Swan and Collinson

[2017] FamCA 702

FAMILY COURT OF AUSTRALIA

SWAN & COLLINSON [2017] FamCA 702

FAMILY LAW – CHILDREN – Application by the father to review the Senior Registrar’s decision in relation to parenting arrangements – Where the matter comes before the Court as a hearing de novo – Where the father currently spends supervised time with the child and is seeking unsupervised time – Where there are serious concerns relating to the child’s behaviour – Where a single expert report will be available to the Court in a number of months – Where supervision by the paternal grandmother would not allay the mother’s concerns – Where the current interim arrangements should remain in place until such time as the Court has the benefit of the single expert’s report and recommendations – Application dismissed.

APPLICANT:

Mr Swan

RESPONDENT: Ms Collinson

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 5581 of 2014

DATE DELIVERED: 8 September 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Norton Law Group

COUNSEL FOR THE RESPONDENT: Mr Anderson

SOLICITOR FOR THE RESPONDENT: Crawford Ryan Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

IT IS ORDERED

1. That the applications of the father, contained in the Applications in a Case filed 11 April 2017 and 7 June 2017, be dismissed.

2. That leave be granted to the Independent Children’s Lawyer to relist the matter before the Honourable Justice Rees for directions upon the release of the report of the Single Expert, Dr B.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swan & Collinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5581 of 2014

Mr Swan

Applicant

And

Ms Collinson

Respondent

REASONS FOR JUDGMENT

1. Mr Swan (“the father”) and Ms Collinson (“the mother”) are the parents of C (the child) who is aged 6 years. They separated in 2012.

2. On 11 December 2014, orders were made by Senior Registrar Campbell for the father to have supervised time with the child. The father sought to review that decision.

3. On 9 April 2015, the matter was listed before Stevenson J and orders were made by consent which provided for the child to spend time with her father under supervision.

4. Thereafter, the father spent time with the child twice each week under the supervision of either D Group or of two persons both approved by the mother. D Group has provided reports of each session which they supervised. The paternal grandparents were present at most of the sessions. It is accepted that nothing in the supervisors’ reports suggests any concerning behaviour by the child or any of the adults.

5. On 11 April 2017, the father brought an Application in a Case seeking unsupervised time with the child or, in the alternate, that the child’s time with him be supervised by his mother, the paternal grandmother.

6. That application was heard by Senior Registrar Campbell on 26 May 2017 and the application was dismissed.

7. Also on 26 May 2017, on the application of the mother, the Senior Registrar made an order that the father provide to the solicitor for the mother details of his electronic communications devices, his mobile phone numbers, his internet providers and any information which would identify the internet addresses of the computers used or accessed by him. He has not complied with that order.

8. The father now seeks to review the decision of the Senior Registrar in relation to his dismissal of the application to lift the requirement for supervision. He seeks, in the alternate, an order that his mother, the paternal grandmother, be the supervisor. Further, he wishes to change the current time on Friday to occur on Thursday.

9. Thus the Application in a Case comes before me by way of hearing de novo. Because the matter is proceeding as an interim matter, issues of fact, where the parties differ, cannot be resolved.

10. An Independent Children’s Lawyer (“ICL”) has been appointed for the child and orders have been made for the appointment of a single expert child psychiatrist who will conduct interviews in October for the preparation of a report.

11. Dr E, a forensic psychiatrist, was appointed as a single expert to prepare a report in relation to the father’s sexual behaviours. That report dated 28 April 2016 and an addendum dated 25 May 2017, were in evidence.

12. The father’s applications are opposed by both the mother and the ICL.

13. There is no dispute that the child will benefit from having a meaningful relationship with her father.

14. The mother’s case is that it is necessary for the child to be protected from aspects of her father’s behaviour and the supervision by a professional supervisor is the only effective method of protection.

15. The mother raises concerns both about the father’s behaviour and about the child’s behaviour.

THE MOTHER’S CONCERNS ABOUT THE FATHER’S BEHAVIOUR

1. I do not propose to set out here all of the evidence of the mother but rather to demonstrate that the father’s sexual activity, according to the mother, insofar as she has had access to his computer and texts, is indiscriminate and uncontained and involves multiple partners of both sexes.

2. Insofar as the mother sets out in her affidavit the father’s text messages, emails and websites visited, that evidence is not in dispute.

