ORTEN & DANK
[2017] FamCA 405
•9 June 2017
FAMILY COURT OF AUSTRALIA
| ORTEN & DANK | [2017] FamCA 405 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where the evidence does not support a finding that the child has been harmed by abuse at the hands of the father – Where there are benefits to the child knowing that each of her parents has authority to make important decisions about her life – Where both parties may suffer future periods of mental ill-health – Where risks to the child can be mitigated if the other parent is informed of the other party’s mental ill-health – Where it is in the best interest of the child for there to be an order for equal shared parental responsibility – Ordered the parents share parental responsibility FAMILY LAW – CHILDREN – With whom the child should spend time – Where the father does not propose equal time or substantial and significant time – Where the child needs as much stability and certainty in her life as possible – Where the father understands he needs to proceed slowly and carefully in restoring time with the child – Concluded each parent has the ability, when well, to meet the emotional and intellectual needs of the child – Ordered the child spend increasing amounts of time with the father culminating in each alternate weekend – Ordered time with the father to be supervised for 12 months by the paternal grandmother |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Ms Orten |
| RESPONDENT: | Mr Dank |
| INDEPENDENT CHILDREN’S LAWYER: | Hunter Family Law Centre Pty Ltd |
| FILE NUMBER: | NCC | 1671 | of | 2013 |
| DATE DELIVERED: | 9 June 2017 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 21-23 February 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
| SOLICITOR FOR THE APPLICANT: | Attwaters |
| COUNSEL FOR THE RESPONDENT: | Mr Rugendyke |
| SOLICITOR FOR THE RESPONDENT: | Craney Family Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kelly |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hunter Family Law Centre Pty Ltd |
Orders
The parents shall have equal shared parental responsibility for the child B born … 2011 (“the child”).
The child shall live with the mother.
The child shall spend time with the father as follows:
(a)For a period of three months from the date of these orders:
(i)From after school (or 3.00 pm if the child is not at school) until 6.30 pm each Wednesday;
(ii)From 10.00 am until 1.00 pm each alternate Saturday.
(b)From the expiration of the period in Order 3(a) and for a further six months:
(i)From after school (or 3.00 pm if the child is not at school) until 6.30 pm each Wednesday;
(ii)Each alternate weekend from 10.00 am until 3.00 pm Saturday.
(c)From the commencement of Order 3(b):
(i)On the child’s birthday: if not at school from 9.00am until 1.00pm or if at school from conclusion of school until 6.00pm;
(ii)On Father’s Day from 9.00 am to 4.00 pm if the child is not already spending time with the father on that day;
(iii)From 4.00 pm Christmas Eve until 1.00 pm Christmas Day in each odd year (commencing 2017) and from 1.00 pm Christmas Day until 4.00 pm Boxing Day in each even year.
(d)From the expiration of the period in Order 3(b) and for a further period of six months:
(i)From after school (or 3.00 pm if not a school day) until 6.30 pm each Wednesday;
(ii)From 10.00 am until 3.00 pm Saturday and Sunday each alternate weekend.
(e)From the expiration of the period in Order 3(d) and for a further period of six months:
(i)From after school (or 3.00 pm if not a school day) until 6.30 pm each Wednesday;
(ii)From 9.00 am until 5.00 pm on Saturday and Sunday each alternate weekend.
(f)From the expiration of Order 3(e) and for a further period of six months:
(i)From after school (or 3.00 pm if not a school day) until 7.00 pm each Wednesday;
(ii)From 9.00 am Saturday until 5.00 pm Sunday each alternate weekend;
(g) From the expiration of the period in Order 3(f) and thereafter:
During school terms as follows:
(i)From after school until 7.00 pm on each Wednesday;
(ii)From 5.00 pm Friday until 5.00 pm Sunday each alternate weekend commencing on the second weekend after school recommences;
(iii)During school term holidays following Terms 1, 2 and 3 the first week in each holiday period, commencing 12.00 noon on the first Saturday of the holidays until 12.00 noon on the second Saturday;
(iv)During the school holidays at the end of Term 4:
i.In even numbered years from 12.00 noon on the day following the conclusion of school until 12.00 noon on 8 January NOTING such period to be suspended from 4.00 pm 24 December until 1.00 pm 25 December when the child shall be with the mother;
ii.In odd numbered years from 12.00 noon on 8 January until 12.00 noon on the day prior to the resumption of school.
Time for the child with the father is suspended on Mother’s Day from 10.00 am to 4.00 pm.
For a period of one year from the making of these orders all time that the child spends with the father must be in the home or in the company of the paternal grandmother, Ms Dank.
The child shall communicate with the father each Tuesday as agreed between the parties, and failing agreement between 6.00 pm and 6.30 pm with all such telephone calls to be initiated by the father.
All changeovers shall be implemented by the parent who has care of the child collecting the child from the home of the other parent.
That the parties are restrained and an injunction is hereby issued restraining the parties from taking the child for any counselling with Ms A, counsellor of C Group.
Should either party become aware that the child may have been sexually abused or make a disclosure of sexual abuse then whenever such a disclosure is reported to a State Child Welfare Authority or the Police, a copy of these orders and the Court’s reasons for judgment must be simultaneously provided to the State Child Welfare Authority and the Police.
These orders are authority for each of the parents to obtain verbal and written information relating to the child’s education and health, including school and medical reports, school photographs and newsletters.
That each parent must ensure that the other parent is kept informed, by telephone or text or email as soon as is reasonably practicable of:
(a)Any medical illness or condition suffered by the child;
(b)Any medication that has been prescribed for the child;
(c)Any specialist medical appointment with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)Any other matter of relevance to the welfare of the child;
(e)Hospitalisation of either parent.
The father shall advise and keep advised the mother of the name and professional address of his treating psychologist and psychiatrist from time to time.
At the request of the mother to the father in writing (provided the request is based on genuine concerns about the current mental health of the father) the father shall authorise his treating psychiatrist and psychologist to provide a report (written or oral) to the mother to address those concerns.
That the parents be at liberty to attend parent/teacher nights, sporting, recreational and social events which the child participates in as part of her extended school curriculum. The parents shall be at liberty to also attend any sporting activities and training which the child engages in as part of any sporting club or association of which she is a member.
That each of the parties keep the other advised of their current address or telephone.
The parties are restrained from denigrating each other to, or in the presence of the child.
That the Independent Children’s Lawyer provide a copy of these Orders and Reasons for Judgment to the paternal Grandmother.
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 Orten & Dank 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 NEWCASTLE |
FILE NUMBER: NCC1671/2013
| Ms Orten |
Applicant
And
| Mr Dank |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in respect of one child B, a girl now aged six years.
The parties met and began living together in 2009. They married in 2010. The child of their marriage was born in 2011. They separated in May 2012. Accordingly the parties lived together for a total of three years.
