LIVESY & VOLTE

[2018] FamCA 544

FAMILY COURT OF AUSTRALIA

LIVESY & VOLTE [2018] FamCA 544

FAMILY LAW – CHILDREN – Application by the father for interim change of residence for the child to live with him – Where final parenting orders were made in December 2016 by consent – Where prior to final orders the mother had made allegations of possible sexual abuse of the child by the father which did not meet the statutory reporting threshold of risk of serious harm – Where the father claims there has been a significant and substantial change in circumstances since those final orders were made - Where the Respondent mother has made numerous complaints in the last six months to New South Wales Police and the Department of Family and Community Services alleging sexual abuse by the father on the child – Where the child has been extensively questioned and interviewed without substantiation – Where the child has a strong relationship with his father – Where the child has lived with his mother since the parties separated – Where the mother  has been compliant with orders – Ordered the mother be restrained from interviewing and questioning the child or permitting third parties to do so about allegations of sexual abuse of him – Ordered the mother be restrained from unilaterally taking the child to see a psychologist – Ordered the appointment of an Independent Children’s Lawyer.

Family Law Act 1975 (Cth), s 60CC

APPLICANT: Mr Livesy

RESPONDENT: Ms Volte

FILE NUMBER: NCC 3295 of 2015

DATE DELIVERED: 25 July 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 25 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT:	Hannaway Lawyers
COUNSEL FOR THE RESPONDENT:	Ms Carty
SOLICITOR FOR THE RESPONDENT:	Leckie Law

PENDING FURTHER ORDERS

1. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed to represent the interests of X, born … 2012  (“the child”) and to facilitate such appointment the parties do forward all relevant documents to Legal Aid NSW within next 7 days.

2. That each of the parties do all such things as may be necessary to facilitate the children’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.

3. The mother is restrained from interviewing and questioning the child about past allegations of sexual abuse of him.

4. The mother is restrained from recording conversations with the child and from permitting third parties to do so.

5. The mother is restrained from permitting any person, other than officers from New South Wales Police and the Department of Family and Community Services, to question and interview the child about allegations of sexual abuse.

6. The mother is restrained from taking the child to a psychologist for any purpose without the prior written consent of the father.

7. In the event that the parties agree to consult a psychologist for the benefit of the child, each parent shall be entitled to provide information to that psychologist and to participate in person, alone and with the child as required.

8. The mother is restrained from bringing the child into contact with Ms B.

9. The mother shall ensure, by her absence from the room, that the child has privacy to speak to the father during all phone calls between father and child.

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 Loan & Beret 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 NEWCASTLE

FILE NUMBER: NCC 3295 of 2015

Mr Livesy

Applicant

And

Ms Volte

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for interim parenting orders by Mr Livesy, aged 45, the father of the subject child, B, aged five and a half. The application of the father is for a change of residence on an interim basis. 

2. The application is opposed by the respondent mother, Ms Volte aged 41.  The mother is opposed to the application on two bases.

3. The first, that there has not been sufficient change of circumstances since final parenting orders were made in December 2016, by consent. 

4. However, in the event the Court found there was a sufficient change of circumstance, the mother submits, on the second basis, that a change of residence on an interim basis is not justified and would destabilise the life of the child.

Evidence

1. The documents relied on in respect of the application were as follows: 

   For the father:

   (a)Initiating Application filed 9 April 2018 (interim orders sought);

   (b)Notice of Child Abuse filed 9 April 2018;

   (c)Affidavit of the father filed 29 March 2018;

   (d)Affidavit of the father filed 6 June 2018;

   (e)Case outline document relied on in interim hearing;

   For the mother:

   (f)Amended Response filed 4 June 2018;

   (g)Notice of Child Abuse filed 9 May 2018;

   (h)Affidavit of the mother filed 4 June 2018;

   (i)Affidavit of the maternal aunt, Ms C filed 8 May 2018;

   (j)Affidavit of the maternal grandmother, Ms D Volte, filed 8 May 2018.

