Ridley and Ridley

[2018] FamCA 628

FAMILY COURT OF AUSTRALIA

RIDLEY & RIDLEY [2018] FamCA 628

FAMILY LAW – CHILDREN – Magellan List – Interim Parenting Orders – With whom the child lives and spends time – Where the subject child is aged nine years – Best interests – Where the applicant father seeks all time between the mother and the child to be suspended or alternatively, supervised – Where the mother, at the interim hearing, proposes for her time with the child to be supervised by the maternal grandparents – Where the mother’s partner has allegedly physically and sexually abused his eldest son of a previous relationship – Where investigations into allegations against the mother’s partner are ongoing – Where the mother provides no evidence of the maternal grandparents’ capacity to supervise time – Where consideration is given to maintaining a meaningful relationship between the mother and the child, but greater weight is given to the safety of the child – Where the mother consents, without admissions, to being restrained from bringing the child into contact or having communication of any kind with her partner – Where orders are made for the mother to spend supervised time with the child every first, fourth, seventh and ninth Saturday during each school term – Where suspension of consent orders made 11 November 2016 providing for the mother to spend defined time with the child – Where the Independent Children’s Lawyer is to meet with the child and explain the content and nature of the orders.

Family Law Act 1975 (Cth), s 60CC

Ridley & Ridley [2015] FamCA 1032

APPLICANT: Mr Ridley

RESPONDENT: Ms Ridley

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

FILE NUMBER: NCC 2245 of 2012

DATE DELIVERED: 6 September 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 2 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Mr Bates

SOLICITOR FOR THE RESPONDENT: Merridy Elphick Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

Orders

Pending further order, the Court orders that

1. The child M born … 2010 shall spend time with the mother as follows:

   1.1On the first, fourth, seventh and ninth Saturday of each school term, with such time to occur in the Newcastle area supervised by Q Group for the maximum time that the service can provide on each occasion.

2. For the purpose of implementing Order 1:

   2.1The parties shall contact Q Group within 7 days to arrange appointment for assessment and to participate in any intake assessment;

   2.2The parties shall comply with all reasonable rules of Q Group;

   2.3The parties shall comply with all reasonable requests or directions of Q Group;

   2.4The father shall deliver the child to and collect the child from the place nominated by Q Group at the commencement and conclusion of time;

   2.5The parties will share the costs of the supervision.

3. With the consent of the mother and without admissions by her of knowledge of any wrongdoing by her partner Mr F, the mother is restrained pursuant to s 68B(1)(a) of the Family Law Act 1975 from permitting the child M born … 2010 to be brought into contact with or have communication of any kind with Mr F born … 1981.

4. That Orders 5, 6 and 7 of orders made by consent on 11 November 2016 (repeated below) are suspended:

   (5)The child will spend time with the mother as follows, or as otherwise agreed in writing:

   5.1During school terms, on the first, fourth, seventh and ninth weekend of such terms from 5.00 pm Friday until 5.00 pm Sunday provided always that the time will be extended to include any pupil free day, staff development day or public holiday that falls either immediately before or after the weekend time commences or concludes, this order to become operative at the commencement of 2017;

   5.2For the Mother’s Day weekend from 5.00 pm Friday to 5.00 pm Sunday provided that in the event that it is not already a weekend when the child is spending time with the mother, this weekend shall be in substitution for the next weekend during which the child would otherwise be spending time with the mother;

   5.3For the entirety of the term 2 school holiday period commencing at 5.00 pm on the last day of the school term and concluding at 5.00 pm two days prior to the child’s first day of school attendance in the new school term;

   5.4For the second half of the term 1 and term 3 school holiday periods from 5.00 pm on the Friday of the first week of the school holiday period until 5.00 pm on the day immediately prior to the commencement of the child’s first day of school attendance in the new school term;

   5.5For half of the term 4 Christmas school holiday periods being:

   5.5.1From 5.00 pm on 16 December 2016 to 5.00 pm on 23 December 2016 and from 5.00 pm on 10 January 2017 to 5.00 pm on 30 January 2017;

   5.5.2Thereafter, for the first half in odd numbered years from 5.00 pm on the last day of the school term until 5.00 pm on the mid-point day of the school holiday period and the second half in even numbered years from 5.00 pm on the mid-point day of the school holiday period until 5.00 pm on the day immediately prior to the first day the child is to commence school in the new school term.

