Mundy and Hitchins
[2011] FMCAfam 121
•11 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MUNDY & HITCHINS | [2011] FMCAfam 121 |
| FAMILY LAW – Interim parenting arrangements – short notice – allegations of sexual and psychological abuse – audio recording of sexual abuse allegations. |
| Family Law Act 1975, ss.13C, 69ZW, 91B, 60K, 60CG, 60B, 60CA, 61DA(3), 65DAA, 60CC |
| M & M [1988] HCA 68; (1998) 166 CLR 69 B & B (1993) FLC 92-357 Sloan & Stephenson [2010] FMCAfam 1078 |
| Applicant: | MR MUNDY |
| Respondent: | MS HITCHINS |
| File Number: | PAC 477 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 11 February 2011 |
| Date of Last Submission: | 11 February 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 11 February 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Magee |
ORDERS
I discharge order 7 of the orders made 25 January 2011, being an order requiring the parties to attend Family Dispute Resolution.
I note the discharge of the order of the family dispute resolution is made on the basis that neither party has yet commenced that process and, further, allegations of sexual, physical, and/or emotional abuse are now raised by both parents in these proceedings and, as such, family dispute resolution would clearly appear undesirable and inappropriate.
The child-minding service of this Court is to release the children, [X] and [Y], to their father, Mr Mundy.
Pending further order and until 5 pm on 22 February 2011, [Y] and [X] are to live with their father, subject to the following conditions:
(a)[Y] and [X] are to be transported by Mr Mundy to his home from this Court today without deviation or stopping, save any stop necessitated by the children needing to go to the toilet, in which case they shall take themselves to the toilet and Mr Mundy shall remain outside;
(b)
one or other of Ms D and Ms W are to be present or substantially present and including, by one or other of them, sleeping at
Mr Mundy’s home at all times when the children are in his care.
The child, [X], is to be re-enrolled at the preschool which he has to date attended, and is to attend on his registered days.
IT IS NOTED that publication of this judgment under the pseudonym Mundy & Hitchins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 477 of 2010
| MR MUNDY |
Applicant
And
| MS HITCHINS |
Respondent
REASONS FOR JUDGMENT
These are proceedings which come before the Court today on the exercise of a liberty to relist the matter. There is otherwise an application in the case now filed, which has, in effect, and as a consequence of that relisting, been shortlisted to be determined today.
The application was only served recently, the proceedings and the circumstances of the relisting only having come about on 9 February, it now being 11 February. Ms Hitchins was only given notice yesterday. I am satisfied that there is sufficient urgency that the matter should proceed today. At Ms Hitchins’ request a solicitor was contacted on her behalf but he did not seek to continue to appear in the proceedings.
The proceedings have a lengthy history before this Court, but without any productive benefit to these children’s wellbeing or to the conclusion of the proceedings.
The matter was commenced by an application filed on 4 February 2010, being slightly over 12 months ago. During that time, the matter has been before the Court on not less than seven occasions. On each of those occasions, nothing has been achieved through no lack of desire on the Court’s part.
Orders have been made on each of the occasions that the matter has been before the Court with a view to move the matter forward. There has largely been no compliance or an indication that the matter is resolved and Terms would be forthcoming.
During the course of the 12-month since the proceedings were commenced terms of settlement were signed by the parties. They were admitted to the Court, there having been on at least two of the adjourned occasions an indication that agreement had been reached between the parties.
On 12 October 2010, orders were made by me in chambers as follows:
(1) I note that these proceedings have been listed on not less than four occasions.
(2) I note that on the last occasion the matter was before the Court, there was no appearance by either party and the proceedings were adjourned, the Court having been advised by letter that the matter was resolved and terms of settlement were to be filed.
(3) I note that terms of settlement were forwarded to the Court by letter dated 16 September 2010 and I have declined to make orders in accordance with those terms of settlement, noting that the parents proposed a six-month-about equal care arrangement for their two children, age six and four, and I am not satisfied that such arrangement is in the children’s best interests.
As a consequence, ultimately, consent to that arrangement was withdrawn.
