Jace and Westphalia

[2010] FamCA 293

FAMILY COURT OF AUSTRALIA

JACE & WESTPHALIA [2010] FamCA 293

FAMILY LAW – CHILDREN – spend time order suspended unless supervised pending further order
FAMILY LAW – CHILDREN – with whom a child lives

Family Law Act 1975 (Cth)

APPLICANT: Mr Jace

RESPONDENT: Ms Westphalia

FILE NUMBER: SYC 5998 of 2009

DATE DELIVERED: 13 April 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 13 April 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: PHOENIX LEGAL CONSULTANCY

SOLICITOR FOR THE RESPONDENT: DAVID H COHEN & COMPANY

Orders

1. The proceedings are adjourned to the Judicial Registrar's Duty List at 9:30 am on 20 April 2010.

2. That unless the parties otherwise agree in writing the child A born … January 2008 reside with the mother pending further order.

3. That the child spend no time with the father unless supervised in an arrangement that is agreed between the parties or approved by the Court pending further order.

4. Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the child.

5. Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.

6. Each party make available to Legal Aid New South Wales, as soon as practicable, copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

IT IS NOTED that publication of this judgment under the pseudonym Jace & Westphalia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5998 of 2009

MR JACE

Applicant

And

MS WESTPHALIA

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, A.  January 2008 she was born, and so is two years of age.  I think the father is 48 and the mother is 38. The father has three adult children who are:  17, 22 and 24 years of age.  The parents lived together from either 2003 or July 2004 and separated in either August 2008 or November 2007.  The first figure is that given by the mother, the second by the father.  A is their only child.

2. They entered in to a parenting plan on 5 May 2009, providing the father to have time with the child in the afternoon, on Mondays and Fridays, and then day time on Sundays, increasing over time. From 21 August last year, however, the time was spent at a day care centre. That has changed of more recent times and there has been day only time between the father and the child.  The parties have wrestled with this. The mother now says she was pressured into the parenting plan.

3. The parents attended on a Family Consultant but they have not been able to reach agreement. There have been a series of allegations made by the mother in relation to the father.  Variously, allegations in terms of him being not involved enough; inconsistent; neglectful; violent of language; having marijuana in his motor vehicle; there is an allegation of fraud and lastly – that the father inappropriately touched the child.

4. The child reported that she has been touched on her “gina”, which is, the mother says, the name that they use for vagina. Something similar to that has been said by the child to the child care workers.  The evidence that we have from the child care centre is that there is a delightful relationship between the father and the child, some separation anxiety, but a lovely welcoming occasion and age-appropriate behaviour. The Family Consultant saw the parties in February and observed a lovely relationship between the parents and the child, perhaps marginally more spontaneous with the father, but nothing to concern anybody about.

5. The Consultant observed that the child’s behaviour on separation and reunion are suggestive of an avoidant attachment pattern which – if not extreme, and it doesn’t appear to be in the child’s case – is a normative attachment pattern.  The child settled with each parent, was observed to interact warmly and comfortably with both her mother and her father.  Each of her parents responded in a sensitive and mindful way.  Opportunities arose to observe the father’s parenting skills.  His behaviour in this regard was consistent with that of a calm, experienced parent. When her parents were together in the child care room, which was at the end of the two observations, the child moved comfortably between them. 

6. There are serious allegations made but not involving an allegation that the child has been penetrated by anybody. Sadly the child has been photographed on a regular basis and has been medically examined.  The parties have been told that the JIRT team – that is the cooperative of the Department of Human Services and the Police – won’t take any further action and one can understand why, given that the complainant is two years of age.

7. The parties are awaiting advice from the Department of Human Services as to whether they are going to take any further action at all.  That advice is not available yet. A Notice of Risk of Abuse has been filed on behalf of the mother, and it raises two incidents where the child said something to the mother, “Daddy touched my gina.  Daddy touched me.” I do not know the terms of the notification from the child care centre.

8. There are all sorts of problems with this.  If you show interest in a particular area of a two year olds body, then that becomes the focus. The child will say things to try and please a parent. If the child gets a reaction from a parent by saying a particular thing, the child will repeat that thing.  If you asked the child the same question twice, the child will change the answer because the child thinks that the first answer is wrong.

