Galloway and Steele

[2010] FamCA 1181

FAMILY COURT OF AUSTRALIA

GALLOWAY & STEELE [2010] FamCA 1181

FAMILY LAW – CHILDREN – Child related proceedings – interim parenting orders – risk assessment

Family Law Act 1975 (Cth)

APPLICANT: Mr Galloway

RESPONDENT: Ms Steele

INDEPENDENT CHILDREN’S LAWYER: Reid Family Lawyers

FILE NUMBER: SYC 6615 of 2007

DATE DELIVERED: 22 December 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 21 December 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Holmes

SOLICITOR FOR THE RESPONDENT: Ms Adams

INDEPENDENT CHILDREN’S LAWYER: Ms Reid

Orders

1. The child J spend time with the father each Saturday from 9.00 am until 6.00 pm on that day.

2. On Christmas Day the time with the father pursuant Order 1 will be suspended and in lieu thereof the child will spend time with the father from 1.30 pm until 6.00 pm on that day.

3. Such time be supervised by the child’s paternal grandmother.

4. The order take effect from the time that the paternal grandmother supplies to the Independent Children’s Lawyer a formal consent to undertaking the role of supervisor and an undertaking to forthwith terminate time spent by the child with the father in the event that anything in the nature of abuse occurs to the child and at the earliest opportunity report to the Independent Children’s Lawyer that she has terminated contact in those circumstances and provide particulars of the events giving rise to her action.

5. The mother is restrained from taking the child to any further psychiatrist or psychologist for therapy or forensic consultation without the leave of the father or the court first being had and obtained.

6. The hearing of the matter is expedited and leave is given to approach the Judicial Services Team Leader for the purpose of listing the matter in a docket for the purpose of giving directions so that the matter can be allocated early dates for hearing.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6615  of 2007

MR GALLOWAY

Applicant

And

MS STEELE

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. The proceedings before the court are interim parenting proceedings brought by the father in relation to the child J born of his relationship with the mother in February 2007 and who is now aged three and a half years.

2. In those proceedings an Independent Children’s Lawyer was appointed who on an interim basis sought orders for increasing contact between the child and the father over a period of time on an unsupervised basis as set out in a minute of proposed order supplied to the Court.

3. The father’s solicitor Mr Holmes indicated that his client upon a consideration of that application agreed to the making of those orders.

4. The orders were opposed by the mother who sought contact between the father and the child be supervised on a continuing basis.

5. This is a case in which the child of the relationship has been subject to litigation for a considerable period of time.

6. Final parenting orders were however made by His Honour Federal Magistrate Altobelli on 24 July 2008 in consequence of an application filed by the father in late 2007.

7. Those orders provide for equal shared parental responsibility;  for the child to live with the mother;  and for the child to spend time with his father on a gradually increasing basis but from September 2009 on each Wednesday from 4.00 pm to 7.00 pm and each alternate weekend from 4.00 pm on Friday to 5.00 pm Sunday and for a further three hours on any other week day nominated by the father and on special days.

8. There was some provision for the extension of time from 1 March 2011 and provision was also made for changes on the occasion of the child commencing school.  There were other specific orders made.

9. The child J has commenced pre-school having done so in May 2008.  There are disputed matters of fact between the parties particularly relating to the conduct of the child while in each of their presence;  the conduct of the father in terms of his use of physical discipline;  and a suggestion that the father had sexually abused the child.

10. The allegations of sexual abuse were referred to the Department of Community Services in April 2010 who conducted an investigation.  Whilst that investigation was under way the child did not spend time with the father.

11. The matters were listed before the Federal Magistrates Court and subsequently referred to this court.  Justice Johnston on 1 September 2010 made certain orders by consent permitting of the child to spend time with the father for limited hours under supervision.  The most recent supervision has been conducted by employees of S Family Services.  There were other orders.

