GLIDDON & HEFFRON

[2016] FamCA 888

FAMILY COURT OF AUSTRALIA

GLIDDON & HEFFRON [2016] FamCA 888

FAMILY LAW – CHILDREN – Best interest – Where final parenting orders have previously been made by consent – Where the mother seeks to have the final parenting orders discharged and interim orders made – Where the father opposes the mother’s application – Where the mother has made allegations against the paternal grandfather – Where the mother has ceased making the child available to spend time with the father – Whether the best interests of the child require this Court to entertain an application to change the current orders – Where there is a sufficient change in circumstances constituted by the child’s behaviour – Where the orders are varied on an interim basis but only to the effect of restraining the parents from allowing the child to be alone with the paternal grandfather – Where the substantive orders are not otherwise varied – Appointment of Independent Child Lawyer.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Gliddon

RESPONDENT: Mr Heffron

FILE NUMBER: PAC 1401 of 2014

DATE DELIVERED: 18 April 2016

DATE ORDERS MADE: 18 & 19 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 18 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Gordon & Barry Lawyers

COUNSEL FOR THE RESPONDENT: Mr Longworth

SOLICITOR FOR THE RESPONDENT: Somerville Legal

Orders – 18 April 2016

1. That both parties are given leave to inspect all documents produced on subpoena by Dr B and C Psychology.

2. That the Court notes that a contravention application is listed in the Judicial Duty List on 20 June 2016 and the substantive proceedings are listed for directions on 27 June 2016.

3. That all applications are listed for directions on 27 June 2016 and the parties are excused from personal attendance on that occasion.

4. That the listing on 20 June 2016 is vacated.

5. That these proceedings are otherwise adjourned to 9.45 am tomorrow, 19 April 2016 for the making of interim parenting orders.

Orders – 19 April 2016

1. That orders are made in accordance with the Minutes of Orders filed in Court today signed by Johnston J and placed with the Court papers as set out hereunder:-

   THE COURT NOTES:

   1.The following definitions for the purpose of these Orders:

   1.1“D” means D Heffron Gliddon, born … 2010;

   1.2“Father” means Mr Heffron, born … 1986;

   1.3“Mother” means Ms Gliddon, born … 1987;

   1.4“Parties” means Mother and Father;

   1.5“Ms E” means Ms E Heffron, born… 1986;

   1.6“Ms F” means the maternal Grandmother, Ms F Gliddon.

   THE COURT ORDERS:

   2.Pursuant to Section 68L of the Family Law Act 1975 D be independently represented and it is requested that the Legal Aid Commission of New South Wales, PO Box K847 Haymarket arrange such separate representation:

   2.1upon appointment, the Independent Children's Lawyer file a Notice of Address for Service;

   2.2within 48 hours of notification of such appointment, the solicitors for the respective parties (or the parties themselves, if unrepresented):

   2.2.1provide to the Independent Children's Lawyer copies of all documents thus far filed in these proceedings by the parties, together with all existing Orders and copies of any relevant reports; and

   2.2.2the parties forthwith complete all forms and questionnaires that the Independent Children's Lawyer may require of them; and

   2.3the Independent Children's Lawyer fulfil the requirements set out in the ‘Guidelines for the Child’s Representative’ as published on the national Legal Aid website and, in particular, carry out the tasks set out therein as applicable.

   3.That pending further order and without admissions, the Father and the Mother are restrained from allowing the children to be alone with the paternal grandfather, Mr G Heffron.

   4.The parties agree to consult each other as to the appointment of a Chapter 15 expert including making enquiries as to availability and costs of such an expert.

   5.Each parties costs of the interim hearing be reserved.

2. That pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, 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 [to the engrossed orders] and these particulars are included in these orders.

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 < Gliddon & Heffron 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 SYDNEY

FILE NUMBER: PAC 1401 of 2014

Ms Gliddon

Applicant

And

Mr Heffron

Respondent

REASONS FOR JUDGMENT

1. On 13 October 2015, final parenting orders were made by consent in the Federal Circuit Court in relation to the child D (“the child”), who was born in 2010.  The orders provided for the child’s parents to have equal shared parental responsibility for the child.  The parents are Mr Heffron born in 1986 (“the father”) and Ms Gliddon born in 1987 (“the mother”).

2. The orders made on 13 October 2015 provided for the child to live with his father from the commencement of school in January 2016 until commencement of the school year 2018, in effect, on a fortnightly cycle from after school Friday to before school the following Monday and, in the next week, from after school Wednesday to before school Friday with certain adjustments as specified in the orders.  The orders also provided for the child to live with his father for half of the term school holidays and, as specified, for Christmas January holidays as well as certain special days.  Otherwise, the child was to live with his mother.  The orders also provided for an increasing amount of time for the child to live with his father, up to a point, where eventually he would spend equal time with each of his parents.

