OWSTON & DEBENHAM

[2019] FamCA 300

FAMILY COURT OF AUSTRALIA

OWSTON & DEBENHAM [2019] FamCA 300

FAMILY LAW – CHILDREN – Interim parenting – where the parties reached agreement as to some interim parenting orders – where the ICL seeks an injunction restraining the mother from allowing the child to be in the care of the mother’s partner unsupervised – where there is insufficient evidence to support the injunction sought being granted – Application dismissed.

Family Law Act 1975 (Cth) s 68B

APPLICANT: Mr Owston

RESPONDENT: Ms Debenham

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: DUC 124 of 2016

DATE DELIVERED: 13 May 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 6 May 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Paul Johnson Solicitor

COUNSEL FOR THE RESPONDENT: Mr Bracknell of Counsel

SOLICITOR FOR THE RESPONDENT: Hughes & Co Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Order 5 of exhibit 2 is made pending further order. Within 7 days a short judgment will be delivered with respect to continuing this order for the same timeframe as the balance of the orders in Exhibit 2.

2. The application to continue Order 5 of exhibit 2 pending further order is dismissed.

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 Owston & Debenham 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 PARRAMATTA

FILE NUMBER:

Mr Owston

Applicant

And

Ms Debenham

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the six year old daughter (“the child”) of Mr Owston (“the father”) and Ms Debenham (“the mother”) following the break-down of the parties’ relationship.

2. Earlier proceedings between the parties in relation to the child were finalised in November 2016 through the making of orders with the consent of the parties. These orders provided for the parents to share parental responsibility for the child and for the child to live with the mother and spend defined substantial and significant time with the father.

3. In about September 2017 the mother ceased complying with the orders with respect to the child spending time with the father but did not seek to have those orders suspended or discharged.

4. The proceedings thereafter had a complicated history including the filing of incorrect applications in the Federal Circuit Court attempting to initiate new parenting proceedings. Ultimately it has become clear that the father seeks to revisit the parenting orders and at some stages in these renewed proceedings proposed orders that the child live with him and spend defined time with the mother.

5. In November 2018 the mother filed a Notice of Risk in which she identified for the first time a range of alleged risk factors in the father’s care including allegations that the child had been sexually abused by the father’s step-child. In December 2018 the proceedings were transferred to this court for possible inclusion in the Magellan list.

6. At the first court event in this court in March 2019 the father withdrew his Initiating Application and it was dismissed. The father at that time indicated through his lawyer that he did not seek a change to the final parenting orders made on 2 November 2016. It subsequently became apparent that the mother also seeks to maintain the previous parenting arrangement with the exception that she proposes one additional order restraining the father from bringing the child into contact or allowing her to communicate with his step child or alternatively that he be restrained from allowing the child to spend unsupervised time with the step child.

7. Curiously the father’s Case Outline for the 6 May 2019 court event indicated that the father still sought the orders that the child live with him.

8. The application before me on 6 May 2019 concerned the interim arrangements for the child to spend time with her father.

9. Although the parties initially took opposing positions in relation to the father’s interim time consent was given to an arrangement proposed by the Independent Children’s Lawyer (“ICL”) about the father’s time with the exception of one order.

10. Orders were then made in accordance with the ICL’s proposal. Pursuant to these orders the child is to have an increasing regime of time with the father beginning with four hours each alternative Saturday gradually increasing until she spends eight and a half hours with him and all such time is supervised by the paternal grandmother. The orders made with the consent of the parties also related to other matters including a restraint on the mother from allowing the child to come into contact with or communicate with listed members of the her partner’s family.

11. The only controversial interim order on 6 May 2019 to which the father consented but the mother did not consent was a restraint on the mother permitting the child to be in the care of her partner in the absence of supervision (“the restraining order”). On 6 May 2019 I made an order in those terms but indicated that this would be in place for a matter of days until I had an opportunity to consider whether it is proper for that order to continue.

12. These Reasons relate to the restraining order in place since 6 May 2019 and the question of whether it continue pending further order.

Background

1. The parties to the proceedings had a brief relationship of approximately 18 months and separated when the child was approximately six weeks old. Following separation, the child lived with the mother and spent time with the father which increased over time.

2. The mother who also has another child from a previous relationship then began to live with her current partner. The mother’s current partner has two adolescent children from a previous relationship but he does not spend time with them.

3. The father has also re-partnered and he and his partner have a child together who is almost two. The father’s household also includes the father’s step-child, a daughter currently aged nine.

