Hammond & Hammond

Case [2021] FamCA 329

FAMILY COURT OF AUSTRALIA

Hammond & Hammond [2021] FamCA 329

File number(s): WOC 1161 of 2018
Judgment of: HANNAM J
Date of judgment: 24 May 2021
Catchwords:

FAMILY LAW – CHILDREN – PARENTING – Where parenting dispute relates to the time, if any, the children are to spend with the father and whether the parents are to share parental responsibility for the children or whether it should be exercised solely by the mother – Where mother alleges that father poses an unacceptable risk of harm to the children on the basis of his alleged sexual abuse of the older child – Where mother’s case rests upon various disclosures said to have been made by the older child to JIRT investigators and the child’s treating psychologist – Where father denies the sexual abuse allegations and seeks equal shared parental responsibility and orders that the children spend time with him that is initially supervised and thereafter gradually increasing to substantial and significant time that is unsupervised – Where ICL proposes alternate suites of orders depending upon whether or not the Court finds that the father poses an unacceptable risk of harm to the children – Where ICL proposes that if the Court finds that the father does pose an unacceptable risk of sexual harm to the children, the mother hold sole parental responsibility for the children and that the children spend time with the father in accordance with their wishes, which is a proposal ultimately supported by the mother – Where the ICL proposes that if such a finding of unacceptable risk is not made the children spend gradually increasing time with the father leading to unsupervised time during the day only – Where the Court considers the accuracy and the reliability of the older child’s disclosures limited having regard to the context in which they were made, including in particular, possible coaching by the child’s psychotherapist – Where Court attaches weight to expert’s unchallenged opinion about problematic features of the older child’s answers on interview and concerns of possible contamination of the child’s accounts by mother and psychotherapist – Where Court is not satisfied that abuse allegations have been proved to the requisite standard – Where Court is not satisfied on the evidence that there is a future likelihood of sexual abuse by the father and accordingly does not consider that he poses an unacceptable risk to the children in this regard – Where Court not satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them – Orders made largely in the terms proposed by ICL.

FAMILY LAW – INTERIM ORDERS – Where at final hearing the Court suggested a further possible parenting arrangement in the event the father was not found to pose an unacceptable risk of harm to the children – Where suggested arrangement reflect ICL’s proposal relating to children’s time with father – Where ICL supports such a proposal and the parties each acknowledged through their…

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Hammond & Hammond [2021] FamCA 329
Case
[2021] FamCA 329
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CaseChat Overview and Summary

This case concerned a parenting dispute between Mr. Hammond (the applicant father) and Ms. Hammond (the respondent mother) regarding their two daughters. The central conflict revolved around the extent of time, if any, the children should spend with their father and whether parental responsibility should be shared equally or exercised solely by the mother. The mother alleged that the father posed an unacceptable risk of harm to the children due to alleged sexual abuse of the older child, a claim the father denied. The Independent Children's Lawyer (ICL) proposed alternative orders depending on the court's findings regarding the risk of harm.

The court was required to determine whether the father posed an unacceptable risk of sexual harm to the children, and consequently, whether the mother should hold sole parental responsibility. It also needed to consider the appropriate parenting arrangements for the children, including the extent of time they should spend with the father, and whether equal shared parental responsibility would be in the children's best interests. Furthermore, the court addressed the costs of the ICL.

Hannam J found the older child's disclosures regarding alleged abuse to be of limited accuracy and reliability, noting concerns about potential coaching by a psychotherapist and contamination of the child's accounts by the mother and psychotherapist. The court was not satisfied that the abuse allegations were proven to the requisite standard, nor that there was a future likelihood of sexual abuse by the father, and therefore concluded he did not pose an unacceptable risk. Consequently, the court was not satisfied that it would not be in the children's best interests for the parents to have equal shared parental responsibility. The court made orders largely in line with the ICL's proposals, granting equal shared parental responsibility, with the children living with the mother. The court also ordered that the mother and father pay the ICL's costs in equal shares, noting that both parties were wholly unsuccessful in their proceedings. The final orders detailed a phased approach to the children spending time with the father, commencing with supervised contact and gradually increasing to unsupervised time.

Orders

Orders of the court

WOC 1161 of 2018

BETWEEN:

MR HAMMOND

Applicant

AND:

MS HAMMOND

Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

24 MAY 2021

THE COURT ORDERS THAT:

1. The mother and father hold equal shared parental responsibility for the children Z born … 2011 and Y born … 2015 (“the children”).

2. The children live with the mother.

3. The mother is to ensure that Z continues to be engaged with her treating psychologist Ms B until such time as Ms B recommends otherwise.

4. These orders serve as authority for the Independent Children’s Lawyer to provide to Ms B with a copy of the expert’s report of Ms C dated 5 March 2020 and a copy of these orders.

5. The mother and the father are to engage in individual therapy with a therapist as suggested by Ms B and for the purposes suggested at paragraph 127 (d)(i) of Ms C’s report.