The Applicant Mother
The applicant is the mother Ms Orten, aged 29. She is employed in the service industry. She lives in D Town in Region H. The household of the mother consists of herself, the subject child, the mother’s partner of two years Mr E, aged 30, and his son F, aged 7, who stays on a regular part-time basis and otherwise lives with his own mother.
The Respondent Father
The respondent is the father Mr Dank, aged 31. He receives a disability support pension for major depressive illness. In the days before commencement of trial, the father started casual employment as a driver. The father lives in G Town which is also at in Region H. The household of the father consists of himself and his partner of about 18 months, Ms I, aged 21. Ms I did not provide an affidavit and there was little information about her other than through the father’s responses in cross examination.
The two households are less than a 10 minute drive apart.
Final orders August 2014
Final parenting orders were made by consent on 25 August 2014, the first day of a four day final hearing. Allegations of sexual abuse of the child by the father had been raised by the mother. The Joint Investigation Response Team (“JIRT”) had investigated.
Re-consideration of parenting arrangements
Six months after the August 2014 orders the mother again filed an Initiating Application again raising allegations of sexual abuse of the child by the father.
Quite properly in these proceedings the parties addressed themselves in affidavits to events since those orders were made.
However the evidence revealed that the allegations of sexual abuse first raised in June 2013 on behalf of the child by the mother have had consequences for the child and both the parties in the almost four years since. For that reason an analysis of events since June 2013 became necessary to understand the current issues for determination.
The matter was heard over three days in February 2017. Judgment was reserved.
Issues
Is the child at an unacceptable risk of abuse, sexual, physical or emotional in the care of the father?
If she is not, in what circumstances should the child spend time and communicate with her father.
Applications
At the commencement of the hearing the position of the mother was that:
·She should have sole parental responsibility;
·The child should live with her;
·She should keep the father advised of significant information about the health, education and welfare of the child;
·That the child should spend time with her father each week for two hours, supervised in a contact centre and on several special occasion days each year;
·There was provision for the father to have access to relevant information about the child and to attend the annual school concert; and
·Communication by email was proposed and texts in a situation of emergency.
That position, whilst not formally changing, was affected by the father’s change in position during the course of the hearing.
At the commencement of the hearing the father proposed:
·That the parties share parental responsibility;
·That the child live with the father; and
·That the child spend time with the mother on alternate weekends and one overnight in the other week, school holiday and other special times.
During the course of the first day of trial the counsel for the father advised the Court that the father no longer pressed for the child to live with him.
On the third and final day of hearing the father again adjusted his position before the Court to a proposal for spending time on a graduated basis, culminating in overnight time, commencing in about two years time, on alternate weekends.
At the conclusion of submissions counsel for the mother, whilst in no way resiling from urging the Court to find that the child was at an unacceptable risk of sexual harm in the care of the father, submitted that the mother would, if the Court did not come to that conclusion, be able to accommodate the proposal of the father.
History of Relevant Events
In 2010, two months after the parties married, the father had spinal surgery after suffering a workplace injury.
In 2011 the child was born. The mother had a difficult time with the birth of the child and probably suffered from postnatal depression at least for a period.
In April 2011 the father returned to work for the first time since his spinal injury. Within four months the father began to show signs of, and was diagnosed with, depression and anxiety. He remained at work for a further month but in September 2011 resigned from his employment as a consequence of depression.
Major depressive illness for father with episodic admissions to hospital
On 17 October 2011 the father self-admitted to a psychiatric inpatient facility, J Clinic. He remained in hospital for approximately four weeks. The mother was supportive and brought the child, then aged seven months old, to visit regularly.
On 15 November 2011 the father was discharged from J Clinic and returned home to the mother and child.
On 15 March 2012 the father again self-admitted to J Clinic due to depression. He remained in hospital for almost two months. The mother visited less often and brought the child on a couple of occasions.
During this period of admission the father cut himself. The father says it was a superficial cut from nervously rubbing his hand against an object. The father has at times denied self-harm but the evidence supports some self-inflicted injury of the nature described by the father on this occasion.
On 7 May 2012 the father was discharged from J Clinic. The marriage, under strain, broke down.
Separation of the parties
On 10 May 2012 the parties separated. The child was then about 14 months old. The mother moved to the home of her parents. The father rented for a period and then moved to live with his parents.
After separation the father spent time with the child in the home and company of the paternal grandparents, for about five hours on four mornings a week.
It is to the credit of the mother and the paternal grandmother that that arrangement was put in place to meet the need of the child to form and strengthen the relationship with her father and to ensure that any limitation on capacity through his illness did not affect the child.
There were no orders and no formal agreement.
The parties signed what was titled a “Parenting Plan”.[1] However I accept the evidence of the mother that that handwritten one page document was brought into existence for the purposes of establishing separation and receiving the appropriate level of sole parent support from Centrelink.
[1] Exhibit 27
On 31 July 2012 the mother and the child moved to live independently of the maternal grandparents.
On 1 August 2012 the father was again admitted to J Clinic due to depression and self-reported alcohol abuse. He remained in hospital for about four weeks.
During that period the father met a new partner Ms K on the internet.
On 27 August 2012 the father was discharged from J Clinic.
Three days later the father met Ms K in person for the first time and in the following month moved in to live with her and her young son L.
In September 2012 when the paternal grandparents went overseas, the mother would not agree to time being spent unless supervised by her.
From October 2012 the mother required supervision of the father for the time spent with the child. The paternal grandparents agreed but began to let the father see the child on his own as in their judgment he did not need to be actively supervised. They allowed the child to spend overnight time with the father and his new partner.
On 26 October 2012 the parties attended mediation at Relationships Australia.
On 13 November 2012 the father commenced a DBT[2] program for men at J Clinic. He attended four of the twelve sessions but did not complete the program because he was admitted for a fourth time to the clinic as a patient before the program had time to be completed.
[2] Dialectical Behaviour Therapy
In January 2013 the mother became aware that the paternal grandparents were not always supervising the time between the child and the father. This led to the mother losing confidence in the paternal grandparents. She felt let down.
I accept that the paternal grandparents had made their own judgment about how well the father was doing. The paternal grandmother is a nurse of 40 years experience and is a loving, devoted parent and grandparent.
However I also accept that the mother felt a great loss of confidence and surprise that the grandparents would allow overnight time with the father in their absence without letting her know.
I consider it was a genuine misunderstanding where the paternal grandparents were exercising their judgment about their son and did not intend to betray the trust of the mother.
On 8 January 2013 the father again admitted himself to J Clinic and remained there for about six weeks. During that time the father ended his relationship with Ms K.
In early 2013 the father spent time with the child for her upcoming second birthday with the mother and the paternal grandparents present on that occasion.
On 19 February 2013 the father was discharged from J Clinic.
