GOODWIN & RONEY

[2015] FamCA 952

FAMILY COURT OF AUSTRALIA

GOODWIN & RONEY [2015] FamCA 952

FAMILY LAW – CHILDREN – Interlocutory Application – Where there is an extremely complex history for this child – Where the details of the allegations made by both parties need to be explored by a clinical psychologist – Where the child is presently not functioning well – Where no abrupt changes should be made to the child’s current circumstances – Where to make changes without some specialist information is to take a risk with his future mental health – Interim applications of both parties dismissed – Where the mother is restrained, by consent, from bringing the child into contact with the maternal grandfather – Where these Orders and Reasons are to be given to the single expert

APPLICANT: Mr Goodwin

RESPONDENT: Ms Roney

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: NCC 674 of 2011

DATE DELIVERED: 28 October 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 27-28 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Craney Family Solicitors

SOLICITOR FOR THE RESPONDENT: Harpers Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED THAT

1. The Interim Application of the father contained in the Initiating Application filed in the Federal Circuit Court on 7 May 2015 is withdrawn and dismissed. 

2. The Interim Application of the mother contained in the Response filed in the Family Court on 24 July 2015 is dismissed.

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. BY CONSENT the mother is restrained from bringing the child into contact with the maternal grandfather Mr B Roney or allowing third parties to bring the child into such contact.

2. That the Independent Children’s Lawyer shall provide the Child Inclusive Conference Memorandum and these Orders and Reasons to the Single Expert.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 674 of 2011

Mr Goodwin

Applicant

And

Ms Roney

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. These are proceedings relating to the only child of the parties’ relationship, C, aged eight and a-half (“the child”).

2. There are concurrent proceedings in respect of the mother’s child of a subsequent relationship, D, aged 18 months.  That matter will be dealt with separately. 

3. Both parents were seeking similar orders in their respective applications, namely, a recovery order for the child, suspension of current orders made by consent in 2012, sole parental responsibility, residence and supervised time with the other parent for two hours per week at E Contact Centre.

4. Subsequent events have eliminated the need for recovery orders.  The pattern of residence has been re-established after some disruption at Easter 2015 and
   May 2015, when the mother and C were on holidays in Darwin. 

5. However, other than the recovery order, those are the interim applications which came before me yesterday, 27 October 2015. 

6. On that day, the parties agreed to the appointment of a single expert to prepare a report, and consent Orders were made accordingly.  Interview dates have been established for six weeks’ time.

7. In those circumstances, the father did not press his interim application.  It was a considered decision given the following matters:

   a)There has been a pattern of shared care since 26 March 2012, with eight out of 14 nights in the father’ household, and six out of 14 in the mother’s household.

   b)All allegations, which are potentially serious if proved, are untested.

   c)There are Notices of Risk filed by both parties in relation to sexual and physical abuse of the child.  Similar allegations have been made to the Department of Family and Community Services (“the Department”) and to police, and have been investigated by JIRT, the combined investigative team of those two authorities.

   d)The Court will, in a relatively short period of time, have expert advice on the nature of relevant relationships between C, his parents, and perhaps others, and also importantly, the probable impact on the child of a major change in parenting arrangements.  If there is only one thing the parents agree on, it is that shared care should not continue.  On a final basis, each seeks an order that the child live exclusively with that parent, and have time with the other parent as determined by the Court.  Change inevitably awaits C.

8. The mother pressed her interim application on the basis that she wanted her concerns heard.  Her present concerns being the statements made by the child to the Family Consultant on 12 June 2015, recorded in a Child Inclusive Conference Memorandum:

   [C] presented as a very disturbed child, with lots of complex issues and behaviours.  He could barely sit still, and often spoke whilst standing on his head.  He immediately said he wants to live with his mother, because the father bashes and beats him.  He was very nonchalant when speaking about the father beating and bashing him.  He continued to say that not only did the father beat and bash him, but cut him, pinched him, slapped him, and played with his private parts. 