12. A report was ordered by the court and it was produced by Dr W as an expert report on 1 November 2010.

13. The father’s position is he wishes to accept the regime of time with his son at this time set forth in the minute of proposed order by the Independent Children’s Lawyer and on that basis (as proposed by the Independent Children’s Lawyer) that there would be no supervision of such time.  In the alternative he says that if the Court required supervision his mother, who he says is an appropriate supervisor, could supervise however it would be difficult for her to supervise other than for one day per week on a weekend.

14. The father says that otherwise professional supervisors come at a significant cost which is becoming a burden on his resources.

15. What needs to be balanced in this case is whether the advantage to the child of a continuing and developing relationship with his father is on the evidence outweighed by the possibility of an unacceptable risk to the child.

16. There is no doubt that each party to these proceedings including the mother seeks orders that the child continue with his relationship with the father and the mother’s problem with that is only that she believes the child will be in a situation of unacceptable risk were such time to be unsupervised.

17. The report of the Department of Community Services was inconclusive.

18. Dr W analysed the streams of evidence as to the risk of abuse.  He had the benefit of reading all the documents relied upon by the mother and set out by him in his list of documents.

19. Dr W is highly critical for the way in which the Department of Community Services carried out its interrogation or interchange and he expresses concern about the content of the interview both as to substance and form.

20. It appears that the child was asked questions by two interrogators, one after the other, to which the child did not respond.  The interrogation lasted for some two hours and as a result of non-responsiveness to open questions, leading questions were asked.

21. The interviewer held up a toy rabbit and whiteboard marker and asked the child which of these two looked like his father’s penis;  apparently in an attempt to determine whether he had seen his father’s penis in a flaccid or erect state.  The child chose the whiteboard marker but Dr W concluded that that was not a reference to an erect penis but rather to the shape of the item being more likely to resemble a penis than a toy rabbit.

22. Dr W’s statements concerning the process undertaken by the Department of Community Services suggests that that report at least cannot be given any significant weight.

23. The second stream of evidence relates to the assertion made by the father’s brother, it appears as a result of recovered memory in counselling that his brother had been subject to sodomisation by friends of his father in his youth.

24. It is sought to extrapolate from this that the father is more likely to be an abuser of his son.  Dr W says of this that if the father’s denials of the incident having taken place were false then one would have greater concern.  However there seems to have been a consistent attitude in the father dealing with other psychologists that there had been no such abuse and the whole question of evidence provided from recovered memory is a matter of singular controversy as to reliability.  It is not in any event, it is suggested, universally the case that an abused parent becomes a child abuser.

25. The mother on the other hand has suffered from post natal depression and from feelings of being isolated and was paranoid according to Dr W.

26. The mother says that sexual disclosures made by the child were made by him when they engaged in prayer in an evening and she asserts that more detailed assertions tended to come out at that time.

27. The attitude of the mother to the whole issue of the child spending time with the father has been anxious.  She has made criticisms of the father’s mother being present when contact took place;  she has been critical of the father in respect of dietary matters.

28. The expert goes on to say that the child has an anxious and insecure attachment to his mother but the attachment to his father was more secure.

29. The parties conceded that on a reading of Dr W’s report it gave greater support to the father’s case than it did to the mother’s case.  Reading the reports of the supervisors in this matter who have been employed and provided reports display nothing but a mutually loving, supportive, appropriate and relaxed relationship generally between the child and the father.

30. Sadly on one occasion the child is reported to have said to the father by the supervisor, “you are going to take me away”.  The father asked “Who is going to take you away?”  The child responded emphatically “You are.  Mummy said if I keep hitting her you are going to take me away.”  The father’s response to this was to calm the child and reassure him.

31. In the conclusions in his report Dr W sets forth three scenarios in the following terms:

    i.Desirability and effect of parents’ proposals for spending time with the child.

    There appear to be three most obvious possible outcomes in this matter – that the current situation is maintained in some form, that the previous orders resume, and that there is a change of residence and [the child] lives with his father and spends time with his mother along the usual lines.

    Were the Court to find that there was an unacceptable risk of sexual abuse, then orders along those which currently are in place would be appropriate.