After 18 months of what the Single Expert subsequently described as “very serious mental illness”, the father has not required admission to hospital in the four years since that discharge.
In March 2013 the father began visiting the child at the mother’s home. The mother allowed him to collect the child from preschool unsupervised. The father spent more frequent time with fewer restrictions between March and May 2013.
In April or May 2013 the father and Ms K rekindled their relationship.
In May 2013 the father hurt his back and was unable to spend time with the child as he was unable to drive.
Overnight visit with father - 1 June 2013
On Saturday 1 June 2013 the child spent overnight time with the father at the home of the paternal grandparents. On return to the mother the child is reported, by the mother, to have complained to her about events of that weekend.
The most contemporaneous record of both what the mother reports she was told by the child and observations of the child’s state are contained in the progress notes of the general practitioner (“GP”) to whom the child was taken on 3 or 4 June 2013. The notes state:
[The child] complained of a sore bottom after a bath last night. Mother noticed that she was a bit red over her vagina. [The child] requested cream for her sore bottom. When questioned about how she got her sore bottom the child stated that her Daddy hit her there with his finger. [The child] had been visiting her paternal grandparents Saturday night and present all day Sunday. [The child’s] father visited [the child] in his parent’s home. He had a nap with her in the afternoon on Sunday. [The child] has stated to her father’s face that she doesn’t like him, “go away” and has been saying to her mother that she is scared of him. O/E inflamed area just at entrance to introitus. No obvious hymen. Also mild pinky rash around perineum. No bruising or bleeding.
Non specific findings. Rang DOCS and discussed the above. Reported the examination findings and discussed circumstances of current access visits. [Ms Orten] will not be allowing visits by [the child’s] father for the next few weeks.
[Ms Orten] asking about child psychologists for [the child] → wants to discuss this with [Mr M].
JIRT interview – 5 June 2013
On 5 June 2013 the child participated in a recorded audio visual interview at Newcastle JIRT. The child, aged two years and three months, was able to say her name and that she was two. The concept of truth and lies was not attempted.
A body chart was introduced. The child was able to identify her hair and mouth and to say that no one had touched her there. The child was not able to say the name for her chest or vaginal area and when asked if anyone had touched her there, she said no. The child was able to name the toes and when asked if anyone touched her there said no. On the reverse side of the body chart the child was able to name the back and the hands but did not know the name for the bottom area. If asked if anyone had touched her anywhere, the child said no. There must be a strong doubt about the child’s understanding of that aspect of the JIRT procedure since she would have been touched in all of those areas by more than one adult on many occasions.
The child was then asked direct questions. She was asked if she had attended the doctors. She pointed to her vagina and said “sore”. She did not reply to questions about how the vagina got sore nor to the question whether anyone had made her vagina sore. She was asked several questions around her alleged disclosure to which she did not reply.
The child was asked if she liked going to her father’s house and she said “yes”. The child was asked several questions about what she liked about her father but did not reply. She was asked directly if her father had hurt her on the vagina. She did not reply. The child was asked several questions around how her vagina got sore. She did not reply but then said “all done”.
It is apparent that the child became bored or irritated by the process and perhaps did not understand many of the questions.
After the interview the report gives rise to the conclusion that the mother was unhappy with the process and strongly believed that what the child had said to her constituted sexual abuse. I draw this conclusion from the following information:
It was explained to the mother that the child had not made any disclosures of sexual assault and therefore no substantiation of harm could be made. The mother is reported as being “adamant that [the child] had been sexually abused by [Mr Dank] and that she had made disclosures of this”. The mother expressed concerns around the child having any contact with her father and stated that she would not allow any contract to occur. The investigators explained that as the child had not made any disclosures no further legal action could be taken and Community Services could not substantiate any harm. The mother “stated her frustration in regard to JIRT’s decision” but accepted an offer for a referral to a sexual assault service for herself.
The mother presented JIRT with several text messages that had been sent by the father which she believed were threatening. The JIRT investigator sighted the messages but did not consider they contained any threat to harm herself or the child.
The mother is reported as presenting extremely emotional and tearful, saying she believed her daughter had been abused and wanted authorities to initiate action. The mother was advised by the JIRT team that if she has fears for her daughter’s safety being with her father she should seek family law action.
JIRT was advised the following day that the mother had initiated an Apprehended Violence Order (“AVO”) against the father for herself. The mother ceased making the child available for time and communication with the father.
On 7 June 2013 the provisional AVO was made.
On 8 June 2013 the police came to the father’s home to serve the AVO.
On 19 June 2013 a police officer and a Family and Community Services officer came to the father’s house and advised him of the allegations of sexual abuse.
The mother herself had not communicated directly with the father at all after the child made the relevant statements to her. The mother did not ask the father for any possible explanation of the child’s statements nor invite him to provide her with any information that could throw light on what the child was saying.
In her oral evidence the mother agreed that both she and her mother had been made aware of the significance of sexual abuse taking place due to a sexual assault on her own brother during their childhood.
The Magellan Report sets out the words of the mother when she made her report to police. There is no doubt that the child reporting to her mother that the father hit her with his finger on the vagina was interpreted by the mother as sexual assault. The mother continues to hold that belief.
To her credit the mother accepted when I asked her that there was more than one way to interpret what might have happened (based on my acceptance of the mother’s report of what the child had said). For instance that the child might have made the statements up, that the child was telling something that had happened that did not constitute abuse [possibly an accident during clumsy handling for instance of a nappy change] or that it did constitute abuse. Dr N gave evidence that the statements of the child could be interpreted as sexual abuse or something else.
Medical examination of the child - 20 June 2013
As a result of the referral by the JIRT team of the mother and child to the sexual assault service, a medical examination of the child took place on 20 June 2013. Present on that occasion were the child and the mother, a sexual assault service counsellor, a paediatrician from the sexual assault service and a paediatric registrar.[3]
[3] Exhibit 13
The child had a general examination and was then examined in the supine position with labial separation and labial traction. The inspection of the child’s labia revealed no abnormalities. Erythema [reddening] was noted in the vestibule where the labia met in opposition. Significantly the following note was made, “She had an almost circumferential hymen with a smooth outline and a good posterior rim”.
In the GP inspection on 3 June 2013 the words “no obvious hymen” had been included. In this inspection, 17 days later, an intact hymen was identified. The JIRT team had picked up on the GP’s observation that there was “no obvious hymen”. Given the specialist expertise of the sexual assault service I am comfortable to conclude that either the GP was wrong or it was a mistaken reporting. Certainly the summary of the inspection was “specifically she had a normal examination of her anal-genital area”.
The written report of the GP taken up in the Magellan Report likely contributed to the mother’s fears of sexual abuse. It was a startling observation. In a subsequent Notice of Risk there is a reference to the child’s hymen being “broken”. Probably this was the mother’s interpretation, understandably, of the statement in the Magellan report.
