Hammond and Hammond (No 2)
[2014] FamCA 577
•16 July 2014
FAMILY COURT OF AUSTRALIA
| HAMMOND & HAMMOND (NO 2) | [2014] FamCA 577 |
| FAMILY LAW – CHILDREN – Final Parenting Orders – where the mother seeks sole parental responsibility of the child, the child live with her and spend supervised time with the father – where the mother alternatively seeks that the child live with the maternal grandparents and spend supervised time with her - where the father seeks sole parental responsibility of the child, the child live with him and spend no time with mother - where the mother has ongoing concerns that the child has been sexually abused by the father – where it was found by the previous trial judge that the allegations of the mother were unfounded and inappropriate - where the child’s step brother is found to have touched the child in a sexually inappropriate manner on more than one occasion – where it is found that there is no unacceptable risk that this behaviour has occurred since 2010 or will occur in the future – where the Independent Children’s Lawyer seeks that the father have sole parental responsibility, the child live with the father and spend no time with the mother – where father is found to be sensitive to the child’s needs and is able to prioritise her needs – where there was no concerns raised by the family consultant during observations of the child and father - risk of harm to the child – where serious concerns are raised in the Family Report as to the child’s care in the mother’s household – where the child was found by the family consultant to be frightened of the mother– where the family consultant found that positive interaction between the child and the mother was lacking - where the independent children’s lawyer submits the child’s chances of having a meaningful relationship with the mother are minimal – where the mother has breached orders without reasonable excuse in the past –– where an order is made that the father have sole parental responsibility for the child, the child live with him and spend no face to face time with the mother except on one occasion every three months supervised at a contact centre – where an order is made that the child may have communication with the mother via email or text supervised by the father – where at the father’s discretion the child is permitted to have Skype or telephone communication with the mother supervised by the father – where no restriction is made upon the child and step brother spending time together save that the father or a responsible adult is present and the child and step brother do not sleep together – where the father has given assurances that he will continue to facilitate the child having a meaningful relationship with the maternal grandparents. FAMILY LAW – APPLICATION IN A CASE – Where the mother made an application for exclusion of the family report – where the basis of the application was that the family consultant did not have an appropriate qualification to express the opinions and make the recommendations contained in the family report - where that application was dismissed – where the family consultant’s experience and training were found to qualify the family consultant to express opinion and make recommendations about the child. |
| Family Law Act 1975 (Cth) |
| Baker v The Queen (2004) 223 CLR 513 Slater & Light (2013) 48 Fam LR 573 |
| APPLICANT: | Ms Hammond |
| RESPONDENT: | Mr Hammond |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Naidovski |
| FILE NUMBER: | PAC | 1867 | of | 2008 |
| DATE DELIVERED: | 16 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 12 - 16 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Merkin |
| SOLICITOR FOR THE APPLICANT: | Kim Eccleston Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Weaver |
| SOLICITOR FOR THE RESPONDENT: | Lamrocks Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Devere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
All previous parenting orders are discharged.
The father have sole parental responsibility for the child A born … 2005 (“the child”).
The child live with the father.
The child have no face to face time with the mother except on one occasion every three months at a child contact service (“the contact centre”) to be nominated by the Independent Children's Lawyer and to be a centre which is both available and is as close to where the father lives as is possible, for a period of two (2) hours (or longer than two hours if the contact centre can facilitate a longer time) at dates nominated by the contact centre.
Each party shall:
5.1.Contact the contact centre within 7 days and arrange an appointment for assessment for suitability for supervised time;
5.2.Attend the assessment;
5.3.Comply with any appointments made by the contact centre for supervised time;
5.4.Comply with all reasonable rules of the contact centre;
5.5.Comply with all reasonable requests or directions of the staff of the contact centre.
If after the assessment intake procedure the contact centre is unable or unwilling to provide supervision of time as set out in order 3, then each party has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
The mother’s time with the child shall not take place at any of the following times:
7.1.On Father’s Day between 9.00 am and 4.00 pm;
7.2.From 3.00 pm Christmas Eve until 3.00 pm Christmas Day commencing in the year 2014 and each alternate year thereafter;
7.3.From 3.00 pm Christmas Day until 3.00 pm Boxing Day commencing in the year 2015 and each alternate year thereafter.
The parties keep each other informed of their current residential address and emergency telephone number and advise each other of any changes to those details 48 hours prior to any change.
The father shall ensure there is a photo of the mother prominently placed in the child’s bedroom at all times.
The father shall provide to the mother recent photographs of the child at least once every three months and to that end the mother shall provide to the father her current mailing and email address.
The child may have electronic communication with her mother, with the child being able to email or text her mother under the father’s supervision when the child requests to do so and the father may from time to time allow the child if she requests it and, if he believes it is in her best interests, to have telephone or skype communication with her mother under the father’s supervision.
The parties do all things necessary and sign all documents necessary to allow for the school to which the child attends to provide to both parents, upon their individual requests, copies of all school reports, newsletters, notices and other information relating to school activities or relating directly to the child.
The parties are restrained from denigrating the other parent or that parent’s extended family or a member of that parent’s household in the presence or hearing of the child and they must each take all reasonable and proper steps to not expose the child to any situation where a third party seeks to denigrate the other parent or that parent’s extended family or a member of that parent’s household whilst in the presence or hearing of the child.
The mother shall be at liberty to send presents or cards to the child and the father shall provide these to the child unless the father decides they are inappropriate in nature. For the purposes of this Order the mother shall arrange such presents or cards to be provided to the father via the maternal grandparents and then provided to the child by the father.
The parents shall communicate with one another in relation to any issues regarding the child by way of email except in the case of any emergency and in circumstances of an emergency the parents shall communicate by way of SMS text message or telephone call and for the purposes of this Order the parents shall provide one another with their current email address and provide notice to one another within 72 hours of any change to that email address.
I note the father’s assurances that he will facilitate the child having a continuing meaningful relationship with the maternal grandparents.
No order is made that would restrict the ability of the parents to vary these orders in the future by a parenting plan.
There be no restriction upon the child and P spending time together, save that the father or a responsible adult shall be present and the father is to ensure that the child has independent sleeping arrangements and that the child and P do not sleep together, including upon a lounge.
Pursuant to s.65DA(2) and s.62B, 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.
I request the Registrar forward a copy of these Reasons for Judgment to the Chief Executive Officer of the Bar Association of Queensland, drawing paragraphs 265 to 273 to her attention.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hammond & Hammond (No 2) 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 SYDNEY |
FILE NUMBER: PAC 1867 of 2008
| Ms Hammond |
Applicant
And
| Mr Hammond |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is the second final hearing that the parties have had in relation to the parenting of their child A (“the child”). The mother continues to hold a belief that the child has been sexually abused by the father in the past. The focus of this hearing was the continuing high parental conflict; the mother’s reluctance to comply with the parenting orders of this court; and occasions where the father’s son from another relationship, P (“P”), then aged 9, touched the child, then aged 5 years, in a sexualised way on occasions over a period of three months, whilst they both were in the father’s care.
The family consultant recommends that one of the parents become the primary care-giver and once that choice is made, the child spend little or no time with the other parent.
APPLICATIONS
The orders sought by the mother and father at the commencement of the hearing in respect of their respective proposals for the child are set out at Schedule 1.
The father’s preferred proposal was that the child live with him and spend no time with the mother. The father initially proposed that failing an order that the child spend no time with the mother, the child spend time with the mother each Sunday from 2.00 pm until 5.00 pm supervised by the maternal grandparents. However, in final submissions the father withdrew that alternate proposal and simply stated that he wanted the child to spend no time with her mother.
The mother’s proposal is that the child ordinarily live with her and spend time with her father at a child contact centre.
During final submissions, counsel for the mother suggested a number of alternative proposals which had not been the subject of any ventilation during the hearing:
6.1.Firstly, that as an alternative to a contact centre on an extended basis, the father have supervised time with the child for a period of six months and have therapy in relation to dealing with “proper boundaries with the children” by completing the higher levels of a Triple P Parenting Course. The proposal in relation to supervision of time with the father was to be either at a contact centre or at the paternal grandparent’s house or “any other alternative”. The part of the mother’s alternate proposal that the paternal grandparents supervise the father is curious given the mother’s belief that in the past the father sexually interfered with the child whilst his parents were present.
6.2.In the event the court did not make an order that the child live with the mother, she proposed that the child live with the maternal grandparents from Thursday to Monday every week and the mother spend time with the child at the maternal grandparents’ home during these times and holiday times.
6.3.A further alternative suggested by counsel for the mother in final submissions was that the mother reside with her parents and that the child live with the maternal grandparents and the mother from Thursdays to Monday in every alternate week and the child spend half school holidays with the mother and maternal grandparents at their house.
Counsel for the independent children’s lawyer ultimately made submissions to the effect that the child have no face to face time with her mother; the father have sole parental responsibility, the child live with the father, and an order be made that the child and P do not sleep in the lounge together when both in the father’s care.
DOCUMENTS RELIED UPON
The documents relied upon by each party are set out in Schedule 2.
RULES OF EVIDENCE
Subsection 69ZT(1) of the Family Law Act 1975 (Cth) (“The Act”) provides that in child-related proceedings, particular usual rules of evidence do not apply. Subsection 69ZT(3) of the Act provides that despite ss 69ZT(1), the court may decide to apply one or more of the rules of evidence to an issue in the proceedings if the court is satisfied the circumstances are exceptional and after various matters are taken into account.
In the context of this case, in relation to the issues dealing with sexual abuse, given their importance to the possible outcome, I ruled that these issues were sufficiently exceptional in the way the word was used by Callinan J in Baker v The Queen (2004) 223 CLR 513, so that the rules of evidence otherwise excluded by ss 69ZT(1) of the Act would be applied. Having made that ruling, there were very few objections to evidence made by either party or the Independent Children's Lawyer.
SHORT HISTORY
The father was born in 1971 and is currently 42 years of age.
The mother was born in 1973 and is currently 41 years of age.
The father’s son from a previous marriage, P, was born in 2001 and is currently 13 years of age.
The parties commenced cohabitation in late 2001 and married in 2004.
The child A (“the child”) was born in 2005 and is currently 9 years of age.
The parties separated on a final basis on 11 April 2008.