History of Events

1. The parties began living together as a couple either in October 2012 (the father) or in 2011 (the mother).  The mother's daughter, Y, then aged 10 or 11 years, also became a member of the household.  The subject child, B, was born in 2012. 

2. The mother asserts that the parties separated in August 2014, but remained living in the same home.  The father asserts that the parties finally separated and each moved to rented accommodation in April 2015.  Nothing turns on those differences in these interim proceedings.

3. After separation, by arrangement between the parties, the subject child, then aged two years, lived with the mother and spent time with the father on alternate weekends.  The parties engaged in family dispute resolution, but were unable to reach agreements about final parenting arrangements. 

4. On 18 December 2015, the father filed an Initiating Application in the Federal Circuit Court.  His mandatory Form 4, Notice of Abuse document, contained no allegations.  His proposal was for the parties to share equally parental responsibility, for the child to live with the mother and to spend alternate weekends and other special times with him.

5. In January 2016, the mother raised allegations of possible sexual abuse of the child by the father, other allegations about the father's behaviour towards her, towards her daughter, Y, and in respect of the father’s use of alcohol.

Transfer to this Court

1. The matter was transferred to this Court on 29 April 2016. 

2. The notation to the order for transfer from the Federal Circuit Court to this Court was as follows:

   This is a matter where the mother alleges sexual abuse of the child by the father.  The mother has had the child interviewed by two medical practitioners and other persons, including the child's day care worker [Ms B].  The mother has indicated she has reported the matter to JIRT and is not aware of the progress of the JIRT investigation.

3. On 4 May 2016, in an order for directions, the Registrar noted [Notation (b) to the orders]; that the Court had received a letter from the Department of Family and Community Services (“FACS”) dated 7 April 2016, noting that FACS had assessed that the report contained in Court documents did not meet the statutory reporting threshold of risk of serious harm. 

4. The matter was not included in the Magellan Protocol.

5. On 8 June 2016, the parties were directed to the Child Responsive Program and a memorandum issued. 

6. On 27 July 2016, Ms B filed an affidavit annexing two reports about her observations of the subject child whilst he was being cared for in her day care centre. 

Interim Orders by Consent

1. On 5 August 2016, the parties entered into interim orders as follows:

   a)That the child live with the mother;

   b)That the child spend time with the father, and after quick progression, that time would be on alternate weekends;

   c)That there would be phone calls and other special times.

   There was a mutual order for non-denigration and a restraint on the child being taken to a psychologist. 

2. A Family Report was ordered.  On 10 October 2016, the Family Report was released. 

Final Orders by Consent

1. On 8 December 2016, final parenting orders were made by consent (the December 2016 orders).

2. I note that the interim restraint on attendance for the child on psychologists was not repeated in the December 2016 orders. 

The Current Application

1. On 9 April 2018, the father filed this fresh application.  The orders he seeks are:

   a)Sole parental responsibility for himself;

   b)That the child live with him; and

   c)That time with the mother be as ordered by the Court.

2. On an interim basis, he proposed that there be a change of residence to him, sole parental responsibility and supervised time for the child with the mother for two hours on alternate weekends at Interrelate. 

3. Orders were also sought that the mother be restrained from:

   1)     bringing the child into contact with Ms B,

   2)     permitting any person, other than police or FACS to interview the child about allegations of sexual abuse, including video recording such interviews 

   3)     taking the child to see a psychologist.

4. The Notice of Risk filed by the father included the following information:[1]

   The mother has now made at least eight complaints in the last six months to the police and FACS alleging sexual abuse by the father on the child, the child.  [The child] has been interviewed by the police and FACS on two occasions recently and the police have concluded that there has been no inappropriate behaviour and that he has likely been coached.

   [1] Notice of Risk filed by the father on 9/05/2018, Part E, par 6, number 2

5. There are eight further paragraphs in relation to risks identified by the father for the child, including psychological harm of repeated allegations, physical harm to the child in being hit by the mother and exposure to domestic violence in the family between the mother's now 16-year-old daughter Y, and the mother herself.  There was also a reference to violent behaviour by the child at school involving him holding a pair of scissors to another child's throat.