The disclaimer to the report was:
The history from the child remains the most important aspect of any assessment of an allegation of sexual assault. The medical examination should not be relied upon to diagnose or confirm an allegation of sexual assault.
The mother was referred to pathology testing for sexually transmitted diseases for the child and referred to sexual assault counselling.
On 9 July 2013 a final AVO for the protection of the mother against the father was made for a period of 12 months. The father accepted the AVO without admissions. No charges were laid in relation to the allegations raised on behalf of the child.
Proceedings in the Federal Circuit Court
On 11 July 2013 the mother filed an Initiating Application in the Federal Circuit Court seeking orders on an interim basis for the child to live with her, for the mother to have sole parental responsibility and for the child to spend no time with the father.
A Notice of Child Abuse/Family Violence was filed at that time. Included in the notice was this:
The mother received advice from [Dr O] at [P] Medical Centre that the child’s hymen had been broken and that her vagina was red and inflamed. A report was made to FACS.
It is understandable that such a misinterpretation could have made its way into the Notice of Abuse but I am comfortable in concluding that that assertion was simply wrong.
The mother also included in the Notice of Child Abuse allegations of verbal abuse by the father towards herself and the child. Those allegations could only relate to the period of the marriage. The father denies those allegations. There is a possibility that the father was verbally abusive and has forgotten. His recall of events in the overall period of his mental illness between mid-2011 and early 2013 was poor during his cross-examination. Whatever the truth of the allegations of abusive language is, it was not sufficiently bad to deter the mother from being warmly supportive of the father in hospital at least in the first two admissions and encouraging a relationship to develop between the child and her father with the support and assistance of the paternal grandparents.
On 23 August 2013 the father filed his Response seeking equal shared parental responsibility, residence for the child with the mother and time with him for three hours on Wednesday and from Friday afternoon to midday Saturday each week and other special times.
The father’s former partner Ms K also filed an affidavit supportive of the father’s position.
Transfer from the Federal Circuit Court
On 26 August 2013 the matter was transferred from the Federal Circuit Court to the Family Court to be considered for inclusion in the Magellan Protocol.
On 4 September 2013 the father filed an Amended Response proposing that time between himself and the child be supervised at Q Contact Centre.
On 9 September 2013 the proceedings were allocated into the Magellan Protocol, an Independent Children’s Lawyer (“ICL”) appointed and a Magellan Report ordered. The notation to the Orders made by the Magellan Registrar was as follows:
B.The Applicant asserts that on 2 June 2013 the child disclosed that she was sexually abused by the Respondent. The Applicant asserts that the abuse involved digital penetration of the child’s vagina resulting in her hymen being broken.
With the concerns of the mother being included in that notation, the false notion that the child’s hymen had been damaged was further perpetuated.
On 10 September 2013 JIRT received another report in regards to the child, namely that eight days previously the child had said “My Daddy hurt me and I don’t want to see him” and then on the day prior to the report to JIRT the child said “Daddy put his finger in my bottom and it got stuck and it hurt me”. At that time, a little more than three months had passed with the child not seeing her father at all. The child was now aged two and a half.
Second JIRT Interview – October 2013
On 2 October 2013 the child participated in another interview, a recorded audio-visual at JIRT. She was able to say her name and age, again truth and lies were not attempted. The child was asked what she was there to talk about and she said she did not know, “The child did not identify that anyone besides herself and her “Mummy” had touched any part of her body. The child was able to identify her vagina as her “bottom” and said her Mummy tickled her there. The child was then asked a leading question in relation to the report, hence
Interviewer Someone told me about your Daddy.
Child Mummy did.
Interviewer What did Mummy say?
Child He hurt my bottom with his finger.
Interviewer How did he hurt your bottom with his finger?
Child I don’t know.
The child was asked if her Daddy had ever put his finger in her bottom to which the child said “No”.
The child was asked if she was scared of her Daddy and the child said “No”.
The child was asked if she liked seeing her Daddy and she said “No”.
After this interview the mother was spoken to by JIRT and advised that although the child was able to express herself in greater detail she did not make any disclosures of abuse. The mother was advised that the matter was not substantiated. It could not be otherwise. The child did not make any negative disclosures about the father and one interpretation of her answers is that the mother had been speaking to her about the original allegation of the father hurting her vagina with her finger.
The mother was spoken to about no further action being taken given two interviews and a medical examination at the sexual assault service where the results were reported as normal.
Magellan Report (undated) received by Court 14 October 2013
In the Magellan Report[4] under the heading “Investigation of Reports” there was additional information said to have been received from the mother about the events of the weekend visit. For instance, the Report indicated that “The child uses the word bottom to refer to her vagina” and the exchange between the mother and the child was as follows:
Child My bottom is sore.
Mother Did you hurt your bottom?
Child No I didn’t hurt it. Daddy hurt it. He hit me.
Mother What did Daddy hit you with?
Child His finger.
The mother reports the child then put her finger inside the outer lips of her vagina and then said “He hit me here with his finger and it hurt”.
[4] Received 14 October 2013
The Magellan Report went on to note that the mother had advised that there were parenting orders in place for the father to have supervised visits with the child. That was not the case. There were no parenting orders in place and there was an oral agreement between the mother and the paternal grandparents to supervise.
The Report noted that the child and her father had had a two hour nap together the day before. That is confirmed by the paternal grandmother who reports without challenge that she had told the mother about that and the mother had noted that would have been enjoyable for both of them.
The Report also stated that:
[The child] has been telling her mother for the last couple of months that she is scared of Daddy and she doesn’t want to see him anymore.
The mother alleging that
[Mr Dank] has been observed to verbally abuse [the child] when changing her nappy and scream ‘[B] stop it, you fucking whore, you fucking slut’.
That must be a reference to an observation that the mother had made during the marriage since she was not present during the course of the relevant weekend.
The mother also alleged that the father had mental health issues and had been diagnosed with major depression, borderline personality and anxiety. That was not entirely accurate. There has never been a formal diagnosis of Borderline Personality Disorder, rather a preliminary diagnosis that Cluster B traits are present.
The Magellan Report refers to the report in the Department of Family and Community Services’ notes[5] about an examination of the child by her GP on 4 June 2013. The Magellan Report notes interpret the doctor’s notes as follows:
It was reported that the hymen could not be seen and there was a mild pink rash on the outside of [the child’s] perineum. The report stated the findings are similar to a mild straddle injury or a child exposed to soap or sand. The child was observed to have no bruising, just redness.[6]
[5] Exhibit 14
[6] Exhibit 18
The Magellan Report includes the information that:
a)The hymen could not been seen; and
b)That the rash on the child’s perineum was similar to a mild straddle injury or exposure to soap or sand.
