Roda and Roda

[2010] FamCA 177

FAMILY COURT OF AUSTRALIA

RODA & RODA [2010] FamCA 177

FAMILY LAW – CHILDREN – Engagement of expert reporters

APPLICANT: Ms Roda

RESPONDENT: Mr Roda

FILE NUMBER: SYC 2084 of 2007

DATE DELIVERED: 17 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 17 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bateman

SOLICITOR FOR THE APPLICANT: Brazel Moore Lawyers

COUNSEL FOR THE RESPONDENT: Mr Gersbach

SOLICITOR FOR THE RESPONDENT: Taperell Rutledge

Orders

1. That the mother is permitted to engage such expert as she chooses for the purpose of the said expert producing a report relating to the incident that the wife refers to and relies upon in her affidavit filed 25 January 2010.

2. That the mother is to file the report referred to in Order 1 under cover of an affidavit on which the wife has leave to rely upon in the substantive proceedings on or before 5pm 31 March 2010.

3. That the father is permitted to engage such expert as she chooses for the purpose of the said expert producing a report relating to the incident that the wife refers to and relies upon in her affidavit filed 25 January 2010.

4. That the father is to file the report referred to in Order 3 under cover of an affidavit on which the father has leave to rely upon in the substantive proceedings on or before 5pm 14 April 2010.

5. That Order 5 of the Orders made 15 January 2008 is hereby discharged after the expiration of 14 days in the event that the mother does not make an application to resurrect the proceedings instituted to prevent the husband’s de facto partner having contact with the children provided that within 14 days of today she files and serves an affidavit explaining the two year delay in prosecuting the said application.

6. That costs are reserved.

7. That leave is granted to the legal representatives of the parties to approach the associate to Justice Cohen have the substantive proceedings relisted.

8. It is declared that in discharging Order 5 of the Orders made 17 January 2008 there is no intention to restore Order 7 made 2 May 2007 into operation.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2084 of 2007

MS RODA

Applicant

And

MR RODA

Respondent

REASONS FOR JUDGMENT

1. In these proceedings, the wife sought that her application in the case, which was filed on 25 January 2010, be heard urgently because of the serious issue involved.  Her application in case relates to the contact that one of the parties’ children, A, born in January 2004, and therefore aged six, should have with a child of the husband’s de facto wife, that child being C, who was born in August 2002, and is therefore seven and a half years old.

2. In 2007 in May, Warnick J made orders that the three children of the parties, T, who is aged now about 11, R, who is about nine, and A should live with the wife and have contact with the husband.  That contact which was ordered was to be during school term on half in number of the weekends that fall during term, on an extra weekday night, either fortnightly or once a week - and it does not matter which - during school time, and for half the school holidays, and on special occasions.

3. His Honour, in making those orders, also ordered that, for as long as the father spends time with the children or any of them, he was to be present.  The allegation that the wife made is that there is something wrong with the ability of the husband’s de facto wife to care for the parties’ children because of her involvement with either alcohol or drugs or both.  I am saying this from my recollection of my dealings with the case in the past rather than from the affidavit which is now before me.

4. The matter came before on 17 January 2008.  On that day I discharged order 7; that is, the order made by Warnick J. relating to the father having to be with the children at all times when they were in his care.  In its place I made an order which allowed the father to make such arrangements as he saw fit for the period while the children were in his care, but required him to ensure that if his de facto wife was to be with the children or was with the children, some other adult would also have to be present.

5. In 2008, a family consultant saw the parents and children for the purpose of providing a family report.  After having seen A, the family consultant told the parties that A had told her that C had kept pulling her pants down and kissing her bottom.  The family consultant could not have felt that this was a matter of any moment because she did not mention that in her report.  As a result of being told, the wife enquired about A who, at the time, was only about four years old. She simply told the wife that C and herself had been playing mummy and daddy games.

6. The mother discussed this with the father, whose profession is working with children, and no more was done, as might be expected.  However, in mid-November 2009, the mother received a telephone call from the parties’ oldest child, T.  T told her that A had told him that she and C had been doing “naughty things.”  He also told the wife that she should speak to R, who knows more about what had been happening. On the first opportunity the wife had, she spoke to R who said that when the children were on holidays with their father, he felt he must be dreaming but had seen A and C going into the bedroom and getting under some sheets and playing mums and dads and kissing and hugging “and things”, whatever that might mean.

7. Why R felt he was dreaming when such ordinary childhood play was being described is a matter of some concern about R’s sexualisation of ordinary childhood play.  Much the same concerns might be expressed about T’s reaction too.  R, however, went on to tell the wife that because it was too hot, he went to A’s bedroom to sleep.  He found that A was not there and he went into C’s bedroom.  There he saw A, who was dressed up for play, and, as he described it, “pulling her lady bits and showing [C]”.  Presumably he was referring to her external genitalia. 

8. R then told his mother that he had told T and T asked C whether he had been touching A, presumably in a sexual way, as if C would know what that meant.  C at the time was aged seven.  C said, “Yes, I’ve seen inside your sister but don’t tell”.  As one can tell, C knew it was naughty.  The real character of what had been happening is disclosed when the wife asked A what had been going on.  A said “[C] said that if I did not show him, he would take my jellybeans”.  When the wife complained to the husband, he was dismissive and aggressive toward her and critical of her complaints.

9. I am not commenting on the level of the aggression of the husband, but one might not find difficulty in understanding that he might have been dismissive of these complaints, especially because he is a professional who works with children.  And one might understand that he might have been somewhat aggressive about them, although there was no excuse.  The wife, as a result of that, unilaterally decided to prevent A from being alone or being in the same home as C and told the husband that if he would not undertake to ensure that C was not in the same home as A, she would not allow A to see him according to the orders.