A final hearing in respect of competing parenting proposals regarding the child was heard before Justice Young between 6-9 April 2010 and final orders were made on 9 April 2010. The reasons for judgment were delivered on 3 May 2010.
CREDIT
Mother
There are a number of parts of the evidence where the mother’s version is inconsistent with other evidence or documents.
The mother in cross examination downplayed any suggestion that she yelled at the child. That evidence is inconsistent with the child’s statements to her therapist. The maternal grandfather in fact confirmed that the mother, even in the confines of a three hour supervised contact visit this year, shouted and yelled at the child.
During cross examination, the mother was asked questions about records from the B Family Practice from 12 September 2012. In order to appreciate the nature of the mother’s response, I set those records out in full:
Wednesday September 12 2012 11:54
Practice Manager – Ms N
[Ms Hammond] phoned today to make a complaint about negligence of the Practice and a Dr in relation to her daughter. At a recent apt with [Dr O] her daughter presented with bleeding from the anus and a red vagina after a visit with her father. [Dr O] apparently notated event as wiping too hard after toileting. [Ms Hammond] claims this should have been reported to DOCS as a duty of care. She also claims that she has already left numerous messages for the Manager to call her back in relation to this – today was the first message I recall receiving. I apologised if this was not the case and she was very abusive, swearing and shouting. [Ms Hammond] also was requesting copies of both her daughter and herself’s Medical Notes in relation to the above incident for Court. I advised that I will need the request in writing and generally we did not release notes to patients except under Subpoena or in consult with a Dr.
[Ms Hammond] blames the Practice and [Dr O] for her current situation with work, home and her daughter. She claims that everyone thinks she is a “crazy woman” in relation to sexual abuse claims against her daughters father.
When I asked [Ms Hammond] to calm down and stop swearing/shouting she said I was “Attacking her” – which iwas not. [sic]
Conversation ended with her hanging up on me saying she was “going to throw herself off a bridge”.
Wednesday September 12 2012 12.20
[Dr T]
Noting that I was doing some paper work at opposite desk and at all times [Ms N] spoke in a very calm and non-threatening empathic manner. She was in no way obstructive to [Ms Hammond] whose voice I could hear yelling + [Ms N] apologised. What [Ms N has documented is what I heard her say.
Wednesday September 12 2012 12:49
Receptionist – Ms R
12/9/12 Pt rang today & demanded to see a Dr as she said her daughter had been sexually abused & she needed to see Dr to get a sedative – I explained to her that Dr couldn’t give any councelling (sic) today & that he would only be able to prescribe something to calm her down & that she could make app with HS for dbl app when HS next available – never turned up for app today – spoke to her very calmly & she seemed ok when I hung up!
Wednesday September 12 2012 13:46
Dr O
Re last few PHONE CALLs documented. Distressed re recent events and family reports and court cases. Feels she is not being heard and has to vent to someone – happens to be us. Would like copy of my notes from 13/6/2h3n I saw [the child] but made a note regarding her distress.
Not suicidal - - just wanst to get away from all the stress. (sic)
When asked about this series of phone calls, the mother stated she did not recall making the phone call to the receptionist about a sedative and indicated “perhaps someone else called claiming to be me. It’s not impossible.” She then said she could not have called about counselling because she was receiving counselling from Ms U at the time. When I asked the mother if she seriously thought someone called and pretended to be her on all three occasions, the mother said it could not have been her who called and only remembered calling about getting her medical records for her solicitor. I then confirmed with the mother and she agreed that it was her belief that some woman had called the medical practice which she normally attended, pretending to be her with sufficient knowledge about herself, and the court case, to be able to provide the content recorded in her medical notes. The mother did not accept the contention that she may have been so upset on that day that she did not remember making the phone calls and saying the things that were recorded.
The mother further indicated that it seemed strange to her that the notes were taken by a receptionist and practice manager, as in her view, “that is not the protocol” at the surgery. The mother also doubted Dr T had heard the conversation as the mother was certain there was no desk opposite the practice manager at the surgery.
I accept what is in the subpoena notes as being an accurate recount of what happened on that day and as a consequence I have no confidence in the mother’s version as to what her interaction was with the doctor’s surgery on that day.
Also to the mother’s potential discredit was the fact that, on the third day of the final hearing, she sought, and was granted leave, to file an affidavit in which she attempted to bring into question the motivation of the practice manager. The affidavit asserts that the practice manager had made a false entry in the medical notes, motivated by previous friction between her and the mother four years prior, in which the practice manager was a tenant and the mother was fulfilling the role of property manager in relation to that tenancy. I find the mother’s evidence about the motivation of the practice manager to be fanciful. The practice manager noting that the mother made some threat in terms of self-harm in the first telephone conversation, is consistent with the concern by Dr O in the third conversation to make some assessment as to whether or not the mother was suicidal. I find Dr T overheard the conversation between the practice manager and the mother and verified by way of a separate note the practice manager’s version of what happened in the interaction between the mother and the practice manager. The mother’s supplementary affidavit only underscores the extent to which her denial in relation to these calls reflects poorly on her credibility. The mother’s explanation that somebody was impersonating her borders on the bizarre and was a device to avoid answering questions arising from the notes produced by the mother’s doctors. In the context of other comments I make in these reasons, it is of concern that this affidavit has been prepared, settled and witnessed by counsel for the mother and when assessing the mother’s credit, I do not place any great weight upon the fact that the mother sought to rely upon this affidavit.
The mother’s explanation as to why the child did not see her father on 10 April 2013 was also unconvincing. The child was due to be with her father at 4 pm on her birthday but the mother took the child to the doctor at about 3.30 pm (in circumstances more fully discussed below). Despite the medical appointment finishing at 3.42 pm (as indicated by the medical records) the mother said she would not have been able to make it to the father’s residence by 4 pm and for that reason she did not make the child available for time with her father on her birthday. The mother later conceded that she may have been able to arrive by 4.30 pm but did not as she “thought if [the father] was interested in seeing [A] he would have come to the doctor’s surgery”. I find that that is a totally disingenuous response given that the mother did not make the child available to be with her father for the next two months.
The mother said that she and the grandparents had an arrangement whereby during the supervised contact visits she would not provide discipline to the child but rather the maternal grandparents would. The maternal grandfather said he did not know anything about that arrangement and I accept from what he said that there was no such arrangement.
The mother received a medical certificate from her doctor that allowed her to not seek employment and retain Commonwealth benefits for a period of three months. That medical certificate was granted to the mother on the basis of her suffering from anxiety. The mother denied that she was suffering from any anxiety and said it was simply something written by the doctor to enable the mother to maintain her Centrelink benefits. I have difficulty accepting that the mother did not present to the doctor as being anxious and tell the doctor that she felt anxious in order to obtain the medical certificate.
The mother asserted that at the conclusion of the interviews for the family report, the child went home with her because she didn’t want to go home with her father and was very clingy with her mother. The mother said the father had agreed for the child to go home with her. I do not accept the mother was being truthful when she gave that evidence. The family consultant and the father both gave evidence that at the end of the interviews there was a discussion as to with whom the child would go home with and the child said she would like to go home with her father. The mother was not able to accept that decision on the day, nor has she been truthful about how it was that the child was taken home by her. Similar situations arose at school on 12 April 2013, and again on 2 and 3 May 2013 when the father expected to have the child come home with him and the mother took the child home instead.
The mother has some entrenched attitudes and beliefs in relation to the risk the father poses to the child and what he has done to the child in the past in terms of sexual interference. Although, the mother generally attempted to be responsive to questions that she was asked, it was apparent that those attitudes and beliefs affected how the mother perceives and remembers certain events.
Father
No submission was made by counsel for the mother that the father’s credit should be impugned in any way. The father readily made concessions against his interest. Overall he answered questions succinctly and without undue hesitation. I had no reason to doubt any of the evidence that the father gave. The father seemed generally mortified by the allegations that had been made against him and the very difficult situation that the child is in as a result of the conflict that exists between the two parties on a continuing basis.
Conclusion about the credit of the mother and father
Where there is a conflict in the evidence of the mother and father (unless I otherwise indicate), I prefer the version provided by the father.
Mother’s father
The mother’s father gave his evidence in an impressive and straightforward manner. He conceded that on occasions whilst the child has been supervised under the orders of December 2012, the mother has shouted. In answering a question to the effect, “what’s your daughter done wrong?” he said “she has shouted at the little girl, other parents do shout at their children”. He confirmed this did occur during supervised time. In answering another question from the independent children’s lawyer, the mother’s father again confirmed “yes she does yell.”
P’s mother
The mother called P’s mother, Ms G, as her witness.
Ms G accepted that her complaint that the father had refused to complete paperwork required to change P’s surname “to the present time”, overstated her concern given that the last time she had raised the issue with him was in 2004. Also, Ms G explained that her evidence that P was often aggressive towards her following contact visits with his father was her assertion as to what was happening between 2002 and 2006 and should not be read as evidence of the current position. Also when Ms G was asked about her evidence as to how regularly the mother, the child, P and herself saw one another she changed her written evidence from weekly or fortnightly since April 2008, to monthly.
Although Ms G and the father have a working relationship as parents in relation to P, it is clear that Ms G does not like the father. She holds the belief that the father is responsible for the circumstances that occurred between P and the child, due to lack of supervision or vigilance on his part.
CHRONOLOGY
The father was born in 1971 and is currently 42 years of age.
The mother was born in 1973 and is currently 41 years of age.
The father’s son from a previous marriage, P, was born in 2001 and is currently 13 years of age.
The parties commenced cohabitation in late 2001 and married in 2004.
The parties’ child A was born in 2005 and is currently 9 years of age.
The parties separated on a final basis on 11 April 2008.
A final hearing in respect of competing parenting applications regarding the child was heard before Justice Young between 6 and 9 April 2010 and final orders were made on 9 April 2010. The reasons for judgment were delivered on 3 May 2010.
P touched the child in sexualised play over a three month period between September and December 2010. Although the mother’s evidence is confusing, it is likely that the mother was aware of this happening during that period and she spoke to the child about how to handle it, but P’s behaviour persisted.
On 5 January 2011 the mother spoke to the father on the telephone and expressed concern that P may have inappropriately touched the child. The father had a conversation with P who explained that he had touched the child on the chest area and the front of her genital area with his hand. The father explained to P that this type of touching was inappropriate and wrong.