Whatever the basis for the inclusion of this information, the statements are contradicted by the findings in the Confidential Medical Report on the examination of the child on 20 June 2013 by doctors at the Sexual assault Service as follows:
….She had an almost circumferential hymen with a smooth outline and a good posterior rim. She had prominent anterior folds of the hymen…. No bruising or redness or discharge was seen.[7]
[7] Exhibit 13
The Magellan Report also includes the information that on 4 June 2013 JIRT received a report in regards to allegations that the child had made disclosures that her father had “been placing his finger in her vagina”. Further, that the mother had concerns for the father’s mental health and there was domestic violence in the relationship. It is reported that this is why Ms Orten has requested supervised access with the child.
It is impossible to know to what extent the Magellan Report reflects the actual words of the mother and the interpretation of what the mother had said. There is no evidence of domestic violence in the relationship. There is evidence of mental illness for the father.
Notably the final paragraph of the Magellan Report says this:
At this time [the child] is not reported to be demonstrating behavioural issues that are of concern. However the relationship turmoil between the parents and ongoing custody issues that are occurring may impact on [the child’s] emotional and psychological wellbeing over time.
These were prescient remarks.
On 6 November 2013 interim orders were made providing for time between the child and the father. By then, five months had passed since the child had seen him. The orders provided for six hours each Saturday, two hours each Thursday and at other special times. Time to be supervised by one of the paternal grandparents. A Family Report was ordered.
On 9 November 2013 the child spent supervised time with the father.
On 16 November 2013 the mother says that the child again disclosed “Daddy hurt my bottom with his finger.”
On 30 November 2013 the child was diagnosed with pneumonia and stayed in hospital for two nights.
Interviews for Family Report
The interviews and observations for the Family Report took place on 3 December 2013, just after the child was released from hospital. The Family Consultant very carefully noted that a limitation to the report was the child having been ill and hospitalised, only being released from hospital on the day prior to interviews. She became noticeably tired and looked quite unwell after two hours.
The other limitation to the report was that the father’s partner Ms K and her young son had not attended as asked. It emerged that the father had ended his relationship with Ms K two weeks prior to interviews and had moved back to live with his parents. The father was unable to provide the Family Consultant with Ms K’s telephone number.
In her interview with the mother the Family Consultant notes that the mother told her that she had not felt believed by JIRT and that she felt powerless to protect the child from further abuse. The mother told the Family Consultant that about a week prior to the interviews the child had been sitting and playing without her nappy on prior to going to bed when she poked “a play chilli” in her vagina. The child declined to stop doing so until the play chilli was taken away. The mother also told the Family Consultant of an incident when the child was observed by the maternal grandmother to poke a toy penguin up into her vagina and when told to stop by the maternal grandmother and the mother, the child is reported to have said, “It is just like Daddy’s jelly bean when I put Daddy’s jelly bean in my bottom.” The mother did not report those statements to the Department of Family and Community Services on the basis that she had been told that two interviews had taken place and any more would be an abuse of the system.
The mother told the Family Consultant that after the events of the June weekend 2013 the child’s behaviour had noticeably regressed with numerous toileting accidents and the child refusing to sleep alone or without a light on.
My impression is that the mother had not, in reflecting on the causes of her daughter’s behaviour, taken into account the following matters: her own high levels of distress and feelings of helplessness after 1 June 2013, and the numerous investigations including interviews and intrusive genital examinations that the child experienced over the following days and weeks. The attention of the child had been drawn to her genital area both verbally and physically on many occasions. The evidence suggests that she responded with interest herself to that area of her body.
Nor has the mother apparently considered the impact on the child of having been separated from her father and paternal grandparents for a period of five months and that her own feelings about that loss, as well as the focus on her genitals, both by her mother through conversation and doctors through examination, may have been distressing her.
At date of interview, in early December 2013, the mother told the Family Consultant that she did not really know how she felt about the relationship with the father or what orders she would be seeking, “The main thing is to ensure that this child is safe.” She said that she would be willing to leave the decision up to the Court and would abide by any orders made.[8]
[8] Family Report dated 6/12/2013, par 104
The father told the Family Consultant that he could not understand what had motivated the mother to say things which suggested he had been abusive to the child and that the allegations were completely false. He also told the Family Consultant that he had been subjected to extensive background checks and working with children checks.
The Family Consultant took the opportunity to ask the father if he could throw any light on what the child might have been referring to with regards to “Daddy’s jelly bean”. The father said he had no idea and that he did not eat jelly beans. Perhaps it was something in the child’s imagination or maybe it was another “allegation”.[9]
[9] Family Report dated 6/12/2013, par 122
The Family Consultant expressed some concerns around the attachment between father and child. She noted that the father had previously identified difficulties relating to the child and of course for most of the child’s life, the father had been battling severe depression and anxiety. That is not to say, in the view of the Family Consultant, that the child did not enjoy spending time with the father, nor that they did not have a loving relationship. The Family Consultant was identifying some limitations in the father’s capacity.
The Family Consultant amplified her concerns in this way.[10]
The father’s current level of functioning is of great concern to the Family Consultant. His mental health issues are ongoing and would seem to indicate underlying personality disorder and the fact that he is reportedly compliant with regards to taking his medication and attending group therapy does little to reassure this report writer that he has been able to make the necessary changes to his life that will allow him to adequately parent his young child. He can’t even look after himself let alone his daughter. He is currently dependent on his parents to provide him with a roof over his head, a car to drive and to fund his therapy. He has not been able to work for many years and his current mental health is very unstable with a pattern of frequent hospitalisations for depressive episodes, including suicidal ideation and self-harm. He has recently ended a long term relationship and there are questions around his relationship choices and related decision making.
[10] Family Report dated 6/12/2013, par 162
The Family Consultant recommended the child have protective behaviours training from a suitably qualified child psychologist and that a copy of the Family Report be made available to that psychologist.
The Family Consultant was clearly concerned about a level of risk to the child, not so much from possible sexual assault but more from some inadequacy in the father’s attunement to the needs of a young child.
Since the report, the father has maintained a good level of mental health and also maintains his relationship with his supervising psychologist for ongoing therapy groups.
Hearing set down for March 2014
On 28 January 2014 the matter was set down for trial in March for a period of four days. The notation [A] of the orders made at that time was that:
The mother informs the Court that she conducts these proceedings on the basis of an allegation that the father poses an unacceptable risk of abuse to the child and she does not seek a positive finding of fact that the father has sexually abused the child.
On 31 January 2014 the mother filed her Amended Initiating Application seeking sole parental responsibility, residence for the child with her and time with the father on four occasions per year for one hour on each occasion and otherwise restraints on the father posting photographs on social media and, time to be spent in the presence of the paternal grandparents.
