing the child to become sick to the point of vomiting and diarrhoea. This report was reviewed and closed without a field response as priority was given to higher level risk of harm reports.
On 5 November 2019 the parties and child attended upon a family consultant for the purposes of a Child Inclusive Conference. The family consultant observed that it did not appear to be in dispute that there have been some inconsistences with the father following the recommendations provided by the child’s treating professionals for her diet, at least prior to the parties participating in mediation. The family consultant opined that this is likely to have contributed to a more significant breakdown within the co-parenting relationship. The family consultant made a number of recommendations including that the parties participate in a contact program to help them work on their co-parenting relationship and that the father prioritise the child’s health needs and abide by the guidance of the child’s treating health professionals.
A few days later the mother asserts that the father was angry at the child’s changeover, that the child was unsettled that evening with her sleep and complained of headaches. She asserts that the next day the child had bruises “all over her legs”. The mother deposes that she was uncertain as to whether the father was responsible or if the child had caused them herself. In a later report made to police, the mother informed police that the bruises were more like the size of the child’s fingerprints.
On 9 December 2019 the child had another appointment with the psychologist. In her notes from this appointment, the child’s psychologist records that “seeing dad at shops going well”. Later notes, apparently made following a discussion with the mother, records “Dad angry _ being mean to [the child] acting angry. [The child] felt sad + missed mum” and “I really hope 2 hrs will be over soon”.
On 18 February 2020 the mother took the child to see her paediatrician who examined the child during the appointment. It is recorded in police records that the paediatrician told the mother that the child was displaying signs of sexual assault and suggested the mother take the child to see a psychologist.
On 21 February 2020 the child attended upon her psychologist. Towards the end of the appointment and after speaking with the child, the child’s psychologist informed the mother that the child had disclosed that the father used to touch her private parts (vagina and anus).
The psychologist’s notes from this day include the following:
Told mum about Dad taking photos of her private parts. Year before last. 2017. Coz it was sore.
Still gets sore – inside too.
Dad made [the child] feel uncomfortable “to do with your private parts”
He used to touch me at his house
Before the shopping centre contacts
Which part? Every part, bum vagina
With what? His hands.
How were his hands? Flat.
Last time as last yr or yr before.
The psychologist told the mother that the child had said that the touching used to occur at the father’s house when she would spend time with him, and that since she started spending time with him at a local shopping centre, the father had stopped touching her in this way.
The psychologist’s notes also record that the child disclosed that she feels uncomfortable with her father, does not feel safe, that the father does not treat her nicely and that she did not want to see him.
On 23 February 2020 the Department were notified of the sexual abuse allegation against the father via their Helpline and the matter was referred the Joint Referral Unit (“JRU”)[1].
On 28 February 2020 the child was interviewed by the Child Abuse Unit.
On 1 March 2020 the father asserts that he was to spend time with the child for the last occasion pursuant to interim orders in place at the time (though it is noted that the orders do not provide as such) but the mother did not make the child available. The mother continued to facilitate telephone communication between the child and father but the father asserts that he has continually encountered difficulties in this regard.
On 9 March 2020 the child attended upon her treating paediatrician. In a letter written by the paediatrician to one of the child’s treating health professionals, the paediatrician wrote that she had previously recommended that the child’s psychologist “carefully explore the possibility of sexual abuse”. She then goes on to write that when the child saw the psychologist following this recommendation, “this apparently came up as highly likely…with the psychologist and the case has been referred to the police”.
The mother asserts that at some stage in April 2020 she asked the child what she spoke to police about. The mother deposes that the child responded “Dad was touching my front bottom [the term the child uses for vagina] and hurt me”. The mother says that she asked the child about this again a few days later and the child said “Dad touched my front bottom and took a photo of it”. She says that when she asked the child whether this hurt her, she responded “it was a little bit sore but when he touched it he made it really sore”.
Police records produced on subpoena record that in the course of their investigation police contacted the child’s paediatrician who reported that she first considered the possibility of sexual abuse when she realised the child had been seeing her father in public at visits to shopping centres as opposed to his home and she appeared to remain well. The paediatrician also had a theory that something had happened which caused the child concern when the father went shopping with her and purchased a leotard. The paediatrician explained that as she is not trained to ask questions of children in relation to sexual abuse she recommended that the mother tell the child’s treating psychologist of her concerns.
Police records also indicate that police spoke to the child’s psychologist who had apparently received information from the child’s mother about the child’s Child Abuse Unit interview in which the mother reported that the child was “scared to talk to police” and “didn’t say much”. It is also apparent from the police records that police received a letter from the child’s psychologist through the mother’s lawyer in which the psychologist expressed concern that the child revealed that the police officer “did not ask as many questions” so there were some details that the child “did not get to say”. The psychologist also informed police of her opinion of “historical evidence” that indicated to her that the child has been sexually abused.