The parties first communicated face to face on 7 January 2011 regarding this touching. The father expressed his intention to further speak to the child about the incident, and P’s mother and school, and would let the mother know the outcome.
On 9 January 2011 the father confirmed with the mother that after speaking with the child, her version of the incident corresponded with what P had said, and that the father would now take this up with P’s mother.
In later January 2011 the mother advised the father that the child would not be spending time with him during the holidays.
In Term 1 of 2011 the child spent time with the father each alternate weekend and on Friday overnight in the alternate week. P was in the father’s household at the time.
The father met with P’s teachers on 10 February 2011 to discuss P’s behaviour towards the child and request their assistance. P was spoken to by a teacher in the father’s presence.
The mother travelled to Country V between 7 March and 27 March 2011 and the child was cared for by her father and maternal grandparents during this time.
In April/May 2011 mediation took place and a s 60I certificate was given.
Notwithstanding court orders, the mother did not allow the child to spend time with her father during the Term 1 or Term 2 School holidays in 2011.
The father filed a contravention application on 15 July 2011.
On 9 August 2011 a school teacher reported that the mother told her that on 8 August 2011 the mother had a conversation with the child when the child was in the bath. The mother is said to have videoed the child demonstrating a game named “spider” where P crawls his hand along and then grabs the child’s genitals and breasts very hard. The video was not in evidence.
The mother says that on 17 August 2011 she asked the father whether he knew about the “spider game” and he responded by telling her to contact his lawyers.
On 6 October 2011 the mother spoke with the child in the bath about the time her father put so much cream on her vagina with a cotton bud that it ran out (see pages 17-19 of exhibit 21).
A was interviewed by JIRT on 7 October 2011. This interview was recorded on video (Exhibit 21).
Later on 7 October 2011, the father was contacted by JIRT requesting that he provide an undertaking to “vigilantly watch the children when in his care” to which he responded he would.
The mother filed a Notice of Abuse on 14 October 2011.
The mother did not facilitate the child spending time with the father in the Term 3 school holidays in 2011.
The father filed an amended contravention application on 2 November 2011.
The mother filed the initiating application currently before the court on 11 November 2011. Section 60CC(2A) of the Act does not apply to this application.
A contravention hearing took place on 25 November 2011 before Halligan FM (as his Honour then was). The mother was self-represented. The mother was found to have contravened the orders without reasonable excuse. The mother was placed on a 12 month bond imposed on 12 March 2012.
The mother says during 2012 the child provided her with more details about the “spider game”, but as discussed below, I have not accepted the mother’s evidence about this.
The child responsive memorandum was released by the family consultant, Ms F, on 31 August 2012.
The mother arranged for the child to commence counselling with Ms X in November 2012. This was done without consulting the father and he did not agree with the child being counselled by Ms X.
On 15 November 2012 the father says when the child spent time with him she told him that the mother had been yelling really loudly at her and scratched her on the leg. At bedtime the child became aggressive and pressed her forehead up against the father (like she had indicated her mother had done to her earlier) and said “don’t you tell me what to do” and “would you be happy if I killed myself?” She then approached the kitchen drawer. The father was able to stop her and calm her down.
The bond imposed upon the mother by Halligan FM expired on 12 March 2013. Between 6 April 2013 and 20 June 2013 the mother did not make the child available to spend time with the father (including on the child’s birthday).
The father attended the child’s school on 31 May 2013 to have lunch with her.
On 5 May 2013 the father says the child spoke with him over the phone and advised she wanted to come over and that she was missing the father and P.
On 6 June 2013 the mother took the child to see Dr T following the child crying and saying she didn’t want to go to school on 1 June 2013. The note from Dr T indicated the child “feeling stressed out, very very sad, couldn’t stop crying and didn’t know what to do or say. Her teacher told her she was to go with her father. Her father had come to school and had lunch with her. Principal walked the child and mother to car. Defecated while waiting”.
On 17 June 2013 Orders were made by consent for time between the Father and the child and that P would not spend time with the Father at the same time as the child. The consent orders also appointed Dr E as Single Expert to prepare a risk assessment in relation to the father.
On 20 June 2013 the mother alleges the child displayed some overtly sexualized behavior which she linked to her father. As indicated below, I have not accepted her evidence about this.
On 5 August 2013 the Single Expert Report by Dr E was released. During the hearing, counsel for the mother attempted to undermine the opinions expressed in that report which were favourable to the father.
The father attended the Triple P parenting program between 28 and 30 October 2013.
On 11 November 2013 the parties attended for the Family Report interviews.
On 18 November 2013 the mother says the child told her she knew what a “willy” felt like and that she had felt P’s “willy” during the spider game. As indicated below, I have not accepted the mother’s evidence about this conversation.
On 21 November 2013 the Police attended the mother’s home and conducted a welfare check.
A Family Report was prepared by Ms F dated 25 November 2011. Ms F recommended that, subject to any adverse findings made at the trial against the father, he have sole parental responsibility, the child live with the father, that the child’s time with the mother be a matter for consideration by the court and that the child engage with a psychologist (with Dr D being recommended). There was to be no stipulation that the child and P are not able to spend time together.
Also on 25 November 2011 the mother says the child told her she “had a big fight with dad last night and I bit him on the arm so [he] locked me outside the house and I was wearing only my undies.”
On 29 November 2013 orders were made in Chambers that the child be delivered to the child care section of the Registry on 17 December 2013.
An interim hearing took place before Justice Hannam on 17 December 2013. The mother’s Application in a Case filed 4 December 2013 seeking that Justice Hannam disqualify herself was dismissed. The Family Report was released to the parties at court and the father made an oral application seeking that the child live with him and spend supervised time with the mother. Interim orders were made providing that the child spend that night with the Father and the matter was adjourned to 19 December 2014 for judgment.
On 18 December 2013 Interim Orders were made providing that the child reside with the father and spend time with the mother supervised by the maternal grandparents.
A attended her first appointment with her current therapist Dr D (as recommended by the family consultant) on 16 January 2014.
The mother filed a Notice of Appeal on 24 January 2014 with respect to the Interim Orders of Justice Hannam made 18 December 2013. Justice Ainslie-Wallace allowed the appeal to be filed out of time on 10 February 2014.
On 17 February 2014 the mother filed an Application in a Case seeking to stay the Interim Orders of 18 December 2013 and again sought an order that Justice Hannam disqualify herself.
On 21 February 2014 Justice Hannam dismissed the application to stay the Interim Orders and the disqualification application was adjourned to a date following the appeal.
On 23 March 2014 the appeal was heard before the Full Court of the Family Court. The mother withdrew her appeal on the basis that the Final Hearing was expedited to May 2014 before a judge who was available to hear the matter at that time.
JUSTICE YOUNG’S JUDGMENT IN MAY 2010
This matter came before his Honour Justice Young for a final hearing between 6 and 9 April 2010. The central focus of this hearing was seven allegations made by the mother against the father that he had sexually abused the child. His Honour accepted the father’s evidence and his denial of the allegations, and accepted that the Department of Community Services and JIRT properly concluded that there was no evidence to continue investigations. He further found that the concerns and allegations of the mother were unfounded and inappropriate. His Honour found that there was no physical or other risks to the child with the child staying overnight with her father and his extended family.
His Honour, in determining the primary considerations under s 60CC(2), found that the child was not at any risk of abuse, neglect or family violence and that each of her parents were wholly devoted to her and her wellbeing. It was not established that exposure existed as to harm or neglect in either household. To the extent there was violence prior to the separation of the parents, his Honour was satisfied that it was all in the past and was most unlikely to occur again given the physical separation of the parents.
His Honour noted the high level of inter-parental conflict and that the parents needed to change their outlook and attitude to each other and commence to co-operate and communicate in a meaningful way.
His Honour found that the mother had a very clear tendency to blame others for issues that developed beyond her control, which were not her personal choice or to her benefit. His Honour’s primary criticism of the mother was her unfounded, unsubstantiated and false allegation of sexual impropriety by the father. He noted that her responses during cross examination merely highlighted her lack of maturity and responsibility and showed a lack of insight reflecting a lack of parenting skills.
At that final hearing before Justice Young, counsel for both parents expressed a view, endorsed by the Independent Children’s Lawyer that the conclusion of these proceedings and final orders would most likely lead to an improvement in the relationship between the parents and thus more child-focussed communication. This improvement has not happened.
His Honour was reluctant to dispense with the communication book as a valuable means of communication, or of recording information to the benefit of the child. However, he followed the wishes of the parties and the Independent Children's Lawyer and no ongoing order was made for the parties to use a communication book. His Honour observed that if problems in communication arise, then the parties should return to the position of recording the child’s issues and requirements in such a communication book.
His Honour made a finding that it was in the child’s best interests to attend S School. The child had maintained a peer group at pre-school, many of whom were to join her at that school the following year.
His Honour found that the parents should have equal shared parental responsibility for the child but that there must be a very clear focus and demarcation as to when the child was to live with the mother and spend time with the father. His Honour at an early stage of the hearing did raise with counsel whether it would be best for the child to spend equal time with both her parents. His Honour assessed the character and personality of the parents and all of the evidence, and although his Honour felt it reasonably practicable to provide an equal sharing of time with the child between the parents, he ultimately concluded that it was in the best interest of the child for orders to be made that she live with the mother and spend substantial and significant time with the father. His Honour stated:
whilst both parents have a loving bond and relationship with [the child], the reality of the facts of this case, for all of the reasons earlier considered, is that [the child] has over the past two years spent the very substantial majority of her time with her mother or within the care and responsibility of the mother. She has blossomed in her physical and emotional development and whilst the father has had significant and meaningful impact on the hours when [the child] has been within his supervised daytime care, I nevertheless conclude that the stability of her home situation and her bond with her mother and all of the lifestyle, preschool and other influences of her current life situation support the orders I have pronounced.
His Honour provided that having found that the allegations of sexual abuse were unfounded, and with final orders pronounced, there was no reason for the mother to have any ongoing concern of the relationship of child and father, and his Honour concluded that on balance the mother would likely display a willingness to foster that parental relationship. Unfortunately that willingness has proved to be wanting.
