Grolman & Swift

FAMILY COURT OF AUSTRALIA

GROLMAN & SWIFT

[2007] FamCA 534

FAMILY LAW - CHILDREN - With whom a child spends time - Best interests of a child

FAMILY LAW - CHILD ABUSE - No finding of unacceptable risk - No order for supervised contact

APPLICANT:

MR GROLMAN

RESPONDENT:

MS SWIFT

FILE NUMBER:

TVF

1258

2003

DATE DELIVERED:

5 April 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

14 and 15 August 2006

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

The Applicant Father appeared in person

SOLICITOR FOR THE RESPONDENT:	The Respondent Mother appeared in person
INDEPENDENT CHILDREN’S LAWYER:	Ms McDiarmid of Counsel appeared for the Independent Children’s Lawyer

Orders

1.(a) that all Orders previously made in relation to the child, a son, born … January 1990 be discharged;
(b) the said child be at liberty to spend whatever time he wishes with either of his parents.
2.That the child, a daughter, born … November 1997 live with the Mother.

3. That the child spend time with the Father:
(a)from 9.00 am to 5.00 pm each Saturday and Sunday on alternate weekends commencing the Easter weekend Saturday 7 April 2007 and alternate weeks thereafter;
(b)at such other times and places as the parties may mutually agree in writing.
(c)for such times spent with the child the Father is not to take the child to his residence at Cor any other property where the child is likely to come in proximity with heavy machinery.

4.That the Father collect the child from such place as the Mother may from time to time stipulate in writing and return the child to such place at the times designated. In the event the Mother does not nominate a particular place the child is to be collected from and delivered to the Mother’s residence in P. At all times when the Father is collecting and returning the child the Father is not to alight from his motor vehicle.

5. That the child communicate with the Father:
(a)by telephone each Wednesday between the hours of 6.30 pm and 7.00 pm with the Father to initiate the telephone call;
(b)by mail and email at all reasonable times.

6.That the Mother and the Father have joint responsibility for the long term care, welfare and development of the child.
7.That each party have sole responsibility for the day to day care, welfare and development of the child during periods when the child is with that party.
8.That the parties shall keep each other informed of their residential address and home telephone number and shall notify the other in writing of any change of address or telephone number within seventy-two (72) hours of such change.
9.That each parent is to keep the other informed of the child’s place of education and details of any medical, dental or other health provider who treats the children when they are in their care.
10.That the Father be at liberty to approach and communicate fully with the child’s place of education, medical, dental or other health provider and obtain information from them in relation to the child’s progress or treatment.
11.That each parent is to provide the other notice of any significant educational or health issue for the child as soon as reasonably practicable for them to do so.
12.That the Mother is to refrain from discussing issues of sexual abuse of the child by the Father with the child.
13.That neither party is to denigrate nor permit others to denigrate the other parent either to or within the hearing of the child.
14.Pursuant to Section 65DA(2) and Section 62B 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 hereto and these particulars are included in these Orders.

FAMILY COURT OF AUSTRALIA AT LISMORE

File Number: TVF 1258/2003

Mr Grolman

Appellant

And

Ms Swift

Respondent

REASONS FOR JUDGMENT

“It does seem that the Court will need to make a finding of fact on the issue of [the father’s] actions, as alleged by [the mother] and inferred from [the daughter’s] comments. Did his behaviour represent intentional sexualised behaviour with his daughter or were his actions careless or idiosyncratic but not indicative of sexualised harm? Was [the daughter’s] reported reactions indicative that something sexually untoward had occurred or was it that her reactions were in response to other aspects of [the father’s] behaviour? Has [the mother’s] past experience of being subjected to sexually abusive behaviour coloured her sensitivity to [the father’s] behaviour that she has inferred sexual intentions when there were none, or has her past experience sensitised her to notice the subtle nuances in [the father’s] behaviour and has, in fact, prevented the development of a pattern of sexualised behaviour between he (sic) and their daughter?”.
(Paragraph 54 report of Mr L, psychologist annexed to his affidavit filed 8 May 2006).
The parties to this litigation were married in late 1998. They were divorced in 2004. They are the biological parents of two children, a son born January 1990 and a daughter born November 1997.
The parties met in the mid-1980s whilst the Father was still married to his first wife. They met while the Mother was nursing the Father in hospital after he had been involved in an accident.
According to the Mother, paragraph 25 of her affidavit sworn 29 September 2005:
“25.The Husband’s first wife gave her permission for her to “spend nights with [the father]”.
Thereafter they commenced a long term on again/off again relationship. As noted the child, a son, was born in January 1990.
The Father around 1995 left his first wife and some time later commenced a permanent relationship with the Mother. The second child, a daughter, was born in November 1997.
The parties ultimately separated in November 2002.
The primary issue I am asked to determine is whether the time the Father spends with his daughter should be supervised or unsupervised. It is also an ancillary issue as to how much time he should spend with his daughter.
The matter proceeded to trial over two days on 14 and 15 August 2006. Neither party was legally represented.
The Father was the applicant and he gave evidence on his own behalf. The Mother gave evidence and also called evidence from her mother Mrs S, the daughter’s maternal grandmother. She swore an affidavit in support of the Mother’s case on 30 May 2006.
The Court was assisted by the appointment of an Independent Children’s Lawyer who had briefed Counsel. The Independent Children’s Lawyer engaged Mr L a psychologist in private practice in W to prepare a report and that report is annexed to his affidavit.
An earlier Family Report had been prepared by Mr B on 30 April 2004. Mr B is a Family Consultant with the Court based in R.
A critical point in time was an investigation by the Department of Family Services carried on in November 2002 at the time of separation. The Mother had expressed concerns to the Department about statements made to her by her daughter. It appears from the Department of Family Services’ file that the Mother was most concerned the Department would move to take her child/children from her. It further appears from a reading of the Department’s file that the Department indicated to the Mother she should leave her husband. The Department later made a finding of substantiated abuse by the husband. He has sought to challenge this finding in a variety of ways since that time.