6. On 8 May 2018, the mother filed her Response and her Notice of Risk. 

7. The Response proposed dismissal of the father's application and costs.  On an interim basis the mother proposed dismissal of the application, but in the event that the matter proceeded, that the child be permitted to attend upon an occupational therapist and a child psychologist and that the parties attend family therapy.  There were also proposals for the appointment of an Independent Children's Lawyer and transfer of the proceedings to the Federal Circuit Court in Lismore.

8. The Notice of Risk identified under the heading “About the Alleged Abuse”:[2]

   (a)The child has reported that the father showed him his wee-wee.

   (b)The child has reported that the father wees on him.

   (c)The child has reported that "Daddy does it" when the mother saw the child masturbating.

   [2] Abid, number 6,

9. In part G, under the heading “Family Violence”, the allegations are as follows:[3]

   (1)The father has threatened to the child that he would kill his mother;

   (2)The father was abusive towards the mother and her daughter of a prior relationship, denigrating them and swearing at them;

   [3] Notice of Risk filed by the father on 9/05/2018, Part G, par 14

10. It is an agreed fact that there is no current investigation by the Child Abuse Squad (formerly known as JIRT).

11. For the father it is submitted that the child has been put under severe pressure by being questioned and interviewed by police/FACS and Ms B, the day care worker.  The evidence from police records supports that submission.

Interview and questioning by Ms B

1. On 24 March 2018 there is a reference to the circumstances of the child being interviewed with the interview recorded by Ms B.[4]  It is apparent that Ms B asked the mother to leave the room whilst she spoke to the child and recorded their conversation.

   [4] Exhibit 3

2. During this 30 minute conversation the informant Ms B asked the child at risk why he had “mucked up at school”.

3. The child’s responses are not included in the entry.  At one point the child replied, “No, but he shows me his wee-wee.”  The informant stated, “What?  When he goes to the toilet?”  The child replied, “No, not when he goes to the toilet”.  There was further questioning.  The child stated, “I just run away and come back when he puts it away”.

4. On 20 March 2018[5] the mother was advised that the child did not disclose any criminal offence and police were not further investigating the matter.

   [5] Exhibit 3

5. Five further reports were thereafter made to the child protection helpline between 23 and 26 March 2018.  All five reports outlined allegations of sexual abuse upon the child by his father.  The reports were to the child helpline by the child’s school, by Ms B as previously disclosed, by the maternal grandparents, and by the mother herself.

6. It is apparent that the reports were made after the interview by Ms B where, to use her own words, she had “attempted to use non-leading questions.”  She also volunteered the information to the helpline that “the child trusts her and, based on the history, he may ‘shut down’ during a JIRT interview setting”. 

7. Ms B advised that she sent a copy of the recording she had made to the child’s maternal grandmother. It is apparent that Ms B, who has known both parents and the child at least since 2015, has become personally involved in what is effectively conflict between the parents over the care of the child.

8. On 6 April 2018 the child was interviewed once again.  It is apparent that he was quite distressed about a further interview but knew what the topic would be:

   During the preliminary questions the child brought up the topic of his dad, [Mr Livesy].  When asked by police to tell them about his dad, the child said “Dad does naughty things about showing his wee to everyone, and that’s all what he did.”  When asked by police how the child knew this the child said “I don’t know”.  The child was then asked, “Tell me what he does then?”.  The child said “I don’t know”.  The child further stated that his father “shows his wee, pulling his pants down, showing his butt to everyone.” When asked to tell police everything that happened right from the beginning right through to the end, the child said, “I don’t know what the answer is.”  When questioned further, the child provided no context or particularisation to support his claims.  When asked to explain what the child meant by his father “showing his wee to everyone” the child stated that his father “shows his wee to everyone in the world.”  the child was given several opportunities to detail the alleged incidents but continued to make general comments.  He then went on to describe a game which was described by police as a game between him and his father, and there was some discussion about this game. 

   When the child had first been interviewed on 9 March the child had informed police that the father showed his “butt” to him.  When asked if his father did anything else, the child said no. 