RICE v ASPLUND
Neither party nor the Independent Children's Lawyer made any submission in respect of the principles set out in Rice v Asplund (1979) FLC 90-725 (and the cases which have followed it). There is no difficulty in finding significant changed circumstances since Justice Young made his orders. There has been a deterioration in the relationship between the child and her mother; there has been contraventions of orders by the mother; the incidents involving P have taken place; the child (admittedly pursuant to interim orders) currently ordinarily resides with her father and spends limited and supervised time with her mother. Both parties and the Independent Children's Lawyer seek that the orders of Justice Young be varied. Nobody suggested that it was not in the child’s best interests to revisit the orders that were made by Justice Young in May 2010.
MOTHER’S ONGOING CONCERNS ABOUT RISK OF THE CHILD BEING SEXUALLY ABUSED WHEN WITH THE FATHER
The spider game
It is an agreed fact that P on more than one occasion inappropriately touched the child in a sexual way. The mother has created considerable confusion in the way that she has presented her evidence in respect to her knowledge about P’s interference with the child.
It is best if I attempt to set out the objective evidence and the evidence from the father which I accept, in an attempt to make some sense of the mother’s evidence. I will record the evidence chronologically. The sequence of events, as I have found them, has already been outlined in the chronology.
In the father’s affidavit filed 9 December 2013 he gave the following version of what happened from 5 January 2011 onwards. What he said was not challenged:
On 5 January 2011, I rang to speak with the child in accordance with the Final Orders and when I had finished speaking with the child, [Ms Hammond] came on the phone and said to me words to the effect of “[A] has told me that [P] made her pinky swear not to say anything about inappropriate touching. I am concerned that [P] may have inappropriately touched the child.” My first reaction, given the history of these proceedings, was that [Ms Hammond] was trying to make trouble and I recall expressing this sentiment to [Ms Hammond] during the telephone conversation before she terminated the call.
…Following my conversation with [Ms Hammond]…I spoke with [P] and he explained to me that he had touched the child on the chest area and the front of her genital area with his hand. I explained to [P] that this type of “touching” was inappropriate and wrong. During this conversation with [P] he also told me that he had received a sex education talk from [Ms Y] at his school.
On 6 January 2011 I sent a text message to [Ms Hammond] which said words to the effect of “Will you have time to speak with me for a bit at the drop off tomorrow?”
On 7 January 2011 I spoke with [Ms Hammond] at changeover while [the child] and [P] played on some swings nearby but out of earshot. I said to [Ms Hammond] words to the effect of “I have spoken with [P] and he has confirmed with me that he did play an inappropriate touching game with the child. I have spoken to him about his behaviour and made it clear to him that it is unacceptable and wrong. I will also have a chat with the child about this. I also plan on talking to [Ms G] [P’s mother] and [P’s] school. I will let you know the outcome.”
…
On 9 January 2011 I sent [Ms Hammond] a text message to the following effect: “Nothing to worry about now. Spoken with [the child] and it fully corresponds with what [P] said. He was telling the truth. I will be taking this up with [Ms G]”. [Ms G] is [P’s] mother. I spoke to [Ms G] who accused me of abusing the child and using ]P] to cover this up. [Ms G] indicated that she did not want to follow this up further with [P].
I also felt it appropriate in the circumstances to have a meeting at [P’s] school…with [Ms Y] to discuss what had happened between [P] and [the child] given that this incident had occurred after [P] had been given a child protection/sex education lesson at school.
On 10 February 2011 I had an appointment to meet with [Ms Z] and [Ms Y] from [P’s] school to discuss [P’s] behaviour towards the child. [P] was given a further talk from [Ms Y] with me present to help him understand that his behaviour was unacceptable and that there would be serious consequences if he continued.
Ms G complained about the school becoming involved without her knowledge and said that P was very upset that his father had said to him in front of his teacher words to the effect “If you were older you would go to gaol”.
In paragraph 26 of the mother’s affidavit filed 12 December 2013, she annexes what she says is a true and correct copy of a letter that she wrote to the father dated 14 February 2011. That letter deals with a range of matters including the father’s complaints about phone communication between he and the child; the mother’s difficulty with child support; assertions of inappropriate behaviour towards the mother’s father; asserted breaches by Mr Hammond in returning the child late from the child’s time with him; concerns about the child becoming increasing defiant and her being dressed inappropriately by her father. There is also a section half way through the letter entitled “concerns regarding adequate supervision”. There the mother writes as follows:
During our recent phone conversation I raised concerns relating to [the child] being supervised by others while you go to work. You confirmed that you would continue to go to work and have the children minded by other family members. My recent concern came from admissions made by [the child] that [P] had touched her private parts, [the child] then became distressed and said she had pinky-swore promised [P] she would not talk about it. When I first approached the child’s versions of events with you on the phone at Christmas time, your response was initially to blame me for “making up stories and playing games”. I was then surprised by your follow up txt & was grateful we could combine as parents &discuss the matter further when I delivered the child to you at [AA Street]. Realising the importance of us both handling the matter appropriately & with the correct perspective of age for such a sensitive influential issue.
I was encouraged by the fact that you had discussed what had happened with [P]. I haven’t spoken to [P] about [sic] myself at all about the matter and understand from your discussions with him that he confirmed that what the child said was true.
My concerns come from the fact that you make statements of guarantees that the child will be safe in your care in the future and this kind of thing will not happen again, however I suggest the only way that be possible is if YOU personally are present when she is ‘in your care.
During Term 1 2011 the child continued to spend time with the father in accordance with the Final Orders, for five periods of overnight time per fortnight. Throughout term 1 [P] and the child’s weekends with the father did not correspond however they would both be in the fathers care overnight each alternate Friday, as the child would spend overnight time with the father each Friday night.
In the lead up to the commencement of the term 1 holidays, the mother communicated with the father that she would not be complying with the court orders that required her to send the child for holiday contact with the father. The father asserts that the mother said to him “[P] abused the child! Your ability to supervise the children is questionable”, “[A] is not safe in your care” and “[A] is not fed properly and you cannot keep her nit free.”
The mother did not allow the child to spend time with her father during term 1 school holidays in 2011, notwithstanding the order for the child to do so.
During term 2 2011, P and the child spent time with the father on the same weekends each fortnight and continued to spend time in the father’s household together on corresponding weekends until in or around April 2013.
The mother did not allow the child to spend any time with her father in the term 2 school holidays in 2011.
The father filed a contravention application on 15 July 2011 after the term 2 school holidays.
The documents produced by the Department of Family and Community Services (“DoCS”) (Exhibit 11; pages 32 to 33) contain a record created by Ms BB on 9 August 2011. That is the record of a telephone call made by the child’s teacher to DoCS on that day. The teacher records that the child’s work had regressed and that she could not focus or remember things at school. The teacher stated that in relation to this concern:
The teacher spoke to the mother and the mother disclosed some concerns regarding alleged past trauma to [the child], the mother also went on to state to the teacher that there had been ongoing long term litigation between herself and the father regarding [the child].
The mother stated that when [the child] was staying with her father’s family at Christmas, the mother alleged that the father’s family seem to be having an unnatural interest in [the child’s] genitals. Caller could not specify how the mother came to this conclusion. The mother stated that she was concerned enough to stop contact for the remainder of the school holidays, however then immediately resumed alternate weekends with the father without any further issues.
Caller stated she then organised a meeting between herself and the mother because the caller stated there seemed to be long standing issues in the family which did not make sense. Caller advised she spoke to the mother today and the mother reiterated her concerns of the unnatural attention on the child’s genitals in the father’s family. The mother alleged that the child was asked to lay on the bed and given a lollipop and told to spread her legs. Unknown who asked this of her, unknown if there was any penetration, unknown the context of the alleged act, unknown time frames. Unknown if the child directly disclosed this and if so when.
The mother also stated to the caller that the step brother named [P] (aged 10) allegedly asked the child to touch her genitals and she touch his, it is unknown when this actually occurred but assumed to be between Christmas 2010 to August 2011. Caller stated that the mother, whilst concerned, presented as very vague in relation to her allegations.
Caller stated that the class teacher initially brought the information to the attention of the mother and the mother disclosed the above.
Caller stated that during today’s meeting the mother produced a video of the child in the bath last night which the mother took of the child, the mother showed the video to the caller.
Caller stated that it shows the child sitting in the bath and telling her mother of the game named ‘spider’ where [P] crawls his hand along the bath and then grabs the child’s genitals and breasts very hard. [emphasis added]
The video which the mother is said to have shown the teacher of the child in the bath was not produced in evidence.
The child was interviewed by way of audio/video at Penrith JIRT on 7 October 2011. Case worker MrCC conducted the interview. Unfortunately, notwithstanding a number of inquiries from the bench during the hearing, the lawyers in the case did not discover, until the last afternoon of the hearing, the existence of the JIRT DVD in the subpoenaed material. It was played in court at the end of the evidence. Pages 17 to 19 of the DoCS file (Exhibit 11), except for one matter, contain a relatively faithful note of what is on the audio/visual recording.
Given its central importance, I set out the text of that transcript in full:
[A] demonstrated an understanding of truth and lies.
When asked what was something fun that she liked to do. [The child] said she likes to go for a swim and play on the swing. [The child] said it had been a long time since she had gone for a swim. [The child] said that in the morning today she had played on the swing. She said that the swing is attached to a rope at her house.
When asked what she was at JIRT to speak about [the child] said she did not know.
A body chart tool was used. [The child] identified her hair, head, arms, fingers, body, bottom (referring to vagina, she later referred to is [sic] as her wee wee), legs, knees toes, back and bottom. Each part of the body chart was gone through asking who was allowed and not allowed to touch each party of her body. Each part of the body was gone through asking if anyone had touched it that wasn’t allowed. When the bottom (referring to vagina) was identified the child said that her father had taken her to a farm and touched her vagina all the time. [The child] further said he would give her a lollipop and tell her to lay down. [The child] further stated that her brother, [P], played a silly game and in this game he touched her bottom.
