PRICE & ORMAN

[2018] FamCA 1017

FAMILY COURT OF AUSTRALIA

PRICE & ORMAN [2018] FamCA 1017

FAMILY LAW – CHILDREN – With whom a child spends time – best interests of a child – where there are competing applications in relation to the time the children spend with the father - where the children are ordered to spend supervised time with the father on two occasions per week – where the mother holds significant concerns that the children have been sexually assaulted by the father – where the mother states that the children have made disclosures to her – where JIRT investigated the allegations made by the children and they were not substantiated - where the risk of harm from sexual misconduct by the father is a serious allegation – where there is a risk of emotional harm to the children from exposure to the anxiety of the mother - where there is significant tension and lack of trust between the parties – where the father was spending time supervised by a service – where the order for supervised time is in accordance with prior arrangements – where a reduction of time would adversely affect the children - where ongoing weekly supervised time will balance the risks and ensure that the relationship between the children and the father is maintained.

FAMILY LAW – CHILDREN – Interim Proceedings –  where the evidence is untested – where there is a need to act in the best interests of the children.

Family Law Act 1975 (Cth)

APPLICANT: Mr Price

RESPONDENT: Ms Orman

FILE NUMBER: NCC 1172 of 2018

DATE DELIVERED: 26 November 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 26 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Gianacas Argiris McDonald

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Carroll & O’Dea Lawyers

Orders

1. The parenting orders of 16 May 2018 in relation to X born … 2013 and Y born … 2014 (“the children”) are discharged.

2. Pending further order, the children spend time with the father for up to three hours on two occasions per week supervised by:

   (a)B Group or any other person agreed to by the parties who is willing to be a supervisor.

3. In the event that the mother consults a psychologist/psychiatrist for therapeutic reasons (including her anxiety around the safety of the children with their father) then she has leave to provide to that professional:

   (a)A copy of the Children and Parents Issues Assessment (“CAPIA”) dated 20 August 2018;

   (b)These orders and reasons for judgment.

4. Otherwise:

   (a)The Application of the father filed 19 October 2018 is dismissed;

   (b)The Response of the mother filed 13 November 2018 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 Price & Orman 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:  NCC 1172 of 2018

Mr Price

Applicant

And

Ms Orman

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application for parenting orders by Mr Price, the father of the two subject children, X, aged five, and Y, aged four.

2. The application is to discharge current interim orders made by consent on 16 May 2018 and to make further interim orders which can be summarised as substantial and significant time for the children with the father.

3. By her response the mother seeks dismissal of the application on the basis that there are interim orders in place.

4. However, that proposal cannot be interpreted as the current orders being in place at this time and continuing. The children have not spent time with their father since 10 October 2018 and a stale-mate is in place where the mother presses for the May 2018 orders to now be followed, although other arrangements have been in place for a period of months.

5. I accept that the matter has required further Court time and consideration of parenting orders.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The [Applicant] father

   (a)Application in a case of the father filed 19/10/2018;

   (b)Affidavit of the father filed 19/10/2018;

   The [Respondent] mother

   (c)Response of the mother filed 13/11/2018;

   (d)Affidavit of the mother filed 13/11/2018;

   Reports

   (e)Children and Parents Issues Assessment (“CAPIA”) dated 20/08/2018.

Brief History of Relevant Events

1. The parties separated on 12 December 2017. The children were then aged four and three years.

2. Prior to separation, each parent and the maternal grandparents had provided substantial care for the children. They had also attended day-care when both parents were working.

3. The mother asserts that the agreement between the parties after separation was that the children would see the father every Monday and every second Saturday. At that point whatever fears or concerns were held by the mother about the safety of the children with the father, they were not such as to object to unsupervised time going ahead. Her criticism of the father was that he had been less engaged and interested in the children than he should have been and that he had spent too little time with them.

4. It is apparent, there had been tension in the marriage with the mother wishing both to cease work and for the farm on which they then lived, to be sold.