Consent Orders of 2004

Consent orders were made on an interim basis on 8 June 2004. Those orders, in summary, provided for the children to reside with the Mother and the children were to have contact with the Father for up to eight hours between 9.00 am and 5.00 pm on one Saturday per month up until November 2004 with the contact to the child, the daughter, being supervised by a supervisor approved by the Independent Children’s Lawyer. The consent orders further provided that in the event of the Father relocating closer to the children’s residence the Father’s contact may be increased to up to eight hours between 9.00 am and 5.00 pm on two Saturdays out of every three Saturdays with the daughter’s contact again being supervised by a supervisor approved by the Independent Children’s Lawyer. There was provision for regular telephone contact at 7.00 pm on Wednesdays. The matter was listed for further mention in November 2004.

Applications Filed by Father (I will not concern myself with applications filed
prior to the making of the interim consent orders)

The Father filed a further application on 9 August 2005. Final orders sought in that application were in the alternative namely:
a)The children have a right to adequate unlimited access to both parents every day; or
b)Adequate communication be established and maintained between both parents; or
c)The Father has 100% parental responsibility.
In an amended application filed on 24 July 2006 the Father sought orders in the following terms:
“Residence
a)That the children reside with either parent.
b)The children can choose which parent they live with and that choice is effective, if at all reasonable and appropriate, and can be arranged.
Access
c)Both children and both parents have access that may be described as unrestricted.
That is, any of the four people may contact any of the other persons, in an appropriate manner; if at all convenient, and as reasonably arranged between the parents. Obviously, common politeness and courtesy apply, as do the usually reasonable suggestions of the usual way in which people interact.
Contact
d)That the children have contact with either parent at all reasonable times as may be agreed between the Father and the Mother and shall include:
For telephone contact, either child be permitted to telephone the parent with whom they are not residing at any reasonable time the child wishes; if necessary, the parent with whom they are then residing shall facilitate these telephone calls as and when requested by the child.
For telephone contact, the parent with whom either child is not staying may be permitted to phone the said child at a reasonable time, as may be agreed between the Mother and the Father.
That the parents communicate in a reasonable way concerning any arrangements for special days – eg.: birthdays, holidays, Christmas, parent days, etc.
If a period of non-contact (say two weeks, or such time as agreed between parents), has occurred, then it is assumed to be reasonable that an attempt to contact may be made.”
The Father also sought a series of specific issue orders which appear to be largely uncontroversial. A week later the Father filed a further amended application for final orders in the following terms:
“With whom the children live:
a)That the children, [a son], born […] January 1990 and [a daughter] born […] November 1997 shall live with either parent.
The children can choose which parent they live with, and that choice is effective, if at all reasonable and appropriate, and can be arranged.
How the children and parents spent (sic) time:
b)Both children and both parents can spent (sic) time with each other in a way that may be described as unrestricted.
That is, any of the four people may contact any of the other persons, in an appropriate manner; if at all convenient, and as reasonably arranged between the parents. Obviously, common politeness and courtesy apply, as do the usually reasonable suggestions of the usual way in which people interact.
Communication:
c)That the children may have contact with either parent at all reasonable times as may be agreed between the father and mother, and shall include:
For telephone contact, either child be permitted to telephone the parent with whom they are not residing at any reasonable time and the child wishes; if necessary, the parent with whom they are then residing shall facilitate these telephone calls as and when requested by the child.
For telephone contact, the parent with whom either child is not
staying may be permitted to phone the said child at a reasonable time,
as may be agreed between the mother and father.
That the parents communicate in a reasonable way concerning any
arrangements for special days – eg.: birthdays, holidays, Christmas,
parent days, etc.
If a period of non-contact, (say two weeks, or such time as agreed
between the parents), has occurred, then it is assumed to be
reasonable that an attempt to contact may be made.”
The balance of the orders sought are largely in accordance with the specific issues referred to in the earlier application and do not appear to be the subject of any controversy.