When asked the last time her father touched her bottom, the child said that her father told her he would give her a lollipop and that sometimes they did and sometimes they didn’t. When asked who “they” were, the child said her father, nanny (PGM), grandad (PGF) and Tiffany (paternal aunt). [The child] was asked the last time this happened, [the child] said she didn’t remember. When asked to tell more about being asked to lay down, the child said he told her he would give her a lollipop if she did and that sometimes he did and other times he didn’t. When asked why he did this, [the child] said it was so they could look at her “wee wee” (identified as vagina on body chart). When asked why they wanted to look at her “wee wee”, the child said so they could put cream on it for no reason. [The child] was asked what happened when he put cream on it, the child said her father put so much on it ran out. When asked how he put it on, the child said with a cotton bud, the child said that her PGM and PGF were present when this happened. [The child] said that she told her mother about this last night while she was in the bath. [The child] said she also told her mother during previous holidays, when asked about timeframes, [the child] said it was on her first and second holidays, however gave no further clarifying detail. When asked if anyone else put cream on, [the child] said no. when asked what was said when the cream was being put on, [the child] said she was told if she lay down she would get a lollipop.
[The child] was asked about the silly game with her brother, [the child] said “he was like”, [the child] then demonstrated moving her hand along her thigh towards her groin and then grabbed her groin, [the child] was unable to say in words what she had just done but said that he squeezed her bottom (referring to vagina) and it turned red. [The child] identified her brother as [P], she said he is now 10. [The child] was unable to recall the last time he did this, when asked how old she was she said 4 or 5 years. When asked if anything was said during this, [the child] said no. when asked if anyone else was there, [the child] said her cousin [DD] who is 6 years old. When asked how old [P] was when it last occurred, the child said he was 9. When asked who she told about this, [the child] said her mother, father, MGM and MGF. [The child] then said her cousin did a silly game where he grabbed her head and shook it and said he would do a poo and wee on her, [the child] said that he did not actually do either of these two things, but only said he would do it. [The child] said when [DD] did this her father was present and he video taped this and told [DD] he was going to show his mother. [The child] was asked where [P] played this game with her, the child said inside, outside, in bed when he father was not looking. When asked where it happened on the last occasion, [the child] said outside. [The child] said she was wearing shorts and a t-shirt, [P] was wearing pants and long sleeved top. When asked what she was doing before the game, [the child] said she was “happily riding my scooter”, she then said that he mother told her to say no to [P] if he wanted to play the game. [The child] said that she did say no to [P] about the game however this “made things worse, he opened my pants and stuck his hand in”. [The child] was asked when this occurred, she said I don’t know. [The child] was asked if she was wearing anything under her pants, she said her undies and that he put his hand under these as well, [the child] said [P] was 9 when this occurred. [The child] was asked who else was there, [the child] said no one, she said her father was inside washing the dishes. [The child] said she told her mother, maternal grandmother, maternal grandfather and father. She did not say what they said about this. [The child] said that her mum’s father doesn’t like her dad’s father, when asked to talk more about this [the child] said it was because they had touched her ‘wee wee’. When asked how she knew this, [the child] said she didn’t know, when asked if she did know and didn’t want to talk about it, [the child] said yes, when asked how come she did not want to say [the child] said she did not know.
A break was held at request of CW at 10:37 am. Interview recommenced at 10.46am.
[The child] said that nothing was spoken about during this break.
[The child] said that the game [P] played is called a “spidergame”.
[The child] was asked what she told her mother about this game, [the child] said that [P] played a silly spider game. When asked what her mother said, [the child] said she did not remember. [The child] was asked if she did know but didn’t want to say, she said yes. When asked how come [the child] said because she doesn’t like the game. [The child] said her mother said nothing when asked what her mother said about the game. [The child] was unable to recall when she told her father about the game.
A demonstrated during the JIRT interview how P’s hand moved like a spider down her thigh and how he grabbed hold of her on her vagina and squeezed hard. She did not demonstrate digital penetration.
The one piece of information not included in the note was that the child said that on one occasion when her 5 year old cousin DD was present, and P played the game he said “I’ll give you a lollypop”. The child then commented, “but [P] didn’t give me a lollypop so that was a little lie.” In final submissions, counsel for the mother said that this was an important matter and asked rhetorically “where would [P] have gotten an idea to give her a lollipop?”.
It seems the child could not precisely remember when the last time the spider game was played. When asked if it had happened that year (2011) she said no, it happened when she was “5 or 4”. The child was 5 years old in the middle of 2010 and 6 years old at the time of the interview. The child also said P was 9 when the game was played. P was 9 in the middle of 2010. These statements are consistent with my view that the inappropriate incidents between the child and P happened between September and December 2010.
The DoCS case worker contacted the father on 7 October 2011 after the completion of the interview with the child, and indicated that he would like to attend the father’s home early that afternoon to discuss the report and outcome, and to assess the child’s safety. The father said that he would have to make some arrangements and would call back. Fifteen minutes later the father did so. He said he had spoken to his solicitor and received advice to meet with the case worker at his solicitor’s office. The case worker explained that the purpose of the home visit is to discuss with him “the report and the outcome of the interview” and that would be best done during a home visit. The father indicated that he would only meet with the case worker as advised by his solicitors. About an hour later the case worker rang the father back to indicate that he would be unable to meet with him and his solicitor. The case worker explained that the report was received following concerns about behaviours his son had been exhibiting and potential harm to the child. The father said to the case worker that those concerns had been addressed in December 2010. The case worker told the father that when the child was interviewed she had disclosed that P had touched her vagina on a number of occasions. The case worker said that this behaviour was concerning. The father indicated that he had spoken to his son about this behaviour and that his son had admitted something had happened last year. The father said that he explained to his son that this behaviour was inappropriate and not to do it. The father said he believed that his son understood this and would do the right thing. The father said that he also informed the school and that P’s teacher also spoke to P about this behaviour.
On 14 October 2011 the mother filed an Initiating Application. The primary final order that the mother sought was that the father personally supervise the child and assure that the child was supervised by a responsible adult at all times when the child was spending time with the father. She also sought that the order made by Justice Young, for five nights a fortnight, be reduced to two nights a fortnight and that the order for time during school holidays be discharged.
Also on 14 October 2011 the mother filed a Notice of Child Abuse or Family Violence. In that document when describing the act or admission that she alleged constituted abuse, she wrote:
[The child] was subject to inappropriate sexualised behaviour at the home of the father for a period between September to December 2010.
When describing the facts alleged to constitute any risk of abuse, the mother wrote:
Concerns that [the child] will not be appropriately supervised, whilst in the father’s care. Putting her at risk of further abuse in the father’s home.
On 11 November 2011 the mother filed an affidavit (which she seemingly prepared herself) that contains the following evidence:
35. On 12 August 2011 I was bathing [the child] and asked her if she was having any trouble at school or was anything bothering her to cause her have [sic] trouble with her sentences. [The child] said words to the effect of, “I have bad memories that I think upset me and sometimes the other kids are mean to me. I’m no good and can’t do sentences as good as the other kids. I asked her what the bad memories were and she said words to the effect of, “the spider game and when [P] plays it to me, and I don’t like it. I get upset when I think about it Mummy.”
I had not heard [the child] refer to the “spider game” before. I said, “What is the spider game that [P] plays with you? How do you play it?”
A said, “It’s like this Mummy” [the child] then demonstrated with her hand moving like a spider walking over her chest she said “here is milk and cordial” and then she put her hand near her genital area, then put two fingers in her vagina and said this is “this spider hibernating”. She indicated she doesn’t play the game anymore and explained that [P] got in trouble.”
36. On 17 August 2011 I spoke to [the father] and said to him words to the effect of, “Do you know about the spider game?”
[The father] said, “Yes and any concerns you have can be directed to my lawyer”.
On 26 August 2011 I telephoned DOCS and spoke to [Mr EE], I asked about counselling and told of my concerns about sending the child.
37. Since I have become aware of [P] interfering with [the child], I have tried to obtain reassurances from [the father] that there will be appropriate levels of supervision for the child but he has refused to assure me of this.
38. This is the third occasion on which I have had concerns about the child’s welfare in [the father’s] care since April 2008. Previously the child has allegedly suffered thrush, while in [the father’s] care. The second occasion involved the child’s genitals being examined extensively by [the father] and his mother ([Ms Hammond Snr]) and doctors, because of alleged redness and scratching.
Similar evidence was given in a subsequent affidavit filed by the mother on 22 November 2011 ([26] to [29]).
The mother’s evidence as to the date upon which she had the conversation with the child whilst, the child was in the bath, is not accurate. The conversation between the teacher and the mother took place on 9 August 2011. The mother told the teacher that the conversation in the bath took place on 8 August 2011. More importantly, the teacher’s description of the video which the mother took of the child in the bath “where [P] crawls his hand along the bath and then grabs the child’s genitals and breasts very hard” is not consistent with the mother’s more disturbing assertion that the child, on this occasion, described P digitally penetrating her vagina. The mother asserts “and then [A] put her hand near her genital area, then put two fingers in her vagina and said this is ‘this spider hibernating’.” The mother’s more disturbing version first appears in her affidavit filed 11 November 2011 and is repeated by her in subsequent affidavits. I find that it is an embellishment by the mother that is not only inconsistent with the child’s description as viewed by her school teacher in the video at the time, but also inconsistent with the child’s description in the subsequent JIRT interview.
The fact that the mother sought in November 2011 to elevate the interference by P of the child to digital penetration is both disturbing and important.
The mother also creates the misleading impression in paragraph 37 of her affidavit filed 11 November 2011 (and subsequent affidavits which replicate the statement) that she first became aware of P interfering with the child in the second half of 2011.
Despite the father’s solicitors causing correspondence to be sent to the mother confirming arrangements for the child to spend time with the father in the second half of the Term 3 school holidays, he did not receive a reply and the mother did not facilitate time between the child and the father during those holidays.
The father filed an amended contravention application on 2 November 2011. A contravention hearing took place on 25 November 2011 before Halligan FM. The mother was found to have contravened the orders without reasonable excuse and was placed on a twelve month bond imposed on 12 March 2012.
There were no asserted breaches of orders in respect of the child spending time with her father in the next twelve months.
On 12 December 2013 the mother filed her trial affidavit sworn on the same day. Paragraphs 23 to 29 and paragraph 37 are in the following terms:
23. On 12 August 2011 I attended the child’s school for a billy cart derby day. Whilst there I spoke to [Ms FF], the child’s teacher. She said, “[A] is generally co-operative and good student and has been progressing well but recently had been having a few problems”. She showed me the child’s sentence book ad [sic] said, “Is there anything going on in [the child’s] home life that could be causing her to become distracted lately and not performing as well as she usually does?” She showed me some recent pages of [the child’s] work and the book contained a few pages that had been stuck together because the work was so bad. I saw that the quality of the work had deteriorated dramatically in recent weeks. I didn’t see any care in the writing and the work was very messy unlike the work she had done earlier. [Ms FF] also said, “Sometimes [the child] doesn’t appear to be a really happy chappy and is erratic at times.” When I was leaving the school I saw [Mr Hammond] who had come to pick the child up. He did not attend the billy cart derby and he has never made her anything for school. I stopped and asked him if he had a moment to chat about the child. He said, “No” and walked away.
