Wadlow and Kaldman and Ors
[2013] FCCA 1033
•7 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WADLOW & KALDMAN & ORS | [2013] FCCA 1033 |
| Catchwords: FAMILY LAW – Parenting – living arrangements for child aged five years – competing applications for residence between the child’s second cousin and the maternal grandfather – child has lived in the care of the applicant, the child’s second cousin, since June 2009 in Victoria – the child’s mother and father live in South Australia – child has spent limited day time only with the mother between June 2009 and July 2011 and has spent no time with the mother since July 2011 – child has spent no time with the father since June 2009 – child has spent limited day time only with the maternal grandfather between May 2009 and July 2011 and supervised time for two hours each month with the maternal grandfather since June 2012 – serious allegations made against the maternal grandfather by the maternal grandfather’s step-daughter of physical and sexual abuse – found maternal grandfather poses an unacceptable risk of abuse to the child – orders made that child live with the applicant, child spend no time with the maternal grandfather and for the mother and the father to send gifts, cards and letters. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 B v B (1993) FLC 92-357 M v M (1998) FLC 91-979 Potts & Bims [2007] FamCAFC 394 Donnell v Dovey [2010] FamCAFC 15 |
| Applicant: | MS WADLOW |
| First Respondent: | MS KALDMAN |
| Second Respondent: | MR MADDIN |
| Third Respondent: | MR OLDHAM |
| File Number: | MLC 6633 of 2011 |
| Judgment of: | Judge Bender |
| Hearing dates: | 6, 7, 8 and 9 May 2013 |
| Date of Last Submission: | 9 May 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 7 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gordon |
| Solicitors for the Applicant: | David Joseph & Co |
| Counsel for the First Respondent: | Not applicable |
| Solicitors for the First Respondent: | Self represented |
| Counsel for the Second Respondent: | Mr Lowy |
| Solicitors for the Second Respondent: | Lampe Family Lawyers |
| Counsel for the Third Respondent: | Ms Portelli |
| Solicitors for the Third Respondent: | Victoria Legal Aid |
| Counsel for the Independent Children’s Lawyer: | Ms O’Connell |
| Solicitors for the Independent Children’s Lawyer: | McKean Park Lawyers |
ORDERS
All previous parenting orders be discharged.
The applicant have sole parental responsibility for the child [X] born [in] 2008 (“[X]”).
[X] live with the applicant.
The first-named respondent mother and the second-named respondent father be permitted to send a card, letter and gift to [X] on special occasions such as birthdays, Christmas and Easter and correspondence or gifts no more than once per fortnight, with such letters, cards and gifts to be vetoed by the applicant prior to being given to [X].
The third-named respondent maternal grandfather spend no time with [X].
The third-named respondent maternal grandfather be and is hereby restrained from approaching, communicating with or being within
500 metres of [X].
The applicant is authorised to provide a copy of these orders to the principal of any kindergarten or school attended by [X] and to all of [X]’s treating medical practitioners.
IT IS NOTED that publication of this judgment under the pseudonym Wadlow & Kaldman & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 6633 of 2011
| MS WADLOW |
Applicant
And
| MS KALDMAN |
First Respondent
| MR MADDIN |
Second Respondent
| MR OLDHAM |
Third Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the living arrangements for the child [X] born [in] 2008 (“[X]”).
The applicant is the mother’s cousin and therefore [X]’s second cousin. The first-named respondent is [X]’s mother, the second-named respondent is [X]’s father and the third-named respondent is [X]’s maternal grandfather.
[X] has lived with the applicant since June 2009.
[X] has spent very spasmodic and limited day time only with the mother between June 2009 and July 2011. [X] has spent no time with the mother since July 2011.
[X] has spent no time with the father since June 2009.
[X] spent limited day time only with the maternal grandfather between June 2009 and July 2011. [X] spent no time with the maternal grandfather from July 2011 to June 2012. In June 2012 the maternal grandfather commenced spending supervised time with [X] for two hours each month at [omitted] Contact Centre pursuant to orders of this Court.
The applicant is seeking orders that she have sole parental responsibility for [X], that [X] live with her, that the mother and father be permitted to send cards, letters and gifts to [X] for special occasions together with cards, gifts and photos no more than once per fortnight to be vetoed by the applicant, that the maternal grandfather spend no time with [X] and that the maternal grandfather be restrained from approaching, communicating or being within a five kilometre radius of the applicant and [X]. These orders accord with those recommended by the Independent Children’s Lawyer.
The maternal grandfather is seeking orders that he and the mother have equal shared parental responsibility for [X], that [X] spend time with the maternal grandfather each alternate weekend for three months, thereafter each alternate week for a period of four months and at the conclusion of that four month period, [X] live with him. The maternal grandfather proposes that once [X] is living with him, [X] spend one weekend each month with the applicant. The maternal grandfather also proposes that [X] spend such time with the mother and the father as is agreed between the maternal grandfather and the mother and the father.
The mother’s current proposals are difficult to ascertain. In her Response filed 2 November 2011 the mother sought orders that she have sole parental responsibility for [X] and that [X] live with her. At the final hearing of this matter, the mother did not seek orders that [X] live with her but rather supported the maternal grandfather’s application that [X] live with him and spend time with her as agreed between herself and the maternal grandfather.
In the event that [X] continues to live with the applicant, it is the Court’s understanding that the mother is seeking orders that she be permitted to send cards, letters and gifts to [X] and to initially spend regular supervised time with [X]. The mother did not put before the Court any details of how often and where such supervised time was to take place or when, or if, such time could or should move to unsupervised time.
The father’s proposal for the time [X] should spend with him is uncertain. In the Outline of Case document filed on 7 May 2013 on behalf of the father, the orders proposed by the father were for [X] to live with the person the Court deemed most appropriate and for the father to spend time with [X] near her birthday and Christmas and that from 2014 [X] spend time with the father for one day in each school holiday period in South Australia, where the father lives.
At the final hearing, the father’s Counsel proposed that the father be afforded the opportunity to regularly send cards, letters and gifts to [X] and that if the father was able to demonstrate a commitment to [X] by regularly sending cards, letters and gifts, then the possibility of face-to-face time between the father and [X] could be considered, with such time to be supervised by [X]’s primary carer.
As noted earlier, the applicant’s proposal is in accordance with the recommendations of the Independent Children’s Lawyer.
Background
[X] is the youngest of the mother and the father’s four children. The older three children are [A], aged 14 years, [B], aged 11 years, and [C], aged six years.
The mother and the father, who resided in and still reside in Adelaide, were in a relationship from 1997 to 2009. In 2009, the parties separated under the one roof and in March 2009 the father and the four children moved to live with the father’s brother and girlfriend whilst the mother sought alternate accommodation.