On 17 April 2020 the father took part in a police interview regarding the allegations. A summary of the father’s answers to questions is contained in the Magellan Report[2]:
[The father] said he has never taken a photo of [the child]’s vagina for any purpose, [the father] denied ever having to touch [the child]’s vagina for any purpose. [The father] stated that he use to check [the child]’s underpants for soiling before returned to her mother’s home. [The father] stated the reason he checked [the child]’s underpants for soiling was so he was able to say she was returned to her mother’s care with clean underwear. [The father] said he did once take a photo of [the child]’s faeces as he had given her meat and wanted to check if this had any effect on her toileting due to [the child]’s intolerance to some foods. [The father] stated, he was aware and believing of the fact [the child] has intolerance to chemicals found in food and gluten. [The Department] and police were of the view there was no evidence to suggest [the father] sexually touched [the child]. As such, reported concerns of sexual abuse were not substantiated by JCPRP and the case was closed with no further intervention believed to be required.
It is also apparent from the police records that the mother’s lawyer contacted police asking for a letter in relation to the investigation for the purposes of the upcoming interim hearing in the Federal Circuit Court.
The mother was also interviewed in the course of the investigation. In her (unsigned) statement dated 22 April 2020, the mother refers to the interim hearing in these proceedings due to occur two days later. With respect to the allegations of child abuse and the scheduled upcoming hearing the mother wrote:
I am scared for [the child]’s safety with [the father]. I have really been pushing her to try get her to open up and tell me, or anyone for that matter why she doesn’t feel safe with him…
On 23 April 2020 the officer in charge of the investigation of the allegations against the father wrote a letter addressed to the presiding judge of the Federal Circuit Court advising that the NSW Police and JCPRP were unable to substantiate sufficient evidence to “lay any criminal charges” against the father.
On 24 April 2020, when the interim hearing had been listed, the proceedings were transferred to this Court for consideration of placement in the Magellan Program.
In May 2020 the child was diagnosed with Level 1 Autism Spectrum Disorder by her treating psychologist.
On 22 May 2020 the matter was placed into the Magellan Program and the parties were given directions for the filing of documents.
On 28 May 2020 a report was received by the Department alleging medical neglect and in particular that the father is dismissive of the child's food intolerances and sensitivities and she often ends up becoming sick in his care. The Department considered that this did not meet the threshold for investigation as it was the same information reported in October 2019.
On 4 June 2020 a further report was received by the Department alleging sexual abuse as the primary issue. The Magellan Report summarises the complaint as follows:
It was reported [the child] was sexually abused by her father and stated “dad was touching my front bottom and hurt me” and used her hands to demonstrate how [the father] touched her. It was noted that the way [the child] spoke indicated [the father] toucher her vagina more than once. Other previously unreported behavioural indicators include [the child] looking at, poking and rubbing her vagina repeatedly after returning from [the father]’s house, doing a “strip tease” in public despite her mother’s attempts to stop her and pulling her dress up to show male teachers her underwear.
The report was referred to JRU and rejected noting that the previous investigation did not substantiate sexual harm for the child.
In early October 2020 the ICL wrote to the child’s psychologist enquiring whether the therapy is provided on the basis of an acceptance that sexual abuse has occurred or otherwise. The psychologist responded explaining that initially the therapeutic work occurred before the issue of sexual abuse arose. She also detailed that the mother had reported to her that the child had experienced encopresis which the psychologist remarked in her email “Of course, encopresis is always a red flag for sexual abuse”. The psychologist went on to write:
…It became apparent that [the child] also used to come home from her father’s home complaining of genital pain, she had recurrent urinary tract infections, and displayed sexualised behaviour…In a later session, [the mother] reported to me that she had recently taken [the child] to a paediatrician who had mentioned that the size and shape of [the child’s] feaces (sic) was an indicator of sexual abuse.
Since I have been trained in interviewing children who have been sexually abused…I decided to initiate a discussion with [the child] around appropriate and inappropriate touching, using a social story. It was after this that she disclosed to me that in fact she had been sexually abused by her father at his home…
The hearing took place on 15 October 2020. On this day orders were made for the appointment of an expert. Orders were also made to limit the extent of the child’s engagement with various medical professionals. It was ordered with the parties consent that the child only attend upon one specific general practice and that the mother be restrained from causing the child to attend upon the child’s psychologist. The parties were also restrained from continuing the child’s treatment with the paediatrician and requiring that she only attend upon a paediatrician as recommended by her general practitioner. As indicated, the orders in relation to the paediatrician had been opposed by the mother and accordingly the reasons for that order are also addressed in this judgment.