3. In her affidavit sworn 1 September 2016 the mother deposed that, after she and the father separated in late 2012, she became aware of:

   … certain behaviour by him engaging in sexual activity with both men and women in a highly sexualised manner, which involved a high level of electronic communication between [the father] and others that included making arrangements for sexual activity with strangers via websites [named].

4. The mother deposed:

   By examining [the father’s] communications both by email and by checking his mobile phone, I learned that he had been participating in random sexual encounters with men, transsexual people and women. … There are a very large quantity of SMS and email communications which I cannot summarise of a sexual nature between [the father] and other persons. There are thousands of messages between [the father] and other people replying of a sexualised nature. There are communications almost every day and on some days more than 100 outgoing messages from [the father] in a day.

   [The father] was looking at these sites and pornography often at times when he was home alone and caring for the child.

   I am aware that [the father] was engaging in group sex sessions, attending a sex club, glory holes and meeting other men in public places for the purposes of performing sexual acts.

5. The mother deposed to specific emails and SMS messages sent by the father in relation to arranging sexual encounters, including an arrangement with a 16 year old boy.

6. The mother deposed that when she confronted the father in December 2012, he said to her “I’ve been unfaithful but I didn’t want to do those things, but I can’t control or even remember that I was doing them”.

7. The mother deposed that later in the conversation, the father said to her words to the effect of “I seek these interactions primarily when I’m stressed or bored”. She said to the father “What about the 16 year old boy at [P Centre] toilets? It’s only minutes from where you work.” And he replied “I didn’t realise that he was only 16”.

8. The mother deposed that the father said he had been participating in such activities since he was 15 years old.

9. The mother deposed that she gained access to deleted files on the home computer and viewed various video pages containing pornographic material including material referrable to “cute amateur teen”; “teen couple plays”; “daughters mouth”; “teen webcams”; “first time teen”; “play – teen categories”; and “free teen”. In all, the mother deposed that there were 44 separate sites on the computer where the father had access to pornographic material.

10. On 15 March 2013, the mother received a text message from the father which said “I don’t know what to say. I won’t be a problem anymore for you both. I’m sorry. Goodbye.” She later received another message which said “Look after her please. Tell .fr (sic) that I love her and I love you.”

11. On 17 March 2013, the mother received another text message from the father which said:

    … I hope you don’t delete this message. I have not had time to write a will. I leave everything to you. While it may not be much the house, [Swan] trust, all my superannuation accounts. I also have long service leave as well. Please look after our daughter. Tell her that I do love her. You are an amazing person and I love you so very much. I am sorry for all the pain I have put you in. Please know that I am sorry. Mum and Dad will always be there for you both. Please don’t shut them out. I am tired babe. Give my girl a big kiss for me. I love her.

12. After receiving that message, the mother contacted the father’s parents and expressed her concerns that the father was contemplating suicide. The mother also called the police. The father was found and taken to hospital.

13. On 6 May 2013, the father sent SMS messages to the mother which read:

    I have not done anything. I just want you to know that. No lies anymore. I love you and the child. Please always let her know that. Tell her that I love her and I will always look down on her. Goodbye.

    and,

    At least it will be for the best. [The child] and you can now move on. Just let Mum and Dad be part of her life.

    The father sent a third SMS which read:

    Hi. I tried to call. I guess you don’t want to speak to me.  I just want you to know I have nothing to hide. For what it is worth I have never been more honest to you as I have over the past six weeks. I know what I want and the person I want to be. Goodbye … I love you and our baby girl more than anything.

14. The mother accepts that the father is no longer a suicide risk.

15. It is the mother’s case that the father’s uncontained sexual behaviour poses a risk to the child unless he is restrained by the presence of a professional supervisor.

THE REPORT OF DR E

1. Dr E, a forensic psychiatrist. He prepared an addendum report dated 25 May 2017.

2. In the report, Dr E stated:

   I was not able to conclusively form an opinion as to whether [the father] did or did not suffer from a compulsive component to his sexual activity on the basis of the information made available to me, and the single interview with [the father].

   I was not able to establish independently the accuracy of [the father’s] description of a significant decrease in his sexual activity over the recent past.

   I was not aware that [the father] had any specific treatment for a compulsive component to his sexual activity.