At the end of April 2009, [C] and [X] returned to the mother’s care and [A] and [B] remained with the father at his brother’s home.
In May 2009, the South Australian child protection authorities became involved with the family due to concerns about the parties’ care of the children.
In June 2009, the father was admitted to hospital because of a severe psychotic episode. He was diagnosed with schizophrenia. In July 2009, the father was transferred to [W], a residential care facility where he remained for approximately 12 months. [A] and [B] remained in the care of the father’s brother and partner.
In late May/early June 2009, the mother asked her parents, who lived in [omitted] in the State of Victoria, to look after [C] and [X] as she was not coping. The maternal grandmother was terminally ill with cancer at that time. Accordingly, the maternal grandparents were unable to take on the care of two children and it was therefore agreed that the applicant would care for [X].
Having travelled to Adelaide to collect [C] and [X], the maternal grandfather delivered [X] to the applicant at her mother’s home in [omitted].
In the latter part of 2009, [C] returned to Adelaide to live with the mother. [C] remains in Adelaide living with the mother.
[A] lives in Adelaide with the paternal grandmother.
[B] lives in Adelaide with the paternal uncle.
As noted earlier in this judgment, [X] has spent no time with the father since coming into the applicant’s care. The mother saw [X] on approximately half a dozen occasions at the applicant’s home or at the applicant’s mother’s home in 2009 and 2010. The mother saw [X] briefly in July 2011 and has not spent any time with [X] since.
It is the applicant’s evidence that when [X] was first placed in her care, her face was covered in scratches and bruises, her fingernails were missing on one hand, she was not speaking, she was very fearful of people, particularly men, and she was malnourished. This is disputed by the mother and by the maternal grandfather.
[X] continued to exhibit behavioural and developmental difficulties after coming into the applicant’s care including difficulties with self-harm, speech, sleeping patterns, walking, social interaction with others and extreme emotional reactions when upset or angry.
Because of [X]’s difficulties, the applicant sought the assistance of a number services and professionals.
The applicant and [X] engaged with [omitted] Early Childhood Intervention, who has provided in-house occupational therapy and speech therapy to help with [X]’s walking and speech.
[X] sees Dr S, paediatrician, approximately once every six months.
Dr S has prescribed ‘Catapres’ to assist with [X]’s sleep problems.
Because of [X]’s behavioural and emotional issues, in 2012 [X] was referred to the North East Child and Adolescent Mental Health Service (“NECAMHS”). At NECAMHS, [X] is assisted by Dr F, clinical psychologist, and Dr W, child and adolescent psychiatrist.
In 2013 [X] commenced kindergarten at [omitted] Kindergarten. NECAMHS has worked and continues to work closely with [X]’s kindergarten to assist them in managing [X]’s needs. [X] receives assistance from occupational therapist Ms P from [omitted] Early Childhood Centre. Ms P provides fortnightly therapy at home as well as working with [X]’s kindergarten.
[X] had the assistance of a teacher’s aide in her first term at kindergarten. This assistance has not been necessary in term two.
Procedural History
These proceedings were commenced by the applicant on 26 July 2011 after the applicant was contacted by the mother seeking [X] return to her care.
The matter first came before the Court on 15 August 2011. On that date the matter was adjourned to 8 November 2011 and interim orders made for [X] to live with the applicant and spend supervised time with the mother at [omitted] Contact Centre. The interim orders also provided for the mother to undergo supervised drug screens within 24 hours of a written request to do so being received from the applicant’s solicitor.
On 8 November 2011, the matter was adjourned to 4 June 2012.
A notation to the orders of 8 November 2011 states that the adjournment was to enable the mother’s supervised time with [X] to commence at [Contact Centre].
At no time has the mother availed herself of the opportunity to spend supervised time with [X] at [Contact Centre] and she has not seen [X] since July 2011.
On 30 March 2012, the maternal grandfather filed an Application in a Case seeking to be joined to the proceedings and that orders be made for [X] to spend time with him each alternate Sunday supervised by the maternal grandfather’s sister, Ms W.
On 4 June 2012 orders were made adjourning the matter to 3 December 2012 and joining the maternal grandfather to the proceedings. Orders were also made for the maternal grandfather to spend supervised time with [X] at [omitted] for two hours every four weeks and for the appointment of an Independent Children’s Lawyer.
At the request of the Independent Children’s Lawyer, the matter was listed for mention on 24 September 2012. On that date, the following orders were made:
1. The applicant and the third named respondent sign all necessary documents to assist North East Child and Adolescent Mental Health Services (“NECAMHS”) to prepare a summary report in relation to the child [X] born [in] 2008 (“[X]”) with particular reference to:
(a)presenting problems when [X] first attended upon NECAMHS;
(b)in the opinion of NECAMHS, whether [X] suffers with Autism Spectrum Disorder or some of neurological or psychological deficit;
(c) whether [X] suffers with a sociological or medical deficit;
(d)the diagnosis for [X];
(e)[X]’s expected and anticipated prognosis;
(f)whether, in the opinion of the Chief Paediatric Psychiatrist, [X] is suffering with a psychiatric illness;
(g)having regard to the medical disposition of [X] whether, in the opinion of NECAMHS, it is in [X]’s best interests to have supervised or unsupervised time spent periods with either:
(i) the maternal grandfather;
(ii) the mother; and
(ii) any other third person or member of [X]’s immediate family.
2. The Independent Children’s Lawyer file such report with the Court on or before 31 October 2012.
The report from NECAMHS dated 25 October 2012 was tendered to the Court on 3 December 2012 and will be referred to in detail later in this judgment.
On 3 December 2012, an order was made for a Family Report and the matter was listed for a final hearing on 8 May 2013.
Neither the mother or the father attended upon the Family Report writer for the preparation of the Family Report. It is the evidence of the mother and the father that they did not receive notification of the appointments made for preparation of the Family Report.
On 12 February 2013, the Independent Children’s Lawyer filed an affidavit sworn 11 February 2013 by the maternal grandfather’s
step-daughter Ms C. In her affidavit, Ms C deposes that whilst living with her mother, Ms F, and the maternal grandfather between the ages of seven and 15, she was physically and sexually abused by the maternal grandfather.
After Ms C’s affidavit was filed, the applicant filed an urgent Application in a Case on 18 February 2013 seeking that the maternal grandfather’s supervised time with [X] be suspended. This application came before the Court on 18 February 2013. On 18 February 2013, an order was made for the maternal grandfather to undertake a psychosexual assessment with Dr G and otherwise for the maternal grandfather to spend supervised time with [X] at times and dates as directed by the Director of [omitted].