   On this occasion in April 2018 the child was asked why he did not inform police about his father showing him his wee during the previous interview.  At this time the child moved back in his seat, rubbed his eyes, and informed police there was too much talking.  He then advised that he didn’t want to. 

   The child was asked how many times his dad had shown his “wee” to him, to which the child replied “120”.  He was then asked how many times his dad had shown his “butt” to him, to which the child replied “122”. 

   The child was asked how he felt about seeing his dad that afternoon.  The child said “really happy because he is not going to do it anymore”.

   The child was asked what he and his mother had spoken about, and the child stated, “I don’t want to tell you”.  The child is reported as having “seemed guarded” when the topic of his mother was raised.  There was further questioning about the extent to which the child had spoken to his mother about these events recently, and he was said he was sure he had not..

9. There is every indication that the child was both bored but distressed by the questioning.

10. I note that in the records of FACS there is an assessment of the child in the household of the mother with the risk assessment outcome as follows:[6]

    The final risk assessment level:  high.  Total neglect risk score:  1.  Neglect level:  low.  Total abuse risk score:  7.  Abuse level:  high.  The family scored risk level based on the highest score on either the neglect or abuse instrument:  High.

    [6] Exhibit 4, page 158

11. It is apparent that there is a lot going on in the mother’s household and that the child has been extensively questioned.  Whether or not the intentions of the questioners were good or motivated by something other than welfare for the child, the questioning has not been helpful to him.

12. In the affidavit of the maternal grandmother there is a conversation reported between herself and the child.  The grandmother was speaking to the child after the maternal grandfather had collected him from school early after a complaint about his behaviour and aggression to another child.  The grandmother reports herself as saying:[7]

    Why have you been so mean to that little boy in school and why are you acting this way?

    [7] Affidavit of Ms D Volte filed 8/05/2018, par 4

13. She goes on to say:

    [The child] had a frightened look on his face and started to shake and his bottom lip was trembling.  [The child] replied in a shaking voice, “Because of dad”.  I said, “What has dad got to do with it?  He wasn’t there”.  [The child] said, “He shows his wee”.  My husband said words to the effect, “You mean, when he goes to the toilet?”  [The child] said, “No, he pulls it out and chases me.  I run away and I won’t come back until he puts it away”. 

14. The child was described then as “very distressed and crying” and was comforted by his grandparents.  It is apparent that he regarded himself as being very much in trouble.  There are many possibilities to explain why the child said the words he did; to exonerate himself, to deflect blame to his father or because he was concerned about something the father had done.

Mother’s relationship with Y

1. There is also extensive evidence in police records of conflict between the mother and her daughter Y.[8]  For instance, on 23 February 2018, there is reference to police being called after conflict between the mother and Y, then aged 15.  The mother stated that Y had become verbally abusive, had told her to “shut-up bitch” and stated, “I feel like smashing you”.  Later, the young person is said to have walked around the house and punched the glass of the door, causing her mother to feel frightened and intimidated. 

   [8] Exhibit 3

2. Further, in the evening, the young person is described as “having held a hammer with a closed fist at shoulder level”, and the mother then called police assistance.  The mother reported to police:

   She is capable of anything.  She followed me in with a hammer and punched my bedroom door.  I feel so scared of her.  I think she is off her head of drugs.

3. Y denied to police that she had threatened her mother with a hammer.  It was clearly not the first time police had been called.  There is a note that police had advised the mother that police were not to be used to manage her daughter’s misbehaviour and the conflict between them.

1. I note that in the records there is what is described as “a big blow-up” on 27 March 2017 when Y was locked out of the mother’s home.  Y told police “the mother hates her” and that “the mother says that Y, by her behaviour, is trying to kill her”. 

Behaviour of child at school

1. The subject child’s own misbehaviour at school, where he is reported to have threatened another child with scissors, picked up a chair and had to be removed from the classroom, happened on or around that time.  For the mother, it is submitted that the child’s behaviour has been worrying.[9]

   [9] Exhibit 1

2. The mother had also been taking the child to see a psychologist and on 27 July 2017 there had been a mandatory report of possible sexual abuse of the child by the father, based on what the child and the mother had told the psychologist. 

