Fraser & Fraser

[2021] FamCA 295

FAMILY COURT OF AUSTRALIA

Fraser & Fraser [2021] FamCA 295

File number(s):	SYC 1270 of 2021
Judgment of:	REES J
Date of judgment:	13 May 2021
Catchwords:	FAMILY LAW – PARENTING – Review of a Senior Registrar’s decision – Application by the mother to suspend orders providing for time between the children and their father – Allegations of physical and psychological harm to the children – Orders made suspending the father’s time with the children.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	74
Date of hearing:	10 May 2021
Place:	Sydney
Counsel for the Applicant:	Mr O’Brien
Solicitor for the Applicant:	Clayhills Escobar Solicitors
Counsel for the Respondent:	Mr Macpherson
Solicitor for the Respondent:	Wmd Law

ORDERS

SYC 1270 of 2021
BETWEEN:	MS FRASER Applicant
AND:	MR FRASER Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	13 MAY 2021

THE COURT ORDERS:

1.That all orders providing for the children Y born … 2012 and Z born … 2014 to live with or spend time with their father are suspended.

2.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fraser & Fraser has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. Ms Fraser (“the mother”) and Mr Fraser (“the father”) are the separated parents of two children Y born in 2012 and Z born in 2014.

2. The children live with their mother and the time they spend with their father has been determined by consent orders made on 24 April 2018.

3. Those orders were made after an investigation into an allegation made by one of the children, in about March 2017, that she had been inappropriately touched by the father. As a result of that investigation, which included interviews by the Joint Investigation Review Team (“JIRT”) the allegations of inappropriate touching were not substantiated.

4. The proceedings came before a Senior Registrar on 22 April 2021 when the mother sought to suspend the orders which provided for the children to spend time with the father. The Senior Registrar made the following orders:

   1.That paragraph 6 of the Orders made 25 April 2018 be suspended until the week commencing 10 May 2021.

   2.That the Department of Communities and Justice have liberty to apply to intervene in these proceedings by no later than 10 May 2021.

   3.That all extant applications be adjourned to the Senior Registrar’s Duty List on 15 June 2021 at 10:000am.

   4.That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

   AND THE COURT NOTES

   A.That as at the date of today’s orders, being 22 April 2021, for the purposes of the Orders made 25 April 2018, it is the presently the third day of Week 3.

5. The mother sought to review the orders of the Senior Registrar and thus the matter came before me on 10 May 2021 for hearing de novo.

6. Before me, the mother sought to suspend the time the children spend with the father and the father opposed that application, seeking to re-instate the time in accordance with the April 2018 orders and, in addition, to have electronic time with the children three times each week.

7. The mother relied on two affidavits sworn by her on 25 February 2021 and on 28 April 2021.

8. The father relied on two affidavits sworn by him of 7 April 2021 and on 7 May 2021.

9. Each parent filed an outline of their case and submissions.

10. On 7 May 2021, a letter was sent to the Senior Registrar’s associate by the Secretary of the Department of Communities and Justice (“DCJ”) advising, inter alia, that DCJ did not intend to intervene in the proceedings. The letter stated:

    …the Department has decided not to intervene in the proceedings at this time. The reasons for this decision are the Joint Child Protection Response Program investigated this matter and an assessment was made after talking to the mother and father and reviewing the file and have not substantiated sexual abuse by the father, however have substantiated risk of psychological harm in the primary care of the mother.

    JCPRP is closing its file and we invite the parties to issue a subpoena for a copy of the assessment dated May 2021.

11. Counsel for the mother sought an adjournment of the review application to enable a subpoena to issue. That application was not opposed and, after discussion, the parties agreed on the following orders in the interim:

    1.That the parties have leave to file on short notice a subpoena to the Department of Communities and Justice, to be served by 11 May 2021 and to be returnable by 18 May 2021.

    2.That the parties have leave to inspect the material produced under the subpoena to the Department of Communities and Justice.

    3.That pursuant to section 68L(2) of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed on behalf of the children Z (female) born in 2014 and Y (female) born in 2012 AND IT IS REQUESTED that Legal Aid Commission of New South Wales arrange such separate representation.

    4.That the matter be transferred to the Magellan List.

    5.That the parties have leave to amend their Application and Response with such Amended Application and / Response to be filed and served by 4pm on 8 June 2021.

    6.That the parties have leave to file one further affidavit each, with such affidavit to be filed and served by 4pm on 8 June 2021.