   In the first instance, I would recommend that [the father] take the opportunity with a suitably qualified and experienced forensic psychiatrist and/or psychologist, to explore his sexuality in more detail, with a view to identifying any potential compulsive component to his sexuality, or specific sexual deviance, prior to instigating any specific treatment, with the treatment type and duration dependent on the outcome of this assessment process. Such a psychotherapeutic assessment process should take place over approximately 6 x 1 hour sessions, with further sessions dependent on the progress of these sessions and their outcome.

   If a compulsive component to his sexuality were identified, the most effective treatment would be a combination of psychiatric medication and psychotherapy, over an extended and indefinite period of time, of years rather than months.

3. The purpose of the orders made by Senior Registrar Campbell on 26 May 2017 were to allow the mother and the ICL to ascertain whether the father’s assertion, that he was no longer engaging in his previous behaviour to the same degree, was in fact true. Because he has not complied with that order, it is not possible to say whether his assertion should be accepted.

4. Only the father is in the position to satisfy the Court that he no longer engages in such behaviour. He has chosen not to do so.

5. Further, there is no evidence that the father has engaged in therapy of the nature recommended by Dr E or has in any way addressed his behaviour.

THE MOTHER’S CONCERNS ABOUT THE CHILD

1. The mother deposed that in May 2016, she became aware of an incident involving the child and a child of the same age at preschool. The children were found by the staff in the toilets exposing their genital areas to one another. The child later said that the other child had inserted his finger into her bottom.

2. The mother initiated a meeting with the preschool at which a representative of the Department of Family and Community Services (“DFCS”) was present. The mother deposed that during the meeting, the preschool educator said to her words to the effect of “We are concerned with the child’s precocious and sexualised behaviour”. The person from DFCS offered to give the mother a referral to a counsellor “who you can attend upon to learn how to assist the child in not acting in an overly-sexualised manner”. The mother heard nothing further from DFCS and sent an email asking for a referral but did not receive a reply.

3. On 24 March 2017, the mother was notified by the child’s after school care provider that “[C] exposed herself on the bus and used a small toy to touch her vagina. She then attempted to rub that toy in the faces of the boys on the bus”. The mother had a conversation with the child where she recounted what she had been told and said to the child “Do you think that is the right thing to do?” The mother deposed to the following conversation:

   [C]:       “No Mamma.”

   [The mother]:          “Where did you get the idea to do that?”

   [C]:       “It was just in my brain.”

   [The mother]:          “Did you see it somewhere? How did you get that idea into your brain?”

   [C]:       “It was just in my brain.”

   [The mother]:          “[C]. Your private areas are your private areas. No one should see them or touch them. Does anyone touch your private areas, the child?”

   [C]:“Yes.”

   [The mother]:          “Who?”

   [C]:“Daddy does.”

   [The mother]:          “How does he touch you?”

   [C]:“He lifts my top up like this.”

   Whereby the child raises her top a little and said:

   “And then he puts his hand in here.”

   [C] put her hand inside her pants and goes down to near where I expect her vagina is.

   [C]:“and goes down, down, down and rubs around and around.”

   [C] started to make small circling motions with her hand near her vagina.

   [The mother]:          “Where does this happen?”

   [C]:       “At Daddy’s house.”

   [The mother]:          “In what room does this happen in?”

   [C]:       “On the lounge.”

   [The mother]:          “How does that make you feel?”

   [C]:       “It makes me feel horrible.”

   [The mother]:          “Do you tell your Dad that it makes you feel horrible?”

   [C]:“Yes but he doesn’t listen.”

   [The mother]:          “Does anyone else touch you on your private area?”

   [C]:       “No.”

   [The mother]:          “[C], I want you to know that no one should touch you in your private area.”

   [C]:       “Okay Mamma.”

   [C] then paused and said “Mamma, everything I just said was fake. Only the stuff I said before Dad was true.”

   [The mother]:          “[C], are you sure?”

   [C]:       “Yes Mamma.”

4. The mother was referred to a child psychologist. A report was made to DFCS.

5. The child was interviewed by JIRT on 21 April 2017. The child did not disclose that anyone had touched her inappropriately and said that the only person who had ever touched her private parts was her mother when she was bathing her.

6. On 26 April 2017, a worker from the child’s after school care told the mother that the child had been very upset that day and had been found punching herself in the face with both of her fists.