   (6)Notwithstanding any other order above the child is to live with the father:

   6.1For the first half of the term 1 and term 3 school holiday periods from 5.00 pm on the last day of the school term until 5.00 pm on the first Friday of the school holiday period;

   6.2For half of the term 4 Christmas school holiday periods being:

   6.2.1From 5.00 pm on 23 December 2016 to 5.00 pm on 10 January 2016 and from 5.00 pm on 30 January 2016 to the commencement of the new school term;

   6.2.2Thereafter, for the first half in even numbered years from 5.00 pm on the last day of the school term until 5.00 pm on the mid-point day of the school holiday periods and the second half in odd numbered years from 5.00 pm on the mid-point day of the school holiday periods until 5.00 pm on the day immediately prior to the first day the child is to commence school in the new school term;

   6.2.3For the Father’s Day weekend from 5.00 pm Friday to 5.00 pm Sunday provided that if the child would otherwise be spending time with the mother then the mother shall spend time with the child on the weekend before the Father’s Day weekend from 5.00 pm Friday to 5.00 pm Sunday.

   (7)For the purpose of implementing Order 5 hereof:

   In the event of the father residing in Town U

   7.1The father shall cause the delivery and the mother shall cause the collection of the child at the commencement of time spent with the mother at Town G; and

   7.2The mother shall cause the delivery and the father shall cause the collection of the child at the conclusion of time spent with the mother at Town G;

   In the event of the father residing in Newcastle

   7.3The father shall cause the delivery and the mother shall cause the collection of the child at the commencement of time spent with the mother at Town H McDonalds; and

   7.4The mother shall cause the delivery and the father shall cause the collection of the child at the conclusion of time spent with the mother at Town H McDonalds.

5. That the Independent Children’s Lawyer meet with the child at a mutually convenient time for these orders to be explained both as to their content and the fact that they are made pending further order.

6. The Registrar of the Family Court shall provide a copy of these orders and reasons to the Department of Communities and Justice, reference Child Abuse Unit.

The Court notes that

(A)The substantive proceedings will be listed for mention in the next Magellan List and a separate order will be made to that effect.

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 Ridley & Ridley 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: NCC2245/2012

Mr Ridley

Applicant

And

Ms Ridley

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is a dispute between two parents over variation of parenting orders in respect of one child M, aged nine and a half years.

2. The competing applications came before me as an urgent short matter in the Magellan List on 2 September 2019.

3. The father, Mr Ridley (aged 32 years) is the applicant in the substantive proceedings.  The child lives with him and has done so for almost four years. 

4. By his Application filed 19 July 2019 the father seeks interim parenting orders which would vary current arrangements for time between the child and the mother.  He proposed complete suspension of the time between the child and the mother if the Court considered it appropriate, but if not, supervised in the Newcastle area where the child lives.  The father did not wish to suspend twice weekly telephone contact.

5. The mother, Ms Ridley (aged 33 years) is the respondent in the substantive application.

6. By her Response filed 19 August 2019, the mother sought orders, both on a final and interim basis, that she be granted sole parental responsibility for the child, that there be a change of residence and defined time for the child to spend with the father.

7. Ultimately, those interim orders were not pursued.

8. A Minute of Order was tendered at the hearing.[1]  The proposal in that Minute was for the current pattern of time between the mother and the child to continue, that is four weekends per school term and defined school holiday time. The difference would be that the periods of time would take place in the home of the maternal grandparents in Town J (on the North Coast of NSW).  The changeover point would be at Town K.