12. After making those orders, I suspended the operation of the orders made 24 April 2018, pending the determination of the competing applications.

13. The issue remaining to be determined was the contact between the children and the father in the period until all of the relevant information has been gathered with the assistance of the Magellan registrars.

14. In her affidavit sworn on 25 February 2021, the mother deposed that “over the last couple of years” the children had complained about the father being in the bathroom when they were bathing and leaving them in the car when he went shopping. The mother deposed that the children wet the bed every night and suffer from recurring urinary tract infections. She did not suggest that she had sought the advice of a doctor in relation to those infections.

15. In May 2020 the children refused to get in the car to go with the father. The mother deposed that she was able to calm them down and later delivered them to their father.

16. The mother deposed that, on 28 January 2021, when the children returned from holidays with the father, Y was upset and that, after some time, Y said:

    Daddy is keeping me awake every night. He will not leave my room and keeps talking to me. He says bad things about you and his family. He lies on the floor in my bedroom and will not go away.

17. The mother deposed that when she suggested that Y talk to her father about her concerns, Y said “I can’t”.

18. The mother deposed that, on Monday 8 February 2021, she found the notebook in which she had recorded what had occurred in 2017 when allegations were made of inappropriate touching by the father. The mother deposed that she showed the notebook to Z and said to her:

    I am about to put this in the cupboard but thought that before I pack it away forever, it might be helpful now that you are a bigger girl to ask if you remember why you said that? I am not sure if you remember but mummy went to the Police because of things you kept telling me, but they said you couldn’t talk to them about the things you had told me.

19. The mother deposed that Z replied “It’s true. I remember”.

20. The mother asked Z “Has anything else happened since then?” and Z responded “No, only the bath thing”. The mother asked “What is it about the bath thing that bothered you?” and Z said “I felt uncomfortable”.

21. The mother assumed that “the bath thing” was a reference to the father’s remaining in the bathroom while the children bathed.

22. That conversation, as reported by the mother, raises a number of concerns, the first of which is how Z knew of the significance of the notebook to events that had occurred some four years before when Z was only three years old.

23. The mother deposed that on 10 February 2021, Y said:

    I am a text message recorder for Daddy. I tell him everything about this house. I have to tell Daddy everything about what happens with you mum. I’ll get in trouble if I don’t.

24. Later the same evening, the mother deposed that Y said to her “Why does daddy hurt me and not Z?” The mother asked “What way does he hurt you, is it physical or emotional?” and Y replied “Both” and said, several times, “I am scared of Daddy.”

25. The conversation continued. The mother deposed that Y:

    Put her hand first on one side of her groin area and then the other side of her groin area in a pulling motion over her clothes. She said: “It hurts”. She then touched her forehead and said: “It then makes hurt here”.

26. The mother deposed that later in the conversation, Y said:

    All I know is I feel happy at mummy’s and I get upset before I go to daddy’s which is tomorrow.

27. The mother asked Y to repeat what she had said to the mother’s partner.

28. On 12 February 2021, the mother made a report to DCJ and the children were interviewed by police.

29. The mother deposed that, after the interview with the police, Y said that she hadn’t told them everything because she was frightened “of what Daddy will do”.

30. Y told the mother:

    At swimming he touches me. His thumbs go along when he pulls up my underwear and makes a tickling feeling I don’t like.

31. On the same day, Z asked the mother why Y had to speak to the police and the mother said “because she is saying Daddy is touching her when she’s at swimming around her private parts” and Z said “he does that to me too”.

32. The mother, in her affidavit, sets out a series of conversations with the children over a number of days. The children didn’t go to school for at least some of the following week. The father was told on 18 February 2021 by the school that they were not at school from 11 February 2021.

33. The mother deposed that on Wednesday 17 February 2021, she and her partner took the children to B Town “for a break”. The mother deposed that, when Y saw a signpost to C Town she said:

    This is where Daddy touched me in the bum. I don’t want to go to C Town, I don’t want to go there. That is one of the places Daddy touched me in the private parts.

34. The mother deposed that, on Saturday 20 February 2021, Y said:

    Daddy told me after each time he touched me that if I ever told anyone he would have mummy arrested and put in jail. He said if you tell anyone this I’ll make sure she’s arrested.

35. On 24 February 2021, the mother said to Z:

    Y said things happened on her holiday did anything happen to you?

