Simpson & Anor and Clarke & Ors
[2014] FamCA 764
•5 September 2014
FAMILY COURT OF AUSTRALIA
| SIMPSON AND ANOR & CLARKE AND ORS | [2014] FamCA 764 |
| FAMILY LAW – CHILDREN – Risk – Whether sexual abuse or unacceptable risk are made out – Where the mother alleges the child has been sexually abused by the maternal grandfather – Where the mother alleges the maternal grandfather sexually abused her as a child – With whom the child lives – With whom the child spends time – Where the child lived with the applicants in early childhood – Parental responsibility |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 64C, 65AA, 65DAA, 65DAB. |
| B & B (1993) FLC 92-357 Donnell & Dovey (2010) 42 Fam LR 559 M v M (1988) 166 CLR 69 McCall & Clark (2009) 41 Fam LR 483 N & S (1996) FLC 92-655 Napier & Hepburn (2007) 36 Fam LR 395 Vigano & Desmond (2012) 47 Fam LR 552 Whitman & Burr [2011] FamCA 199 |
| 1ST APPLICANT: | Mr Simpson |
| 2ND APPLICANT: | Ms Simpson |
| 1ST RESPONDENT: | Ms Clarke |
| 2ND RESPONDENT: | Mr M Clarke |
| 3RD RESPONDENT: | Mr Clarke |
| INDEPENDENT CHILDREN’S LAWYER: | C M Bint Family Lawyers |
| FILE NUMBER: | BRC | 4979 | of | 2011 |
| DATE DELIVERED: | 5 September 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 4 to 8,11 & 12 February 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANTS: | Mr Alexander of Counsel |
| SOLICITOR FOR THE APPLICANTS: | East Coast Lawyers |
| FOR THE 1ST RESPONDENT: | Ms Clarke in person |
| FOR THE 2ND RESPONDENT: | No appearance |
| FOR THE 3RD RESPONDENT: | Mr Clarke in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | C M Bint Family Lawyers |
ORDERS
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
All previous parenting orders are discharged.
L, born … 2001 (“the child”) live with the First and Second Applicants (“the maternal grandparents”).
The maternal grandparents, acting jointly or individually, have sole parental responsibility for the major long term issues for the child with such issues to include but not be limited to:
(a) the child’s education;
(b) the child’s religious and cultural upbringing; and
(c) the child’s health.
Except in the event of an emergency involving the child, the maternal grandparents, or either of them, shall consult with the mother about decisions to be made in the exercise of their sole parental responsibility as follows:
(a)the maternal grandparents shall inform the mother in writing about the issue about which a decision needs to be made, the decision that it is preferred be made in respect of such issue and the reasons for that proposed decision;
(b)the maternal grandparents shall give the mother 14 days to respond;
(c)the maternal grandparents shall consider the mother’s views/response when coming to a decision;
(d)the maternal grandparents will inform the mother of the final decision made with respect to that issue as soon as practicable after the decision is made.
The child spend time and communicate with the mother at all times as may be agreed between the parties in writing and failing agreement:
(a)each alternate weekend, supervised at the C Contact Centre or such other Centre as may be agreed between the parties;
(b)by telephone each Friday, or such other day as may be agreed between the parties in writing, between 6.00pm and 6.30pm, or such other time as may be agreed between the parties in writing with the maternal grandparents to use their best endeavours to ensure the child initiate the call at the appropriate time.
Should the maternal grandparents, or either of them, consider that the mother or Mr Clarke are discussing matters not suitable for the child or upsetting to him, they are at liberty to terminate the telephone communication.
The child shall spend time and communicate with Mr Clarke during the time he is communicating and spending time with the mother.
The mother and Mr Clarke are at liberty to send cards or gifts to the child via the maternal grandparents and, provided the card or gift is age appropriate and does not contain any communication which would breach the terms of this Order, the maternal grandparents shall provide the card or gift to the child.
The maternal grandparents and the mother shall:
(a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within 48 hours of such change;
(b)notify the other at least twenty-one (21) days prior to relocating their residence;
(c)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child;
(d)inform the other as soon as is reasonably practicable of any serious medical condition, significant health issue or illness suffered by the child;
(e)keep the other informed of any school, educational facility or extra-curricular activity provider attended by the child.
Any school attended by the child is hereby authorised to provide to the mother, at her request and cost, all information about the child’s educational progress and school related activities.
The maternal grandparents, or either of them, shall, within 28 days of receiving the same, provide the mother with a copy of any school report in relation to the child.
No party denigrate any other, their partners or their family to, or in front of, or within the hearing of, the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of, the child and, failing the third parties’ compliance with such a direction, each party shall remove the child from that environment immediately.
During the time the child is with any party, the parties shall:
(a)respect the privacy of the other party and not question the child unduly about the personal life of the other party;
(b)speak of the other party respectfully; and
(c)not denigrate or insult the other party or the party’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other party or the party’s family in the hearing or presence of the child.
The mother and Mr Clarke are restrained and an injunction issue restraining them from discussing the proceedings or the issue of the allegations of sexual abuse or future living arrangements with the child.
The maternal grandparents, or either of them, have liberty to provide a copy of this Order and the Reasons for Judgment to any counsellor upon whom the child attends.
The maternal grandparents, or either of them, have liberty to remove the child from the Commonwealth of Australia for the purpose of holiday travel.
The maternal grandparents or either of them shall provide the mother with written notice of their intention to remove the child from the Commonwealth of Australia no less than 60 days prior to any date on which it is intended that he depart from the Commonwealth of Australia.
No less than 60 days prior to the date on which the child is removed from the Commonwealth of Australia, the maternal grandparents or either of them shall provide the mother with a written itinerary containing contact details for the child whilst overseas.
Unless agreed between the parties in writing or occurring as a result of school related travel, any time the child travels overseas shall occur during school holiday periods and shall be no longer than one month in duration.
The operation of Clause (5) of this Order shall be suspended during any time the child is overseas and any time the child would otherwise have spent with the mother and Mr Clarke pursuant to Clause (5) shall be made up as soon as can reasonably be facilitated by the Contact Centre following the child’s return to Australia.
The maternal grandparents, or either of them, have liberty to obtain a passport for the child and, to the extent necessary, the mother is to sign and return any document required for this purpose within seven (7) days of receiving a request to do so.
In the event that the mother fails to comply with a request to sign and return any document necessary to obtain a passport for the child, a Registrar of the Family Court of Australia is appointed, pursuant to section 106A of the Family Law Act 1975 (Cth), to sign such document or documents in the name of the mother and to do all acts and things necessary to enable a passport to be obtained for the child.
The Independent Children’s Lawyer is discharged.
All extant applications are
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson and Anor & Clarke and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC4947 of 2011
| Mr Simpson and Ms Simpson |
1st and 2nd Applicants
And
| Ms Clarke and Mr Clarke |
1st and 3rd Respondent
And
| Mr M Clarke |
2nd Respondent
REASONS FOR JUDGMENT
These proceedings concern L (“the child”) who was born in 2001. On 28 July 2011, a Consent Order provided that he live with the maternal grandparents (“the grandparents”) and spend weekly time, supervised by the grandmother, with the mother. In November 2011, the Principal Registrar ordered that his time with the mother occur at a Contact Centre.
The child started spending time with the mother on a fortnightly basis at the Contact Centre on 14 January 2012. This is the regime which persists today.
The child’s mother and Mr Clarke, the Third Respondent - who is not the child’s biological parent and who has not adopted him - married in February 2010. The child’s biological father, the Second Respondent, has not been involved in the child’s life, nor has he participated in these proceedings.
The maternal grandfather has been diagnosed with cancer. As at the date of trial, his prognosis depended upon his response to chemotherapy. At that time, he remained relatively well and continued to participate significantly in meeting the child’s day to day needs.
I accept that, in the event of the maternal grandfather’s death, the maternal grandmother, who was employed in an education role for young children for 30 years prior to her retirement, will be well equipped to continue to care for the child. I accept she is more than capable of meeting the child’s day to day needs and of fulfilling his need for emotional support - as she has done for significant periods since his birth.
Such conclusion is well supported by the fact that the maternal grandmother has already demonstrated this capacity to care for the child without the maternal grandfather’s assistance in the period during which the maternal grandfather left their joint home in order to prevent the Department of Community Services (Child Safety) (“the Department”) from acting to take the child into its care.
Even without this demonstration of capacity, I have no hesitation at all in concluding that the maternal grandmother is more than capable of caring for the child and meeting or causing to be met, all of his physical, emotional or social needs without the assistance and support of the maternal grandfather.
Applicable Principles
In these proceedings, subject to s 61DA of the Family Law Act 1975 (Cth) (“the Act”) which obliges the Court to have regard to equal shared responsibility, and the considerations which then follow, I may make such parenting order as I think proper: s 65DAB of the Act. I must have regard to the Objects of Part VII of the Act and the Principles which underpin those Objects: s 60B of the Act. The paramount consideration when making parenting orders is the child’s best interests: s 60CA and s 65AA of the Act.
This case involves parenting proposals by a ‘parent’ (the mother) and ‘non-parents’ (the grandparents and Mr Clarke). In Donnell & Dovey[1] the Full Court considered the manner in which Part VII of the Act is to be applied in such a situation.
[1] (2010) 42 Fam LR 559.