On 25 January 2010, the proceedings were again mentioned, by telephone, and, on that occasion, it was indicated that the matter was no longer resolved, although there was some discussion of alternate arrangements the parties might enter into, including week-about arrangements and the like. Directions were made adjourning the proceedings to 22 February and directing that a response and affidavit be filed by Ms Hitchins no later than close of business Friday next,
18 February 2011.
An order was also made for the parties to attend the Family Relationship Centre [B], pursuant to s.13C, for the purpose of commencing family dispute resolution. The proceedings having been commenced on the basis of a certificate filed with the Court, which suggested that attempts had been made to attend family dispute resolution but that this had not proceeded as Ms Hitchins had failed or refused to attend. The circumstances of the issue of that certificate are not relevant for today’s purposes.
The matters that are relevant for today’s purposes arise quite recently. It is suggested that, for the majority of the recently concluded Christmas school holidays, these children have spent time with their mother and, other than a period which Ms Hitchins asserts is six days, although Mr Mundy asserts was a week-about arrangement, they were in their mother’s care.
It is suggested that on 9 February 2011, at about 9.11 pm, and as these children were being put to bed and read bedtime stories, that the younger of the two children, [X], made a statement to his mother which suggested to Ms Hitchins that Mr Mundy had abused the elder of the two children, [Y].
Ms Hitchins then proceeded to record the conversation between herself and the younger of the two children, [X], on her mobile phone. That recording has been played in court today. The recording includes the following passage:
“What did daddy do to your bum, [Y]?”
“Touches my bum with his finger.”
“Did he hurt you, darling?”
“Yes.”
“What did he do with his finger?”
“He put it in my bum and wee wee.”
“With his what?”
“Finger.”
“What does daddy do to [Y]?”
“Smacks her.”
“Does he smack her, too?”
“Yes.”
“What with?”
“With a spoon.”
“Does daddy give you anything to drink?”
“Beer.”
This question was repeated several times.
It was otherwise suggested by Ms Hitchins that the children were in immediate risk of abuse, that she had taken immediate action in contacting the Department of Human Services and that a referral had been made to the Joint Investigation Team. It is also suggested that earlier in the interview– I use that term advisedly – between [X] and his mother on 9 February 2011 disclosures were made and also on
31 January 2011 that [Y] herself had disclosed that her father touched her on her “wee wee”.
It is then indicated by Ms Hitchins that she took the child to be examined by a doctor that the referral was made and, as a consequence, [Y] was ultimately interviewed by officers from the Joint Investigation Response Team. That would appear to have occurred at [T] as
Ms Hitchins had, some few days ago, removed herself and the children to that area where she had accommodation with family.
There is an affidavit filed in the proceedings deposing to a conversation between the father’s solicitor and the Case Worker from the Department who is dealing with the matter. Having regard to the short notice, there is nothing from the Joint Investigation Response Team, although I have today made orders pursuant to s.69ZW to seek to procure material from each of the auspicing offices, being the Department of Human Services and New South Wales Police.
The affidavit of the solicitor Ms Magee deposes to a telephone conversation yesterday, 10 January 2011, between herself and an officer of the Joint Investigation Response Team at [W], Ms C.
It is suggested that Ms C had indicated to Ms Magee, having identified herself as the solicitor for Mr Mundy, suggested that “I was told by
Mr Mundy that the Joint Investigation Response Team has interviewed his daughter and are not going to take any further action.”. The departmental officer responded, “That’s correct”. Conversation then continues between Ms Magee and Ms C as follows:
Ms Magee: I understand you interviewed [Y]. Did she say anything to give you concern?
Ms C: No. In fact, she couldn’t tell us the difference between truth and lies and couldn’t contextualise anything at all.
Ms Magee: The matter is in court tomorrow. Can you give me something in writing confirming that you’re not taking the matter any further?
Ms C: We don’t give letters or statements to the Family Court.
Never a truer word is spoken, bearing in mind the difficulties this court has had over some years obtaining cooperation and assistance from the Department, particularly pursuant to s.69ZW requests, which would appear now thankfully to have been addressed and dealt with as reported in the decision of Sloan & Stephenson [2010] FMCAfam 1078.
Those comments, particularly with respect to this child’s difficulty in differentiating between truth and lies and in “contextualise anything”, are manifestly concerning. Firstly, it would appear that [Y], a child of six, has some particular difficulties which have led to her being referred to and interviewed by a school counsellor at the school she has been attending, being [Z] School.