Orders Sought by the Mother in her Response Documents

The Mother filed an amended response to an application for final orders on 6 September 2005. In that document the Mother records:
“The Respondent disagrees with all proposals put forward by the applicant as not in best interest of children.”
Thereafter she seeks orders that the children reside with her:
“In the event the Court makes a finding of sexual abuse by the Father towards the child [daughter] there be an order for no contact with the child [daughter] and supervised contact with the child [son].
In the event the Court does not make a finding of sexual abuse by the Father towards the child [daughter] then [the daughter] shall maintain supervised contact with her Father for a period of no less than two hours a fortnight (current facility maximum) at the [W] Children’s Contact Centre.
That the child [the son] (15 years old) is permitted contact with his Father as approved by both parents according to his wishes.”
That the Father pays all expenses related to contact orders made by the Court.”
In a further amended response filed on 31 July 2006 the Mother seeks orders as follows:
a)That the children, [a son], born […] January 1990 and [a daughter], born […] November 1997, continue to live with their Mother, […], as preferred by both children.
b)That the young man child, [son], now sixteen years of age, be granted leave, by the Court to decide for himself, where he lives and how he visits family members.
c)That the child, [daughter], continues supervised visits with her Father for no less than two hours a fortnight with a supervisor arranged by the Father and approved of by all parties involved.
d)That the Father, […], cover all costs related to visits ordered by the Court.
e)That the Father pay a minimum of $50 a week child support.
It was common ground between the parties that as the son was sixteen years of age at the time of the trial (he is now seventeen) no orders should be made in relation to him and he should be free to visit his Father as he wished.
Notwithstanding the terms of his various applications, during the course of the hearing the Father conceded that the daughter should reside with her Mother but he would like to see the daughter unsupervised on a regular basis.
The Mother’s position was that contact with the daughter should be supervised regardless of any findings made by the Court.
Mr B when preparing his Family Report did not purport to investigate the allegations that the child had been “sexually abused” by her Father. At paragraph 61 of his report he noted:
“61.On that basis (the finding of substantiated risk by the Department) I could not support unsupervised overnight contact between [the daughter] and her Father, until she is of an age and ability to protect herself from harm and to report any harm that does occur. However I believe some contact could occur during the day time, in the company of [the son] or another responsible adult.”
At paragraph 72:
“72.There is an identified risk that cannot currently be ignored, despite [the father’s] confidence he will be vindicated. This risk places limitations on what arrangements can be made for the children.”
At paragraph 73:
“73.Based on this assessment it is my recommendation that the children remain in the residential care of their mother, providing that she continues to avail herself of some professional support, and if practical attends a suitable parenting course.”
At paragraph 75:
“75.Regarding contact, while the parties reside in their current locations, it is my recommendation that [the children] initially have joint day-time contact (9.00 am – 5.00 pm on Saturday or Sunday) with their father […], on one weekend per month, and continue to have weekly telephone contact with him at an agreed or ordered time.”
At paragraph 76:
“76.I do not believe it is necessary for the day-time contact to be closely supervised, although [the father] may wish to bring his mother or another member of his family so that the children can develop their relationships with their extended family.”

Report of Mr L

I previously quoted from paragraph 54 of this report at the commencement of these Reasons. At paragraph 53 of his report Mr L records:
“53.The central issue for the Court to decide is the difficult issue of [the father’s] contact with [the daughter]. Primary to this is [the father’s] desire to have his name cleared of what he regards are unfounded conclusions by the then Department of Families, now Child Safety, that he represents a risk of sexual harm to [the daughter]. [The mother] admits that the evidence is inconclusive but she retains not only an apprehension about [the daughter’s] safety with [the father] because of [the daughter’s] comments, but also a fear that [the daughter] might be removed from her care by the Department of Child Safety.”
In paragraphs 55, 56 and 57 he summarises the situation in the following terms:
“55.In my view the Court may either determine that [the father] has behaved in a sexually inappropriate manner toward his daughter and therefore is still a risk to her (as [the mother] contends); or, it may find that the available evidence does not support the conclusion that [the father] behaved in a sexually inappropriate manner towards his daughter and therefore does not represents (sic) a sexual risk to her, (as [the father] contends); or, possibly, the Court may decide that [the father] did behave inappropriately but is not now a risk to his daughter.”
“56.I appreciate that this will be a difficult task and consider that it is inappropriate for me to prejudge the Courts (sic) deliberation in this regard. There is considerable evidence that could be reviewed and it is neither my role to canvass this evidence or derive a conclusion from my interviews alone.”
“57.If the Court were to decide that [the father] has behaved in a sexually inappropriate manner with his daughter then a continuation of the supervised contact would be necessary. Alternatively, if the Court were to find that [the father] either had not and/or was not a risk to [the daughter], then some relaxation of the supervision provisions of the Contact orders would be appropriate.”
Counsel for the Independent Children’s Lawyer in the course of her final address accepted that on the available evidence the Court could not make a finding that sexual abuse had incurred. She further submitted there was no basis for finding there was an unacceptable risk to the child.
However on the basis of the principles enunciated in R v C it was submitted the Court should only consider an order for supervised contact being for four hours each alternate weekend.
On the Mother’s case the child would see her Father for two hours a fortnight being a total of 52 hours a year.
On the Independent Children’s Lawyer’s recommendation the child would see her Father 104 hours a year.

On the Father’s case he would see his child on a regular basis unsupervised.
I note that Mr L had observed a positive relationship between Father and daughter and recorded the child’s comments that she wished her parents to be reunited.
In assessing whether there is an unacceptable risk the Court has to consider firstly whether there is any risk at all and if such proposition is answered in the affirmative then the issue has to be considered whether such risk is unacceptable. The unacceptability of the risk has to be looked at holistically having regard to the nature of the allegations, the personality of the parties, the age of the child, the wishes of the child together with any other factors considered relevant.