Otherwise, the father’s interim application was reserved with a further interim hearing to occur on release of the expert report.
The law & discussion
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286 (“Goode”).
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
Assessment of Risk
When considering interim orders, the Court may, and in some circumstances must, also have some regard to the matters in dispute. There is a long line of authority to the effect that a court must make an assessment of disputed facts relating to alleged risks to children.
In SS & AH [2010] FamCAFC 13 their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George [2013] FamCAFC 182, a decision of the Full Court citing Deiter & Deiter [2011] FamCAFC 82 (“Deiter”)).
In Deiter the Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Full Court said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The nature of the risk said to be posed by the father is difficult to understand. It is clear from the mother’s affidavit that she has believed the father sexually abused the child in the past, and thus a risk of sexual abuse arises in the future, and has continuously asserted that there is a risk to the child’s physical and psychological wellbeing arising from the father’s alleged neglect of the child’s diet. In these proceedings, the two allegations appear to have become merged and, in my view, somewhat muddied and are now overlaid by a general concern that something is awry in the father’s household that is causing harm to the child.
At the interim hearing, the mother contended that at this stage it is difficult to ascertain whether the child is at risk of sexual or psychological abuse in the father’s care. It was submitted on her behalf in summary that, whatever physical, psychological or behavioural “issues” arise for the child, such issues are “directly as a result of whatever it is that’s happening in the father’s care”. The mother contends that for this reason there should not be orders that would see the child spend time with the father until the expert’s report is available and then there should be a further interim hearing.
In her lengthy affidavit, the mother deposes to a numerous occasions over the years since separation when she says the child’s physical health is compromised after spending time with the father, which she considers to a be a direct result of the father not complying with the child’s strict dietary requirements. She complains that the child has returned to her care after spending time with the father with incontinence, stomach pains and cramping, and that her behaviour at school has been noticeably worse during the periods that she has contact with the father.
The mother contends that the child’s physical symptoms have in the past abated during the prolonged periods the child has not spent with the father, particularly most recently during the extensive period throughout most of 2020 while there have been no orders in operation in relation to this time.
It is submitted on the mother’s behalf that school records corroborate her position of an improvement in the child’s behaviour while she has not been spending time with the father. The mother relies in particular on correspondence between the child’s school counsellor and the child’s teacher from September 2020 which records the child’s teacher reporting that since their last correspondence in March, the child’s work “is improving in most areas and she has remained constant in her behaviour”. As a point of contrast, the mother then pointed to an email received by the mother from child’s school teacher in August 2019 where the school teacher reported that the child’s behaviour has “not been the best” at times, and reported one particular occasion where she disrupted the class quite significantly. The mother also highlighted another email she received in September 2019 from the school teacher in which it was reported that the child’s behaviour was “very oppositional” and wrote that he had no idea what could have triggered her behaviour.
In keeping with the general nature of the mother’s contentions that something associated with the father’s care must be causing the difficulties with the child’s physical health and behaviour, there were no specific submissions made on her behalf or reference to any particular evidence in relation to the two domains of harm that are a thread throughout her evidence, being the suggestion that the father had sexually abused the child and had provided food for her in his care that adversely affected her physical condition.
It is contended on behalf of the father that he does not pose a risk of any kind to the child.
So far as the allegations of sexual abuse are concerned, it is submitted on behalf of the father that the Court should assess the likelihood of any such claim by attaching weight to the investigation by JCPRP which did not substantiate the allegations and did not result in charges being instituted against the father due to insufficient evidence.
The mother’s case rests upon an acceptance that the child’s physical symptoms are as dire as she contends and come about as a direct result of the father’s care as opposed to the child exhibiting symptoms for some other reason (such as a manifestation of the child’s anxiety from exposure to an acrimonious dispute between her parents). The ICL accepts that there may be any number of reasons for the child’s physiological symptoms but submits that the observations made by the child’s school teacher and counsellor corroborate the mother’s account of an improvement in the child’s health since time with the father has ceased.
The father disputes both the mother’s claims of the extent of the deterioration of the child’s behaviour and health after spending time with him and her contention that he is solely responsible for the child’s presentation. He further submits that the mother has an entrenched negative view of him and points to evidence of her making allegations against him without foundation. For example, the mother’s affidavit contains the following:
Given the threats he had made against her, I did sometimes wonder if [the father] was deliberately poisoning [the child] accidentally…
The father also highlights an email sent from the child’s school teacher to the school counsellor in March 2020 where the counsellor records that the mother “came across quite caring of [the child] – but was very negative of dad”.