I consider that the following relevant binding principles emerge:
a)‘parent’ means a biological or adoptive parent and does not include a person who stands in loco parentis to a child[2] – hence, neither the grandparents nor Mr Clarke are ‘parents’ for the purpose of Part VII of the Act;
[2]Ibid at [92].
b)sections 60B(1) and (2) of the Act maintain a distinction between a ‘parent’ and a ‘non-parent’ as the Objects expressed in s 60B(1)(a), (c) and (d) and the Principles expressed in s 60B(2)(a), (c) and (d) specifically refer only to “parents” (or parenting)[3];
[3] Ibid at [121]-[122].
c)there being no distinction between parents and non-parents in s 60CA of the Act, a child’s best interests remain the paramount consideration in deciding whether to make a particular parenting order regardless of ‘the biological (or other) connection of the child to the parties to the proceedings’[4];
[4] Donnell & Dovey (2010) 42 Fam LR 559, [79] - [80].
d)sections 64B(2) and 64C of the Act permit a parenting order, which includes an order for parental responsibility, to be made in favour of a non-parent as well as a ‘parent’ and an order can be made for a non-parent to share parental responsibility with another person[5];
[5] Ibid at [82] - [83].
e)in the absence of an order of the Court which allocates parental responsibility for a child, or a parenting plan, only the ‘parents’ of a child have parental responsibility in relation to that child[6];
f)the presumption of equal shared parental responsibility prescribed by s 61DA of the Act and considerations of equal or significant and substantial time prescribed by s 65DAA of the Act are not ‘prescribed pathways in the reasoning process towards a best interests conclusion’[7];
g)section 65DAA of the Act has no application in circumstances where an order is made for a parent to share parental responsibility with a person who is not a parent[8];
h)section 60CC of the Act on its face maintains clear distinctions between a ‘parent’ and a non-parent such that:
i)section 60CC(2)(a) has no application to a person who is not a parent and any consideration of the benefit to a child of having a meaningful relationship with a non-parent is not a primary consideration;
ii)the additional consideration in s 60CC(3)(e) of the Act does not apply to proceedings between a parent and non-parent.
i)whilst the benefit to a child of the maintenance of a meaningful relationship with a non-parent can never be a ‘primary consideration’, this does not, of itself, mean that it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a ‘parent’[9];
j)where the subject matter of a consideration which refers only to a ‘parent’ is relevant to a non-parent, consideration of the same can occur pursuant to s 60CC(3)(m) of the Act.[10]
[6] Ibid at [81] - [83].
[7] Ibid at [86], [121]-[122].
[8] Ibid at [84] - [86].
[9] Ibid at [101] - [102].
[10] Ibid at [99].
What Orders are sought and why?
The grandparents seek an order that the child live primarily with them and that, whilst he can receive gifts and/or cards on his birthday and at Christmas time, the Court impose a moratorium over his time with the mother and Mr Clarke for a period of four months. They seek that, after the expiration of this period, the child’s time with the mother continue on a supervised basis. They also seek that the child’s time with the mother not include Mr Clarke. In addition, they wish to be able to take the child overseas for holidays on occasion.
In broad summary, the grandparents submit that such an outcome would be in the child’s best interests because:
a)they are the parties who will provide him with greater stability and consistency of care given the mother’s mental health issues and the alleged drug use and misuse by both the mother and Mr Clarke; and
b)the mother has previously threatened harm to the child; and
c)the mother is likely to expose the child to her belief – described by them as ‘delusional’ – that she has been sexually abused by the grandfather with the likely consequence that he may suffer emotional harm and damage; and
d)if the child spends unsupervised time with the mother and Mr Clarke, it is likely he will be influenced to believe, falsely, that he has been sexually abused by the grandfather and will, thereby, be likely to suffer emotional harm.
The mother, supported by Mr Clarke in both the orders sought and the presentation of the case, submits that it is in the child’s best interests to live with her and spend only supervised time with the grandparents for at least three months or so. After this, he would continue to see the grandparents, but his time with the grandfather would be supervised by the grandmother.
The mother seeks that Mr Clarke is involved in the child’s life as long as he continues to take only medication that is prescribed for him and follows a regime outlined by appropriate medical practitioners. She seeks to remain the primary decision-maker for the child but says that, if her health deteriorates, then, on the proviso that Mr Clarke is compliant with the regime she outlines in her proposal, he would step in whilst she was unwell.
The mother also said that, if the child was living with her and he wanted to, he could spend time with the grandparents on, potentially, three days per week.
In broad summary, the mother maintains her position because she asserts the child will be at an unacceptable risk of sexual abuse if he remains living with, or spending unsupervised time with, the grandparents. She says she is the party best able to meet the child’s physical and emotional needs.
Mr Clarke believes that, irrespective of the findings made by the Court in relation to the allegations of sexual abuse, the child should live with the mother. He is supportive of the mother’s case and wishes to spend time with the child and be involved in his life.
Matters relevant to an assessment of the parties’ credit
Given the delay which has attended the finalisation of this matter – for which I sincerely apologise to the parties - I have had particular regard to the contemporaneous notes taken by me during the hearing. I have, of course, revisited and reread these notes and the affidavit material, the exhibits and the various reports prepared by persons with professional expertise for the Court’s assistance whilst finalising the preparation of these Reasons.
I have concluded that I must approach the mother’s evidence with particular caution. I arrive at this conclusion having taken into account the following:
a)the mother told Dr K, her treating psychiatrist, on 24 May 2011 that the grandfather had been charged with molesting the child – this is untrue;
b)the mother did not tell Dr K that the July 2011 Order was made by consent but allowed him to continue to believe that it had been made against her wishes and without her agreement – this is untrue;
c)the mother did not tell Dr K that, in July 2011, she had agreed to the child living with the grandparents;
d)the mother and Mr Clarke initially told Dr K that charges were “pending” against the grandparents and then, subsequently, said that all charges had been “dropped” - this is untrue because the grandfather was never charged and so no charges could have been “dropped”;
e)both the mother and Mr Clarke told the Court they had separated under the one roof. However, it is clear that Dr K, who provided them with some marital counselling, proceeded on the basis they continued to be in a “couple” relationship. His understanding was that the relationship counselling he provided ceased because the parties were “no longer fighting” and not because they had separated;
f)the mother denied to Dr A, on 24 August 2011, that she had ever made threats to harm the child - however, subpoenaed hospital notes referred to by Dr A record that, during earlier admissions, the mother told nurses that she wanted to “fucking kill the baby, was afraid of hurting the baby and could not understand why he was crying, what is his fucking problem?”
Further, I do not accept the mother’s evidence that she was ‘pretty sure’ she had told Dr K that the police did not press charges against the maternal grandfather.
In addition, during her cross-examination, the mother said that, in the event her health deteriorated (as it had at the time prior to her admission to D Psychiatric Hospital in 2011), she had offers from two different sets of parents who would be prepared to look after the child if Mr Clarke could not. This was initially conveyed as though these people were readily available to assist if needed. However, when asked to detail when she had spoken to these people about their availability to care for the child in such circumstance, it became apparent the mother had probably spoken to them about 18 months – two years earlier. She then said that “more recently” she had spoken to another couple who said it would be okay for the child to stay with them depending on what was happening in their lives. When asked to explain why she had not asked these people to provide affidavits, she said this was an oversight. She later referred to being able to ask an aunt to assist but it became apparent she had also not spoken with her to see whether this could occur. I consider this provides an example of the mother’s willingness to misrepresent the true position and to say things which she thought would assist her case.
I have also concluded that I must approach Mr Clarke’s evidence with particular caution. I arrive at this conclusion having taken into account the matters outlined in paragraph [19 (d)] and [19 (e)] and his involvement in what I have concluded was a deception of Dr K about the nature and state of his relationship with the mother.
Mr Clarke said it was his understanding that he and the mother had separated in mid to late 2010. He explained the reference in notes for July 2011 - which record him referring to the mother as his “partner” - by saying that they still refer to each other as husband and wife. He said the medical practitioners knew that the parties may be together and that the reference to “causing a problem” and “our relationship” could be explained by accepting his evidence that he is still in a relationship with the mother because she is his best friend. I do not accept his evidence about, and explanation for, the contents of the notes.
In concluding that Mr Clarke has demonstrated a capacity to be untruthful I have also taken into account that:
a)when he attended at the E Health Service, from which the Metropolitan South Health Service District Alcohol Tobacco and Other Drugs operated, the medical practitioner who saw him recorded he claimed ignorance about Endone and OxyContin even though records clearly showed that he and the mother had been prescribed these drugs in the past;[11] and
b)when, having noted significant “track marks” (injection trails) over Mr Clarke’s arms and hands, the doctor asked him about them, he told her they were the consequence of nursing staff at the hospital “butchering” his veins when he was there several months previously: given I accept the medical opinion that the appearance of Mr Clarke’s veins on that occasion was not consistent with venous catherisation, that the marks were of more recent origin than several months old and that they are distinctive for intravenous drug administration, I conclude that he lied to the medical practitioner on presentation.
[11] Exhibit ICL1, page 230.
I found the grandparents to be careful and honest witnesses who gave their evidence in a considered manner. Save for a matter which will be discussed in further detail below, the grandfather was consistent in his recounting to those who have prepared reports to assist the Court. The grandmother was, I consider, consistent in the information she provided to the authors of such reports. Unless I otherwise indicate, I accept the evidence given by the grandparents. Where the evidence of the grandparents conflicts with that given by the mother and Mr Clarke, I prefer the evidence of the grandparents.
Details of the child’s living arrangements prior to the July 2011 Consent Order
After his birth, the child and the mother initially lived with the grandparents. The mother, who over the years has been diagnosed with a number of mental health conditions – the ‘labelling’ of which matters little at this stage – was then diagnosed as suffering from post-natal depression. She was admitted to hospital in about July 2002 and diagnosed as suffering from anxiety, depression, sleep deprivation and some suicidal/self-harming ideation.
The consequence for the child of the mother’s mental health issues, which included occasions on which she expressed suicidal ideation, was that, from no later than about July 2002 until the end of 2008, he received significant care from the grandparents during the occasions when, as a consequence of her own mental health issues, the mother was admitted to hospital.
I consider that, until at least the end of 2008, the child’s parenting was very much a ‘team effort’ with the mother and the grandparents working together, within their shared living arrangements, to care for him. Within this ‘team’ approach, the mother was supported by the grandparents who provided significant care, stability, certainty and predictability for the child during her absences from him due to her own ill-health.