36. Z replied:

    No but I saw what happened to Y at a hotel. Daddy was saying to her bad things about you Mummy, your mummy’s this and your mummy’s that. Y was crying and I saw daddy touching Y.

37. The mother deposed that “[Z] pointed to her groin area putting her finger and touching her vagina. She said: ‘On top of her clothing. Y [sic] kept crying’”.

38. The next day the mother said to Y:

    I know you told me that Daddy touched you on the holiday. You didn’t say anything about him touching you in a hotel. Z said she saw Daddy touching you and you were crying. She said that Daddy touched you here (and I pointed to my vagina) but she said on top of your clothing. Did that happen?

39. The mother deposed that Y said:

    Yes. It was in D Region. Z and I were in a bed and there was a gap and Daddy was next to me. I had shorts on and Daddy put his fingers inside my shorts and undies.

40. The mother said, “Z said that you were crying?”

41. Y replied, “It hurt. Daddy said don’t tell mummy”. Y also said:

    In a pub in C Town I sat on Dad’s knee and Z was next to me and he touched me again down the back of my jeans. Z wanted to go to the play area. We went to an antique shop, I couldn’t decide what I wanted. I got two antique swans. That night at J Hotel I was afraid of a fly so I got in Daddy’s bed and he touched me around the little hole. I slept with dad and he lifted me back into bed with Z later. I was standing on a gate looking at the zebra and Daddy was touching me on the bum inside my jeans.

42. The mother does not suggest that any other person was present when any of the conversations with the children took place.

43. The children were interviewed, by DCJ, on 25 March 2021. The transcript of the interviews with both children was in evidence.

44. Y told the interviewer that while they were on holidays she and her sister were sleeping in “the big bed” and the father in “the little one” and that Y wore her jeans to bed. Y got into bed with her father because there was a moth in the room and she is afraid of moths. Y said that her father put his hand “in my jeans” and she told him to stop “and he didn’t stop, and then a few hours later he put me in my own bed …and then I was in bed and then I was really worried, and then that’s pretty much what happened”.

45. Y said that her father had touched her on the sides of her bum.

46. The interviewer then said to Y:

    …told me you also spoke to the police officer about what happens when your dad changes you at swimming and at the Zoo… anything else going on with dad uncomfortable.

47. Y replied:

    Every time I say I want to leave a thome (sic) he says ok get your bags and go, and then when I get to the door he doesn’t let me go, I say dad I’m not kidding I want to go.

48. Asked why she wanted to go, Y said:

    He dropped me on the floor, [b]ecause he was putting me in bed, he dropped me because he hurt his finger.

    It was not clear when that incident was alleged to have happened.

49. Y then complained about her father not letting her go outside and about not spending time with him when they go to church.

50. The interviewer asked Y what she talked about with her mother when she came home from her father’s and Y said “We go out the door and I tell mummy that daddy is very mean to me and stuff like that”.

51. The interviewer continued, asking leading questions, and the children describing being asked leading questions by her mother and her mother’s partner. Y described an incident that happened “when [Z] was about a year old, so I would have been just three”. Y said that she remembered the incident and that she talked to her mother “about the stuff that happens with dad that you don’t like” a lot.

52. The interviewer asked Y about “anything happens at swimming with dad you felt shy about telling police officers about” and Y said “that he also does that when… he is taking my wetsuit off, and that’s pretty much it”. Asked “anything else happens with dad that makes you feel uncomfortable?” Y said “I don’t like how he speaks to me”. Y said her father said things like “shit” and “stupid”. Asked again “anything else he says you don’t like”, Y said “not really” and then volunteered that she didn’t like the vegetarian sausages her father served her.

53. Y talked about a conversation with her mother on the way to the interview. Asked if her mother said they would get a guinea pig if they spoke with police, Y said “Mum said we would get guinea pigs because we were good girls”.

54. The interviewer then spoke to Z, asking her if she remembered what she spoke to “the police lady” about. Z said “I don’t know, I forgot”. The interviewer continued and asked Z “…what kind of things have you spoken to mum about with things that are happening with dad?” Z said:

    When he has been touching me and Y…when we [w]ere at his house and we do all like swimming stuff with him he touches us when we are trying to put the wetsuit on…when he puts the cossie on he touches us in the front part of our bottom.

    Z said “It was very upsetting and we wanted to tell mum so we told her”.

