Pinton and Burnett

[2011] FamCA 600

FAMILY COURT OF AUSTRALIA

PINTON & BURNETT [2011] FamCA 600

FAMILY LAW – CHILDREN – Application of the father – Where the parties live a short distance apart – Where the initial family report recommend equal shared time – Where the mother alleged sexual abuse by the father against the child shortly after the release of the family report – Where the mother has brought numerous allegations against the father to various bodies and medical practitioners – Where the child has made disclosures to a psychologist and demonstrated sexualised behaviours – Where the father denies inappropriate conduct – Unacceptable risk of some conduct by the father being of detriment to the child – Child to live with the mother – Child to spend supervised time only with the father.

APPLICANT: Mr Pinton

RESPONDENT: Ms Burnett

INDEPENDENT CHILDREN’S LAWYER: Ms Hodges, Solicitor

FILE NUMBER: BRC 12957 of 2007

DATE DELIVERED: 1 August 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 13, 14, 15 and 19 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT: Mr Green of Counsel appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Parker Family Law

COUNSEL FOR THE INDEPENDENT

CHILREN’S LAWYER:

Mr Ashcroft of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Hodges, Solicitor of Rimmer Lawyers

Orders

1. The Orders made in the Federal Magistrates Court of Australia on 19 October 2007 be discharged.

2. The Orders made in the Federal Magistrates Court of Australia on 29 October 2010 be discharged.

3. The Orders made in the Family Court of Australia on 25 January 2011 be discharged.

4. The Mother have sole parental responsibility for all major long term issues affecting the child, Y born … 2004.

5. The child live with the Mother.

6. The child spend time with the Father as agreed between the parties and if they fail to agree then for up to two (2) hours on either Saturday or Sunday each weekend at the discretion of B House with such time to be supervised at B House.

7. The child spend time with the Father for a two (2) hour period:

   (a)       on the child’s birthday;

   (b)       on the Father’s birthday;

   (c)       on Father’s Day; and

   (d)       on Christmas Eve

   at B House with such time to be supervised at B House.

8. Neither the Mother nor the Father shall denigrate the other or any member of the other’s family or household to or in the presence of the child.

9. Neither the Mother nor the Father shall discuss these proceedings or any other adult issue with the child.

10. Neither the Mother nor the Father shall physically discipline the child.

11. The Mother and the Father shall communicate with regard to the child using email.

12. The parents shall not pass messages through the child nor shall they allow the child to read the email communications nor shall they read email communications to the child.

13. The Mother and the Father shall keep each other informed of the name and address of any medical practitioner attended upon by the child from time to time and each parent is authorised to obtain information regarding the child’s health, welfare and development from that practitioner.

14. The Mother and the Father shall authorise any school attended by the child to discuss the child’s education progress with either parent and shall authorise the school to provide information to either parent not limited to copies of school reports, school photo order forms, newsletters and the like.

15. The Mother and the Father shall notify the other of any serious accident or emergency involving the child as soon as possible and shall seek appropriate medical assistance for the child as soon as possible.

16. The Mother and the Father shall keep the other informed of their residential address and telephone contact number and advise each other of any change to these details within seven (7) days of such a change occurring.

17. Prior to making any major long term decision in relation to the child, the Mother shall:

    (a)       notify the Father of the decision she proposes to make by email;

    (b)       allow the Father opportunity to provide feedback in relation to that decision by email; and

    (c)       consider any feedback given by the Father by reference to the best   interests of the child.

18. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Pinton & Burnett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12957 of 2007

Mr Pinton

Applicant

And

Ms Burnett

Respondent

REASONS FOR JUDGMENT

1. This is an application on behalf of the Applicant Father, Mr Pinton, in relation to the child, Y born in 2004, the child of his relationship with the Respondent Mother, Ms Burnett.  The Father was born in 1966 and the Mother was born in 1968. 

2. They met in or about the year 2001, commenced their relationship and finally separated in 2005 when the child was ten months old.

3. The Father lives in the north coast in a unit and the Mother lives with her parents at C Town, a comparatively short distance apart being some three or four kilometres.

4. In 2007 Mr D gave a report in which he recommended that the Father have contact and also tended to suggest that there should be equal shared time with the parties.  After this or about the same time, as the Father says when he indicated he wanted 50/50, the Mother commenced making allegations of sexual abuse.  The Father alleges that the allegations are spurious and further that the Mother, because she is making such allegations, is suffering from some mental condition (see also paragraph 8 of Mr E’s report dated 23 October 2009).