In addition to the care provided to the child by the grandparents at their home, the child also spent time with them at places geographically distant from the mother. I accept that the child spent time with them at Town F from about September 2007 until about November 2007. I also accept this happened after the mother asked them to care for the child and suggested that, if they did not, he would have to go into foster care. I also accept that the child spent time with the grandparents in Western Australia from about the end of July 2008 until about early September 2008. This time occurred after the mother again sought their help in caring for him.
I find that, toward the end of 2008, the mother’s then treating psychiatrist, Dr G, recommended she move to live independently of the grandparents and that, in order to maximise her prospects of achieving this transition successfully, the child remain living with them and spend time with her.
I do not accept the mother’s account that she and the child were separated at this time as a result of the grandparents’ decision to “chuck” her out of their home in order to retain the child. I accept that all parties acted on the advice of the treating psychiatrist and that the grandparents did so with the intention of supporting the mother in her move toward independent living. Such conclusion is consistent with the unchallenged evidence that, prior to the end of 2008, the grandparents had acted consistently to support the mother, both in her care of the child and personally, throughout her periods of ill-health.
As a result of the matters outlined above, the child remained living with the grandparents from about November 2008 until 6 December 2009. During this period they were his primary care providers.
In the period from December 2008 until about April 2009, the Mother spent some time living at a women’s shelter. During this period, by agreement, the child spent time with her during the day. In early 2009, whilst she was living at the women’s shelter, the mother met Mr Clarke at a church for homeless people. In May 2009, they moved to live together in accommodation at Suburb H in Brisbane.
I accept the grandmother’s evidence that, from May 2009 until about August 2009, the parties agreed to the child spending overnight weekend time in the care of the mother and Mr Clarke.
I accept the grandmother’s evidence that, on 4 August 2009, the mother told her she was not in a ‘good place’ and that the child should spend time with her only during the day - rather than the one overnight per week which had been occurring.
On 17 August 2009, the grandmother collected the mother and took her to see Dr G. Such action can only be considered as supportive of the mother and a demonstration of the grandmother’s concern for the mother’s functioning. The mother was admitted to hospital on 18 August 2009 under the care of Dr K (who replaced Dr G and who has continued as her treating psychiatrist). She was discharged on 13 September 2009 and, with Dr K’s support, began to ask that the child return to live with her.
Shortly before the grandparents returned the child to the mother’s primary care, Dr K advised them that he considered her to be capable of caring for him. Whilst holding reservations about this opinion, the grandparents accepted this assessment and returned the child to the mother’s primary care on 6 December 2009. This action is a further demonstration of their continued support of the mother as the child’s parent and, I consider, rebuts the mother’s assertion that they are, or have been, motivated to ‘steal’ the child away from her.
The child then spent time with the grandparents after school, when they assisted with his homework, on weekends and during school holidays. I accept the grandparents’ evidence[12] that the child spent overnight time with them from early 2010 until May 2011 and that he was significantly in their care during this period.[13]
[12]Affidavit of the maternal grandmother filed 29 June 2012, paragraphs 41 & 143 to 151; Affidavit of the maternal grandfather filed 29 June 2012, paragraph 36 & 72 to 76.
[13] Affidavit of the maternal grandfather filed 29 June 2012, paragraph 36
In about August 2010, the mother alleged, as is discussed in more detail below, that the child had been sexually abused by the grandfather. I accept the grandparents’ evidence that, despite the mother’s asserted concerns that the child may be at risk in their care, he spent time with them from August 2010 until February 2011 in the manner and at the times detailed in their respective affidavits.[14] I also accept that, by collecting the child from the mother and having telephone contact, they were able to keep “a finger on the pulse” about how the mother’s household was coping with his care.
[14]Affidavit of the maternal grandmother filed 29 June 2012, paragraph 41; Affidavit of the maternal grandfather filed 29 June 2012, paragraph 36.
The mother contacted a psychologist, Ms B[15], on 13 August 2010 to arrange to take the child to see her to investigate possible allegations of “molestation” by the grandfather. The mother expressed that her suspicions arose as a result of:
a)her own “alleged abuse at the hands of colleagues/friends”;
b)her psychiatrist’s help to uncover repressed memories of the abuse;
c)her belief the child had been enjoined to keep secrets with the grandparents;
d)The child exhibiting disrupted behaviours at school, his complaints of a sore bottom and recounting that he did not have any friends at school.
[15]Bachelor of Psychological science (2006), Masters of Psychology, Education and Development (2008) Ph.D. student.
The mother and Mr Clarke attended upon Ms B on 18 August 2010. They expressed “concerns” about the child’s emotional stability – no further details were provided save that his behaviours had deteriorated, he was finding it difficult to sleep and expressing concerns about “robbers” and getting hurt. When Ms B spoke with the child about his views of attending the grandparents’ home, he told her he liked going there and that, whilst having rules was sometimes a bad thing, overall, it was not that bad at their home.
When Ms B asked him whether there was anything he wanted to talk about, he said “the bad stuff that happened” - when asked what that was, he said “mum and dad fighting”. This provides clear evidence of his exposure to at least some conflict between the mother and Mr Clarke. Ms B noted, at this time, that the child did not display signs of sexual abuse. Her plan was to continue to “explore” the issue.
The mother and Mr Clarke attended on Ms B on 24 August 2010. The mother told her the child had “threatened to kill himself”. When Ms B spoke with the child, he did not disclose any abuse related situations. He spoke positively about his grandparents. I accept her evidence that she thought he appeared conflicted about them: as though he was being told he had to dislike them when, on occasions, his fondness for them crept out - he then corrected himself as though he was not allowed to express this.
Again, Ms B concluded there were no signs the child had been abused by the grandparents. I accept her assessment that he was distressed about his mother’s mental health and was likely demonstrating or exhibiting this via tummy pains and statements about killing himself. I consider it more likely than not – as suspected by Ms B – that the child’s reported behaviours of avoiding toileting and having sleep difficulties may have been related to worries about the mother.
I accept Ms B’s evidence that the mother and Mr Clarke contacted her seeking ways of exploring whether the child had been sexually abused by the grandfather. I accept she advised them that, if disclosures were made, they should remain calm and, if they continued to hold suspicions, consult a doctor or the police or the Department.
I accept Ms B’s evidence that nothing the child said to her during the 2010 sessions raised any concern about sexual abuse. I also accept she had quite serious concerns about his emotional stability at that time – whilst he was in the care of the mother and Mr Clarke.
On 19 February 2011, whilst the child was at an overnight Cub Scout camp, the mother attempted suicide by taking two MS Contin (a time release formulation of morphine) tablets and injecting herself with five insulin pens. She did so in circumstances where she had previously taken twenty or thirty 5mg tablets of Valium, on each of the two preceding nights, in an attempt to end her life. She was prevented from injecting further insulin on 19 February 2011 by Mr Clarke who called for external assistance. An Emergency Examination Order records that the mother took an overdose with the intention of killing herself, saying she wanted to go to sleep and never wake up. She was admitted to Hospital J that night and, later, transferred to D Psychiatric Hospital where she remained until 23 March 2011.
Mr Clarke was admitted to D Psychiatric Hospital on 21 February 2011 and discharged on 18 March 2011. I accept the grandmother’s evidence that she did not ask Mr Clarke to “take time out” and go into D Psychiatric Hospital for a break. It follows that I do not accept Mr Clarke’s evidence to the effect that she did.
During the mother’s admission to hospital, without the knowledge of the hospital staff, she took morphine and Endone (a narcotic analgesic) which Mr Clarke brought to her during visits. This behaviour adds weight to the assertions, made during the hearing, that both the mother and Mr Clarke were dependent upon prescription medication at this time. It is also a clear demonstration of their capacity to act jointly to mislead persons from whom treatment was being obtained.
The child was cared for by the grandparents during the time his mother and Mr Clarke were hospitalised (that is, from about 20 February 2011 until 18 March 2011). He was then cared for by Mr Clarke alone from 18 March 2011 until 23 March 2011 and by both his mother and Mr Clarke from 23 March 2011 until 28 July 2011 - when, as noted above, he resumed living with the grandparents. Again, the grandparents’ action in returning the child to Mr Clarke and the mother’s care following their respective releases from hospital is inconsistent with the essence of the mother’s assertion that they were seeking to obtain the child from her in an underhand and manipulative manner.
On 4 May 2011, the child was admitted to hospital for an operation. His grandparents had been told by Mr Clarke, late that evening, that he wanted to see them. Accordingly, the grandfather attended at the hospital the next morning. The grandmother was unable to attend initially because of work commitments.
The accounts given by the grandfather, the mother and Mr Clarke about what happened on this occasion differ. I accept the grandfather’s account as to the manner in which he assisted the child to use the toilet. I do not accept that the grandfather acted in any manner other than one consistent with the actions of a concerned grandparent. I do not accept that there were any actions by the grandfather on this occasion which could, in any way, be regarded as being sexual in nature. That the mother and Mr Clarke thought otherwise gives rise to concern.
I accept the grandfather’s account of the interaction between him and Mr Clarke which preceded him leaving the hospital at that time.[16] I find it is more likely than not that the child was very aware, on that occasion, that there was a disagreement between the grandfather and the mother and Mr Clarke and that such disagreement resulted in the grandfather leaving the hospital.
[16] Affidavit of the Grandfather filed 29 June 2012, paragraphs 29-30.
When the grandmother attended at the hospital later that morning to visit the child, she was told that, at the mother’s request, she was not allowed to visit him. I accept her evidence that her later inquiries of the child’s school revealed the mother had placed similar restrictions on the grandparents’ ability to interact with him there.
Consequently, the child did not spend any time or interact with the grandparents from 5 May 2011 until interviews undertaken by the Family Consultant on 19 July 2011. Given their previous significant involvement in his care, it is more likely than not that the absence of his grandparents from his life during this period was, at the very least, unsettling and confusing for the child.