5. The evidence of the mother is that from separation until 9 April 2018, when time with the father first ceased, if she told the children that their father was coming to pick them up, they protested “we don’t want to go”. X is said to have cried and cried.[1] 

   [1] Affidavit of the mother filed 13/11/2018, par 56

6. There are many possible explanations for this conduct, the most likely one being that the children were feeling sad, confused and disrupted by the separation of their parents.

7. On the mother’s evidence the children had been present during angry arguments and dispute over the matters mentioned earlier in these reasons.[2] They had left the family farm with their mother and gone to live with their maternal grandparents in Suburb C. Everything had changed. I conclude it is most likely, because the mother does not suggest that the boys were sad, tearful and resistant to spending time with their father prior to separation.

   [2] Affidavit of the mother filed 13/11/2018, par 131

8. Within a week of separation the mother was concerned that the behaviour of the children had changed in ways that were odd in her view.

Odd behaviour

1. On Saturday 30 December 2016 the children spent the day with their father, and Y complained after going to bed “I’ve got an itchy bum”.[3]  The mother describes the child as pulling his undies off, being irritable, having restless sleep and crying. The mother describes him thus:  woke up several times during the night, whining, and said to her “My bum is sore. It’s itchy”.

   [3] Affidavit of the mother filed 13/11/2018, par 58

2. The mother said she became quite concerned, she inspected the child’s bottom with a torch. She does not describe any observation of what could have accounted for the child’s trouble nor any treatment such as washing or application of antifungal cream or any other soothing treatment. The mother said she later purchased some worming tablets although she had not seen any worms. She did that “so I could rule out worms.”  That statement suggests that the mother may have had a hypothesis for the trouble and was excluding other possible causes.

3. The next night, Sunday 31 December 2016, the child Y is described as “kept waking up” and said “my bum is sore”.[4]  The mother describes the child as “taking his undies off and starting to touch his bum”. Again there is no reference to treatment of any kind for the soreness complained of. The mother in her affidavit chose to state at that point:

   [Y] made no reference to [Mr Price]. I just find it odd, that his bum was so sore and itchy after coming back from [Mr Price’s] and how irritable [Y] was, which is wholly out of character.

   [4] Affidavit of the mother filed 13/11/2018, par 59

4. The next step taken by the mother set out in her affidavit was as follows:[5] 

   I spoke to my psychologist, [Ms D], about my concerns about [Y]. She cautioned me and warned me to ask leading questions, always ask open-ended questions.

   [5] Affidavit of the mother filed 13/11/2018, par 60

5. There is no reference by the mother as to whether she gave the worming tablets to the child and, if she did, whether the sore bottom and disrupted sleep went away. Apparently the child was not taken to a doctor on the day following two nights of broken sleep, crying and complaints of soreness. The focus of the mother appears to have been her unstated concerns. The advice from the psychologist was forensic. So the concerns are likely to have been whether there was an explanation which involved wrongdoing by someone for the child’s complaints.

6. Three months passed uneventfully in terms of what is recorded in the mother’s affidavit.

7. On Easter Sunday, 1 April 2018, Y, then aged three, jumped onto his brother X’s bed. His brother X said “I don’t want Y’s penis near me”. The mother records that she thought this was a little odd, “as the child [Y] was wearing pyjamas and undies.”

8. On Monday 2 April 2018 Y was in bed. He complained of a sore penis. The mother asked whether he needed the toilet. He said “no”. The mother took him to the toilet and asked him “Do you know why your willy is sore?”  The child is reported to have said “Daddy tried to eat it”. Unsurprisingly the mother thought this was a very odd comment. She does not report checking the child’s genitals or applying any medicinal cream. She said to the child “Go to the toilet. Put your undies on, and go to bed”.

9. The mother states in her affidavit that in early March 2018 she took both boys to a general practitioner about Y’s complaints of a sore penis.[6]  This may be an error. Perhaps it should have read “May 2018”, although that would be a month after the complaints. I cannot come to a conclusion about when the mother took the children or took Y to a doctor.

