Gwyther and Booker

[2007] FamCA 513

FAMILY COURT OF AUSTRALIA

GWYTHER & BOOKER [2007] FamCA 513

FAMILY LAW - CHILDREN - Child abuse - Supervised contact

APPLICANT: MS BOOKER

RESPONDENT: MR GWYTHER

FILE NUMBER: NCF 3292 of 2002

DATE DELIVERED: 11 May 2007

PLACE DELIVERED: In Chambers, Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 6 – 8 September 2006

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Donaghy, Solicitor of GJ Donaghy & Co Solicitors appeared for the Applicant Mother

COUNSEL FOR THE RESPONDENT: Mr Priestley of Counsel appeared for the Respondent Father

SOLICITOR FOR THE RESPONDENT: O’Reilly & Sochacki Lawyers

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Stephen Tester, Solicitor of Stephen Tester & Associates Solicitors

SOLICITOR FOR OTHER: Ms Crane, Solicitor of BL Crane & Associates for Director-General, Department of Community Services New South Wales

Orders

No Orders to issue.

FAMILY COURT OF AUSTRALIA AT LISMORE

FILE NUMBER: NCF3292/2002

Ms Booker

Applicant

And

Mr Gwyther

Respondent

REASONS FOR JUDGMENT

THE DRAMATIC PERSONAE

1. Applicant Mother

   She is the mother of four children:

   ·First son now 19 years of age;

   ·Second son will be 18 years of age in late May 2007;

   ·Third son will be 17 years of age in late May 2007;

   ·A daughter currently aged 10 years of age, the child the subject of the current proceedings.

   The Mother lives in G.

2. The Respondent Father – the father lives in P with the daughter.  He receives a disability support pension.

3. The mother’s husband – The mother’s present husband is currently an inmate of G Prison.

4. Stephen Tester – Independent Children’s Lawyer, Solicitor of B.

5. Department of Community Services elected to be joined as the Third Respondent in these proceedings represented by BL Crane, Solicitor of A.

6. Ms P – Family Consultant, L.  Author of the Family Report dated 20 July 2005.

7. Ms F – Counsellor with T Sexual Assault Unit.  Has had more than 50 counselling sessions with the daughter.

8. Mr L, Psychologist in private practice in G who had been commissioned to interview the second and third sons.

9. The proceedings have been ongoing since shortly after separation in 2002.

MARITAL HISTORY

1. The parties cohabitated from March 1985 until March 2002.  They married in 1990.  Either prior to or just subsequent to separation the mother commenced a relationship with her present husband.

2. On 4 September 2002 in the Local Court at C, Orders were made by consent for the second son, third son and daughter to reside with the Mother with provision for regular contact with the Father.  The eldest child, the first son, was to reside with the Father.

3. In December 2002 the daughter disclosed to her Mother she had been sexually abused by her two brothers, the second and third sons.  The sexual abuse appeared to be of a serious nature and there was a likelihood it had occurred over a significant period of time.  The Mother quite properly reported the matter to the Department of Community Services.

4. On 5 August 2003 Consent Orders were made in the Family Court L which provided for the first son and daughter to live with the Father and for the second and third sons to live with the Mother.

5. There was provision in these Orders for the Mother to have contact with the daughter, limited to times when the second and third sons were with their Father.

6. In about September or October of that year the Mother’s contact with the daughter was reduced to supervised contact periods.  In February 2004 the mother and her present husband married.  In May 2004 the mother’s husband was sentenced to a period of imprisonment for approximately three years.

CURRENT PROCEEDINGS

1. The matter was listed to proceed at the September 2006 sittings in L.  At the time of the hearing the Mother was having supervised contact visits once a week with the daughter for a period of about two hours.  The supervision was organised by the Department of Community Services in the T area.  The Mother’s evidence was that she travelled from G by public transport for that contact to take place.  The travelling time was approximately three hours in each direction. 

2. Up until shortly prior to the hearing in September 2006 the Mother was seeking Orders for the second son, third son and daughter to all reside with her.

3. The Mother was granted Legal Aid a week prior to the hearing on the basis that she only sought Orders for contact with the daughter.  By an Amended Application filed by leave at the commencement of the trial (6 September 2006 – Order (8)) the Mother sought:

   “8.That [the daughter] spend time with her Mother as agreed with the Department of Community Services New South Wales from time to time and otherwise:

   a)each alternative weekend from after school on Friday until 5.00 pm on Sunday;

   b)during the New South Wales gazetted school holidays for the second half of the holidays;

   c)liberal telephone contact as initiated by the child with the Father to facilitate [the daughter] telephoning her mother at all reasonable times.”

