O’HARA & O’HARA ((No.2)

[2020] FCCA 1172

FEDERAL CIRCUIT COURT OF AUSTRALIA

O’HARA & O’HARA ((No.2) [2020] FCCA 1172

Catchwords:
FAMILY LAW– Parenting – final orders made on 19 March 2020 – mother seeks to commence fresh parenting proceedings – allegations of sexual abuse – determination of risk – Rice & Asplund not met – Application dismissed.

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MS O’HARA

Respondent: MR O’HARA

File Number: PAC 96 of 2017

Judgment of: Judge Obradovic

Hearing date: 2 April 2020

Date of Last Submission: 2 April 2020

Delivered at: Parramatta

Delivered on: 2 April 2020

REPRESENTATION

Counsel for the Applicant: Ms Watson

Solicitors for the Applicant: Watson Law Pty Ltd

Appearing for the Respondent: In person

ORDERS

1. Leave is granted to the Respondent father to make an oral Response to the Initiating Application.

2. The Initiating Application filed on 27 March 2020 is dismissed.

3. The father’s oral application for costs is dismissed.

4. Remove all outstanding issues from the list of cases pending finalisation.

IT IS NOTED that publication of this judgment under the pseudonym O’Hara & O’Hara (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 96 of 2017

MS O’HARA

Applicant

And

MR O’HARA

Respondent

REASONS FOR JUDGMENT

1. On 27 March 2020, the mother filed a new initiating application in circumstances where final orders were made by this Court on 19 March 2020 after a hearing that occurred on 18 and 19 February 2020. The hearing was a final parenting hearing in respect of two children of the relationship, X, who was born in 2014, and Y, born in 2016.  The initiating application was supported by an affidavit sworn by the mother dated 26 March 2013, a notice of risk also filed on the same day and an affidavit of a Ms J dated 26 March 2020, filed on the same day.

2. The mother now seeks final orders that leave be granted to her to file an amended initiating application and amend the final orders sought in order to take into account the outcome of the investigation of New South Wales Police Joint Investigative Response Team and any recommendations that may be made by the New South Wales Department of Communities and Justice in relation to the children.  That is the only final relief that is sought. 

3. In respect of the interim relief, the mother sought that the application be listed at short notice, that the final parenting orders, insofar as they provided for time between the children and the father, be suspended pending the finalisation of the investigation in relation to a complaint made by Y, and that the orders be varied so that the father have FaceTime with the children in lieu of the face-to-face time, but for a much shorter period of time.  The further interim order that was sought is for the secretary of the Department of Communities and Justice to be invited to intervene in the proceedings.

4. This morning, I heard arguments from Ms Watson on behalf of the mother, and also some submissions made by the father.  The father has, in response to the application, filed three affidavits, two affidavits sworn by him and filed on 29 March 2019, being 24 and 5 pages long respectively. The father also relies on an affidavit of his wife, Ms C, sealed on 29 March 2020.  Due to the fact that the father had not filed a response, I invited the father this morning to tell me what orders he was seeking, and, in effect, granted leave for a response to be made orally.  The father told the Court that he sought orders for the initiating application to be dismissed.

5. The mother has also had prepared, on her behalf, a case outline document which sets out the relevant matters that the mother seeks to bring to the Court’s attention, including a chronology. The Court has had regard to that case outline document in coming to its decision this afternoon in respect of the mother’s initiating application and in respect of the father’s response.  Part of the evidence in the proceedings is exhibit 1 which contains emails dated 1 April 2020 between the mother and the Department, and also between the father and the mother’s solicitor’s office.  The Court has had regard to exhibit 1 in making its determination today.

6. In particular, the mother relies on paragraphs 11 to 15 and paragraph 17 of her affidavit which was filed on 26 March.  The mother says that she has concerns that her daughter, who is 3 years and 8 months old might be at an unacceptable risk of harm of sexual abuse in the father’s household by virtue of what the mother asserts are disclosures of sexual abuse by the child.  The evidence, at its highest, does not disclose any sexual abuse.  At its highest, the evidence seems to suggest that a six year old child placed his finger in a three and half year old child’s bottom.  The evidence does not indicate that there was any penetration or other sexual conduct.