Hearing adjourned to August 2014
In February 2014 the father applied to have the March hearing dates vacated. The mother asserted that the child was continuing to make allegations about the father hurting her vagina, “Sometimes he’s not my friend, I don’t like it when he puts his fingers in my vagina. It hurts.”
On 3 March 2014 the hearing dates were vacated. The basis for the application had been the father’s access to a grant of Legal Aid and an appeal ongoing at that time.
In May 2014 the matter was reallocated hearing dates, four days commencing on 25 August 2014.
In August 2014 the mother began a new relationship with her current partner Mr E.
Final Hearing August 2014
Terms of Settlement were handed up on the first day of trial and orders made by consent accordingly.
The parties agreed to share parental responsibility for the child to live with the mother and to spend time with the father incrementally. Supervision had been dispensed with.
Between August and December 2014 the child spent time with her father in accordance with the orders.
The child raised no complaint about the father during this period of time.
December 2014 - notification to DOFACS
On 22 December 2014 there was an incident at dinner time in the mother’s home. The mother’s partner Mr E was present with his then 5 year old son.
The evidence supports a finding that the mother had understandably confided in her partner about her fears and concerns that the child had been abused by her father, also that she [the mother] had “not been heard” by JIRT.
Mr E described the mother as “very uncertain about time for [the child] with her father”.
Mr E is a social worker, thus a mandatory reporter. He is 30 years of age. He presented in the witness box as being a conscientious, rather rigid man.
Mr E described the child showing “recent disinterest in engaging with me following visits to her father’s house.”[11] He does not appear to have considered the possibility that the child resented his place in her mother’s affections or simply disliked him.
[11] Affidavit of Mr E filed 20/01/2017, par 24
Mr E describes the child trying to stand on his feet under the dinner table whilst laughing loudly. I conclude that he interpreted her behaviour as hostile because rather than simply directing the child to stop doing it, he said to her:
How come you don’t want to see me after you visit your Dad?
Unsurprisingly the child did not answer but shrugged. She was three years and four months old at the time and could hardly have been expected to articulate her feelings about her mother’s new partner, and her relationship with her father.
Both the mother and her partner pressed on with questioning the child. Mr E’s next question appears to accuse the child of painting the wrong picture of him to her father:
[Mr E]: Have you told Daddy about the fun things we do?
[The child]: Yes but then he hits me.
Mother: Daddy hits you?
Child: Yeah he hits my vagina when I’m at his house.
The mother and her partner reacted swiftly. The mother probably interpreted the statement as a new allegation. It was more likely to have been a repetition of an earlier statement.
The mother then removed the child to bed. Her partner immediately rang the Child Protection Helpline and notified abuse.
Later that night the mother also telephoned the Department of Family & Community Services.
On 23 December 2014 the mother rang police who issued an interim Apprehended Domestic Violence Order (“ADVO”) against the father with the child as the protected person.
On the same day the mother and Mr E took the child to see a GP. First the mother told the GP what the child was saying about “Daddy hitting her on the vagina.”[12] The child was then brought in and she made a similar statement to the Doctor. The doctor made a notification to the Department of Family and Community Services.
[12] Affidavit of the mother filed 23/01/2017, par 73
On 24 December 2014 the father rang the mother. He had just been served with the interim order. The mother declined to speak to him.
Later that day [Christmas Eve] maternal relatives arrived at the mother’s home. The mother remained inside with the child. By arrangement Mr E went out, speaking on the mother’s behalf and turned them away.
The mother reports that the child then began to make many more allegations against the father, that she watched him in the shower, handled his penis and that he had put his finger in her “vagina and bum in the shower-bath”. She is reported to have invited her mother to put her finger inside her [the child’s] bottom.
Later she told her mother that her father had said she was “junk and should go in the bin”.
Christmas 2014
The child was not made available by the mother for Christmas contact.
Mother and Mr E begin living together - early 2015
In early 2015 the mother and her partner began living together.
On 24 January 2015 the child told her mother that R [her imaginary friend] was in hospital because “[R’s] Dad hurts her vagina on Thursdays and Saturdays just like my Daddy hurts me.”[13]
[13] Affidavit of the mother filed 23/01/2017, par 103
The child went on to say that “Daddy says it’s funny. He laughs and hurts my vagina. He puts his fingers in my bottom too”.
When the mother sympathised the child responded:
Yeah it makes me sad when he hurts me, but I still want to go to his house so I can jump on my new trampoline and get my new princess watch.
There are other interpretations but one is that the child herself was asking the mother to understand that she had some positive feelings about the father.
On 2 February 2015, on the evening of that day, the child began calling out the word “Ouch” repeatedly.
Mr E: What’s the matter?
Child: My vagina is hurting. Ouch! Ouch! Ouch!
Mr E: Why is your vagina hurting?
Child: Because Daddy hurt it.
Mr E then suggested that the child had not seen her father for a long time [six weeks] and it might be something else. The child persisted:
Child:But it is really hurting, he hurt it last time I saw him.
Ultimately the mother examined the child, parted her vagina and saw “that it looked a bit red and inflamed”. The mother applied cream.
The child may have been touching her own vagina or there could have been a minor medical issue but what was clear was that the father had not inflicted any injury but the child was blaming him.
I cannot be certain, but the mother may have failed to reflect on the child’s own experience during the 18 months prior, due to being influenced by positive feelings of vindication of her own beliefs about the father.
By then [February 2015] the child must have been confident that the father was a “bad man” from the perspective of her mother and Mr E and that complaints about him relating to her bottom and genitals were viewed positively.
Further the complaint in December 2014, which set off this application, was made reactively by the child when she was looking for a way out of trouble or at least to avoid criticism by Mr E.
Current proceedings commence 2015
On 9 February 2015 the mother filed her fresh Initiating Application and a Notice of Risk detailing all statements made by the child.
Professional supervision was proposed by the mother on an interim basis.
On 11 February 2015 at the Local Court the AVO for the protection of the child was withdrawn and dismissed.
On 10 February 2015 the Department of Family and Community Services advised this Court that the case did not meet the statutory threshold for intervention.
On 12 February 2015 the father filed a Response seeking summary dismissal.
Interim orders by consent for supervised time 2015
On 13 February 2015 interim orders were made by consent for supervised time for the child with the father.
On 31 March 2015 all parties consented to the appointment of a Chapter 15 Expert. Unfortunately four months passed until an expert was agreed on.
On 17 July 2015 the order for appointment of a Single Expert was made. There were subsequent difficulties with availability.
In August 2015 the mother and her partner moved to their current home.
In September 2015 the father was punched in the face at a wedding and called a “F…ing paedophile”.
In October 2015 the father started a new relationship with his current partner and they began living together in the following month.
In October 2015 the father filed an Application in a Case seeking Christmas contact and leave to bring family members to the visits.