At the conclusion of the final hearing of this matter and upon the oral application of the applicant, with such application supported by the Independent Children’s Lawyer, orders were made that, until further order, the maternal grandfather’s time with [X] be suspended.
The Evidence
The NECAMHS report
As set out earlier in this judgment, orders were made seeking a report from NECAMHS. The report dated 25 October 2012 and signed by Ms L, clinical psychologist, and Dr W, child and adolescent psychiatrist, was tendered into evidence on 3 December 2012 (“the NECAMHS report”). Ms L and Dr W were not required by any of the parties for cross-examination at the final hearing.
Whilst lengthy, the NECAMHS report will be reproduced in full in this judgment as it enables a full understanding of [X] and the issues and difficulties she has had and is having. The NECAMHS report is as follows:
Summary Report re: [X] (D.O.B. [omitted] 2008)
Date of Report: 25/10/2012
This report has been prepared in response to an order made by Federal Magistrate Bender. The order requests information from North East Child and Adolescent Mental Health Service (“NECAMHS”) with particular reference to matters as detailed below:
a) Presenting problems when [X] first attended NECAMHS
[X] first attended NECAMHS on the 12th January 2012 with her carer, Ms Wadlow. Ms Wadlow reported that [X]’s sleep was very poor, her speech was delayed, she was eating non-food items and was frequently screaming, having tantrums, head banging and showing physical aggression toward others. It was reported that [X]’s mother had neglected her child over her first year of life, and had inconsistent contact since the time when in Ms Wadlow’s care. It was reported that [X]’s father physically abused [X] (pulled fingernails out, tried to drown her in a bath). It was also reported that [X] had deterioration in her well-being and distress after periods of contact with her mother and her maternal grandfather, with a report of the grandfather being physically aggressive to Ms Wadlow and [X] on [X]’s birthday in 2011 resulting in high distress for [X].
b)In the opinion of NECAMHS, whether [X] suffers with Autism Spectrum Disorder or some neurological or psychological deficit.
In the opinion of NECAMHS, [X] does not meet criteria for Autistic Disorder as described in the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition Text Revision (DSM-IV-TR). Please see addendum for a detailed summary of NECAMHS’ assessment of [X] according to the DSM-IV-TR criteria. In the opinion of NECAMHS, [X] suffers from a psychological deficit in terms of a significant delay in her development of emotional regulation. NECAMHS has not become aware of any evidence suggesting that [X] suffers from a neurological deficit.
c)Whether [X] suffers with a sociological or medical deficit.
We are unaware of any medical deficits in [X]. [X]’s social abilities are significantly delayed in their development, as are her abilities to regulate strong emotions that occur within social contexts.
d) The diagnosis of [X]
A DSM-IV-TR diagnosis is not the best way of understanding [X]’s difficulties. A better way is to consider [X]’s experiences of neglect, abandonment, and ongoing anxieties around connections to others. Her core anxiety is around her attachments, and she has had an interruption in her secure development of these. This has led to a disturbance in her ability to manage her emotions and relationships with others. With more consistent parenting, we have noticed a gradual improvement in her emotion regulation and relating abilities, but she is still delayed and requires further assistance to further repair the things she did not receive as an infant.
e) [X]’s expected and anticipated prognosis
NECAMHS has received reports from both [X]’s carer Ms Wadlow and from [X]’s current childcare program ([omitted]) that [X] has been able to make progress in terms of some of her concerning behaviours. During the time that [X] has resided with Ms Wadlow, Ms Wadlow reports that [X] has been able to widen the range of foods which she eats, has begun toileting herself, has developed some language skills, and is able to seek comfort from Ms Wadlow and be soothed by her on some occasions. Childcare staff also report that [X] has made positive gains in terms of her behaviour and language during the period of time that she has attended, with fewer tantrums and more easily understandable speech. If stable, supportive, consistent caregiving is able to be maintained for [X] in the long term, it is likely that she will be able to be able to continue to make progress developmentally, emotionally and behaviourally. It is important for [X]’s development that she is able to have a carer who can commit to parent her and meet her emotional and developmental needs for the duration of [X]’s childhood and adolescence.
f)Whether, in the opinion of the Chief Paediatric Psychiatrist, [X] is suffering with a psychiatric illness
[X] is suffering from a psychiatric illness with distress and significant dysfunction in her thinking, mood, and social relatedness, though at her age not one that easily falls in a DSM-IV-TR category. The closest DSM-IV-TR fit would be:
1) Parent-child relationship disorder
2)Chronic adjustment disorder, with mixed disturbance of conduct and emotion.
g)Having regard to the medical disposition of [X] whether, in the opinion of NECAMHS, it is in [X]’s best interests to have supervised or unsupervised time spent periods with either:
i. The maternal grandfather
ii. The mother; and
iii.Any other third person or member of [X]’s immediate family
To answer this question, it is important to clarify that our response is based on Ms Wadlow’s reports, [omitted] Contact Centre reports, and a summary of reports of South Australian Child Protection made when [X] was aged one, provided by the independent children’s lawyer Mark Finn. We have not spoken to [X]’s mother, father or the grandfather.
It is also important to consider that [X] is in a reparative stage of her attachment / emotion regulation problems, and still has significant difficulties. The core need for her at this point is to develop a secure, predictable and safe attachment to her primary care-giver, and to prevent any experiences that may harm that connection or cause [X] to feel insecure or unsafe. Also, any connection with others would require those people to be able to work in a united way with the primary care-giver, not undermine the primary care-giver, and be consistent, predictable and foremost in their mind [and] think about what [X] needs rather than their own needs.
In view of the above, we would recommend:
1)There be no contact with [X]’s mother. Reports given suggest
a)Contact was unpredictable and truncated or missed, leaving [X] feeling confused and insecure.
b)[X] was frequently distressed during and after contacts even with Ms Wadlow present to support [X], with deterioration in her mood and difficulties managing [X]’s behaviour after these times.
c)There seems to be no developmental advantage for [X] to have contact with her mother at this point, and certainly none that outweigh the disadvantage to [X]’s development and fostering of a secure attachment to her primary carer.
2)We are unable to advise about [X]’s contact with her maternal grandfather
a)We have conflicting reports. Ms Wadlow describes [X] being distressed before and after contact with her grandfather. [Contact Centre] however do not describe any distress during their contact visits. [Contact Centre] also report conflicting reports from Ms Wadlow, at times not opposing contact and seeking longer time as “[X] loves her grandpa” (report received 4/52012). Since this time Ms Wadlow has reported ongoing concerns about [X]’s contact with her grandfather.
b)If [X] is significantly distressed before and after contact with her grandfather as Ms Wadlow describes, then it would be better to reduce or cease the contact until [X] is more settled and secure. If however there is no distress caused by contact, then predictable loving and safe contact would be beneficial to [X] and Ms Wadlow would benefit from assistance to support this contact.
