McDermott and Bond

[2009] FamCA 1161

FAMILY COURT OF AUSTRALIA

MCDERMOTT & BOND [2009] FamCA 1161

FAMILY LAW - CHILDREN - Interim proceedings - The child is living with the mother and spending time with the father on alternate weekends and during school holidays pursuant to final orders made in December 2008 - Mother alleges the child recently disclosed the father sexually abused her - Chapter 15 Expert concluded that the mother was orchestrating a campaign against the father that was well planned and deliberate, and that she was alienating the child from the father - Interim orders are made for the child to live with the father and spend supervised time with the mother pending final hearing of the matter in February 2010

Family Law Act 1975 (Cth)

APPLICANT: Mr McDermott

RESPONDENT: Ms Bond

INDEPENDENT CHILDREN’S LAWYER: Mr Hamilton, Peter Hamilton & Associates

FILE NUMBER: NCC 2054 of 2007

DATE DELIVERED: 20 November 2009

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Mr Reilly

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Taylor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hamilton

Orders

IT IS ORDERED:

1. The Affidavit of the Chapter 15 Single Expert, Ms S, is released to the parties and their legal representatives.

2. The Court entertains the oral applications of the Independent Children’s Lawyer and the parties made today for interim parenting orders.

3. All former parenting orders are suspended.

PENDING FURTHER ORDER

1. The child M, born … December 2003 (“the child”), shall live with the father.

2. Each of the parties shall take all reasonable steps to ensure that the child spends time with the mother upon the following conditions:

   a.On occasions not less frequently than once per week for a period of three hours;

   b.Such time to be supervised; and

   c.The identity of the supervisor to be notified to, and approved by, the Independent Children’s Lawyer in advance.

3. Each of the parties shall take all reasonable steps to ensure that the child communicates with the mother each Tuesday and Friday between 6:00 pm and 6:30 pm and for that purpose, the mother shall telephone the child on the telephone number provided by the father to the mother and the father shall ensure that the child is able to receive the mother’s calls at that number at those times.

4. The father is at liberty to enroll the child at a public school other than that attended by her half-sister D.

5. The parties are restrained from permitting the child to be involved in any further counselling or therapy.

6. Leave is granted to the Independent Children’s Lawyer to provide a copy of the Chapter 15 Expert Report to the Director General of the Department of Human Services and JIRT.

7. The mother is restrained from contacting the child in any manner or at any time other than as permitted by these orders.

8. The documents produced on subpoena by the E Public School, the Department of Community Services (as described) and JIRT are released and the parties are at liberty to inspect those documents, but no photocopy access is permitted.

9. Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. Leave is granted to the Independent Children’s Lawyer to issue further subpoenae to:

    a.O Medical Centre;

    b.The New South Wales Department of Human Services; and

    c.JIRT.

11. Liberty to restore the matter to the list for further procedural orders on three days notice.

12. Leave is granted to the respondent mother to file and serve by Friday, 18 December 2009, any further affidavit evidence dealing with the limited issue of the potential future supervision of time to be spent by the child with the mother.

NOTATION

A.The Independent Children’s Lawyer and father have both sought an order from the Court inviting the Director General of the Department of Human Services to intervene in these proceedings.  The Court declines to make such an order but notes that the Department is at liberty to seek leave to intervene in the proceedings of its own volition if the Director General sees fit.

IT IS NOTED that publication of this judgment under the pseudonym McDermott & Bond is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2054 of 2007

MR MCDERMOTT

Applicant

And

MS BOND

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings are listed for final hearing before me on 2 February 2010 in relation to parenting orders.  Those parenting orders will pertain to the child M, born in December 2003 (“the child”).  The child is shortly to attain the age of six years.

2. The child is the biological child of the applicant father, Mr McDermott, and the respondent mother, Ms Bond.

3. There have been previous parenting proceedings before the parties.  Those proceedings culminated in December 2008 when a Federal Magistrate made final parenting orders between them, the general effect of which was to allocate equal shared parental responsibility for the child to the parties, to order that the child live with the mother, and to order that the child spend time with the father.  The time spent by the child with the father pursuant to those orders essentially involved alternate weekends and part of school holiday periods.

4. The implementation of those final orders ran into difficulties during the course of 2009.  That is because the mother alleges that disclosures were made to her by the child, which could only be construed in the form of a complaint of sexual molestation of the child at the hands of the father.

5. As a consequence of reports of that ilk being made by the child to the mother, the mother unilaterally decided to terminate the arrangements for the child to spend time with the father pursuant to the orders made in December 2008. 

6. That led to the father to commence proceedings before the Court against the mother for contravention of the orders. I am told that the contravention application resulted in a finding by the Federal Magistrate of one contravention of the orders by the mother. 

7. As a consequence of that finding, the parenting orders made in December 2008 were again implemented, but the arrangement again fell into disrepair in or about August 2009 when the mother alleges that further sexual allegations were made by the child against the father to her.