Has There Been a Change of Circumstances?

1. In December 2016, the mother, by consenting to final orders in the terms that she did, implicitly accepted that the father did not represent a risk of harm to the child. 

2. Likewise, the father implicitly accepted by signing the orders that the mother did not represent a risk of harm to the child.  Further, since the child was to continue living with her, that the household of the mother was a safe and suitable place for the child to live.

3. The child has lived with the mother since the separation of his parents when he was a toddler.  I accept the submission made by counsel on behalf of the mother about disrupting the child’s life, especially as a change of residence to the father would involve a change of school.  However, I conclude that there has been a change of circumstances in three broad areas:  

   i)The mother taking the child to a psychologist without reference to, or inclusion of, the father;

   ii)Exposure of the child to family violence between the mother and Y against whom there are two Apprehended Violence Orders for the protection of the mother and perhaps the child;  and

   iii)Multiple reports to police about possible abuse of the child by the father and apparent dissatisfaction of the mother with the outcome, that is, that no further action was to be taken.

4. I also take into account the behaviour of this five year old child at school with at least a passing reference in the psychologist notes to the possibility of Autism Spectrum Disorder.  In relation to the psychologist, after the December 2016 orders were made, there were attendances by the mother with the child on a psychologist between April 2017 and March 2018 with no particular pattern of attendance.  There was a referral from Suburb E Medical Centre to a second mental health plan for the child on 29 June 2017 and, as previously mentioned, a mandatory report of abuse on 21 July 2017. 

5. The interim order, which restrained the mother from taking the child to a psychologist as she had been prior to the final orders, was not repeated when those final orders were made, however, the parties did agree to equal shared parental responsibility and this is, clearly, an area where both parents should be involved.  Information provided by each parent is critical, not only in respect of allegations of abuse and the possible misunderstandings which could have given rise to them, but also to the possibility of there being some behavioural disorder affecting the child.

6. An order will be made restraining the mother taking the child to a psychologist without the prior written consent of the father and, further, that in the event that the parties agree that the child should see a psychologist, and that each of them be involved in providing information and attending as required.

7. The next area is the poor relationship apparent between the mother and Y.  There is no way of knowing in an interim hearing what has caused such a destructive and violent relationship.  The mother has asserted to police that her daughter is taking drugs on a daily basis, as well as being aggressive and manipulative in her household.

8. Finally, the multiple allegations of sexual abuse of the child has led to multiple interviews without substantiation and, on the last occasion, with extreme inconsistency, which appears to me, although I cannot make a finding about it, that the child has become frustrated and distressed by ongoing interviews.

9. It may be that the mother has developed an obsessive belief that the child has been abused by the father and is determined to prove this misconduct, supported by friends and family members.  It may be that the mother has a genuine fear that the child has been abused with regret at having consented to the orders that she did, although the present state of the evidence does not support a finding that the child has been so abused.  It may be that disruption in the mother’s household caused by the conflict between herself and her 16 year old daughter has impacted on the child much more than the mother has realised.

10. There are other explanations for why the child’s life has been so disturbed and distressing for him in the 18 months since final orders were made, however, I do not consider it is appropriate to change the child’s residence on the basis of the material described above.  There must be a more thorough investigation of the factors operating in the child’s life given the consensus that there was at the end of 2016 and that would take either a further agreement of the parties or a final hearing. 

11. I propose to make interim orders which are the least disruptive to the child as possible.  The father appears to be motivated by genuine concern, however, I accept the submission of counsel for the mother that the relationship between the child and his father is still strong and the child looks forward to spending time with his father.  Further, the mother has been compliant with orders, although phone calls have been problematic being on loudspeaker. 

12. On an interim basis, I propose to make orders which stop the involvement of third parties in the questioning of the child, reinstitute restraint on the child being taken unilaterally to see a psychologist, an order which will ensure privacy for the child in telephone conversations with his father, and the appointment of an Independent Children’s Lawyer. 

13. Orders are made accordingly.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 25 July 2018.

Associate:

Date:  25 July 2018