3)As for any other person to have contact with [X], the same principles apply.
a)If the person can keep [X]’s needs foremost in their mind and provide a loving, consistent and predictable contact that will continue into the future, then this would be of benefit to [X] as the more broadly connected to people who love and care for her the better.
b)If however the contact is erratic, cancelled, causes [X] distress or results in damage to [X]’s secure relationship with the primary carer, then this should be avoided until [X] is more robust and secure.
Ms Wadlow
The applicant, Ms Wadlow, relies on her affidavits sworn 25 July 2011,
4 November 2011, 31 May 2012, 14 February 2013, 8 April 2013 and
3 May 2013. The applicant also gave viva voce evidence at the final hearing.
In support of her application, the applicant relies on the affidavits of her mother, Ms I, filed 31 May 2012 and 30 November 2012.
It is the applicant’s evidence that [X] came into her care in early
June 2009 at the request of the mother and the maternal grandfather.
It is the applicant’s evidence that she was advised by the mother and the maternal grandfather that the mother was unable to cope with the care of her four children in South Australia following escalating difficulties with the father.
It is the applicant’s evidence that the maternal grandfather delivered [X] to her in June 2009 at her mother’s home in [omitted]. When [X] was delivered to her, it is the applicant’s evidence that [X] was in a terrible state with scratches on her face and fingernails missing from one of her hands and that [X] was dirty, unkempt and showing signs of malnutrition.
It is the applicant’s evidence that [X] was also unable to speak, was terribly afraid of men and exhibited many unusual behaviours, including sticking her finger down her throat to make herself vomit and extreme responses to any situations that were upsetting or disturbing to her.
It is the applicant’s evidence that after [X] came into her care, the mother had minimal contact with [X] either by telephone or face-to-face and that the mother only visited [X] on three occasions between June 2009 and July 2011.
It is the applicant’s evidence that when [X] came into her care, the mother indicated to her that [X] was being placed into the applicant’s care for the long term and that it was the responsibility of the applicant to attend to [X]’s needs.
It is the applicant’s evidence that because of [X]’s many difficulties, she engaged with many professionals in an endeavour to assist [X] with those difficulties. The applicant sought assistance from her local treating general practitioner, engaged with paediatrician Dr S, engaged with [omitted] Early Childhood Intervention as well as with NECAMHS.
It is the applicant’s evidence that she has been advised by NECAMHS that [X] has the emotional capacity of an 18 month old, which means that her responses to situations of stress are greatly in excess of what the situation warrants. [X] will often start crying uncontrollably, screaming or having tantrums in circumstances where such a response is unwarranted.
It is the applicant’s evidence that she has been advised by [X]’s treating professionals that [X] requires stability and continuity of care to assist her to continue to overcome her difficulties.
It is the applicant’s evidence that [X] has regular occupational therapy to assist with her physical coordination as well as speech therapy to improve her verbal skills.
It is the applicant’s evidence that [X] commenced kindergarten this year at [omitted]. For the first term, [X] was provided with an aide through Scope who assisted [X] in adjusting to this new environment. It is the applicant’s evidence that [X] has made considerable progress since starting at kindergarten and that from the commencement of second term. [X] has not needed the assistance of the aide.
The applicant spoke positively of the support and understanding that the kindergarten has in relation to [X] and her special needs and it is the applicant’s evidence that when [X] is ready to transition to primary school she will continue at [omitted], where she is currently at kindergarten.
It is the applicant’s evidence that after [X] came into her care, the maternal grandfather and his late wife would visit reasonably regularly to spend time with [X]. The maternal grandfather and his late wife spent time with [X] at the applicant’s home or at the applicant’s mother’s home for an hour or two approximately once a month.
It is the applicant’s evidence that in July 2011 she was contacted unexpectedly by the mother who, in a somewhat aggressive and abusive manner, demanded that [X] be returned to the mother’s care. Because of the applicant’s concerns in relation to the lack of involvement that the mother has had with [X] since [X] was placed in the applicant’s care and her concerns about the capacity of the mother to properly care for [X], given the applicant’s understanding that the mother’s lifestyle involves both alcohol and drug abuse, the applicant brought this application to the Court seeking that [X] continue to remain in her primary care.
It is the applicant’s evidence that she is not opposed to [X] having the opportunity to develop relationships with the mother and the father. However, given the mother and the father’s lack of commitment to [X] historically, the applicant has a genuine concern as to their capacity and ability to regularly commit to spending time with [X] in the future.
Because of [X]’s difficulties, it is the applicant’s evidence that she is concerned that if the mother and the father were to be introduced to [X] and to then disappear from her life, the emotional impact on [X] would be devastating.
It is the applicant’s evidence that she is not opposed to the mother and father sending [X] cards, gifts and letters. It is the applicant’s further evidence that if there is a consistency and regularity of such interactions, the applicant would contemplate the possibility of there being face-to-face time between [X] and the mother and the father in the future. The applicant clarified that such interaction would be subject to confirmation from the professionals assisting [X] that this interaction would be in [X]’s best interests.
In relation to the maternal grandfather, it is the applicant’s evidence that the disclosure by Ms C that she had been physically and sexually abused by the maternal grandfather in her youth is extremely concerning. It is the applicant’s evidence that if the Court is satisfied that the maternal grandfather poses an unacceptable risk to [X] then the applicant would not support the maternal grandfather spending any time with [X].
In relation to [X]’s older siblings, it is the applicant’s evidence that in 2010 she attempted to make contact with the paternal aunt and uncle, who then had the care of [A] and [B], to explore the possibility of some form of communication between [X] and her older siblings. It is the applicant’s evidence that her overtures were rebuffed by the paternal aunt in very strong and quite abusive terms.
It is the applicant’s further evidence that at no time has the mother sought to make arrangements for [C], the child in the mother’s care, to spend time with [X]. On the few occasions the mother came to Victoria and spent time with [X] between 2009 and 2011, [C] was not with the mother.
In relation to [X] being afforded the opportunity in the future to establish a relationship with her older siblings, it is the applicant’s evidence that she is not opposed to this in principle but is concerned that unless it could be guaranteed that [X] would see her siblings regularly then the impact on [X] of her siblings coming in and out of her life would be emotionally damaging.
It is the applicant’s evidence that she supports the exchange of cards, letters and gifts between [X] and her older siblings. It is the applicant’s evidence that she also supports the possibility of Skype and other forms of communication between [X] and her siblings when [X] is older. However, as [X]’s older siblings reside and will continue to reside in South Australia, it is the applicant’s evidence that there are real practical difficulties in there being any interaction between [X] and her siblings other than by written or electronic communication.
