Muggeridge and Moller

[2017] FamCA 559

FAMILY COURT OF AUSTRALIA

MUGGERIDGE & MOLLER [2017] FamCA 559

FAMILY LAW – CHILDREN – Interim orders – Spend time with – Overnight time – Best interests of the child – Where the father seeks overnight time with the child – Where the mother makes allegations of sexual abuse of the child by the father – Where those allegations are investigated and not substantiated –Where the child is observed to have a positive relationship with the father – Where an order is made for one overnight period per fortnight – Application allowed.

Family Law Act 1075 (Cth) ss 60CA, 60B(1), 60CC

APPLICANT: Mr Muggeridge

RESPONDENT: Ms Moller

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

FILE NUMBER: ADC 1580 of 2015

DATE DELIVERED: 4 August 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 26 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hemsley

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi Lawyers

COUNSEL FOR THE RESPONDENT: Mr Charman

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Stephen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of SA

Orders

1. That B born … 2014 (“the child”) live with the mother.

2. That the child spend time with the father as follows:-

   (a)       Each Thursday from 10 am until 4 pm;

   (b)       From 9 am Sunday until 5 pm Monday each week.

3. That unless agreed otherwise the handover take place inside the C Town Police Station between the father and the mother or her agent, with the mother or her agent to ensure a quick handover and leave immediately after the child is placed in the father’s care and further the mother or the agent are to hand the child to the father directly.

4. That for the purposes of paragraph 3 hereof, the parties are at liberty to provide a copy of this order to the personnel at the C Town Police Station.

5. That the parties be restrained and an injunction granted restraining each of them from approaching the other save and except for the purpose of these orders.

6. That in the event of an emergency relating to the child, the parties communicate by SMS text message.

7. That the proceedings be placed in the list of matters awaiting a trial allocation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Muggeridge & Moller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1580  of 2015

Mr Muggeridge

Applicant

And

Ms Moller

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. By Amended Initiating Application filed 11 November 2016, Mr Muggeridge (“the father”) seeks final and interim orders that he have sole parental responsibility for B born in 2014 (“the child”), that the child live with him and spend limited time with the mother commencing with two hours of supervised time each week increasing in duration as and from 2 February 2019.

2. By Response filed 14 July 2015, Ms Moller (“the mother”) seeks that she have sole parental responsibility for the child, that the child live with her and spend limited supervised time with the father.

3. The father currently spends time with the child pursuant to orders made 11 February 2016 and 18 July 2016.

4. In summary, the child spends time with the father each Thursday and Sunday from 10 am until 4 pm and whilst his time was subject to supervision, the order of 18 July 2016 discharged that requirement.

5. Whilst the interim orders as sought in the amended initiating application seek a change in the primary care, the father’s position is better understood by reference to his Affidavit filed 27 January 2017 in which he seeks that during the period 1 May 2017 to 30 June 2017 the child spend time with him each Tuesday and Thursday from 10 am to 4 pm and each alternate weekend from 9 am Saturday to 5 pm on Sunday.

6. When pressed, the father’s counsel submitted that his client’s preferred position was that the child spend time with him from 10 am to 4 pm each Thursday and from 9 am Sunday to 5 pm Monday of each weekend.

7. Other than a modest extension of one hour on the time that the child spends with the father each Thursday and Sunday, the mother remains opposed to overnight time.

8. The Independent Children’s Lawyer (“ICL”) was supportive of overnight time being ordered.

9. Accordingly, the parameters of the dispute are of narrow compass and focus on whether introducing overnight time is in the best interests of the child.  The interim proceedings were not able to be determined until the production of a family report which was ordered on 31 January 2017 and published on 19 June 2017.

BACKGROUND

1. The parties reside in C Town in close proximity to each other.  The mother has the primary care of the child’s older half-sibling D born in 2010.

2. D’s father is Mr E.  Mr E and the mother are also in litigation in respect of the parenting arrangements for D.  Orders were made on 6 June 2017 that D live with the mother and spend time with the father on each alternate weekend with Mr E in Adelaide.

3. It is accepted by all parties that there is a close sibling connection between the child and D.

4. Following separation in April 2014, the father’s time with the child was the subject of agreement and seems to have been both regular and frequent.  The relationship between the parties was such that D often attended with her sister.

