KENDRICK & KENDRICK

[2015] FamCA 519

FAMILY COURT OF AUSTRALIA

KENDRICK & KENDRICK [2015] FamCA 519

FAMILY LAW – CHILDREN – interim parenting – where existing consent orders – where benefit of a meaningful relationship with both of her parents considered – where there is a significant issue of the need to protect the child from physical or psychological harm – where preparation of an expert report ordered

Family Law Act 1975 (Cth) ss 60B, 60CC

Dieter& Dieter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

APPLICANT: Ms Kendrick

RESPONDENT: Mr Kendrick

INDEPENDENT CHILDREN’S LAWYER: Ms Nikitin

FILE NUMBER: PAC 2733 of 2010

DATE DELIVERED: 25 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: Cluff & Associates

COUNSEL FOR THE RESPONDENT: Mr Morley

SOLICITOR FOR THE RESPONDENT: Anderson Boemi Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nikitin of Legal Aid NSW

Orders

1. Ms B be appointed as the single expert for the purposes of these proceedings noting that each of the parties have agreed to pay half of Ms B’s costs for the preparation of the report.

2. The terms of reference or matters to be addressed in Ms B’s report be provided to me in Chambers by the Independent Children’s Lawyer within 7 days.

3. That Orders 5, 6, 7, 8 and 10 made 31 August 2010 be suspended.

4. That the child of the marriage C born ... 2007 spend time with the Respondent father every Saturday from 9.00am to 5.00pm such time to commence at the Suburb D McDonalds.

5. The child communicate with the Respondent father by telephone between 6.00pm and 7.00pm on a Tuesday and Thursday of each week and for this purpose:

6. The Applicant mother shall permit and not interfere with the child initiating and receiving telephone calls from the father; and

7. The Applicant mother shall do all things necessary to positively encourage and facilitate the child communicating with the Respondent father.

8. To facilitate a changeover in the absence of any other agreement being reached between the parties from time to time, the Applicant mother is to deliver the child to Suburb D McDonalds at the commencement of the child’s time with the Respondent father and collect the child from that McDonalds at the conclusion of the child’s time with the Respondent father.

9. The Respondent father do all things to ensure that for all times that the child is spending time with the Respondent father the child, E born … 2004 shall not be present.

10. Each party be restrained from discussing with the child in any way the current court matter and each party be restrained from showing the child any documents related to this court matter.

11. Reasons for decision are to be published on a date to be fixed.

12. The matter is to be relisted for a first day of the Less Adversarial Trial following the publishing of the report of Ms B.

13. Leave is granted to the Independent Children’s Lawyer to photocopy material produced on subpoena for the purposes of providing them to the expert.

14. Leave is granted to the Independent Children’s Lawyer to relist the matter on any matter that the Independent Children’s Lawyer considers appropriate.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kendrick & Kendrick 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 PARRAMATTA

FILE NUMBER: PAC 2733  of 2010

Ms Kendrick

Applicant

And

Mr Kendrick

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parents of a seven year old girl, C, separated in 2009 after a five year marriage. In August 2010 they entered into consent orders providing that they have equal shared parental responsibility for the child, that she live with her mother, and that she spend time with her father on alternate weekends and after the child commenced school, in school holidays and on special days.

2. Each of the parents has re-partnered and the child has a half sibling within each of the parents’ families.

3. For some time the child made complaints to her mother about the conduct of her stepbrother E, the child of her father’s wife. In about September 2014, there was an incident of a sexual nature involving E, who was then nine, and the child. The father and his wife say that they implemented various supervision and discipline procedures as a result of this incident.

4. Subsequently, the child made a complaint to her mother about this incident and was interviewed by a specialized team dealing with allegations of child abuse. On both occasions the child made serious disclosures about E’s conduct.

5. A few days later the mother withheld the child from spending time with the father and on 22 April 2015 the mother filed this application seeking interim orders that the father’s time with the child be suspended.

6. The father seeks that the mother’s interim application be dismissed and that the parenting arrangements continue largely in accordance with the consent orders. He also proposes that the issue of the child’s safety be dealt with by an additional order that he ensure that on all occasions that the child is spending time with him that the child is not to be in the company of E without adult supervision. The mother amended her application for the purposes of the hearing and proposed that the child spend time with her father on one day each weekend and that E not be present during this time.

7. The Independent Children’s Lawyer supports the mother’s application as amended in the course of the hearing.

8. On 15 June 2015 I made orders in terms of the mother’s amended application and indicated that I would publish my reasons on a later date. These are my Reasons.