4. The father initiated proceedings in the Federal Circuit Court in 2016. Final orders were made by a judge of the Federal Circuit Court in November 2016 for the child to live with the mother, for the parties to equally share parental responsibility for the child and for child to spend each alternate weekend and some holiday time with the father.

5. In about February 2016 the mother first raised with the father that she wished to relocate to Queensland, but she did not then seek to revisit the parenting orders on that basis.

6. It is agreed by the parties that the mother ceased complying with the orders with respect to the father’s time in September 2017 although she made no application for those orders to be discharged.

7. The mother ceased time between the child and father following a disclosure by the child that she had been sexually abused by the father’s step-child. The mother asserts that from the time the child was approximately three to four years of age, she has engaged in sexualised behaviour including placing objects in her anus and vagina. The mother asserts that she attempted to communicate with the father regarding his step child’s behaviour but that the father refused to accept that anything untoward had occurred.

8. In July 2018 the father commenced proceedings seeking to revisit the final parenting orders and have the child live with him. He has since abandoned that positon and now seeks that the child spend time with him in accordance with the November 2016 final parenting orders. The mother, who had originally sought in the new parenting proceedings to relocate to State B, has since abandoned this position.

9. In October 2018, a judge of the Federal Circuit Court ordered that the parties contact a supervised contact service to assess suitability for the child to spend supervised time with the father and appointed an ICL.

10. The father spent time with the child at the contact service in November and December 2018 and then in January and February 2019 though there were some also scheduled sessions which were cancelled by the mother.

11. The mother’s allegations of disclosures made by the child were reported to police. The mother’s concerns in relation to the father’s step daughter were not referred to JIRT[1]  because the person alleged to have caused harm was under the age of ten. However, other reported concerns in relation to the child have been investigated by the Department of Community Services (“Community Services”).

    [1] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.

12. On 2 May 2019, the parties attended upon a family consultant for the purposes of the Child Responsive Program. The key issues identified by the family consultant include whether or not the child has been sexually abused by the father’s step child and whether or not the child would be at a risk of harm by coming into contact with the step child. Other key issues include whether the child has autism and a sensory disorder and if so the degree of severity of her condition and the potentially negative impact on the child’s wellbeing and mental health from exposure to ongoing conflict between her parents.

13. When speaking to the family consultant about her concern that the child had been sexually abused by the father’s step child, the mother reported that her concerns about the child’s behaviour had also caused health professionals to suspect the child had been sexually abused. Further, the mother reported that when she was about 14 years of age her boyfriend who was approximately five to six years older than her took her and her friend to a remote farm house, drugged them and held them there for a week, repeatedly sexually assaulting them. The mother said that she began to identify behaviours in the child that were similar to her own but denied that she was hyper-vigilant for behaviours because of her own past trauma.

14. Although it is not referred to in the Memorandum related to the Child Responsive Program there seems to be no dispute between the parties that the child has been observed by a number of health practitioners from as early as 2015 to be sexualised or behave in a manner which may be considered as sexualised. Some of these reports pre-date the child ever coming into contact with the father’s step child. Further, there is no reference in the Child Responsive Program Memorandum to at least one member of the mother’s partner’s family having a conviction for sexual assault of his daughter.

15. On 6 May 2019 the parties appeared before the court on three occasions. At the first appearance, the parties indicated that they had reached agreement as to an interim arrangements for the child. However I stood the matter down so that the parties could read the Memorandum to Court relating to the family’s participation in the Child Responsive Program that was only released to the parties in court on that day and so that the mother could make inquiries into obtaining a report from the child’s treating paediatrician.

16. When the parties appeared before me on the second occasion, the ICL indicated that she wanted to view police records that had just been produced on subpoena to which access had not yet been granted before handing up consent orders. Such access was granted and the matter stood down.

17. When the parties last appeared before me, they were in agreement about interim orders that the child live with the mother, that the parties equally share parental responsibility for the child and that the child spend defined time with the father. However the mother did not consent to the ICL’s proposed restraining order by way of injunction restraining her from allowing the child to be in the care of her partner in the absence of supervision by her or another adult who is not related to him.

The order under consideration

1. The ICL’s proposal for the restraining order arose from police records which were made available for inspection during the lunch adjournment. These police records it is contended give rise to a question of risk of sexual harm to the child posed by the mother’s partner.

2. Through her counsel the mother opposed the restraining order on the grounds that the police record alone was insufficient evidence to support the contended risk and questioned the appropriateness of injunction of this type to mitigate such a risk, particularly in circumstances where the mother’s partner has played a key role in raising the child over the past six and a half years. The mother’s counsel also attached weight to the mother’s lack of concern about the risk posed by her partner.

