MAURER & VAN LAREN
[2012] FamCA 8
•13 January 2012
FAMILY COURT OF AUSTRALIA
| MAURER & VAN LAREN | [2012] FamCA 8 |
| FAMILY LAW – CHILDREN –Parental responsibility – Where the parents do not communicate and have no working relationship – Family violence - Presumption of equal shared parental responsibility does not apply – Best interests of the child - Where the child has Asperger’s Disorder and developmental delays - Whether the father has sexually abused the child – Whether there is an unacceptable risk of sexual abuse in the future - Whether there is an unacceptable risk of emotional or psychological harm to the child by the mother –Whether the conflict between the parents is such that the child cannot maintain a relationship with both parents. |
| McCall & Clark (2009) FLC 93-405; Leighton & Carey [2010] FamCAFC 94; |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61C, 61DA, 65DAA, 65DAC |
| Evidence Act 1995 (Cth) s 140 |
| APPLICANT: FATHER | Mr Maurer |
| RESPONDENT MOTHER: | Ms Van Laren |
| FILE NUMBER: | NCC | 624 | of | 2010 |
| DATE DELIVERED: | 13 January 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Loughnan J |
| HEARING DATES: | 20, 21 & 22 December 2011 |
REPRESENTATION
| APPLICANT FATHER: | Father in Person |
| COUNSEL FOR THE RESPONDENT MOTHER | Mr D Maddox |
| SOLICITOR FOR THE RESPONDENT MOTHER | Cox West Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILD LAWYER | Mr Kelly |
| SOLICITOR FOR THE CHILD | Craney Family Lawyers |
Orders
1.All previous parenting orders in relation to the child G Maurer, born … September 1995, (“the child”) are discharged.
2.The mother shall have sole parental responsibility for the child.
3.The child shall live with the mother.
4.The mother shall do all acts and things required to ensure that the child receives letters and gifts sent by the father to the child once per calendar month and on the child’s birthday and Christmas each year.
5.The mother is to advise the father as soon as is reasonably practicable in the event the child is hospitalised or in the event that, apart from formal or informal short term respite arrangements, she is unable to care for the child.
6.The father is at liberty to obtain school reports, school photos and school news letters at his own request and cost and these orders are sufficient authority for such a purpose.
7.Each party, within 28 days of the date of these orders, is to provide the other (via the Independent Children's Lawyer) of their emergency telephone number and postal address and is thereafter to keep the other advised of any changes to their emergency contact details 24 hours prior to any change to those details.
8.The mother is restrained from being intoxicated by alcohol while the child is in her care.
9.Each party is restrained from denigrating the other in the presence of the child or allowing any other person to do so in the presence of the child.
10.It is noted that the Court made an order on 21 December 2011 suppressing the release of the mother’s residential address except by way of Court order and that order remains in force.
11.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Maurer & Van Laren is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: NCC 624 of 2010
| Mr Maurer |
Applicant
and
| Ms Van Laren |
Respondent
REASONS FOR JUDGMENT
introduction
G is 16 years of age. She is the daughter of Mr Maurer and Ms Van Laren. G has been diagnosed with Asperger’s Disorder and developmental delay. For nearly three years she has lived with her mother and had no time with her father.
The father proposed that the mother enter a rehabilitation program for alcohol abuse and the child be returned to his care until that rehabilitation occurs and other conditions are met. He proposed that after the mother’s rehabilitation there be a return to 2004 parenting orders whereby the child lived with the mother and spent time with him, with the condition that the mother not further contravene orders and that she abstain from alcohol and drugs.
The mother proposed that the father spend no time with the child, that information about G’s school and medical progress be provided to him and that he be able to communicate with the child, through the mother, in the form of letters and presents.
Key issues include whether the father sexually abused G or there is an unacceptable risk of that in the future; whether there is an unacceptable risk of emotional or psychological harm to G in the mother’s care due to alcohol abuse; and whether, given the conflict between the parents, it is feasible for G to maintain a relationship with both parents.
applications
In his affidavit sworn 8 August 2011 the father set out the following orders:
My proposals for [G’s] care
36. I propose [G] lives with me for a minimum period of 3 months whilst the Respondent attends a live in Drug and Alcohol recovery Therapeutic Community for a period of no less than three months. After the successful completion of this course I propose that close monitoring by DOC,s and weekly attendance at AA meetings be supplied as evidence for 2 years. I propose that parenting orders established on 16 February 2004 be strictly adhered to by the respondent.
On the final day of the hearing the father identified the following additional orders sought by him:
1. I would like a building connections seminar and intake interview and information session to take place within a Family relationships Resolution Centre in relation to the above child. .
2.I would like to suspend current parenting orders until [the mother] completes and provides the father with evidence of participation in an intensive 90 day alcohol rehabilitation program. After which time the parenting orders of 2004 will resume, with the exception of detailed weekly access 4 hour periods on Tuesdays and Thursdays which will be suspended until the father provides written notice to the mother that this part of the 2004 parenting orders will also recommence, due to the current distance the child is living from my current home in [Town 1].
3.That the Respondent Mother provide the father with her current residential address to enable the required details for an intake assessment process at a Family Dispute Resolution Centre.
4.I would like the mother to organise the slow withdrawal of the drug Risperdol from the child due to my previously expressed wishes and documented concerns about both the effectiveness of this drug which is documented by various doctors detailed in the supporting documents and affidavits submitted to the court.
On the final day of the hearing the mother’s counsel relied on the following minute of orders sought:
1.That all previous parenting orders regarding the child [G] born [in] September 1995 be discharged.