24. On or around 16 August 2011 when the child had returned to my care, I was giving her a bath before bed time when I asked her, “Do you know why you’re having trouble with your sentences?” [The child] replied, “I have had bad memories that I think upset me and sometimes the kids are mean to me. I’m no good and I can’t do sentences as good as other kids.” I asked her, “What are the bad memories?” She replied, “The spider game and when [P] plays it on me I don’t like it. I get upset when I think about it Mummy.” I had never before heard [the child] talk about a “spider game”. I said, “What is the spider game that [P] plays with you and how do you play it?” she said, “It’s like this mummy” and then she moved her hand like a spider walking over her chest and said, “Here is milk and cordial”. She then put her hand near her genital area, then appeared to put two of her fingers insider her vagina and said, “The spider is hibernating.” She then said, “He doesn’t play the game anymore and he got into trouble”.
25. On 17 August 2011 I spoke to [Mr Hammond] on the phone and asked him, “Do you know about the spider game?” He said, “Yes, and any concerns you have can be directed to my lawyers”.
26. I recall ringing [Mr Hammond] and trying to talk to him about supervision of the children when in his care. I said, “I need some reassurance that the children are being supervised properly.” [Mr Hammond] replied, “In the real world I’ve got to go to work.” I recall reminding [Mr Hammond] with words to the effect “But you led everybody in court to believe that you would care for the children yourself when they were both in your care and in emergencies you would get your mother or sister to care for [P] and [the child].” I was very concerned about a number of outstanding issues and the lack of cooperation by [Mr Hammond]. I decided to write him a letter outlining all of my concerns. Annexed herein and marked with the letters “LJH10” is a true and correct copy of the letter I wrote to [Mr Hammond] dated 14 February 2011.
27. On 26 August 2011 I spoke to [Mr EE] from DOCS about my concerns with this spider game and counselling for the child.
28. This is the third time that I have been very worried about [the child] while in [Mr Hammond]’s care. The first time was when she had some vaginal irritation, redness and itching in 2008 that started in May. In August and November [Mr Hammond] and his mother alleged it was thrush ostensibly as a side effect from taking antibiotics but I have never seen a medical record or doctor’s diagnose that she has had thrush, even when she has had antibiotics. The second time was when I became very worried when [the child] told me her father and paternal grandmother, they were giving her a lollypop to check her vagina (see paragraph 16 above).
29. In October 2011, [the child] was interviewed by JIRT. I made a phone call to [Mr CC] at JIRT on 13 October 2011 at 1.30pm. On that call he said to me, “The investigation is still ongoing and the child did say some things that were concerning.” However, later he also told me that while the abuse of the child by [P] was substantiated, [P] was too young to charge so no further action would be taken. I don’t find it so easy to simply discard and blame a child I love and have nurtured growing up to discard him. I genuinely believe that somehow [P] has leant [sic] this behaviour. Also my parents and [Ms G’s] parents and I have tried to keep things as normal as possible for both kids who for most if [sic] their lives have struggled due to surrounding conflicts with their parents. Both children have told me that [Mr Hammond] has said to him it “upsets me”, he has denigrated me calling me a “bad person”, say I’ve caused all this, and I am the reason [P] got in trouble and now not allowed to see [the child]. [emphasis added]
....
37. During 2012, [the child] told me more details about the spider game. On one occasion I asked the child, “Where did this game happen, honey?” She said, “Under [DD’s] bed” and “At GG Street” and “It happened at the farm.” Tom is the child’s cousin, her father was living at a granny flat with his brother at [GG Street] and the farm is the name of where [Mr Hammond]’s parents live.
The mother’s chronology is confusing. Paragraph 26 relates to what the mother did at the commencement of 2011, not in August 2011.
I also note in passing that the father lived at the granny flat in GG Street in 2012 and as will become clear, I find there is no unacceptable risk that P has sexually interfered with the child since 2010. I find that the statements that the mother has said that the child made to her during 2012 are an invention by the mother.
At a pre-trial mention on 5 May 2014, I asked counsel for the mother whether it was the mother’s case that the father himself was a risk, in terms of himself, sexually abusing the child. Counsel for the mother replied:
...Yes your Honour because of what the older sibling has done happened at the father’s house in the father’s care over a period of time so the case is risk of abuse by the father in terms of not necessarily sexual abuse himself but the conditions that have led to the substantiation of sexual abuse by his eldest son. Now that could be neglect, that could be grooming, that could be anything in between. I don’t know your Honour... [emphasis added]
During the mother’s oral evidence the following exchange took place between the mother and myself:
His Honour: Your lawyer told me, that it was your view that the father may have been using [P] as a way of grooming the child for him to be able to have [the child] as a sexual object?
Mother: Not my idea it’s a possibility.
His Honour: It was floated as your idea by your lawyer and I want to know if it is your idea?
Mother: Not my idea.
His Honour: You don’t think [there was] anything deliberate about the father putting [P] up to sexually interfering with the child?
Mother: No.
My impression was that the mother was genuinely surprised at the notion that the father may have in some way taught P to have sexually interfered with the child. As set out above, the mother at paragraph 29 of her trial affidavit deposes her genuine belief that somehow P has learnt the offending behaviour (and the clear implication is that the mother blamed the father for that learning). Although the trial affidavit on its face indicates that the mother prepared it, it otherwise has the hallmarks of some involvement by the mother’s lawyers. There was no further testing as to whether or not the notion that the father groomed P to abuse the child came from the mother or the mother’s lawyers.
Counsel for the mother drew a connection between that and the child’s report that when her father, in the presence of one or both of his parents, wanted to put cream on her vagina with a cotton bud, would sometimes offer her a lollipop, and the statement by the child to the JIRT case worker that on one occasion P offered to give her a lollipop when playing the spider game. This connection was consistent with the suggestion by counsel for the mother on 5 May 2014 that the father had in some way tutored P in how to groom the child for sexual activity. Counsel for the mother submitted that this was now a far more serious case given the statement by the child in the video about P on one occasion indicating that he would give her a lollipop.
Given the mother’s oral evidence, I have some doubt as to whether counsel for the mother had specific (or even general) instructions to put the submission that the father had taught or had provided a model for P to offer lollipops to the child in exchange for sexual interaction. I am unable to draw the sinister connection which counsel for the mother suggests. Given on balance I accept the mother’s evidence that this was not the mother’s idea, I do not weigh the fact that this serious suggestion has been made in her case against her.
That said, there is no doubt the mother still holds a strong belief that the father has in the past sexually abused the child.
During her examination in chief, counsel for the mother and the mother between them sought to amend paragraph 24 of her trial affidavit by altering the date from 16 August 2011 to 16 December 2010. This was because the mother wished to make a claim that she did in fact first find out about P’s interference with the child in 2010. The difficulty with the amendment however is that paragraph 24 gives evidence about the occasion when the child was in the bath and demonstrated the spider game to her mother. The objective evidence would indicate that that event most probably took place on 8 August 2011. The mother was recalled at the end of the hearing in an attempt to clarify when she found out about P’s interference with the child and her evidence was that she had always said that it was the end of December 2010.
Conclusion in relation to the evidence about the “spider game”
I find that on more than one occasion between September 2010 and December 2010, P sexually interfered with the child. On each occasion when the child brought P’s behaviour to the mother’s attention, she told the child to say “no” to P. The problem did not immediately resolve. In either later December 2010 but more probably early January 2011, the mother raised P’s behaviour with the father. The father then spoke to P and explained to him that his behaviour was inappropriate and warned him not to continue with the behaviour. He also individually spoke to the child who confirmed what P had done. In addition, the father took P and sat with him at school whilst the teacher responsible for sex education spoke to P about the inappropriate nature of his behaviour. I am satisfied that P has not behaved in an inappropriately sexual way towards the child since the intervention by his father.
The mother in her affidavits attempted to create an impression that P’s behaviour was ongoing in 2011 and indicative of an irresponsible lack of supervision by the father. She did this in order to create a basis for her to argue that she had a reasonable excuse to breach court orders in three lots of term school holidays. As indicated I have not accepted the mother’s evidence in paragraph 37 of her trial affidavit that P’s interference with the child continued in 2011/2012.
It was also part of the mother’s case that the father had groomed or taught P to sexually abuse the child, although as I have said, I am less than confident that that was the mother’s invention.
The extent of the mother’s fears in relation to P’s interaction with the child
P and the child have regularly seen one another (about monthly, but not in recent times prior to the trial) when Ms G, the mother, P and the child have attended regular social events and outings. Since the mother and the child had moved out of the former matrimonial home, P has stayed on several occasions at the mother’s home overnight with the child and the child has stayed overnight at Ms G’s home with P. Ms G gave evidence that at times the children were allowed to play together out of sight. She said that there had been occasions where P and the child were playing or talking together in the mother’s lounge room which was the next room to where Ms G and the mother were, and although Ms G could hear the children, she could not see them. This seems to be somewhat inconsistent with the assertion by the mother that she would closely supervise P and the child whilst they were together. The level of supervision when P and the child are together in the mother’s presence seems to fall short of the level of supervision she asserts is appropriate when they are in the father’s household.
The mother has not told Ms G that she believes P digitally penetrated the child and that it had happened on more than one occasion. The extent of Ms G’s knowledge is that P was involved in an “incy wincey spider game”.
A’s ongoing awareness of the spider game
In the interview for the family report, the child stated that she could not recall a time when she felt scared, sad or worried with P, and she could not recall a game that P had previously played with her about spiders. The child said that she missed P but added that [the mother] had facilitated time between her and P during the most recent school holidays at a swimming pool.
During cross examination, the family consultant confirmed that at the interview the child did not seem presently concerned with and could not re call the spider game. She agreed that nothing in her discussions with the child gave her any concern or any difficulty with the child having an ongoing relationship with P and that the child showed no distress or hesitation in talking to her about P. I asked the family consultant whether she had any concern in the way the child answered the question about remembering a spider game. The family consultant reported that when she asked the child the question, the child paused as if trying to remember, then she had a puzzled look on her face and said “no”. The family consultant opined that the child did not have any memory of the game.