5. As has been pointed out by the Father and conceded by the Mother, the Mother has sought the assistance of the Department of Communities (Child Safety Services).  She has sought assistance from various medical practitioners being Dr F and Dr G.  Dr H is the Mother’s general medical practitioner her report is referred to in Mr E’s report at paragraph 11, and other than that there has been a Ms I a psychologist, a Ms J who is a psychologist practicing with K House, a Ms L and eventually a Ms M, a psychologist.

6. Mr E prepared a family report dated 16 September 2010, a very lengthy,

   
   

   in-depth and quite sensitive report and I have found a great deal of assistance from his report.  At paragraph 7 of the aforesaid report he refers to and exhibits to his report a diary of events which the Mother has prepared from June 2005 until the present time.  As appears from that diary, the Mother has a concern that the child seems to be preoccupied with his anus and sticking objects in it.  He uses language such as “bum hole”, has habitually stuck his fingers in his anus and consistently has pulled his pants down to expose himself and has sought to rub his bare bottom over his mother.

7. There have been problems with his encopresis and lack of bowel control at various locations including school.  He has also developed a deforming habit of sucking his fingers and at times incessantly picking at the skin on his lip.

8. The Mother further says that the child showed extreme reluctance to go on contact at times.  He does however enjoy himself on occasions particularly when the Father takes him camping. 

9. There was an allegation that the Father shaved the boy’s head, as the Father concedes using a number 4 blade, he uses a number 1 blade and consequently he has a very bald appearance.  There were also allegations that the child was observing his Father shaved all over his body whilst naked.  This was countered by the Father attending upon a doctor who indicated that he appears to have average body hair, see Ms L’s affidavit filed 25 March 2011 being her notes of 11 July 2010 and 19 October 2010.

10. I refer to particularly paragraph 7 as I have said before of this report supra and include it in the reasons.  The Father denies all of these allegations.  He indicates that none of them have been substantiated and he is in fact quite right that up until the end of last year or towards the beginning of this year, none of the allegations have been substantiated, particularly by the Department of Communities (Child Safety Services).  However, two of the medical practitioners and/or psychologists to whom I have already referred have expressed some concern, they being Dr H who indicated that whilst there was no physical evidence of child abuse, she had seen a video depicting the child in the bath inserting his fingers into his anus.  Ms I whom Mr E refers to was to give him a report but appears not to have done so.  She herself was a psychologist.  She expressed some concern. 

11. Ms J a psychologist of K House, at the request of the Department of Communities (Child Safety Services), gave a report.  This report, as I have indicated is of assistance albeit it is now some three years old, but in particular this report appears as the first report. Unfortunately exhibit 4 is not paginated but it is referred to as the first report in exhibit 4.  The initial page sets out eight recommendations which I will be touching upon at a later stage, but particularly at page 3 of 15 she sets out the complaints in relation to the child’s sexualised behaviour.  These have not in any way decreased up until comparatively recently, according to the Mother, and there is some support for these allegations in the evidence of Mr and Mrs Burnett (senior) who observed some of the matters to which Ms J refers and I will be touching upon her evidence at a later stage.

12. As I have indicated she had come to a clinical opinion which had commenced at page 8 of 15 of a report of the 18 April 2008.  I have considered this paragraph which was of great assistance.  I note that she comes to a conclusion at page 9 that:

    …[Y’s] reported trauma symptoms could be confounded by traumas other than sexual abuse such as parental separation and conflict as could his sexualised behaviours due to elimination issues.  Thus I am unable to conclude that [Y’s] trauma symptoms and behaviours are as a result of sexual abuse.

13. She does go on to say at page 9 of 15:

    …I am unable to support or dismiss that [Y’s] behaviour and trauma symptoms are due to sexual abuse at this time.

14. Taking the clinical opinion together in all it appears to me:

    a.that the matters that are of concern to this Court are that the allegations are false and have been conceived out of the conflictual relationship between the Mother and the Father.  This is the Father’s position;

    b.trauma symptoms and sexualised behaviours are confounded by other traumas;

    c.that the Father is manually dis-empacting the child’s bowel as a means of manage elimination issues; and

    d.Y has been sexually abused by his father.

