Meinhardt and Santos (No. 3)

[2012] FamCA 886

FAMILY COURT OF AUSTRALIA

MEINHARDT & SANTOS (NO. 3) [2012] FamCA 886

FAMILY LAW – CHILDREN – interim orders – where the mother makes fresh allegations that the child has been sexually abused by the father – where judgment was delivered recently following a lengthy trial – best interests – where the emotional and psychological risk to the child would be greater if the current parenting arrangements are altered – continuation of the previous orders that the child be cared for in a week about shared care arrangement – further orders for the matter to be listed for trial.

Family Law Act 1975 (Cth)

APPLICANT: Mr Meinhardt

RESPONDENT: Ms Baptista

INDEPENDENT CHILDREN’S LAWYER: Terrill & Associates

FILE NUMBER: DNC 165 of 2007

DATE DELIVERED: 5 October 2012

PLACE DELIVERED: Darwin

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 5 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Powell

SOLICITOR FOR THE APPLICANT: Ward Keller Lawyers

COUNSEL FOR THE RESPONDENT: Mr Norrington

SOLICITOR FOR THE RESPONDENT: DS Family Law

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Terrill

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Terrill & Associates

Orders

1. The matter is referred to the Docket Registrar for preparation of the matter to be listed for trial.

2. The Case Application filed by the father on 26 July 2012 is dismissed.

3. The orders providing for the child Y to spend week about time with each of the parents are continued.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meinhardt & Santos (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 165 of 2007

Mr Meinhardt

Applicant

And

Ms Santos

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a matter which comes on before me today as an interim hearing.  The information and evidence upon which I have to determine the matter is the affidavit material on file and the three exhibits which I have received.  The context of the matter needs to be carefully considered including the history of this matter and the judgment which I delivered in April 2012, after hearing a long case in September 2011 in which there were serious allegations being made in relation to the capacity of each of the parents to provide appropriate care for the child and the risk to the child of abuse in the care of each of the parents. 

2. That lengthy judgment is on the Court file to be considered.  The matter was then brought back before the Court by way of a fresh Initiating Application filed by the father on 26 July 2012.  Connected with that are an application for interim orders and a Notice of Child Abuse. 

3. The mother was the respondent and filed an affidavit on 3 August 2012.  When the matter came on before me on 7 August 2012 I delivered brief ex tempore reasons, at that time, continuing the orders which were in place which provided for the child to spend week about with each of the parents. 

4. The history of the matter needs to be carefully considered but the most recent information is also important.  In the mother’s affidavit which was filed on 3 August 2012 and sworn on 2 August 2012 she refers to the most recent disclosures which have brought about the investigations and the interviews which have taken place since that time.  Those investigations and interviews need to be seen in the context of the history of the matter as discussed in the judgment delivered in April this year, namely, the ongoing interviews and assessments carried out in relation to previous allegations made concerning the child and the evidence that was given in Court, particularly by the experts involved in the assessment of what were then the allegations and the change in the evidence of one of the experts, in particular, when the expert was made aware of the influence of the mother upon the child prior to her concluding her written assessment.  The affidavit of the mother filed on 3 August 2012 says:

   On an evening in early July 2012 [the child] disclosed to me that his father had been sucking his penis.  [The child] and I were just talking and [the child] said that naughty stuff still happens in bed with papa.  I asked him what he said and he said “Daddy sucks my penis”.  I was surprised that he used the word penis because he used to always say Looloo for penis.”

5. The mother then refers to similar disclosures previously made by the child to the police, how the police were unable to verify it and psychologists confirmed that the child was unreliable.  She then continues:

   Despite these concerns I am fully aware of my legal obligation to report such disclosures to Northern Territory Families and Children.  My lawyer had previously advised me that it is an offence not to report such disclosures to either a police officer or to the child welfare department.

6. The mother then says that in accordance with her obligations (not necessarily referring in the affidavit to her belief that the allegations by the child were true) she made the information known to the various authorities.  The affidavit of the mother then refers to the investigation being conducted by Ms W of the Northern Territories Families and Communities who interviewed the child on 6 July at the mother’s sister’s home.

7. The mother says she was told:

   I believe that something serious is occurring.  You are not to return [the child] to his father until this is investigated further.

8. Paragraph 9 of the mother’s affidavit says:

   The following day I thought it best to contact [the child]’s psychologist, [Mr R].  [Mr R] meets with [the child] once a month to ensure that [the child] is coping well and to be the safety net for any appropriate behaviour from either [the father] or I.

9. At paragraph 10:

   [The child] met with [Mr R] on 7 July 2012.  I was not present during [Mr R]’s interview.  At the end of the interview [Mr R] informed me that [the child] had made disclosures to him.  [Mr R] specifically asked me what disclosures [the child] made to me.  I told [Mr R] words to the effect of “His father performed oral sex on him”.  [Mr R] said to me, “Are those the words that [the child] used”.  I said “No, [the child] said “Daddy sucks my penis’”.  [Mr R] then said to me words to the effect “That’s what he said to me too”.  [Mr R] informed me he recorded the interview with [the child] and was going to have to report the disclosure to NTFC.  [Mr R] would not speak to me any further about the disclosures that had been made to him and not give me a copy of the recording.  I do not know whether [Mr R] has passed on the material to NTFC.