A report was produced dated 22 September 2010, which is annexed to the father’s affidavit. It suggests that [Y] was happily accompanied by the school counsellor to the principal’s office for a number of assessments being administered, including a Wechsler Preschool & Primary Scale of Intelligence test. It suggests that [Y] appeared to tire easily, became extremely fidgety, was unsettled, twisted and turned in her seat continuously. Opinion is then offered in relation to an assessment of the test scores revealed, which appeared to place [Y], at best, in the average range and, at worst, in the extremely low range. A conclusion is then proffered:
[Y] is a six-year-old girl who attends kindergarten at [Z] School. Testing on the Wechsler Scale indicates that her overall cognitive function falls within the low average range of ability.
It was then suggested that she be supervised to assist her maintaining on task behaviours, her seating in the classroom be changed to maximise her auditory and visual engagement and minimise auditory and visual distraction, that her eyesight be tested, and that further assessments be undertaken, including, if necessary, a paediatric evaluation. It concludes:
Due to the changing nature of children’s physical/intellectual development, achievement, and behaviour, the results and recommendations contained in this report are meant for current use.
The report would appear to be relatively current.
Secondly, the Court has had the great assistance of a family consultant making themselves available at extremely short notice and late on a Friday afternoon for the purpose of conducting a brief session of observation of each of these children with their father or, at least, attempting to do so. That arises from orders made by me earlier today when the matter was first called and Ms Hitchins was not present.
Ms Hitchins was telephoned and it was ascertained that she was on the Central Coast.
The matter was adjourned to 2pm to allow Ms Hitchins to attend, and orders made for the children to be delivered to child minding and not removed therefrom pending further order of this Court.
It was also suggested by Ms Hitchins as a matter of some importance that the children, but in particular [Y], were “terrified” of their father, and would not have anything to do with him, and had expressed to the mother a desire to never see him again. The brief memo produced by Ms P following her observations commences in discussion of [X], who is aged four, and reads as follows:
When the family consultant entered the child care room, [X] appeared to be on the verge of tears. He was sitting alone behind the screen. When he was asked what was wrong, he immediately stated, “I want to see my daddy.” [X] came willingly to the observation room to spend time with his father. He took the initiative in talking to him, making good eye contact and smiling at him. When told he had to return to the child care room, [X] started crying again, clung to his father’s leg and said he didn’t want to leave him. His father had to put him back in the child care room as he wouldn’t go back voluntarily.
There is no suggestion from the memo that Mr Mundy encountered any substantial difficulty in causing the child’s return. In relation to [Y], the following is offered:
She was most reluctant to see her father. In the child care room, she told me that she has been told she should not see her father. She became tearful when I said I just wanted her to say hello to her father. She got off the chair and went with me reluctantly to the observation room. She would not agree to enter the room. She stood in a doorway and said hello and then went out into the corridor again. I reassured her that I would stay in the room with her. I asked her what could happen if I was there. She started to cry, “I want my mummy,” and refused to enter the room. She was returned to the child care room.
Ms P recommends that any further dispute resolution is unlikely to assist. Further, it is recommended that there be a report or preferably a psychiatric evaluation completed by a child and family psychiatrist. It is also recommended that there be an independent children’s lawyer. I have already made orders prior to the child dispute conference pursuant to s.69ZW and pursuant to s.91B requesting the intervention of the Department, although I hold no great hope that that will occur. I also previously made orders directing that [Y], who is of school age, be returned to her school and re-enrolled to commence school as of Monday, it being apparent that she has missed most, if not all, of this week of school. I also made orders appointing an independent children’s lawyer, and in the hope that the Legal Aid Commission can facilitate that appointment prior to the next mention date of these proceedings in 10 days.
The issue that falls to be determined today is what is to happen with these children during the adjourned period.
The matter is now re-mentioned for the third time today and both parties having had the benefit of a copy of the child dispute memo. When the material in relation to [X] was put to Ms Hitchins, her explanation for [X]’s reaction to wishing to see his father was that he has been spoilt, has always been spoilt, and has been dramatically favoured over his sister, [Y], to the extent that when he was about one year of age and had thrown a book which allegedly broke [Y]’s nose and he was not admonished at all.