7. The child was very unsettled again on 27 April 2017. When the mother collected the child, the after school care worker took the mother aside. As they were speaking, the mother was watching the child. She deposed:

   I was watching [the child] while I was speaking to [the worker] and saw her approach a little girl who was accompanied by her father. The little girl appeared to be below school age. I saw that [the child] had got the child on the ground and was lying on top of her and appeared to be about to kiss her. I went over and took [the child] away from the little girl. I said to the child: “What were you doing?” to which [the child] said: “That girl was so beautiful.”

8. Later in April 2017, the child said to her mother “No one loves me and I want to kill myself!”

9. On 1 May 2017, the child’s teacher said to the mother “I saw [the child] touching herself in a penetrative way in the classroom on 28 April.” The mother deposed:

   [The teacher] said: “[the child] was excited and said, ‘I’m going to visit my father’, and it was not long after that I observed her touching her vagina.” [The teacher] then said: “I said to [the child], ‘Why are you touching yourself like that? I haven’t seen you do that before.’” [The teacher] then said: “[the child] seemed embarrassed and replied, ‘Because it feels good’.”

10. On 3 May 2017, when the mother collected the child from after school care, the carer told the mother that the child had said “Just kill me. I want to be dead”. The carer said that the child had asked for a knife.

11. On 4 May 2017, when the mother collected the child from after school care, the mother was told that the child had run away and had to be chased by a security guard. When the mother asked the child why she had run away, the child said “I didn’t want to be around anyone. I wanted to be by myself.”

12. On about 5 May 2017, the mother received a copy of a letter written by the father’s solicitors to the mother’s solicitors. In the letter, the mother was asked to provide particulars of the incidents to which reference has been made earlier. The mother deposed:

    So that I might provide an answer to the questions provided in the correspondence, I initiated a conversation with [the child] in which I said to her: “Do you remember what you told me about Dad touching you on the lounge?” to which [the child] replied “Yes.” I said “Do you remember when that was?” to which [the child] said “I don’t remember.” I said “Do you remember if someone was there? Like Miss [F]?” (Ms [F] is one of the [D Group] supervisors). [The child] said “I don’t know. Dad only touched me one time, so that means it’s okay, alright? I don’t want my Dad to get into trouble.”

13. On 8 May 2017, one of the after school care workers contacted the mother and said, “We are concerned about an incident on 5 May. The child and a group of boys were playing with a doll and tied the doll up. The child said to the boys, ‘Spread her legs, spread her legs’ during the play. We stopped the game and asked [the child] to put the doll away.”

14. On 9 May 2017, the mother discussed the child’s behaviour with her teacher who subsequently organised for the child to engage with the school counsellor. The mother met with the school counsellor on 10 May 2017, and informed the counsellor about the child’s recent sexualised conduct. The school counsellor said to the mother “I can help with the child’s emotional needs or any school adjusting difficulties that the child may have, but you need to get professional help for the child’s sexualised behaviour.”

15. On 19 May 2017, the mother’s friend Ms G was caring for the child. She deposed that, without prompting, the child said to her “My Dad touched me”. Ms G said to the child “It’s very important to tell the truth to adults, including the Police and Mummy.” the child said “It only happened once and his Mum would be very cross”. Ms G asked the child whether she was referring to her own mother or the father’s mother, and understood that the child was referring to her paternal grandmother.

1. On 22 May 2017, when the mother went to collect the child from school, a teacher told her that there had been an incident during the day when the child was so enraged and angry that the teacher thought she was going to throw herself off the balcony and the child needed to be restrained and calmed.

2. In May 2017, with the assistance of the ICL, the mother organised for the child to commence counselling with Dr H, a psychologist of J Group. The child’s first appointment at J Group was on 8 June 2017.

3. Dr H recommended that the child engage in a form of equine assisted therapy. Dr H reported to the ICL on 8 June 2017:

   [C] presented as an unusual child who was indiscriminate in her attachment relating to me in a (sic) overly familiar manner. She was observed to have poor boundaries and to struggle to do what was being asked. She was observed to ignore what her mother was requesting and of being very rigid, specifically when she had a plan in her mind of what she was going to do she was hard to redirect.