    These are matters which I have to consider not in isolation.

15. At paragraph 2 on page 7 of 15 Ms J sets out the trauma system checklist for young children.  I have found this of extreme assistance and her clinical opinion appears at page 8 of 15, which once again I include totally. 

16. At this time it is quite clear that the child was only three years of age or thereabouts.  At paragraph 4 on that page she says:

    Given the identified confounding issues I am unable to support or dismiss that [Y’s] behaviour and trauma symptoms are due to sexual abuse at this time.  However the lack physical evidence [sic] is not enough in and of itself to dismiss the possibility that sexual abuse has occurred

Thus I am unable to support or dismiss the sexual abuse allegations at this time.  In order to more adequately assess future allegations should they occur, it is recommended that:

1. I have indicated that I will be touching upon her recommendations which appear at page 10 of 15.  In particular I emphasise Recommendation 2 which states:

   To provide opportunity for objective observations and potential disclosures to occur, [Y] to participate in social activities preferably within a day care environment.

2. Inter alia she says the child’s parents should be linked with an appropriate service in relation to education and management of the conflict issues to reduce the impacts (emotional and physical) on the child.  This may have been done but it has not been successful and there is still a tremendous amount of antagonism.  In fact, the dislike of the parties of each of them is palpable as are the attitude of Mr and Mrs Burnett towards the Father.

3. The Mother has consistently brought the allegations of the Father’s sexual abuse towards the child to the notice of various bodies, psychologists and as I have said medical practitioners.

4. The Department of Communities (Child Safety Services) appears to have become a little disenchanted with the Mother and have, as I infer from the documents which have been put before me from the Department’s file, consider her to be not a person that they wish to have any further dealings with.

5. Ms I to whom I have referred to earlier has indicated to

   
   

   Mr E that she is concerned about the allegations made by the Mother in reporting what the child has said and she has shown, according to Mr E, to dissatisfaction with the view of the Department.

6. Ms M came onto the scene in or about the month of December 2010 and commenced objective observations see paragraph 17 supra.  She unfortunately did not see fit, notwithstanding that I understand there was a request for her to do so, to put before the Court her views in a report.  Consequently she was called to give oral evidence and she was called on the

   
   

   15 July 2011, and I have ordered and have before me, a transcript of her evidence which commenced at 10.05 am on that day. 

7. She is a psychologist by the name of Ms M.  She is in private practice.  She has a Masters of Science in Applied Psychology.  She did her training in Country N and whilst of Country O birth, she has resided in Australia for a period and is practicing privately in Australia, and has done so since about 2009.

8. She became involved through a referral from a doctor, a Dr P, who was in the Q Medical Centre, a centre which the child, the Mother and I believe the Father on occasions have attended. 

9. She became involved with the Mother initially on the 1 October 2010 when she had an interview with her, but not with the child.  Thereafter she has had numerous appointments with the child up until the date of the trial.  She initially uses drawings as a method of endeavouring to extract from the child any concerns he may have.  If I make it quite clear that insofar as any verbal admissions made by the child or complaints or disclosures, none were made until about the 14 April 2011.  However, the drawings of the child have caused Ms M a considerable amount of concern.  Notwithstanding that, it appears as though the initial referral was for an adjustment disorder and

   
   

   Ms M comes to the conclusion that he was exhibiting signs, and still is, of post-traumatic stress disorder.  She initially had to sort out, as she says, the behaviours that the Mother talked about which were sexual in nature (see page 5 line 6 of transcript).

10. She says she was attempting to understand his behaviours (see page 5 line 6 of transcript) and she reports that the Mother told her (see page 5 line 16 of transcript) as follows:

    The Mother reported concerning behaviours about nightmares, bedwetting, encopresis, some oppositional-like behaviours,
    immature-like behaviours, some sexual boundary issues and some display of sexual meaning displaying himself and things like that.

11. She indicates that in her contact with the child she has seen him masturbate, play with himself in sessions that she has had with him and also seen him do inappropriate things to his mother, for example trying to touch her breast.

12. I refer to the exhibits of his drawings which are contained in what appears to be the notes of Ms M and they are exhibit 7.  Ms M was concerned about the drawings and has set out the dates upon which such drawings were done, and as I have said before it was the 14 April of this year that the child disclosed to Ms M certain things as set out in her evidence.  She has indicated at page 7 of the transcript in answer to a question by myself:

    HIS HONOUR:   Well, up until he exhibited these symptoms was there anything in his presentation to you that concerned him?‑‑‑Concerned him?

