Leighton and Moriarty and Ors

[2016] FamCA 492

FAMILY COURT OF AUSTRALIA

LEIGHTON & MORIARTY AND ORS [2016] FamCA 492

FAMILY LAW – CHILDREN – Where agreement was reached between the mother, father and paternal great grandparents as to most issues in the proceedings – Where the only issue for determination was whether there should be an injunction restraining the father and paternal great grandparents from bringing the child into the presence of a paternal uncle – Where there have been allegations of sexual abuse – Whether the paternal uncle constitutes an unacceptable risk to the child – Whether supervision by the father would sufficiently protect the child – Where the Court finds that the father would take all steps necessary to ensure the child’s safety – Orders made for the father to supervise all and any contact between the child and the paternal uncle.

Family Law Act 1975 (Cth)

APPLICANT: Ms Leighton

1^ST RESPONDENT: Mr Moriarty

2^ND RESPONDENT: Ms Burton

3^RD RESPONDENT: Mr Burton

INDEPENDENT CHILDREN’S LAWYER: Mr Whelan

FILE NUMBER: SYC 6976 of 2013

DATE DELIVERED: 20 June 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 9 and 10 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Mr Mokhtar of Marsdens Law Group
FOR THE 1ST RESPONDENT:	Mr Moriarty in person

FOR THE 2^ND RESPONDENT: Mrs Burton in person

FOR THE 3^RD RESPONDENT: Mr Burton in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Mark Whelan Lawyer

Orders

1. Order 6 made on 9 January 2015 is discharged.

2. The father will supervise all and any contact between the child B born on … 2008 and the paternal uncle Mr C Moriarty.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leighton & Moriarty and Ors 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 SYDNEY

FILE NUMBER: SYC 6976 of 2013

Ms Leighton

Applicant

And

Mr Moriarty

1^st Respondent

And

Ms Burton

2^nd Respondent

And

Mr Burton

3^rd Respondent

And

Independent Children’s Lawyer

Mark Whelan Lawyer

REASONS FOR JUDGMENT

The proceedings

1. These proceedings concern parenting orders in relation to a little girl, B (the child), who was born in 2008 and is currently seven years of age.  The child’s parents are Ms Leighton and Mr  Moriarty.  The other parties to the proceedings are the paternal great grandparents, Mr Burton and Ms Burton.

2. On the first day of the trial the parties reached agreement in relation to most matters in dispute.  On 9 May 2016 I made the following orders by consent:

   1.All previous parenting orders are discharged.

   2.The mother and the father shall equal shared parental responsibility of the child B born … 2008 (“the child”).

   3.[The child] shall live with the mother.

   4.[The child] shall spend time with the father as follows:

   a.from Friday 20 May 2016 at 5.30 pm to Sunday 22 May 2013 [sic] at 5.30 pm and each alternate weekend thereafter

   b.at alternative or other times as agreed between the parents, including but not limited to times in NSW school holidays, Christmas, Easter and the child’s birthday.

   5.Notwithstanding any order to the contrary, the child shall spend Father’s Day with the father and Mother’s Day with the mother.

   6.The father’s overnight time with the child is subject to him having suitable independent accommodation where the child has her own bedroom, which can include her sharing with her siblings.

   7.Any time that the child spends with her paternal great grandparents [Mr and Ms Burton] shall take place in the general presence of the father or some other person as agreed mutually between the mother and the father.

   8.All of the parties shall speak politely and respectfully about each other to or in the presence of the child.

3. The only issue then outstanding was whether there should be an injunction to restrain the father and the paternal great grandparents from causing or permitting the child to be brought into the presence of the father’s brother, Mr C Moriarty (“Mr C”).  The mother and the ICL sought that there should be such an injunction.  The father and the paternal great grandparents opposed any such order.  They proposed that any contact between the child and Mr C be supervised by the father.

4. This issue arose because of allegations that Mr C subjected the child to sexual abuse in 2012.  Regrettably, the paternal great grandparents took the view that this issue involved a determination of the guilt or innocence of Mr C.  The father appeared to take a wider perspective and focussed on the need to safeguard the child’s physical and emotional welfare.