   [C] stated when alone in the room that she was here today to “talk about her deep feelings” … “like bad stuff” … “horrible stuff”. She was not pushed to elaborate on this.

   I am concerned by her atypical presentation and recommend that a thorough assessment and treatment process commence. I recommend that she participate in both room based and experiential work.

4. The child has been attending equine assisted therapy weekly, at a cost of between $730 and $1,100 per week, which is paid by the mother. The mother is required to take a day off work and thus her income has been reduced. The mother has also reduced her working hours so that the child no longer attends after school care.

5. On 31 July 2017, J Group wrote a letter to the ICL stating:

   We have been advised by [the mother] that the child’s situation at school is deteriorating and she risks being expelled. In collaboration with the child’s current school, Dr [H] advises that we commence the referral process to [K] Service with a view of her being placed into [L] School. [L] School is a specialised school in [Suburb M] for primary students with emotional and behavioural difficulties.

6. On 3 August 2017, J Group wrote a letter to the ICL stating:

   Since speaking to you on Monday in regards to [the mother’s] concern about the child’s situation at school deteriorating, we have been in touch with her school counsellor and have decided to hold off on proceeding with the referral through [K] Service at this stage. The school has reassured us that expulsion from school will be a last resort for the child. Seeing as things are not yet at this point, we are in full support of her remaining at [school] for as long as possible. If things deteriorate further and the child risks getting expelled, only then will we consider a referral through [K] Service. We have also discussed this with [the mother] who feels reassured and is on board with this plan moving forward. We will keep you updated with any further changes to ensure both parties can be kept informed.

7. On 4 August 2017, Dr H wrote to the ICL and stated:

   As your (sic) aware both parents have engaged well here with me. I am very confident that there is a lot we can do therapeutically to support the child and both her parents.

   I would like to propose that the following occur:

   1.A referral be made to our Clinical Neuropsychologist to conduct an ADOS assessment with a view of teasing out diagnostically what is occurring for the child as I am suspicious that some of her behaviours and current difficulties may be the result of her being on the Autism Spectrum.

   2.Continued assessment of the child occur here by myself and my colleague [Ms N].

   3.Both parents meet with me as necessary to discuss the child and any of her difficulties.

   4.Both parents meet with [Ms O] our Family Therapist to support them to have parenting conversations moving forward.

   5.[C] continue to have [equine assisted therapy]. sessions to address her poor boundaries, indiscriminate relating and boundaries.

8. On 14 August 2017, the child’s teacher expressed concern about conflict between the child and another child and said that the child had to be kept away from that child.

9. On 18 August 2017 the child choked another child. The mother was informed and spoke to the child about the incident. The child told her mother that she wanted to kill herself.

10. On 23 August 2017 the mother took the child to her gymnastics class. She was asked by the instructor to come and collect the child who had bitten her gymnastics instructor. The child refused to apologise and the mother took her home. The child said to her mother “I want to kill myself, I just want to die. I am a stinky, stupid, ugly girl. I want to be left alone to die.” The mother deposed that the child continued to say that she wanted to die for about half an hour.

11. The father gave the child a toy cat for her birthday. The child told her mother “I kissed the cat on the mouth and put my tongue in.” When asked why she did that the child replied “Because I like it”.

12. On 31 August 2017, when the mother was dressing, the child was playing with a Batman toy. She said to her mother “Batman’s taken a photo of your bottom”. The mother replied, “Well, we don’t take photos of people’s private parts” to which the child replied “Well he has”.

13. On 1 September 2017, J Group informed the mother that “an assessment isn’t indicated for Autism at this stage, as a result of their testing.” J Group recommended an academic and intellectual assessment and ongoing therapy to help the child with emotional regulation and processing trauma.

14. Also on 1 September 2017, J Group sent a letter to the mother by email which stated:

    [C’s] results came back well below the cut off for further assessment on the ASD screener …

    It is wonderful we can rule ASD out of the picture for her recovery moving forward. I hope you understand the benefit of us carrying out the ASD screener which allowed us to ensure we are focusing on the right explanations for the child’s behaviour and not missing anything. We will continue to focus on her trauma–enduced (sic) emotional dysregulation as well as her disruptive behaviour in the classroom. The next step will also be to go through [named] assessment summary so we can rule out any learning difficulties which could be contributing to her disruptive behaviour in the classroom, especially considering the child often claims that the school work is hard. I would then like to support and help you set up a behaviour management plan with the school to ensure the child is receiving the best care and support from [her teacher] and the school counsellor.