Whether an Unacceptable Risk Exists

In the context of assessing any risk to this nine year old girl it is necessary to consider the personalities of the parties.

Observations of Father

Mr B in paragraph 15 described the Father:
As of “normal intelligence”.
“A strong tendency to analyse or intellectualise the behaviour of others in a manner that offered little insight to his own behaviour and feelings.”
“He expressed a rather patronising and self-excusing approach to the allegations.”
“A very earnest and concerned man.”
“Displays beliefs that many would consider odd and self-aggrandising.”
Mr L in paragraph 23 described the Father:
“Self confident, determined and unconventional.”
Descriptions I would apply would include eccentric, uninhibited and
non-conforming. Whenever any criticism is directed towards the Father he
tends to find a reason to blame others.
I do not accept Mr B’s hypothesis that the Father may be delusional. I prefer Mr L’s interpretation of the Father’s belief that he can transmit thoughts to others.
The Father’s evidence was that when children were being assessed for an IQ study, children to whom he had administered the test achieved higher results than other students. I would observe that it could be they were a brighter group of students. The Father gave the impression they were the same students although why they were being administered the same test by a different teacher was not made clear.

Observations of Mother

In paragraph 30 Mr B describes the Mother as:
“Having an apprehensive manner, ambivalent at times about the issues involved.”
At paragraphs 31 and 32 he recorded the self description of the Mother in the
following terms:
“31.[The mother] described herself as having “good values – a bit idealistic – emotionally fragile but I have faith”. [The mother] said she would like to improve her self esteem, develop more structure in her life and get back to work. She says she was “not really interested right now” in any further relationships.
32.[The mother] said her health could be better and that she is taking Prozac to relieve depression. [The mother] said she had been hospitalised with depression in the past and is currently attending a counsellor.”
In paragraph 37 Mr B noted:
“A “tendency to look for guidance from others”.
“She could be emotionally vulnerable at times and may be impulsive.”
In paragraph 26 of his report Mr L records the Mother’s self description as:
“A serious and sensitive person who values being friendly and honest. She can at times be anxious and emotional.”
“Saying that she sheds tears easily and laughs readily.”
In relation to shedding tears the Mother broke down and cried in the course of giving evidence about sensitive personal issues. There was nothing unusual in such a reaction in the circumstances.
In addition the Mother described her self confidence to Mr L as:
“A bit down”.
I would add that I observed the Mother to be an unhappy and mistrusting person.

The Allegations

It is instructive to consider the allegations made by the maternal grandmother, Mrs S in her affidavit sworn 30 May 2006.
The grandmother concedes in her affidavit that she was one of the notifiers to the Department of Family Services. She resides in New South Wales.
The allegations against the Father would appear to be:
“Paragraph 3:
·    He favoured [the daughter] over [the son].
Paragraph 5:
·    The Father’s relationship with [the daughter] is smothering – being over affectionate and possessive.
Paragraph 6:
·    In 2002 on a couple of mornings when [the mother] had gone to work, [the father] lay in bed under the blankets with [the daughter] in the main bed until 11.00 am or 12 noon.
Paragraph 7:
·    (Presumably in 2002 when the child would have been four)
The Father carried the child on his hip out the front door. He has placed his daughter on the bonnet of the car and proceeded to urinate on the ground.
That may or not be appropriate behaviour by the Father in the presence of his four year old daughter but it could hardly amount to an incident that could be described as “sexual abuse”.
Paragraph 8:
·    (Not so much an observation as a conclusion):
During my welfare studies and experience I learned that snippets of information like those in this document and the numerous suspicious events [the daughter] has described to her mother are all parts of a puzzle that in my opinion are too numerous to deny that a clear profile of [the father’s] character and intentions with [the daughter] are apparent.”
In conjunction with other data not currently forthcoming it could be that there is cause for concern in the Father’s behaviour towards his daughter. I would add that his behaviour is also consistent with a loving Father who dotes on his daughter but is prepared to raise her in a rough and ready fashion – such as the later allegations he would request the child to bend right over when tending to her toilet needs.

Observations made by Mother and Disclosures made by Child to the Mother (Refer Mother’s Affidavit Sworn 3 October 2005)