6. The Independent Children’s Lawyer have liberty to provide to each of the parent’s therapists with a

(a) Copy of Ms C’s report;

(a) Copy of these orders

7. These orders serve as authority for Ms B’s and each of the parents’ therapists to communicate with one another in relation to Z’s and the parents’ treatment.

8. The mother will facilitate FaceTime contact between the father and the children at least twice a week on days to be agreed between the parties and failing agreement every Tuesday and Thursday evening between 6.00 and 6:30 PM. The mother will not interfere with the conversations between the father and the children.

9. The mother and father refrain from denigrating each other, or allow others to do so, within the presence or hearing distance of the children, or either of them.

10. The mother and father refrain from discussing any aspect of these proceedings, including the allegations of sexual abuse, within the presence or hearing distance of the children, or either of them.

11. The mother and father keep each other advised of their telephone numbers and address and advise the other of any change within 48 hours of such change occurring.

12. The mother and the father are to keep each other advised of any medical emergency in relation to either child.

Independent Children’s Lawyer’s costs

13. The mother and father pay the ICL’s costs as specified in the ICL’s costs notice in equal shares.

PENDING FURTHER ORDER:

14. The children spend time with the father as follows:

(a) For a period of two months, supervised every second Sunday from 10am until 2pm. The supervisor is to be agreed to between the mother and the father and failing agreement by Ms D Hammond.

(b) For a further period of two months, supervised every second Sunday from 10am until 5pm. The supervisor is to be agreed to between the mother and the father and failing agreement by Ms D Hammond.

(c) For a further period of two months, every second Sunday from 10am until 5pm unsupervised, and every second Wednesday from the conclusion of school Wednesday, or 3pm if Wednesday is a non-school day, until 6.30pm;

(d) Thereafter, every second Saturday and Sunday from 10am until 5pm unsupervised, and every second Wednesday from the conclusion of school Wednesday, or 3pm if Wednesday is a non-school day, until 6.30pm;

(e) On Father’s Day from 10am until 5pm;

(f) On Christmas Day from 1pm to 6pm in even numbered years;

(g) On Boxing Day from 10am to 5pm in odd numbered years.

15. Any changeover that does not occur to and from school, shall occur by the father collecting and delivering the children to and from the mother’s home.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The question for me to consider is which of the parenting proposals is proper having regard to the best interests of the children being the paramount consideration.BACKGROUND The mother who is 40 and the father who is 46 began a relationship in around 2005 and married in 2009. The first of the parties’ two daughters (“the older child” or “the child”) was born in 2011 and the second (“the younger child”) in 2016. Throughout the parties’ relationship the father was employed on a full-time basis, while the mother worked part-time to enable her to attend to the children’s daily needs. On some days, the children were also cared for by members of the maternal family. After the younger child was born and over the next few years leading to the parties’ separation, the mother became concerned about the older child who she contends was displaying increasingly sexualised behaviour and other unusual conduct. These behaviours include the older child touching herself and on occasion other children in the genital region, complaining of “unexplained tummy aches” and often appearing withdrawn. As a result of these concerns, on various occasions from late 2017 the mother engaged the older child in alternative therapy such as chiropractic treatment, and also encouraged her to take vitamins, in an effort to address this child’s behavioural problems. The mother also monitored the older child’s school progress and on at least one occasion in July 2018 met with the child’s school teacher to discuss what the mother firmly believed was a “change in [the child]’s behaviour”. By mid-2018, the parties agree that their relationship had deteriorated significantly, and that not long after they had discussions about the possibility of separating. Although the mother says that during their relationship she observed the father behave in ways that appeared inappropriate (which is a matter to which I will return), her concerns about him in this regard did not crystallise until August 2018 when her qualms about the older child intensified. Around that time, the older child wet the bed on numerous occasions and at least once expressed reluctance about being left in the father’s sole care. On 3 September 2018 the mother reported her concerns about the older child to the family doctor as well to a psychotherapist[1] (“the psychotherapist”) who the mother engaged to provide therapy for the older child. [1] The psychotherapist describes herself as a “registered art psychotherapist”. Later that day the Department of Family and Community Services (“FACS” as they were formerly known) (“the Department”) received two risk of significant harm reports in relation to both children. On 5 September 2018 the mother presented the older child to the psychotherapist for the first session of therapy. At the conclusion of this appointment the psychotherapist advised the mother against leaving the children in the father’s unsupervised care. The parties separated on 6 September 2018 and since this time the mother and the children have lived in the maternal grandparents’ home, a short distance from the former family home where the father continues to live.

Evidence

Evidence Before The Court

In the course of final submissions, it was identified that evidence to support the finding sought by the mother is to be found in the older child’s answers given in the third interview and in another interview with Departmental caseworkers, disclosures made in the course of this child’s therapy sessions with the psychologist and in the information given by the child to the expert when assessed. The mother did not maintain that the older child’s earlier disclosures made to the psychotherapist could ground such a finding having regard to the expert’s unchallenged evidence about concerns she had in relation to the role of the psychotherapist. However, as the mother deposes to having concerns about the children’s behaviour which it appears she believed at an earlier stage were connected to suspected sexual abuse, the entirety of her evidence and the context of the older child’s third interview and disclosures to the psychologist must also be considered. The Mother’s EvidenceThe older child’s behaviour As outlined in the background to these Reasons the mother deposes to having concerns about the presentation and behaviour of the older child for many years. According to her affidavit both parents had observed this child engaging in self-stimulation of her genitals from about the age of three which the mother describes as “masturbation” or “sexualised” behaviour. Under cross-examination about this conduct, the mother agreed that this had been a matter of concern to her since the child began engaging in it and that she had discussed her concern with various people including family members, a pre-school teacher and a neighbour but had not discussed her concerns about this matter with the father or any health professional until September 2018 when she first raised it with the general practitioner. As also noted in the background to these Reasons, the mother deposes to having concerns about other aspects of the older child’s behaviour and presentation since about mid 2016 when this child was around four and half and the younger child a newborn infant. The older child also apparently complained of unexpected tummy aches and appeared to the mother to be withdrawn, though it is not clear whether the mother has at any time contended that these aspects of this child’s behaviour are relevant to the allegation of sexual abuse. Both parties agree that the older child was having some difficulties at school in about April or May 2018. The parties also agree that from around July 2018 the older child was wetting the bed but according to the father’s affidavit this was associated with this child having been given an old bed and the younger child being given the older child’s bed. Under cross-examination the mother agreed that in about July 2018 there was a change to the older child’s bed and that she began wetting the bed at about that time.The father’s conduct The mother also deposes in her trial affidavit to the father behaving in ways that she found “inappropriate and concerning”. She gives as examples in her affidavit that she regularly saw the father with his hands in his pants “cupping his genitals” whilst engaging in activities such as watching television, during conversations and while on the phone. The mother deposes to finding this behaviour “disturbing” and telling him so. She also deposes to being unhappy about the father watching pornography on his IPad.

Decision

Reasons for decision

As noted, the only order proposed by the ICL that was not agreed to by the mother relates to the members of the paternal family who are proposed to supervise the father’s time with the children. As it appears that the mother’s comfort in adjusting to this arrangement is an important matter in relation to the success of such final orders and as the father’s sister was clearly an impressive witness who well-understood her responsibilities as a supervisor, I am satisfied that the arrangement proposed by the mother that the father’s sister only be the nominated supervisor is proper in the circumstances. CONCLUSIONParental responsibility Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”. In Goode & Goode[14] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise. [14] (2006) FLC 93-286. Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to children, the Court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of any of the children, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the children’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). In the present case there are no grounds to believe that either parent has engaged in abuse, ( or family violence) so the presumption is not inapplicable on this basis. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the ICL and mother must mean that the mother would have all the duties, powers, responsibilities and authority which, by law, parents have in relation to the children if such an order were made and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.

Ratio Decidendi

Legal Principle Established

The father has always denied any untoward conduct towards the children and confirmed under cross-examination that he absolutely denies all alleged inappropriate behaviour attributed to him by either child. In his words under cross-examination, “the allegations that [the older child] has raised did not happen full stop.”Events following separation When the mother attended at a police station on 6 September 2018 she understood that police were to investigate her complaint about the father’s conduct towards the children. According to the Magellan Report, there were a further six Risk of Serious Harm reports received by the Department between 7 September and 18 September in relation to sexualised behaviour by both children as well as touching of the genitals of each other and their cousin. Police and Departmental records indicate that there was a report made by the mother’s sister that on 25 September 2018 the children’s cousin made a complaint to her (the mother’s sister) that her vagina was itchy. It was reported that when asked why this child said “[name redacted] touches my gina” and then said “[father’s first name] touches my gina”. The mother’s sister did not file an affidavit in the proceedings.The complaint is investigated As set out in the Background, the mother’s complaints to police, together with other reports about the older child’s behaviour, anxiety and resistance to spending time with her father made to the Department, led to the child’s first interview carried out by local police on 4 October 2018. By the time the older child was interviewed by police she had seen the psychotherapist on four occasions. Little meaningful information about those therapy sessions can be gleaned from the psychotherapist’s notes which were produced on subpoena, but according to the psychotherapist’s report[5] the child had not made a disclosure of abuse at this stage. Her records also include the words “JIRT[6] needs a clear disclosure from child” and it appears (though it is not entirely clear) that these words were written at the first session of therapy.[5] An affidavit filed by the psychotherapist dated14 February 2020 annexing an undated report (“the psychotherapist’s report”) was not read by the mother, but tendered by the ICL and admitted as Exhibit 19.[6] JIRT (Joint Investigation and Response Team) is a previous interagency team that carried out the same functions as the JCPRP. In her first police interview (which was recorded and the recording and transcript admitted into evidence) the older child made no disclosures that she had been harmed by any person including her father and denied that the father had ever touched her on the genital region. Although the father was unaware at the time that the older child had been interviewed, he was contacted by police a few days later and subsequently voluntarily agreed to be interviewed himself. No further action was taken by police and the case was closed. Throughout October 2018 the older child continued to engage regularly with the psychotherapist.