    Were the Court to find that there is not an unacceptable risk of sexual abuse, that the mother is an anxious and overprotective parent, and that the allegations had arisen because of some combination of the mother’s obsessive anxiety compounded by input from Mr [N Galloway] and his wife, but that there was satisfactory evidence that she could accept an alternative explanation for [the child’s] behaviour, could be less influenced by Mr [N Galloway] and/or his wife, and was prepared to undertake appropriate parenting counselling, then it would be a better outcome for [the child] to remain living with his mother and spend time with his father along the lines of the orders which had been in place until March 2010, probably with the addition of block visits during the school holidays in 2011 as he takes a break from this particular preschool at that time.  I would also suggest that the handovers occur through a third party where possible – perhaps through preschool, but probably not through Mr [N Galloway] or his wife.

    In the event that the Court makes the above findings in relation to the sexual abuse and the nature of the mother’s parenting but the Court is also satisfied that there has not been and is not likely to be a substantial change in the mother’s attitude and beliefs concerning the father, nor to misguided advice she might receive from other parties, then in my view it would be likely that there will be further disruptions to time [the child] spends with his father if he continues to live in his mother’s home and his behaviour problems will persist and may become worse.  For that reason in my view the orders that the father seeks would probably be preferable and would also have the advantage of placing [the child] with the parent who seems to have the better parenting skills and who hopefully would be more supportive of [the child’s] relationship with his mother than vice versa.

32. Of course the evidence of Dr W is not tested.  That is the problem of a case which proceeds in the manner of interim proceedings ordinarily.  Nor is the evidence of either of the parents or their witnesses tested.  The question therefore is, is there on the evidence, untested though it be, sufficient to assure the court that there is no unacceptable risk of abuse at the hands of this father were he to have unsupervised time with the child.  On a consideration of the totality of the evidence and the report of Dr W who is independent of the parties and the other independent material before the court, it is the court’s view that it cannot be satisfied to the extent necessary to make the order the father seeks at this time.  True it is that the evidence clearly points in the direction of the father’s assertions but the court traditionally in these matters and for good reasons have erred on the side of caution.

33. Such however is the evidence that is before the court (although untested) that the child derives significant benefit from the relationship with the father and perhaps to a greater degree than from his mother it is my intention to expedite the matter and give the parties leave to approach for an urgent hearing.

34. In the meantime it is proposed that the father have increased time with the child under the continuing supervision of his mother and that time shall be on Saturday of each weekend from 9.00 am to 6.00 pm.  On Christmas Day the time with the father pursuant to this order will be suspended and in lieu thereof the child will spend time with the father from 1.30 pm until 6.00 pm on that day.  The court is informed that the paternal grandmother is prepared to supervise on this basis and she, it seems from the evidence, is a woman who is responsible, articulate and no doubt would have the wellbeing of her grandson at heart. It was asserted by those representing the mother that the grandmother’s view that her son was innocent of any wrongdoing was some sort of disqualification from her fulfilling this role.  I disagree and say that on the totality of the evidence thus far I am confident that she will support her son in the care of her grandchild and will have her grandchild’s best interests at heart.

35. If the matters alleged by the mother are unsustainable as a basis for requiring supervision then given the contribution that the father is apparently capable of making to this child’s life that should be determined as soon as possible.  Equally if the reverse is true the parties should be in a position to know that as soon as possible so that this child’s future arrangements are not the subject of doubt and he can procure those supports from each of his parents as will enable him to fulfil his full potential.

36. I am asked by the father to make an order restraining the mother from taking the child to medical practitioners without his prior consent except in case of medical emergency.

37. I do not intend to make that order but do propose to make an order restraining the mother from taking this child to any further psychologist or psychiatrist for either therapy or for the purpose of procuring evidence in relation to the matter before the court without the consent of the father or the court first being had and obtained.

38. Accordingly I make the orders set out above.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on

22 December 2010.

Associate: 

Date:  22 December 2010