4. In his Response document dated 6 September 2006 the Father sought Orders:

   “That [the daughter] spend time with her Mother as recommended by the Department

   of Community Services New South Wales from time to time and otherwise:

   a)each alternate weekend from after school on Friday until 5.00 pm on Sunday;

   b)during the New South Wales gazetted school holidays for the second half of the holidays;

   c)liberal telephone contact as initiated by the child with the Father to facilitate [the daughter] telephoning her Mother at all reasonable times.”

5. According to the legal representative for the Mother in his opening remarks the only issue for determination was whether the Mother’s supervised contact with the daughter should be once a month or once a week.

6. The matter was stood down at the request of the parties to allow negotiations to take place. 

7. Ms F was a witness called by DOCS.  As a sexual assault counsellor she had had extensive counselling sessions with the daughter.  It was Ms F’s recommendation in the strongest terms that contact between the Mother and the daughter be suspended for a period of six months.  This recommendation was subsequently supported by the Psychologist, Mr L.

8. During the course of the hearing before me the Mother, Ms F and Mr L gave evidence and were subjected to cross examination.  Ms G the current case worker with DOCS for the child, the daughter, had provided a report setting out the Department’s historical involvement in this matter.  She was not required for cross examination.

9. Exhibits tendered at the hearing were:

   1.   Curriculum vitae – Ms F

   2.   File summary prepared by Ms F (12 pages together with annexures including report of Dr D dated 30 August 2006).

   3.   Report of Dr D dated 14 October 2005.

   4.   Report of Dr D dated 30 August 2006.

   5.   The University documents – Dr B.

   6.   The DOCS file.

   7.   New South Wales Police file.

10. Overall the material produced was voluminous.

11. At the conclusion of the hearing on 8 September last year I indicated it was necessary to reserve my decision as I had not had the opportunity to read all of the material submitted.  Out of an excess of caution having regard to the evidence of the two experts, Ms F and Mr L, I ordered contact between the Mother and the daughter be suspended pending my determination.

12. Unfortunately for personal reasons I was unable to deliver my Reasons within the time prescribed, namely six months.

13. On a further circuit to L on 7 March 2007 this matter was called on again before myself.

14. I heard brief submissions as to the progress of the child since the hearing in September 2006.  I made Orders for the parties to file updating material. 

15. The only material filed pursuant to this direction has been an affidavit of Ms W filed by the Independent Children’s Lawyer.  Ms W is a colleague of Ms F who is currently on sick leave.  The affidavit of Ms W reveals that the daughter’s visits to the T Sexual Assault Service are now once a month.  Her affidavit annexes a letter from Ms F in the following terms:

    “Enclosed please find a review of [the daughter] undertaken today by a psychiatrist, [Dr D].  In it [Dr D] notes a marked improvement in [the daughter’s] behaviour and symptoms since contact with her mother has ceased.  I had already seen a clear improvement in [the daughter’s] anxiety symptoms and ability to listen and understand during sessions.

    Further she has made great progress in her ability to understand the “grooming” and behaviour of her brothers and can clearly articulate that they are responsible for her sexual abuse.  She rarely asks if she can see them now.

    A further significant indicator of the diminution of her PTSD symptoms is an astounding improvement in her school work over the last term.  [The daughter] has gone from a very low point in her grade to average or even above average on most indicators.  The only factor that has changed is the change in contact with her mother.”

16. The report of Dr D dated 12 December 2006 is in the following terms:

    “[The daughter’s] symptoms of post traumatic stress disorder seem to be much better since contact has ceased some months ago.

    She is not currently having nightmares and her mood has lifted.  She is also less anxious and irritable.

    It is heartening to see [the daughter] doing as well as she is and it certainly seems to be linked with present contact arrangements.”

17. A further development since this matter was last mentioned is that the Husband’s solicitors have filed a Notice of Ceasing to Act.  Whether the Husband intends to engage further legal representation I am unable to say.