5. In early 2015 the parties were no longer in agreement as to the time that the child should spend with the father.  The father considers that the mother was reacting to the information that he had entered into a new relationship.  The mother denies the allegation and alleges that she had concerns about the father’s sexualised behaviour towards D.

6. The father did not see the child for a number of months and his time with the child only resumed following the commencement of proceedings in the Federal Circuit Court in May 2015.

7. The allegations of sexual abuse and inappropriate conduct were serious.  The mother alleged that she had concerns in respect of the father’s sexually inappropriate conduct with D from 2013 until separation.  Families SA had received a notification alleging that the father had exposed himself to D.

8. The mother’s allegations continued well into 2016.  She alleged that the child had returned from time with the father with red and inflamed genitals, that she exhibited sexualised behaviour and was refusing to spend time with the father.

9. Significant effort was then expended into investigating whether the father posed a risk to the children generally or the child in particular.  A family report was prepared on 31 January 2016.  Child Protection Services undertook a forensic assessment which was inconclusive.  A recommendation was made that aspects of the mother’s ability to parent should be the subject of assessment.  Concerns were raised about the mother’s presentation such that in June 2016 the mother was required enter into a safety plan.

10. A parenting capacity assessment was undertaken by CAMHS in August 2016 which reported that the children may be at psychological risk in the mother’s care arising from the mother’s false belief that the father had been sexually inappropriate with the children.  The concerns of the authorities were highlighted in a decision by SAPOL not to charge the father with sexual abuse but rather, to investigate whether the mother should be charged with creating a false belief in relation to the sexual abuse allegations.

FAMILY REPORT

1. A family report dated 19 June 2017 was presented to the Court in preparation for the interim hearing.

2. The recommendations of the family consultant are that if the Court found that the father had sexually abused the child or her sister then his time with the child should either cease or occur only under strict supervision.

3. If however the Court found that the mother had fabricated the sexual abuse allegations then the child should transition to the primary care of the father, with the mother only having supervised time until she had completed a course of therapy that would result in her “acknowledging her actions and demonstrating an understanding of the harm such actions could cause children and a commitment to assisting [the father] helping [the child] to recover from the effects of the emotional abuse”.

4. The family report is unusual in that the family consultant focussed on the relationship between the sisters.  The children were the subject of interview and the exchange with the family consultant was accurately recorded.

5. The following reaction by the children is recorded when the child was informed that she would soon spend some time with the father:-

   [88]…[D] looked up with an alarmed expression on her face and said ‘Do you mean yucky [Mr Muggeridge]?’. [D] said twice in an alarmed fashion ‘She will be scared!’  [The child] looked up and said ‘Not again!’  [D] said ‘Not [Mr Muggeridge]! He is yucky!  Do you know what he did to me?

   [90] The following words without italics are those of the writer while [D’s] response have been put in italics:

   …

   [100]What about [Mr Muggeridge]?  He was touching my funny in the bath and in the garage and in the bed and he had white wee and he was sucking my funny and that’s all I can remember (pause).  There were hundreds of things.  I don’t really remember the hundreds of things but I know he did it.

6. When it was time for the child to be observed in the care of the father, D repeated:-

   [123]…‘She will be scared!’

7. The child overheard her sister’s remarks.

8. Notwithstanding the negative encouragement given to the child by her sister, the observations of the father and the child were demonstrative of a close, loving and affection relationship.  The child was not reluctant to engage with her father and was observed to seek his contact.  The family consultant noted that there was “warm engagement” between father and child.

9. At the end of the session the child gave both the father and his partner hugs and wrapped her arms around their necks.

10. Any initial reservation on the part of the child in engaging with the father was considered by the family consultant to be a direct reaction to D’s negative words about him.

11. The family consultant consulted with Ms F, a senior practitioner from the Department for Child Protection.

12. The following advice was received:-

    [205]The Department for Child Protection currently have an open Child Protection Case in relation to [the children].  The concerns relate to the significant risk of emotional abuse, particularly from the mother, in relation to conflict between the caregivers and that the children’s perception of their caregivers has been changed which alters the children’s behaviours and feelings of safety.  The Department have interviewed the mother and the child, [D] and interviews with the children’s respective fathers will occur in the next fortnight.  At this stage in the investigation there is limited information that I can provide until it is completed.