15. C is clearly a very troubled little girl and her emotional state is fragile and vulnerable.

SUPERVISION BY THE PATERNAL GRANDMOTHER

1. The mother opposes the appointment of the paternal grandmother as supervisor.

2. The paternal grandmother has sworn an affidavit in the proceedings as to her willingness to supervise and stated “I am aware that allegations have been made against [the father], and they need to be taken seriously until this matter has been appropriately determined.” Counsel for the father told the Court that the paternal grandmother had not read the affidavit of the mother containing the specific details of her evidence but she had been told by the father’s solicitor of the nature of the allegations.

3. The paternal grandmother deposed that she had witnessed sexualised behaviour by the child as recently as 7 July 2017, presumably during a supervised visit.

4. The mother deposed that she and the father’s parents arranged to meet in early 2013. The mother deposed that, pressed by the paternal grandmother to give an answer as to why the relationship had broken down, she said to the paternal grandmother, “[The father] has been having frequent interaction with random men and women and an adolescent boy. [The father] has told me he doesn’t have control over his actions and that he might be suffering from some type of dissociative order (sic).”

5. She also said, “He told me this started when he was fifteen years old. Most of the meetings seem to occur in public toilets but I suspect there have been interactions at home as I would often come home from work and find that there was no hot water so that I could have a shower.”

6. The mother deposed that she agreed that the paternal grandmother could continue to care for the child but that she said to the paternal grandmother “I can leave [the child] with you, provided you promise you will not allow [the father] to be one on one with [the child] during that time and you will not allow anything to happen to her.” She deposed that the paternal grandmother replied “Do you think [the father] would do anything to hurt [the child]?” And she replied “I can’t be sure, but I know that [the father] has a sexual dysfunction, is emotionally unstable and has not coped with [the child].”

7. The mother deposed that, notwithstanding the conversation, to which reference is made earlier in these reasons, on either 12 or 14 March 2013, the paternal grandmother told her “I let [the father] take [the child] to the ‘ducky park’”. When the mother said that the paternal grandmother should not have allowed that to occur, the paternal grandmother replied “I don’t think you’ve got a reason to be concerned. [The father] wouldn’t hurt [the child].” The mother deposed that she said to the paternal grandmother, “[The father] is adjusting to antidepressants and is suicidal. There was a man who threw his daughter off a bridge the other day.” The paternal grandmother replied “I thought it might help [the father] emotionally to take [the child] out to the park”. The mother replied “we had an agreement and I asked you to ensure that [the father] didn’t supervise [the child] independently.”

8. The mother deposed that, given the history of the father making arrangements on a random basis to meet people in public toilets for sexual encounters, she was concerned about the fact that he had been allowed to take the child alone to a park.

9. The paternal grandmother disputes the mother’s version of those events. Specifically, she denies that the mother asked her not to leave the child with the father.

10. That dispute cannot be determined here.

11. On 9 May 2013, the child had a specialist appointment. The mother had prepared the child to spend the day with the paternal grandmother. The paternal grandmother allowed the father to take the child to the appointment without the mother’s knowledge and did not accompany him.

12. The mother deposed that on 9 June 2013, the paternal grandmother visited her at home. The mother deposed that she said to the paternal grandmother on that occasion “You cannot leave [the child] one on one with [the father]”. The mother deposed that she and the paternal grandmother spoke about the time when the father took the child to the park and how the father was suicidal. She said to the paternal grandmother “Most of [the father’s] activities are with random men and occur in public toilets in parks … Is there a public toilet at the ‘ducky park’?” To which the paternal grandmother replied “Yes. I didn’t even consider that”.

13. On 10 June 2013, the mother received another series of messages from the father which she interpreted to be threats of suicide.

14. On 2 July 2013, the mother delivered the child to the paternal grandmother and remarked that she thought the child may be developing conjunctivitis. When the mother collected the child that afternoon, the paternal grandmother told her that she and the father had taken the child to the doctor. The mother asked why she had not been informed, “Especially since I spoke to you twice after you had taken her to the doctor” and the paternal grandmother responded “Oh, I didn’t think to inform you. I was busy when you called the first time and it slipped my mind on the second call”.