2. That the mother have sole parental responsibility for the child.
3. That the child live with the mother.
4. That the father spend no time with the child.
5.That this order operate as an authority for any school attended by the child to send direct to the father's postal address ([… S Street, Town 1]) or any other address notified to the school in writing) copies of all school reports, school photographs and newsletters normally sent to parents.
6.That the mother provide in writing to the father within 2 months a post office box number to which the father may send any reasonable number of letters and gifts to the child.
7. That the mother do all things to ensure that the child receives any letters and gifts sent by the father pursuant to order 6.
8.That, in the event that the child is hospitalised or suffers a serious injury, the mother inform the father promptly of the nature of the injury or illness, and the place where the child is being treated or has been treated.
9. That each parent not denigrate the other parent or any member of the other parent's family in the presence of the child, and do all things to ensure that no other person does so.
By a Minute of Orders provided to the Court and the parties during final submissions, the ICL seeks:
1.All previous parenting orders in relation to the child [G] (dob […]/9/95) (“the child”) be discharged.
2.The mother have sole parental responsibility for the child.
3.The child to live with the mother.
4.The mother is to do all acts and things required to ensure that the child receives letters and gifts sent by the father to the child once per calendar month and on the child’s birthday and Christmas each year.
5.The mother is to advise the father as soon as is reasonably practicable in the event the child is hospitalised.
6.The father is at liberty to obtain school reports, school photos and school news letters at his own request and cost and these orders are sufficient authority for such a purpose.
7.Each party, within 28 days of the date of these orders, are to provide the other (via the Independent Children's Lawyer) of their emergency telephone number and postal address and are thereafter to keep the other advised (NOT VIA THE Independent Children's Lawyer) of any changes to their emergency contact details 24 hours prior to any change to those details.
8.The mother is restrained from being intoxicated by alcohol while the child is in her care.
9.Each party is restrained from denigrating the other in the presence of the child or allowing any other person to do so in the presence of the child.
written evidence
As set out in his Case Outline, the father relied on:
Initiating Application filed 28 July 2010
Affidavit of the father filed 10 March 2010
Affidavit of the father filed 11 May 2010
Affidavit of the father filed 7 July 2010
Affidavit of the father filed 28 July 2010
Affidavit of the father filed 8 August 2011
The following is quoted from the Outline:
Drug Alert on Risperdol written and endorsed by pediatritions, Pharmacists and Doctors with over 60 years of collective experience in their respective fields of expertise.
Scholarly Journal Article on Family Therapy “Expanding the Paramiters of Parental Alienation Syndrome” written and endorsed by a PHD and other experts in the field of Family Therapy advocating for the immediate removal of the child from the alienator.
Books “Aspergers Syndrome A guide to Parents and Teachers” by Tony Attward 1998, Solutions for individuals with Aspergers Syndrome by Loevett PHD 2005, Aspergers from Inside out by Carley 2008) Parenting Your Asperger Child. Individualized Solutions for Teaching Your Child Practical Skills Sohn and Grayson 2005.
Scholarly Journal Article The American Journal of Psychiatry, Vol 153(2), Feb 1996, 275-277”Childhood physical and sexual abuse in patients with anxiety disorders and in a community sample”. By Stein, Murray B.; Walker, John R.; Anderson, Geri; Hazen, Andrea L.; Ross, Colin A.; Eldridge, Gloria; Forde, David. “Childhood sexual abuse was higher among women with anxiety disorders than among comparison women”
Scholarly Articles by Dr. David B. Stein PHD who is a professor of psychology at Longwood, University, a state college in Central Virginia. He teaches Abnormal Child Psychology, Applied Behavior Analysis (Behavior Modification), Psychopharmacology, Psychology and Law. Author of “Ritalin is not the answer” Dr. David B. Stein is PHD and professor of psychology at Longwood University, a state college in Central Virginia. He teaches Abnormal Child Psychology, Applied Behavior Analysis (Behavior Modification), Psychopharmacology, Psychology and Law states “Psychiatric drugs, including antidepressants, antipsychotics and stimulants…have serious, life threatening side effects and patients are rarely warned about the full risks of the drugs. International drug regulatory agencies included the U.S. FDA warn that these drugs can and do cause worsening depression, mania, aggression, psychosis, depersonalization, diabetes, hallucinations, suicidal and homicidal thoughts, heart attach, stroke and sudden death.”
Echolalia is the repeating of words or phrases or even longer passages of speech in the case of some people with autistic spectrum disorders of one person by another… often without understanding of the situation or what the behaviour actually means… echolalia may have a useful function. I may be used to manage stress, to indicate that the person doesn’t understand and perhaps most importantly to rehearse…to learn to copy the speech of other, even at a very complex level…practicing social skills that helped to deal with people interactions that would otherwise be very difficult to handle…The echoing often includes the cadence and intonation of the original speech. (Lovett PHD 2005 page 201). Eg “Dads a Psycho” (P 2011).
Other than an article about ‘parental alienation syndrome’ the father did not provide to the Court the books and articles to which he referred. In any case, without the opinions expressed in those books and articles, whether about the treatment of Asperger’s Disorder or about ‘parental alienation syndrome’ being introduced through an expert or being accepted as the orthodox or generally accepted opinion of the relevant profession, they could not usefully form part of the evidence.
