Hibberd and Banner

[2013] FamCA 1066

FAMILY COURT OF AUSTRALIA

HIBBERD & BANNER [2013] FamCA 1066

FAMILY LAW – CHILDREN – Best interests – interim proceedings – mother makes further allegations of the father’s sexual abuse of the child – the pre-existing interim orders to prevail with the exception that the time the child spends with the father will be supervised – child to continue living with the mother – no determination of parental responsibility

Family Law Act 1975 (Cth) ss 60CC, 61C, 61DA, 62B, 65DA, 65DAA, 68P
APPLICANT:	Mr A Hibberd

RESPONDENT: Ms Banner

INDEPENDENT CHILDREN’S LAWYER: Mr Sharrock

FILE NUMBER: NCC 1466 of 2012

DATE DELIVERED: 13 December 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 13 December 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W Tregilgas

SOLICITOR FOR THE APPLICANT: Hills Solicitors

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Hunter Family Law Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr P Sharrock

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Craney Family Solicitors

Orders

1. For the purposes of implementing Orders 3 and 4 made on 23 August 2013 the time spent by the child with the father shall be the subject of supervision by either:

   (a)       The father’s wife, Ms B Hibberd;

   (b)       The paternal grandfather, Mr C Hibberd; or

   (c)       The paternal grandmother, Ms D Hibberd.

2. The Application in a Case filed by the mother on 23 September 2013 is dismissed.

3. The Response to an Application in a Case filed by the father on 5 November 2013 is dismissed

4. Any and all outstanding applications for interim orders are dismissed.

5. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

6. By reason of an inconsistency between some of these Orders and the Orders formerly made on 23 August 2013, and an existing Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:

   (a)       The Registrar of the Local Court of NSW at Town E; and

   (b)       The Commissioner of the NSW Police Service. 

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1466 of 2012

Mr A Hibberd

Applicant

And

Ms Banner

Respondent

And

Independent Children’s Lawyer

EX-TEMPORE

REASONS FOR JUDGMENT

1. These proceedings entail a highly conflicted dispute between the father and the mother over their only child who was born in 2010 and is still only three years of age. 

2. This is the second interim dispute between the parties; the first having been determined by the Court only several months ago on 23 August 2013. 

3. Some months ago the case was transferred from the Federal Circuit Court to the Family Court of Australia because of allegations made by the mother that the father sexually abused the child.  The mother vehemently believes it and the father vehemently denies it.

4. By reference to the evidence that was available to the Court on 23 August 2013, the parties’ dispute was determined on the basis that the child should live with the mother and spend time with the father each Tuesday for a few hours from after the conclusion of the child’s attendance at day-care until 7 pm that same evening and on each alternate weekend from 9 am Sunday until the commencement of the child’s day-care the following Tuesday. Arrangements were made for the child to be exchanged either at the day-care centre or at an alternate public venue. Regrettably, those orders were only successfully implemented for a little more than a week. 

5. The mother filed an Application in a Case on 23 September 2013 seeking substantial revision of those orders. She proposed that the orders made only a month before be suspended, that the child live with her, that she have sole parental responsibility for the child, and that the father have “no contact” with the child.  Clearly it was her intention to eliminate the father from the child’s life.

6. The father opposed such an outcome.  He filed a Response to an Application in a Case on 5 November 2013 in which he also sought that the former orders made on 23 August 2013 be discharged and replaced with orders that provided for him to have sole parental responsibility for the child, for the child to live with him, and for the child to spend only supervised time with the mother for two hours each alternate Saturday at a contact centre situated in close proximity to his household.

7. The Independent Children’s Lawyer curiously adopted a position in which he was unable to propose any orders at all to rectify the parties’ problems, even on only an interim basis. 

8. As regards evidence, the mother relied upon her affidavit filed on 23 September 2013 and the affidavit of her partner filed on 25 November 2013. The father relied on his affidavit, the affidavit of his partner, and the affidavits of the paternal grandparents, all of which were filed on 5 November 2013.

9. The Independent Children’s Lawyer relied upon the affidavit of the child’s paediatrician, Dr T, filed on 21 November 2013, which affidavit was procured pursuant to procedural orders made on 6 November 2013 in order to clarify some evidence adduced in the mother’s affidavit (at [51] and [52]). 

10. For reasons which I now intend to explain, I have determined that the orders made on 23 August 2013 should continue to prevail, save for variation to require that the child’s expenditure of time with the father be the subject of supervision at all times by either his wife, the paternal grandfather, or the paternal grandmother. 

11. Before explaining that outcome on the evidence it is firstly necessary to advert to legal principles which guide the determination of proceedings under Part VII of the Family Law Act (“the Act”). Such principles may well be remembered by the parties because they were referred to in the last hearing on 23 August.