In relation to [Y], it was suggested that she has never been told by her mother that she should not see her father and that her refusal to do so is a genuine expression of her fear of her father, as he has abused her. The difficulty with this case is that after 12 months of inaction and the ability of either parent to bring this matter to any conclusion or, indeed, in the case of Ms Hitchins to engage in the proceedings by filing a document, suddenly, there is a wealth of activity and a considerable amount of resources from the Court and other agencies that will be brought to bear to move this matter forward quickly and promptly as is required of the Court by s.60K and s.60CG.
The difficulty I am faced with is that there are a number of competing hypotheses, and these are interim proceedings with little material on the father’s part and none from Ms Hitchins, save the audio recording I have referred to. That creates an invidious position for this Court wherein, quite clearly, the younger of these two children desires to return to his father and is anything but terrified of him, or at least it would appear so from Ms P’s observation, whereas [Y], for whatever reason, and there are a number of equally plausible hypotheses, is indeed expressing reluctance to return to him.
Notwithstanding the dispute that has existed between the parties as to what has occurred during the Christmas holidays, there was less dispute when this matter was mentioned as recently as 25 January. At that point in time, it was conceded by Ms Hitchins that the children had, for quite some months, been living with their father, and on the basis that she had, in or about August of 2010, come down with pneumonia and been unable to care for the children. The care arrangements prior to that are a little less clear, but it would certainly appear from Mr Mundy’s, at this point, undisputed evidence, and it has remained undisputed for 12 months, that he has had active regular involvement with these children.
There are a number of other concerning elements to this case beyond the complete inability of either parent to address the matter in a timely fashion and bring it to a conclusion. Prior to these allegations, which have arisen as recently as either 31 January or 9 February, there have been complaints and criticisms regarding the accommodation arrangements for Ms Hitchins. A number of photographs are annexed to the material filed by Mr Mundy, initially in November 2010, and again in February 2011, which relate to premises at which, at different points in time, although there is the dispute as to how recently,
Ms Hitchins has lived.
One can only describe them as unfit for human occupation and, indeed, in one of the photos, there are no humans, although several animals seem to be residing in the premises. Ms Hitchins indicates that she has not lived in either of the premises depicted in photographs for some time and, in the case of the most recent accommodation at which she has resided, that the premises were not in the state depicted in photographs at the time that she left them, but that Mr Mundy must have caused damage to create the impression shown in the photographs.
The other difficulties that arise relate to the contested allegations in light of [Y]’s apparent cognitive difficulties and failure to thrive at least educationally. There is also some suggestion, clearly from the counsellor’s report, that [Y] is missing her two front teeth and
Ms Hitchins has complained that this was occasioned at a time that she was allowed to ride a bike or motorbike whilst in Mr Mundy’s care but, I infer, Ms Hitchins suggests was inappropriately supervised by him.
Any allegation that predates the sexual abuse allegations creates some difficulty for Ms Hitchins, and she has had a more than ample opportunity, in excess of 12 months, to bring it to the Court.
The failure of Ms Hitchins to engage in the proceedings has been striking. That may well be explicable by the parties having sought to negotiate arrangements and, as I have indicated, at one stage had agreed, although the arrangements negotiated and apparently agreed between both parents at that point in time lacked entirely any child insight or child focus that was ascertainable by the Court and the Court declined to make orders as proposed.
The sexual abuse allegations cannot be dismissed out of hand. As improbable as they seem, the only evidence available to this Court being a interview between both children and their mother which, if nothing else, is inexpertly conducted, replete with loaded and leading questions and would appear to substantially taint the trail for any subsequent forensic examination, leaves this Court faced with an almost impossible quandary of whether to accept or not accept the allegations on an interim basis.
Case law such as M & M [1988] HCA 68; (1998) 166 CLR 69 and
B & B(1993) FLC 92-357 makes clear that the Court should err on the side of caution and the Court is faced with seeking to balance two competing evils, being the positive hypothesis that abuse has occurred versus the negative hypothesis that it has not.
The positive hypothesis means that any order the Court makes which allows Mr Mundy to communicate with this child, let alone spend time with her, has the potential to be emotionally, if not physically, damaging to the child.
The negative hypothesis is such that one would infer that if the strength of relationship previously extant between [Y] and her father approximated that between [X] and his father, that one is cutting off a healthy and well-functioning relationship in response to what could only be seen as emotional abuse by some person in inculcating in this child a substantial fear of her father for no good reason. Which of those is the correct hypothesis is entirely impossible to discern at this stage in the proceedings.