Background

1. The father and the mother, who are aged 27 and 28 respectively, began to live together in October 2007 and separated in December 2009.  They have both

   
   

   re-partnered and the father has two young children of his subsequent relationship.

2. The mother commenced a relationship with Ms D in 2012.  They have lived together since June 2012.

3. The father began a relationship with Ms E in 2013.  They have two children, F and G, who are aged approximately two years and six months respectively.  The father and Ms E separated recently, when she and the children moved out of their home at Suburb H.

4. For about three years after the separation of her parents, the child spent time with the father from Thursday until Sunday in each week and otherwise lived with the mother.  This arrangement ended when the father moved out of the home of his parents in mid-2012.  Initially he stayed with the mother and Ms D for a few weeks.  He then spent some months in a refuge at Suburb I and travelled to Suburb J frequently to spend time with the child.  The father then moved into shared accommodation at Suburb K and spent time with the child on a weekly basis.

5. The father lived with the maternal grandmother for some months in 2013.  He then began to live with his former partner Ms E, initially at the homes of friends and the maternal grandmother and then in their own accommodation at Suburb H.

6. On 5 November 2013 the father took the child from her school, without the knowledge or consent of the mother.  I accept his evidence to the effect that he was motivated by concerns about the mother’s household but I do not conclude that there was a valid basis for his fears or his actions on this occasion.  At this time he lived with the paternal great grandparents.

7. The mother commenced proceedings for a recovery order, inter alia, by an Initiating Application filed on 25 November 2013.  On 16 December 2013 all parties reached an agreement and entered into consent orders.  The child returned to live with the mother and began to spend with the father from 12 noon until 5.00 pm each Sunday and Wednesday.  From the commencement of school in 2014 the child spent time with the father each Sunday from 10.00 am to 5.00 pm and on Wednesday from the conclusion of school until 5.00 pm.  The consent orders provided further that the child spend time with the paternal great grandparents from 3.00 pm until 5.00 pm each alternate Tuesday, until the commencement of school in 2014.  Thereafter the orders provided that the child spend time with the paternal great grandparents from the conclusion of school until 5.00 pm on each alternate Thursday.

8. It was common ground between the father and the mother that they had a conversation in the following terms in 2012.  The mother deposed:

   28.These arrangements came to an end when [the child] was three.  Sometime that year, I was at [Suburb L] visiting my pop when I got a phone call from the father who said to me, “I was in the bathroom going to the toilet and [the child] walked in.  She said to me, ‘you have a pee pee just like Uncle [Mr C]!  He put it in my mouth!’”

   29.The father said to me, “I don’t want you to freak out” and the father promised to keep the child in his room that night away from [Mr C], but I would come to collect her the next day.  I did collect her the next day as agreed.

9. The father gave a statement to police on 22 June 2012 (Annexure “BM1” to the father’s affidavit of 17 January 2014).  Inter alia the father told the police:

   8.On Friday the 8^th of June, 2012 ... when [the child] and I were at the mall I needed to go to the toilet.  I went to the toilets near the food court and went into the parent’s room.  [The child] was using one toilet and I was using the other one.  As I was going to the toilet [the child] said,

   “[Mr C] put his pee pee in my mouth”.

   I freaked and said,

   “What did you say?  What did [Mr C] do?”

   [The child] said, “I’ve already told you”.

10. The father’s statement to the police also read in part as follows:

    9.On Saturday the 9^th of June, 2012 I woke up at about 10 - 10.30 am.  I asked my dad what time [the child] woke up and he told me 7.30 am.  [The child] and I spent the day playing and watching movies.  [Ms Leighton] came to collect [the child] about 2.30 pm.  [Ms Leighton] had an argument with my mum over what the child had said.  [The child] and [Ms Leighton] left shortly after.  I went back inside and my parents were abusing me for not taking my brother’s side.  They told me I should have believed [Mr C] did nothing wrong...

    In cross-examination by counsel for the ICL the father said that the contents of his police statement were correct and that he had argued with his parents on this occasion.