   [1] Exhibit 3

9. The mother also proposed, without admissions, that she be restrained from permitting her partner Mr F (aged 38 years) from having any contact with the subject child.

10. Mr F is the father of the mother’s three younger children, aged four years, two years and four months.

Evidence

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

   The applicant father

   (a)Interim Orders, Part B contained in his Initiating Application filed 19/07/2019;

   (b)Affidavit of the father filed 19/07/2019;

   The respondent mother

   (c)Minute of Order dated 2/09/2019 which superseded the interim orders contained in her Response filed 19/08/2019;[2]

   (d)Affidavit of the mother filed 19/08/2019;

   (e)Affidavit of Mr F filed 19/08/2019;

   Reports

   (f)Magellan Report dated 28/08/2019;

   (g)Historical Family Report dated 13/10/2016 by Family Consultant Ms L.

Brief History of Relevant Events

[2] Exhibit 3

History of relationship

1. The parties began living together in 2003, both then aged about 16 years.  They married six years later in 2009.  The subject child was born in 2010.  In 2011 when the child was 20 months old, the parties separated.  They were divorced in 2013.  Since then, each party has re-partnered.

2. The mother’s partner is Mr F.  They began living together in 2012 and have now had three children together.  The mother’s household is on a farm property at Town M near Town N in North-West NSW.

3. The father’s partner is Ms R (aged 32 years).  They began living together in 2014 and have had two children together.  The father’s household is in Newcastle.

Short history of litigation

1. Final orders were made on 11 November 2016 by consent (“the 2016 orders”).  There had been prior sets of orders as follows:

   ·Final orders 12 December 2014, undefended by the mother on that occasion:

   -child to live with the mother and spend defined time with the father;

   ·Final orders by consent 5 June 2015:

   -child to live with the mother and spend defined time with the father;

   ·Interim orders 13 November 2015:

   -child to live with the father (child has lived with the father since then);

   ·Interim orders 10 December 2015:

   -child to live with the father and spend supervised time with the mother;

   ·Final consent orders 11 November 2016:

   -parties to have equal shared parental responsibility, child to live with the father, time with mother on four weekends per school term, half school holidays, other special times and orders for telephone communication.

2. Now another round of litigation has commenced.  The current application by the father is in response to his becoming aware of an investigation by the Child Abuse Unit (“CAU”) [formerly JIRT] in relation to the mother’s partner Mr F and an allegation of sexual and physical assaults by him on a child.  The child in question is Mr F’s oldest child, a boy aged almost 13, from a prior relationship.

3. The father reports that on 5 July 2019 he received a telephone call from the Joint Child Protection Response Unit. As he was unavailable to take the call at the time, they left a message on his answering machine which he returned once he heard the message. There was a telephone conference where the father asserts that the following words were said:[3]

   We are calling to advise you that there is currently an investigation under way involving Ms Ridley’s partner Mr F and an allegation of a child being sexually assaulted by him.  The allegations are serious allegations and we are calling you as we have some concerns for M, knowing that M has contact with Mr F.

   [3] Father’s affidavit filed 19/07/2019, par 33

4. The subject child was due to spend holiday time with her mother, commencing on that day.  The father was unable to contact his solicitor, did not wish to breach the orders and to use his own words “reluctantly sent M to spend time with Ms Ridley.”[4]

   [4] Father’s affidavit filed 19/07/2019, par 37

5. On the following Monday, 8 July 2019, the father contacted the Joint Child Protection Response Unit team again and reports that he was told:[5]

   I am not the officer in charge of this matter, that officer is Josh Arnold but he is not in today. What I can advise you though is that there has been a disclosure made by a child, not M, that Mr F has sexually assaulted a child.  At this stage it is a serious allegation and there is mothing to say that it didn’t happen.  We have interviewed the child and the child is concerned about having Mr F charged so it is unlikely that he will be charged but that does not mean that the incident did not happen or action won’t be taken in the future.

   [5] Father’s affidavit filed 19/07/2019, par 38

6. The father stated his position clearly that what he was told in the conversations set out above does not represent the only concern that he holds for the child, but it was the reason for filing the current application.