The other possibility, of course, is that if the inculcation of a negative relationship and instilling a fear in this child of her father is, at best, mischievous or, at worst, a calculated attempt to procure some forensic advantage in the proceedings or interfere with if not destroy that child’s relationship with her father, and that has come from her mother, then that is an abuse which would warrant the same caution of allowing any communication or contact at all.
The only other evidence relating to the matter at all is the fact that the State Government agency seized with appropriate investigation of allegations has done so and does not propose to take, it would appear based on Ms Magee’s evidence, any further action, has not had any disclosure, and has not been satisfied that this is a circumstance which would result in any action being taken based on any disclosure that is made. One can infer from the description of the child that she cannot tell the difference between truth and lies and cannot contextualise anything at all that the Department is unlikely to take any action even if a disclosure were made.,
The difficult position the Court is put in demands action, however. It is not acceptable for the Court to take no step today beyond procedural steps.
Clearly, the younger child, [X], who, it is suggested in the audio recording produced to the Court by Ms Hitchins, is given beer by his father, is physically struck by his father, has witnessed his father sexually abusing his sister, and one would think might be traumatised by those events, does not demonstrate to the family consultant any trauma other than through the recent severance of his relationship with his father.
That, in light of what Ms Hitchins asserted would be observable to anyone who chose to do so, is striking.
I have endeavoured to ascertain a number of options as to people who may be able to be present with Mr Mundy if the children were in his care. Two people have been proposed, one of whom it has been possible to contact, being a Ms D. Ms D is 54 years of age, works as a [omitted], and also indicated holds some qualifications as a [omitted].
She is able to be present for some periods of time but not all, and frankly indicates that that is so, rather than seeking to gild the lily of Mr Mundy’s case by glibly agreeing to everything that might be suggested.
The second alternative proposed is a Ms W, who is 36 years of age, has two children, and I am told is en route from [C] to Sydney as we speak. She cannot be contacted for that reason.
Ms Hitchins has expressed some disquiet as to her being involved in any arrangement, having been suggested to be one of Mr Mundy’s “clients” which, ultimately, was distillated to be a suggestion that she was in a sexual relationship with Mr Mundy and I infer a continuation of what Ms Hitchins suggests is a pattern of inappropriate sexual behaviour by Mr Mundy towards people who are younger than him though adult.
Clearly, that which Ms Hitchins has related in relation to [Y] is borne out. She is presently expressing sufficient concern in relation to her father to not want to see him. She did not express any rational basis for that, however, and it may be that she is simply too upset to do so, but indicates to Ms P that she has been told that she should not see her father, and on what basis or with what accompanying fear generated in her is impossible to discern if, in fact, that is what has occurred.
The other aspect of the matter which causes me some concern on an interim basis is the fact that Ms Hitchins is rejecting of the efforts made by the Joint Investigation Team.
It is suggested that this child would have made disclosures but for the fact that she did not know the people questioning her, who are, at the end of the day, professionally trained to deal with and interview children, was in a foreign and unfamiliar circumstance, was isolated and alone. Whether that means that Ms Hitchins was not present and that there may have been a different outcome to the interview if that were the case, I do not know. But certainly, JIRT policy is to interview children absent parents, particularly those to whom it is suggested a disclosure has been made, but with respect to whom, JIRT may have held, and I certainly do, in light of what I have heard of the interview recorded on the phone, some concern as to coaching, prompting, or at the very least inappropriately leading questions.
As parenting proceedings, any decision that I make on an interim basis or otherwise must be governed by Part VII and relevant considerations set out therein. I am required to consider the objects and principles as set out in s.60B, which provide that this Court should ensure that the best interests of children are met by ensuring children, have the benefit of both their parents having a meaningful involvement with each parent but only to the maximum extent that is consistent with their best interests.
The objects also provide that children should and must be protected from physical or psychological harm or exposed to abuse, ensuring that children receive adequate and proper parenting and ensuring that parents perform their duties. The principles underlie the objects and provide further rights for children as regards their spending time with and communicating with parents.
Section 60CA requires that the child’s best interests are paramount at all times. That does not obviate a consideration of the legitimate needs and interests of adults, but simply prioritises children’s best interests, and when the two are in conflict, makes clear which is to prevail.