The ICL recognises that there are allegations of risk made by each of the parties in relation to the other parent’s household.
Although the risks identified by the mother were more nebulous in submissions made on her behalf at the hearing than the allegations contained in her affidavit, they appear to relate generally to concerns about the quality of care provided by the father (particularly in relation to the child’s diet) and the question of whether he has sexually abused the child.
The concerns identified by the father on the other hand, relate to his contention that the child’s physical manifestations (that he does not accept are being accurately portrayed by the mother) may arise from factors which do not relate to himself. It is also his contention that if the child is deprived of a relationship with him during the likely lengthy period of time in which the source of her difficulties is identified, there may be a serious detrimental impact on that relationship which may not be able to be restored.
The ICL favours the mother’s position on the basis that it is important to preserve the child’s current good health and positive performance at school, but proposes that if the Court finds there is a benefit to the child in having a relationship with the father at this stage, that such a relationship should be fostered by the child’s time with the father occurring at a contact centre or through a professional contact service.
In the circumstances of this case, therefore, I must weigh the probabilities of the suggestion that the child may have been sexually abused by the father and that he has neglected the child’s medical or dietary needs or some other aspect associated with her care which has caused her to suffer psychological and physical harm that is manifested in disturbed behaviour and physical symptoms.
For the following reasons, I do not consider it likely on the available evidence that a court will find that the father has harmed the child in either of these ways, or that there is an unacceptable risk of arising from either or both of these matters in the future in his care.
The mother’s contentions about the sexual abuse are difficult to ascertain from the submissions made on her behalf at the interim hearing. It is clear, however, that her case does rely upon a contention that the father has sexually abused the child in the past and for this reason may do so in the future. I consider that there are many problematic features about the allegation of sexual abuse that cause me to assess it as unlikely that a court will find such abuse proved or the relevant risk present.
First, the mother appears to rely on the contention that certain signs and behaviours in the child are consistent with sexual abuse but there is no independent expert evidence to support these contentions.
As I understand it, the mother relies on matters such as the child’s behaviour (which she considers sexualised), her recurrent urinary tract infections (“UTIs”) and encopresis after contact with the father, as indicators consistent with sexual abuse. The only source of relevant evidence as to all of these matters, is the mother’s observations which she has then recounted to other health professionals.
The father denies that the child soils her underwear when spending time with him as alleged and calls into question the mother’s claimed observations about soiling. There is no evidence other than the mother’s assertions that the child has had recurrent UTIs or any expert evidence that UTIs are consistent with sexual abuse in children. There could be many explanations for the child's many behavioural difficulties including her exposure to the highly conflicted and acrimonious dispute between the parties, particularly as both refer to incidents of aggression between them in the presence of the child. There have also been other significant incidents in the child's life proximate to the development of these generalised behavioural difficulties such as their first emergence in 2015 when the parties had separated but continued living together and the mother had begun a new relationship.
The first specific suggestion that the child's presentation could be explained by her having been the victim of sexual abuse, arises from the child's paediatrician. According to police records, in a conversation with police the paediatrician raised a hypothesis about sexual abuse relating to the purchase of a leotard, though the facts supporting this hypothesis are in dispute. There also appear to be somewhat unusual opinions attributed to the paediatrician in an email from the child's psychologist to the ICL (albeit as third hand hearsay) that “[the mother] reported to me that she had recently taken [the child] to a paediatrician who had mentioned that the size and shape of [the child]’s faeces was an indicator of sexual abuse”. There is no record of any paediatrician expressing such a view or any medical evidence as to this matter.
The child's paediatrician also appears to have conceded in her discussions with police contained in police records that she is not trained to ask questions of children in relation to sexual abuse and recommended that the mother tell the child's treating psychologist about her concerns.
Next, I am of the view that the way in which the child’s disclosures of abuse emerged raise the real risk that such disclosures may have been tainted or influenced by others.
Although the treating psychologist appears to have been the person to whom the child first made a disclosure of sexual abuse, she has not filed an affidavit in relation to that disclosure nor is there any evidence that police obtained a statement from her for the purposes of considering whether there is sufficient evidence for criminal proceedings against the father to be instituted.
The notes of the child's psychologist’s session on 21 February 2020, when the child is first said to have made this disclosure, are therefore likely to assume some significance at final hearing. The first observation that may be made is that the notes are quite brief and in summary form. They appear on their face to record information given by the mother first and then information given by the child. This is not consistent with the mother’s evidence that she spoke to the child's psychologist alone and then together with the child after the consultation.