18. Having read the material I was asked to consider in the September 2006 hearing, I can indicate I would have acceded to the application by the Department of Community Services for a suspension of contact for the requested period of six months.  Having regard to the evidence and the views of the experts I would not have been minded to order the reintroduction of contact visits by the Mother at the conclusion of that period until there was some assessment of the progress of the child as a result of the suspension of contact.  The Court would also need to consider the terms of any future contact arrangements.

19. The Mother herself was sexually abused by her brother from a relatively young age.  Her brother was seven years older than she was.  Although this abuse undoubtedly deeply affected her, the Mother’s attitude seems to have been one of getting on with life as best she could.  The nature of the abuse by the daughter’s older brothers appear to bear striking similarities to the abuse the Mother says she was subjected to.

20. The major difference is that in the case of the Mother the matter was never reported to the authorities where in the daughter’s case it has been.

21. The difficulty with the Mother’s proposal for the daughter were that they initially included her being reintroduced to the Mother’s household with the brothers, the second and third sons, still in occupation.

22. As the September 2006 hearing approached the Father saw no difficulty in the Mother spending regular time with the daughter provided she did not come into contact with the second and third sons.

23. Concern was expressed by Ms F that the Mother did not appreciate the need for the daughter to have clear boundaries and clear statements made to her and a clear message that what she wants will be listened to and respected.

24. The position was succinctly summarised in the report of Mr L of 20 February 2006:

    “[The mother] suffered significant serial sexual abuse from her brother as a child – [the mother] was left to deal with this on her own and has clearly not properly dealt with or resolved it.  [The mother’s] survival strategy was to just get over it, not think about it and go on with life – hence this is what she expects [the daughter] to do.  Naturally [the mother] has difficulty in maintaining patience while her daughter’s own sexual abuse is being resolved as the ongoing presence of the issue would be hurting [the mother] keenly in precisely the same emotional spots that remain scarred and untreated from her own childhood traumas.

    Hence [the mother] cannot be expected to have quickly gained adequate insight into [the daughter’s] current and ongoing needs for safety from emotional and/or psychological threats.  It is clinically clear that [the mother] does not have any real understanding of [the daughter’s] current needs – certainly [the mother] does not understand how important it is for [the daughter] and her resolution of her abuse to feel safe from any suggestion of her being returned to the family home as that would bring exposure to [the daughter’s] perceived predators, [the second son[, [third son] and [her present husband].

    Moreover [the mother] does not present as understanding that the progress in therapy essential before such contact should be contemplated is being continually delayed and derailed by [the mother’s] ongoing expression of her own hopes and expectations that [the daughter] will be returned to her care soon and then, as [the mother] hopes, all will be right.

    Clinically the net result is that for [the daughter] to be able to resolve her severe serial sexual abuse [the daughter] must have a long period of safety that precludes anyone making any suggestions of resuming contact with either of [the second son], [third son] or [the mother’s husband].  In practical concrete terms this means that contact visits between [the daughter] and her mother […] must be very closely supervised so that every word said by [the mother] is monitored.  It may well be necessary for a firmer contact supervisor to be involved.

    Only once [the daughter] had had at least two years of such protection with concomitant ongoing therapy from the Sexual Assault Service could contact visits with other family members be contemplated.  It would then be dependent on [the daughter’s] current emotional and psychological state at that time, plus her expressed wishes.  The clinical gains and awareness that [the daughter] would need to have attained by then to not be further damaged have been explained in this Report.”

25. In the course of his recommendations, Mr L noted at page 18:

    “It is eminently clear that [the daughter] has not made the progress that would be expected in the time from her removal from the home where her brother resided to now.  As [Dr D], Child Psychiatrist, 14.10.03, noted [the daughter’s] therapy is unlikely to be successful until all safety issues are fully addressed.  In the writer’s considered clinical judgement there is ample evidence that [the daughter] has not been provided with this sense of safety and hence has not been able adequately to resolve her sexual abuse traumas.  This is assessed as being due to continuing pressure from her mother […] and partner […] regarding her imminent return to the care of her mother and hence exposure to each of [the two younger sons], and [the mother’s husband].”

26. At page 20 of his report Mr L recommends:

    “7.Contact visits between [the mother] and [the daughter] should occur in a secure situation trusted by [the daughter] with very close supervision such that every word is monitored and the visit terminated if [the mother] begins to intimate in any way that [the daughter] will be returning to her care and living with/seeing [the second son], [third son] or [the mother’s husband].  For [the daughter] to feel safe it may be necessary to engage a new contact supervisor.  This condition is included so that [the daughter] gets a clear and long period, of at least two years, before the question of contact visits with [the second son], [third son] or [mother’s husband] be proposed to her in any way.”