    I’m sorry - concerned you.  I apologise?‑‑‑Absolutely.

    Yes.  What was that?‑‑‑He presents with – I would actually diagnose him with post-traumatic stress disorder.  I’ve had to, sort of, do a lot of work with him in actually ascertaining what exactly the behaviours represent, okay, so in my work with him he has presented with severe behaviours which consist of him rolling around on the floor, barking and growling like a dog.  He constantly has his two fingers in his mouth.  So a lot of regressive-like behaviours and very immature - socially and emotionally immature.  So because of those behaviours I asked mum if I could do a cognitive assessment on him.

Which she did.  She found that the child was very bright.  In a way she was quite surprised about this because she was concerned that the child might have a pervasive development condition (page 8) and at the aforesaid page on line 6 of the transcript she says:

…So often we see in kids who have post-traumatic stress they sometimes look like they have something what we call PDD which is maybe sometimes on the autism spectrum, okay.

1. She was concerned prior to the disclosures made by the child concerning the Father’s conduct towards him as appears from page 8.  She says she chooses the drawings:

   …because research shows that children in most cases do not talk about abuse that has happened to them.  They will not verbalise it, okay, so when we work with children we’re usually working with play – in play therapy or toys or games or drawings.

2. At page 9 of the transcript she went on to give evidence about what the Father had done to the child.  I accept the evidence of Ms M and I found her very expert in her field and having the child’s best wishes at heart.  She also exhibits some annoyance at the Department of Communities (Child Safety Services) indicating that as far as she was concerned the Department did not do enough in this case.  She reported as she has to do legally, her concerns to the Department of the 14 April 2011 and a follow up on the 28 April 2011.

3. I do not believe it is necessary, other then to say as I have already said, I was particularly impressed with Ms M’s evidence and as a result thereby, I am satisfied that the description which she has put before the Court of the child’s condition is correct.

4. Naturally of course it is exceptionally difficult for me, particularly where the Father denies any inappropriate conduct towards the child, to determine whether in fact such inappropriate conduct has taken place.  I have to exclude everything which could be considered to be an explanation for it.  I endeavoured to ascertain from the Father whether in fact there was any explanation assuming that these allegations were correct, concerning of the allegations of the child and the Father said no that it was all in the Mother’s mind and that she had made it up, that she had brainwashed the child and consequently there was no explanation for what he had said.  I thought that perhaps it might have been that there was some form of father/son “macho” type sexual behaviour which was not in any way considered by the Father to be detrimental to the child, but however that was not forthcoming.  So I am left with the evidence of Ms M as I have said, supported by the evidence of the Mother and of Mr and Mrs Burnett the paternal grandparents, that the child:

   (a)has said these things; and

   (b)that according to Ms M it appears that the child has in fact disclosed to her what took place and has supported his own statements by the drawings which are explicit in the extreme.

1. Those circumstances have more than convinced me that there has been inappropriate conduct exhibited by the Father to the child and obviously as has been mentioned by Ms M, it is not necessary that this conduct has been detrimental to the child.  In fact, on some occasions he indicated that he quite liked some of the actions by the Father with his body, but that is not the question.  The question is were these actions which were perpetrated upon the child in the child’s best interests?  I am more than satisfied that they were not.

2. The Mother does not press for me to find that in fact sexual abuse had taken place but that the conduct of the Father as supported by the evidence of
   Ms M, the grandmother, the Mother, the statements made by the child and his drawings, are such that would intend me to be more than satisfied that there is an unacceptable risk of some conduct by the Father, whether being intentional or otherwise, which would not advance the welfare of the child.

3. I have quite clearly done, is accepted the evidence of Ms M, she was very persuasive, then I have come to a conclusion that the conduct of the Father towards the child would represent an unacceptable risk of further conduct taking place.  Seeming the Father is unable to put any satisfactory explanation before me, I regret that I am forced into the position of finding this, but I do so.  As a result therefore I would believe that after consideration of the s 60CC factors to which I will now refer, the child should reside with the Mother, and the Father should have contact with the child only on a supervised basis.