Historical incident

1. In February 2017 both parents were required to meet with Family and Community Services (now Department of Communities and Justice) (“the Department”) in Town U, where they were then living.  The interview occurred as a result of mandatory reports being made to Family and Community Services, as it was then known, in relation to Mr F “grooming and/or sexually abusing M”.  The child was interviewed and no disclosures were made.[6]

   [6] Father’s affidavit filed 19/07/2019, pars 40-42

2. The father decided on balance that although he was concerned that there could be something to be concerned about, no disclosure had been made by the child and he did not think there was sufficient information to suspend the time that M was having with her mother.

3. I take that decision making of the father in 2017 into account in concluding that the father was indeed genuinely prompted to make a fresh application based on what he had been told by CAU about the sexual assault allegation.

4. The evidence of the mother’s partner Mr F is that he was contacted by Family and Community Services, on 5 August 2019 which included the following exchange:[7]

   [7] Affidavit of Mr F filed 19/08/2019, par 38

   …

   Ms Z:Are you aware that [name of the father’s eldest child] has made allegations of sexual and physical child abuse against you?

   Mr F:No, I’m not.

   Mr Z:Would you like to make a comment?

   Mr F:No, thank you.

   Mr Z:No worries Mr F, that is totally your right not to comment.  If you were to make a comment we are letting you know that it will be recorded.  I would just like to make you aware that our investigations have been noted on your file and may appear on a Working with Children police check in the future.  However, you won’t have a criminal record or anything like because of this investigation.

   Mr F:Ok no worries.

   …

5. Records from the Department provide detailed information of alleged historical assaults by Mr F on a child or children of his, including physical assaults and an alleged sexual assault on his eldest child, S.

6. The eldest child has been interviewed by the Child Assessment Team of CAU. Allegations made by the child, if established, would represent criminal conduct.

7. The officer in charge of the CAU interview reported that the child’s level of disclosure was very detailed and in the opinion of the officer, that his disclosure was creditable.[8]

   [8] Exhibits 4 and 5

8. There is a large number of documents produced and the investigation is ongoing.

9. There is also evidence of S being presently in the care of the community. The anger, aggression and destructive behaviour of S has meant that his mother has been unable to continue to care for him at home.  S appears to be in a state of rage as well as having experienced suicidal thoughts.  He has, in past years, been supervised by Child and Adolescent Mental Health Service on that account.

10. S and his younger brother, T, have had no time or communication with Mr F since May 2016 when Mr F and the boys’ mother consented to orders to that effect.

The Law

Primary considerations

1. In this complex situation, the Court must proceed to determine what is in the best interests of the subject child in accordance with s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”), whether:

   a)There is a meaningful relationship between the subject child and her mother; and

   b)There is a need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.

2. In balancing the weight of those two things, meaningful relationships and the need for protection, greater weight must be given to the consideration of safety (s 60CC(2A) of the Act).

3. Because this an interim matter and the investigation is ongoing, what is being balanced is a credible allegation of past sexual assault, made by a child who is a child of the mother’s partner, against the need to preserve the relationship between the subject child and the mother. The context for the considerations to be balanced is a child well settled in the father’s household, who very much enjoys seeing her mother and is missing her.

4. The proposal of the mother handed up as Exhibit 3 on the morning of the trial was a clear sighted and well advised attempt to contend with those competing considerations; the possible risk of harm - physical and sexual through contact with the mother’s partner; and likely risk of harm – emotional through lack of contact with her mother.

5. The mother proposed that the child spend time with her pursuant to the orders made on 11 November 2016, that is, for weekends and holidays but in the home of her parents. The mother also expressed her willingness to be restrained from allowing the child to come in contact with her partner. The idea no doubt was to ensure safety for the child without conceding risk. 

1. The proposal does not in my view achieve that aim.

2. There was no evidence from the maternal grandparents. To have any prospects of success, evidence from the maternal grandparents themselves was necessary.