7. The mother also relies on a conversation that she had with Y where Y said to her that her older step-sibling K had taken her to the toilet, and that she had wiped herself too hard, and that she was scared of going to the toilet and that her bottom had hurt.  The mother says, in her affidavit, that Y told her twice that her six year old step-sibling L put his finger in her bottom.  The first of those disclosures seems to have occurred on 14 March when the mother took Y to the toilet, and the second occasion is, presumably, on the same day when the child was taken to Suburb E Hospital for an examination.

8. Y told the mother that “L put his finger in my bottom”, and then, later on that L  said “don’t tell” over and over whilst hitting his bed with both of her hands. It was then that the mother asked the child to look at her bottom and she said that she noticed a white ring around the bottom.  Upon seeing that, the mother called the police and was told to meet the police at Suburb E Hospital.  The mother then took the child to Suburb E Hospital.  She had a conversation with the police. 

9. The mother and the child stayed in emergency until around 3.30 or 4 o’clock in the morning.  They were moved to the children’s ward.  They were told by a nurse that they would be transferred to Suburb M Hospital.  They were then transferred to Suburb M Hospital which had a sexual assault assessment unit so that Y could undergo a forensic medical assessment.  It is not clear whether the mother and the child remained at Suburb E Hospital or were transferred to Suburb M Hospital on 14 March, but there was a conversation that the mother deposes to in a telephone call from Suburb M Sexual Crisis Team that the transport would be at Suburb E to take the mother to Suburb M at around 11.00am.  This is on the following day being 15 March.

10. It appears from the mother’s evidence that Y was examined at Suburb M Hospital on 15 March by a Dr N.  The mother does not annex to her affidavit any findings from the hospital, and her solicitor indicated, during submissions today, that there wasn’t sufficient time to issue subpoenas, a submission which is rejected.  The mother certainly does not depose in her affidavit about anything that the doctor might have said to her, or any findings that were made at the hospital.  The mother deposes to a conversation that she had with a social worker who is the other deponent of the affidavit which the mother relies upon. The matter was referred to the Department of Communities and Justice and allocated, according to the mother, to the Joint Child Protection Response Unit for further investigation. 

11. The mother annexes to her affidavit an email dated 24 March 2020 from Ms O who is a Detective Senior Constable in the Child Abuse and Sex Crimes Squad. The email reads as follows:

    Thank you for taking the time to speak to me in relation to your daughter Y. 

    As you are aware, our office has a current case involving your daughter and L, her step sibling. 

    Police have received information that L is residing with your ex-husband, Mr O’Hara, due to this, police advised you to withhold the children from attending their weekly visit that was scheduled on Saturday 21 March 2020.

    As of today, 24 March 2020, the police side of the investigation has closed, due to L being under the age of 10, therefore the matter will remain with Family and Community Services.

    If you need anything else, please let me know. 

    Kind regards.

12. Annexure B to the mother’s affidavit is a further email from Constable Ms O to the mother dated 25 March which reads as follows:

    Further to my email yesterday,

    I forgot to mention that police do not have any issues or concerns in relation to Y or X attending Mr O’Hara’s this weekend as per their scheduled visit. 

    Despite this advice from the police, the mother did not make the children available to spend time with the father on that weekend following 25 March 2020.

13. It appears from the father’s material that the father was contacted by the police, and that he was spoken to about the allegations which had been raised by the mother in relation to Y and L.  The father also says that there was ongoing involvement with the Department of Family and Community Services, and, indeed, that a safety plan had been reached between the father and the Department.  A safety plan which was sent to the mother by the father which the mother received prior to the weekend of 28 March 2020.  Notwithstanding the receipt of that safety plan and notwithstanding the email from the police, the children were not made available to spend time with the father on the weekend of 28 March 2020.