10. In fact, since then, the mother has allowed the father to see A outside the house on approximately 13 occasions for three or four hours at a time and on one occasion, when it was known that C was not going to be at home, the wife allowed A to stay with the husband overnight.  There has been no obstruction of the other children seeing the husband.  The wife now seeks to restrain the husband from allowing A to come within 50 metres of C, even though C lives in his home, and further seeks that the court appoint an expert to report on what she says she fears is sexual abuse.

11. Not only has the mother had the opportunity to have the reaction of the family consultant to this type of play, she has had the opportunity to have the reaction from two other sources to it.  She referred the matter to DOCS and DOCS has done nothing. She was undergoing, with the husband, mediation with a mediator, and the mediator was informed or had the opportunity to be informed.  The mediator was from the Family Relationships Centre.  She approached the mediator for advice about what to do in the light of what transpired.  There is no suggestion that the mediator took exception to what she was told or did anything about it.

12. The wife took it upon herself to end contact with the father over what she must have regarded as a serious matter involving sexual abuse, and therefore, risk to the physical and/or psychological welfare of A.  I have no expertise in the field, apart from the common understanding that any other ordinary member of the community might have.  But I do know what communal views are likely to be and what happens with children of these ages, as any adult who have been around such children would know.  It is that children like to be naughty.  They like to do things that they would characterise by use of the word “rude”, because they think it’s naughty and fun, but in children of the ages of C and A, it could not be said to be sexualised behaviour.

13. It is extraordinarily common for children to pull other children’s pants down.  Children do think it is fun to see other children’s genitalia or show their own to other children of these ages, but what they do is a far cry from damaging, sexualised behaviour.  One only can wonder which children have not been exposed to this sort of naughtiness in play.  As for playing mothers and fathers, my understanding is that that is one of the most common games that children play, and one would be very worried if children did not play that game.  It has no sexual element.  However, the mother saw it as sexual, and one might be disturbed by that and her suitability as a parent in those circumstances.

14. In addition to this, she took it upon herself to ignore the orders of the Court when she could have simply gone to her GP, obtained a referral to a child psychiatrist or even another paediatrician or could have gone to a clinical psychologist specialising in childhood behaviour, or any one of the number of institutions that provide services by way of advice to parents who seek it, rather than assume it was sexualised behaviour and stop the proper contact.  But she did not do that, and this Court is entitled to ask why.

15. Now she seeks to have the children interviewed by a psychiatrist.  In my view, it would be inappropriate in the circumstances to do so.  There is no reason why the wife cannot provide her affidavit to a psychiatrist, paediatrician or psychologist of her choosing in order to seek advice, and if she is able to get a favourable report to her cause, obtain an evidentiary report.  In that event, the husband should be entitled to obtain an expert report, if he can do so, which contradicts any evidence which might suit the mother’s case.

16. I am not prepared to appoint an expert as a Court Expert because I do not want to be party to further suggestions that the children’s behaviour is of a sexual nature or so seriously wrong, rather than naughty, that a psychiatrist or somebody of that ilk should see the children.  It is simply not true to think that children of six or seven would not understand what is happening. A, in particular, has two older brothers who would, and they would have little difficulty in being able to, tell her.  Nor am I of the view that I should make any orders altering the contact regime that the father has with A, that contact regime being set by Warnick J in 2007 except that the order that he made about an adult being present at all times was changed by me on 17 January 2008.

17. The husband now asks that I discharge that order of 17 January 2008, that is, order 5, because that order was made in a situation where a series of orders was made which were for the purpose of permitting the mother to proceed with an application to prevent the husband’s de facto wife from having contact with the children.  She has done nothing since January 2008 to advance that application and the husband now seeks that I discharge order 5.  As this application was made orally to me today without notice to the wife, the wife’s counsel rightly complained that she has not had proper instructions and is not in a position to know what she might say or should say or whether it should be opposed.

18. It is my view that, prima facie, the failure of the wife to do anything to prevent the husband’s de facto wife from having contact with the children for two years speaks for itself. In those circumstances, order 5. that I made on 17 January 2008 ought to be discharged.  However, I am not prepared to discharge it today.  I am prepared to discharge it by order today after the expiration of 14 days in the event that the wife does not make an application to continue her pursuit of preventing the husband’s de facto wife from having contact with the children and provided she, by affidavit, explains the two year delay.

19. What I propose to do is to order that order 5 be discharged after the expiration of 14 days from today in the event that no application is made by the wife to resurrect the proceedings relating to the husband’s de facto wife’s contact with the children and provided the wife files an affidavit explaining the two year delay.  I should warn the wife that I am doing this with costs in mind, that if the wife does resurrect the proceedings and does not satisfactorily explain the delay or subsequently fails in the proceedings, I shall seriously consider an order for costs against the wife in relation to them.

20. The Court should take a stance that people can not simply manipulate the court processes to suit themselves, and what seems to have happened by the Court’s acceptance of the wife’s wish in January 2008 to proceed with this application and her failure to do so does appear to be a manipulation of the court processes to suit herself.  I should add that in the event that order 5 is discharged, it will not resurrect order 7. made by Warnick J on 7 May 2007.  But to be absolutely certain, I shall declare today that that order has been discharged and shall not be, by the discharge of order 5. made on 17 January 2008, resurrected.

21. The only other thing that I should say is that I reserve costs and that it should be clear now to the wife, in view of my refusal to make any orders in relation to actual contact between the husband and A, and C and A, that the orders that exist for contact and were made by Warnick J as to the times of contact are still effective and that she should comply with them, and if she does not, she shall suffer the consequences.  I shall make orders accordingly.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              1 April 2010