9. C was asked by the Family Consultant about specific injuries and he reported that he was taken to hospital with a bruise that extended from his ankle to his hip, after the father threw him round the room.  He was asked how long ago this took place, and he said, “About five weeks ago”.  He said, “He was relieved when they x-rayed him at the hospital to find he didn’t have any broken bones”. 

10. Tendered into evidence as Exhibit 4 was a report from the emergency department of a local hospital, when on 11 April 2014, in the evening, at about 10.30 pm, the child, then aged six and a-half, was presented with an injury to his left calf muscle, and information from the mother, who attended with him, that he had hit his leg, “this evening, now pain on weight bearing”. 

11. There is no reference in that material to any concern that the child had been deliberately injured. That accident, as it apparently was, took place approximately 14 months before this report.  It is of concern that the child was referring to that injury, if that is what he was referring to, as something that his father had inflicted recently. 

12. The child also alleged that the father had burnt his arm by putting his arm on the hotplate of the stove.  When the Family Consultant asked if she could see where the scar was, the child said, “It had healed on its own”.  There was no visible scar.

13. The child also said that the father was “hurting” him, but he did not tell teachers at school.  The Family Consultant asked if the teachers had noticed his injuries.  He replied that the father made him wear long clothes to cover them, and then added that the father only cut his arms in the winter time.  The child also said that the father had, “Touched his private parts”, that, “He did that everywhere in the house”, and, “It’s probably the 15^th time he’s done it”. 

14. Throughout, I interpret the Family Consultant to be saying that the affect of the child, that is, his emotional response, was inconsistent with the content of what he was saying.

15. This may have affected the recommendation of the Family Consultant, that the matter be referred for a Chapter 15 expert in psychiatry to assess both parents and the child. 

16. There was no medical evidence tendered in respect of the allegations made of burning, cutting and beating, other than Exhibit 4, which I have already referred to. 

17. There was also material from subpoena of the utmost concern in respect of past allegations.  From the Department, on 18 November 2013, there is this reference:

    Both parents are making allegations.  The father asserts a history of injuries to the child; as an infant, a cut on his rectum, and a split in his penis.  The child is reported to have been with his friends, grabbing other children’s genitals. 

18. The comment of the Department is that the allegations by both parents were not substantiated, and that the child was reported to be embellishing, that is, adding to and exaggerating information, incorporating alleged incidents into fanciful scenarios.  The assessment of the Departmental officer was that the child was unable to differentiate fact from fantasy. 

19. The assessment in November 2013 was that there was no risk of harm to the child, and that has to be said, at that time, in context, from either party.  Although I take that to mean no risk of harm of the type alleged, rather than risk of harm of being under pressure from his parents.  The family was referred to a program called SPARKS. 

20. In Exhibit 2 (tab F4), on 25 February 2014, a Departmental officer refers to a history of allegations by each of the parents, and a note that the child “exaggerates everything”.  Concern was raised in the notes that the child was being coached to make statements.  Within Exhibit 3 (tab F1), on 17 June 2014, there is this note of the child, again being interviewed by departmental officers, as a result of notifications:

    There are long stories, not clear in detail, being given by the child.  [C] reported that his mother had told him to say certain things.

21. A Departmental officer made this comment:

    Not sure of the safeness for [C] of either parent at present.

22. In Exhibit 3 (tab F2), in June 2014, the mother told a Departmental officer that the child self-harms and cuts himself.  When questioned, she said that she meant by that statement that the child, “Will take risks leading to harm sometimes, and he might end up with a cut”. Such use of language may well be explored in a final hearing. 

23. In Exhibit 2 (F6), on 17 February 2015, there was a further interview of the child by the Department.  There were allegations by the child of the mother touching his genitals and covering his mouth so, “I couldn’t shout for help”.  Likewise, the child said that the father touched his genitals, and also covered his mouth.  In Exhibit 3 (tag 11), the child disclosed that what he had said at the initial interview was not true, “Mum made me say all that stuff”, and, “Mum never hit me”.