12. Orders in respect of children are regulated under Part VII of the Act. When called upon to make a parenting order the Court is enjoined to bear in mind the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which properly be made.

13. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration and the Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child.

14. The Court is required to apply a rebuttable presumption that is in the best interests of the child for the child’s parents to be allocated equal shared parental responsibility for the child. Pausing at that juncture, when the last interim application was heard and determined on 23 August 2013, the Court declined to make any order allocating parental responsibility. It did so on that occasion in reliance upon the provisions of section 61DA(3) of the Act. No evidence that has been adduced, and no submission which has since been made, persuades the Court to take a different view in this renewed application for interim orders.

15. Accordingly, I do not intend to order equal shared parental responsibility to rest with the parties. Nor do I intend to order that they individually have sole parental responsibility for the child, as they each desired. Instead, as was the case in August, I intend to allow the parties to retain the parental responsibility for the child invested in them as parents pursuant to section 61C of the Act.

16. As a consequence of that determination, it is unnecessary to advert to the provisions of section 65DAA of the Act and the Court is relieved of the responsibility of having to consider arrangements for the child to either live for equal time in both households or, alternatively, live predominantly with one party and spend substantial and significant time with the other.

17. The reasons that were given on the last occasion, antecedent to the orders being pronounced on 23 August 2013, continue to operate and explain why the child should continue to live primarily with the mother and to spend substantial and significant time with the father. 

18. What brings the matter back before the Court is explained in the mother’s affidavit. Following the orders being made on 23 August 2013, the child would have spent time with the father on Tuesday 27 August 2013 and then again on Sunday 1 September, Monday 2 September, and Tuesday 3 September 2013.  The mother deposed in her affidavit that several days after the child’s arrival back in her home, on Thursday 5 September, she was getting the child ready for bed when the child said to her:

    Daddy was a monster and he played sleepovers in my bed.  He hurt my [AB].

19. The mother removed the child’s underwear and observed that her vagina was extremely red and inflamed.  She wiped her vagina with a moistened baby wipe and noticed that the wipe had dried blood residue on it.  She then examined the entrance of the child’s vagina and noticed there was dried blood on the entrance to her vagina. The child then said to her:

    I won’t say anything.  Daddy said no.

20. Pausing at that point, it is evident the mother then believed the child was revealing to her that the father had sexually abused her in a bed and that, as a consequence, he had injured her genitals.  It is common ground the child refers to her genitals as her “[AB].” 

21. It was tangentially mentioned at the last interim hearing that the child refers to two people in her life by the epithet “Daddy”. As the mother deposed in her affidavit (at [54] and following), the child often refers to the father in these proceedings as her “other daddy”. She attributes conversation to the child in her affidavit (at [54], [55], [57], and [61]) in which the child referred to the father as her “other daddy”. It is common ground that the child often refers to the mother’s current partner, Mr F, as simply “Daddy”. 

22. Plausibly, as has been pointed out by learned counsel for the father, the child’s revelation to the mother on 5 September 2013 of some person called “Daddy” being a monster, playing sleepovers in her bed, and hurting her “[AB]”, could have been a reference to Mr F rather than the father.  No doubt that issue will be explored more fully in cross-examination at the final trial.

23. In any event, returning to the chronology, about a week after the revelation, on 12 September 2013, the child was examined at a sexual assault clinic by Dr T, a paediatrician. The mother (at [51] and [52] of her affidavit) attributed to the paediatrician some form of diagnosis of the injury noticed to the child’s genitals by the paediatrician.  That was the catalyst for the procedural orders made on 6 November 2013, requiring a corroborative affidavit from the paediatrician.

24. The affidavit of the paediatrician was filed on 21 November 2013 and, importantly, it does not corroborate the mother’s version of the conversation between them. There is no doubt that at the child’s examination by the paediatrician on 12 September 2013 the child had an injury to her genitals.  Dr T described in her report (attached to her affidavit) that there was bright red blood oozing from the right side of the child’s genitals, just below the clitoral hood, between the labia majora and the labia minora.  There was no evidence of pallor or hypo-pigmentation of the skin in the anogenital area. 

25. Although the doctor observed on 12 September what she then believed to be a bruise deep in the child’s vestibule on the right side, she more recently confirmed from the follow up examination on 10 October that the area in the vestibule which initially appeared to be a sub-mucosal haemorrhage was possibly a vascular malformation, perhaps similar to her resolving strawberry naevus on the right side of her face, and it was unclear if she had an imperforate hymen. 

26. Consequently, the bruising that the paediatrician thought at first instance might be significant, such as to infer sexual assault, was discounted as an influential factor in that reasoning process. 