3. The Court, therefore, is uninformed on the following matters:

   ·the knowledge of each of the maternal grandparents that their home was to be used for that purpose and their willingness for that to happen;

   ·the intention of the maternal grandparents or either of them to be present during the nominated periods of time, especially as an extended holiday period of 16 days was proposed for the end of Term 3;

   ·the knowledge of each of them as to the reason why such visits were being proposed and also the fact that the mother had offered to be restrained from allowing the child to come into contact with her partner;

   ·the willingness or otherwise of either of them to terminate a visit and protect the child if Mr F did attend at the home or attempt to make contact with the child during any period of time she was with the mother; and

   ·the state of the relationship between the maternal grandparents and the father or their relationship with the mother.

4. There is no certainty that had such evidence been available the mother’s proposal would have prevailed.

5. A secondary consideration was that the proposed changeover point was Town K.

6. This township is about one and a half hours drive from Newcastle, an hour drive from the home of the maternal grandparents in Town J, and more than four hours from the mother’s home in Town M.

7. The father would have no way of knowing who would be transporting the child and who would be present in the home of the maternal grandparents during visits.

Additional considerations

1. The view of the child at all times has been that she wants to see her mother as often as possible. 

2. There have been findings made in the past (see Ridley & Ridley [2015] FamCA 1032) that the mother may have knowingly or unknowingly aligned the child, aggravating her distress at changeovers.

3. One concern of the father is that because there has been so much historical tension for the child and so much competing for her affection that the child might not tell him if she was concerned about Mr F in any respect for fear of losing the ability to spend time with her mother.[9]

   [9] Family Report dated 13 October 2016, par 65

4. The likely effect of the changeover proposed by the father is that the child will be very disappointed at a reduction in time with her mother. Supervised daytime contact is a pale shadow of being able to spend a whole weekend on a three week rotating cycle. For that reason it will be important for the child to have, not only the content of the orders explained to her by the Independent Children’s Lawyer (“the ICL”), but also the fact that they are not a permanent change and that it is too soon to know what final arrangements will be.

Any other fact or circumstance that the Court thinks is relevant (s 60CC(3)(m) of the Act)

Mr F

1. Mr F provided an affidavit. When he began living with the mother in September 2012, Mr F had been separated from his wife for about four years.  His two children of that marriage, S then aged almost six and T aged four, spent time with him intermittently. The subject child, then aged two and a half, lived full time in the household.

2. In his affidavit Mr F stated that during 2014 and leading up to 2015, S would swear at him on the telephone, calling him things such as “idiot”, “stupid” and “dumb”.[10]

   [10] Affidavit of Mr F filed 19/08/2019, par 13

3. Mr F says further that throughout 2015 S’s behaviour worsened, becoming uncontrollable and volatile.[11] He asserts that Child and Adolescent Mental Health Service was engaged for treatment of S’s mental health and S was prescribed medication, “which I understand was used to treat bi-polar disorder and schizophrenia”. That may be the case but none of the evidence before the Court on an interim basis refers to S being diagnosed with those illnesses, or him being prescribed anti-psychotic medication or any other medication.

   [11] Affidavit of Mr F filed 19/08/2019, par 16

4. On 20 June 2015, S went on a camping trip with his father (Mr F), the mother and the subject child.[12] S is reported to have asked if he could live with his father. By agreement between Mr F and S’s mother, S then lived with Mr F and the mother for the fourth term of the 2015 school year as a trial.[13] He also spent some time in the following Christmas school holiday period in 2015/16.

   [12] Affidavit of Mr F filed 19/08/2019, pars 18-20

   [13] Affidavit of Mr F filed 19/08/2019, par 23

5. The untested evidence of Mr F is that he and S’s mother agreed that S would continue to live with Mr F but that she then reneged on that agreement, withheld S and enrolled him at a school in her area.