The mother relied on:
Amended Response filed 25 January 2011
Affidavit of the mother filed 11 October 2011
Notice of Child Abuse or Family Violence filed 8 September 2010
Expert Evidence
The following expert evidence was relied on:
Family Report by Mr P dated 18 April 2011
Magellan Report, Department of Human Services dated 16 November 2010
THE HEARING
The hearing was listed for three days commencing on 20 December 2011. At 10 am on the first morning the father was not present. It transpired that he was on his way to Sydney from the Town 1 area on the understanding that the hearing would commence at 2.45 pm. As to how the father came to that understanding, he asserted that he received a letter and or an email from the Independent Children’s Lawyer which set out the wrong time. It was the father’s assertion that that was a deliberate ploy by the ICL to frustrate the father’s case. Despite repeated requests, the father was not able to produce a copy of the letter or email from the ICL containing the wrong starting time.
In consultation with the father and counsel for the mother and the child, I allocated time limits for the components of the trial and with their co-operation, those limits were generally adhered to. At 4 pm on 22 December 2011, judgment was reserved and the parties were excused from attending on delivery of judgment.
the child
There is one child of the marriage:
G Maurer who was born 4 September 1995 and as at the date of the hearing was 16 years of age.
short history
The mother was born in 1964 and, as at the date of hearing, she was 47 years of age. The father was born in 1966 and, as at the date of hearing, he was 45 years of age. The parties married in October 1994. The mother says that the parties finally separated in late 2000. The father says the parties separated in around May 2002.
CREDIBILITY
This case involved allegations of sexual abuse by the father against the child, of physical and emotional abuse by the father against the child and of neglect of the child as a result of alcohol abuse by the mother. The alleged behaviours are likely to have occurred in private or at least in the absence of any independent witnesses. In those circumstances, the credit of witnesses is important.
The father was not successfully challenged in relation to the key issues in the case. He sought to argue with counsel and objected to many questions on the basis of relevance. I note however, that he was representing himself and therefore was within his rights to challenge the form of questions put to him. The father readily made concessions against interest – such as agreeing that on one occasion in 2009 he shouted “bansai” and ran at his former partner’s friend, Mr F, with a samurai sword. He also conceded that with hindsight he might have acted differently on various occasions. In relation to a number of incidents the father did not have a clear memory of the event.
The mother struggled with the process of cross-examination. She wrongly asserted that she had made comments in the father’s favour in her affidavit. She represented that in February 2009 when she moved to the Town 2 area, she had not intended to exclude the father from G’s life but the facts suggest otherwise. The mother’s evidence about the level of her past alcohol consumption is not credible. She denied being heavily intoxicated on two specific occasions that were put to her but did not cavil with the police record of those events suggesting that she was heavily intoxicated. Just as concerning she has no independent recollection of those events. Not of falling down in front of cars and nearly being run over; not of urinating on her kitchen floor. It was her evidence that she has not had a drink at all since 2009. The problem is that her unreliable evidence about the earlier occasions casts some doubt on the reliability of her current representation, as did the fact that she told Mr P that she drank “very rarely”, not as she asserted before me, that she has abstained from alcohol since 2009. On the other hand, there is no objective evidence that suggests that she has been intoxicated since 2009.
Mr P gave evidence as the single expert and his credit is not in issue.
The issues
The key issues that seem to arise for determination are:
1.Whether the father sexually abused G.
2.In any event, whether there is an unacceptable risk that he would in the future sexually abuse her.
3.Whether there is an unacceptable risk of harm to G because of the mother’s consumption of alcohol.
4.Whether it is practicable for G to maintain a relationship with both parents.
5.Whether there is an unacceptable risk of harm to G as a result of conflict between the parents.
6.Whether something can be done to reduce that conflict while maintaining a relationship between each parent and G.
background evidence
In 1986, the parties commenced a relationship.
In around 1987, the mother says she discovered that the father had a marijuana habit. She also says that the father was violent toward her throughout their relationship including during her pregnancy.
In 1990, the parties commenced cohabiting.
As indicated above, the parties married in October 1994.
In around mid 1995, the parties moved to Town 3, NSW.
G was born in September 1995.
In around mid 1996, the parties moved into the maternal grandfather’s home at Sydney Suburb 1.
In 1998, the father says that the parties and G moved to Town 1. The mother says that this move occurred in February 1999.
In February 1999, the maternal grandfather passed away.
In June 1999, the mother’s brother committed suicide.
In around 2000, the father received a lump sum worker’s compensation payout.
The date of separation is not of critical importance and the parties disagree about it but I accept that they separated in late 2000.
In around 2001, the father moved to Sydney to commence studying at University 1. He returned to Town 1 on weekends to spend time with G.
In 2002, the father says that the mother smashed the rear window of his home.
From 2002 to 2005, the father says that the mother made disclosures to him in regard to her excessive drinking.
On 10 June 2002, the father alleges that the mother punched him while intoxicated and that the police were called.
On 16 February 2004, property and parenting orders were made by consent by this Court at Newcastle. As to parenting, the following orders were made:
1.That the child of the marriage namely, [G Maurer] born […] September 1995 reside with the mother.
2.That the mother and father have the sole responsibility for making decisions about the day to day care, welfare and development of the child during such times as the child is in their respective [sic]
3.That the mother and father have joint responsibility for making decisions about the long term care, welfare and development of the child.
4. The father shall have contact to the child as follows:-
a. each alternate weekend from 6.00pm Friday until 6.00pm Sunday.
b.for half of all school term holiday periods including Christmas Holiday periods, being the first half in even numbered years and the second half in odd numbered years to commence in odd numbered years on the first Saturday at noon and conclude on the second Saturday at noon and the second half commencing on the second Saturday at noon and conclude on the third Saturday at noon.
c.the father shall not have the child on the weekend which includes Mother's Day but in substitution the father will have the child with him on the following weekend at the same times as set out in Clause (a).
d.the mother shall not have the child on the weekend which includes Father's Day but in substitution the mother will have the child with her on the following weekend at the same times as set out in Clause (a).
e.that the contact referred to in Clause (a) be suspended during all school holiday contact periods.
f.that for the purposes of implementing contact the parties shall share the travel as agreed between the parties or failing agreement the mother will deliver the child to the father at […] Service Station situated at the […] Freeway [Town 4], at the commencement of each contact period and the father will return the child to the mother at […] Service Station situated at the […] Freeway [Town 4] at the conclusion of contact.
g. liberal telephone contact.
h. at other times as may be agreed to by the parties.
i.that the father have contact with the child every Tuesday and Thursday from 4.00pm to 8.00pm.