27. Nonetheless, the doctor did observe bright red blood oozing from the area of the child’s labia. She confirmed that “may” have been a result of intra-labial intercourse with “labial traction” causing “dehiscence” of a healing split between the labia, which would have caused fresh bleeding.  By the time of the follow up examination a month later the split or fissure between the labia majora and labia minora on the right side had completely healed and there was no blood present, fresh or dried. 

28. As the doctor concluded in relation to the injury she observed at the first examination on 12 September:

    The mechanism for that injury is unclear as there were no other associated injuries, such as bruising on the labia, to indicate a straddle injury.

29. But also, significantly, she factored into her observations and opinions her knowledge of the child’s reported disclosure, which was seemingly influential to her. She noted:

    The child herself disclosed that her father had slept over in the bed and hurt her [AB] and this is of significant concern.  

30. When the doctor was asked for her version of the conversation to which the mother deposed (at [51] and [52] of her affidavit), she clearly indicated that the conversation she had with the mother was intended to explain that sexual abuse was but one possible cause for the child’s injury – not the only cause for the child’s injury. The prior version of the conversation given by the mother was that the doctor had said sexual assault was the only possible cause of the injury. 

31. Presently, without further evidence, I do not find it significant that the paediatrician did not observe bruising on the labia to indicate the occurrence of a straddle injury at the time of examination on 12 September 2013. As she explained, in all likelihood, there was a pre-existing injury in the nature of a split or fissure which tended to bleed every time traction was applied so as to cause the injury to re-open. The splitting injury may have been caused quite some time beforehand and any bruising associated with it may well have dissipated by the time of the examination on 12 September 2013. Consequently, the physical evidence of the paediatrician is not probative either way. Her observations are consistent with sexual abuse and equally consistent with entirely innocent explanations for the child’s injury. 

32. Nonetheless, having heard the disclosure from the child on 5 September and hearing the paediatrician’s comments on 12 September, the mother’s belief in the father’s sexual abuse of the child galvanised and she now agitates for a restructure of the parenting arrangements made on 23 August 2013. 

33. It is apparent, from the submissions that have been made by learned counsel for the father, that the child’s injury may have an entirely innocuous or innocent cause. Even if the injury was caused to the child by some person in some sexually predatory way, the possibility remains open that the perpetrator of that abuse was the “Daddy” who lives with the mother in her household, being Mr F. 

34. Of course, I accept what the learned solicitor for the mother has submitted; namely, that the evidence is capable of ultimately satisfying the court that the father poses an unacceptable risk of sexual abuse to the child. I am presently not convinced that is necessarily so, but at this point in time it remains a distinct possibility, and the only way in which that risk can be satisfactorily attenuated before the evidence is properly tested is to either eliminate the father from the child’s life or to impose supervision on the time spent by the child with him. 

35. In making a determination between those two outcomes, I revert to the statutory criteria to which I have earlier referred. Section 60CC of the Act sets out the considerations for which the court must have regard, and the primary considerations are set out in section 60CC(2).

36. This case is being conducted on the basis that the child has a meaningful relationship with both parents from which she derives benefit. So much was obvious from the interim hearing in August when arrangements were made for the child to live with the mother and spend substantial and significant time with the father. Nothing has changed. Good reason needs to be given to impinge upon the child’s loving relationship with the father. The evidence which the mother has adduced, supposedly to prove the risk of her sexual abuse by the father pursuant to the second primary consideration specified by section 60CC(2)(b), is not presently sufficiently compelling to warrant elimination of the father from the child’s life.

37. The most appropriate way to manage the conflicting allegations on an interim basis is to impose supervision and for that reason I intend to make an order which requires the child’s time spent with the father, pursuant to the existing interim orders, to be supervised by either the father’s wife or either one of the paternal grandparents. 

38. The mother is dissatisfied with the reliability of each of those three people. While she may genuinely hold such an adverse view of them, there is no evidence before the Court to objectively demonstrate that any of them are unsatisfactory to discharge the responsibilities of supervisor.  It beggars belief that a submission could seriously be made that there is a risk the father’s wife, or that one or other of the paternal grandparents, would be complicit with the father in the sexual abuse of the child. I am therefore satisfied, on the balance of probabilities, that supervision of the child’s time with the father by one of those three people is an appropriate way to mollify the risk about which the mother is concerned.

39. None of the submissions made by any of the parties raised issues or touched upon the factors specified as additional considerations pursuant to section 60CC(3) of the Act and accordingly it is unnecessary to advert individually to them.

40. For those reasons, I intend to make the following interim orders.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 December 2013.

Associate: 

Date: