SB & PB
[2006] FMCAfam 72
•23 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SB & PB | [2006] FMCAfam 72 |
| FAMILY LAW – Contested residence – 10 year old intellectually challenged child – mother alleges sexual abuse by father and child’s brother – brother resides with father – child progressing well at special school – father unable to maintain child at her school if residence changes – increased contact ordered. |
| Applicant: | SB |
| Respondent: | PB |
| File Number: | BRM1846 of 2005 |
| Judgment of: | Baumann FM |
| Hearing dates: | 8, 9 and 22 December 2005 |
| Delivered at: | Brisbane |
| Delivered on: | 23 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Byrne |
| Solicitors for the Applicant: | Brown & Baker Lawyers |
| Counsel for the Respondent: | Mr Howard |
| Solicitors for the Respondent: | Francis & Binnie Lawyers |
| Counsel for the Child Representative: | Mr Cameron |
| Solicitors for the Child Representative: | G Couper Solicitor |
ORDERS
That all previous Orders be discharged.
That the child H born 3 January, live with the Mother.
That each parent have the responsibility for the day to day care, welfare and development of the child during periods when the child is in their respective care.
The mother and father be jointly responsible for the long term care welfare and development of the child.
The father have contact with the child at all reasonable times agreed upon but not less than:
(a)Two weekends out of every three weekends commencing Friday 24th February, 2006 from 5.00 pm Friday to commencement of school on Monday.
(b)The Mother will deliver the child at the commencement of the contact weekend to KFC at Redbank Plaza for changeover at 5.00pm, provided that the parties shall not at the time of changeover engage in any adult conflict, physical or verbal harassment and will remain 20 metres apart from each other.
(c)The Father will deliver the child to school at the conclusion of the contact period.
(d)In the event that the contact weekend falls on a long weekend including a Monday, then contact shall be extended to before school on Tuesday;
(e)In the event that any contact weekend falls on a long weekend including a Friday then contact shall commence on the Thursday by the Mother delivering the child as referred to in Order 1(b).
(f)The Father will not have contact on the weekend which includes Mother’s day but in substitution the Father will exercise contact on the next following non-contact weekend in lieu.
(g)The Father will have the child on the weekend which includes Father’s day but should that weekend not be a contact weekend then in substitution the Father will not have the child on the following weekend.
(h)For one half of Queensland school holidays – the Father to exercise the first half of the school holidays in 2006 and even years, and the second half of the school holidays in 2007 and odd years;
(i)From 5pm Christmas Eve to 12 noon Christmas Day in 2006 and each alternate year thereafter, and from 12 noon Christmas Day to 5pm Boxing Day in 2007 each alternate year thereafter;
(j)telephone contact on the Child’s birthday between 6pm and 7pm.
(k)Telephone contact each Wednesday night between 6pm and 7pm.
That the Mother will keep the child at her current school, unless a change of school is mutually agreed with the Father.
That the Mother and the Father will keep each other informed of a landline contact telephone number and mobile number, and inform the other of any change within 48 hours of such change occurring.
That the parties will keep each other informed as soon as practicable as to any significant health related issues concerning the child.
This order operates as an authority for the Father to have the right to discuss and to have input into matters, and to access all files concerning the child directly with the child’s medical practitioner, hospital, school, and to receive information directly from those medical practitioners, schoolteachers or hospitals concerning the child’s health or medical treatment, and in connection with the school the child’s progress, wellbeing and education.
The Mother shall within 48 hours of being informed of the child paediatrician appointed for the child at Logan Hospital, to provide the Father with the name of the paediatrician, in writing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM1846 of 2005
| SB |
Applicant
And
| PB |
Respondent
REASONS FOR JUDGMENT
H has just had her 10th birthday. She is intellectually impaired and has lived her whole life with the mother, the respondent, PB, the parents having separated prior to her birth. H has a brother, M, aged 15, who now lives with the applicant father, SB, having done so since consent orders were made in that regard in April 2002. T (aged 5) is a sibling of a later relationship, who lives with the mother.
This family have been engulfed by litigation in the Family Court for many years. The parents do no effectively communicate. As I detail below, serious allegations of parental neglect and abuse are levelled one against the other. The father says the time has come where it is in H's best interest that she be removed from the mother's primary care and placed in his care. The mother strongly opposes that course. This is the issue I am required to decide.
Principals
I am guided in the exercise of my discretion by the objects of section 60B of the Family Law Act which provides that unless it is contrary to the best interests of the child, the child is entitled to ongoing contact to all of those people significant to their care, welfare, and development so as to enable them to reach their true potential. When determining what is the best interests of the child (such issue being the paramount consideration), the Court must have regard to the relevant factors set out in section 68F(2) of the Act.
Evidence
The father relied on his own evidence and that of his girlfriend, R, and T's father, G. The mother relied on her own evidence and that of her niece, S and her sister, SW. Thankfully, both parents were legally represented and by competent counsel, Mr Howard, for the mother; and Mr Byrne, for the father.
Mr Cameron of Counsel, appeared for the child representative and called evidence from experienced social worker, Valma Johnson, who prepared a family report on this family (the third report over the history of this, and previous litigation) and a report was also relied upon from
Dr John Chalk, a consultant psychiatrist. Importantly, oral evidence from Mr IE, the head of Special Education Services at H's current school, was also offered to the Court.
I should acknowledge the assistance I drew from the effective cross-examination of counsel and their considered submissions. I am conscious of the need for me to examine the competing proposals within the matrix of the relevant section 68F(2) factors. Before I do so, I choose to deal with some of the areas of factual disputes which arise from the evidence, in no particular order of priority.
H
The child bounds with energy and exuberance. She has been assessed as having a level 6 impairment and scholastically has delays in most academic areas. She also has suffered the effects of epilepsy. She exhibits confronting behaviour and historically, this has involved overly sexualised acts and comments. The material from all witnesses is filled with observations in this regard.
It seems from Mr E's evidence that although these actions have been observed at school (not apparently unusual for children of this character and intellectual challenge), the events recorded at school are not as frequent or recent as the mother, in particular, suggests is happening outside of school.
Both parents are equally troubled by this behaviour. And whilst both try to distract her or admonish her so as to correct/modify her behaviour, the mother has formed the view that the behaviour stems from things happening in the father's home. As I determine in a little more detail later in these reasons, I do not accept that to be the case.
I give credit to the father in identifying and persisting with a plan to have H independently assessed and, ultimately, prescribed medication to assist her capacity to concentrate and remain focused on tasks. There is no doubt that this added impetus to her school improvement and general behaviour – having a calming affect at times. It is the true that the mother resisted these initial investigations – preferring to accept rigidly the advice of H's long term paediatrician, Dr D.
Whilst I can be mildly critical of her attitude initially, she now accepts that the diagnosis and treatment provides benefits for H. Wherever H lives she will prove to be 'a handful' - she is a child who exhibits great affection; highs and lows of behaviour; and needs attentive supervision.
The evidence I received does not assist me in predicting how, over the coming years, she may change - if at all. I did not have any paediatric evidence in this regard. For example, I am unsure on the evidence as to how well she may integrate with other community activities such as sport. I do not know whether, as she approaches menstruation, her own apparent interest in sexual matters is likely to present some further or new challenges.
Mother's household and demeanour
The mother, herself, attended a special school and presents as being in the low range of intellect. She is a vulnerable lady with a limited capacity for self reflection. She has demonstrated capacity to tend to the day to day physical tasks of keeping a tidy home and caring for the child, and also T. She attends at H's school regularly, and is recognised as an active supporter in that environment by the teachers. She follows medical advice "to the letter" and regularly calls upon, and is happy to receive advice, guidance, and assistance from a range of community organisations, including the Department of Family Services; Bravehearts; and the Department of Community Health.
The mother has a regular visitor at her home now (to support her) although evidence of who that is and what role they play is sketchy. She has recently completed a Triple P parenting course to improve her understanding of the parenting role. She has support from her family, who are well aware of her vulnerability and help her in many ways.
I would not regard her attention to the physical needs of H as lacking.
It is the emotional and social needs of this high maintenance and “difficult to handle girl” which presents the greatest challenge for this mother and presents to me as the most troubling aspect of her parenting. Both Dr Chalk and Valma Johnson detected from their observations (coupled with proclivity for complaining to the Department) that she has a "preoccupation with matters of sexual abuse".
Dr Chalk opines that this preoccupation does not "have a delusional basis but rather stems from a belief that she needs to keep children's fathers out of their lives. Certainly, I do not think that she has a mental illness that would submit to any treatment, and I am of the view that her problems arise because of personality issues in the dependant and submissive spectrum." I accept this opinion.