On 16 May 2011, the mother sent the grandparents a text informing them that, until they engaged in counselling, they were not to have contact with the child or try to contact him “at his and our request”. [17] This text supports my conclusion that, by then, the mother and/or Mr Clarke, or both jointly, had involved the child in discussions about his interaction with the grandparents.
[17] Affidavit of the Grandmother filed 29 June 2012, paragraph 35.
The mother alleges that when the grandparents provided the child’s Cub uniform to her, they placed a note in it indicating to the child that he should contact them. The grandmother said, and I accept, that, on an occasion, she did put a drawing of a love heart into the child’s uniform pocket to let him know that they loved him. I am not persuaded that her actions were in any way inappropriate.
That this event was relied on by the mother as indicating some form of “wrong-doing” by the grandparents reveals her lack of appreciation of the child’s attachment to them and their attachment to him.
On 20 May 2011, the mother and Mr Clarke told police they had been concerned ‘for some time’ that the child had been indecently dealt with by the grandparents. They reported those concerns were ‘confirmed’ when, on 18 May 2011, he disclosed to them that:
a)on one occasion he was asleep in the same bed as his grandparents who were naked;
b)the grandfather rubbed his penis against his (the child’s) buttocks and upper leg while he (the child) was wearing pyjamas; and
c)‘grandad has a smelly dick’.
The mother also told police she had been a victim of sexual abuse perpetrated by the grandparents and that she was considering making a separate historical complaint about this.
As a consequence of the information conveyed by the mother and Mr Clarke:
a)the child was interviewed by police on 21 May 2011; and
b)Child Concern Reports dated 23 May 2011 and 15 June 2011 were created, which recorded that the child was “making disclosures that he has been sexually abused by his maternal grandparents while in their care”; and
c)the child was interviewed a second time on 6 July 2011; and
d)the grandfather was interviewed by police on 25 July 2011.
On 11 June 2011, the grandparents commenced proceedings in the Court.
When the matter came before the Court on 21 June 2011, the Principal Registrar ordered, amongst other things, that:
a)a Family Consultant supervise the child’s time with the grandparents;
b)the child not be left unsupervised in Mr Clarke’s care; and
c)in the event that the mother was hospitalised for any reason, the child live with the grandparents.
I accept the evidence of Ms I Simpson, the mother’s sister, that, on 21 June 2011, the mother contacted police and reported she, Ms I Simpson, needed to be checked on.[18]
[18] Affidavit of Ms I Simpson filed 29 June 2012, paragraph 42.
On 25 June 2011, the mother spoke with the school chaplain. I accept the notes of that conversation accurately record the information provided by the mother that: ‘her parents had been granted a two hour supervised contact with [the child] at Court but that won’t be happening as charges will be brought against them before then and that (contact) would be seen as giving them an opportunity to tamper with the witness’.
The grandparents were not, in fact, charged with any offence.
On 13 July 2011, the mother filed a Response seeking that the child live with her and, if he wanted, spend supervised time with the grandparents on a graduated basis.
When the Family Consultant interviewed the child, his mother and Mr Clarke and the grandparents on 19 July 2011, the child refused to see the grandparents.
The Family Consultant was not required for cross-examination. I accept his evidence.
The mother said, at this time, the child did not want to have any contact with the grandparents. She did not think it was safe for him to see them. She could not identify any benefit to him in spending time with them. Her presentation led the Family Consultant to conclude she was unable to concede even the existence of a bond between the child and the grandparents, let alone recognise the possibility that he might feel a sense of loss over the disruption of his relationship with them.
I accept the child presented to the Family Consultant with a significant degree of guardedness, was watchful and quite vigilant about what he said and confused and worried about issues.
The child told the Family Consultant he was being seen ‘to stop my grandma and grandpa seeing me and stop them hurting me – they used to smack me and stuff. They would yell at me which would be very upsetting and other things I’m not capable of talking about at the moment.’[19]
[19] Affidavit of Mr M filed 19 July 2011, paragraph 8.
When told the grandparents were in another room and wanted to see him, the child said he did not want to see them and did not want to have any form of communication with them. Further, in talking about his grandparents, the child – then aged about 9½ years – told the Family Consultant that “we used to be close but not anymore. They treated me unfairly and they treated my mum unfairly – her childhood and yelling and screaming and being sexually assaulting.”[20]
[20] Affidavit of Mr M filed 19 July 2011, paragraph 10.
The child’s knowledge about the alleged manner in which the grandparents acted toward the mother can only have come from her or, perhaps, Mr Clarke. Given the child’s historical interaction with, and experience of being cared for predominantly by, the grandparents, such knowledge can only have caused him significant confusion and, I suspect, distress.
When the Family Consultant asked the child how he thought his mother would feel if he did want to see the grandparents, the child said ‘she’d probably get upset and go to her bedroom and cry and she’d think I’ve double-crossed her, I betrayed her.’[21] I consider this comment makes it clear that, whether explicitly and deliberately or inadvertently, the child was exposed – whilst in the care of the mother and Mr Clarke – to the view that interaction with the grandparents was not supported by the mother. Worse, that it was something that would upset his mother and cause her to think he had ‘double-crossed’ her.
[21] Affidavit of Mr M filed 19 July 2011, paragraph 10.
I find the child’s refusal to see the grandparents on 19 July 2011 hardly surprising, given, as demonstrated by this comment, his clear knowledge and understanding of the mother’s attitude to him having any interaction at all with them. I consider it much more likely than not that his refusal to see them was directly related to his concerns his mother would think he had ‘betrayed’ her - if he said he wanted to see them - than because he actually did not want to see them or was fearful of seeing them. In these circumstances, I do not consider his refusal to see the grandparents that day as in any way indicating he had been harmed, in any manner, by the grandparents.
On 28 July 2011, the Principal Registrar relevantly ordered, by consent, that the child live with his grandparents from that afternoon onwards. The Order further provided that:
a)Mr Clarke not spend any time with the child;
b)the child spend time, supervised by the grandmother or another named person, with the mother each Monday, Tuesday, Thursday and Friday from 3.00 pm until 6.00 pm, and for three hours each Sunday (“the July 2011 Order”).
It is, I think, pertinent to record that the mother decided to agree to the terms of the July 2011 Order without first receiving information from the police about the status of their investigation into the allegations the grandfather had sexually abused the child.
The child returned to live primarily with the grandparents on 28 July 2011. At that time, he had not seen them since about 5 May 2011.
I accept the grandfather’s evidence that the parties have implemented the provision he not have unsupervised time with the child since the July 2011 Order was made. I also accept he has not been alone with the child without another person in the vicinity to observe or hear what is happening. I accept that, when the child attends at Cubs or hockey, the leader or coach assumes the role of “supervisor” and that such people have been provided with a copy of the July 2011 Order.
I accept the grandparents have taken steps to ensure the grandfather is not left alone in the home with the child. I accept that the grandmother has been sufficiently present when the child and the grandfather are together to ensure compliance with the terms of the July 2011 Order. I accept the grandmother has been in a position to intervene if such intervention had been required.
I accept the grandmother’s evidence that her understanding of the terms of the July 2011 Order was that she could not leave the house if the child and the grandfather were home together, could not let the grandfather drive the child to any function on his own and that she would be present unless there was some other adult present to do the supervision. I accept she accepted she needed to know where the grandfather and child were at all times and to be aware of what they were doing. I accept she knew she had to supervise more closely if the grandfather was rubbing cream on to the child’s legs at the child’s request – I also accept she was present on occasions that happened.
I also accept the grandparents explained the effect of the July 2011 Order to the child after it was made. I accept that, for a couple of days after the child returned to live with them, there was some turmoil and uncertainty about what it meant for him – consequently, they discussed what had happened and explained it was a “consent order” which imposed requirements on the parties to have counselling and move toward contact on a regular basis. I accept that the purpose of the explanation was to ensure the child knew what his parenting regime would entail. In these circumstances, I am not in any way critical of the manner in which the grandparents handled the child’s sudden – and unexpected – transition back into their primary care.
The child returned to counselling sessions with Ms B in early August 2011 and saw her on multiple occasions - initially weekly, reducing to fortnightly and then less frequently - between 5 August 2011 and 9 February 2013.
On 5 August 2011, Dr N, a psychiatrist, interviewed the mother and Mr Clarke. Her report, the contents of which I accept unless I otherwise indicate, reveals that, despite having consented to the care regime prescribed within the July 2011 Order only a week earlier, the mother told her that the child:
a)was ‘badly affected’ by living with the grandparents and seeing her in the manner prescribed by the July 2011 Order; and
b)had recently had a tantrum, slamming doors in the grandparents’ house; and
c)behaved in a regressed way; and
d)had told her that he hated being there, did not want to be with those ‘bastards’, missed her and Mr Clarke – she said he was very vocal about the grandparents.
Mr Clarke told Dr N he did not believe the grandparents should have any “visitation” rights in relation to the child and, whilst he and the mother had contemplated the grandmother visiting the child, the child had refused to see her. He thought the grandfather should not see the child at all because the child had been sexually abused by him.
I consider that, even if the child behaved in the manner described by the mother to Dr N, such comments and behaviours are likely to be nothing more than a demonstration of his attempts to process and deal with his sudden change of circumstances and the transition from living with the mother and Mr Clarke to returning to live with the grandparents. I arrive at this conclusion given the short time which had then elapsed since his return to live with his grandparents, with his mother’s consent, the comments he made to the Family Consultant, as recounted at paragraph [75] and that he returned to live with the grandparents possessing the knowledge recounted at paragraph [73].
Such conclusion is bolstered by the evidence of Dr A, a psychologist, who interviewed the child on 24 August 2011. Given the circumstances outlined above, it is unsurprising that Dr A, whose evidence I accept unless I otherwise indicate, recorded that the child was:
a)clearly distressed by the current discord between the mother, Mr Clarke and the grandparents; and
b)arguably confused and increasingly insecure about how to make sense of his current context; and
c)experiencing a high level of distress which was impacting on his emotional and physical well-being.