4. I endeavoured to ascertain who could supervise, obviously Mr and Mrs Burnett whose dislike of the Father is palpable, would be unsatisfactory.  The Father put before me a Ms R, his present partner, who appeared to me to be a very fine type of woman.  She is the mother of two children, however she is of the view that the Father could not in any way have carried out the acts which are alleged to have taken place between himself and the child. Consequently I have great respect for her and I do not criticise her for this, but she does not have a completely open mind and that it is essential that she not be put in an invidious position and consequently I am left with the only remedy and that is for a Contact Centre and such I will be making such an order at a stage after I have considered the s 60CC factors.

5. As stated in PJC & MHC 2008 FamCAFC 2903 at paragraph 46:

   …It is not necessary for the judge to deal with them [s 60CC factors] seriatim and it is entirely clear to us how his Honour came to conclusions which he did in relation to each of the matters he was asked to determine.

6. From that I opine that I am entitled to consider those matters which are of concern to me and matters which will affect the exercise of my discretion in this matter.  Consequently I will not deal with each of the subsections seriatim but those of which I am of the view as important and those which under the legislation I have to consider.

7. It is important that the child have a meaningful relationship with both of the child’s parents, but such relationship must be in the best interests of the child.  Obviously the word “meaningful” assists in coming to that conclusion.  Therefore I have to consider the evidence that I have found that the Father poses an unacceptable risk to inappropriate conduct towards his child.  As a result thereof s 60CC(2)(b) is of importance in that it is necessary for me to protect the child from physical, in this case, harm.  It does appear on the evidence before me at this stage that there has been psychological harm to the child, save that he does indicate that he does not like certain things which are carried out upon his person by the Father but on the other hand he has indicated that some of them he does like, see the concerns of Ms M.

8. The child generally has not expressed any clear view one way or the other although there is evidence put before me by the Mother that he does plead with her not to go on contact with the Father. 

9. The nature of the relationship of the child with the Mother is good.  It does not appear to be that bad with the Father since on occasions he considers that he does enjoy his time with his father particularly when camping, and this comparative comfort has been seen by Mr E on his very short interview with the Father face to face when the Father carried on in an inappropriate manner in relation to attempting to discuss with Mr E, in the child’s presence, allegations that he had raped the child.  I make it quite clear that the Father’s conduct in this case where he in effect required Mr E to leave his premises a comparatively short time after Mr E got there, to be inappropriate and also to be counter-productive to his own case.

10. I believe that the Mother is, as I would expect, every mother to do being particularly concerned about her child’s sexual, physical and emotional health and I have found that the conduct of the Father as such was inappropriate and amounts to an unacceptable risk.  I believe that should the child be protected the Mother will be able to encourage a relationship between the Father and the child.

11. I do not believe that there will be any great effect upon the child of the orders which I intend to make in relation to his contact with his father.  I am more than satisfied on the provisions of s 60CC(f) that the Mother has the capacity to provide for the needs of the child including emotional and intellectual.

12. So far as s 60CC(4) is concerned I have already expressed my view that in my opinion the Father has failed to fulfil his responsibilities as a parent since he has embarked upon what appears to be inappropriate behaviour towards the child. 

13. I have also to consider whether or not the contact which I will be ordering is sufficient and substantial.  I believe it is with an overriding concern in the protecting of the child and it is reasonably practicable since the parties do not live very far away from each other.

14. There have been some statements made by the Father that should the Court order supervised contact he will not avail himself of that.  That is a matter for himself.  It is his privilege if he wishes to do so.  Personally I would counsel him to consider such a matter since I believe that that is selfish and that he is restricting the child’s right to get to know him in these circumstances in a safe and protective situation.  I make it quite clear, as I have done verbally to the Father, that supervision is a benefit of both the child and the parent who is being supervised.  One, there can be no suggestion that anything has taken place to the child and secondly, the Father in this case is protected from any scurrilous allegations that may be made.

15. Obviously the presumption in relation to shared parenting cannot be upheld in this case.  It would not be in the best interests of this child.  Consequently I will order in accordance with the draft of the Mother presented to me by Mr Green of Counsel, save that I will order that the Father be entitled to a two hour period of supervised contact with the child at the Contact Centre for periods on his birthday and the child’s birthday.  Consequently I also order the Father be entitled to a two hour period of supervised contact with the child at the Contact Centre for periods on Father’s Day and Christmas Eve.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 27 July 2011.

Associate: 

Date:  1 August 2011