10. The affidavit continues to refer to the police interviews of [the child] on 9 July 2012 in which [the child] did not make any disclosures to the police.  Paragraph 16 of the mother’s affidavit says:

    Having reported disclosures to NTFC and the police in the past.  [the child] has previously made disclosures to psychologists and NTFC workers but he has never done the same to the police.  Given my previous experience I knew that this would be the end of the road as far as investigation.  I had and have no intention of taking the matter any further.  I had simply complied with my legal obligation to report the disclosures to the department.  What the children welfare department did with those disclosures after I reported it was out of my control.  I certainly have no intention of making an application to the Family Court to change the existing orders as I do not believe there was any overwhelming evidence to justify the Court revisiting the case.  Despite the fact that I did not intend to take the matter any further I continued to be concerned about the disclosures and the possibility that [the father] is sexually abusing him.  I have dealt with these fears for many months and I managed to deal with them without getting upset or exposing [the child] to my concern.  I certainly do not speak with [the child] about my concerns and certainly do not coach him to say negative things about his father.  [The child] went into his father’s care on 19 July 2012.  He was due to return to my care on 24 July.

11. What is significant in that affidavit is that, at the time, and following upon the comments the child made to her, the investigation by police and the confirmation by Mr R that the child had said similar things to him, the mother voluntarily returned the child to the care of the father on 19 July 2012.  At the previous hearings before me the mother had not sought to bring about any change to the arrangements that the child spend week about with her and week about with the father.  That has, however, now changed.  The change is apparently based upon the reading of the transcript of the interview between the child and Mr R and the interview between the child and Ms W. 

12. The Court has now before it also the full report of Mr R which sets out this allegation that the child made to Mr R.  That report Mr R concludes:

    However, it is my view that the disclosure by [the child] has a high degree of credibility.

13. Mr R then sets out the basis upon which he comes to that conclusion.  At the bottom of that page he continues:

    The possibility that [the child] has made a false disclosure of sexual abuse must also be considered in examining this matter.  This is the view expressed by the father as conveyed to me in a telephone conversation on that same day.  In relation to this claim there was nothing observed in the interview with [the child] to suggest that he had been coached or informed by others of what he should say.  In the likely absence of any such manipulation by the mother it is difficult to determine what motivation may have existed for [the child] to make a false claim against his father.

14. I take into account the acknowledged good qualifications of Mr R as a forensic psychologist but also have to bear in mind the contradictions which I found.  He referred to the likely absence of manipulation by the mother in relation to determining the motivation for the child to make a false claim against his father.  To the contrary, the conclusions which I came to in the judgment (which I delivered after hearing all of the evidence, and in particular those of the experts then involved) was that the mother had in fact influenced the child to make statements to other people which could be construed as an allegation of abuse by the father.  In the next paragraph of Mr R’s report he says:

    Although there is, perhaps, reason to believe that the mother has a negative attitude towards the father and has little if any commitment to making the Court ordered equal time parenting arrangement work there was nothing evident in [the child]’s presentations or comments to suggest that she shaped or influenced [the child]’s disclosure of alleged sexual abuse.

15. He then continues:

    That in the absence of anything to support the belief that the disclosure is false I am inclined to believe that [the child]’s disclosure of alleged sexual abuse cannot be dismissed as a by-product of the parental conflict that should be considered as credible.”

16. The difficulty the Court has with determining the truth of the facts in this matter is the obvious conflicting evidence and the consideration of the transcripts which have been put to the Court in which it is clear that the child does make comments which appear to be indicative of the father being guilty of sexually abusing the child. 

17. There are also, however, inconsistencies in the comments made by the child both in relation to where the alleged offence occurred and to his presentation.  In relation to the interview of 6 July (being the progress notes taken (Exhibit 3)) the observations conclude by discussing where he spoke of his father “doing rude stuff” and “not wanting to talk” but being prepared to talk to Mr R tomorrow.  The observations were:

    [The child] did not present as a child afraid of dad even though he said he didn’t want to go.  When he pointed to his penis he smiled like it was funny not scary.

18. The interview of the recording with Mr R also refers to references of [the child] laughing at times when he was making comments to the counsellor about the alleged abuse. 

19. The primary considerations that the Court has to take into account are the need to protect the child from any risk of abuse whether that is physical, emotional or psychological abuse and encouraging a meaningful relationship between the child’s parents where there is a benefit to the child of having such a meaningful relationship.  These proceedings were instituted on 26 July 2012.  Therefore, the emphasis must be upon the protection of the child from the risk of harm. 

20. The difficulty in this matter, however, is the significant risk of harm both psychological and emotional to the child of ongoing litigation between his parents, and the risk of emotional and psychological harm to the child of being denied time with one of the parents balanced off against the risk to the child of being subjected to ongoing sexual abuse as alleged by the mother.  As the Court indicated, there is a difficult assessment to be undertaken in this matter but it must be considered in the history of the proceedings. 

21. I take into account the significant fact that, notwithstanding, the allegations that the mother said the child made to her and that the mother was aware had been supported by allegations to Mr R, in her affidavit and on the last occasion before me, the mother was proposing that the child continue to reside week about with her and week about with the father.  She is now proposing that the child reside only with her and have no time with the father except supervised time. 

22. The father appears today and counsel seek that the mother’s time with the child be suspended until such time as the mother undertakes a psychiatric assessment. 

23. The Independent Children’s Lawyer supports the orders sought by the mother on the basis of the risk of sexual abuse which is established by the report of Mr R. 

24. I take into account the history of the matter and, in particular, the reasons in the judgment delivered this year in the matter.  I consider that the balance of the risk is such that the greater emotional and psychological risks to the child is by altering the orders that were made that provide for the child to spend week about with each of the parents. 

25. I take into account the fact that since the allegations arose the child has been spending time with the father and with the mother.

26. I strongly recommend that the parties undertake some form of mediation to attempt to resolve the matter.  I propose to refer the matter to a Registrar for preparation for the matter to be listed for trial. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 5 October 2012.

Associate: 

Date: 25 October 2012