3. The mother now seeks to have the orders of 13 October 2015 discharged and she seeks other orders, including orders on an interim basis, which would bring about significant changes to the arrangements under those final parenting orders.  Those interim orders would include that an independent children’s lawyer be appointed for the child, that the child live with his mother and that the child lives with his father on what would be a reduced amount of time, from after school Friday to 5.00 pm Sunday in the first week and from after school Tuesday to before school Wednesday.  This time spent with his father would be subject to the father signing an undertaking in accordance with the mother’s letter of 11 March 2016.  I will come to that in a moment.  Effectively, this would be a two night per fortnight reduction in the child’s time spent in his father’s care. 

4. There were three aspects to the undertaking which is referred to, forming an important part of the mother’s application.  This was contained in the mother’s solicitor’s letter to the father’s solicitor on 11 March 2016 and is as follows.  The first was that the father would not place the child in the care of his father, Mr G Heffron, until such time as the allegations reported by the child had been fully investigated and the mother was satisfied about the child’s safety.  The second aspect of the undertaking would be that the father would not question the child about disclosures he made leading to the Department of Family and Community Services referral, other than as may be recommended by Ms N, and I will come to her, or such other psychologist as the father and mother agree upon.  The third part of the undertaking was to the effect that the father would not ask the child to keep secrets in relation to his care arrangements or any matter relating to his care when he is with his father, and I will come to that again. 

5. The father opposes the mother’s application.  In a nutshell, his application is to the effect that the appropriate final parenting arrangements, in the best interests of the child, were put in place as recently as October last year and that the mother does not make out a case for a sufficient variation or change in the circumstances in relation to the child which, under the authority of Rice & Asplund (1979) FLC 90-725 and various other authorities referred to by learned counsel, would be such as to justify the Court revisiting the orders. The father sought that the final parenting orders as put in place by the Federal Circuit Court in October 2015 remain in place.

6. The brief background matters are as follows.  There is some difference of view in relation to this, but the parties were in a relationship in or about 2008 or 2009 but they never lived together.  Their relationship ceased before the birth of the child.  In 2012, the father married Ms E.  The father and Ms E have a daughter, H, born in 2014, and I understand that they are expecting another child. 

7. In support of her application, the mother makes numerous complaints set out in considerable detail in two quite detailed affidavits filed by her in support of her case, but it comes down to various matters.  The mother alleges that in October 2013, the child was playing with his genitals and he said, “like Poppie does”.

8. In October 2014, the mother attended Ms I, a family consultant, for the purposes of an interview for preparation of a family report.  The mother informed Ms I that in October 2013 the previous year, the child was playing with his penis and pulling at it.  She said she thought it was unusual and she said, “What are you doing that for, [D]?” and he said, “Poppie, like poppie does”.  I will come back to this matter. 

9. The mother also complained that in early June 2015, the child was placed in the care of multiple persons unknown to the child without the mother’s knowledge, including while the father and his wife went overseas. 

10. A further area of complaint made by the mother is that whereas the orders require the father to exercise parental responsibility for the child, in fact, he does that by engaging numerous other persons, not only members of his immediate family, but other persons as well. 

11. As I understand the father’s case, he denies that that is the case.  He said he involves members of his family, that is his parents and I think perhaps siblings or other close relatives from time to time as a practical measure to assist him in getting the child to school or picking the child up from school and, on some limited occasions, overnight.  That is an issue that the mother raises which she makes some complaint about.

12. The mother says that in June 2015, the child began to exhibit bedwetting, biting his nails, and he was extremely reluctant to leave her.  She said that she spoke to her general practitioner doctor, who suggested that she speak with a psychologist about her concerns. 

13. In August 2015, the mother attended a psychologist, Dr J, and the mother says subsequently the father also attended Dr J.  The mother had expressed concern that the child had been exhibiting anxiety.  Again, that is a matter which learned counsel for the father says has been ongoing and was certainly in place in terms of concerns that the mother expressed about the child being anxious and being distressed.  It is said, and it appears to be conceded by the mother, that those were issues when the parties were engaged in the litigation before the Federal Circuit Court and which culminated in the making of the final orders of October last year.

14. As I say, the key question in this matter really is whether, in the light of recently made final orders by the Federal Circuit Court, this Court should entertain any application to change any of the arrangements.  Again, the mother says from the time of the final orders she has observed an increasing level of distress in the child.  My understanding is that the father denies that.  He says that he has not witnessed those alleged behaviours.  Again, the mother says that after returning from the father, that the child wets his bed for several nights before he settles down.  She said he is harder to get to sleep and his sleep is disturbed.  She said he is more difficult to discipline and that he is often confused in the morning about which house he will be staying at that evening.

15. The mother says that since commencing school, the child seeks more cuddles from her and, when he leaves her for school, he says “How many nights, mummy?”  The mother says that on 21 February 2016, the child spent overnight time with his paternal grandparents.  She said the following day, which was a school day, the child spent the day with his grandparents despite the father sending an SMS message to her saying the child was in his care.  I think there may be some issue about that. 

16. The matter which appears to have precipitated the immediate proceedings is that on 28 February 2016 whilst at her friend Ms K’s home, Ms K said she had to give her child Justin a bath, and would the mother like the boys to have a bath together? 