Paragraph 5:
“5.The child would scream when her Father would try to get her out of the bath.”
It is trite to observe there are many reasons why a child would scream when being taken from a bath – she wanted to stay in the bath, it was cold in the atmosphere out of the bath, her Father was pulling her out of the bath in an uncomfortable fashion, she wanted her Mother to take her out of the bath, are but a few reasons.
“The child did not want to lie on the Father’s side of the bed.”
The Mother had been away for four days at the time (the first and only time she had been away). In the circumstances I see nothing untoward in the child wanting to lie on the Mother’s side of the bed.
Paragraph 10:
The child has made the following statements to the Mother:
“10.Statements made by [the daughter], to me, about her Father’s inappropriate behaviour:
“Daddy put cream on my wee and it got better!” March 2002
“I don’t like the way daddy cuddles me!” 4 November 2002
“Daddy’s wee is long like the dogs (sic) when they are making babies!” 4 November 2002
“Daddy looked at my wee, I told him not to and he stopped!” 15 January 2003
“Daddy’s wee looked at me – I think it had bones in it!”
“Daddy is a monster up to the roof!”
“Daddy hurt me in the bathroom just once” [the daughter] demonstrated where she was hurt by daw (sic) a line between the crutches of two stick figure drawing 10.2002
“Daddy opened up my nappy one night and looked at my wee, he looked for two days! You were very asleep mummy and I couldn’t wake you up, I tried and tried!” [The daughter] started expressing anger toward me as she spoke.
“No silly, boys don’t have hair on their wee!” [The daughter] drew a picture of her dad with nipples on the shoulders – she said he was doing the gardening. She drew scribble at the lower trunk and I asked her if it was hair. [The daughter] said, “no silly, boys don’t have hair on their wee!” I wondered how she knew this 13 July 2003.
“Guess what mum? Dad showed me his wee on the trampoline!” 13 July 2003.
“Daddy weed in front of me when I was on the trampoline, he shaked (sic) his wee and let me have a look, I didn’t like that!” 13 July 2003.
“Daddy was wearing the same pants he had when he showed me his wee!” This was her first contact visit with her father at the [W] Children’s Contact Centre, she had not seen her father for about one year. [The father] was wearing blue denim jeans.
“Bad things happened when I lived with daddy on the farm!” [The daughter] made this statement to [Ms W], the child counsellor at the Domestic & Family Violence Prevention Service, [W] but also said she didn’t want to talk about it with anyone else, only her mum. [The daughter] also told [Ms C], at the same service that:
“Daddy use (sic) to put cream on my wee when I lived at the farm!” 2003.
In her affidavit of 31 July 2006 the Mother says that in March 2002 the Father, “secretly” put cream on the daughter’s genitals (refer paragraph 3). The Mother observed that at that point in time the child had been complaining of discomfort passing urine and she was observing her for symptoms of urinary tract infection. As for the Father becoming defensive after the Mother confronted him I would simply observe that that is totally in accord with the Father’s personality where he would tend to blame others for misinterpreting events rather than giving a straight forward account of why he had on one occasion rubbed cream on his daughter’s genitals.
It is telling that this event occurred in March 2002 and the Mother made no mention of it to authorities until November 2002.
“3e.[The daughter] called me in to help her wipe her bottom. When I got to the toilet [the daughter] bent right over in an extreme manner exposing all. I told [the daughter] not to do that because I do not want to see her entire bottom and [the daughter] replied, “Daddy does”.”
Whilst it may not be elegant I see no cause for an adverse inference in the descriptions given surrounding this incident.
It is probable had the Department of Family Services reassured the Mother there was insufficient basis for the making of a finding against the Father but urged her to be vigilant in her care of the child, the separation would not have occurred at all. This is speculation on my part. There was clearly pressure from the maternal grandmother to separate but that was balanced by the fact that friends were urging her not to separate as were the children urging her to return to cohabitation with the Father.
The Court has the Department’s file and in addition an affidavit of Ms D – an employee of the Department who prepared a child protection report dated 24 December 2003.
It is abundantly clear the notification of 30 October 2002 came from the maternal grandmother. The information the maternal grandmother related to the Department had to have come to her from the Mother herself.
At page 4 of the report prepared by Ms D she notes:
“The outcome was substantiated risk of harm.
THE HARM
[The child] did not make any direct disclosures of sexual harm, however she did state that she does not like the way her father cuddles her.
THE CHILD
[The child] stated that she did not like the way her father cuddled her, she cried, her eyes became downcast and she stated that it made her sad when the subject of her father was raised in the interview.”
In his report paragraphs 34 and 35 Mr L observes:
“34.The central point of divergence for [the parents] then is the issue of [the daughter’s] safety with [the father]. [The mother] acknowledges that whilst she retains ongoing concerns about her daughter’s safety with [the father] she also acknowledges that the evidence is not conclusive and hence the Court may remove the supervision provisions for [the daughter’s] contact with her father.
35.I sought to explore this as much as possible with [the mother] and during one of the interviews I spoke with her and [the daughter] together. [The daughter’s] comment was that, “Dad doesn’t do that anymore”.
When I sought to understand what it was that he, “Doesn’t do anymore”, amongst some distraction she made reference to, “Putting cream on my wee wee”, “Being naked outside doing wees”, and “Looking at me on the toilet”. Adding, “I felt really scary”. She also referred vaguely to some occasion when she said, “He showed me his wee when I was on the trampoline”.”
The Mother gave an account of being sexually abused as a child. In cross examination she said she had, “Been raped by an older brother and sexually abused by her grandfather and uncles (plural).”
In the Department of Family Service’s file (entry 4 November 2002) the Mother only mentioned sexual abuse by the grandfather and uncles.
A significant piece of evidence would have been the drawing made by the four year old child on a Magna Doodle board. The Mother did not photograph the drawing, she did not keep the drawing, the only evidence before the Court is her description of the drawing. The Mother did the bulk of the drawing.
Having perused the Department’s file and the report of Ms D I can only conclude the Department has acted on a paucity of evidence given by a naïve woman with low self esteem who was sexually abused as a child. She at all times has been hyper-vigilant.
In her Joint Case Summary document filed 10 August 2006 when setting out a particularly detailed chronology the Mother notes for the year 1994:
“[The son] told me his dad showed me his wee and it got bigger. But authorities refused to process allegations.”
It appears that the parties were in New South Wales at the time. There has been no elaboration or further investigation of this aspect of concern by the Mother some eight years prior to the allegations made in late 2002.
I am not prepared to make any finding the child has been sexually abused by her Father or anyone else for that matter. The Father may have acted inappropriately in urinating one morning in front of his daughter. The Father may have told the child to bend right over so that he could attend to her toileting needs in the fashion that he did. I am comforted in the conclusion that I have reached in that it accords with the recommendation by the experienced Independent Children’s Lawyer.
Of concern is an entry in the minutes of the scan team meeting held on