11. On 26 June 2012 the child was interviewed by JIRT officers, who substantiated the allegations Mr C faced charges of sexual intercourse with a person under the age of ten years in the Children’s Court.  Subsequently the father and mother decided that they would not pursue the charges against Mr C.  The charges were withdrawn in the Children’s Court on 15 July 2013.  According to the father, the child last saw Mr C at a family event around Christmas 2013.  The father said that they “were not in my sight all the time”.

12. The paternal great grandparents are aged 78 and 72 and they have three children, seven grandchildren and five great grandchildren.  Their daughter, Ms M Moriarty, is the child’s paternal grandmother.  They both hold a strong view that Mr C has in no way behaved inappropriately toward the child.  Nonetheless, they indicated that they would accept an order that the child be permitted to have contact with Mr C under the supervision of the father.

Consideration

1. In my view, it would be unsafe and most unhelpful to each side of this family if the Court were now to analyse in detail the allegations of sexual abuse of the child by Mr C.  Due to the truncated nature of the hearing, these issues were not tested by way of cross-examination to any significant extent.  Certainly I will not attempt to make findings as to whether, on the balance of probabilities, the child was sexually abused by Mr C.  In my view the issue now is whether Mr C constitutes an unacceptable risk to the child and, if so, whether supervision by the father would be sufficient for her protection.

2. The paternal great grandparents tendered in evidence reports by psychologists Mr N of 17 June 2013 and Ms O dated 30 March 2016.  Neither Mr N nor Ms O were cross-examined but, nevertheless, I consider that weight can properly be attached to their opinions.

3. I had also the assistance of a Family Report dated 4 July 2014 prepared by Ms P, who was unavailable for cross-examination.  Inter alia, the Family Consultant recommended that “[Mr Moriarty] not allow contact between the child and [Mr C] while [the child] is in his care.”

4. Mr N interviewed Mr C on 14 June 2013 and also spoke to his mother, Ms M Moriarty.  He prepared his report for use in the criminal proceedings in the Children’s Court.  Mr N concluded inter alia:

   35.[Mr C Moriarty] is a 16 year old Year 11 student (also doing a TAFE course) who resides at home with his parents.  He demonstrates a borderline developmental disability overall (previously rated as mildly disabled), and is in the IM disability education stream and attends a ‘special school’.  There is a history of epilepsy for which he is medicated.  There is a history of mood and anxiety disorder, for which he has been medicated and has received psychological treatment (current).  There is a history of diagnosed ADHD for which he is medicated.

5. Ms O consulted with Mr C on three occasions in February/March 2016 and prepared a report dated 30 March 2016.  Apparently she was provided with a copy of the Family Report, which should not have occurred without the leave of the Court.

6. Ms O offered this insightful observation:

   55.Under the present circumstances, I consider the question of whether [Mr C’s] guilt or innocence to be an unhelpful focus in the present proceedings.  Rather, I ask the question:  how can [Mr C’s] and the child’s extended family work together to prevent such allegations from being levelled again?  To date, the current orders have answered this question by preventing [Mr C] from having any contact with [the child].  This is indeed one solution.  However, it has proved to be very impractical for the family and a source of grief that the apparently once strong uncle niece relationship that [Mr C] and the child shared has not been able to be maintained.

7. Ms O offered these opinions:

   59.The following issues are protective against [Mr C’s] risk of future sexually abusive behaviour:

   ·[Mr C] has strong and positive social influences in his life

   ·[Mr C] has demonstrated the capacity for relationship stability

   ·[Mr C] does not exhibit emotional identification with children

   ·[Mr C] does not exhibit hostility toward women

   ·Mr C is relatively well integrated socially

   ·[Mr C] shows no evidence of a lack of concern for others

   ·[Mr C] does not exhibit high negative emotionality

   ·[Mr C] does not appear to possess abnormally high sex drive or sexual preoccupation

   ·[Mr C] does not use sex as an emotional coping strategy

   ·[Mr C] does not show any evidence of deviant sexual practices or preferences

   ·[Mr C] appears co-operative with supervision and seeks help when he believes he needs it.