5.That the mother and the father not consume alcohol within a twelve (12) period from collection and delivery of the child.
6. Each party pay their own costs.
The parenting arrangements outlined in the above orders thereafter commenced. The mother says that G would not speak very much upon her return from spending time with the father.
In 2004, the father moved into accommodation at the University 2.
In 2004, Dr M made a diagnosis that G had Asperger’s Disorder.
In around 2004, the vice principal of the school G attended at the time reported a disclosure made by G to the Department of Human Services, Community Services (DoCS). G had told a teacher that the father had touched her inappropriately in the bath.
In around 2005, the mother says that G complained to her that the father kissed her inappropriately. The mother reported the incident to DoCS and the police.
In around 2005 or 2006, G told her mother that the father had been fitting her with tampons when he took her swimming on weekends that she was in his care and menstruating. The mother reported the matter to the police.
In March 2006, the parties’ divorce became final.
In around 2007, the mother says that G returned home from her time with the father with a raised hand mark on her thigh. G told her mother that the father had slapped her leg.
In around 2007, the mother says that G disclosed to her that the father touched her in bed.
In 2007 or 2008, G received treatment from Psychiatrist, Dr B.
In February 2009, the mother and G relocated to the Hawkesbury area in Sydney. G commenced attending Town 2 High School. The mother asserts that she provided the school with the father’s details. The mother does not assert that the father agreed to the move but says that he was aware of her intention to move for G’s benefit.
G has spent no time with the father since that time.
In 2010, G commenced attending Town 5 High School.
On 28 July 2010, the father filed an Initiating Application in the Federal Magistrates Court.
On 8 September 2010, the mother filed a Notice of Child Abuse or Family Violence referring to alleged abuse of the child by the father throwing, slapping and restraining the child and by having sexual intercourse, inserting tampons, kissing and touching the child inappropriately; and alleged physical assault of the mother throughout their relationship including slapping the mother across the face, repeatedly smashing her head onto a bedroom floor and locking the mother in rooms.
On 30 September 2010, the matter was transferred to this Court.
On 8 October 2010, Registrar Tran made orders requesting that DoCS prepare a Magellan Report with reference to the mother’s allegations contained in her Notice of Child Abuse or Family Violence. Magellan is a protocol between the Family Court and each of the State Child Welfare departments and the Legal Aid bodies for the management of cases involving allegations of child abuse or violence.
On 18 November 2010, the Project Magellan Report by DoCS was released, identifying 52 risk of harm reports.
On 20 April 2011, the Magellan Family Report by Family Consultant, Mr P was released to the parties.
On 20 May 2011, a child named C was born to the father’s former partner, Ms Y. The father is unsure whether he is the father of the child. Nevertheless, he is engaged in parenting proceedings about her in Newcastle. The father said he cannot afford a paternity test that meets the requirements of the Family Law Regulations. He plans to try and obtain some contact with the child, on a graded basis, so he can assess for himself whether the child is his. As I understand his evidence, once he can afford a paternity test he will reassess his attitude to the child and his relationship with her.
THE EXPERT EVIDENCE
THE MAGELLAN REPORT
The Court has had the assistance of a Report prepared by the Department of Human Services, Community Services dated 16 November 2010.
The Report contains the following summary:
Date of Contact
Primary Risk of Harm
Outcome
22 January 2001
Risk of sexual harm
No risk of physical harm
19 April 2001
Alcohol and/or other drugs; Domestic violence between carers; Risk of emotional harm
Unknown
19 April 2001
Carer: Adults behaviour – domestic violence
No response required
23 April 2001
Domestic violence between carers
Response at intake level
24 December 2001
Alcohol and/or other drugs; Domestic violence between carers; Care disability (psychiatric)
Confirmed register and allocated
5 January 2002
Emotional state of carer; alcohol and/or other drug use by carer; child wellbeing concerns
No action required
6 January 2002
Domestic violence between carers
Closed without assessment
21 March 2002
Alcohol and/or other drugs; Domestic violence between carers; Risk of physical harm
No response required
7 June 2002
Domestic violence between carers
Unknown
10 June 2002
Domestic violence between carers
No action required
10 June 2002
General: information only
Information only
10 June 2002
General: Request for assistance
Closed and filed locally
23 September 2002
Child at risk of serious psychological harm
Closed
30 December 2002
General
Closed without assessment or investigation
27 September 2003
Domestic violence between carers
Unknown
18 May 2004
No harm or risk issues
Information only
3 May 2005
Risk of sexual harm/injury
Closed
4 May 2005
Risk of sexual harm/injury
Closed – due to competing priorities
6 May 2005
Risk of sexual harm/injury
Closed – information attached to the file
9 May 2005
Sexual indecent acts/molest
Closed - Plan goal achieved
11 May 2005
Risk of psychological harm
Closed and filed locally
24 June 2005
Sexual: Indecent acts molest
Unknown
5 August 2005
Risk of psychological harm
Closed – due to current competing priorities
12 August 2005
Risk of sexual harm, Risk of psychological harm
Closed – due to current competing priorities
12 August 2005
Risk of sexual harm, Risk of psychological harm
Closed – due to current competing priorities
25 August 2005
Risk of physical harm and inadequate supervision for age
Closed – due to current competing priorities