The psychologist’s record of the conversation with the child on this date includes the words:
[First initial of child’s name] agreed dad makes her feel uncomfortable sometimes
Don’t feel safe with dad
The reference to telling the mother about “dad taking photos of her private parts” raise the possibility that the psychologist asked questions about these matters rather than received a spontaneous disclosure from the child. Other notes made by the psychologist are in my view consistent with the psychologist asking questions that are in their nature, leading. For example the words “dad made [child’s initial] feel uncomfortable “to do with your private parts” suggests that the feelings of discomfort being connected with the child's “private parts” may have come from the psychologist. It is then recorded “he use to touch me at his house” and then “which part? Every part, bum vagina”.
In my view, in the absence of an affidavit the psychologist’s notes cannot be regarded as an accurate account of the actual disclosure made by the child. Some of the words recorded as attributed to the child do not appear to be consistent with the language used by the child at the time. For example, throughout the mother’s affidavit the child refers in various contexts to her genital region as her “front bottom” including when speaking in the household and on one occasion when making a complaint at school. These words are not referred to in the psychologist’s notes but the word “vagina” is recorded, although there is no evidence of the child using this word herself.
I also note that in the psychologist’s records, the following words appear:
Court date 24 Apr.
Contact is not forced atm [at the moment]
The presence of these words, in my view, give rise to a concern about the possibility of the child’s disclosure having been adduced for purposes associated with the proceedings, especially as there is other evidence including the mother’s own statements that she had a quite fixed belief about the harms associated with the child spending time with the father and was attempting through various means to gather evidence in support of that claim.
A transcript of the child’s interview with the JRU has not been prepared but some features of the interview can be gleaned from the documents produced by police and the Magellan Report. In this regard, it is clear that the investigators adopted the method of asking leading questions in an effort to adduce any relevant answers from the child. It is apparent, for example, from police records that the investigator began a question about photographs being taken of the child’s “private part” with the words “someone told me that someone took photographs”. Otherwise, I am unable to draw any further conclusions about the interview itself in circumstances where neither a transcript nor the recorded interview itself are available.
In weighing the probabilities of the sexual abuse allegation, I also attach weight to the assessment by the JCPRP that these allegations were not substantiated by an expert team engaged for that purpose applying the civil standard of proof. It also appears that the JCPRP may have considered alternate explanations for the reports about the child’s presentation when assessing the sexual abuse allegations. According to the Magellan report, the JCPRP when assessing the allegations and questions of risk, noted there were Family Court proceedings on foot “which may pose a “moderate risk” to [the child]’s mental and psychological health”.
The only other evidence in relation to the allegations of sexual abuse arise from the mother’s statements in her affidavit about the child’s further disclosures to her after the police interview that “dad touched me on my front bottom and took a photo of it” and the child’s statements of feeling a lack of safety when with the father.
In general, I approach the mother’s evidence as to these matters with significant caution (while accepting that it has been untested by cross-examination) for a number of reasons including that she appeared to have already formed a belief about the risk posed by the father to the child at the time. For example, in her (unsigned) statement to police on 22 April 2020, the mother says “I have really been pushing [the child] to try and get her to open up and tell me, or anyone for that matter, why she doesn’t feel safe with him”. It is also apparent from the mother’s affidavit that she asked the child about the contents of her interview with police and then initiated further conversation in an attempt to, it appears, obtain greater clarity about the child’s disclosures.
The mother’s actions in further questioning the child and in her words “pushing the child” while holding such a belief may have indirectly caused the child to make disclosures along these lines which, if that occurred, is likely to affect the reliability of such disclosures.
Finally, the father denies any such abusive conduct in both the police interview and in his evidence in these proceedings. He also provides an explanation in his affidavit that may be considered plausible for his conduct in checking the child’s underwear for soiling. Further, according to the police record containing a summary of his answers when interviewed, the father admitted that on one occasion he did take a photograph of the child’s faeces. This occurred in circumstances where he was paying vigilant attention to all aspects of the child’s care including her bowel habits as he was aware that the child had some difficulties in that regard that were considered to be related to her diet.
In all of the foregoing circumstances, (although not making any findings concerning the likelihood of sexual abuse having occurred) weighing the probabilities, I am of the view that it is unlikely that such a finding will be made by a court at final hearing.
I am also unable to make any definitive findings about the extent of the child’s physical and health difficulties and behavioural challenges on the available evidence, or the alleged connection between these matters and the child spending time with the father.
The mother’s evidence of the child’s presentation and alleged connection between that presentation and the father’s care must, in my view, be considered with great caution especially when considering an application to deny the child all contact with her father. While making no findings at this interim stage, I consider that there are a number of features of the mother’s evidence that are likely to affect an assessment of the reliability and accuracy of that evidence.