Whilst I understand how difficult it would be for this mother, confronted as she has been with highly sexualised behaviour demonstrated by H and also stories told by the child, her insistence that she still thinks the father; the brother, M; and the father's girlfriend, R, have all sexually abused H, when investigations by the department, JAB, and a SCAN team do not support that view, exhibits a rigid preoccupation.
I also take into account that the mother raises other complaints of sexual misconduct by the father and a teenage son of
Mr H. There is a haunting similarity, in what I regard as exaggerated or simply untruthful reports by the mother. She also lacks any real insight into the reasons for the breakdown of her relationship with M. As Ms Johnson's report records, M had asked to be excused from seeing his mother during the assessment.
The mother conveys that M has "turned into a violent unresponsive lad because of his father's influence." She seems prepared to accept any allegation which reflects poorly on the child, and whilst the evidence does not establish that she was the person who complained to the department about Myles allegedly doing "sexual things with the guinea pig" - the preparedness to accept that it probably happened is concerning.
At this point I should note, at least, that I regarded the father's actions, in effect, in telling M that it was the mother who had made the complaint, as opportunistic and quite wrong. He seemed to accept, under cross-examination, that he could have handled that issue a lot better. Consistent with the whole of the evidence, Ms Johnson says, the mother "has need of externalising the cause of all conflict, that is it is always someone else's fault."
Father's household and demeanour
The father lives with M; works locally part-time as a motor mechanic three days; and draws support from his girlfriend, R. They do not live together - but do live close and have almost daily interaction. I was impressed by R, a single mother, who seems to have managed the responsibilities of raising teenagers with some accomplishment. She struck me as a mature, insightful, and well adjusted parent who shared the father's appreciation of some of the difficulties H presents in management and does possess the skills to make a positive contribution.
The father was far less inclined to exaggerate than was the mother. He has clearly been hurt by the allegations raised by the mother, not only about alleged sexual abuse, but also of extensive domestic violence during the relationship many years ago. I regard the father as a much more accurate historian than was the mother.
He seems to be acutely aware of the challenges that would be presented by H living with him saying, "we have to watch her". The father suffers from depression, for which he has been medicated since 1994. He is conscious of the level of conflict which has been played out in the past between M and H, and sometimes he has to act as a "referee". I sense he does minimise that conflict. The evidence from the mother's sister and niece reveal some intolerance shown by the brother for H.
H, clearly, demands a lot of attention. And I hold some concerns about how M may react to having to "share" his father in the household with her when he has been living with the father, solely, since 2002 at least. I think it likely M has demeaned H (calling her a "retard") on occasions and, although, the father says M is keeping "a positive attitude", to the possibility and he is prepared "to give it a go" I hold some reservations about M's interaction with H if she were to live with the father.
Furthermore, the level of negativity which the father and M hold, particularly for the mother, makes it difficult for me to accept they could mask those feelings from the child, should she live with them. This is also a concern to be weighed with other factors.
H's schooling
H has flourished in the educational environment offered by the teaching staff at the Special Education Unit at her school. An Individual Education Plan has been developed to assist her continued emotional and educational growth and is designed to help her develop the skills to move seamlessly into secondary school (in three years time) and to develop life skills.
The evidence of Mr E is compelling and although his description on the effect of the change of schooling for H as being "devastating" might be a little dramatic. I do not ignore that this probably also reflects the strong emotional commitment, which has developed between H and her teachers.
This educational environment provides enormous support for her. In this regard, I adopt as accurate the written submissions of Mr Howard about the evidence given to the Court by Mr E and the effect of that evidence.
The father proposes H attend a different school’s, Special Education Unit. Ms Johnson says she has confidence in the capacity of the different schools (and Education Queensland generally) to offer a similar level of support to H. A foundation for this confidence expressed by Ms Johnson was not offered. I would have expected to have evidence from the proposed new school to demonstrate the facilities and capacity to provide for the special needs of H. An awareness of her history would, it seems to me, be critical to maintaining her steady progress. I did not receive that evidence.
I do not know how she would cope with having to establish a connection with new teachers and peers. It will be a school environment totally unfamiliar to her. Change is not something that she copes with well. The uncertainties of the effect on H of the change of schools are a very strong concern which I must weigh up when considering a change of residence.