27. I was most impressed with the evidence of Mr L.  He appeared to act in a thoroughly professional and impartial fashion at all times.  He indicated he agreed entirely with the views and recommendations expressed by Ms F.  He expressed the view that the issue of the Mother’s contact with the daughter should be reviewed after the period of six months.

28. The proposals of the Independent Children’s Lawyer were handed up in September 2006 and were in the following terms:

    “1.      That [the daughter] lives with the Father.

    2.That all face to face visits between [the daughter] and the Mother be suspended for a period of no more than six months while [the daughter] continues to receive therapeutic counselling from [T] Sexual Assault Service, and such other services as they may refer [the daughter] to.

    3.That during the period that face to face visits are suspended, the Mother and [the daughter] communicate with each other in writing, such letters, cards or electronic communication be sent to [the daughter] through [the daughter’s] lawyer; who shall be at liberty to withhold that communication from [the daughter] if it is deemed likely to adversely affect [the daughter’s] health.

    4.That after the suspension of the face to face visits, [the daughter] spends time with the Mother supervised at the [L] Contact Centre each month.

    5.That the parties comply with all reasonable rules, directions, and policy of the said Contact Centre.

    6.That both the Mother and Father be restrained from allowing [the daughter] to come into contact with or communication with:

    a.        [the mother’s husband];

    b.        [the second son];

    c.        [the third son].

    7.That the Mother and Father comply with any reasonable direction of the [T] Sexual Assault Service including bringing [the daughter] to all appointments, attending all referrals, complying with all requests from time to time.

    8.That the Mother and Father not discuss the subject of or refer to [the mother’s husband], [the third son] or [second son] in any communication, or visits with [the daughter].”

29. It is clear that the matter will need to be reviewed further.  Whether outstanding issues can be resolved at a mention of this matter or a further full hearing will be required I am at this point in time unable to say.

30. I propose to list this matter for mention on Wednesday 17 May 2007 at 9.30 am at L.

31. I make the following further observations:

    i)I have a good deal of sympathy for the Mother.  She reported the abuse as soon as it came to her attention.  It is possible the abuse was occurring prior to separation.  There is no evidence the Mother was neglectful in failing to detect the abuse at an earlier point in time.  Based on her life experiences the Mother felt the family should be reunited and get on with their respective lives.  The Mother now accepts that this attitude was not appropriate.

    ii)I have read the Police file on the mother’s husband.  I am not satisfied he would be a positive influence in the daughter’s life and would be reluctant to make any Order where the child came into contact with either of her brothers or the mother’s husband.

    iii)It is concerning that when the mother’s husband was sentenced to the term of imprisonment as I understand the evidence the Mother was at that time living in the P area in reasonable proximity to where the daughter was residing.  The Mother elected to move to G presumably to be closer to her husband so she could visit him.  Of necessity this made her visits with the daughter more difficult.

    iv)The Mother is unable to conceive the child could benefit from not seeing her.  She doesn’t appreciate the connection in the child’s mind that it was whilst in the Mother’s environment she was abused even though it was not the Mother’s fault.  I am satisfied there were other aspects of the Mother’s chaotic household which has resulted in anxiety for the daughter.

    v)The Mother perceives that Ms F is biased against her because she made a complaint to DOCS about Ms F.

    vi)I am not satisfied that the complaint of bias has any merit but I accept that the Mother perceives this to be the case.  Fortunately for Ms F her views are fully supported by Mr L who was undoubtedly independent.

    vii)The Mother does have a tendency to blame others.  She sees professionals who have been engaged in the proceedings as either inept or biased against her.

1. At the mention of this matter later this month I will consider whether it is appropriate for visits between Mother and the daughter to be reinstituted and if so, the nature and duration of same.

2. If visits are to take place it would seem preferable that the visits occur at the T Contact Centre.  Enquiries could be made in this regard as to availability.  The Contact Centre could be fully briefed on the background of this matter including being supplied with relevant reports or other Court documents.

3. For the reasons given I will not make any further Order at this point in time other than to adjourn the matter to 9.30 am on 17 May 2007 at L.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  11 May 2007

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