Kirk & Kirk

[2018] FamCA 140

FAMILY COURT OF AUSTRALIA

KIRK & KIRK AND ANOR [2018] FamCA 140

FAMILY LAW – CHILD ABUSE – Allegations of physical and sexual abuse – Where a number of notifications have been made – Where the children have been subjected to examination and questioning about alleged abuse – Where the allegations have been investigated and lack corroboration – Where a child has been retained due to allegations.

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the Independent Children’s Lawyer supports a suspension of time – Best interests of the child – The best interests of the child are paramount.

Family Law Act 1975 (Cth) ss 60CA, 60B(1), 60CC(2), 60CC(2A), 60CC(3)

APPLICANT: Ms Kirk

1st RESPONDENT: Ms B Kirk

2nd RESPONDENT: Mr Dudley

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 687 of 2016

DATE DELIVERED: 8 March 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 27 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: B C O’Leary & Associates

COUNSEL FOR THE 1ST RESPONDENT: Mr Harley

SOLICITOR FOR THE 1ST RESPONDENT: Dixon Gallasch Pty Ltd

COUNSEL FOR THE 2ND RESPONDENT: Litigant in Person

SOLICITOR FOR THE 2ND RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

UPON NOTING that the maternal grandmother and the father discontinue the Response filed 27 February 2018 and the Application in a Case filed 22 February 2018

IT IS ORDERED:

1. That paragraphs 1, 2, 3, 4 and 5 of the orders made 8 March 2016 be suspended until 10 am on 24 March 2018.

2. That during the period of suspension B born … 2008 and C born … 2014 shall live with the mother.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 687  of 2016

Ms Kirk

Applicant

And

Ms B Kirk and Mr Dudley

Respondents

REASONS FOR JUDGMENT

INTRODUCTION  

1. Ms Kirk (“the maternal grandmother”) is the applicant in the substantive proceedings. Ms B Kirk (“the mother”) is the first respondent and Mr Dudley (“the father”) is the second respondent.

2. The proceedings seek to resolve the ongoing parenting arrangements in respect of B born in 2008 (“B”) and C born in 2014 (“C”) (collectively “the children”).

3. Mr D is B’s biological father. He does not participate in the proceedings and is no longer a party. C is the child of the mother and the father.

4. The maternal grandmother and the mother are both represented by solicitor and counsel, whereas the father appears in person.

5. The proceedings have been listed for trial.

6. The current arrangements for the children spending time with each of the parties is determined by an order made 8 March 2016 which provides that until further order B lives with the maternal grandmother but spends regular time with the mother each week from the conclusion of school on Thursday until 5 pm Saturday.

7. C lives with the mother and spends time with the maternal grandmother each week from 10 am Sunday to 12 noon on the following Monday and with the father from 12 noon until 4 pm each Monday and from 10am until 4pm each Tuesday.

8. The father resides in the premises of the maternal grandmother. Accordingly, C spends time in the maternal grandmother’s home from 10am Sunday until the following Monday and then during the day on Tuesday.

9. The Court is assisted by the appointment of an Independent Children’s Lawyer (“ICL”).

10. The mother’s partner Mr E (“Mr E”) has been a focus of concern of the maternal grandmother and the father. They allege that Mr E is “very aggressive, abusive and becomes violently angry over the slightest thing”. They assert that he is a heavy user of methamphetamine and marijuana and that the children are frightened of him, with the suggestion that because he was sexually assaulted as a child, the children may well be at risk of sexual assault in his presence.

11. The allegations directed to Mr E are denied by the mother. She considers her partner has become a convenient focus for the maternal grandmother and the father to disrupt her relationship with the children.

12. The notation to the order of 8 March 2016 refers to an undertaking of Mr E that he will not use or consume any illegal drugs or involve himself in any drug-related activity in the presence of the children.

13. The order also provides for the mother to be restrained from leaving any of the children alone in the care of Mr E or from placing the children at risk by using illegal substances, physical assault or the denigration of the maternal grandmother or father in the presence of the children.

14. With some modification, the order of 8 March 2016 continues to underpin the arrangements for the children spending time with each of the parties.

THE MOTHER’S APPLICATION

1. By Application in a Case filed 21 February 2018, the mother sought a recovery order in relation to C. The short summary is that on 18 February 2018 the mother received a phone call from the police. She attended with Mr E who was the subject of police interview.

2. The catalyst for the investigation by the police was an allegation made by the maternal grandmother that Mr E sexually abused C. It is not controversial that the maternal grandmother and the father took C to a hospital where she was examined by a paediatrician for signs of sexual abuse or assault. It is now accepted by the maternal grandmother and the father that C was diagnosed as having a mild case of vulvovaginitis. C did not make any disclosure of sexual abuse, nor was there any physical corroboration for the assertion.

3. C was returned to the mother’s care on 20 February 2018 and pursuant to the orders then spent time with the father. He refused to return C to the mother’s care alleging that C was not safe.