14. The mother, through her solicitor, submitted today that she had not been made aware of that safety plan by the Department, and that it was her understanding that there was ongoing investigation by the Department into the complaint that had been made in respect of Y.  Exhibit 1 in the proceedings are the various emails between the mother and Ms P from the Department, and those emails clearly state that the children were interviewed by Suburb E Hospital case workers on 31 March 2020, that this had been discussed with the mother, and that the children had made no disclosures during their interview.

15. One of the emails from Ms P to the mother, which is part of exhibit 1, is the email dated 1 April 2020 at 4.59 pm, also reads as follows:

    In relation to Y’s ongoing escalating behaviours, I suggest that Y’s counsellor be advised of these as soon as possible and as previously discussed, a safety plan has been put in place with Mr O’Hara and Ms C including that Y and X be supervised at all times, that they sleep in a room with Mr O’Hara (the children in Mr O’Hara’s bed and Mr O’Hara will sleep on a spare mattress on the floor next to the children) and that Mr O’Hara supervise Y re toileting.

16. An earlier email to the mother, sent at 4.07 pm from Ms P, read as follows:

    I can confirm that I am completing assessments following interviews completed yesterday as I have informed Ms O’Hara earlier today.

    I can further confirm that Y and X did not make any disclosures of abuse during interviews yesterday and my manager and I do not hold concerns for the children’s visits with Mr O’Hara based on our assessments completed to date (including safety planning with Mr O’Hara and Ms C in relation to reports received).

    Regards,

    Ms P.

17. Despite those emails, the mother argued before the Court today that she still had concerns because of the disclosures which the child had made. 

18. I am not satisfied that there is any objective evidence to suggest that the children are at a risk of harm of sexual abuse in the father’s household. I am not satisfied that there is any evidence which would overcome the hurdle, of Rice & Asplund[1] in circumstances where final orders were made on 19 March 2020, prior to the disclosure being made by the child.  Certainly, no application was made by the mother prior to or on the day that the judgment and orders were delivered for the proceedings to be re-opened in circumstances where the mother was aware of those matters and had already made complaints to relevant authorities.

    [1] (1979) FLC 90-725 at [78], [905-78],[906]

19. Having regard to the other evidence in the father’s case, that is, and this does not appear to be in dispute, that the children have missed out on significant periods with their father this year, not only after these alleged disclosures were made but prior to that, it appears to the Court that the mother may not be willing to facilitate that relationship in the manner prescribed by the orders and in spirit with the orders.

20. I am not satisfied, as I have already indicated, that there is any changed circumstance warranting the re-opening of these final parenting proceedings, nor am I satisfied that Y is at risk of sexual abuse at the hands of her six year old step-sibling, namely, L, or, indeed, any other member of the father’s household.  I am satisfied that the safety plan which has been agreed upon by the father and the Department, notwithstanding the fact that there is no risk of harm as found by this Court, is more than sufficient to allay the mother’s fears, albeit the Court does not consider them to be reasonable.

21. I am not satisfied that it is in these children’s best interest to be subjected to any further proceedings or conflict between the parents which would, no doubt, continue if there were ongoing proceedings in respect of parenting orders.  I, therefore, dismiss the initiating application filed on 27 March 2020.

22. I just note, for the purposes of the record, that the initiating application seems to have an electronic stamp down at the bottom of 27 March 2020 while the date on the front cover seems to indicate that the application was filed on 26 March 2020.  There has just been the one initiating application, which I am dismissing.  I otherwise remove all outstanding issues from the list of cases pending finalisation.

23. I am not satisfied that there should be a costs order made as sought by the father.  I haven’t made any findings that the mother has acted in a manner which is not appropriate.  I have simply made a finding that there is no unacceptable risk of harm to these children based on the evidence as presently before the Court.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Associate: 

Date: 2 April 2020