17. The mother said that upon Ms K’s son hearing this, he said, “No, I’m not having a bath with [D] because last time [D] sucked my penis”.  The mother asked the child if this was true and the child said yes.  The mother said “How did you know to do that?  Has someone showed you?”  She said the child shook his head to indicate no, then nodded his head, then he became withdrawn and hid behind her. 

18. I pause to say that the assertion by the mother that the child said that that was true was, as pointed out by the learned counsel for the father, said to be later denied by the child.  That appears to be the case.  But, of course, those things are always difficult with very young children such as the child.

19. Later that evening, Ms K spoke to the child and she said, “Has anyone asked you to keep secrets?  Does Dad?”  Ms K said that the child said no.  Ms K said, “Does [Ms E]?” and the child said, “No, only Poppie does.” 

20. On 29 February 2016, that is the day following those events, the mother attended her general practitioner, Dr B, and informed him about the incident.  Dr B notified the Department of Family and Community Services.  The following day, New South Wales police officer Ms L contacted the mother.  The following day she and Ms M of the Department of Family and Community Services interviewed the child.  After the interview, both officers explained the interview and informed the mother that the child had answered to most questions “I don’t know” or “I don’t remember.”

21. Later that day during a conversation between the parents, the mother informed the father that she thought that the child had been abused.  On 4 March 2016 the father spoke with Ms M.  Ms M apparently informed the father that the investigation was closed and he said that Ms M recommended that the parents continue to monitor the child and record anything that the child might say that would cause them concern.

22. The mother wanted to inform the child’s school, and the father did not want this to occur, because the father was concerned that the school would regard the child as a perpetrator of a sexual act and raise the prospect of the child having to be monitored.  The father expressed a concern that if that was to occur, then this matter would be likely to follow the child certainly through his primary school years because of entries that would have to be made on the school records. 

23. I make the observation that the father is a fully trained and qualified professional who has just commenced working.  I think his father was a highly experienced professional in the same field employed by a number of prominent organisations.  Ms M apparently said that the usual approach by the Department would be for them to recommend that the school be informed.  Both parents agreed that the child should see a psychologist and they have agreed to the child seeing Ms N.

24. On 11 March 2016 the mother’s solicitors sent a letter to the father requesting that he give a written undertaking which was in the form of the undertaking that I have already referred to.  The father’s solicitors responded that for a period of seven days, and pending receipt of particulars of the so-called allegation about which the mother was concerned, which was set out in the letter from the mother’s solicitors to the father’s solicitors, the father would undertake not to place the child in the unsupervised care of the paternal grandfather and that the father would be personally present at all times.

25. That was not sufficient for the mother.  Her solicitors  informed the father, that his proposed undertaking was inadequate and that in all the circumstances, out of her concern about the child’s best interests and the safety of the child, that the mother would not be making the child available to spend time with his father until appropriate safety mechanisms had been put in place. 

26. What has occurred is that from that time the child has not spent time with his father, including not only during the term times, but also including the holidays, which were supposed to commence under the orders on 8 April 2016.

27. On 12 March 2016 the mother took the child to the emergency unit at O Hospital, apparently suffering a respiratory condition.  The mother did not inform the father out of what she says was a concern she had that in circumstances where the child was no longer spending any time with his father, there might be a scene between them, presumably because the father would be extremely displeased about the situation which had developed. Subsequently, the father attended the mother’s home on several occasions.  The mother says that on at least some of those occasions he behaved in a loud, aggressive manner, to the point where neighbours asked the mother whether she was all right.

28. The father said he had been informed by Ms M that the Department proposed to take no further action.  He said that in the conversation he had with her, Ms M said that there was nothing to stop him from having his son live with him in accordance with the orders, and he said that she had informed him that the Department had informed the mother to this effect.

29. In my view, what this matter really comes down to is whether the best interests of the child require the Court again to consider entertaining an application so recently after the final parenting orders have been made.  Learned counsel for the father referred, as I have said, to the various well-known authorities about this.  What the Court must ultimately be satisfied about is whether there has been a sufficient change in the child’s circumstances to justify further consideration.

30. The mother says both parents are concerned about the child’s behaviour.  The mother says she is concerned about what the child has said about Poppie, the paternal grandfather.  Learned counsel for the father says no serious complaint is made against the father, that it is not suggested that he is any sexual risk to the child or any other serious risk to the child.  In my view, that is quite true.  But there is the child’s reference to his grandfather, and, in my view, this should be regarded with some caution.

31. In my view, there is a sufficient change in circumstances constituted by the child’s behaviour.  In my view, in the best interests of the child, this Court should adopt a cautious approach and intervene to require a change to the current orders, but only at this stage to require that the father not leave the child alone with his father.  In my view, this is a case where an independent child lawyer should be appointed and consideration given to an appointment of a Chapter 15 expert to inquire into what has occurred.  But apart from these changes, I am not persuaded that the substantive orders should be varied, at least not on an interim basis.

I certify that the preceding thirty (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 18 April 2016

Associate:

Date:  20 October 2016