First, in my view, the entirety of the mother’s evidence has a tone of exaggeration especially in relation to the dangers posed by the father and the presentation of the child. For example, the mother deposes to the father having regularly threatened to harm the child if the parties separated which caused her great concern but there is no evidence that she ever reported such threats to any authority and on her own account she left the child in the sole care of the father while she travelled overseas in the same month as the parties separated. It is also not in dispute that for some years after separation the mother agreed to the child spending overnight and unsupervised time with the father despite these alleged concerns.
The mother also deposes to some extremely concerning physical symptoms and behaviour which, if accurate, would in my view be corroborated by other evidence or resulted in the mother taking other action. For example, the mother deposes to the child returning from her time with the father on at least three occasions drug affected. On one unspecified occasion (possibly in 2017) she deposes to the child behaving “as though she was affected by drugs” and on another unspecified occasion after time with the father “behaving as though she was drug affected” and that “her brain was fogging and she couldn’t concentrate”. In another part of her affidavit the mother reflects, “I did sometimes wonder if [the father] was deliberately poisoning or drugging [the child], but I also thought it was very possible he was poisoning her accidentally”. She also deposes to the child “acting like she had been drugged” on a specific occasion in August 2019 following time with the father. The mother does not depose on any of these occasions to taking the child to hospital, or seeking medical attention notwithstanding her reportedly serious presentation.
There are multiple references in the mother’s affidavit to the child exhibiting other very concerning physical signs after time with the father such as being “unable to walk properly”, “unable to concentrate”, and losing control of her bowels. The mother deposes to taking the child to the hospital on one occasion only and on that occasion the child was not admitted.
The mother also has taken the child to a multiplicity of medical and health practitioners even on her own account, a number of whom appear to have given her differing advice in relation to the child. For example, one health professional considered that the child has allergies to certain foods while another opined that the child was not allergic but intolerant. One gastro paediatrician diagnosed the child’s difficulties arising from gluten, whilst another disagreed. All of the health professionals of course, rely to a great extent on the mother’s reports about the child’s condition. There is no medical evidence to the effect that the child suffers from a serious medical condition.
In general, the mother’s evidence is also at odds with records kept by other agencies which may be expected to be more reliable. For example, school records relating to the child’s attendance record that in 2018 the child missed 19 days of school, a year in which the mother deposes that the child experienced a wide range of health difficulties and some absences from school for this reason. The school records indicate, however, that only four of these 19 days were explained as relating to illness with the remainder of the absences being unexplained.
A more curious example of the inconsistency between the mother’s evidence and independent records (which is my view affects the reliability of the mother’s evidence), concerns the records of police and the Department in relation to the investigation of the sexual abuse allegations. In summary, the tenor of the mother’s affidavit is that the outcome of the investigation as recorded in the Magellan report is at odds with her understanding of that investigation. An explanation for this inconsistency in the mother’s words is that “[the Department] may have confused parts of [the child’s] file with another case”.
The mother’s evidence is also to some extent internally inconsistent. For example, she deposes that during the 2019 school year, the child’s performance at school greatly improved compared to previous years. There is other evidence, however, that in March 2019, staff at the school recorded the child exhibiting ongoing behavioural difficulties and in April 2019 the mother requested that the child see a school counsellor. Records indicate that in June 2019 the paediatrician suggested the child receive psychological treatment, in August 2019 the child’s teacher made contact with the mother about the child’s disruptive behaviour in class and from September 2019, the child began attending upon a psychologist.
It is not possible for the purposes of this interim application to make any positive findings about the accuracy of the mother’s evidence concerning the child’s presentation. Although I have referred to some features of the mother’s evidence that may affect her reliability, it is also correct to observe that there is no positive of evidence to suggest that the child has had health or behavioural difficulties through 2020 to the same degree as previously observed.
The reasons for this occurring may be multifactorial (including the fact that the child is likely to have been absent from school due to the restrictions associated with the COVID-19 pandemic about which there is little evidence), and other matters in respect of which the expert opinion is likely to assist.
There is no dispute between the parties, however, that the child has been exposed to the acrimonious dispute between her parents including incidents in which each allege the other behaved in a manner that falls within the definition of family violence. In my view, it is likely that this matter will, to some extent, explain the child’s presentation and absence of difficulties when she is not spending time with the father, as facilitating that time has to date required that the parents continue to have interactions with one another in the presence of the child.
In summary, I am unable to make findings about the child’s physical presentation and behaviour or conclude, as the mother contends that the child's presentation is directly or indirectly related to any risks posed by the father or shortcomings in his care of the child.
More importantly for the purposes of this application, even if it were the case that the father was in some way neglecting the child or taking some action to cause her harm as alleged, such harm may be mitigated though the supervision of the child’s time with the father by trained supervisors.