I accept Dr A’s evidence that, given his experiences of his mother becoming unwell and requiring hospitalisation when highly stressed, the child was very aware the mother was the most ‘vulnerable’ of all parties. I accept that ‘choosing’ between the grandparents on one hand and the mother and Mr Clarke on the other was intolerable for him.
Given the child’s comments to the Family Consultant – as detailed in paragraph [75] above – I consider it more likely than not that the mother created a situation, deliberately or otherwise, in which the child thought he was required to choose between the grandparents - from whom he had received significant care during his life - and the mother. It cannot be seen as anything but emotionally harmful for the child to have been embroiled in this situation. It was completely unnecessary he be allowed to think, for any time, that it was an ‘all or nothing’ proposition vis-a-vis his interactions with the mother and grandparents. There is nothing in the evidence to suggest that the grandparents were in any way responsible for the child holding such a view.
The mother told Dr A, in August 2011, that the child had told her he did not want to live with the grandparents and should not have to. She was unable to identify any benefit to him in continuing to spend time with the grandparents. She was unable to acknowledge they had been significant attachment figures in his life. Such attitude completely ignores the reality of the situation for the child, given the grandparents’ significant role in his life since his birth.
On 1 September 2011, the police told the mother that:
a)there was insufficient evidence to indicate an offence had occurred;
b)her uncorroborated testimony was ‘discredited’ by other persons interviewed;
c)it was unlikely there would be a successful outcome in proceeding with a prosecution.
That the mother agreed to the child returning to live primarily with the grandparents before she knew this, or at all, is hard to reconcile with her frequently and consistently asserted belief that the child had, in fact, been sexually abused by them whilst in their care and her assertion that she had been sexually abused by them.
The parties implemented the terms of the July 2011 Order until 17 October 2011. The grandparents then decided to ‘suspend’ the child’s time with the mother because of the difficulties - which I accept were experienced by the grandmother - in undertaking her supervisory role. They offered weekly three-hour visits between the mother and child supervised by someone from O O Organisation (a private supervision service).
I accept the grandmother’s evidence that, when she supervised the child’s time with the mother, the mother:
a)frequently tried to engage the child in conversations about the sexual abuse allegations; and
b)asked the child, in an accusatory tone, about the activities in the grandparents’ home; and
c)accused the child of enjoying living with the grandparents; and
d)talked about Court proceedings and when the child would be able to see Mr Clarke again.
I consider that the mother’s actions in this respect – in circumstances where she had agreed that the child return to live with the grandparents – are highly likely to have caused the child confusion and upset. I consider it more likely than not that the child was exposed to similar negative comments about the grandparents before he spoke with the Family Consultant. Exposure to such comments provides a clear causal explanation for the child’s comments to the Family Consultant, as recounted in paragraphs [73] and [75].
The mother’s actions in engaging with the child as she did were in direct contravention of terms of the July 2011 Order which prohibited her from discussing the proceedings, the maternal grandparents, the allegations or any other matters connected with the proceedings in the child’s hearing or presence. Her actions in this respect demonstrate a willingness to act in defiance of a Court Order and an inability or unwillingness to act to shield the child from exposure to these matters – her actions were highly likely to have caused him distress and confusion.
I accept the grandmother’s evidence that, if she stepped in to prevent such behaviour, the mother would either ignore her or involve the child so he would then tell her (the grandmother) that the mother could say what she wanted. My acceptance of this evidence is buttressed by the evidence of the mother’s initial behaviour at the Contact Centre during supervised time with the child. I consider that the mother’s actions in enjoining the child to act “with” her and “against” the grandmother at such times is demonstrative of her attitude toward the child’s relationship with the grandparents – namely, that he is either ‘with’ her or ‘with’ the grandparents. Such attitude suggests it is highly unlikely she will be able or willing to support him in an ongoing relationship with the grandparents.
The grandparents’ attempted to engage O Organisation – at their cost - to supervise the child’s time with the mother. However, she told them, on around 21 October 2011, that she did not wish to participate in intake interviews at the Contact Centre or have O Organisation supervise the child’s time with her. She wanted to leave everything to the interim hearing which was listed for 16 November 2011.
The mother then attended at the grandparents’ home on 24 October 2011 and demanded to see the child. I accept she said she would not leave unless police made her. I accept she became increasingly aggressive and vocal. Given the grandparents’ offer to continue to provide supervised time between the mother and the child – albeit with another supervisor - her actions cannot be considered as those of a desperate parent who had no other option but to act as she did. This event is unlikely to have assisted the relationship between the grandparents and the mother and is highly likely to have added to the child’s concerns about the interactions between them.
The matter returned to Court at the grandparents’ instigation. On 16 November 2011, the Principal Registrar relevantly ordered that the time between the child and the mother occur at a Contact Centre. Until the Contact Centre could provide the service, the time was to be supervised by O Organisation.
The child started spending time with the mother at the Contact Centre on 14 January 2012. This time has continued, on a fortnightly basis, since then.
On the second visit at the Contact Centre, the mother spoke with the child about when he would return to live with her. She sought his views about how much time he should spend with her and Mr Clarke. She told him “granddad’s not allowed to touch you”. This behaviour occurred despite attempts by the Contact Centre staff to have the mother stop the discussion. Further, on another occasion, the mother asked the child if he had a school email address, so she could communicate with him via email.
The mother said, by way of explanation for the comments she made during the initial supervised sessions with the child, that it took a little while to get the hang of what was appropriate and that she had not been “reprimanded” by the Contact Centre following these initial visits. Whilst this may be the case insofar as she is concerned, records from the Contact Centre indicate that, even as late as January 2013, Mr Clarke was still discussing potential Court outcomes with the child, stating “when you come home we can play doubles on the X-box”.[22]
[22] Exhibit ICL1, page 274.
On 15 February 2012, the child was “interviewed”, for approximately an hour by a person from the Contact Centre. This happened in the absence of the grandmother. I accept the grandmother’s evidence that the Contact Centre told her the purpose of the interview was to see how the child was coping with supervised visits. I also accept the child told the grandparents he was asked about “how he was getting on at grandma’s and granddad’s”.
On 17 February 2012, a supervisor at the Contact Centre made a Notification to the Department. That day, without notice, Departmental officers and members of the police service attended at the grandparents’ residence.
Departmental officers spoke with the grandparents about any ‘unsupervised’ time the child was having with the grandfather. I accept the evidence of both the grandparents, corroborated by the child’s own assertion to Departmental officers, that he had not been left alone with the grandfather. I accept that, whilst on one occasion the grandfather took the phone to the child when he was having a bubble bath, the grandmother was present. I accept the child also told Departmental officers that the grandfather would not harm him.
I accept that, after this visit, the grandparents became more aware of the importance of the absolute need for the grandfather not to be in a situation where he could be accused of inappropriate behaviour. I also accept that, as a consequence of this, they wrote down the safety plan they had previously implemented.
I accept that, in keeping with the logistics of running the household, the grandmother has done her best to ensure there has been no time when the grandfather and the child have been left alone where she cannot either see or hear them. I also accept that the grandmother, and not the grandfather, has assisted the child with the application of any cream to his genital area when this has been necessary.
At the visit to their home, Departmental officers told the grandmother they may act to remove the child. In order to prevent this from happening, the grandfather left the home, in which he, the grandmother and child lived, until a risk assessment could be completed. Consequently, the child remained living with the grandmother and was protected from the impact of removal. The grandfather’s actions at this time can only be considered to be extremely child-focused.
On 24 February 2012, Mr P, a psychologist, who had been asked to prepare a ‘Sexual Offending Risk Assessment Report’, interviewed the grandparents, the child, the mother and Mr Clarke. He also observed the child with the grandparents.
I accept Mr P’s evidence unless otherwise indicated. His report outlines that:
a)The child hugged the grandfather (who he had not seen since 17 February 2012) very affectionately;
b)The child told him that:
i)he liked both of his grandparents very much;
ii)he thought he was living with them because the Court had set down some rules;
iii)he thought it was good the Court had set rules about his living arrangements and he liked that he did not have to go back and forth all the time;
iv)he thought the grandfather was coming back that night and hoped this would be the case;
v)when he gets aching legs, his grandfather rubs them with Voltaren - he had told his mother this and she ‘thinks it hurts me’;
vi)he knew that someone touching his private parts would be a ‘bad’ touch;
vii)the grandmother put cream on his bottom when he had a bacterial infection - this was the only memory he had of anyone ever touching his private parts; and
viii)there was nowhere he did not feel safe.
I accept the child told Mr P the grandfather was staying away from their shared home because ‘my Mum made some accusations about Grandma and Granddad that I don’t think are true…I don’t know what they are’. Such comment is a clear indicator of his awareness of discord between the mother and grandparents.
The child was interviewed by Departmental officers at school on 7 March 2012. He told them:
a)he liked living with the grandparents;
b)he missed the mother and Mr Clarke and cannot live a happy life;
c)he would like to visit at his mother and Mr Clarke’s house but there would still need to be a supervisor – the time is supervised because they could tell him to say stuff, but they never had;
d)the grandparents had not done anything to him that made him feel upset or “yucky”;
e)he was aware his mother thinks he is being hurt at the grandparents’ home;
f)he is happy for his grandfather to rub stuff into his legs;
g)his mother worried about his grandfather hurting him and would get upset if she knew his grandfather was not hurting him;
h)he would prefer to live with his “parents”;
i)he worried about when the mother and Mr Clarke argued as it could get nasty but he did not remember the last time they had an argument as it was long ago;
j)he wished he had a “normal life” – no Court things, no arguments and no fighting;
k)he felt safe with the grandparents.
Ms B prepared a report, dated 1 April 2012. I accept her evidence unless I indicate otherwise. I accept her opinion that, whilst there was no evidence of sexual abuse, the child exhibited behaviours consistent with:
a)having to manage his concerns for his mother, due to her mental health problems; and
b)working tirelessly to ensure he kept her feeling happy and avoided confrontation with her.