   [6] Affidavit of the mother filed 13/11/2018, par 64

10. On Friday 6 April 2018 the mother alleges that her mother, the maternal grandmother, told her that when a child was being uncooperative with her about being put to bed, she asked him “How does Daddy get you to bed?” and the child responded “Daddy hits me with a stinger”. It is, apparently, an agreed fact, that the stinger is a family name for the wooden spoon. The child then went on to say “Dad looks at my penis”. The mother reports that her mother was “stunned” by this response and asked the child “What do you mean?  Show me”. The child is then said to have started to scratch his grandmother’s fore-arm.

11. The mother reports that she worried all night about what her mother had told her, she looked back on X’s comment “I don’t want [Y’s] penis next to me”. She describes coming to a decision “I did not want the boys to see [Mr Price] unsupervised.”  She describes herself as very, very worried.[7] 

    [7] Affidavit of the mother filed 13/11/2018, par 69

12. On 9 April 2018 the mother made a notification to the Department of Family and Community Services (“the Department”). It is apparent from the whole of the evidence, that the mother had held the view that the children are at an unacceptable risk of harm in the care of the father since this date at the latest.

13. On 9 April 2018 the mother reports having difficulty with the children’s behaviour at bedtime, “[Y] was jumping around like a jack-in-the-box.”[8] “He took off his pyjamas and underwear and played with his penis.” He resisted instructions from the mother to stop, and then the mother reports this:[9]

    [Y] was giggling and being silly. I said to him “You shouldn’t play with your willy in front of people. It’s not something you should do. He kept laughing and playing with himself. I tried to pull his undies up, and he continued to pull them down and play with himself. I said to him “Do you play with yourself in front of anyone else?”  He said “Yes. Daddy”. I said “You shouldn’t do that in front of anyone, not Mummy or Daddy, not [Grandma], not [Grandpa], not anyone”. [Y] continued to laugh and said “Daddy sucks it”. I said “What does Daddy do?”  [Y] said “Daddy sucks it”. I dropped the conversation and said “Come on, [Y]. Pull up your undies”.

    [8] Affidavit of the mother filed 13/11/2018, par 71

    [9] Affidavit of the mother filed 13/11/2018, pars 72-75

14. On 12 April 2018 the mother phoned the Department again to find out their response to her report from 9 April 2018 and also to report on those comments of Y’s from that evening. The Department advised that the case had been sent to E Town for consideration.

Proceedings Commence

1. On 23 April 2018 the mother filed an Initiating Application in this Court. Her proposed orders on a final basis were for the children to live with her, for her to have sole parental responsibility and for the children to spend no time with the father. The Notice of Risk filed with that application sets out the matters referred to thus far in these reasons.

2. On an interim basis the mother proposed supervised time at a contact centre for two hours each fortnight.

3. There is no reference in the mother’s material to her having had any conversation with the father about what the children had said to her or any concerns that he may have had of a similar nature.

4. On 26 April 2018 the children were interviewed by JIRT. The outcome was that allegations raised by the mother on behalf of the children were not substantiated.

5. On 14 May 2018 the father filed a Response to the mother’s application. He proposed equal-shared parental responsibility and that the children live with the mother.

6. I infer by that proposal that the father considered that the mother had the capacity to meet the needs of the children.

7. The father proposed a raft of what could be described as orders for substantial and significant time with him.

8. On an interim basis the father proposed time for the children with him on one day of each weekend supervised by a supervision service.

9. He too filed a Notice of Risk, referring to unfounded allegations based on what he considered to be the mother’s anxiety and her refusal to promote a relationship.

May 2018 Orders

1. On 16 May 2018 orders were made by consent between the parties. Those orders provided for time for the father at F Contact Centre, two hours per fortnight.

2. By 29 May 2018 there had been no time at the centre and it seems an indication that the waiting list was long and it would be some considerable time before time could start. The father proposed the use of a supervision service and the mother agreed.