I am required to consider s.61DA and whether the presumption of equal shared parental responsibility should apply. No orders have been made in this case to date, notwithstanding that the matter has been on foot for more than 12 months and before this Court on many more occasions than was appropriate. The presumption can be rebutted in three circumstances, but these being interim proceedings, it is difficult to draw the necessary factual findings upon which to base a rebuttal. Accordingly, sub-s.(3) provides that in interim proceedings, the Court need not apply the consideration if it is not considered appropriate in the circumstances to do so.
I am satisfied that is the case. There are serious and significant allegations raised by each parent which, if true, would mean the parent subject to the complaint would not be an appropriate person to participate in decision-making. There is a concern, indeed, that if each of these parents is right, yet another hypothesis is available to the Court being that neither parent is at all appropriate, and hence the invitation pursuant to s.91B to the Department of Human Services to intervene in these proceedings.
If the presumption does not apply, I am then not required to consider equal or substantial and significant time under s.65DAA, but I can of course consider it of my own volition should I wish, in the same way that I may, even if the presumption does not apply, still make an order for equal shared parental responsibility or no order at all.
I am not satisfied that the presumption applies, and accordingly I do not intend to consider slavishly the requirements of s.65DAA. Suffice to say that I would, if so considering those provisions and for the purpose of these reasons, do so limited to sub-s.(5) of that section and the matters that deal with reasonable practicality.
These parents, if Ms Hitchins remains living where she is, and she has certainly expressed a desire to do so, live such a distance apart that equal or substantial time could not work to these children’s benefit - travelling between [U], between [L] and [B], and the Central Coast. These parents have no present or future capacity to implement the arrangement. They have no present or future capacity, on what I have read and experienced from past mentions, to communicate with each other or problem solve. The impact on these children of having such an arrangement would be disastrous, having regard to the distance let alone the animosity between these parents.
I am otherwise required to consider all of the relevant factors under s.60CC, which indicates how this Court should determine what is in the child’s best interests. In that regard, there are two primary considerations, being the benefit to a child of having a meaningful relationship with both parents and the need to protect a child from physical or psychological harm.
Here I am faced with two stark choices which each contain an equal level of concern as to physical or emotional harm for these children. On the one hand, [Y] is rendered into the hands of an abusive parent who will sexually abuse her and, on the other hand, [Y] being left in the care of an abusive parent, her mother, who will emotionally interfere in her relationship and inappropriately prompt and encourage falsehoods.
The additional considerations both inform the primary consideration and can stand alone as separate considerations of value and which might conceivably outweigh one or both of the primary considerations.
In relation to views, I have the evidence of the family consultant, which makes clear that [X] desires to be with his father, wants to be with his father, and experiences some distress at not having been with his father. Whereas [Y] expresses a real reluctance to not see her father, again on the basis that she has been told she should not. It would not appear at all suggested that she has been told that by the Department of Human Services or any officer from JIRT.
The ages of these children certainly mean that their views are not determinative and for present purposes I place no substantial weight on those views save as a contra-indicator of the mother’s allegations at least as regards [X].
The nature of the relationship between the children and each parent is not known, save that clearly [X] derives some enjoyment from his relationship with his father and [Y], at present, is seeking to reject that relationship. However, with respect to both their views and their relationships, I note these children are aged four and six respectively and, accordingly, any views expressed would not be determinative, but rather the basis to gauge the nature of the relationship.
The willingness and ability of each parent to facilitate a relationship, it is suggested in the father’s case, is highly relevant. As interim proceedings, it is impossible for me to determine this without making a finding that the allegations, which are suggested to be the basis of the children’s retention in Ms Hitchins’ care, are entirely unfounded and mischievous. There is no suggestion for present purposes, although
Ms Hitchins has not yet had a full opportunity to present evidence, although she has had more than 12 months to do so, that Mr Mundy has interfered with, or failed to support or encourage, her relationship.
The likely effect of change is a difficult proposition in these interim proceedings. One proposal is that the children be split so that [Y] stays with her mother and [X] goes with his father. That would, to some level, present some comfort as regards the allegations made of the father with respect to [Y], but would not provide any comfort at all either in addressing concerns which might equally plausibly arise regarding manufacturing of allegations or removing these two children from the support that they have and find in each other, and I am not prepared to do that, in the same way as I have previously declined to make orders proposed by these parties for six-month-about shared care or to split the children. It is simply no in these children’s best interests.