Allegations of sexual abuse
Although the Department of Families document (exhibit 3) reveals of a history of involvement with the Department going back to 1998, the recent notification that H was the subject of sexual abuse in the home of the father, at the hands of the father, M, and R, are the most relevant. I acknowledge that any parent of a child like H, who was exhibiting constant, consistent, and grossly inappropriate sexualised behaviour would be concerned.
I do not, as the father generously conceded, criticise the mother for reporting to authorities what H has allegedly said to her about. Essentially she said the brother had placed his "willie" up her "bum" (as reported by the Crime Report of 2004). It was determined this allegedly occurred on the weekend of 14 and 15 February 2004. When questioned further by police and when unable to provide details the Crime Report referred to, records that:
“The complainant child was unable to provide any details as to where this occurred nor any details of how it actually happened. And any other questions were answered vaguely. At this time the reporting officer clarified the complainant child's version and spoke to the complainant child about truth and lies. Upon doing so, the complainant child stood up, laughed and stated 'I was just tricking you'. The reporting officer clarified with the child what she was 'tricking' police about, during which the child stated that it didn't happen at all and she was just 'mucking' around with police. She could not provide any other reason for making the complaint up other than just for a 'bit of fun'.”
I have evidence that H can be highly manipulative. Nothing in the evidence would support a finding that the mother assisted the child or coached the child to make these disclosures. I have carefully considered the whole of the department files; the other records from Education Queensland; Queensland Police; SCAN reports; and the notes of Ms McG (who was not called to give evidence but is a social worker attached with Queensland Health in the local area).
I am satisfied that the child, H, is not at risk of sexual abuse at the hands of her father, her brother, M, or R. I cannot determine conclusively why the child has acted as she has. The evidence suggests she has been exposed to:-
a)nudity in her mother's home;
b)her mother bathing;
c)some, at least, cuddling between the father and R in the father's home.
I cannot discount the possibility of her being exposed to sexual exhibitions (external to the parents' households). She, like all children, are exposed daily to TV and other forms of media and advertising, some of which, has sexual references or suggestions. This child seems particularly prone to be influenced by all things around her of a remotely sexual nature (asking people on the bus or the local tradesmen "to have sex" with her, being glaring examples).
The issue which I have to take into consideration, is that the mother's preoccupation with the view that sexual abuse has occurred in the father's household may mean, that outside the school environment when she is the principal supervisor for H she may be less likely to be aware and attuned to the other possible dangers which might confront this little girl.
Certainly, whilst the mother's attitude seems to be highly protective, the father appears to me to be more balanced in his assessment of the risks confronting this child, from those influences.
In this regard, it is appropriate to note that the mother unilaterally ceased contact (between the child and the father) from approximately January 2005 until my order of 16 May 2005, where I ordered that contact resume immediately. Part of the issues at that stage included alleged physical abuse by the father against the child and/or M. I do not accept that such abuse occurred.
Having heard the evidence now, and notwithstanding the advice of
Ms McG, given on 9 March 2005 that:
“To ensure her safety a clear investigation should be undertaken about the situation before H be allowed back into his environment, the mother's actions continued for too long in representing my view a failure to place the child's best interests first.”
For a lady like the mother, the advice given by Ms McG, without the benefit of any discussions with the father or apparent referral to the long history with the Department of Families was seen by the mother as a vindication of her distorted perceptions. She acted on them immediately. I have little doubt she would cease contact in the future if she was able to find a person in authority who gave her the impression that she was doing "the right thing". She would grab such a view as a justification she would be keen to take - as identified by Dr Chalk.
Section 68F(2) factors
I have above dealt with most of the relevant sections 68F(2) factors above. The child has not expressed any wishes and in any event, even if she had, they could not be given definitive weight. There is some suggestion in the report of Ms Johnson that she preferred to try living with the father.
I have identified the relationships that are important to H and are intact. She is a much loved child. I have identified the issues which concern me about the capacity and attitude to parenting in the respective households and the psychological risks which arise from that evidence. The two major issues of significance which, ultimately, guide the decision I will make are:-
a)the effect of change; and
b)the need to make an order less likely to lead to further proceedings.