It is the applicant’s evidence that she has the support of her mother and her adult children in the care of [X]. It is the applicant’s evidence that [X] has a close relationship with the applicant’s family including her grandchildren.
Ms I
Ms I is the applicant’s mother. Ms I swore two affidavits in support of the applicant, which were filed on 31 May 2012 and 3 December 2012. Ms I also gave viva voce evidence at the final hearing of this matter.
It is Ms I’s evidence that when [X] was delivered to the applicant at her home in June 2009, she had scratches all over her face, her fingernails were sticking out, she was terrified of water and she used to stick her fingers down her throat to make herself vomit. Ms I describes [X] at that point in time as “not a very well child”.
It is Ms I’s evidence that whilst [X] still becomes overly emotional, she is growing into a very happy little girl and has “improved out of sight” from the little girl that first came into the applicant’s care in June 2009.
It is Ms I’s evidence that up until the commencement of the current court proceedings, the maternal grandfather (who is Ms I’s brother) and his late wife Ms F would regularly spend time with [X] at her home. It is also Ms I’s evidence that after these proceedings commenced in July 2011, she continued to invite the maternal grandfather and his wife to visit [X] in her home but that they declined to do so.
It is Ms I’s evidence that after [X] came into the applicant’s care, the mother visited [X] in the applicant’s home on three or four occasions but that the mother had very limited hands on involvement with [X].
It is Ms I’s evidence that within the family circle, there were rumours that the mother was very much a “party girl” with a heavy involvement in drugs and alcohol. Ms I was quick to advise the Court that these were rumours only and that she has never observed the mother to be drug or alcohol affected.
It is Ms I’s evidence that the maternal grandfather would often complain to her about the money he was giving to the mother.
It is Ms I’s evidence that she once asked the mother how she was able to always get money from her father. It is Ms I’s evidence that the mother told her that she blackmailed her father to give her money because he had molested her when she was a child. It is Ms I’s further evidence that she did not pursue this matter any further with the mother.
It is Ms I’s evidence that [X] calls her ‘Nanna’ and that she and [X] have a close and loving relationship. It is her evidence that she sees [X] regularly and looks after her if the applicant has to go to [omitted] or has other appointments.
Ms C
Ms C is the step-daughter of the maternal grandfather and the
half-sister of the mother.
The Independent Children’s Lawyer filed an affidavit sworn by Ms C on 11 February 2013. Ms C also gave viva voce evidence at the final hearing of this matter.
In Ms C’s affidavit sworn 11 February 2013, she deposes that she lived with her mother, Ms F, and the maternal grandfather from the age of three or four years until she was 15 years and 11 months, between 1980/81 and 1992.
In her affidavit sworn 11 February 2013, Ms C deposes that she was physically abused by the maternal grandfather. It is Ms C’s evidence that the first physical abuse by the maternal grandfather took place when she was approximately seven or eight years of age when the maternal grandfather hit her so hard on her bottom that it became bright red.
In paragraph 10 of Ms C’s affidavit sworn 11 February 2013, she deposes as follows:
10. After this occasion he regularly hit both Ms Kaldman and I for minor infringements or minor matters where we, as children, did not follow his direction or orders.
In Ms C’s affidavit sworn 11 February 2013, she deposes in paragraphs 12 to 18 as follows:
12. I recall the first occasion that I was sexually abused, which was when I was approximately 9 years of age. I can recall that I had done something wrong and the Paternal Grandfather was extremely angry with me. I was informed that I was going to be reprimanded and that I would be taken into the bathroom and hit with a leather belt.
13. Both the Paternal Grandfather and I entered the bathroom and I became quite upset and started to cry.
14.I was shocked and surprised that when we got into the bathroom the Paternal Grandfather said to me that he was going to belt me however, if I touched his penis I would not get a belting. I was confused when I saw his erect penis whereupon I was directed effectively to give him a “hand job”. I only did what I was told because it would mean that I would avoid the pain and suffering of a beating, however I learnt that engaging in this activity was emotionally similar to a hard beating. At that age I had no knowledge of sexuality and how adults engaged in sex, and I was extremely upset and traumatised over the event.
15. When I was approximately 12 or 13 years of age, I was regularly required to accompany the Paternal Grandfather and work with [omitted].
16.I can recall many, many occasions when this occurred and I would be alone with the Paternal Grandfather wherein he [would] direct and force me to masturbate him and/or perform oral sex on him. At the age of 12 or 13 I knew something was wrong but did not know who to turn to. In addition, I endured many years of being verbally abused and denigrated along with Ms Kaldman.
17.A significant event occurred when I was aged 11 when Ms Kaldman and I were in the bath. My biological mother was out shopping and the Paternal Grandfather called me out into the lounge and told Ms Kaldman to stay in the bath. I came into the lounge and he physically forced himself upon me and immediately endeavoured to insert his penis into my vagina. I slid myself back trying to push him off but the door was behind me and he kept pushing his penis into me. The whole act of penetration was quite painful. After the rape I was bleeding from my vagina and I obtained some toiler paper to wipe up the blood.
18.When my mother arrived home she questioned me about the bleeding. I was so worried and concerned about the consequences of telling my mother the truth and the Paternal Grandfather told her that I had bled from my vagina because Ms Kaldman had “inserted a toothbrush into my vagina” which caused the bleeding.
In paragraphs 33 and 34 of Ms C’s affidavit, she deposes as follows:
33. The physical and verbal abuse that I had to endure was frequent as well as the sexual abuse, and, save for the occasion where the Paternal Grandfather raped me, he would frequently force me to masturbate him or stick his fingers inside my vagina.
34.The occasions of sexual abuse generally occurred when
no one was at home and frequently when we [work omitted], shut the door and thereafter proceed to sexually abuse me.
In her affidavit, Ms C deposes that after she was raped by the maternal grandfather, she decided to keep a diary. It is Ms C’s evidence that in her diary she recorded the incidences of physical and sexual abuse that she endured over the years at the hands of the maternal grandfather.
It is Ms C’s evidence that she started working at the local [omitted] at the age of 15. It is her evidence that the maternal grandfather picked her up from work one afternoon and told her that he and Ms C’s mother had found her diary and read it and when she got home she needed to retract everything she had written in the diary in relation to the maternal grandfather’s physical and sexual abuse of her and tell her mother that no such abuse had ever occurred.
It is Ms C’s evidence that after the maternal grandfather found her diary, she left the maternal grandfather and her mother’s home. It is Ms C’s further evidence that thereafter the maternal grandfather forbade her mother from having anything to do with her and that she had no interaction with her mother from that time.