8. The proceedings came before me on 11 September 2009 for procedural directions so as to bring the matter on for final hearing.  On that occasion, the matter was listed for hearing on 2 February 2010.  One of the procedural orders made by me was for the preparation of an update report by Ms S, who was the Chapter 15 Single Expert appointed in the prior proceedings which concluded in December 2008.

9. The expert report prepared by Ms S for use in the current proceedings was recently completed and annexed to an affidavit sworn by her on 12 November 2009.  By reason of its contents, the Director of Child Dispute Services at the Family Court of Australia at Newcastle released the report only to the Independent Children’s Lawyer.

10. Following the release of the report, the Independent Children’s Lawyer took steps to have the matter re-listed before the Court in view of the recommendations made by the single expert.

11. As a consequence of the Independent Children’s Lawyer’s request, the matter became listed before me today.

12. The Independent Children’s Lawyer sought interim parenting orders that would reflect the recommendations made by the single expert.  It is intended that those interim orders prevail until the final hearing on 2 February 2010.

13. The orders sought by the Independent Children’s Lawyer may be conveniently summarised as follows:  He seeks that the child lives with the father and that the child spend time with the mother, subject to such time being supervised.  The Independent Children’s Lawyer also seeks orders that the father be at liberty to enrol the child at a school other than that attended by her half-sister C, and that the parties be mutually restrained from involving the child in any further counselling or therapy.  The Independent Children’s Lawyer also seeks leave to furnish a copy of the single expert’s report to both the Director General of the Department of Human Services and JIRT.  The Independent Children’s Lawyer seeks a further order from the Court extending an invitation to the Department of Human Services to intervene in these proceedings.

14. The father actively supports each and every order propounded by the Independent Children’s Lawyer. The father additionally seeks an order restraining the mother from having any contact with the child outside the program of orders for the child to spend time with her.  The Independent Children’s Lawyer also supports the request for that additional injunctive order.

15. Learned solicitor for the mother informs the Court that although the mother does not consent to an interim order that the child live with the father, she does not actively argue against an order being made to that effect.  Rather, the gravamen of the mother’s position today is that the time spent by the child with the mother should be subject to a much more liberal regime than is proposed jointly by the Independent Children’s Lawyer and the father and, in particular, that it not be the subject of supervision.

16. The mother opposes the Court extending an invitation to the Department of Human Services to intervene in the proceedings.

17. The evidence that the Court has been invited to consider in determining the proceedings on an interlocutory basis is confined to the following:

    a)The affidavit of Ms S, the Chapter 15 Expert, sworn by her on 12 November 2009, which annexes her report; and

    b)Paragraphs 70 to 78 inclusive of the mother’s affidavit filed on 16 October 2009.

18. The interviews conducted by the Chapter 15 Expert with the parties and the child occurred on 27 October 2009.  It can therefore be seen that the comments made by the mother to the Chapter 15 Expert occurred at a time after the mother deposed to the contents of her affidavit filed on 16 October 2009.

19. Because these are interlocutory proceedings, no party or witness has been cross-examined.  The evidence is therefore untested.

20. The law requires that interim proceedings such as these be determined by reference to evidence that is uncontested and/or by reference to inferences which fairly arise from the evidence adduced.

21. At this stage, in the absence of any cross-examination, it behoves the Court to repose considerable weight in the undisputed evidence of the Chapter 15 Expert.

22. The issue of overarching significance in this case is the question of the possible sexual molestation of the child by the father and whether he constitutes an unacceptable risk of abuse to the child in the future.  As a corollary of that issue, in the event that a finding is ultimately made by the Court that the father does not constitute an unacceptable risk of abuse to the child, the question arises as to whether the mother herself poses an unacceptable risk of emotional abuse to the child by reason of her creating an atmosphere within which the child feels free, or the need, to perpetrate allegations of sexual abuse against the father.

23. I turn to the report of the Chapter 15 Expert.  Ms S reports having had a telephone consultation with the principal of the school that the child attends.  It is apparent that the mother often talks to the principal about the sexual abuse allegations which punctuate these proceedings.  It also seems that the child has never spontaneously disclosed any sexual abuse to any members of the staff of that school. 

24. The mother has also furnished a copy of the Chapter 15 Expert’s former report to the school principal, which I infer to be contrary to the orders made in the prior proceedings by the Federal Magistrate.

25. Nothing about the demeanour of the child, reported by the school principal to the Chapter 15 Expert, gives rise to any concern with regard to the relationship between the child and the father.

26. Ms S found the mother to be an unreliable historian.  The Chapter 15 Expert found, by comparison of her consultations with the mother and documents produced on subpoena to which she had access, that the mother had been untruthful to various professionals about major issues affecting these proceedings.

27. The Chapter 15 Expert also makes direct reference to the mother’s lack of real anxiety about the child spending time with the father, which she found incongruent with assertions by the mother that she genuinely believed the veracity of the complaints made to her by the child.