The effect of change
As Mr Cameron submitted when indicating the child representative was unable to make a firm recommendation in this difficult and finely balanced case, there are factors both "for and against" the change of residence, namely:
Against a change of residence:-
a)the child has always lived with the mother and her sister, T. The mother's attention to her physical needs and support for her schooling is both consistent and admirable. A longstanding status quo currently exists;
b)a significant risk arises as to whether and how H will cope with a change of school. I accept the evidence of Mr E that there is likely to be significant effect - possibly long term on H. Also H would not, in a new school, have the consistent support of her mother at the school - a combination of distance and the father taking a more dominant role after residence changes. The father is less available because of his part time work, to be at school, than the mother currently is;
c)the relationship between H and T will be more difficult to maintain. The evidence suggests H enjoys the role of "big sister" although she, at times, gets annoyed with T's attention. H's relationship with M is, on the evidence a troubled one. Not surprisingly, she annoys him at times. Considering H (although 10 years of age chronologically) is immature for her age, M is at a quite different developmental stage of his life. Much more of the father's attention will be available in time (as M get older and looks to complete his secondary education), to give to the child, H, if the child is to live with him;
d)notwithstanding interruptions to contact and the mother's preoccupation with sexual abuse, it is clear that the father's relationship with H is still intact and securely bonded. Notwithstanding the mother's allegations, there does not appear to have been any evidence of active alienation. Certainly, I am concerned, as I have already noted that the mother ceased contact.
In favour of a change of residence:-
a)the detailed report of Ms Johnson recommends a change of residency. I do not ignore such a view. Ms Johnson has had the advantage of seeing the child. It is worth noting, however, after all the evidence was received (particularly that of Mr E), that the child representative did not make a recommendation either way.
b)the child will be in the care of a parent who appears to function better than the mother. Although, during the week (particularly when working) he may call on the assistance of R, his weekends appear to be free. I did not recall any significant evidence as to what occupies M's attention on weekends. Consistent with the needs of most teenage boys, it is likely, he will spend some of his time with peers (he goes to the local school) and in the general community. The mother demonstrated even in the confines of the interview process and the observations of Ms Johnson, some difficulties in controlling H's behaviour, I believe that the father would be better able to do so;
c)the mother's fear of sexual abuse in the father's home remains. There is nothing in these reasons I could say which would make the mother feel more comfortable in that regard. Even though I found on the evidence H is not at risk of abuse (either physically or sexual) in the father's care, I could not discount the mother interrupting contact again. The effect of such interruption between January and May 2005 is difficult to assess. In some respects the lack of impact suggests H just accepted the fact and got on with her normal school life. It is reasonable to assume as H gets older she is likely to become more aware of any cessation, if it were to occur again. It would clearly, be contrary to her best interests to do so.
Making an order less likely to lead to further proceedings
In this matter I considered whether making an interim order was appropriate so that the effect on H of a change of schooling (if residence changed) or the likely further compliance by the mother with any contact order (if residence did not change) could be assessed. Ultimately, I decided not to do so. These parents have been involved in continual litigation and an end to litigation is necessary for the child.
I do not intend, however, to discharge the child representative until a period of 12 months from my order has elapsed.
Conclusion
This is a matter which gave me some torment. I have had to reflect, therefore, a little longer than I would normally. It is a finely balanced matter and as I have already indicated there are many matters both for and against a change of residence. However, when I weighed up all the evidence, I have come to the view that H should continue to reside with the mother, but have increased contact to the father. I propose that to be two out of three weekends.
This offers on the current evidence available to me, the best solution for H in that:-
a)it maintains her current schooling arrangements which have, clearly, met her needs and have been attuned to those needs;
b)it provides the father and M a greater opportunity to interact with H - the majority of the time being outside school hours - when she is likely to require the most attention;
c)it gives the mother a break from H's demands - allowing her to improve her personal functioning and have some time to herself (especially when T is also at her father's home).
It would preferable, in my view, if the father each weekend, when exercising contact, could collect the child from school on a Friday, and return the child to school on the Monday (or the Tuesday if Monday was a public holiday). I will hear submissions from the parties as to whether the distance between the father's home, his work commitments, and H's school makes that difficult or less than optimal.
The other attraction to this regime would be that it would give the father an opportunity to interact at some time, either on Friday afternoon or the beginning of a school week, with H’s school teachers, and become more aware of the types of things which they are doing at that school and which he can do at home when the child is in his care to support the child's further development and education. The usual specific issues orders should apply.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: L Parke
Date: 7 March 2006
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