4. For a considerable period of time C has been in the primary care of the mother and has spent limited time away from her.

5. In anticipation of the mother’s application, the father filed an Application in a Case on 22 February 2018 seeking that C be placed in his joint care with the maternal grandmother. The father sought that C’s time with the mother be supervised and in particular Mr E was not to come within 100 meters of C. The application was supported by an affidavit. The father asserts that C alleged that on 11 and 13 February 2018 the mother had kicked her with sufficient force to cause bruising. C was taken to a psychologist who was shown the bruising.

6. On 20 February 2018 the father records that C had said that her mother had slapped her across the face.

7. The father then attended on the police and sought to lay an assault charge.

8. The father also reports on a dream allegedly experienced by B that Mr E had sexually assaulted her.

9. Notwithstanding that the father accepts the outcome of the physical examination, he considered that “due to the escalating assaults and abuse, after consulting the Police, [the Minister] and legal advice” he exercised his “Parental Rights” and retained C.

10. He considers that in the home of the maternal grandmother C is in an environment free of physical and mental abuse.

11. The maternal grandmother filed a response to the mother’s application seeking that C live with her and spend supervised time with the mother. The content of her affidavit bears close resemblance to the father’s affidavit.

12. She alleges that Mr E and the mother have been physically abusive to C and when given an opportunity to do so, C made clear disclosures to the CPS psychologist.

13. Both children were the subject of interview by the police. C was subjected to a vaginal examination by the maternal grandmother and then examination by a paediatrician. The paediatrician and the investigating police officer both advised the maternal grandmother that there was no evidence consistent with sexual abuse. Notwithstanding their advice, the maternal grandmother considered that C remained at risk and acted on her apparent refusal to return to the care of the mother.

14. The maternal grandmother considers that the mother is not able to restrain her aggressive interaction with the children, that she has struck and kicked them and that they are at risk of sexual abuse from Mr E.

15. The Court was assisted by an affidavit filed 26 February 2018 by the ICL which annexes a report from the CAMHS psychologist Dr F.

16. The report is detailed, but in summary provides no corroboration for the allegation that the children have been physically or sexually abused, or are at risk from either the mother or Mr E.

17. The report is clear and confirms that nothing was said to either the father or the maternal grandmother which may have been equivocal or could have been interpreted by them to suggest the children displayed injury or had been subject to abuse.

18. The report details the involvement of CAMHS since 15 February 2016. It provides a lengthy history of allegations being made by the father and the maternal grandmother, the subsequent investigation of those allegations and the lack of any support or corroboration for concern.

19. There are potentially significant factual disparity between the matters as alleged by the maternal grandmother and the father and the various health professionals that have been involved with the children.

20. The mother raises the concern that the volume of notification and allegation resulting in the children being assessed and examined may well have reached a level that constitutes emotional or psychological abuse.

21. That assertion may well be a significant factor in the final hearing.

PRINCIPLES RELEVANT TO INTERIM PARENTING CONSIDERATIONS

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration. The best interests of the child are to be considered by the application of the objects of s 60B(1).

2. I am cognisant of the primary considerations and the additional considerations in respect of the matters set out in s 60CC(2) and (3).

3. I am mindful of the direction contained in s 60CC(2A) and have regard to the allegations of the maternal grandmother and the father that the children are at risk of physical and sexual abuse from the mother and Mr E.

4. I consider it necessary to always adopt a cautious approach in respect of the resolution of interim proceedings where an opportunity has not been provided to test the evidence.

5. Whatever perceived injustice may result to a party, it must be a secondary consideration to the need to ensure that the children are in a safe and protected environment.

6. Whilst the current proceedings come about because of the trenchant and repeated allegations by the maternal grandmother and the father that the children are at risk of harm in the continued care of the mother, there is now the opposite proposition which is that the children are at risk of abuse by the maternal grandmother and father arising from their conduct.

7. The ICL does not support the orders sought by either the maternal grandmother or the father. The ICL seeks that the current orders continue but that there be a period of time during which the order in favour of the maternal grandmother and father is suspended to give the children an opportunity to readjust to the turbulent circumstances of the last two weeks.

8. The submissions of the ICL were such that the father and then somewhat belatedly, the maternal grandmother, considered that they should withdraw and discontinue their application and response. On their separate applications, leave was given for the interim proceedings to be discontinued.

9. It could not be said that what has happened to the children of recent date is in their best interests. Arising out of what now must be considered demonstrably unsubstantiated allegations by the maternal grandmother and the father, the children have been the subject of police interview and physical and genital examination.

10. There is merit in the submission of the ICL.

11. In the circumstances of this case, whilst I consider that pending trial the current orders should remain, there is merit in suspending the time that the children spend with the maternal grandmother and the father to enable some stability to be restored to their lives.

12. I propose to suspend paragraph 1, 2, 3, 4 and 5 until 10am on 24 March 2018.

13. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 8 March 2018

Associate: 

Date:  8 March 2018