A’s views give an insight into how she is currently experiencing her relationships with both her parents. Firstly, at her age, she has a keen sense of what would be “fair” to both her parents. I accept her real view is that she would be “happiest” if she lived with her father. The court can place some weight upon that expressed view. However, given the other significant considerations in this case, the child is not of an age where the court can place great weight on any view the child expresses about spending face to face time with her mother.
Relationships of the children with the parents and other persons (s60CC(3)(b))
I have dealt with the relationships between the child and her parents above.
It seemed an uncontested fact that the child has a strong and positive relationship with the maternal grandparents (the mother’s adoptive parents). The child indicated to Dr E that one of the main things that made her feel happy was being with her maternal grandfather. She also told Dr E that the person she trusts most of all is her maternal grandfather as he is “honest and doesn’t tell lies”. The child described her maternal grandparents’ home as one of her three homes.
A expressed that she liked her grandparents and feels “safe with them there”. Dr D indicated that the child speaks very positively and, in fact, in glowing terms about her maternal grandparents. There is no application before me by the maternal grandparents for the child to have defined time with them but the father, during his oral evidence, indicated that he would encourage the child to spend time with the maternal grandparents on weekends, to go to outings on weekends, more so on weekends when P was not there, and also continue the lunch time visits they were having on a Tuesday at school.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent (s60CC(3)(c), noting (s60CC(4))
Dr D’s notes record a statement made by the child that does not reflect well on the father, “mummy lied, she said Daddy’s brainwashed me – he told me”.
Ms G gave evidence that P had returned from weekends with his father indicating that his father had said some derogatory things about the mother. There was however no testing as to at what point in time after April 2008 that had taken place.
That said, the mother believes that the father has sexually abused the child when I find that he has not. This drives a wedge between the parents.
The family consultant observed that the conflict between the parties appeared to be toxic and to have increased, which has noticeably impacted on the child.
Dr E expressed the opinion that the major source of risk of harm to the child is the emotional distress caused by the ongoing antagonism and lack of cooperation between the parents and their methods of handling the child’s distress. She pointed to clear signs that the child is experiencing psychological distress, particularly social anxiety and low self-esteem, but no evidence established that this is due to sexual abuse. The child’s responses pointed to parental fighting as the major cause for concern.
The family consultant opined that from the history of contraventions and the mother’s ongoing conviction that the father had sexually abused the child, it would appear that the mother is unwilling to support the child’s relationship with her father and has purposefully sought to interfere with their relationship. The family consultant was also of the opinion that if the child continued to live with the mother, the mother would not accept further orders made by the Court regarding spend time arrangements, particularly if she considered that the child was at risk of sexual abuse, which is a belief she appeared to hold strongly, despite the judgment of Justice Young, and despite receiving expert advice on the matter. The mother has been unwilling to accept that advice.
Likely effect of any change in the children’s circumstances (s60CC(3)(d))
The family consultant offered the view that given the child’s observed relationship with the father and her stated views, she would successfully adjust to a change of residence. The family consultant indicated that the father appeared sensitive to the child’s needs and appeared to be able to prioritise her needs.
On 18 December 2013, Justice Hannam made an interim order for the child to live with her father. The child has lived with her father since that time. Her Honour also discharged the interim order restraining the father from bringing P into contact with the child. Her Honour said she did so based on the family consultant’s observation that the child was pining for P. Her Honour also pointed to the inconsistency of the mother’s position in respect of bringing P into contact with the child whilst in her care but not permitting it when the child was with her father. Her Honour also had regard on a prima facie level to the contents of the family consultant’s report and the report from Dr E.
The family consultant was of the view that the court would need to be cautious regarding the arrangements for the child spending time with her mother. In the event the court made a no time order with the mother, the family consultant outlined several impacts. The positive being that the child would be protected from the emotional and psychological harm to which she is currently exposed and on the negative side; the child would lose her established relationship with her mother. The impact of this could be that she feels depressed, anxious, a loss of identity, and most significantly would feel guilty that she was responsible for the loss of her mother from her life. In balancing these competing risks, the protection of the child against circumstances which are currently creating emotional and psychological harm is the more important priority.
The family consultant opined that the court should give consideration to a “no time” order. The family consultant referred to the short supervised time the child has spent with her mother since the interim orders were made by Justice Hannam. The mother has continued to yell and has been unable to contain herself notwithstanding the confined nature of these periods. She said this was both a cause for concern and emotionally damaging for the child. As to the question of whether a no time order should be made for a specific time or until the child reached 18 years of age, the family consultant expressed that it would depend on whether the mother was able to demonstrate change.
The family consultant further told the court that given the child’s anxiety issues, she would be at risk of heightening that anxiety if she was not able to spend any time with her father.
Dr D was questioned about how the child had adjusted to the interim order that she ordinarily live with her father instead of the mother. She reported as anticipated; there was a honeymoon period and some challenges with the child testing the limits at her father’s household. Dr D referred to one occasion when the child pushed the boundaries with her father. Her overall assessment however was that the child has settled very well into living with her father and that she experienced a sense of safety and a sense of relief. Dr D warned against another massive disruption to the stability that Dr D saw the child having with her father. Although Dr D wished to protect the confidentiality attaching to her sessions with the child, she was prepared to say that the child mistrusted her mother’s capacity to contain her emotions and that sometimes the child thought her mother was good but sometimes she did not know what to expect from her. Overall, Dr D’s opinion was placing the child back with her mother would result in a real spike in the child’s anxiety.
Practical difficulties and expense of the children spending time and communicating with a parent (s60CC(3)(e))
Neither party raised these considerations.
The capacity of each of the parents to provide for the needs of the children, including emotional and intellectual needs (s60CC(3)(f)) and attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s60CC(3)(i), noting (s60CC(4))
As previously stated, much has already been said about these issues. The family consultant opined that despite the child’s relationship with her father having been interrupted several times over the years, it is remarkable that the child and her father presented as having a strong and established relationship, and this is considered likely to be due to the quality of the father’s parenting and his parenting capacity.
The father was cross examined about the child and P attending work with him on Saturdays when he is tutoring music. The father’s description of those occasions did not raise concern.
The family consultant stated that the mother’s presentation at the interview was of concern. She presented as highly volatile and her mood appeared to change suddenly throughout the interviews and observations. The family consultant recorded that significant effort was required to manage the mother throughout the interview. It was also noted that the mother’s presentation to the family consultant was in contrast to her reported presentation to Dr E in 2013 and Dr W in 2009. It was suggested that it may be that the mother presents differently to different people, depending on how challenged or confronted she feels, or whether she perceives that someone is aligned with her view. The implications of this on her parenting include her ability to manage her emotions if and when the child has a different view from her own.
The family consultant also reported that the mother appeared to have little insight into how her presentation at the family report interview might have been affecting the child. She spoke in a hostile manner in front of the child several times throughout the day and appeared to have significant difficulty managing her emotions in front of the child.
The mother confronted the family consultant, in a slightly raised voice, about her discontent that the father did not pack a jacket for the child and that the child had not had anything to eat or drink all day. The mother told the family consultant that it was not her responsibility to provide lunch for the child as the child had not been in her care. At this point the child was reported to have been standing slightly behind the mother and was observed to become very still and watchful and her eyes widened as she stared at the family consultant. Despite this, the mother raised her voice again and stated that she wanted it “recorded” that the child was not provided lunch. The family consultant indicated that the child did not seem surprised by her mother’s behaviour. The child’s apprehension about what her mother might be about to say or do is concerning.
It would appear from Dr D’s notes that the child has indicated the mother’s inability to contain herself in the three hour supervised sessions that have been ordered since December. As set out above, the child indicated to Dr D that her mother often “screams” at her, gets angry at her and carries on about court.
I conclude that the mother’s current parenting capacity is significantly compromised.
The maturity, sex, background and lifestyle of the children and parents (s60CC(3)(g))
Not applicable.
If the children are Aboriginal or Torres Strait Islander (s60CC(3)(h))
Not applicable.
Any family violence involving the children or a member of the children’s family (s60CC(3)(j) and(k))
Justice Young dealt with assertions of family violence in his judgment of May 2010. Since that time, no new assertions of family violence are made by the mother.
Likelihood of order leading to further proceedings (s60CC(3)(l))
The family consultant expressed concerns about risks which might flow from a change of care arrangements, in that the mother would not accept those orders and it is possible that she would withhold the child, remove her from school, or would seek to undermine the child’s relationship with the father. She said that it is also possible that the mother may become volatile and unpredictable in the face of a decision that is not favourable to her, and there is concern that the child may be physically and/or psychologically hurt if this occurred.
The family consultant’s recommendation is that the child be placed primarily with one parent with little or no time with the other parent. If the child is placed with her mother and some order is made for the child to spend time with her father, past history would indicate that there is a reasonable possibility that orders of that nature will be from time to time ignored by the mother. Placing the child with her father would lower that risk. Making an order that the child have no face to face time with the mother would almost eliminate the risk that the mother would breach orders. Whilst I deal with the negative aspects of making an order that the child would spend no time with her mother elsewhere, the elimination of parental conflict from the child’s life is an important issue that I need to consider in this case.
Other considerations
There are no other relevant matters that need be considered.
EQUAL SHARED PARENTAL RESPONSIBILITY
In addressing the question as to what time the child should spend with her mother, it is important first to consider whether any order should be made for equal shared parental responsibility.
Both the parents and the Independent Children's Lawyer propose that no order be made for equal shared parental responsibility. The mother proposes that an order be made in her favour. The father and the Independent Children's Lawyer propose that an order be made in the father’s favour.
The family consultant concluded that the father and mother are unable to co-parent the child and as such she recommended that the Court consider orders whereby the child live with one parent and spend little or no time with the other. She stated that given the parties’ history, their acrimonious relationship and the high conflict between them, she considered that an equal time arrangement, or anything close to it, would be untenable and not in the child’s best interests.
Both parties mutually concede that their level of communication is almost non-existent and their relationship is toxic. The mother sought during the hearing to assert that she tried to engage with the father but he was uncooperative. She did not seem to be taking any responsibility for the current state of the relationship between the father and herself. She lacked the insight to do so.