9. Assuming for the moment that there is no abuse here, and that the mother is hyper-vigilant. There could be real problems in the future. Every time the child says something ambiguous, it might illicit a reaction from the mother, and that could cause the child to repeat it. The child might repeat it to somebody else, and there could be a notification.

10. The parties’ affidavits reveal a substantial factual dispute between them. As I said during the course of submissions, there are scores of matters about which one of the parties says “black” and the other one says “white”.  They need to be careful about that in the context of the court system. Courts rely very much on the evidence of parties because relevant events often occur in private, and there are rarely credible independent witnesses. If the court discovers that one party is exaggerating or lying in their evidence, that party’s evidence about things is going to be given less weight or no weight. The parties give clear and contradictory evidence about various matters and that is a worry.

11. I am to make orders in the best interests of a child.  One does that by reference to considerations in the Family Law Act.  The primary considerations are the benefit of a meaningful relationship with both parents.  The mother’s proposal would have no meaningful relationship between the child and the father.  Secondly, the need to protect the child from physical or psychological harm, being subjected or exposed to abuse, neglect or family violence. The child is now being harmed. I do not know, by whom.

12. As to the additional considerations, the child is too young to express a view.  As to the nature of the relationship of the child with the parents.  The evidence suggests it is good, but of course, if the child is being physically abused by the father, then by definition that is irrelevant. If the mother is hyper-vigilant, then that is not in the best interests of the child either.

13. As to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship with the other parent – well, at the moment, I think, the mother wants to interfere with the child’s relationship with the father. At this time the father seeks to spend time with the child.  He is considering seeking an order that the child reside predominantly with him.

14. As to the effect of the changes in the child’s circumstances – I’m being asked to interfere with the child’s time with the father and that is what I intend to do.  That will cause some harm. Mr Cohen, for the father, will identify appropriate supervisors. This is a relatively simple supervision task, so I would imagine that the court would look favourably on any responsible adult who could provide the supervision.

15. As to the practical difficulty in effecting the proposals – there is nothing much there unless the parties have to pay someone to supervise. As to the capacity of the parents – this is a hotly contested issue. The mother variously thinks the father is inconsistent, may well have physically abused the child, transported the child in cars without a proper car seat restraint, has been involved in violent verbal confrontations in the presence of the child. The father would have it that the mother has set a course to interfere with his relationship with the child, at every point.

16. As to the maturity, sex, lifestyle, background and culture of the child. The critical thing is that she is very young. As to the attitude to the child and responsibilities of parenthood, demonstrated by each of the parents. The parties are diametrically opposed about this, for the reasons that I’ve said.

17. As to there being any family violence involving the child, a member the child’s family or any family violence order.  I have not been told about any orders.  There is evidence of instances where a neighbour had to interfere to take the child away from a confrontation between the parents. There is evidence of a tug-of-war between the parties, when the child has been in the car, or getting out of the car. Those allegations are made against each of the parties. Finally, as to any other fact or circumstance that is relevant - I don’t think anything comes to attention here.

18. If there is to be equal shared parental responsibility, then I am to consider, with a view to ordering equal time and if not ordered, substantial and significant time.  I cannot predict the ultimate decision about parental responsibility.

19. Here I am weighing up issues going to the primary considerations. The benefit of the relationship with the father, against the need to protect the child from physical or psychological harm. This is not a simple assessment but it seems to me that the greater harm, is the risk that the father has acted inappropriately.  A is a very young child and terrible damage would be done by a betrayal of responsibility of the order that is alleged here. The competing harm is an interference with the amount of time and circumstances of time spent between the father and the child. Weighed in the balance, the greater harm would come from physical abuse. Hopefully, there is a sound attachment between this child and the father and if we get to the point when the parties agree or the court decides that supervision should be lifted, a more normal contact arrangement can be restored. In the meantime an ICL will be appointed and what inquiries are practicable will be undertaken.

20. Presumably that is why the mother brought the matter to Court. Although the allegation isn’t at the more serious end of allegations of sexual abuse or violence, she felt that the greater risk was of sexual abuse.

21. This is the typical approach we take in interim proceedings. We put protections in place to address the presenting risks and are left with the parents’ good judgment and what inquiries can be made.

22. There are substantial issues at stake here.  The father has indicated through his solicitor that he may make an application for the child to live with him. The pattern of different allegations made against the father since separation is worrying.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date: 21 April 2010