6. On 29 January 2016, Mr F filed an application in the Federal Circuit Court of Australia for sole parental responsibility and residence of both the children. He asserts that in about February 2016 S spent the weekend with him and the mother, and all went well with “no sign of S being upset”.[14]

   [14] Affidavit of Mr F filed 19/08/2019, par 25

7. On 7 March 2016, Mr F says he received notification that his firearms licence had been suspended because there was an interim Apprehended Violence Order (“AVO”) against him. At the police station where he went to make inquiries about this development, Mr F learned that S had made allegations of physical abuse against him.

8. Paragraph 29 of Mr F’s affidavit reads as follows:

   I attended at Town Y Local Court for a brief mention and the matter was adjourned to approximately April 2016.  I cannot recall the date that I attended Town Y Local Court on this occasion.  In April 2016 I again attended Town Y Local Court and was legally represented.  My solicitor negotiated with the prosecutor and [S’s mother’s] solicitors that if I discontinued my family law proceedings and relinquished my rights to see the boys they would drop the charges and the AVO against me.  As a result of the conversations that were had I formed the view that while I could still proceed with my family law application and even if I was successful, due to Ms W’s attitude and vindictiveness she would likely find another opportunity to march S down to the police station and make false allegations against me.  I was under the impression that the boys had been alienated from me to such extent that forcing a relationship with them would only place more pressure on S and T and was not likely to help anyone.

9. Paragraph 30 of his affidavit reads as follows:

   On 5 May 2016 Ms W and I entered into final orders by consent that provided for Ms W to have sole parental responsibility of S and T and for the boys to live with her.

10. This evidence is difficult to unpack and will no doubt be the subject of cross-examination if the matter proceeds to trial.

11. The fact that Mr F and his former wife had agreed for a trial of a whole school term for S with his father, with some Christmas holiday time and one further weekend in February, does not sit comfortably with vindictiveness and alienation.

12. What is apparent is that whatever his concerns about the conduct of his former wife as a parent, Mr F was prepared to relinquish his relationship with the children on the basis that the AVO would be discharged.

The mother

1. The mother relied on police records to support submissions made that allegations of abusive conduct by Mr F’s eldest child, S, had been made in the past without substantiation or adverse consequences for Mr F.

2. The Court was directed to paragraph 37 of the Family Report, prepared in October 2016; where there is reference to S attending the police station on 15 February 2016, shortly after the last weekend he spent with his father, making very serious allegations of physical abuse for him for the past three years and ongoing,

   …The last incident was 12 February 2016, PINOP [S] stated that the defendant kicked him up the bottom numerous times and was told he deserved it.  PINOP stated he had been punched in the nose about 15 times in his life, been choked 3 times, kicked up the bottom, bashed his head into a glass door and had his arm jammed in the door, all by the defendant [Mr F].

   The PINOP stated to police that the defendant would state “you deserve that S” after assaulting the PINOP.”  He told police that his brother was refusing to visit their father due to the violent behaviour towards him.  It was in that context that the consent orders were made for the father to have no further time with the two children.

   (Original emphasis)

3. The focus of the mother through submissions was on the wild, uncontained behaviour of S, particularly in 2019. Exhibit 2 has many instances of such behaviour. 

4. On 11 February 2019, S was scheduled after domestic destruction in his mother’s home and hitting his mother with a stick.[15]

   [15] Exhibit 2, M31

5. On 4 March 2019, S was at the Child and Adolescent Mental Health Service seeking help.

6. On 7 March 2019, there was a violent incident where police were called to S’s school; they scheduled him to provide the benefit of a mental health assessment rather than being charged for an offence.[16]

   [16] Exhibit 2, M11

7. On 17 March 2019, S was on day release from the Child and Adolescent Mental Health Service when on an outing, jumped onto the road and said he would prefer to be dead rather than go home with his mother.  At that time, S’s older half-brother had been killed in a car crash and the child was clearly affected.[17]

   [17] Exhibit 2, M30

8. By April 2019, S had been given a provisional ADVO for his swearing, abuse, biting, kicking, punching and picking up a knife at home.[18]