Background

1. It is necessary to set out some of the further background in relation to the matter for the purposes of this application.

2. The mother and father were married in 2004. Their only child C was born in 2007 and was less than two years old when the parties separated in 2009.

3. The parties divorced in September 2010.

4. Consent orders in relation to the parenting arrangements for the child were made in the Federal Magistrates Court, as it was then known, on 31 August 2010. Pursuant to those orders, the parents share equal parental responsibility for long term decisions relating to the child. The child lives with her mother and spends time with her father including on alternate weekends and during block periods after the child commenced school in January 2013 as well as on special days. Orders for telephone contact, changeover and other matters were also made.

5. In 2013 the father married his current wife, Ms F, who has a son, E, from her previous relationship. E was born in 2004 and is now 10 and a half. The father and his wife Ms F also have an 11 month old baby, G.

6. The parenting orders made in August 2010 have been complied with and the child has spent time with her father as ordered.

7. On unspecified dates in 2010 and 2011 that mother says that the child complained to her that E asked her to lift up her skirt and “show him her undies”. At this stage the child was three to four years of age and E was six to seven. The mother says that she discussed this issue with the father at the time, asking him to sort it out but that the father said it was only a minor thing and he would sort it out. The father does not address this incident in his affidavit and it is not clear whether he disputes it.

8. In 2013, when the child was approximately five, the mother says that the child complained that E was trying to kiss her and that she asked the father to take immediate action. She also says that she reported her concerns to the family doctor. In August, November and December 2013 the mother sent the father emails regarding her concerns. In one email the mother wrote that the child complained “when I tell I E that I am telling daddy, E locks his bedroom door and I can’t get out”. As I understand it, the father did not respond to those emails at the time.

9. During the September-October school holidays in 2014 when the father was spending time with the child, the father’s family went on a caravan holiday. On an occasion during that holiday both the father and his wife left the child and E alone at the caravan. When the father and his wife returned, the child reported a complaint about E’s conduct, though the father and his wife give differing versions as to the events, and the content of the complaint. The father’s wife says that she received the complaint from the child who told her that “[E] was trying to lay on top of [her] and pull [her] pants down”.

10. The father and his wife say that following this incident, they implemented some supervision and discipline actions to ensure that E and the child would not be left alone in the future. In particular, the father says that after they returned from that holiday, when the child next came to stay, he and his wife “sat both [E] and the child down” and informed them of rules for the future whereby they could not play together unless an adult was around and that the two of them were not to be alone together out of eyesight. The father says that since that date, he and wife have been scrupulous in ensuring that there is no opportunity for E and the child to be alone together. There is no evidence that the father discussed this incident or the rules that were put in place with the mother at the time.

11. The mother says that on 12 March 2015, the child made complaints to her which include the following:

    When we were at the Caravan Park Daddy and [Ms F] went walking, [E] said let’s do sex. I said no and [E] put me on the bed. He pulled my pants down and my undies and put his penis in my butt.

    C described to her mother that this felt “a bit weird like it was splitting”. The child then told her mother that her father and Ms F [the father’s wife] came in and she was crying and told them what E had done “but he made up lies”. the child also told her mother that she was glad that she and E “don’t do cubbies anymore” and that when they played cubbies E did “rude things” because her father and his wife could not see them in there. She said that these things included pulling his pants down, licking her while he tried to kiss her and putting “his penis on my vagina but not in it”.

12. In this conversation the mother says the child reported telling her father what had been happening and that her father would smack E and tell him not to do it but complained that her stepmother “calls me a dobber all the time” and said to her “stop dobbing you will get daddy into trouble”.

13. The mother reported the child’s complaint to the Department of Family and Community Services (‘Community Services’) and the child was interviewed by the Joint Investigation Response Team (JIRT).

14. On 17 March 2015, on the mother’s instructions the mother’s solicitors wrote to the father and informed him of the complaints that the child made in the course of the conversation with her mother. The solicitor informed the father that the complaint had been passed onto Community Services and an investigation was underway and that the child would not be made available for contact with him until the investigation had been resolved. The father says in his affidavit that this was the first occasion that he was aware of an allegation of “actual sexual conduct by [E] towards the child.”

15. The father responded to the mother’s solicitor by way of an email in which he made allegations concerning the mother’s care of the child and threatened to take legal action against the mother. However, he said that he would not proceed with this action if he was able to spend time with the child on the upcoming weekend in accordance with the court order. He also referred to the mother’s solicitor’s action as “wasting [his] time & interfering in [his] families (sic) life”.