3. On 8 June 2018 supervision by B Group (Supervision Service) started and took place for about three months.

4. In her affidavit the mother sets out an incident at day care on 6 July 2018 where the older child is said to have been found with his pants down and a young girl his age, four, playing with his penis. The mother apparently spoke to the child that night in a fairly strict way. She said to him:

   You should not touch other people’s private parts and other people are not to touch your private parts. Your private parts are the parts covered by your undies.

5. That night, the children who are apparently unconcerned by their mother’s presence, played a game where one child tried to put his toe into the bottom of the other child. The mother became clearly increasingly worried and began to question the older child. She asked him where he had learnt that game, and he nominated a child who had been at preschool with him. The mother dismissed that by saying to him, “You shouldn’t fib. Tell me who taught you that game.”  And the child volunteered, “Daddy.”[10]

   [10] Affidavit of the mother filed 13/11/2018, par 82

6. On 20 August 2018 the parties finalised their property dispute leaving the parenting matter only for consideration.

7. On 19 September 2018 the father and the B Group supervisor collected the boys from day care for a visit. The mother describes the child’s behaviour after the end of the visit in paragraph 94 of her affidavit. During dinner, the child was jumping on and off his chair. He then proceeded to take off his underwear and put his finger up inside his own bottom.

8. The mother spoke sharply to him, “[Y], that’s disgusting. Why are you doing that?  That’s gross. Put your undies back on. Why would you do that?”  The child then made a statement, that is inherently improbable, as follows: “Daddy did a poo in the laundry at Timezone and got me to stick my finger up his bum and touch his doddle or willy.”  The mother said, “You’re joking, aren’t you?  Are you telling the truth?”  And the child said “Yes”.

9. She pressed him on whether he was telling the truth, and he insisted that he was. The mother then asked the other child whether the father had taken him and his brother to the toilet alone or spent time alone with the children. The older child said, “No, he didn’t”.

10. The mother must have found the stories that the children were telling credible because she contacted the supervisor from B Group and asked whether there had been any opportunities for the father to be alone with the two children during the time they spent together. The supervisor assured her they did not.[11]

    [11] Affidavit of the mother filed 13/11/2018, par 97

11. The supervisor is then reported to have made a remark, “There was no opportunity for [Mr Price] to be alone with [Y], and that kids don’t always have a good perception of time”. The mother reflected on what the supervisor had said and began to wonder whether the children might have been recalling events from the previous supervised visit.

12. To the extent that the mother wondered if what the child had said was simply made up or fantastic, there is no evidence of it in her affidavit.

13. The mother then made inquiries of a similar nature as to whether the supervisor on the previous occasion might have left the children alone with the father. The information came back that the supervisor had not, that the father had, on one occasion, gone into the toilets and used them and had come out, and the supervisor had then allowed the children to go in.

14. The mother appears to be quite critical of the supervisor for allowing that to happen, although it seems the most likely explanation is that it was a male toilet and the supervisor was female. There is no suggestion that the children came to harm.

15. In September 2018 a place at F (Contact Centre) became available. The mother says she completed the intake assessment. The father wanted to continue with the B Group visits. The mother pressed for him to complete the intake assessment and, thereafter, the children did not see their father.

16. On 1 October 2018 the mother took Y to the hospital in E Town and a paediatrician examined him. It is probably the reason why police rang the mother on 10 October 2018 and that on 15 October 2018, the supervisor, Ms G, contacted the mother and told her that she had been contacted by police and had sent some of her reports.

17. The mother is no longer willing to provide the children for supervised visits through B Group and wishes to reduce time, if there must be time, to two hours per fortnight at the contact centre.

18. It is in that setting that I consider the parenting arrangements for these young children on a further interim basis.

Analysis

1. It appears to me that there are risks impacting on the children. One is the emotional risk of their mother’s concern and worry and anxiety about whether or not they are being mistreated by their father. The other is the possibility that the father has mistreated the children.

1. This is an interim proceeding with untested evidence. Each of the parents has told the Family Consultant that they wish to co-parent the children and are well aware that conflict will be damaging for them. That is certainly the case.