13. The family consultant considered it necessary to make a mandatory notification to Ms F in respect of both the allegations of sexual abuse made by D and the inconsistencies in the presentation of the children.

14. The family consultant also sought advice from Senior Constable G who is a family violence investigator of SAPOL.  The senior constable was tasked to investigate the allegations that the mother had made alleging the father had sexually abused the children.  The summary of the advice received is set at paragraph 203 of the family report:-

    Senior Constable [G] said that she had found ‘absolutely no reason’ to suspect [the father] of abusing [D] or her sister.  She concluded:  ‘I am very concerned that [the mother] is emotionally abusing the children, and that she has done so, and they are probably going to be affected for the rest of their lives because of what she has done.

PARENTING CONSIDERATIONS

1. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that I have the best interests of the child as the paramount consideration. The best interests of the child are met by the application of the objects of s 60B(1).

2. I am cognisant of the primary considerations and additional considerations in respect of the matters as set out in s 60CC(2) and (3).

3. In particular, I am mindful of the direction contained in s 60CC(2A) and have regard to the allegations of the mother that she believes that the father may have engaged in sexually inappropriate interaction with both children. The father does not concede that there is any substance to the allegations of the mother.

4. The current orders provide for the child to spend unsupervised time with the father.  Notwithstanding that the mother has not as yet resiled from the allegations, she makes the following concession in her Affidavit filed 27 January 2017:-

   [27]I accept that there is no proof that the within named applicant father behaved inappropriately in a sexual fashion towards my children.  I feel very uneasy about his ongoing interaction with our daughter and I feel very protective of her.  I oppose the father’s application for our daughter to live with him.  She has lived with me all of her life.  She has a very close and loving bond with me and her older sister who lives with us.  I wish to proceed cautiously with the father’s ongoing time with our daughter.

5. Notwithstanding what appears to be a concession by the mother, the Court must be vigilant whenever an allegation is made that a child may be the subject of inappropriate sexual misconduct.

6. I have had regard to the family report dated 31 January 2016 and particularly to the family report of 19 June 2017.

7. Given the mother’s concession, the father’s trenchant denial and the complete absence of any evidence to support the allegation, I do not consider that the child is at risk of sexual abuse.  Any orders that would otherwise be in the best interests of the child should not be tempered by a consideration of the allegations that had been previously raised by the mother.

8. It is in the best interests of the child that she have a meaningful relationship with her father.  The father and the child live in close proximity and given the observations of the family consultant, there is a close emotional attachment between the child and the father. 

9. In circumstances where I do not consider that the father poses a risk to the child and taking into account the length of time that the current orders have been in place, I give weight to the support given by the ICL to a variation of the current arrangements that would allow overnight time.

10. The child is of an age where the natural progression to overnight time is likely to enhance her relationship with the father.

11. In doing so, I am mindful of the importance of maintaining the sibling relationship and whilst there will be one weekend day each fortnight that the children will not be together, they will have contact with each other for 12 days in each fortnight.

12. I bring to account the matters recorded by the family consultant which might be considered as the child having an adverse view of her father.  I am required to consider the weight that is attached to any view expressed by the child and in this case I consider that no weight should be given to the views expressed, noting however that the importance of the matters expressed by the children is not for the content but rather, to highlight the attempts by D to inculcate the child in her adverse view of the father.  There is no basis for the manner in which D conducts herself, nor do I find any substance in her assertions made to the family consultant.

13. In the absence of any explanation there is some strength to the argument that orders should be made that promote a strong relationship between the child and the father as a counterfoil to D’s influence on her sister.

14. There are no practical difficulties in giving effect to the orders and the mother will need to redouble her efforts to ensure that the relationship between the child and the father is the subject of positive promotion.

CONCLUSION

1. I consider that there is merit in the orders sought by the father and propose to increase one of the two periods that the child spends with her father each week to include an overnight component.

2. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 4 August 2017.

Associate:

Date:  4 August 2017