3. The father consented to the order of the ICL.

The Police Records

1. Two incidents contained within the police records were marked by the ICL as being relevant to the alleged risk posed by the mother’s partner to the child.

2. The first incident relied upon was a 2018 record that seems to relate to an incident reported by the former partner of the mother’s current partner (“the former partner”). It appears that the report came about in circumstances where the former partner had allegedly observed a concerning change in her daughter’s behaviour and attributed this behaviour change to an incident that had occurred while that child was in the mother’s partner’s care. The former partner described how her daughter had reported that she had shared a bed with someone, the name of who has been redacted in the police records, and in connection with this event the mother’s partner was angry as his daughter had bled on the bed.

3. The police record also seems to indicate that the mother’s partner’s brother, (who is accepted by the parties as having been convicted of sexual abuse of his own daughter), was staying at the mother’s partner’s house during this period. As the parties have consented to an injunction restraining the mother from facilitating time or communication between the child and her partner’s brother, this risk does not need to be addressed further in this judgment.

4. The second police record relied upon from 2011 also relates to a report made by the former partner. In this report the former partner alleges that the mother’s partner was abusive towards her and the children of this relationship. In particular the report states the former partner alleged “the physical abuse of the children has resulted in injuries to one of the children and diagnosed psychological injuries to at least two of the children.” The record further indicates that investigations were made by Community Services and JIRT in response to incidents of physical abuse and abnormal sexual behaviour displayed by the male children after visitation with the mother’s partner. No records from these agencies confirm that this is the case.

5. The mother’s counsel submitted that the 2011 report should not attract significant, if any, weight in determining whether the injunction is appropriate given the length of time that has passed since this incident occurred.

The Application for the Restraining Order

1. The order made on short term interim basis and proposed by the ICL to continue pending further order is an injunction for the personal protection of the child pursuant to section 68B of the Family Law Act 1975 (Cth). Such an order may be made as a court “considers appropriate for the welfare of the child” in any case “in which it appears to the court to be just or convenient to do so.”

2. Although the ICL relied upon the two police records in support of this restraint, she did not make any submissions in relation to it, and did not rely upon any other evidence in the proceedings in support of the order

3. Despite the opposition of the mother in the context of a busy duty list when I did not have an opportunity to consider the matter more fully, the police records caused me sufficient amount concern about the welfare of the child that I considered it appropriate to make the injunction on the basis that the matter would be more closely considered within days.

4. After considering the police records, I am of the view that the allegations themselves of serious physical abuse of children and concerns about inappropriate boundaries between the adults and children are concerning however, any allegations are completely uncorroborated and there are a number of features about the records that give rise to concern about their reliability.

5. First, each of the complaints about the mother’s partner’s behaviour are made by that person’s former partner who the mother and her partner contend have an acrimonious relationship with him.

6. Further, it is the former partner of the mother’s partner who expresses a lay opinion about concerning changes in her daughter’s behaviour and there is no other evidence attributing that behaviour to any concerning incidents involving the mother’s partner. In short, the record is nothing other than a bare assertion unsupported by the evidence that the mother’s partner has done something which has caused a change in behaviour of his child.

7. The most concerning police record in my view relates to the allegation that the mother’s partner’s brother, a known sex offender, was staying at the mother’s partner’s house. This more significant matter of risk has been addressed by a restraint, upon her facilitating any time or communication between the child and her partner’s brother which is agreed to by the mother.

8. The second record dating from 2011 is in my view is also not sufficiently reliable to ground an injunction. It is also made by the former partner of the mother’s partner and includes broad allegations in an unknown context that the mother’s partner perpetrated unspecified physical abuse against his children resulting in injuries and unspecified psychological injuries. Although the record indicates that investigations were made to Community Services and there was a JIRT investigation, there is no suggestion that the mother’s partner has been charged with any offence or that an Apprehended Domestic Violence Order has been issued against him arising out of those incidents for the protection of the children and there are no records from either of these agencies.

9. I am also of the view that even if I were satisfied that these police records gave rise to some concerns about a risk posed by the mother’s partner to the child, there is no evidence to suggest that in the six and a half years in which the child has lived in his household he has acted in any untoward way towards the child. Further, such an order may be highly impractical given that the father’s partner has played a significant care giving role with respect to the child.

10. Taking all of the foregoing into account, I am not satisfied that it is appropriate to continue the restraining order pending further order.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 13 May 2019.

Associate: 

Date:  13 May 2019