28. The Chapter 15 Expert concluded that this is not a case in which the mother has merely been overly-sensitive to sexual abuse issues and has inadvertently misinterpreted information and behaviour.  Rather, the Chapter 15 Expert concluded that the mother was orchestrating a campaign against the father that was well planned and deliberate, and which involved major untruths being told to various agencies.

29. The Chapter 15 Expert holds the view that the child is being actively alienated from the father by the mother.  That conclusion is in part derived from an interview conducted by the expert with the child in which it is reported that the following conversation occurred (in part):

    Question:“So Mum likes you going to Dad’s?”

    Answer:“She doesn’t.  She reckons it is not good fun at Dad’s, but it is”.

    Question: “So what does Mum think about you going to see your Dad?”

    Answer:“She doesn’t like him.  Sometimes when Dad is happy she calls him… (long pause) ‘Dad’ or the ‘F’ word”.

    Question:“When you come back from seeing Dad, do you tell Mum that he hurt you?”

    Answer:“Yes.  She says, ‘Nobody can touch you.  They will get into trouble’.”

    Question:“When you came back from seeing Dad, does Mum ask you questions?”

    Answer:“Yes.  She said ‘Did he hurt you?’.”

    Question:“What do you say?”

    Answer:“I say he hurt me”.

30. As I have already indicated, the mother has relied upon paragraphs 70 to 78 of her affidavit.  The only inference that can properly be derived from the mother’s evidence in those paragraphs is that she does not question the child in the manner reported by the child to the Chapter 15 Expert.

31. There is a clear inconsistency between the evidence proffered by the mother in her affidavit and the reports made by the child to the Chapter 15 Expert.

32. The Chapter 15 Expert concluded that the reports of sexual abuse made by the child to the mother were false.  She reports that when she saw the child, the child did make disclosures about being hurt by the father in the genital area.  However, unlike in the JIRT interviews, the child’s disclosures to her were described as “parrot like” and “lacking in detail and context”.

33. The child’s claim to the Chapter 15 Expert that she had been hurt in her genitals by a wooden spoon conflicted markedly with what the child told JIRT Officers when interviewed, in that she had been hurt in her genitals by an egg-lifter.

34. The Chapter 15 Expert considered that the child has no real and remembered template of sexual abuse upon which to draw when making her disclosures.  She opines that, at age five, the child has no understanding of sexual abuse and that her concept of being “hurt” is by parental discipline with familiar objects, such as wooden spoons and egg-lifters, which she merely projects to her genitals because that is the area of her body which has been of continuing focus.

35. Ultimately, the Chapter 15 Expert was moved to the conclusion that the child was being coached by the mother.

36. The Chapter 15 Expert concluded, apparently as did Officers of the Department of Human Services and/or JIRT, that the mother was creating an atmosphere in which the child was potentially subject to emotional abuse.

37. Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

38. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

39. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

40. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child.

41. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), or that the presumption should not apply as it would not be inappropriate in the circumstances when making an interim order (s 61DA(3)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)).

42. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

43. These are interim proceedings.  I am making interim orders.  I do not think it would be appropriate in the circumstances for the presumption of equal shared parental responsibility to be applied at this stage.  Principally, the reason for that conclusion is that the matter is before me for final hearing in little more than two months time. The evidence upon which I am asked to make an interim determination today is untested.  In those circumstances, the decision as to the allocation of parental responsibility is best left to the final hearing. 

44. Because I am not therefore allocating parental responsibility for the child at this interim stage, the legislation does not mandate me to consider either equal, or alternatively, substantial and significant time to be spent by the child in the respective households of the parents.  Indeed, this case is not being argued on the basis that the child should spend either equal or substantial and significant time in the household of the mother.

45. Although I have not in the course of these reasons individually addressed every sub-section of s 60CC(2) and s 60CC(3) of the Act, I am cognizant of each of those provisions. The evidence of the Chapter 15 Expert, to which I have already adverted, bears significantly upon many of the criteria specified by s 60CC of the Act.

46. I am satisfied at this interim level that the best interests of the child are served by her living with the father.  I am also satisfied that her best interests mandate that she spend time with the mother.  The issue of significance at this point is the amount of time that the child ought spend with her mother, and the conditions under which that ought occur.

47. The Independent Children’s Lawyer and the father have submitted that supervision is necessary.  I accept that submission.  I do so because it accords with the evidence of the Chapter 15 Expert and her stridently expressed recommendations.  However, I am not attracted to the submission of the Independent Children’s Lawyer and the father that the supervision ought only be implemented by the organisation entitled “Relationships Australia” through its functionary known as the “Rainbows Contact Centre” in Newcastle.

1. The Independent Children’s Lawyer has fairly conceded that there is a waiting list at that organisation, the effect of which may be to preclude any time being spent by the child with the mother over the next few months.

2. For that reason, I intend to make an order that requires supervision in circumstances where the supervisor will be a person or entity proposed by the mother, who or which is acceptable to the Independent Children’s Lawyer.

3. For those reasons, I make the following orders.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  20 November 2009