The competing applications
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s 65D(1), subject to certain sections a court may make such parenting order as it thinks proper.
Section 61DA provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further, when making interim orders the presumption applies unless the court considers that it would not be appropriate.
It appears that neither party presses for orders in relation to interim parental responsibility on the basis that it would not be appropriate to apply the presumption at this interim hearing when there are so many facts in dispute. It also appears to have been accepted by both parties and the ICL that it is not necessary to make any orders for parental responsibility at this interim stage, with the result that each parent will continue to exercise parental responsibility in relation to the child.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.
The primary considerations, which are contained in s 60CC(2), are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[3]
It is contended in submissions made on behalf of the mother that the child does receive a benefit from having a meaningful relationship with both parents. The orders that she proposes do not however, foster the child’s relationship with the father. This is a particularly significant matter in this application as the child’s relationship with the father has not been fostered by any orders for a period of 12 months already and such an arrangement is likely to continue for many more months if the current arrangement were to continue.
I am also of the view that the child does receive a benefit from having a meaningful relationship with both parents.
The circumstances of this case do not require that in order to give greater weight to the need to protect the child from harm I make orders that will deny her the benefit she receives from having a meaningful relationship with both parents.
For the reasons given, I am not satisfied that the need to protect the child from being subjected or exposed to abuse or neglect in the father’s care requires orders to be made as sought by the mother that the child spend no time with the father unless agreed to in writing between the parents.
In my view, there is no prospect on the available evidence that the mother will agree to the father spending time with the child if such an arrangement is subject to her agreement, as it has been her view for a number of years that the child’s health and safety are compromised in the father’s care.
I do not make a finding that the father does pose an unacceptable risk of harm to the child on the basis that he may neglect or abuse her or expose her to family violence and consider that it is unlikely that a court will make such a finding.
Further, when weighing the competing probabilities in relation to the question of risk posed by the father, I am satisfied that any risk he may be found to pose may be properly mitigated by orders that the child’s time with him be supervised.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant in this case.
Views expressed by the child and any factors relevant to weight to be given to those views
The nature of the relationship of the child with each of the child’s parents, and other persons
The child aged seven has not expressed her views in any manner to which weight may be attached. She is yet to be interviewed and assessed by the expert.
There is also currently no available expert evidence in relation to the nature of the child’s relationships with each of her parents and others. It can be assumed, however, given the age at which the parents separated and the pattern of the child’s parenting arrangements for about three years following separation, that the child has an important relationship with her father from which the child receives a benefit.
It can also be assumed that the child’s primary attachment relationship is with her mother with whom both parents at this stage propose she is to continue to live.
The father proposes that his time be supervised by a professional service or by a family member. Nothing is known about the relationship between the child and the proposed family member, so it cannot be assumed that the family member’s presence will assist in making the child feel more comfortable in spending time with the father should that be necessary.
Likely effect of any change in the child’s circumstances
The father’s application to spend time with the child will not bring about any significant change in the child’s circumstances in that it will entail a separation of the child from her mother of only a few hours per fortnight.
Although in parts of her evidence the mother seemed to suggest that the child is detrimentally affected by any period of separation form the mother that involves spending time with the father, there is evidence that suggests that during the last period of supervised time with the father the child was able to manage this separation without any detrimental effects and enjoyed that time.
Practical difficulty and expense of a child spending time with and communicating with a parent
There is some practical difficulty involved in the child spending time with the father if that time is to be supervised by a family member especially if any restrictions associated with the COVID-19 pandemic are to be reintroduced.
I also consider it likely that if orders are made that the time be supervised by a family member as the father seeks the mother’s concern about the risks posed by the father will not abate. It cannot be in the child’s best interest for her enjoyment of her time with the father to be compromised by an awareness of the mother’s beliefs and anxiety about the risks posed by the father.
I accept the submission of the ICL that if the Court determines it is in the child’s best interests for orders to be made to foster the child’s relationship with her father, it is most appropriate for their time together to take place at a contact centre or under the supervision of a professional supervision service. Both these services will require the payment of fees which can be significant.
There is no evidence to indicate when such a place at a contact centre will become available though it appears beyond dispute that such a place is not currently available. At the interim hearing, the parties agreed to orders that they take steps to be enrolled in a contact centre, so that such time, if ordered, can commence when a place is available. The ICL’s proposal seems to assume that when such a place does become available it will be limited to two hours per fortnight. It also appears that for this reason the ICL proposes that if time supervised by a private supervision service is ordered that it be for a similar period pending a place becoming available. In this way, when such a place does become available there will not be a reduction in the child’s time with the father.