In her affidavit, Ms C deposes that when she was in her twenties, she returned to work [omitted] she had worked in when she was 15 years of age. Ms C deposes that returning to this [workplace omitted] brought back many memories of the maternal grandfather’s abuse and that she broke down. Ms C deposes that she went to see her local general practitioner who referred her to a psychologist and that whilst she attended upon that psychologist for a short time, she did not feel able to make any disclosures to him of the abuse that she had suffered at the hands of the maternal grandfather.
In the conclusion to her affidavit, Ms C deposes at paragraph 36 as follows:
36.As my life has unfolded, I have found myself scarred and irreparably damaged both in an emotional and physical context and say that as these matters have been kept a secret for all these years, and preparing and swearing this Affidavit has been one of the most difficult things I have ever done in my entire life.
Ms C also gave viva voce evidence at the final hearing of this matter via video-link from Adelaide.
Ms C confirms that she has never met the applicant and that it was the Independent Children’s Lawyer who had contacted her to give evidence in relation to this matter.
Ms C confirms that she has not had any interaction with the maternal grandfather, her mother or the mother since she left home when she was 15 years old.
Ms C was cross-examined in relation to the contents of her affidavit. Her oral evidence was consistent with the details of the abuse as set out in her affidavit filed 11 February 2013.
It was put to Ms C that her diary did not disclose revelations of physical and sexual abuse by the maternal grandfather but rather disclosed details of her own sexual promiscuity and, in particular, her burgeoning relationship with her then boyfriend and now husband
Mr C.
It was further put to Ms C that the maternal grandfather confronted her in relation to these disclosures and in particular his concerns that she was engaging in sexual intercourse when she was under 16 years of age. It was further put to Ms C that the maternal grandfather and her mother called the police because of the disclosures by Ms C that she was having sex when she was underage, and that when she spoke to the police and disclosed that hers was a consensual relationship with Mr C, the police had no further involvement in the matter.
It was put to Ms C that she left the maternal grandfather and her mother’s home not because she was scared of the maternal grandfather but because they had prohibited her from continuing her relationship with Mr C.
It was further put to Ms C that the reason she had not had an ongoing relationship with her mother and the maternal grandfather was because Mr C had prevented her from doing so on the basis that he, being part Aboriginal, objected to them being white.
Ms C adamantly rejected the proposals being put to her in relation to the circumstances in which she left her mother and the maternal grandfather’s home.
Ms C agrees that she was in a relationship with Mr C at the time that her diary was found and that she made references to that relationship in her diary. Ms C is adamant however that the diary also contained details of both the physical and sexual abuse perpetrated on her by the maternal grandfather. It is Ms C’s evidence that the maternal grandfather collected her from the [work[lace] and demanded that she retract those allegations of physical and sexual abuse contained in her diary.
Ms C’s evidence is that at no time did the police speak to her in relation to her relationship with Mr C whilst she was in the home of her mother and the maternal grandfather. It is Ms C’s evidence that the only occasion on which she spoke to the police was after she had left her mother and the maternal grandfather’s home and was living at the house of a family friend. It is Ms C’s evidence that it was approximately two weeks before she turned 16 when the police came and saw her and she agreed she would not see Mr C until she was 16 years old. It is Ms C’s evidence that this was the only occasion that the police spoke to her about her sexual relationship with Mr C.
It was put to Ms C that the mother denied having ever been abused by the maternal grandfather.
Ms C gave detailed evidence of the instances of physical abuse that she observed the mother to have experienced at the hands of the maternal grandfather. Ms C described one particular incident that took place when she, the mother and her mother were in the kitchen and the mother became upset about something, at which time the maternal grandfather came into the kitchen, grabbed the mother and took her into the lounge room where Ms C could hear screaming and crying and a loud thud as the mother hit the wall.
Ms Kaldman - the mother
The mother relied on her affidavits sworn 16 September 2011 and
3 May 2013. The mother also gave viva voce evidence at the final hearing of this matter.
Whilst it was the mother’s initial application that this Court make orders that [X] live with her, at the final hearing of the matter the mother advised that she was supporting the maternal grandfather’s application to have [X] live with him and if such application was not successful, that orders be made for supervised time between herself and [X] until such time as their relationship has been re-established.
It is the mother’s evidence that she currently lives in South Australia with her son [C], who is at primary school.
It is the mother’s evidence that her eldest daughter [A] lives with [A]’s paternal aunt and uncle and that her older son [B] lives with his paternal grandmother.
It is the mother’s evidence that [A] and [B] see the father every week and that the father makes direct arrangements with his family in relation to the time he spends with them.
It is the mother’s evidence that she sees [A] and [B] approximately every fortnight, either when they are visiting the father or when they visit her in her home.
It is the mother’s evidence that the father sees [C] on a weekly basis between 11.00am and 12.00pm at a local library and that she otherwise takes [C] to see the father when he has [A] and [B] with him.
It is the mother’s evidence that she did not take advantage of the orders to spend supervised time with [X] at [omitted] Contact Centre as she was reluctant to have someone observing her interactions with [X]. It is the mother’s further evidence that she has problems travelling to Victoria to see [X] due to the costs of such travel from South Australia and the difficulties in arranging care for [C], particularly since [C] has started primary school.
It is the mother’s evidence that she did not ask the applicant to care for [X] in 2009, but rather she asked her father and mother to care for [X]. It is the mother’s evidence that it was her father and mother who asked the applicant to look after [X] as they were not able to manage both [X] and [C] at that time due to her mother’s ill health.
It is the mother’s evidence that the applicant was less than cooperative in enabling her to spend time with [X] after [X] came into the applicant’s care. It is the mother’s evidence that the applicant failed to consult her in relation to [X]’s health issues and the various interventions that were put in place to assist [X] with those issues.
It is the mother’s evidence that she sought [X]’s return to her care on a number of occasions after [X] moved into the applicant’s care but that the applicant always refused to return [X] to her.
The mother concedes in her evidence that the applicant has provided [X] with appropriate and loving care since assuming responsibility for her in June 2009 but expresses concern about the applicant’s willingness to facilitate [X] having a relationship with the maternal family and with her siblings in particular.
The mother concedes that she had not made any arrangements to try and bring any of [X]’s siblings to Victoria to spend time with [X].
In the mother’s affidavit sworn 3 May 2013, she specifically addresses the allegations made by Ms C. In her affidavit sworn 3 May 2013, the mother adamantly denies that the maternal grandfather was ever verbally or physically abusive towards herself or Ms C.
In her affidavit sworn 3 May 2013, the mother deposes that there is no way that Ms C’s allegation that the maternal grandfather took Ms C into the bathroom and asked her to touch his penis could have occurred. It is the mother’s evidence that the maternal grandfather would not have had an opportunity to spend time alone with Ms C as he was only ever in the house when her mother and/or she were also present.