4 December 2002. In there it is recorded that the Father had stated:
“[The daughter] fantasises about having sex with him.”
The first and most obvious aspect to note is that no where in the balance of the
file where there is a record of the interviews with the Father is such a statement
made.The only reference I could find is a reference by the Father to the child
displaying an oedipal complex.
I have looked at all of the allegations and disclosures, behaviours and such like said to constitute the abuse by the Father. I am not satisfied there has been any abuse of the child.

Law to be Applied

Section 60B is in the following terms:
“(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CC makes references to primary considerations the Court must have regard to and additional considerations. The primary considerations 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.
The primary considerations would heavily favour a regime whereby the Father has ongoing meaningful time with his daughter to allow the development of a proper relationship between the two. This would accord with the recommendations of the report writer, Mr L.
I accept the Father has certain idiosyncratic views but I do not see that as in any way being a disqualifying factor. The Father in many ways exhibits a zest for life which I am confident he wishes to inculcate in his children. I would see that as being beneficial for the child. The Father’s self confidence would be a suitable counter to the Mother’s low self esteem as a role model for the child.
In his report, Mr L records:
“46.[The daughter] also spoke positively of her father telling me, “He’s my Dad, without him I wouldn’t be here, he’s tall and strong.” However she also volunteered to me that if she lived with him she “Wouldn’t go into town” and “He has lots of snakes, I’d probably be dead by now.”
47.Although she was reluctant to engage in any further focused discussion about her earlier reported comments that “Dad doesn’t do that anymore”, I formed the view that she does not harbour apprehensions about ongoing contact with [the father] but rather indicated that, from time to time, she missed him. Typical of [the daughter’s] confusion on this issue she indicated at one point in our discussions that she thought her mother did not want her to visit her father, but later appeared to indicate that she also knew her mother approved of her having contact with him.
49.I think it reasonable to conclude from my discussions with [the daughter] and my observations of her at the Contact Centre with her father, and at home with her mother, that she has a strong attachment to both parents. This was confirmed by the Coordinator of the [W] Children’s Contact Centre who indicated that [the father’s] interactions with his daughter gave no cause for concern and that he had always interacted appropriately with his daughter. [The child] is indicating a preference to live with her mother, is aware that there is some disagreement between her mother and father in relation to contact but does not have a wish or opinion about this issue other than a desire that her parents get on with each other.”
The child is now nine years of age, she will be ten this year. Her wishes must be given some weight. Her wishes would also appear to be inconsistent with the view she is a child who is terrified of her Father because of past behaviour.

The Nature of the Relationship of the Child with Each of the Child’s Parents

In the course of the evidence of Mr L the following exchange occurred:
Question by Mother:
“How do you feel it would be if the Court ordered [the daughter] away from my care, away from John’s care, would you think that would be in her best interests to have contact with both parents, supervised perhaps not in my care? - - - To be not in your care? Correct? - - - You mean as in - - -I’m getting the impression that some people may feel that she’s better off not being with me.
MS McDIARMID: No.
[THE FATHER]: It’s not even on the agenda, truly it’s - - - (attributed to the father but almost certainly said by myself).
[THE MOTHER]: If I can’t agree to certain orders, that’s the impression I just got.
HIS HONOUR: Well, as I understand it [the father] has made it abundantly clear that all he wants is some degree of unsupervised contact. He wants to clear his name of any suggestion that he’s acted in a sexually inappropriate manner with his daughter. But other than that he was quite complimentary, he was never critical of your parenting.
[THE MOTHER]: I was actually referring to the children’s representation.
HIS HONOUR: Well I’m listening to her. She’s not – waving her head from side to side as well, would that be correct?
MS McDIARMID: Yes, your Honour, I didn’t mean to - - -
HIS HONOUR: You’re not pressing - - -
MS McDIARMID: I didn’t mean to create the impression that I was in any way critical of the mother’s parenting.
[THE MOTHER]: Thank you.
HIS HONOUR: Nobody’s - - -
[THE MOTHER]: That’s all, no more questions.
HIS HONOUR: There’s not one scintilla of evidence before the Court other than that you have done a magnificent job raising these children and [Mr L] confirms it.”