12 September 2005
Risk of physical harm, Physical: Hit, Kick, Strike, inadequate supervision for age, alcohol abuse by carer
Closed – due to current competing priorities
5 March 2006
Alcohol abuse by carer
Closed – Plan goal achieved
21 June 2006
Child inappropriate sexual behaviour
Closed – due to current competing priorities
19 July 2006
Sexual indecent acts/molest; Risk of sexual harm/injury
Rejected by JIRT
24 July 2006
Risk of sexual harm; alcohol abuse by carer; medical treatment not provided by carer
Merged with the above
4 August 2006
Sexual Indecent acts/molest
Merged with the above
5 August 2006
Sexual Indecent acts/molest
Merged with the above
8 August 2006
Sexual Indecent acts/molest; Risk of psychological harm
Merged with the above
10 October 2006
Sexual Indecent acts/molest
Closed
11 October 2006
Sexual Indecent acts/molest
Merged with the above
30 November 2006
Sexual Indecent acts/molest
Merged with the above
2 April 2007
Psychological Mistreatment
Closed – due to current competing priorities
4 August 2007
Child inappropriate sexual behaviour; Risk of psychological harm
Closed – due to current competing priorities
7 August 2007
Child inappropriate sexual behaviour; Risk of Sexual Harm/Injury Risk of Psychological harm
Closed – due to current competing priorities
16 August 2007
Child inappropriate sexual behaviour
Closed – Plan goal achieved
12 September 2007
Risk of Sexual Harm/Injury
Closed – Plan goal achieved
24 January 2008
Risk of Sexual Harm/Injury; alcohol abuse by Carer
JIRT rejected
Closed due to current competing priorities
25 March 2008
Sexual Indecent acts/molest; Risk of psychological harm
Merged with the above
16 May 2008
Risk of sexual harm/injury; Physical other; Risk of Psychological Harm
Merged with the above
19 January 2009
Domestic violence between carers and carer disability (psychiatric)
Closed due to current competing priorities
24 April 2009
Risk of harm/injury
JIRT allocated and substantiated
5 August 2009
Emotional state of carer; Risk of Sexual Harm/Injury
Closed – Plan goal achieved
22 February 2010
Risk of Psychological Harm; Alcohol abuse by carer
Closed due to current competing priorities
10 August 2010
Sexual Indecent acts/molest; Risk of Physical Harm
Closed due to current competing priorities
11 September 2010
Risk of Physical Harm
Closed due to current competing priorities
18 October 2010
Risk of Physical Harm; Risk of Sexual Harm Magellan Matter
Closed due to current competing priorities
Community Services investigated three risk of harm reports. In summary the report provides:
Report received 19 July 2006
· Following an extended stay with her father G returned to the care of her mother and disclosed that she had been inappropriately touched by her father. There was a referral to JIRT which was rejected as not meeting the JIRT criteria. The matter was allocated for investigations by the R Community Services Centre.
· On 28 July 2006 the examining doctor advised the caseworker that G had not been examined or treated in relation to the reported issues; the doctor did not refer her to the Sexual Assault Clinic; the doctor held no concerns for the child but did hold concerns about the mother.
· On 28 July 2006 the Assistant Principal of S Public School told the caseworker that:
G is not achieving academically and is exhibiting extreme behaviours such as: swearing and inappropriate language;
G has never disclosed incidents of sexual assault to school staff;
The school holds concerns in relation to the father’s mental health and stability;
The father recently insisted that G cease her medication;
The mother appears to be struggling to ensure G attends school; and
G has been involved with the school counsellor, home school liaison officer and a classroom support teacher.
Report received 24 January 2008
· The police attended the mother’s residence on 21 January 2008 at about 11.00 pm. The mother was reported to be highly intoxicated; smelling strongly of alcohol, was unsteady on her feet, her speech was slurred and she was constantly repeating statements. The mother said that G was staying with the paternal family and had told her by telephone that the father goes into her room at night and she does not like that.
· There was a referral to JIRT which was rejected as not meeting the JIRT criteria.
Report received 24 April 2009
· Following a week with her father in February 2009, she reported to her mother that her father had put his hands under the sheet of the bed and touched her. G was reported to be 14 years of age[1] but functioning as if she was about 7 years of age. There was a referral to JIRT which was accepted on 4 May 2009.
[1] In fact G was only 13 years of age in April 2009.
· G was interviewed on 8 May 2009 and disclosed that around her birthday (September 2008) and in February 2009:
Her father touched her on the abdomen and breasts;
She was asked whether what she said was the truth or made up and she said that she had made up the disclosures;
The interviewers thought that G was simply repeating what she had last heard;
· Information from a psychologist with the Aging, Disability and Home Care Services of the Department who had provided G with counselling, thought that she had difficulty separating reality from fantasy;
· On 19 May 2009 staff at the Z Public School advised that she had been functioning at about the level of a 7 year old, that she would know how to lie and that she had made no disclosures of sexual abuse.
· On 19 May 2009 staff at Town 2 High School advised that G has an intellectual disability, is very low functioning, is obsessed with males and would know the difference between the truth and a lie.
· On 27 May 2009 G’s previous psychologist stated that there had been no disclosures of sexual abuse and that it would be difficult to trust what G says; it is unlikely that she will know the difference between truth and lies.
· On 2 June 2009 G’s previous psychiatrist said they were uncertain if G would know the difference between truth and lies and that there had been no disclosures of sexual abuse made by G.