The mother became concerned about the competence of the supervisor and questioned the child about his whereabouts during the visits. When she learned that the supervisor was 20-30 metres away at times she became alarmed
On 13 November 2015 the mother applied (through a Response to the Application in a Case) to change supervisors.
On 9 December 2015 orders for Christmas contact were determined.
In 2016 the child started school.
Unsurprisingly the child began talking to her step-brother and a friend about her father having hurt her vagina.
On 19 February 2016 an order was made by consent for change of supervisor and additional visits.
On 19 April 2016 the interviews with the Single Expert, a highly experienced child and family psychiatrist, took place. The expert had reviewed all relevant material produced in response to subpoenae.
Single Expert Report released
On 2 August 2016 the Single Expert Report was released
Once again the father attended the report without his current partner. There were no other limitations to the report.
The Single Expert gave an opinion of the mental health of both parties.
For the father, that he had suffered a severe affective disorder during the time of his multiple admissions to hospital and that currently (April 2016) he was functioning quite well and had restored some stability to his life.[14]
[14] Single Expert Report dated 2/08/2016, page 42
For the mother that she had suffered depression including post-natal depression in the past and that currently (April 2016) she had symptoms of anxiety, depression and post-traumatic stress relating to the child’s disclosures and disturbed behaviours and to her ongoing fears of risk of harm. Her symptoms did not constitute a psychiatric disorder; possibly an adjustment disorder.[15]
[15] Single Expert Report dated 2/08/2016, page 43
In September 2016 the child began seeing a clinical psychologist. The GP referral reports the child as “very anxious, worrying for reasons she cannot explain. She has also started scratching herself until she bleeds.”[16]
[16] Exhibit 22
Happily although she assessed the child to be anxious she also reported her as “a delightful and intelligent young girl who is thriving at school and achieving a high level with public speaking.”[17]
[17] Exhibit 22
In the same report letter the psychologist noted the mother’s report that the child was “afraid of being in trouble” and “agitated/wound-up, particularly on return from contact visits with her father.”
The child’s worries may relate to the conduct of the father or to the fears about the father which the child knows from past experience are held by the mother and also her partner.
On 23 September 2016 the mother filed an Amended Initiating Application proposing some limited supervised time for the father
Towards the end of 2016 two things were happening for the child. First, the mother and her partner were receiving professional assistance about managing their blended family. The child was defiant, crying and screaming when asked to do things at home, especially by Mr E. Secondly, the child was spending time with her father supervised by a professional service and enjoying that time. She was affectionate with her father and accepted his gentle reproof on one occasion about her not helping her mother.[18]
[18] Exhibit 15
On 29 December 2016 the child bit the mother’s partner. When the incident was raised in a subsequent session with the psychologist the child was reluctant to talk about it.
By 2017 the child’s inner life appeared to be more stable and the time with her father increasingly positive.
Evidence
The documents relied on in respect of the application were as follows:
The [Applicant] mother
(a)Amended Initiating Application filed 23/09/2016;
(b)Affidavits of the mother filed 20/01/2017 and 21/02/2017;
(c)Affidavit of the mother’s partner, Mr E filed 20/01/2017;
(d)Affidavit of the mother’s friend Ms S filed 20/01/2017;
The [Respondent] father
(e)Amended Response filed 27/09/2016; amended by Minute of Order dated 23/02/2017;[19]
(f)Affidavits of the father filed 20/01/2017;
(g)Affidavit of the paternal grandmother Ms Dank filed 20/01/2017;
Reports
(h)Magellan Report received 14/10/2013;
(i)Family Report dated 6/12/2013;
(j)Single Expert Report dated 2/08/2016.
[19] Exhibit 31
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
When making a parenting order the Court must apply a presumption that it is in the best interest of a child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of a child or there has been family violence and that the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interest.
In this matter the mother proposes sole parental responsibility for herself; the father proposes equal shared parental responsibility; and the ultimate position of the Independence Children’s Lawyer supported the father’s view.
In this matter the evidence does not support a conclusion that the child has been harmed by abuse at the hands of the father. The issue is whether there is an unacceptable risk of harm to the child from the father.
There are benefits to the child knowing that each of her parents have authority to make important decisions about her life. This is especially so where the child has experienced some emotional distress around the role of the mother’s partner in the child’s life and some feelings of conflict about the relationship she has with both her father and Mr E.
I take into account the views expressed by the Single Expert about harm. The Single Expert said this:[20]
Even if there were no question of sexual harm, when the father was at his most ill he would not have been capable of relating appropriately to the child so some psychological harm may have occurred at that time even though it may have been quite unintended. The best way to protect the child from further harm of that kind is for the father to continue in psychological treatment, aimed not only at maintaining his own mental health and stability but aimed also at optimising his awareness of the needs of the child and of ensuring that he will suspend contact at any time when he is significantly symptomatic.
Since a lack of insight is a common feature in the manic or hypomanic phase of bi-polar disorder, it is important that he continues in regular treatment and that those close to him also undertake to assist in monitoring the situation.
[20] Single Expert Report dated 2/08/2016, page 47 sub-par h
I also accept the opinion of the Single Expert that the disclosures that the child has made as reported by the mother would cause alarm in most parents. On that basis the Single Expert expressed the view that the mother’s undoubted anxieties and post-traumatic symptoms around her belief that the child is at risk of harm are “largely understandable even if misconceived.”[21]
[21] Single Expert Report dated 2/08/2016, page 45 sub-par c
The Single Expert goes on to say that in her view it was not possible to be confident that either that there had been abuse of the child in the care of the father or equally to rule that out completely.
Significantly she says this:
It is likely that some uncertainty about what has transpired will continue and in those circumstances the best was to protect a child from further harm is to provide supervised contact with her father and to provide appropriate counselling for the mother.[22]
[22] Single Expert Report dated 2/08/2016, page 66 sub-par g
I accept and endorse the view that for the protection of the child, supervision needs to continue for at least a period of 12 months, not because the evidence suggests that there is a risk that the father would abuse the child, rather because the child has repeated historical allegations from time to time on occasions when she is trying to exonerate herself when she perceives she is “in trouble”.
I do consider that it would be in the best interests of the child for there to be an order for equal shared parental responsibility. There may be a time in the future when the father is again ill, although he has been doing well for the past four years. There may be a time when the mother, who has suffered considerably from anxiety and post-traumatic stress disorder, may likewise be ill in this way again. The best outcome would be for each parent to notify the other, or have third parties do so on their behalf, of any such period of incapacity.
Having made an order for equal share parental responsibility the Court is obliged to consider equal time or substantial and significant time. In this case the father quite responsibly and sensibly does not propose time at that level and in the circumstances it would not be appropriate even if he did.