In my view, the period of time proposed by the father (of four hours each fortnight) is more appropriate than the two hours proposed by the ICL to foster the child’s meaningful relationship with the father. It will also provide the child greater scope to enjoy a range of activities with her father than if it were limited to two hours each fortnight.
The father had originally proposed that the costs of a professional supervision service if ordered was to be borne equally by the parties. The mother opposed an order that she share the cost associated with supervision, and in the course of the hearing it was also agreed on the father’s behalf that he would bear this expense entirely if it were ordered.
Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs
It would appear that the question of the capacity of each parent to provide for the child’s needs may well become a significant issue at any final hearing if this parenting dispute is not otherwise resolved.
It suffices to say for the purposes of this application that there is no evidence to suggest that the father does not have the capacity to provide for the child’s needs for the purposes of the orders he seeks to spend limited and supervised time with the child.
Both of the parents appear to have been able to offer the child the benefits of a lifestyle in which she has enjoyed outdoor activities such as horse-riding. The previous arrangement whereby the child’s time with the father always took place at a shopping centre is not likely to have been particularly enriching for the child.
An arrangement whereby the child is to spend time with the father in the community taking part in a range of activities while having the safeguard of supervision is, in my view, more child-focused and likely to be more enjoyable for the child.
Family violence
While neither of the parties frame their application with any particular emphasis on family violence, in my view, the child’s exposure to incidents of conflict between them, if accepted, does amount to exposure to family violence and is a matter which may assume greater significance at a final hearing.
The Restraint
One of the issues that assumed particular significance at the interim hearing was the child’s medical care. In particular I raised concern about the sheer number of health professionals consulted which makes an assessment of the child’s treatment needs and the capacity of each parent to meet those needs very difficult. Further, I expressed concern about the extent to which some of child’s treating health professionals may have become involved in matters relevant to the child’s well-being that have not necessarily been consistent with the child’s best interests as it is understood in the family law context.
There is no dispute between the parties that from around 2017 the child has been assessed or treated by various practitioners, ranging from a number of different allergy specialists, general practitioners, paediatricians as well as a psychologist.
The ICL submits that as it is the mother’s case that the child has high and complex health needs it is problematic for the child to be assessed and treated by numerous health professionals. I accept the ICL’s submission that it is more likely to meet the child’s best interests if a more consistent and “centralised” approach is adopted to the child’s health care. I also agree that such an approach will also assist in minimising conflict and disagreement between the parents.
For the foregoing reasons the ICL included in her proposal for interim orders a requirement for the parties to seek medical attention from a single nominated general practitioner with which the parties agreed. An order in similar terms to those proposed by the ICL was made with the parties’ consent. The parties similarly agreed to a restraint on allowing the child to receive treatment from her psychologist. In my view such orders were appropriate as the psychologist has been treating the child for difficulties that the psychologist considers arise from sexual abuse perpetrated by the father, which is a matter of significant dispute between the parties.
The restraint upon allowing the child to receive treatment from the paediatrician was made over objection of the mother. In my view, such a restraint is appropriate as it is consistent with the ICL’s general submission that it would be helpful for the child’s wellbeing and for the proceedings to have a fresh lens through which the child’s health needs and any required treatment can be assessed.
I also consider it concerning that there is a lack of clarity about the reason the child’s paediatrician originally formed the view that the child may have been sexually abused (especially as this is a matter that is central to the proceedings and remains in dispute between the parties). Insofar as the paediatrician hypothesizes that the child’s stress and anxiety is “highly likely” associated with sexual abuse (despite such a matter being unsubstantiated by the JRU) I have little confidence that she is able to continue to treat the child other than through this lens. As this specialist has only been engaged with the child for less than three years, there is in my view no disadvantage to the child if another, more independent paediatrician were to be engaged.
Conclusion
In coming to a decision about what orders are in the child’s best interests, I must balance the various matters to which I have referred.
In my view, the child does receive a benefit from having a meaningful relationship with both parents and the proper orders to foster such a relationship while safeguarding the child’s welfare and well-being is as proposed by the father as to the time he is to spend with the child and communicate with her and as proposed by the ICL in relation to other matters.
Accordingly, I make the orders as set out at the forefront of these Reasons, noting that the orders relating to the child’s medical care made on 15 October 2020 remain in place for the reasons given.
I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 26 February 2021.
Associate:
Date: 26 February 2021
[1] JRU is an interagency body to whom allegations of serious child abuse are referred for investigation. The body is made up of officers from the Police Child Abuse Unit and Departmental caseworkers from the Joint Child Protection Response Program (“JCPRP”).
[2] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of the Department of Communities and Justice with the family.
[3] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
2
3
0