24. From the NSW Police Department, Exhibit 1 (tag 17), on 17 February 2015, a report was made that the child had been shown how to play with his own genitals by a doctor.  This referral was rejected as not meeting the criterion for abuse.  At tag 7, there was a notification by a caller that the child was being inappropriately touched by his half-sister and a cousin; that he had been punched and kicked by the father, but that the mother was too scared not to let him go to spend time with the father.  The note in the file was that there had been a prior JIRT investigation, where complaints of sexual abuse had not been substantiated. 

25. In Exhibit 2 (tag 18 and F8, 9, 10 and 11), in February 2015, there was a meeting that took place, commissioned by Departmental officers.  The officer in charge (as I interpret the statements in that document) effectively lectured the parents about the impact on the child of coaching him to make statements about others and also raised the subject of the child disclosing being told to say things.  The officer made it clear to the parents that they should cease putting this kind of pressure on the child and work things out between themselves. 

26. In Exhibit 2 (F16), on 19 February 2015, there is this note by a Departmental officer:

    Significant concerns for mum’s mental health stands out.  She has experienced a lot of trauma, trouble distinguishing what is real.

27. There is some support in other material for such concerns: 

    a)In Exhibit 3 (F2), the mother gives a history of her family of origin, which is consistent with trauma. 

    b)In Exhibit 3 (tag 6), there is a reference by the mother to a history of abusive criminal conduct by the maternal grandfather and men introduced into her life and those of at least one of her siblings by him. 

    c)In March 2015, a safety plan was implemented for the child, which is annexure D to the father’s affidavit.  Part of the safety plan was that there would be no further discussion with the child by the parents about any of the matters investigated by JIRT. 

    d)Exhibit 3, on 17 April 2015, there is a referral to F Health Service on the basis of “psychological and emotional abuse by both parents” and this statement: “[C] presents with developmental trauma disorder”.

    e)Exhibit 3 (tag 15) is a text sent by the mother to somebody an officer who has reported in the G Health notes, “I have been addicted to pain, self-harm and self-abuse”.  This was one of a great many self-revelatory statements by the mother in that text

28. I conclude that the mother raises allegations on behalf of the child of abuse of him by the father, both sexual and physical.  She also raises neglect of the child’s physical and dental health.  There is no medical evidence other than that which I have referred to. 

29. The father denies wrongdoing and makes allegations of sexual abuse and psychological abuse by the mother of the child.  The father has provided more of the care for the child in his lifetime, in the absence of the mother between 2009, when the child was about two, until the child was approximately four.  There is a dispute over how that set of events came about, but there is no dispute that that happened. 

30. Most recently, for the last at least two years, there has been shared care. 

31. The mother states her belief that the father may have neurological damage from years of boxing.  The father believes the mother has mental health issues yet to be diagnosed.  The child is reported to be acting violently and aggressively to the mother’s younger child, D. 

32. Both parents also have older children from previous relationships:  the father, two daughters, aged 13 and 11; the mother, a young adult daughter and a 17 year old son.  Complaints are made about one of those children too. 

33. There is an extremely complex history for this child, and the contexts of the parents’ statements as well as the detail of the allegations are to be explored by a clinical psychologist.  The child is presently not functioning well at all. 

34. Taking a conservative approach in this matter requires one of two courses:

    a)A request for the Department to intervene and remove the child into care or otherwise supervise his wellbeing; and I have foreshadowed that such a request may be made, depending on the outcome of the report.

    b)Leave the current orders in place until there is a proper basis for change. 

35. I am particularly conscious of an abrupt change for the child, cutting him off from the father, who has been his primary carer or primary shared carer. 

36. I would be equally conscious of the impact on the child of an abrupt change to spending full-time care with the father without time with the mother. 

37. For a child who has already been so damaged, to make changes without some specialist information is to take a risk with his future mental health. 

I certify that the preceding thirty seven (37) paragraphs are a true copy of the

ex tempore reasons for judgment of the Honourable Justice Cleary delivered on

28 October 2015.

Associate:

Date:  4 November 2015