Given that I have concluded that the child should ordinarily live with her father and have no face to face time with the mother, it is appropriate that he should have parental responsibility in relation to decisions concerning major long term issues.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
Since I do not propose to make an order for equal shared parental responsibility, I am not required to consider equal time or substantial and significant time between the child and her mother and it is inappropriate for me to make such an order.
CONCLUSION IN RELATION TO BEST INTERESTS
The family consultant recommended that given the history of contraventions, the mother’s presentation, concerns regarding the child’s well-being, the child’s views, the toxic conflict between the parties and the ongoing pursuit of sexual abuse allegations against the father, which have been proven unfounded, the Court consider a change of residence for the child and that the child live with the father.
I accept the recommendation of the family consultant that an order should be made that the child live ordinarily with one parent and spend a limited amount of time or no time with the other, as being in the child’s best interests and taking into account all the evidence, I find that it is in the child’s best interests that she ordinarily live with her father.
The question then becomes what face to face time or communication should the child have with her mother.
There are significant risks in the child seeing her mother at the current time. Dr D’s therapy is aimed at assisting the child adjust to her change in circumstances.
Counsel for the Independent Children's Lawyer suggested that if there were to be face to face time between the child and her mother, it should take place at a contact centre which would provide an appropriate level of protection against possible emotional abuse by the mother.
The mother did not in her evidence provide any basis upon which supervised time could be organised on an ongoing basis. The risks that are posed to the child by being in her mother’s care as described in these reasons have not been satisfactorily ameliorated by supervision by the maternal grandparents. I have concluded it is in the child’s best interests for her not to spend face to face time with her mother, apart from recognition contact once every three months at a contact centre. Circumstances may change in the future. The mother might in the future demonstrate through counselling that she has come to accept that the child has never been sexually abused by her father and that the only inappropriate touching of the child took place between P and the child at a time and in circumstances described in these reasons. At the current time it is difficult to see how there could be any realistic expectation that the mother would involve herself in therapy.
OTHER PROPOSED ORDERS AND NOTATIONS
The father should ensure there is a photo of the mother prominently placed in the child’s bedroom at all times and shall provide the mother with recent photographs of the child at least once every three months.
Counsel for the Independent Children's Lawyer’s final submission in respect of communication between the child and her mother was that it be restricted to text and emails which the father could monitor and not be extended to telephone. I accept that that should be the nature of the order that is made subject to the father having the ability to extend to telephone or skype communication if he believes it is in the child’s best interests to do so.
The father has indicated to the court that he acknowledges the close relationship the child has with her maternal grandparents and the need to foster that relationship. The court notes his assurance that he would do so. As I have noted, they have not made any application to the court for the child to have defined time with them.
Division 4 Part VII of the Act allows parents from time to time to enter into a parenting plan which may have the effect of varying or revoking an order of a court. If at some future point in time the father formed the view that it was in the child’s best interest to have face to face time with her mother, then the parents could enter into a written arrangement to vary the orders that I have made. It was not suggested by the father or the Independent Children's Lawyer in this case that I would make an order that the parenting orders may only be varied by a subsequent order of the court. The orders could be varied by a parenting plan.
The purpose of the orders is to place in the hands of the father the child’s future relationship with her mother and leave it to him to judge how he deals with any requests made by the child in the future to have time with her mother and any information the mother gives the father about therapy in which she has been involved.
Dr D’s notes from 27 March 2014 indicate that the father was working on getting the child into her own room and that she was sometimes sleeping in the lounge room or the father’s room. Ms G gives evidence that P told her that in December 2013 he slept together with the child on the lounge. Although I have found that P is not an unacceptable risk to the child, I find it would appropriate for an order to be made that the child have her own independent bedroom and not sleep in the same room or on a lounge with P at any time.
COMMENTS ABOUT COUNSEL FOR THE MOTHER
I have done my best in these reasons to discount, in the mother’s favour, the manner in which counsel for the mother’s presentation of the mother’s case may have prejudicially affected the outcome.
Some comment about the performance of counsel for the mother is however warranted.
Counsel for the mother appeared at the hearing without the benefit of an instructing solicitor.
I have already discussed my disquiet about whether counsel for the mother had either specific or general instructions to make a serious new allegation of sexual abuse against the father using P to groom the child. The mother’s evidence was that this theory was not her idea, although she thought it might be possible. Counsel for the mother did not seek to withdraw when the mother said on her oath it was not her idea. Counsel for the mother has not had the opportunity of being personally heard on the issue, but on balance I formed the view that it was unlikely that the mother had provided counsel for the mother with the instructions to say the things that she said on 5 May 2014 (about the father using P to groom the child) and in final submissions (about P learning from his father how to use lollipops to groom the child).
Counsel for the mother was involved in the preparation of an affidavit for the mother that was filed on the third day of the hearing which would have potentially damaged the mother’s case. However, I did not place any great weight upon it because of the circumstances in which it appeared to have been prepared.
Counsel for the mother spent undue amounts of time challenging the expertise of experts in circumstances where there was no apparent basis for doing so. She seemed to have taken the ideological position which argues you need an expert in the sexual abuse of children of many years experience to prepare a family report in circumstances where it is asserted that a child has been sexually abused.
The questions of the family consultant about the membership in the Australian Childhood Foundation were particularly gratuitous and for no obvious purpose other than to demonstrate that the family consultant’s involvement in obtaining literature on a regular basis from a particular organisation was inaccurately put under the heading of “membership” in circumstances where association with that organisation was not by way of membership.
On multiple occasions I had to disallow a question that was asked by counsel for the mother because the question contained a proposition which either misrepresented the evidence or was not supported by any evidence. On other occasions, when counsel for the mother was told that she should not persist in asking a particular question, she immediately thereafter re-put the proposition in slightly different words.
Cross examination of the father by counsel for the mother was at times emotional. Also counsel for the mother at times seemed very subjectively involved in her client’s case. The tone of her final submissions were akin to those commonly encountered from a self-represented litigant. Her professional obligation is to retain a measure of objectivity. Counsel for the mother may benefit from guidance from her professional association. I shall request the Registrar to forward a copy of these Reasons for Judgment to the Chief Executive Officer of the Bar Association of Queensland, particularly drawing paragraphs 265 to 273 to her attention.
I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 16 July 2014.
Associate: H. Pickering
Date: 16.7.2014
SCHEDULE 1
Mother
That all previous Orders be discharged.
That the Mother have sole parental responsibility for the child A (“the child”) born … 2005.
That the child live with the Mother.
That the child spend time with the Father every fortnight from Friday after to school to before school Monday.
That the Father attends parenting counselling…
That the child’s sibling attends counselling at…………….
That the child continue attending counselling with…………..
on a supervised basis only at a Children’s Contact Centre on every alternate Saturday for two hours and any further time permitted by the Contact Centre.
That within fourteen days of the Final Orders, the parties do all things necessary to undertake supervision of the Father’s time with the child.
That the Father pay the costs associated with him spending supervised time with the child.
That these orders are authorisation the Father be provided by the school, at his own cost, copies of the child’s school reports and any annual school photos of the child.
Father
That the father have sole parental responsibility for the child A born … 2005.
That the child live with the father.
That the child shall spend no time with the mother.
That failing an Order that the child spend no time with the mother the child shall spend time with the mother each Sunday from 2.00 pm until 5.00 pm supervised by the maternal grandparents with such time to occur at the home of the maternal grandparents or such other location regarded as suitable by the maternal grandparents.That the mother’s time with the child be suspended as follows:
5.1.On Father’s Day between 9.00 am and 4.00 pm if the child is in the care of the mother pursuant to these Orders;
5.2.From 3.00 pm Christmas Eve until 3.00 pm Christmas Day commencing in the year 2014 and each alternate year thereafter
5.3.From 3.00 pm Christmas Day until 3.00 pm Boxing Day commencing in the year 2015 and each alternate year thereafter.
That the parties keep each other informed of their current residential address and emergency telephone number and advise each other of any changes to those details 48 hours prior to any change.
That the parties are to notify the other in case of any medical emergency involving the child whilst she is in their care by way of the emergency telephone contact number provided pursuant to Order 10 [sic] herein as soon as practicable.That the parties do all things necessary and sign all documents necessary to allow for the school to which the child attends to provide to both parents, upon their individual requests, copies of all school reports, newsletters, notices and other information relating to school activities or relating directly to the child.
That the mother is restrained from taking the child to attend upon any counsellor, therapist, psychologist or psychiatrist without the written consent of the father or further Oder of the Court.
That the parties are restrained from denigrating the other parent or that parent’s extended family or a member of that parent’s household in the presence or hearing of the child and they must each take all reasonable and proper steps to remove the child from any situation where a third party seeks to denigrate the other parent or that parent’s extended family or a member of that parent’s household whilst in the presence or hearing of the child.
That the mother shall be at liberty to send presents or cards to the child and the father shall provide these to the child unless they are deemed by the father to be inappropriate in nature. For the purposes of this Order such presents of cards shall be provided to the father via the maternal grandparents and then provided to the child by the father.
That the parents shall communicate with one another in relation to any issues regarding the child by way of email except in the case of any emergency and in circumstances of an emergency the parents shall communicate by way of SMS text message or telephone call and for the purposes of this Order the parents shall provide one another with their current email address and provide notice to one another within 72 hours of any change to that email address.
SCHEDULE 2
Applicant father
Amended Response filed 17 April 2014
His affidavit filed 20 February 2014
His affidavit filed 10 December 2013
Respondent mother
Mother’s Affidavit filed 8 May 2014
Mother’s Affidavit filed 5 February 2014
Mother’s Affidavit filed 12 December 2013
Affidavit of Mr HH (grandfather) filed 6 February 2014
Affidavit of Ms II (Rental Property Manager) filed 6 February 2014
Affidavit of Ms JJ (neighbour) filed 6 February 2014
Affidavit of Ms G (Ps mother) filed in court 12 May 2014
Other documents:
Notice of Child Abuse or Family Violence filed 14 October 2011
Child Responsive Memorandum of 16 August 2012
Family report of Ms F, Family Consultant dated 25 November 2013
Expert’s Report of Dr E, psychologist dated 5 August 2013
Literature relied on by Counsel for the Mother
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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