Ms B considered the child felt responsible for the mother’s health and saw himself as a trigger for further hospitalisations. She noted that, whilst he did not demonstrate any overt sexualised behaviours, the child did show extreme emotional vulnerability when it came to his relationship with the mother: he saw his role as the mother’s “carer” and had told her on numerous occasions that he had to make sure the mother was happy or she would go back to hospital. However he came to hold such a view or belief, the child’s adoption of responsibility for the mother in this manner can only have been – and, if it continues in the future, will be - a significant emotional burden for him.
Ms B also expressed some concern about the child’s fortnightly time with the mother – she said he was “often highly reactive and angry” in the two to three days after this time. Given the child’s comments to the Family Consultant as outlined in paragraph [75], there is particular resonance in Ms B’s opinion that he reacted in this manner because he felt like he had to behave in front of the mother as though he did not like the grandparents for “his mum’s sake”. I accept Ms B’s opinion, arrived at after interactions with the child over time, that he felt conflicted in his role and about who he was able to like. Ms B expressed the opinion – which I accept - that the child was not yet been able to behave as he would like around his mother.
Despite the above, Ms B recorded that, in late July 2012, the child told her he was “feeling good” about seeing the mother on Saturday. Such comment suggests to me that it is highly unlikely that the grandparents were doing or saying anything to the child to undermine his relationship with the mother.
There was no indication during Ms B’s lengthy interaction with the child that he had been the victim of sexual abuse. Rather, he verbalised there had not been any abuse. He said he wanted to tell the mother he was not being hurt by the grandparents: that, whilst they may occasionally yell at him, they would never hurt him.
It is against this background that the competing proposals for orders fall to be considered.
The imperative of protecting the child from harm
These proceedings are “not an enquiry into whether sexual harm did or did not occur”: the resolution of such a matter is ‘subservient and ancillary’[23] to the determination of those orders which are in the child’s best interests in all the circumstances.
[23] M v M (1988) 166 CLR 69 at 76 - 78
The mother asserts that, because both she and the child have been sexually abused by the grandfather “in circumstances where the grandmother has been complicit or at least, wilfully blind, to such events”, the child’s best interests are met by removing him from the grandparents’ primary care and ensuring his time with them – or at least the grandfather - is supervised.
The mother initially submitted this course is mandated because the Court would conclude the child is at an unacceptable risk[24] of being sexually abused if his time with the grandparents is unsupervised. However, during the course of the hearing, she also said she wanted to engage in mediation with the grandparents about a shared “custody” arrangement. Despite saying this, the mother did not propose any orders which would see the child spending unsupervised time with either the grandparents or her sister, Ms I Simpson.
[24]M v M (1988) 166 CLR 69 at 76 - 78; In The Marriage of N and S (1996) FLC 92-655 per Fogarty J at 82,713-4; B & B (1993) FLC 92-357, 79-777-79-778; Napier & Hepburn (2007) 36 Fam LR 395.
The mother submitted that, in the event I was not persuaded the grandfather had sexually abused the child, I would accept her evidence that he had previously sexually abused her and, because of this, would conclude he had engaged in “predatory sexual behaviour”. She submitted I should conclude that the child is at risk of similar abuse if he continues to spend unsupervised time with the grandfather.
In the alternative, the mother submitted that, even if I concluded I could not make a “positive” finding the grandfather had engaged in inappropriate conduct toward her and the child, the “common threads” of and within his behaviour compel a finding of unacceptable risk to the child.
The grandparents deny emphatically that the grandfather ever sexually abused the mother or the child. They deny the child is at an unacceptable risk of harm whilst in their unsupervised care. They assert that he is at an unacceptable risk if his time with the mother and Mr Clarke occurs on an unsupervised basis.
The mother’s presentation and allegations over time
In July 2002, the mother presented with anxiety, depression and sleep deprivation and was admitted to D Psychiatric Hospital. She reported having been sexually assaulted as a 13-year-old and that she had been raped on three occasions by different persons when she was 17 years of age.
At her discharge on 10 August 2002, the mother was diagnosed as having an adjustment disorder with depression and personality disorder. She was assessed as requiring ongoing supportive psychotherapy and assistance with the child’s care.
On 4 October 2003, the mother said, during a telephone conversation with a hospital employee, that she had found out a couple of months ago the grandfather was working with the man who had molested her when she was 13 years of age. She said she felt betrayed by him and he had betrayed her trust in this respect.
The mother was readmitted to hospital in late 2004 in order to manage her anxiety and the depressive symptoms which had been exacerbated by her pregnancy. At discharge, on 13 November 2004, she was diagnosed as suffering from a major depressive disorder and as exhibiting borderline and dependent traits.
In January 2005, the mother delivered a stillborn child. That year she was diagnosed with a major depressive disorder and dissociative disorder, a mixed personality disorder with borderline and obsessional traits. She had reported child sexual abuse.[25]
[25] Dr N’s report, page 9.
The mother attended upon Mr Q, a clinical psychologist, on 28 February 2007. He assessed a complex range of symptoms: “disturbed trauma memories, self concept fragmentation, self-harming behaviour, and prominent lability of mood including depression and anxiety”. Mr Q assessed that the mother met the criteria for post-traumatic stress disorder with prominent features of borderline personality disorder. He noted that, whilst she had previously been diagnosed with dissociative identity disorder and had attested to disassociated states, further interaction was required before a diagnosis could be made. He thought the mother needed a long term, coordinated, multifaceted treatment plan.[26]
[26] ICL 1, pp 31-32.
In mid-August 2007, Dr G, psychiatrist, diagnosed the mother with dissociative disorder. She had reported disturbances in her early upbringing and that friends of her father were responsible for her being sexually abused at a young age. She reported problems with her father (the grandfather) and said she had been sexually abused by his best friend. She reported a severe sexual assault when she was 18 or 19 years of age.[27]
[27] Dr N’s report, paragraph 47.
The Homeless Health Outreach team records that, in or about January 2009, the mother denied that the child had, at any stage, been at risk of harm or neglect. She also said:
…. her parents provided excellent parenting for [the child], she had no concerns regarding his welfare and she reported that contact and care arrangements with regards to [the child] had been established between herself and her parents with legal advice.
On 9 April 2009, the mother told a medical practitioner that she had been sexually assaulted twice whilst living in hostels. She said that she had more ‘flashbacks’ at Christmas regarding past assaults. In August 2010, the mother made allegations that she was the victim of sexual abuse by the grandparents.[28]
[28] Affidavit of Dr A filed 21 September 2011, report dated 2 September 2011, paragraph 2.3.
The Homeless Health Outreach Team had contact with the mother between March and June 2009 whilst she was living at a women’s hostel. Dr R noted that, longitudinally, the mother had been diagnosed with post-traumatic stress disorder, borderline personality structure with concurrent intermittent marijuana abuse, Type II diabetes and chronic pain issues. The mother presented with an exacerbation of depressive and post trauma symptoms in the context of acute stressors: namely, an altercation with a co-resident, financial strain, lack of stable housing, recent reduced contact with the child and conflict with the grandparents around this and her marijuana use.[29]
[29] ICL 1, p 34.
The mother was admitted to D Psychiatric Hospital on 9 August 2010. She reported experiencing increasing episodes of flashbacks due to “childhood abuse”. She believed she had been abused by the grandparents or their acquaintances – she complained they “didn’t give a shit” about her and neglected her. She also stated her parents were using the legal system to gain access to the child. She believed the grandparents were involved in a paedophile ring and that the child – then nine years old - may have been molested by the same group that molested her.[30]
[30] ICL 1, pp 24-25.
During this admission, the mother reported childhood sexual abuse when she was between the ages of five and nine years of age. She believed the child had been abused because he said phrases that members of “the group” which repeatedly abused her had used. She reported increased sexualised behaviours in the child and an increase in her memories of her own abuse. She also reported experiencing increased episodes of flashback to her childhood (when aged six – nine years) where she believed she was abused by her parents or their acquaintances. She was described as extremely distressed, agitated and vividly imagining the past.[31]
[31] ICL 1, pp 28-29.
On about 22 September 2010, the mother attended on Dr K, her psychiatrist. She wanted to change a past memory where she thought she was sexually interfered with at the age of five. He “took her through a hypnotic sequence and successfully did what she asked”.[32]
[32] Affidavit of Mr P filed 30 May 2012, report dated 10 May 2012, paragraph 8.9.
Dr K did not obtain any information from the mother about what she wanted to change in this session. As I understood his evidence, his job was to “re-encapsulate” the mother’s memory so that she could “put it in a box and put it into storage”. Further, the consequence of the hypnotic sequence he administered to the mother, at her request, was that her memory of the alleged event - whatever that might have been - was changed.
When the mother was admitted to hospital in February 2011, she admitted a past overdose in the context of marital conflict. Records note a significant history of poor impulse control, mood dysregulation and drug abuse against a history of “prejudicial childhood”. The mother reported a poor relationship with the grandparents and said they knew she had been molested in her childhood and may be sexual perverts. The mother also said she had been using morphine in the months leading up to her admission to hospital - a matter established by documentary evidence - and said she had been using marijuana every day.
On 23 February 2011, during her admission to the D Psychiatric Hospital following a suicide attempt, the mother said:
a)in the past she had engaged in cutting behaviour;
b)she was on a disability pension for childhood abuse: complex PTSD dissociative disorder and chronic and acute depression;[33]
c)she had a poor relationship with her parents: they knew she was being molested in her childhood and they may be “sexual perverts.” [34]
[33] Exhibit ICL1, page 53.
[34] Exhibit ICL1, page 54.
The assertion that the grandparents ‘knew she was being molested in her childhood’ seems to me to be significantly different from an assertion that they (the grandparents) were sexually abusive of her or had ‘molested’ her.
In April 2011, during an appointment with Dr K the mother ‘recalled memories of sexual abuse’ – she was again saying “was she abused, wasn’t she abused” and was “coming down” on the side of being abused.[35] This suggests some ambivalence in determining the issue.