Practical difficulty and expense is manifest, bearing in mind where these parties live.
But really, the gravamen of this determination is what I can do to protect against the two competing and conflicting risks of harm to these children. The capacity of each of the parents is very much in question in these proceedings. Each alleges the other is abusive, whether physically or emotionally.
The maturity, sex, lifestyle, and background of these children is relevant as they are both very tiny, vulnerable children, entirely dependent on adults for their support, nurture, and sustenance.
Also, the limited evidence that is available suggests that [Y] is, in fact, an incredibly immature child even for her age and functioning at the low or extremely low level of cognitive skill.
There is no suggestion either of these children are Aboriginal or Torres Strait Islander children.
The attitude of each of the parents towards their responsibilities is perhaps reflected by the manner in which they have dealt with these proceedings. Neither has dealt with the other in a particularly warm or effusive fashion.
There are no family violence orders of which the Court has been made aware and there are no family violence issues that have been raised, although I can infer from a number of matters which Ms Hitchins has put to the Court today, and whilst unrepresented, that she will, in due course, suggest that Mr Mundy is inappropriate in preying upon or procuring women much younger than he, Ms Hitchins suggesting that she commenced her relationship with Mr Mundy, who is quite some years her senior, when she was only 14 years of age, and that he continues to engage in similar relationships, which could be typified as coercive, violent, and abusive.
Whether it is preferable to make an order that will avoid future proceedings is difficult in this circumstance. The matter certainly will proceed, and with extensive resources now being allocated to address the parties’ inability to plead their cases properly or to address the matter.
Other facts and circumstances that are relevant. I am conscious that Ms Hitchins has indicated that she has some history of mental health consultation, whether with her GP, psychologist or otherwise, and arising regrettably from her sexual abuse as a child. The allegation was to the relevance of this is not specifically put but that is in the hands of Mr Mundy, and accordingly I do not interpret it as an issue as such.
A further complicating factor in the matrix of factual complexity of this matter as it is now unfolding is that it is asserted by Ms Hitchins, today for the first time, after proceedings had been on foot for 12 months, that Mr Mundy is not, in fact, the father of the child, [Y], and that the father is a gentleman known as Mr F, whose current whereabouts and details are apparently not known to Ms Hitchins. How long the belief has been held or a concern held that Mr F, rather than Mr Mundy, is the father, is unclear.
However, I note that the Act does not restrict the ability to bring an application to this Court to a biological parent and, indeed, applications can be brought to this Court by any person who can demonstrate a sufficient interest in the child’s wellbeing. In that regard, it would appear from the little that has been said by Ms Hitchins regarding Mr F that Mr Mundy has acted and been treated by both parents and by [Y] at all times as her father, and in those circumstances, and to the extent that it should be prosecuted by Ms Hitchins on the next or subsequent occasions, I am satisfied and accordingly declare that Mr Mundy is a person with a sufficient interest in this child’s care and welfare as to bring proceedings before the Court.
That then leaves me with the issue of with whom do these children leave court today, they being in the Court’s child-minding service awaiting an order by me releasing them, it now being after 5 pm. The choices are that they return with their mother, either to the Central Coast where Ms Hitchins has clearly expressed her preference to reside, or to an address provided to the Court proximate to the school [Y] attends, when I have already made an order that this child be returned to that school as of Monday, or whether they go home with their father, where, but for whatever controversy there may be as to care arrangements during the last school holidays, they would appear to have lived continuously for the last few months, and in a home, which Mr Mundy makes clear, he has lived in since a child himself.
The proposition that I have entertained and sought to obtain some material about is to have people present with Mr Mundy at all or most times to provide protection for [Y] in the event that the positive hypothesis is true, and protection and support to not only [Y] but to
Mr Mundy in the event the negative hypothesis is true and, on balance, I am satisfied that that is the best this Court can do based on what is available at present.
It is not ideal, but until resources are made available, one would hope by compliance by the Department of Human Services with the s.69ZW order I have made, by the Legal Aid Commission, exerting all of the influence it can to ensure that an independent children’s lawyer is appointed and available to deal with these proceedings on the next occasion, and by this Court making time available, far more expeditiously than would otherwise be the case, that the matter can be made as stable as possible during the adjourned period.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Harman FM
Associate:
Date: 18 February 2011
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