It is possible that at some point in time whether an earlier time in the hearing or at an earlier mention of this matter I may have told the Mother the only problem she faced was if she did not comply with Court Orders there were cases where if a parent adamantly refused to promote the other parent’s relationship with the child then the child was given into the care of the other parent.
I note the Mother’s reaction on this occasion in the course of her cross examination of Mr L is not greatly different to her behaviour on 4 November 2002 when she first attended at the Department of Family Services. At that time her primary concern appeared to be that the Department would remove the child from her care. There is no evidence of any such incident in the Mother’s upbringing which would lead to her holding such views but it is a reflection of her low self esteem that she perceives herself to be at risk of losing her child.
The Father lives in a donga near a large machinery shed on a farming property. As I understood his position he accepted that until he found more suitable accommodation overnight stays by his daughter were not an option.

The Willingness and Ability of Each of the Child’s Parents to Facilitate and
Encourage a Close and Continuing Relationship Between the Child and the
Other Parent

The Mother is very apprehensive about any unsupervised time spent by the child with her Father.
I accept the Father’s motives are genuine. He has presented with attendances at the W Contact Centre over a lengthy period of time. This would have necessitated a great deal of driving time, cost and inconvenience to see his daughter for a mere two hours per fortnight.
I note that from the records of the W Contact Centre there have been a significant number of occasions when the Mother has not attended with the child with a variety of explanations given.
In response to a question from myself the Mother acknowledged she would have difficulty complying with any Order for unsupervised time.
I have to note a concern on my part that it may be part of the Father’s agenda to seek a reconciliation with the Mother and he would use periods of unsupervised time with the child to further such an outcome. In this regard I note the latest Orders he seeks (paragraph 2):
“2.Any of the four people may contact any other persons, in an appropriate manner.”
Evidence of the Father’s desire for reconciliation are reflected in the reports of both Mr B and Mr L. It is likely the Mother senses this and seeks to be protected from any potential harassment this may involve. I accept the Father is of a controlling nature. The Mother is of an insecure nature and would find it difficult to deal with the Father’s controlling, authoritarian manner.
In the course of evidence of Mr L after acknowledging the Mother’s evidence that she would have difficulty complying with unsupervised contact, he added:
“She was attempting to be as reasonable as she could in all the circumstances.”
“She can never drop her hyper vigilance.”
“There would be nagging doubt fuelled by her own experiences.”
“Whether that means her parenting of [the daughter] would be comprised in a general way it would not impact on it adversely for [the daughter] in any significant way.”

77.In the course of final submissions Counsel for the Independent Children’s Lawyer observed that the Mother admitted she spoke to the child about such matters. Counsel further observed that it could be inferred that she did so, “Quite a bit”, and it is likely the Mother influenced the child to some extent. Counsel for the Independent Children’s Lawyer noted the child never made allegations other than to Mr L and they were some four years after the event. She added that it would appear that the allegations have been embroidered over the years. I accept the accuracy of these submissions and observations by Counsel.

The Likely Effect of any Changes in the Child’s Circumstances

The Mother would find it difficult to cope with unsupervised time.

The Practical Difficulty and Expense

The parties live in close proximity and there is no evidence that this would pose a problem. I am of the view that changeovers can managed by an appropriate framing of the Orders.

The Capacity to Parent

I am satisfied either party can provide adequately for the child’s material needs as well as intellectual and emotional needs but the Mother is far better placed to do so.

The Maturity, Sex and Lifestyle

Nothing relevant to add.

The Attitude to the Child and to the Responsibilities of Parenthood
Demonstrated by Each of the Child’s Parents

I have previously canvassed most relevant aspects of this.