2. The mother has, since April 2018, had as her final position, that the children should not spend time with the father at all. There is a lot at stake.

3. On that basis, I do not consider it is appropriate to make an allocation of parental responsibility on an interim basis. Each of the parents has an existing meaningful relationship with these two children and the reports from B Group indicate how important the father is to the children, just as is conceded by the father, the mother is important to them.

4. Indeed, the children have significant relationships with both their parents, both sets of grandparents, and they have an adult half-sister in her late twenties, Breanna, the daughter of the father.

5. The allegations raised by the mother on behalf of the children are all statements made in the context of conversations, some of them quite probing, by the mother, rather than spontaneous disclosures.

6. The Department has not substantiated any complaint and the children have not spent unsupervised time with their father since April 2018. The Family Consultant,[12] expresses the opinion that the mother needs to address her fears and anxieties or the children too will become anxious. In her affidavit, the mother went back to reflect on events prior to separation, looking for connection with her current fears. Strangely, she said this:[13]

   I’ve also had scenarios where the boys would pull my undies down and lick my bum crack… I said, “Don’t do that”.

   [12] CAPIA dated 20/08/2018, par 40

   [13] Affidavit of the mother filed 13/11/2018, par 127

7. The mother reports:

   I am anxious every Saturday when the phone rings as I know the boys are not interested in talking.

8. I infer from this that the mother has no sense of the independent relationship between the children and their father, but her anxiety about the telephone call is the probable explanation for why the telephone calls are largely unsuccessful.

9. Between the evidence of both parties, it appears that there is avoidance by the children, hanging up the telephone, walking away. It suggests that they are conscious of their mother’s anxiety and are affected by it. The mother has given them a choice.[14]  When the telephone rings at the relevant time, she says to the children, “Do you want to answer the phone?”  And they say no.

   [14] Affidavit of the mother filed 13/11/2018, par 122

10. It is hard to see, for such young children, a benefit to telephone calls when there is so much anxiety around the fact that a call is to happen and that the children are no longer spontaneously enjoying conversations with their father. I propose not to make an order for telephone contact.

Conclusion

1. It is a difficult balance between the risks identified in these reasons, but I am confident, based on the evidence, that reducing time back to as little as two hours a fortnight would send a very clear message to the children that there was something wrong with spending time with their father. They are used to spending regular supervised visits and know the supervisors. They are young enough not to have any definite idea of what a supervisor is, or is for.

2. Ongoing supervised time two to three times per week is the least that can maintain the relationship between these young children and their father. The proposal of the father in his original Response for interim orders is entirely consistent with their needs. The emotional risk identified by the Family Consultant of the children becoming anxious, and possibly worse, rejecting their father, is serious.

3. The B Group records reveal an emotionally close and joyful relationship between the father and children. If the mother has not read the records, she would be well advised to do so.

4. I note that the father at least on one occasion shared ginger beer with the children, who enjoyed drinking it. This may or may not be the source of the allegation by the mother that the father may be giving the children alcohol.

5. The risk of harm from sexual misconduct by the father is a most serious allegation. There has been no substantiation, but the mother should have the opportunity to test the father in cross-examination and also to obtain professional assistance for her own anxiety which has been aggravated rather than allayed by the matters not being substantiated.

6. The children have been supervised on and off since June 2018 after a three-month break. There has now been another break of almost two months. The May 2016 orders provided for a four week suspension for holidays on notice from the mother. In circumstances where the time for the children with their father has been erratic and disrupted in that way, I do not consider there should be any further disruption.

7. Accordingly, the orders will provide for supervision by B Group, two to three times per week, consistently until the matter can be heard on a final basis.

8. I have also made provision in the orders for the mother to be able to provide a copy of the CAPIA, the orders and reasons to any therapeutic professional that she consults.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the ex-tempore reasons for judgment of the Honourable Justice Cleary delivered on 26 November 2018.

Associate: 

Date:  26 November 2018