In her affidavit of 3 May 2013, the mother deposes that Ms C was never alone with the maternal grandfather at the [workplace] and that it was she who regularly went to the [workplace] with the maternal grandfather, rather than Ms C.
The mother deposes in her affidavit of 3 May 2013 that Ms C did maintain a diary. It is the mother’s evidence that she read Ms C’s diary on a daily basis and that it contained details of Ms C’s sexual activities with her various boyfriends but at no time made any disclosures of any inappropriate physical or sexual abuse by the maternal grandfather.
In the affidavit of the applicant sworn 8 April 2013, the applicant annexes a Facebook posting from the mother dated 3 February 2013 in the following terms:
See you in court dad I’m going to the cop shop have fun being investigated cause that’s whats gonna happen it’s time the truth came out
In the comments section of the 3 February 2013 Facebook post, the mother comments as follows:
Yeah I think it’s about time people learn about the truth with my father if I could call him that hope he dies cause he’s nothing to me.
He is a loser and now is gonna pay for what he has done I’ve kept my mouth shut long enuff think I’m joking I’m not he will never hear the end of it
The mother was cross-examined in relation to these Facebook entries and it is her evidence that whilst she wrote them, they are “bullshit” and that she was lying and merely venting her frustration on Facebook.
It is the mother’s evidence that she made these Facebook entries because she and the maternal grandfather were arguing about some money she owed him for the purchase of a motor vehicle and she was angry with him for asking that the money be repaid.
It is the mother’s evidence that the reference in relation to going to the police related to the maternal grandfather at one time growing marijuana to assist her mother whilst her mother was unwell.
The mother was cross-examined about Ms I’s evidence that she had told Ms I that she was able to obtain money from the maternal grandfather because she was blackmailing him as a result of him having abused her as a child. It is the mother’s evidence that she never made these statements to Ms I.
When questioned about being given money by the maternal grandfather, it is the mother’s evidence that the maternal grandfather has only given her money on very few occasions and that when she recently asked him for money, he refused to give it to her.
Mr Maddin – the father
The father relied upon his affidavit sworn 26 April 2013. The father also gave viva voce evidence at the final hearing.
In the father’s affidavit sworn 26 April 2013, he deposes that he was hospitalised in July 2009 for depression, after which he moved to [W], a Community Rehabilitation Centre, where he stayed for two years, concentrating on “getting well”.
The father deposes that in August 2011 he was referred to the
Housing Assistance and Support Program to enable him to live independently in the community with support. He deposes that he now works part-time and is also managing various physical health difficulties including problems with memory, blood pressure, cholesterol and a recent diagnosis of complex sleep apnoea, which has resulted in him becoming severely sleep deprived.
The father deposes that he has ongoing contact with his three eldest children and that he has also recently attended a parenting course on children of adolescent age.
The father’s affect when giving his viva voce evidence was somewhat concerning. He was very difficult to understand as he mumbled and spoke very quietly. Many of the answers given by him were not related to the questions put to him and he seemed to have difficulties with concentration and memory.
It is the father’s evidence that he regularly sees his two eldest children on the weekend and that they do at times stay overnight with him without supervision.
The father also confirms that he sees [C] regularly at a library, during which time the mother is also present.
The father concedes that he would have real difficulty in travelling to Melbourne, and in particular to [omitted], in order to see [X] with any degree of regularity.
The father concedes that there would be difficulties in [X] being able to travel to South Australia in order to see him and her siblings with any regularity.
The father expresses a keenness to be able to send cards and gifts to [X] and to receive regular updates and photographs of her.
Mr Oldham – the maternal grandfather
The maternal grandfather relies on his affidavits sworn 19 March 2012 and 1 May 2013. The maternal grandfather also relies on the affidavit of Ms S, Team Leader of [omitted] Post Separation Services, sworn 23 April 2013 and the affidavit of Dr G sworn 4 May 2013, which contains Dr G’s psycho-sexual assessment of the maternal grandfather.
The maternal grandfather also gave viva voce evidence at the final hearing of this matter.
It is the maternal grandfather’s evidence that he is seeking orders for [X] to transition into his primary care as it is his belief that this will be the only way in which [X] will be afforded the opportunity to have any relationship with her maternal family, in particular himself, the mother, the father and [X]’s older siblings.
Whilst not challenging the quality of care the applicant had given [X] since the applicant has taken over [X]’s primary care in June 2009, it is the evidence of the maternal grandfather that the applicant is not supportive in any way of [X] having a relationship with the maternal family and that this cannot be seen to be in [X]’s best interests.
The maternal grandfather was questioned in relation to his understanding of [X]’s emotional and physical disabilities and difficulties. It is the maternal grandfather’s evidence that he has read the various reports that have been prepared in relation to [X] but that he has not observed any of those behaviours himself when spending time with [X]. The maternal grandfather has not spoken to any of the various specialists who are currently engaged in assisting [X].
The maternal grandfather was questioned in relation to how he would facilitate [X] developing and maintaining relationships with her mother, father and siblings in South Australia.
It is the maternal grandfather’s evidence that he and his now partner would travel regularly to South Australia to ensure that these relationships could develop and grow. However, the maternal grandfather concedes that he has not travelled to South Australia to visit the mother or his grandchildren since the death of his late wife
Ms F in August 2011.
The maternal grandfather adamantly denies the allegations by Ms C that he physically and sexually abused her or that he physically abused the mother. It is the maternal grandfather’s evidence that as he worked shift work at the time Ms C lived with them, his then wife was always present in the home when he was home from work.
It is the maternal grandfather’s evidence that Ms C only came down with him to the [workplace] twice as it was the mother who liked to accompany him to assist with the [omitted].
When cross-examined more closely in relation to spending time alone with Ms C, the maternal grandfather concedes that there were occasions when he and Ms C were home alone and that there were also occasions when he and Ms C went to the [workplace] on their own.
In relation to Ms C’s diary, it is the maternal grandfather’s evidence that when the diary was found he and his wife were horrified to read that Ms C, who was then underage, was engaged in sexual activities with her then boyfriend Mr C.
It is the maternal grandfather’s evidence that because Ms C was underage, he and his late wife contacted the police who attended at their home. It is the maternal grandfather’s evidence that the police spoke to Ms C at their home but when Ms C told the police that the sex between her and Mr C was consensual, the police advised that there was nothing further they could do in relation to the matter.
When cross-examined more closely in relation to the contents of
Ms C’s diary, it is the maternal grandfather’s evidence that he only saw two pages of the diary in which the applicant wrote that she was having a sexual relationship with Mr C. It is the maternal grandfather’s evidence that he otherwise did not read the remainder of the diary.