· A Secondary Risk of Harm report dated 30 June 2009 substantiated the allegations of sexual abuse/harm perpetrated by the father, based on the limited evidence that G was able to recall the incidents in detail and the history of prior similar reports made to Helpline. The allegations were not further investigated by the police, nor was an AVO sought. So far as the police were concerned there was not enough information. G was considered not to be at further risk of harm as she was having no contact with her father and he did not know of her current address. The parents were notified of that outcome.
· JIRT recommended that G receive sexual assault counselling, that the mother relist the matter at the Family Court and request a variation of the contact orders between G and the father and the matter was then closed.
· The Department resolved not to intervene in the proceedings. The mother appeared to be demonstrating protective behaviours in relation to G’s contact with her father. The current risk of harm to G could not be prioritised over other more serious matters which warrant immediate allocation.
THE EVIDENCE OF THE FAMILY CONSULTANT
Mr P is a Family Consultant employed by the Family Court and was appointed as the single expert in these proceedings. He was awarded an Associate Diploma Social Science (Community Welfare) in 1994; and Bachelor and Masters Degrees in Social Work in 1995 and 2003 respectively. Mr P worked as a District Officer for DoCS from 1994 to 1996; as a Counsellor at an adolescent service from 1998 to 1999; as a Social Worker in the Child Protection Unit at a children’s hospital from 1996 to 2005; as Occasional Lecturer and Topic Author at a mental health educational institution from 2004 to 2008; Acting Social Worker and Senior Clinician/Team Leader in the Child Protection Unit at a children’s hospital from 2005 to 2006; Social Worker and Senior Clinician/Team Leader in the Child Protection Unit at a children’s hospital from 2006 to 2009; and as a Family Consultant at the Parramatta Registry of the Family Court from 2009 to date.
For his Magellan report dated 18 April 2011, Mr P interviewed both parents separately and with G on 8 April 2011. On 8 April 2011 Mr P also observed G with each of the parents.
Mr P noted that the issues in dispute in these proceedings are whether the mother uses alcohol in a harmful manner, with a consequent detrimental impact on her capacity to meet G’s parenting needs and whether the father has sexually or otherwise abused G or conversely whether the mother’s concerns in this regard have caused G psychological or other harm.
Mr P said that G’s presentation was consistent with her having Asperger’s Disorder and significant developmental delays including moderate to severe learning problems and speech difficulties. She could not accurately recall her age and spoke about her interest in The Wiggles, an interest which Mr P considered is more commonly associated with younger children.
Mr P said G indicated a very strained relationship with the father. She told Mr P “I like Mum better than Dad, he’s a bit scary and psycho”. Mr P said G was clearly uncomfortable in her interaction with the father. She was reluctant to be seen with him and would not enter the observation room beyond the doorway. Mr P said the father’s greeting of G was appropriate. G said she would prefer to play with the “little kids” in the play room and, as she was becoming increasingly agitated, was permitted to return to the child care room.
On the other hand, Mr P said that G appeared to have a “functional, if not positive” relationship with the mother. In his observation, the mother appeared appropriate in her interactions with G, she asked appropriate questions about her time in the child care room and about whether she had been to the bathroom and washed her hands properly. Mr P said G appeared settled with and by the mother.
On his assessment, the level of hostility and acrimony between the parents is such that G is only able to have a viable relationship with one of her parents. Mr P said that neither parent appeared to be aware of the potentially negative impact their conflict has on G. He said that the parent’s conflict would be significantly more stressful and difficult for G than for other children of the same age because of her social difficulties, learning difficulties and speech difficulties. Mr P saw no indication that the parents would be able to exercise equal shared parental responsibility.
The mother reported no current problems with alcohol to Mr P. Mr P said that the NSW police records raised concerns about the mother’s use of alcohol in the period before she moved to Sydney. He said that the mother provided limited acknowledgement of problematic alcohol use in the past. If the Court held concerns about the mother’s current alcohol use, Mr P said that it may assist if she were required to undergo assessment with an alcohol and drug treatment service and comply with any recommendations of that service. Mr P noted that the police records also indicated concerns about the father’s use of alcohol, particularly from when the parties were in a relationship.
In regard to the allegations of sexual abuse, Mr P said that G’s diagnoses would make it more difficult for G to make clear and consistent disclosures of abuse. Mr P was not able to exclude the possibility that G has been sexually abused but said that there appeared to be no clear indicators that supported that conclusion either.
Mr P said that the father’s lack of a detailed proposal for G’s living and schooling arrangements raises significant concerns with regard to his understanding of G’s needs. Mr P would not recommend a change to a situation of uncertainty. He said that such a change is likely to be extremely difficult for G, given her special needs. In his opinion, it would be more likely to assist G if any concerns the Court potentially had about the mother were addressed.
Mr P said that the least detrimental option for G would be for her to remain living with the mother, spend no time with the father and for the mother to have sole parental responsibility.
THE ORAL EVIDENCE OF THE FAMILY CONSULTANT
In cross-examination, Mr P did not waiver from his recommendations in his report. Mr P said that, unfortunately, any outcome in this matter will be sad and will be at the cost of something. However, he reiterated that the impact of not having a relationship with the father will be less detrimental for G than the impact of what would be required to maintain that relationship. In his opinion, within the context of the conflict between her parents, G would find spending any time with the father confusing and distressing.
Mr P said that he would not change his recommendation if the Court could not make a finding that the father had sexually abused G. Similarly, Mr P said that he would not change his recommendation if the Court could not find the father’s mental health to be a problem. He said that the only thing that would cause him to alter his recommendation would be if the Court were convinced that the parents had the capacity to resolve their conflict and he saw no indication that this was the case.