16. On about 19 March 2015, a detective from JIRT contacted the father and informed him they were investigating the sexual assault allegation against E. The father says that he told the police officer that he did recall the incident but that his wife dealt it. He says that he told the officer that he understood the allegation was that “[E] gave the child an inappropriate kiss”. The father does not say that he told the police about any action he and his wife had taken as a result of the incident.

17. In a statement to police on 7 April 2015, the father’s wife says this of the incident: “when I returned to the van the child disclosed that something had happened between her and [E] of a sexual nature. As a result [E] was disciplined.”

18. The father has not spoken to the child since she made the disclosures to her mother, though the parties are at odds as to the reasons for this.

19. On 22 April 2015, the mother commenced proceedings seeking orders that she have sole parental responsibility for the child, that the child live with her and spend time with the father as ordered by the Court. On an interim basis the mother sought that the current parenting orders be suspended, that she have sole parental responsibility for the child and that the child live with her. On that date she also filed a Notice of Child Abuse.

20. Despite being informed by the mother that she would not be making the child available and after the mother had commenced these proceedings seeking interim orders that the father’s time with the child be suspended, on occasions the father continued to attend at the mother’s home, it appears apparently with the intention of spending time with the child. The child has not spent time with her father since complaining to her mother about E’s actions.

21. The Magellan Report dated 11 June 2015 records one report made in relation to the child in 2009 and three reports in December 2013, none of which were treated as reports raising a risk of significant harm. A complaint made with respect to E’s behaviour on 13 March 2015 was investigated by the Department and was found to be substantiated following investigation by JIRT. It is recorded that during an interview on 30 March 2015 the child disclosed that E had “pushed her on to bed, pulled her pants down, lied (sic) on top of her and stuck his penis in her bottom”. As E was under the age of ten when the incidents occurred he was not charged by police.

22. On 31 March 2015 the Department also received an allegation that the child is smacked across the face and head by her mother. the child was interviewed a second time in early April 2015 and disclosed that once when she got in trouble with her mother she received smacks to her face. It is JIRT’s recommendation that there are no concerns with the mother’s care of the child.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the child are met in particular ways such as:

   a)ensuring that a child has the benefit of both of her parents having a meaningful involvement in her life, to the maximum extent consistent with the best interests of the child; and

   b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

3. The principles underlying these objects include

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. In Dieter& Dieter[2], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. In this matter it is likely to be some months before a decision can be made whether it is in the child’s best interests for the previous parenting regime to be reinstated or some orders made for the long term. The parties have agreed that an expert report is required and it is likely that such a report will take some months to prepare.

   [2] [2011] FamCAFC 82

2. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to be consider ordinarily is that of parental responsibility. In this matter although the mother initially sought that the order giving the parents shared parental responsibility be suspended and sole parental responsibility be given to her, ultimately she only sought alternate orders with respect to the father’s time with the child.

3. So far as other orders are concerned the Court must make such orders as are in the best interests of the children as a result of considerations of the matter set out in 60CC.

Section 60CC considerations – What order is in the best interests of the child?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b). 

3. The proposal under the mother’s Initiating Application was for no order to be made with respect to father’s time with the child. However, in the course of proceedings she proposed that only the orders with respect to the child’s time with the father be suspended and in lieu that the child spend each Saturday from 9 am to 5 pm with her father and that the father ensure that E not be present during this time.

4. Initially the father had proposed that in the event that the orders that he sought were not made that he would not spend any time with the child. In the course of the proceedings however, he subsequently agreed that if the court did not make the orders he sought, he would exercise the time with the child as proposed by the mother. The mother’s proposal would mean that the child would continue to receive the benefit of having a meaningful relationship with both of her parents.

5. The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse in the father’s home is clearly the significant issue in this matter. Although it is not suggested that the father has subjected the child to abuse, two concerns arise, being the risk of physical and psychological harm arising from the possibility of being sexually abused within the paternal home and from the father and stepmother’s reaction to it.

6. It is submitted by the mother that the father took insufficient action to protect the child in the past with respect to E’s conduct and his proposal that the child be protected by means of an order requiring him to ensure that the child is not in E’s company alone when spending with him will be inadequate to protect her in the future.