8. Ms O also, however, identified two areas of risk of sexually abusive behaviour on the part of Mr C.  She opined:

   60.In addition to the above, there are two factors that can be considered to elevate [Mr C’s] future risk:

   ·[Mr C] has a strong tendency toward a wide range of highly impulsive acts; of particular relevance is his history of impulsive sexual behaviour.

   ·although [Mr C] functions well in everyday life and has the capacity to identify and solve some of the problems he faces, he appears to have some issues with other more sophisticated aspects of effective cognitive problem-solving (eg. generating alternatives, evaluating alternatives, choosing a course of action and follow through, and evaluating the outcome).

9. Ms O discussed with Mr C potential strategies to protect him from future allegations of sexual abuse.  She reported as follows:

   64.Risk management recommendations: Regardless of whether [Mr C] sexually offended against [the child], [Mr C] must take responsibility for allowing himself to be in a position where such allegations were made.  When [Mr C] was asked about how he would prevent sexual abuse allegations being levelled against him in the future, he stated that: 

   a. he would be careful not to be at home on his own with [the child], 

   b. he would only be physically present near [the child] in the presence of other adults,

   c. he would make sure he was never in a room with [the child] that had the door closed.

   65.These strategies appear suitable for ongoing risk management provided the other adults around him share his commitment to preventing situations where allegations of sexual abuse may be made.

10. During cross-examination by counsel for the ICL, the father said that he had read the material produced on subpoena by New South Wales Police for the first time on 9 and 10 May 2016.  He said: “I believe [Mr C] and [the child] should be supervised to protect them both”.  The father said also: “Today I say that it is necessary to protect her physically as well as mentally and emotionally.  I can’t make a hundred per cent judgment call”.

11. In response to a question from me the father said:

    I will be the supervisor.  I will be present at all times.  I think my mother will be upset but the relationship between [Mr C] and the child will be
    re-established.

12. During his final submissions the father said, inter alia:

    My grandparents and I will protect [the child].  I have been [in relevant employment] for four years and I have protected people and I am obliged to uphold the law.  It is my job to protect [the child].  ...  [The child] has been protected for the last three years.

13. During his final submissions the father said also, however: “DOCS would not have closed their file if they thought there was as risk.” The father then proceeded to draw attention to inconsistencies in the details of complaints of sexual abuse allegedly made by the child.

Conclusion

1. I am persuaded that the child’s best interests require that there be supervision of all of her contact with Mr C.  I take this view, inter alia, in order to prevent the child from becoming embroiled in the investigation of future allegations of sexual abuse by Mr C.  I cannot exclude the possibility of future sexual abuse of the child by Mr C, particularly in light of the two areas of risk which were identified by Ms O.

2. I am not satisfied that either or both of the paternal great-grandparents would be effective supervisors of the child’s time with Mr C.  They both hold a strong view that Mr C has never acted in an inappropriate manner toward the child.  They were strident in their criticism of the mother, whom they appeared to hold responsible for the allegations.  As noted, they seemed to hold the view that the only consideration of relevance to the injunction was the guilt or innocence of Mr C.  In any event, the paternal great-grandparents did not offer themselves as supervisors.

3. Until the father said words to the effect “DOCS would not have closed their file if they thought there was a risk”, I had few reservations as to his suitability as a supervisor.  On balance, however, I am satisfied that the father will take all steps necessary to ensure the child’s safety.  He was most convincing in his final submissions as to his perception of the need to protect her “physically as well as mentally and emotionally”.  I consider that the father appreciates that the child requires protection from both the risk of sexual abuse and the impact upon her of future allegations.

4. I am conscious that the father did isolate the child from Mr C at the time when the allegations of sexual abuse arose in 2012.  I am also conscious of the fact that the mother trusted the father to protect the child.

5. For these reasons, I am satisfied and I find that the father is a suitable supervisor of any time which the child spends with Mr C.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 20 June 2016.

Associate: 

Date:  20 June 2016