I will refer to Mr P’s oral evidence further below.
the legislation
Parenting proceedings are determined on the basis of s 60CA of the Family Law Act 1975 (Cth) (the Act). It provides:
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.
The task of identifying appropriate parenting orders starts with parental responsibility.
Section 61DA creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. Depending on whether an order will be made for equal shared parental responsibility or not, s 65DAA requires that the court consider orders for equal time or substantial and significant time.
Findings are made by reference to what is in the child’s best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a child’s best interests.
Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3), respectively.
Turning to the matters in s 60CC as they relate to these proceedings:
Primary considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents but depending upon factual circumstances, the present relationship may also be relevant.[2]
[2] McCall & Clark (2009) FLC 93-405.
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[3]
[3] Mazorski & Albright (2007) 37 Fam LR 518.
Of the proposals, only the father seeks to promote the relationships between G and both parents. Even then, he seeks that the mother be excluded from the child for at least three months.
I take it then that it is not an agreed fact that the relationships between G and her parents are meaningful or have the capacity to be meaningful. The parents each have concerns about the safety of the child with the other parent.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
86. ‘Abuse’ is a defined term.
87. Section 4 of the Act includes the following definitions:
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person."family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse in the following terms:
Principles relevant to findings of sexual abuse
28. In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a) that the allegation is proved; or
(b) that the allegation is not proved; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
29. In M v M (1988) 166 CLR 69 the High Court said at 76:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
As to the standard of proof, the Evidence Act 1995 (Cth) now incorporates the effect of Briginshaw in s 140.
Section 140 of the Evidence Act provides:
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In May 2009 G told[4] a Detective Senior Constable and two DoCS Caseworkers that after her 13th birthday party, in her bedroom at her father’s house, her father touched her on the stomach and breasts. G turned 13 in September 2008. She said she was wearing no clothes or underwear. She also said that on the last day she spent with her father, in her room at her paternal grandmother’s home, he touched her breasts with his hands inside her clothes. She said that the police took her father away and that she had not seen him since. G was asked about truth and lies and told the interviewers and then repeated, that she had made the allegations up.
[4] Exhibit 3.
In a letter between staff at Town 2 High School dated 4 June 2009, it was noted that G reported to her teacher that her father was a paedophile. In the School Counsellor notes from Town 2 High School dated 10 June 2009, the counsellor recorded that G said that the paternal grandmother says the father is a paedophile. G understood paedophile to mean “someone who touches you inappropriately”. G told the counsellor that her father had never touched her inappropriately.
According to the COPS record, on 1 April 2010 G was asked by the police what she had told her mother about what her father had done to her. G replied “He touched me, he put his rude part in my vagina and stuff.”
There is evidence of disclosures made by G that appear to have no foundation. In August 2007 a meeting was held with the mother at S Public School involving the school principal, teacher and counsellor as well as officers from the NSW Department of Aging Disability and Home Care. The records of the meeting refer to sexualised behaviour and talk by G, targeting one boy as her boyfriend and references to “sleep with” and “oral sex with”. It is not contended by any party or authority that G did in fact sleep with or have oral sex with a boy at her school.
Given her presentation to JIRT, G either denied the reported assaults or was an unreliable reporter. The sequence of alleged disclosures made by her commenced with a disclosure of touching made months after she last spent time with the father and 12 months thereafter she is alleged to have disclosed that he put his rude part in her vagina. There is no medical or other independent evidence of sexual assault. The authorities took no action against the father. The mother had concerns about the father from as long ago as 2002 and yet in 2004 she requested this court to make orders putting the child with the father unsupervised. The single expert did not conclude that the father assaulted G. Mr P reported:
“Whilst the possibility that G has been sexually abused cannot be excluded by the Family Consultant, there appear to be no clear indicators to support that conclusion either.”
On the evidence before me it is not possible to find that G was sexually assaulted by the father or that there is an unacceptable risk of such abuse in the future.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Mr P assessed G as not being of a developmental level where any weight could be given to her views.
G has experienced developmental delay. Unlike the wishes of a 16 year old child not experiencing such a delay, her wishes will not be of critical significance here. That is not to say that her present estrangement from her father and her reluctance to be in his presence are not relevant in identifying orders in her best interests.
(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
The background facts suggest that the mother is G’s primary care giver. When the parties separated, G mainly lived with the mother. The 2004 consent orders implemented a regime whereby G lived mainly with the mother. Subject to the mother completing a rehabilitation program, the father proposes that in the future G will continue to live mostly with her.
For the purposes of his assessment Mr P was not able to observe G with her father. G told Mr P that she liked Mum better than Dad “he’s a bit scary and psycho” and “locks me in the room and stuff”. When asked about seeing her father with the consultant, G said: “no good, I’ll say go away”, “he’s a psycho person”.
Mr P observed that the father greeted G appropriately but G did not enter the observation room beyond the doorway and said “I don’t think this is a good idea” and that she would “prefer to play in other room with little kids”. G was permitted to return to the child care room as her agitation appeared to be increasing.
Mr P observed that the mother asked G appropriate questions about her time in the child minding room. G said: “Dad was here Mum.”, “I said I didn’t want to be with him”. Mr P observed the mother to be appropriate in her interactions with G and that she appeared settled with and by the mother. In his evaluation Mr P reports:
”[G] indicates a very strained relationship with [the father] and was clearly uncomfortable in her limited interaction with him. [G] appears to have a functional, if not positive relationship with [the mother].”
The child has a close relationship with her mother and is estranged from her father.
(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Circumstances have meant that each of the parents has not wanted to facilitate and encourage the other parent’s relationship with G. The formal position of each of them has been that there should be no time between the other parent and G – in the father’s case for at least 3 months and in the mother’s case, indefinitely.