15. The mother deposed that on 13 July 2013, the child was being cared for by the paternal grandmother and the father was present. On that occasion, the mother deposed that he was exchanging SMS messages with a prostitute between 2.30 pm and close to midnight. The mother collected the child from the home of the paternal grandparents at about 8.30 pm. During the time that the child was at the paternal grandparents’ home from about 2.30 pm onwards, there are in excess of 30 messages to and from the prostitute and the father.

16. On 18 July 2013, the mother contacted the paternal grandmother and said to her that she could not leave the child in her care anymore.

17. The mother deposed that on 21 July 2013, the paternal grandmother came to her home and the mother saw her looking through the window. The paternal grandmother said to the mother “I want the child back in my care. I don’t care what [the father] does or who he did it with.” The mother replied “Because of [the father’s] behaviour I feel more secure placing the child in day care”. The paternal grandmother then said “Prove [the father’s] behaviour”. She then said “I don’t believe that [the father] has been conducting himself inappropriately or that he poses a threat to [the child].” The mother said:

    You made a commitment to me by promising you wouldn’t leave [the child] with [the father] one on one, yet you repeatedly have left [the child] in a vulnerable position by leaving her with him … Even if you don’t believe [the father] suffered from a sexual dysfunction, why do you leave [the child] with someone who is suicidal and adjusting to antidepressant medication?

18. In the course of that conversation, the mother deposed that the paternal grandmother said to her that she wanted the child’s passport.

19. On 26 August 2013, the paternal grandmother visited the mother’s home without notice. The mother deposed that this was the third time within four days that the paternal grandmother had visited and she decided not to answer the door. Thirty minutes later the mother was leaving the home with the child and the paternal grandmother was waiting by the gate. The mother asked the paternal grandmother to leave.

20. If, ultimately, the mother’s version of the events surrounding the time the child spent with her father and paternal grandmother in 2013 is accepted, and it is accepted that she allowed the father to take the child to the park against the mother’s express instructions, then the paternal grandmother would not be an appropriate supervisor. However, that issue cannot be determined here.

21. Supervision in matters such as this has a number of features. First and foremost, it ensures that the child is protected. Secondly it ensures that the father is protected from allegations which might arise in the course of the visit. If the supervisor is objective and professional, there could usually be no doubt that there had not been any inappropriate behaviour towards the child. If the supervisor is a member of the family, the doubt might be greater. The third purpose of supervision is to allay the fears of the mother.

22. I accept that the mother does not believe that the paternal grandmother would be an objective supervisor and that she also believes that the paternal grandmother would, first and foremost, act in the interests of the father. Supervision by the paternal grandmother would not allay the mother’s concerns about the child during the time she is with her father.

THURSDAY AFTERNOON

1. The father currently spends time with the child on Fridays. He is able to leave work at 2.30 pm on Thursdays and could collect the child from school on Thursdays and have some interaction with her teacher and some, albeit limited, involvement with her school.

2. The mother opposes that alteration.

3. On behalf of the mother, it was submitted that the child’s time with her father should not impinge on her school week.

4. The child’s present situation is precarious. She is under threat of expulsion and referral to L School.

5. It is not possible to predict whether any change in the current arrangements would further destabilize the child but that is a risk that I am not prepared to take.

CONCLUSION

1. These proceedings are interim only and at a time when there are interviews scheduled with the Single Expert, Dr B, in October in anticipation of the report being available in December.

2. I accept that the father is frustrated by the imposition of supervision in circumstances where the reports of the professional supervisors suggest a warm, loving and appropriate interaction between father and daughter.

3. However, I also accept that the child is displaying serious and disturbing behaviour which has a sexual element.

4. Absent the evidence of the Single Expert, it is not possible to determine whether anything done by the father has contributed to the position in which the child finds herself.

5. The Court cannot be comfortably satisfied that there is no risk to the child in removing the supervision or in replacing the supervisor with the paternal grandmother. Absent such comfortable satisfaction, any risk is unacceptable.

6. Until the evidence can be properly tested, the priority is to keep the child safe from risk of harm to the full extent that is available.

7. Professional supervision is the most certain and effective way to achieve that aim.   

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 8 September 2017.

Associate: 

Date:  8/9/2017