55. Z told the interviewer about a dream where her father “touches us in private parts and I don’t like it, and when he gives us kisses its very psiky [sic] and it feels so hot”. I infer that the word Z used is “spiky” as she used that word later in the interview. Asked where her father kisses her, Z said he kissed her on her cheek and “when we get sores he kisses us on the knee and the ankle”. Z said her father didn’t kiss her anywhere else.

56. At the end of the interview, Z was asked if there was anything else she wanted the interviewer to know. She said:

    Umm, he touched Y in the bed, and also we don’t like how he kisses us on the cheek because it’s really spiky and hot and makes me have a squishy feeling in my heart… [he] shouts at us and makes us go to our room, it scares us when he shouts at us.

57. The assessment made by DCJ of the interviews was tendered. The assessment stated that a review of the file disclosed six Risk of Significant Harm Reports between 18 February 2021 and 1 April 2021. The assessment stated:

    Y was interviewed by [I assume police] on 26/02/21. Y disclosed that her father “touches her in the wrong places” at swimming lessons whilst helping her get changed. Y stated that [the father] sides his hand in the back of her undies when she puts her towel on when he helps her get dressed. Y also disclosed an incident that occurred on a family holiday, and stated that [the father] put her hands in her undies when she was looking at a zebra at the zoo. Y stated she was wearing Z’s jeans when this happened. Z was interviewed by [I assume police] on 05/03/21. Z stated that [the father] touched her outside of her wetsuit when she went swimming. The police have suspended the matter given the information provided by Z and Y did no constitute a criminal offence. Y and Z were interviewed separately by the DCJ officer on 25/03/21. Y reported a further incident on the holiday. Y disclosed that when they stayed at a motel in D Region she got into bed with [the father] and he put her hands on her bottom whilst she was wearing jeans. On 25/03/21 [the father] was interviewed by the DCJ officer. [The father] denied all allegations and provided photos to the DCJ officer of Y wearing puma leggings at the Zoo. The girls’ initial disclosures to their mother are documented within an affidavit at Family Law Court and are heavily led…

58. The father deposed that he took the children to the zoo in the school holidays in September 2020. In the January 2021 holidays, they stayed with family and friends in the K Region.

59. The children have had no contact with their father, either in person or electronically since 12 February 2021.

60. The father denies any inappropriate behaviour on his part.

    CONSIDERATION

61. These are interim proceedings and no findings of fact can be made in the limited circumstances of a hearing where all of the evidence is not available and none of the evidence can be tested.

62. It is not in dispute that there has been a breakdown in the relationship between the children and their father but there can be no finding, and there is no agreement, about the pathology of that breakdown.

63. The primary considerations, set out in s 60CC of the Family Law Act 1975 (Cth) require that priority in this determination be given to the need to protect the children from physical or psychological harm. Fulfilling that requirement is made more complex where each parent asserts that the other is the source of the harm.

1. However, the children have lived in the primary care of their mother since the parents physically separated in 2017.

2. There is no suggestion that it would be appropriate, at this stage of the proceedings, to change their primary carer.

3. It is the mother’s evidence that, at this time, the children are expressing a view that they do not want to spend time with the father. However, that view has only been expressed to the mother. There is no independent evidence of the children’s views. In the interviews with DCJ the children complained of aspects of their father’s care that they didn’t like but there was no clear statement that they did not want to see him.

4. It does not seem to be in dispute that, up until the end of the January 2021 holidays, the children had a good relationship with their father.

5. Why that relationship has changed is at the heart of the matters that are to be resolved in the substantive proceedings.

6. The father is an Aboriginal man and the children are Aboriginal children. However, that fact, and the importance of their Aboriginal culture and paternal family, cannot take precedence over the need to keep them safe from harm.

7. It is not asserted that the children will be exposed to physical harm in the mother’s household but the father asserts that there are psychological risks to the children in the mother’s care.

8. I accept that forcing the children to spend time with their father in the current circumstances may also be psychologically damaging.

9. The mother asserts that the children will be exposed to an unacceptable risk of sexual abuse in the father’s household.

10. Until such time as the evidence can be collated, expert evidence sought and evidence properly tested, it is necessary to shield the children from further harm. That can only be achieved by suspending the orders which provide for them to spend time with their father. I do not consider that this is the best alternative for the children, but it is the least worse alternative.

11. The matter has been referred to the Magellan list and will be rigorously case managed by the Magellan registrars so that it can be brought on for substantive determination at the earliest possible opportunity.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       13 May 2021