As to the future, not only do the parents have a negative view of each other, they struggled during their respective cross-examinations to identify any single positive parenting characteristic of the other.
The father asserts, and there is some evidence to support his assertion, that as and from her move to the Hawkesbury area in early 2009, the mother has sought to exclude him from G’s life. The father asserted and the mother denied that she did not provide his details when enrolling G at Town 2 High School. Not all of the records of that school are in evidence before me. The enrolment records of Town 5 High School are not in evidence before me. The records of the N Disability Organisation show that the father’s details were not included in an enrolment form completed on 30 June 2011.
It is part of the father’s case that G has been the victim of parental alienation whereby the mother has sought to exclude him from G’s life. The father tendered an article by a Glenn F. Cartwright of the Department of Educational Psychology and Counselling at Montreal’s McGill University. The copy of the article bears a reference to the American Journal of Family Therapy, 21(3), 205-215, 1993. It is likely that the article was written in or before 1993. The article was included in the evidence as a document that was read by the single expert, Mr P.
I was taken to no Family Court authority wherein a syndrome called ‘parental alienation syndrome’ has been identified. I could find no relevant authority on the issue. That is not to say that there is no such authority, I simply could not find one.
In Braithwaite & Braithwaite [2007] FamCA 468 the Full Court made the following reference to “parental alienation syndrome”:
89.Whilst we accept that Ms S and the trial Judge use the words “parental alienation”, Ms S also did not diagnose the mother as suffering “parental alienation syndrome”, the syndrome which has been described as “invented” by American psychologist, Richard Gardener (1992) (see Dr E McInnes, “Parental Alienation Syndrome: A paradigm for child abuse in Australian family law”, in Australian Institute of Criminology, Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1-2 May 2003).
90.The distinction between the “Parental Alienation Syndrome paradigm” and “parental alienation” is discussed by Dr Elspeth McInnes in her paper, “Parental Alienation Syndrome: A Paradigm for Child Abuse in Australian Family Law” (supra).
The expert did not accept the propositions put to him by the father in relation to ‘parental alienation syndrome’. Mr P said that his understanding of the concept is shaped by more recent articles that place the child as the central player in the scenario. He said that, in situations where children are estranged from one parent, it is important to look at all of what is going on, rather than the actions of just one parent.
However, Mr P readily accepted that the elements of the so-called syndrome, put to him by the father, were likely to damage a child. He readily accepted, for example that there could be harm to a child in over-identifying with one parent and that harm can be done to a child if one parent is demonised by the other.
Mr P said G is certainly estranged from her father and that neither of the parents have the capacity to fix that situation for her. He said that the reasons for that are not entirely clear but that, most probably, the actions of both parents have led to that situation. Such estrangement could occur even without significant influence from the parent with whom the child lives.
“Parental Alienation Syndrome” is not included in the DSM IV.[5]
[5] The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association and provides a common language and standard criteria for the classification of mental disorders. It is used in the United States of America and in varying degrees around the world, by clinicians, researchers, psychiatric drug regulation agencies, health insurance companies, pharmaceutical companies, and policy makers. The Manual is in its fourth revision – hence DSM IV.
I was not asked to make a specific finding in relation to the father’s case on this issue. Having said that, for the purposes of this criteria there is no doubt that the mother is neither willing nor able to facilitate, and encourage, a close and continuing relationship between the child and the father.
(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Mr P said that drug and alcohol rehabilitation programs have varied success rates and that it is unhelpful to consider people with alcohol abuse issues as a homogenous group. He said there are different treatments for different problems and that treatment is unlikely to be effective if it is not geared to the specific problem.
Mr P said that such courses are only likely to be effective if the person receiving the treatment thinks that it is necessary. Here, the mother does not even accept that there is a problem. Mr P said that a system for monitoring the mother’s alcohol abuse might be a way of addressing the father’s concerns in the conflict, but would not address the mother’s concerns in the conflict.
An order for the parties to attend upon a Family Relationship Centre
The father seeks an order that the parties attend on a Family Relationship Centre. In my view it is not appropriate to order such an attendance. Given their history I am not sure that the parties would be accepted by a FRC but in any event, such an order is unenforceable. It is one thing to require a person to attend at a particular address and entirely another to cause that person to make a bona fides effort to compromise on various issues. There is no evidence from the father to suggest that he is looking to make compromises. The proposal sounds more like an attempt to encourage the mother to change her mind.
The provision to the father of the mother’s residential address
The father seeks an order that the mother provide him with her residential address for the purposes of the parents attending on a Family Relationship Centre. In my view it is not appropriate to order such an attendance. In any event the orders sought by the ICL and which will be made by me, will provide for the exchange of postal addresses.
Whether the Child should be withdrawn from the drug Risperdal
Finally, the father seeks an order in respect of the medical treatment of G. He seeks an order requiring that the mother organise the withdrawal of G from Risperdal. It is beyond the scope of these proceedings to make findings about the most effective treatment for Asperger’s Disorder, given the lack of expert evidence on this issue. In any case, the issue can be dealt with as one of parental responsibility.
This is a very sad case from many points of view. Given G’s needs and the impost of those needs on the parents and particularly on the mother, I cannot help reflecting on the fact that the public and private financial costs of these proceedings might better have been applied more directly to those needs. Expressed in terms of the daily cost of a teacher’s aide for G, for example, the cost of these proceedings would have supported a much better attendance by G at school, than has been possible to date.
I certify that the preceding one hundred and ninety seven (197) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan dated 13 January 2012.
Associate:
Date: 13 January 2012
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