1. There is conflicting evidence concerning the content of the child’s complaint to the father’s wife in September/October 2014 and the actions taken in response. However, it is not in dispute that the father’s wife actually received the complaint and she says that it was to the effect that E was trying on lay on top of the child and pull her pants down which she regarded as an allegation of actual sexual conduct. The father, however, says that he had understood that the complaint was that E had given the child an inappropriate kiss.

2. The father and his wife also are certain, and it seems consistent with the child’s complaint, that this incident occurred in the September/October holidays in 2014. This conduct is consistent with, but more serious than, conduct which the mother had complained about in August, November and December 2013 and possibly earlier. In my view in these circumstances it would have been expected that the father would have informed the mother and reassured her about the actions that he and his wife had taken to ensure supervision and appropriate discipline of E with respect to the incident. However, there is no evidence that this occurred.

3. Further, it is clear in my view, from the emails written by the father to the mother’s legal representative on March 17 and March 20, 2015 that he regarded the complaints about E’s conduct as trivial and insignificant and that even raising the issue amounted to an interference in his time with the child. In those emails the father also did not address the complaint itself, the actions he says he took in response to it, or the complaint that the wife had admonished the child for “dobbing”. There is in my view, no recognition by the father in these emails of the existence of any risk of harm to the child.

4. So far as psychological harm is concerned, the child complained that her complaint to her stepmother was regarded as “dobbing” and she was told not to do it again. The child was clearly distressed by the incident in September/October 2014 even on the father’s version of events, though I note that the father’s wife gives an alternate version about the child’s disclosure in which she thanks the child for being honest rather than admonishing her.

5. According to a medical report attached to the mother’s affidavit from a specialist, in September 2014 the child presented with a chronic cough which the specialist felt was due to anxiety and she recommended that the child see a paediatrician for the assessment of her anxiety. As indicated, the parties have agreed that an expert report be prepared which will obviously consider the impact of the child of not only the alleged incident but also the reaction within the respective households of her disclosure.

6. At this stage, on the limited information available, I am concerned that the father does not fully appreciate the risks to the child’s psychological wellbeing associated with both contact with E and in the father’s home more generally where she perceives that she was criticised for “dobbing”. I am also of the view that an order in the nature proposed by the father, that he ensure that E is not brought into contact with the child without adult supervision would be impracticable in circumstances where the father and his wife share the parenting of E and another young child.

7. Section 60CC(3) sets out additional considerations relating to the best interests of the child. A number of these considerations are unknown such as the views of the child and in any event, little weight would be attached to those views given her age.

8. It can be assumed that for the purposes of this interim hearing given the history of care of the child that she shares a good relationship with each of her parents and their extended families. It can also be assumed that each of the parents has taken the opportunity to participate in decision making, to spend time with and communicate with the child on the basis of the undisputed evidence that the final orders have operated well and without incident until the current issue arose.

9. So far as the likely effect of the change in the child’s circumstances is concerned, given the history of her pattern of care in the past, it is likely that she will express some sadness about not being able to spend overnight time with her father and his family as she did in the past. However, the mother’s proposed order is that she spend an entire day each weekend with her father which is not significantly less than the time that she spent with him in the past. It will however amount to reduced time in the holiday period and participation in family holiday activities as well as much more limited time with her stepmother and half-sister and no time with her stepbrother.

10. There is no practical difficulty or particular concerns of expense of the child spending time with her father as proposed under the mother’s order. As indicated, there are in my view significant practical difficulties with the order concerning supervision of E when the father spends time with the child under the father’s proposal.

11. In my view, some concerns about the father and his wife’s capacity to provide for the child’s needs including her emotional needs arise in this matter. It appears that the father may not appreciate the seriousness of the impact of E’s behaviour and the response to it in his home, upon the child.

12. I also have some concerns arising from the emails sent to the mother’s lawyer by the father in relation to his understanding of his responsibilities as a parent. The mother had, in my view, through a solicitor raised a legitimate issue of concern about the child’s care which was trivialised and dismissed in a disparaging manner by the father.

13. There is no evidence that there are concerns about family violence involving the child or a member of her family.

Conclusion

1. In coming to a decision about the orders that are in the child’s best interests, I must balance the various matters to which I have referred.  In my view, although the issue of the likely effect of the change on circumstances upon the child is important, the most significant issue in this case is the need to protect the child from harm. The orders proposed by the mother, in my view, provide an appropriate safeguard for the child to address this risk while providing the child with the benefit of a meaningful relationship with both of her parents. For these reasons I made the orders I did on 15 June 2015

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 25 June 2015.

Legal Associate: 

Date: 24 June 2015