[35] Affidavit of Mr P filed 30 May 2012, report dated 10 May 2012, paragraph 8.11.
Whilst the grandfather said the mother’s allegation that she was sexually abused by him and/or both her parents arose, initially, in mid-2008,[36] The child’s care arrangements – as outlined above – makes it clear that despite this, the mother did nothing to prevent him from continuing to live primarily with the grandparents until about May 2011.
[36] Grandfather’s evidence during cross-examination.
By July 2011, when she spoke with the Family Consultant, the mother said she believed she had been sexually abused by the grandparents between the ages of 3 and 12 years – this ‘recollection’ was said to be part of “resurfacing memories” from her childhood.[37]
[37] Family Consultant’s Report, paragraph 15.
In August 2011, the mother told Dr N the grandfather sexually abused her from the age of 3 years to 12 years. She said the abuse involved digital, vaginal and anal penetration and the insertion of objects into her. She also said that, sometimes, the grandmother was present and, even if not present, knew of the abuse. She told Dr N her mother (the grandmother) had come into her bedroom, picked up the pencil the father had inserted into her, smelt it and left – she then heard her parents arguing. She says she was about nine years of age and understood this was not to be spoken of.[38] The mother told Dr N her memories of sexual abuse were only “uncovered” in 2010 – that they arose in response to things the child said: namely, he made a comment about a swimming pool (she herself had often been abused in a pool) and that some of his phrases were disturbing.[39] The mother also told Dr N she believed that her sister Ms I Simpson had also been abused - she could recall the grandfather running his hands over her breasts.[40]
[38] Affidavit of Dr N filed 13 September 2011, Report - paragraph 58.
[39] Affidavit of Dr N filed 13 September 2011, Report - paragraph 59
[40] Affidavit of Dr N filed 13 September 2011, Report paragraph 62
In late August 2011, the mother told Dr A she believed she spent most of her childhood in a “disassociated state” to get away from the grandfather and his touching of her. She said she remembered this last July when she worked with Dr K to “submerge” the memories so that she could get on with her parenting.[41]
[41] Dr A’s report – paragraph 5.1
The above makes clear that the mother has previously expressed uncertainty about whether, in fact, she was sexually abused as a child. She has previously alleged both that the grandparents knew she was being sexually abused and that they had sexually abused her.
The mother also said she remembered the grandfather showering with her when she had developed breasts – he held his body against hers to try and make “lakes” of water between them. The grandfather denied this allegation but accepted that, until the mother was about 5 or 6 years of age, he showered with her on occasion, playing a “Making Lakes” game which involved him lifting her up and holding her next to him so that their bodies trapped water (thereby creating a “lake”). I accept his evidence that he did not shower with the mother after she was about 5 or 6 years of age.
I accept the evidence given by Ms I Simpson and, where it conflicts with that given by the mother, prefer it. I accept that the mother previously told Ms I Simpson about a “dream”: she was lying on a table, nine years of age, and thought she could hear the grandfather’s voice – at least a man’s voice – saying “she is not to be touched” while the paedophile ring was positioned around her.[42] I also accept the mother previously asserted to Ms I Simpson that she (Ms I Simpson) had also been abused by the grandfather. I accept that, when Ms I Simpson told the mother their father never did anything to her, the mother responded by telling her that she (Ms I Simpson) was in denial. I accept Ms I Simpson’s evidence that she was not sexually abused by her father.
[42] Affidavit of Ms I Simpson, paragraph 124.
The child saw Dr W, paediatrician, in December 2010. He presented with problems of attentional disorder, sensory seeking behaviours, low tone and social and emotional difficulties. She thought he was quite bright but the “main problem” was that he was very emotionally fed up. She thought this tied up with some of the difficulties his mother had and exacerbated his day to day behavioural functioning.[79]
[79] Affidavit of Dr N filed 13 September 2011, paragraph 41.
Dr A assessed the child in mid-2011 as being aware of his mother’s mental health issues and the physical issues of both she and Mr Clarke. She considered that, if he was displaying the behaviours described by the mother (for example: punching/kicking holes in the walls – see paragraph 5.12 of her report), he was being severely impacted by the dispute. She considered the behaviour to be a demonstration of frustration of being caught in the dispute. I agree that this is highly likely.
Dr A expressed concern about the mother’s level of insight into the impact her mental health issues have upon the child.[80] I accept that, at the age he was when she was engaged in the matter, a requirement that he understand and contain a level of understanding about his mother’s mental health issues was “enormous.” Whilst expressed somewhat historically, I accept her opinion that the burden of this is more tolerable, if or when, the child has an enormous amount of support. Even acknowledging that the child is now about three years older, I am well persuaded it is likely that this position remains the same.
[80] paragraph 5.12
I accept that, having seen the child in mid-2011, Dr A concluded he was very aware of what upset the mother, the impact of her ill-health upon him and that he had become more and more sensitive to these issues over time. Further, at that time, he was stuck in the middle, exposed to a great deal of stress and enmeshed in the dispute. I consider that the current care regime has ameliorated these impacts for the child. It can only be beneficial for him that he continue to be shielded from interactions which are likely to see him placed back into the same circumstances as those in which he found himself when Dr A was involved.
The mother asserted to Dr K on 22 September 2010 that the child had threatened self-harm by pouring fuel on himself. No other reports suggest this behaviour and given my conclusions about the mother’s unreliability, I do not place any weight on this assertion.
The evidence clearly establishes the child has, in the past, struggled with the academic, behavioural and social demands of school attendance. These difficulties amplify his requirement for stable, consistent and predictable parenting so as to ensure that he is able to maximise his ability to apply himself to set tasks.
Any family violence involving the child or a member of his family
I accept the grandmother’s evidence that the mother told her Mr Clarke had been verbally abusive towards her and that this upset the child and left him unsettled. I also accept there was an occasion when the mother asked the child to ask a teacher to come down to the car because she and Mr Clarke had had a bad weekend. I accept that, in late November 2010, Mr Clarke pushed the mother and, according to her, “accidentally” clipped her with his elbow under her chin with the result that she ended up on the floor.[81]
[81] Affidavit of the Grandmother filed 29 June 2012, paragraph 272.
I do not accept the mother’s evidence that Mr Clarke has never been violent to her in the home. I do not accept there has not been any shouting or verbal abuse. I consider it much more likely than not that there have been occasions – concurrent with their difficulties obtaining prescription medications in the amounts sought – during which Mr Clarke has been short tempered. Even on the mother’s account – which I consider to be one which minimises the likely reality of their interactions - Mr Clarke lashed out into space.
The mother maintained that none of the arguments between herself and Mr Clarke involved any physical interaction. Despite this, Dr K’s notes of an appointment on 22 November 2010 record that the mother told him Mr Clarke had pushed her and hurt her arm. The mother sought to explain this discrepancy by saying:
a)Mr Clarke had moved past her - which felt like a push;
b)she did not recall saying that he had pushed and hurt her arm;
c)she did recall saying he moved past quickly because he was angry, did not realise she had not much space, she slipped and fell to the ground but he was not the cause of it in any particular way.[82]
[82] Exhibit GP2.
She reiterated that Mr Clarke did not cause this event and said that the child was not present for it.
I consider that the evidence establishes occasions on which Mr Clarke was verbally abusive toward the mother. Whilst she appeared to minimise and excuse this behaviour – on the basis that Mr Clarke was in significant pain – it is clear the child was present on at least some of these occasions. For example, the mother told her Counsellor in May 2010 that Mr Clarke was being verbally abusive, she was upset at his cruel words and it was very hard on her and upsetting for the child. Further, she told the school Chaplain in November 2010 that Mr Clarke had not been able to detox in hospital the week before, had come home early, had been very angry and had sworn at the child all weekend.
I do not accept the mother’s assertion that these behaviours only occurred during a two to three month period. It is not in any way beneficial for the child to be exposed to these type of behaviours in the future.
Any other fact or circumstance considered relevant
The mother asserted, during cross-examination, that nothing would make her “happier” than hearing the child had not been sexually abused. However, it was also clear she:
a)was not satisfied with the contents of Mr P’s report; and
b)did not accept, because she said the police did not tell her this, that the police had concluded the child had not been sexually abused by the grandfather or that they had determined he had been coached to say that he had been sexually abused;
c)maintained her view that she did not believe the child was lying about the allegations.
The mother said, during cross-examination, that if the child told her face to face - where she could see his facial expression, eyes and the way he holds his body - that he did not have “that” (a reference to the asserted abusive behaviour by the grandfather) happen and just wanted attention, she would have to reconsider her view that the grandfather had sexually abused the child. However, the mother also said she believed the child had been coached into saying that he was lying about the allegations.
This suggests to me that the mother is unlikely to accept the child telling her nothing abusive happened – as he has already told others. This, in combination with the fact that the mother has maintained her belief the child has been sexually abused by the grandfather for a significant period of time in the circumstances outlined above also persuades me it is highly unlikely the mother will accept the conclusion I have reached in relation to the allegations of sexual abuse.
I accept Dr N’s evidence to the effect that, in circumstances where the Court concluded – as I have - that the child has not been harmed by the grandparents, an order which saw him live with the mother and spend time with the grandparents would be disadvantageous because a requirement for ongoing contact, in light of the mother’s beliefs about his abuse, is likely to increase the mother’s anxiety, with likely consequent quarrels and chaos.
Mr Clarke also did not accept the conclusion contained in documents that the child had not been abused. He said he would accept a finding made by the Court because the Court has seen so many “horror stories” of child abuse. In this way, he differs, perhaps, from the view expressed by the mother. However, it is also clear Mr Clarke believes the grandparents coached the child to recant and that the police got it all wrong. This belief and his relationship with the mother and exposure to her belief the child has been sexually abused by the grandfather persuades me that he, too, is unlikely to accept the conclusion I have reached in relations to the allegations of sexual abuse.