   [18] Exhibit 2, M5 and M9

9. On 3 July 2019, S attended the Local Court and his conditional bail for was continued. He made his allegation of sexual abuse of him by his father at around this time. Through August, S’s behaviour continued to be violent and aggressive and uncontained; on one occasion he spat on and bit the hand of a care worker when his demand were not met.[19]

   [19] Exhibit 2, M4

10. The possibility exists that there is an explanation for the conduct of S which is completely unrelated to any conduct by Mr F. However the possibility also exists that the behaviour displayed by the child during 2019, in particular, is related to past conduct towards him by Mr F.

11. Where the evidence cannot be fully understood at this stage and no witnesses have been tested, the only path is a cautious path. If Mr F was abusive in the past, in the manner alleged, the subject child would clearly be at risk in his household.

The subject child

1. The subject child started at a new school this year in January. She complained about her father, “…he won’t let me go to my mum’s so he’s just doing what he wants and making me sad.”[20]

   [20] Exhibit 1, M21

2. In May 2019, the child started the Seasons for Growth program at school – a program for children of separated families. There is evidence of her feeling sad and angry through June as she participated in the program.

3. After the telephone call from the CAU on 5 July 2019 the father made the child available for a weekend with unease. He, thereafter, ceased face to face contact for the child with the mother.

4. By August 2019, the child was revealing at school that she was angry about not being able to see her mother anymore and clearly did not understand why, “Dad doesn’t care about me.”

5. On 6 August 2019 she was described in her last session of Seasons for Growth as “bubbly and happy”.

6. On 13 August 2019 there was a meeting between Department workers and the child at her school.

7. The parties and their lawyers present in the court room for this hearing were uncertain about the nature of this meeting. However, there is a reference in the Department’s records which suggested to the ICL that this may have been a follow up interview with all relevant persons associated with Mr F following on from S’s disclosures.[21]

   [21] Exhibit 1, M15

8. On 22 August 2019 there was an incident at school where the subject thought other students were staring at her and that one child was pointing and laughing:[22]

   [The child] picked up a laptop and raised it above her head to throw at [a child].  She stopped herself and knew it was a bad idea.  She said she felt really angry, she wanted to let the other children know that she is going through lots of things at home at the moment.

   [22] Exhibit 1, M14

Conclusion

1. It is apparent that the father has a legitimate basis for concern and has acted on it.  It is not at all certain what has happened to the subject child in the mother’s household, if anything, nor whether any further step will be taken as the investigation proceeds in relation to Mr F and his older children.  Records from NSW Police[23] suggest that at least the form of some charges against Mr F have been contemplated.

   [23] Exhibit 6

2. The child is undoubtedly distressed that her time with her mother has stopped. It was predictable that she would be. It is to the credit of the father that the child does not know the reason.

3. The ICL supports the application for supervised time to take place despite the child’s distress and I accept her views and share them.

4. Unhappy as the child might be, she does have a stable relationship with her father, his partner and the two infant children who are members of that household. 

5. Whilst she may remain unhappy about it, she can be helped to explain that for the time being the changes are to keep her safe.

6. Accordingly, orders will be made largely in accordance with the proposal of the father.

Sensitive material produced by NSW Police

1. Material from NSW Police was released for inspection by lawyers for the parties on 2 September 2019, on the morning when this case was heard.

2. Tendered into evidence was a document titled “Sensitive Alternate Assessment Decision Report (41 pages)”. Within that document was a reference to a restraint on FACS speaking with the Mr F in these proceedings “as this may affect any future investigation/strategies by police for this matter”. On the basis of that material, Mr F, was thereafter not present in the court room and the mother voluntarily entered a restraint on reading the material that has been produced.  That particular situation is already covered by the fact that the release of those documents was to lawyers only subject to further application.

3. The allegations raised in the Sensitive Report have NOT been put on the record orally during the hearing, or in these reasons. 

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 September 2019.

Associate: 

Date:  6 September 2019