This child is sensitised by past complaints raised on her behalf. She has been interviewed by JIRT on two occasions as a very young child. She has been comprehensively examined in a sexual assault clinic and examined in a less intrusive way on other occasions. Her statements about her father have been taken up from her perspective and have led to all time with him ceasing on several occasions.
The child is anxious but doing well at school; articulate but defiant at home; she needs as much stability and certainty in her life as possible.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
There is in my view a clear benefit to the child with having a meaningful relationship with both of her parents.
The father, during the course of the proceedings, changed his position in a way that suggests he has decided to take a long view of the relationship between himself and his daughter. He needs to proceed slowly and carefully to avoid a repetition of events in the past where the relationship is restored only to be abruptly stopped in circumstances where the mother has become concerned understandably enough that harm has taken place.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
When the subject child was interviewed by the Single Expert for the purposes of a report, she had just turned five. Nevertheless she was able to be quite clear and articulate about her views. She reported to the doctor that she had no worries, slept well and had no bad dreams, “when she visits with dad she has a good time.”
She is reported as having known quite accurately that she saw her father on Thursdays and every second Sunday. When asked if she would like any change in that routine she said she would like to see him more often and have sleepovers and that she used to have sleepovers at her [paternal] grandmas place and that was fun. She feels safe there, “they take good care of me”, she feels safe with dad too.[23]
[23]Single Expert Report dated 2/08/2016, page 30
Despite her young age I take the views expressed by the child into account as a positive statement about her relationship with her father and her wish for it to continue.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
The child undoubtedly has her closest relationship with her mother. She has enjoyed a close and easy relationship with the paternal grandparents and also with the maternal family.
The child’s relationship with Mr E is still developing and its history reflects some resentment on her part about losing the undivided attention of her mother and having to share that attention with Mr E and his young son.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The mother has made decisions on behalf of the child in a careful and considered way. She took her as an infant to visit the father in hospital when he was ill and later decided that the relationship between herself and the father could not be sustained but that the relationship between the child and the father should continue.
Responsibly the mother relied on the paternal grandparents, especially the paternal grandmother to ensure that the child was safe and well cared for in their home while she spent time with the father. She was disappointed and frightened by the paternal grandparents allowing unsupervised time for the father without prior reference to her.
The mother is a person who has heightened sensitivity to the possibility of child abuse through knowledge of one of her siblings having been abused as a child. That is not a criticism of the mother, she is alert to the possibility of abuse and when the child made a statement to her indicative of abuse, that is that the father had hit the child’s vagina with his finger, she did all in her power to redress the matter. Unfortunately when JIRT indicated that there was no action to be taken from their point of view the mother began to feel that it was up to her to protect the child and to become anxiously vigilant. It is understandable. However the impact on the child was unfortunate. The repetition of historical statements was received by the mother as fresh allegations and the child has been exposed to extensive questioning and examination as a result.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The mother has been largely responsible for the financial maintenance of the child.
The father has suffered severe episodes of illness when he has been unable to work. He has recently obtained employment and will be in a position to make a greater contribution to the financial upkeep of the child.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The evidence supports a finding that the child would be adversely affected by losing a relationship with her father. In circumstances where the mother has confidence in the supervision services (T Contact Centre) the child has been able to greatly enjoy activities with her father and has rekindled the easy, physical, affectionate relationship with him.
On 26 January 2017 when the father and child went to bowling during a supervised visit the report is of a happy day for the child who was able to tell her father that she loved him.
The practical difficulty and expense of a child spending time with and communicating with a parent
The ICL has proposed that for a period of one year the paternal grandmother should be present to supervise time between the child and the father. My impression of the paternal grandmother is that she is willing to do anything she can to help the child and will take on that role. The outcome is likely to be a very position one for the child; she enjoys time with her paternal grandparents in their home with her father and is likely to feel safe and confident. Provided that the mother accepts that there was a genuine misunderstanding between the paternal grandmother and herself, then goodwill between the two women should be restored, if it has not been so already.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
I accept the professional opinion of the Single Expert that in the two year period following the birth of the child, the father was seriously ill and was unable to relate to the child appropriately and his capacity for parenting was severely compromised.[24]
[24] Single Expert Report dated 2/08/2016, page 44 sub-par b
The Single Expert assessed the father as having now returned to a level of stability and showing a more adequate capacity to relate to the child.
The Single Expert expressed two lines of reservation. First, that the severity of the father’s illness in the past makes him vulnerable to further relapses. Second, that with regard to narcissistic or border personality traits (Cluster B) those traits are not optimal for parenting.
In relation to the mother, I formed the impression that she is an attentive and attuned parent. The Single Expert noted that the mother’s anxiety, including post-traumatic symptoms and some depression was chiefly related to her fears and concerns about the safety of the child and were proportionate and reactive.
The Single Expert described the mother as having:
Maintained a considerable and quite impressive level of composure when the child was present so it was evident that she is able to prioritise the welfare of the child in an optimal way in spite of feeling very distressed.[25]
[25] Single Expert Report dated 2/08/2016, page 44 sub-par b
Each parent in my view has the ability, when well, to amply meet the child’s emotional and intellectual needs.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The subject child is a six year old girl who is bright and thriving at school. She is the loving focus of both her parents and grandparents on both sides of her family. She has been anxious.
The mother’s partner has borne the brunt of some of that anxiety which may have been scapegoating on her part. The child has been defiant towards him, has bitten him and at times has been the subject of his reproach. That relationship is already in the process of stabilising with the assistance of a clinical psychologist to the mother and her partner.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The mother has not failed in her responsibility to protect the child although for proper reasons she may have been over protective.
The father, when he was ill, was unable to meet his responsibilities as a parent but has persevered through the Courts to maintain his relationship with the child. The adjustment of his application in these proceedings from a change of residence to the program of progressive time with him is a positive reflection of his responsibility as a parent.
Conclusion
I have concluded that the child should continue to live with her mother and to spend time with the father in the manner proposed by him, and to some extent the ICL, supervised for the first twelve months by the paternal grandmother.
The progression of time is at a slow cautious pace which reflects well on the father for having proposed it and also on the mother for indicating she could support it, if ordered, despite her fears.
There is a benefit to the child, now and into the future, in maintaining her relationship with her father who is affectionate and thoughtful in his attitude to her. He will benefit from the assistance of his own mother in managing the child and meeting her needs.
It will be important for all parties to put the events of 2013 behind them and to understand that it would not be impossible for the child under pressure to again repeat past historical statements suggesting abuse.
A period of twelve months enjoyable time with her father with her paternal grandmother present, will be a safe setting for the child with a double benefit; the mother assured that the paternal grandmother is actively supervising to ensure the safety of the child and for any statements of the child made during that period to be understood in context.
Orders are made accordingly.
I certify that the preceding two hundred and forty three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 June 2017.
Associate:
Date: 9 June 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Fiduciary Duty
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