Conclusion

The Independent Children’s Lawyer supported the Mother’s position for time spent with the child to be supervised.
I do not agree, my reasons for not agreeing are as follows:
(a) There is no evidence anyone else is available to supervise. I make no criticism of the W Contact Centre. It has done a magnificent job but Contact Centres are not intended for use on a long term basis. Contact Centres are relatively sterile environments when used week in week out.
(b)I note the child was taken with the Father to a toy shop on an outing to allow him to buy a present for her birthday but it would appear from the records such outings are rare.
(c)Mr L perceived no difficulty with unsupervised contact providing the Court assessed no risk to the child.
(d)The W Contact Centre records reveal a good relationship between Father and daughter over a considerable period of time.
The Independent Children’s Lawyer relied on the unreported decision of Russell v Close Appeal Number SA 45/1992. The Full Court (Fogherty, Baker and Lindenmeyer JJ) in 1993 made the following oft quoted observation:
“In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary care giver of the children, and consequent harm to the children, a subjective test is employed. However it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.”
The statute law has changed a great deal since the delivery of this decision.
Having regard to the findings made by the Department of Family Services in 2002/early 2003 it is difficult to label the Mother’s beliefs as “entirely irrational and baseless”.
In a recent decision Fitzpatrick v Fitzpatrick 33 Fam LR 272 the Full Court (Bryant CJ, Kay and May JJ) held:
“(iii)If one started from the proposition that the termination of a worthwhile relationship between a parent and child ought, in most cases, be the course of last resort, then aside from giving significant weight to the eldest child’s strongly felt wishes not to see F, and to M’s firm belief as to F’s inappropriate behaviour, it is difficult to see why in this case the welfare of at least the two younger children was likely to be advanced by terminating entirely their relationship with F. The Act assumes that the continuation of such a relationship is worthwhile if other factors do not act to countervail that position. The trial Judge’s repeated finding that there was an unacceptable risk of emotional and psychological harm to the children could not be justified on the evidence.”
(vi)Further, M’s ability to cope with ongoing contact was touched upon by the trial Judge when she was dealing with the capacity of the parties to provide for the children’s needs, including their emotional and intellectual needs. M’s views were thus a factor that needed to be brought into the balance in determining whether the welfare of the children would best be advanced by promoting the limited contact that F sought. In the absence of any expert evidence as to the manner in which M might be affected in her capacity to care for her children if the contact was continued, it was inappropriate to draw a conclusion that she might be so overborne by the contact as to be unable to function adequately as the principal caregiver to her children.”
In the present case there is no evidence before the Court that the Mother would be unable to cope with an Order for unsupervised contact or that it would impinge on her parenting ability to such an extent as to be detrimental to the daughter. The view that I have formed is that the benefits of having a positive relationship with her Father outweigh any concerns the Mother may have as to the daughter’s safety and well being whilst having unsupervised contact with her Father. The Mother has followed advice given and ensured that the child has done a protective behaviour course. No doubt the Mother will continue to be hyper vigilant. It is to be hoped for the child’s sake she will not be unduly so.
I would not wish for one moment to make orders in relation to the child, the son, in view of the agreement that the son could make up his own mind what time he spent with his parents.
However the Mother may be able to persuade the son to accompany the daughter on weekend outings with her Father at least for the first few months to allow the son to be able to supervise the time spent by the daughter with her Father and to report back to her Mother. It is a matter between the Mother and her son if this was to take place.
The Mother’s concerns may be further ameliorated by the Court placing the following conditions on the Father’s contact:
(a) The contact will be day time hours only.
(b)There will be an Order restraining the Father from taking the child to the farming property. I would have thought the risk of harm to the child from the heavy machinery in operation there would be minimal. The Mother had gone to the trouble of entering the farm property and taking photographs including a photograph of the child near the wheel of a large piece of heavy machinery.
The Father would do well to have a friend or relative accompany him on occasions when he spends time with his daughter not because he is required to do so but because it would protect him from any further allegations being made at the conclusion of any weekend time spent with the child.
While I am confident that there is no risk to the child, for the Mother to satisfy the Court that the R v C principle should be invoked it would be necessary for her to call expert evidence that she has had counselling on this specific issue over an extended period of time and that counselling has failed to have any effect. The Mother would have to further show that the result of this is that her health is affected to such a stage that she is unable to properly parent her daughter.
For the reasons given I will make Orders largely in terms of the Orders put forward by the Independent Children’s Lawyer, other then that the Order will be for unsupervised contact. The Orders which will issue are as follows:
1.        (a)      that all Orders previously made in relation to the child,   the son, born … January 1990 be discharged;
(b)      the said child be at liberty to spend whatever time he wishes      with either of his parents.
2.That the child, the daughter, born … November 1997 live with the Mother.
3.        That the child spend time with the Father:
(a)from 9.00 am to 5.00 pm each Saturday and Sunday on alternate weekends commencing the Easter weekend Saturday 7 April 2007 and alternate weeks thereafter;
(b)at such other times and places as the parties may mutually agree in writing.
(c)for such times spent with the child the Father is not to take the child to his residence at C or any other property where the child is likely to come in proximity with heavy machinery.
4.That the Father collect the child from such place as the Mother may from time to time stipulate in writing and return the child to such place at the times designated. In the event the Mother does not nominate a particular place the child is to be collected from and delivered to the Mother’s residence in P. At all times when the Father is collecting and returning the child the Father is not to alight from his motor vehicle.
5.        That the child communicate with the Father:
(a)by telephone each Wednesday between the hours of 6.30 pm and 7.00 pm with the Father to initiate the telephone call;
(b)by mail and email at all reasonable times.
6.That the Mother and the Father have joint responsibility for the long term care, welfare and development of the child.
7.That each party have sole responsibility for the day to day care, welfare and development of the child during periods when the child is with that party.
8.That the parties shall keep each other informed of their residential address and home telephone number and shall notify the other in writing of any change of address or telephone number within seventy-two (72) hours of such change.
9.That each parent is to keep the other informed of the child’s place of education and details of any medical, dental or other health provider who treats the children when they are in their care.
10.That the Father be at liberty to approach and communicate fully with the child’s place of education, medical, dental or other health provider and obtain information from them in relation to the child’s progress or treatment.
11.That each parent is to provide the other notice of any significant educational or health issue for the child as soon as reasonably practicable for them to do so.
12.That the Mother is to refrain from discussing issues of sexual abuse of the child by the Father with the child.
13.That neither party is to denigrate nor permit others to denigrate the other parent either to or within the hearing of the child.
14.Pursuant to Section 65DA(2) and Section 62B 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 hereto and these particulars are included in these Orders.
It may be that the Mother would wish the contact to be on Sundays each week rather than for two days on alternate weekends. I leave that for the parties to resolve if necessary through the services of the Independent Children’s Lawyer as an intermediary.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Barry.

Associate:

Date: 5 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GROLMAN & SWIFT

[2007] FamCA 534

5 April 2007

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Duty of Care

Jurisdiction

Natural Justice