Conclusion about the child’s living arrangements
Given the conclusions I have reached and the reasoning outlined above, it should come as little surprise that I have concluded it is in the child’s best interests to live with the grandparents. They are the parties best able to provide him with consistent and stable care and to nurture him as he grows toward adulthood. Any change to his living arrangements would be likely to cause him significant upheaval and distress and is unlikely to be beneficial for him. A continuation of his current living regime will also shield him from exposure to the mother’s (and Mr Clarke’s) intractable belief that he is the victim of sexual abuse and ensure he does not come to think, wrongly, that this is the case. He will, in essence, be protected from the significant harm likely to be caused to him psychologically if exposed to this belief on a daily basis.
The moratorium proposed by the grandparents
I accept Dr A’s evidence, from her observations in mid-2011, that the child is likely to suffer detrimentally if he was unable to spend time with the mother. I accept Dr N’s evidence that not seeing the mother would distress the child significantly.
I also consider that, given her previous absences from him on occasions as a result of ill-health, any sudden cessation of the child’s opportunity to spend time with the mother may well cause him to be concerned and stressed about her functioning.
While I appreciate that a moratorium may well give the child an opportunity to receive guidance about how to manage his relationship with the mother and Mr Clarke into the future and also give them an opportunity to reflect, review and try to see things from a different perspective, I consider that these goals can be as “easily” achieved in the absence of a moratorium over the child’s time with the mother and Mr Clarke.
I am not persuaded, therefore, that the imposition of a moratorium over the child’s time with the mother and Mr Clarke is in his best interests. I conclude the adverse impact of such an event far outweighs the likely benefit to the child in circumstances where his time with the mother and Mr Clarke will, for the reasons outlined below, remain supervised.
The child’s time with the mother and Mr Clarke – supervised or not?
Even taking into account the likely impact of ongoing supervision on the child’s ability to continue to develop a meaningful relationship with the mother and Mr Clarke, the combination of the following matters persuades me it is in his best interests his time with them remain supervised:
a)my conclusions about the likely harm to the child if exposed to the mother’s beliefs (shared by Mr Clarke) that she was sexually abused by the grandfather and that he has suffered the same fate – in this regard I accept Dr N’s evidence to the effect that, if the child is told or comes to believe he has been sexually abused, this is likely to create instability for him and is likely to lead to difficulties in interpersonal and sexual relationships in the future; and
b)my conclusion that the mother and Mr Clarke are highly unlikely to accept my finding that neither she nor the child have been sexually abused by the grandfather; and
c)my conclusion that, given her likely ongoing belief system, the mother is unlikely to be able to refrain, absent supervision, from exposing the child to these beliefs – in this regard I accept Dr N’s evidence to the effect that the probability is the mother would use communication with the child to warn him about the risk she believes the grandfather poses to him; and
d)my concern about the ongoing use of prescription medication against the background of prior addiction and the impact of this on their behaviours.
The imposition of supervision over the child’s time with the mother and Mr Clarke will, I consider, allow him to continue in his relationship with them without the risk of undermining or destabilising his relationship with the grandparents. I am not remotely confident that this would be able to occur if his time with the mother and Mr Clarke was unsupervised. It will also continue to provide the child with the security to simply enjoy the time with his mother and Mr Clarke without having to engage in a process of negotiating his way between households with starkly different views about the significant issue of abuse.
I accept Dr A’s evidence that, as the child ages he can, with assistance, develop strategies to enable him to manage his relationship with the mother and Mr Clarke and learn to negotiate a way of moving between two households with very different views about him and his relationship with the grandparents. When this may occur and how old he will be when he is able to do this remains an unknown.
I accept the grandparents are fully aware of the child’s desire to have an on-going relationship with the mother and Mr Clarke: for example, they told Dr a in mid-2011 that he needed to see them, that he loves the mother very much and “yearns” to be with her.[83] As discussed above, I consider they have demonstrated a capacity to identify and acknowledge the child’s needs and are willing and capable of facilitating a meaningful relationship between the child, the mother and Mr Clarke.[84]
[83] Affidavit of Dr A filed 21 September 2011, report dated 2 September 2011, paragraph 7.7.
[84] Affidavit of Dr A filed 21 September 2011, report dated 2 September 2011, paragraph 7.9.
Given their devotion to the child’s best interests, I have no hesitation in concluding that, if the grandparents or either of them considered the child had reached an age and stage of maturity where short periods of unsupervised time with the mother and Mr Clarke would not expose him to an unacceptable risk of emotional or psychological destabilization, they would facilitate the same. It seems to me that they – or either of them – are best placed to be able to make this determination with the assistance or input from any counsellors or therapist upon whom the child may attend in the future.
I further note that there is no dispute that the child should be able to speak with the mother and Mr Clarke by telephone each week. However, I also accept that there is still a need for the grandparents to be able to intervene in such calls if they become distressing or destabilising to the child.
Should there be an injunction preventing the child from spending unsupervised time with Ms I Simpson (his aunt)?
The mother seeks an order preventing the child from spending unsupervised time with Ms I Simpson because she says that she has seen her physically abusing her own children. Again, no reference can be found to this assertion in the mother’s affidavit material. When asked to respond to the assertion that the mother was inventing these allegations in retaliation for Ms I Simpson supporting the grandparents in their application for parenting orders for the child, the mother responded by saying that she was acting as she is “because of her (Ms [I Simpson’s]) drug use”.
There is no basis for restricting the child’s opportunity to spend time with his maternal aunt. I decline to make an order in the terms sought by the mother.
Parental responsibility
The Mother has, subject to Court Order, parental responsibility[85] for the child.[86]
[85] as that is defined in s 61B of the Act
[86] s 61C(1) and (3) of the Act.
Both the grandparents and the mother seek an order for sole parental responsibility for the long term issues in relation to the child. I accept the grandmother’s evidence that she did not feel safe in her ability to interact or converse with the mother because she thought anything she said would be misconstrued. The parties could not even reach agreement about whether the child needed to go back to an optometrist for a check up.
These two matters are but two small examples of what I consider is overwhelmingly established by the evidence: namely, that the parties no longer have the capacity to communicate or reach joint decisions about the child as they would be required to do if an order for joint parental responsibility was made.[87]
[87] s 65DAC of the Act.
I am not persuaded that an order for equal shared parental responsibility is in the child’s best interests. The existence of such an order would simply be highly likely to place him in the middle of disagreements and, as was the case with the optometrist, expose him to unnecessary delay in having decisions about such issues made.
Given their involvement in his life, that he will continue to live primarily with them and their exemplary discharge of the responsibilities of caring for the child in the past, I am well satisfied it is in the child’s best interests for the grandparents, jointly or solely, to have sole parental responsibility for major long-term issues relating to the child.
Counselling
The child has attended on a counsellor for an extended period of time. Given the orders I intend to make about the allocation of parental responsibility, I consider it appropriate to leave the determination of his continued involvement in counselling to the grandparents.
A Passport for the child?
The grandparents seek to be able to apply for the child to be issued with a passport without the mother’s permission. They wish to be in a position to take him overseas for holidays on occasion. There was no difficulty with them providing details of the trip to the mother but they were concerned that she would not agree or sign the documents necessary to enable a passport to be obtained.
I consider it to be beneficial for the child to be able to travel overseas with the grandparents, or either of them, if this opportunity arises. Whilst it may not be necessary, I propose to make orders requiring the mother to sign all documents necessary to facilitate the child obtaining a passport. In the event she does not do so, a Registrar of the Court will be empowered to sign in her place. This will eliminate the necessity for future application to the Court in the event the mother does not sign the necessary documents.
Provision of information to the child’s counsellor
It was apparent during the grandfather’s cross-examination that he has previously spoken to the child about the process in this Court. I accept that following the July 2011 Order, it was appropriate for the child to be told about what was happening.
The child clearly knows about the proceedings. I accept the grandparents will act to explain the terms of the order I make in a manner that is appropriate to his age and level of understanding. I also accept they will explain the details of the orders and what they mean.
The grandfather said that if the finding was that there had been no offence committed against the child he would tell him about this. His view was that the child would not be surprised.
Whilst in other cases it may be considered that the explanation of the Court’s reasons by an adult to a child of this age is unlikely to be beneficial for that child, the circumstances of this case and the nature of the allegations cause me to conclude otherwise. It is clear the child has been aware of the significant conflict between the households for a lengthy period of time and has suffered anxiety as a consequence of this.
In such circumstances I consider his best interests necessitate the provision of clarification and information to him so he does not wrongly form a view that he is somehow “to blame” or the cause of and, thus, responsible for, the decision I have made about his care arrangements based on the conclusions I have reached.
Given that which has arisen in this case, I consider it more likely than not to be beneficial for the child to be made aware that the Court has reached a conclusion that he has not been the victim of sexual abuse. I am concerned that any prohibition which prevented the child from being told, for example by his counsellor, in an age appropriate manner of the Court’s conclusions may provide a scope for him to think that something inappropriate has happened. This would not be beneficial for him.
Consequently, I propose to order that the grandparents have liberty to provide the child’s counsellor with a copy of these Reasons for Judgment so as to ensure that person is able to undertake appropriate discussions with the child about the orders which will regulate his parenting regime.
For these reasons also, I decline to make an order restricting the grandparents’ ability to discuss such matters with the child.
Final Comments
The Order I make will, I consider, ensure that the child:
a)has the benefit of his mother having a meaningful involvement in his life to the maximum extent possible consistent with his best interests;
b)is protected from physical or psychological harm;
c)receives adequate and proper parenting to help him achieve his full potential; and
d)is able to exercise his right to spend time and communicate with the mother on a regular basis.
It will also ensure that necessary decisions about long term issues such as those connected with his health and education can be made in a manner which will benefit him.
For the reasons outlined above, I am satisfied the orders are in his best interests and I order accordingly.
I certify that the preceding three hundred and eighty (380) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 5 September 2014.
Associate:
Date: 5 September 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness
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