It is the maternal grandfather’s evidence that Ms C’s diary was subsequently destroyed either by himself, his wife or the police but that he cannot remember who.
When questioned as to what motivation Ms C would have to make such serious allegations against him, it is the maternal grandfather’s evidence that he believes her motivation to be due to her dislike of him. It is the maternal grandfather’s evidence that when Ms C was living with he and Ms C’s mother, Ms C often told him that she hated him.
When questioned as to why Ms C’s mother had not attempted to communicate with her daughter after she left home at the age of 15, it is the maternal grandfather’s evidence that after Mr C swore at his wife, his wife disowned Ms C as a daughter.
Dr G
Dr G is a consultant psychiatrist and at the request of the Independent Children’s Lawyer conducted a psycho-sexual assessment of the maternal grandfather. Dr G prepared a report dated 12 April 2013 which was placed before the Court annexed to his affidavit sworn 4 May 2013. No party sought to cross-examine Dr G.
On page 8 of his report, Dr G proposed as follows:
With regard to Mr Oldham’s sexual adaptation (libido, satisfaction, intimacy, absence or presence of dysfunctions), developmental psychosexual experiences (puberty, sexual milestones, attitudes of parents, romantic milestones, attractions, fantasies, self-identity), sexual trauma, compulsive behaviours and other issues around sexuality, these were explored at length. The examiner found no evidence of abnormalities or problems.
In particular, when asked about his thoughts and feelings towards children, Mr Oldham said that this had never been an issue and “if I knew anyone who was having anything to do with children I’d smack their faces if I caught them … child molesters and women beaters are in the same boat”.
Specifically, Mr Oldham denied any ‘Red Flags’ (primary indicators in risk assessment for contact with children following unsubstantiated allegations of sexual abuse) such as sexual arousal/interest to prepubescent children or sexual history with prepubescent children. Furthermore, he denied ‘Proceed with Caution’ secondary indicators such as sexual compulsivity; recent drug or alcohol abuse; domestic violence; personality disorder; attachment deficits; or empathy deficits towards children in abusive situations.
Under the heading ‘Conclusions’, Dr G stated as follows:
In summary, a Court will hear the totality of the evidence, and decide the issues involved. This examiner is aware that there are differing versions of events, and of the possibility that Mr Oldham was presenting a favourable account of himself as part of a deliberate attempt to cover up and minimise the seriousness of his behaviours. However, from his own history, which was consistent with his examination, there was no evidence to suggest that ongoing full-time or part time care by Mr Oldham of his granddaughter or any other children is contraindicated for psychiatric reasons.
Psychiatric disorder does not currently appear to be a significant factor with regard to his ability in being an appropriate
care-giver.
Ms S
Ms S is the Team Leader of [omitted] Post Separation Services. Ms S swore an affidavit on 23 April 2013 to which she attached her report in relation to the supervised time between the maternal grandfather and [X].
Ms S’ report sets out that the interaction between [X] and the maternal grandfather was positive and that [X] was observed to engage happily with the maternal grandfather, who was similarly appropriate at all times in his interactions with her.
Ms S’ report evidences some degree of difficulty in making arrangements with the applicant for supervised time to take place and some ongoing difficulties communicating with the applicant, initially to put in place the arrangements for supervised time to commence and then issues around the timing of subsequent visits.
Mr E
Mr E is a Family Consultant with the Federal Circuit Court. Mr E prepared a Family Report dated 18 April 2013 and an addendum to his Family Report dated 29 April 2013. The addendum was prepared by Mr E at the Court’s request after receipt of the psycho-sexual assessment of the maternal grandfather prepared by Dr G. Mr E also gave viva voce evidence at the final hearing of this matter.
Mr E indicates that one of the limitations of the Report was that he had not met with either of [X]’s mother or father as they had not attended their appointments for the preparation of the Report. Accordingly he was only able to interview the applicant and the maternal grandfather.
In his Report, Mr E in paragraph 75 discusses the applicant in the following terms:
75. Ms Wadlow has undertaken an important role in assuming the care for [X]; a child who has displayed considerable behavioural concerns and who requires a committed carer. She is to be congratulated for having done so, and particularly at a time in [X]’s life when other family members were unable to undertake this role for her. Despite these factors however, the writer would suggest that she nevertheless presented as a somewhat over protective carer for [X]. In making such an observation the writer would appreciate Ms Wadlow’s sensitivity to those factors that might distress or disrupt [X]’s functioning given the latter’s presentation and identified behavioural issues.
In relation to the maternal grandfather, Mr E makes the following comments in paragraph 71:
71.The long-term appropriateness of Mr Oldham spending either supervised or unsupervised time with [X] will need to be determined by the Court, and particularly in light of the sexual abuse allegations that have been made against him. In the writer's view, if these allegations are deemed to be credible, serious reservations should be held about
Mr Oldham spending any unsupervised time with his grandchild, despite the fact that the allegations relate to matters which are significantly historical. The writer would further suggest that there would be implications for him having contact with the grandchildren of his current partner. If the allegations are found to be correct, the writer believes that [X] would be exposed to a clear and identifiable risk of being sexually and/or emotionally abused by
Mr Oldham in the future, unless he was to acknowledge his behaviour, assume responsibility for it, and participate in and complete a treatment program to ensure he no longer engaged in such abusive behaviours in the future. The level of risk for her would be further heightened by the fact that [X] is of an age and has such developmental deficits that she would not be able to either appropriately inform others about any inappropriate behaviours directed towards her, or undertake age appropriate action to guard against or protect herself from them.
As noted previously, whilst Mr E did not have an opportunity to interview the mother and the father, he made the following salient observations in his Report at paragraphs 79 and 80:
79. Although it is unfortunate that the writer was not able to interview either Ms Kaldman or Mr Maddin, it would appear that despite their absence, there is already sufficient information available to the Court that may allow decisions to be made in relation to them. [X]’s father has not been involved in her life at all since she was placed into the care of Ms Wadlow in May 2009. In addition, significant concerns have been raised about his mental health well-being and his capacity to provide [X] with an appropriate parenting experience. In a similar manner,
Ms Kaldman has been uninvolved in her daughter's life for a considerable period of time. Even when she was spending time with [X], numerous reservations were held about the quality of their interactions and the capacity of Ms Kaldman to appropriately care for her daughter.
80.Given the absence of these people in [X]’s life and the likelihood that they would now be relative strangers to her, the writer would respectfully suggest that any time that either Mr Maddin or Ms Kaldman spends with their daughter should be supervised and monitored, and at the very least, by someone who is familiar to [X] and who can assist this little girl to manage such a process. In the absence of an appropriate family member who could provide such a service, the writer would suggest that the use of a contact centre might be appropriate.
In relation to [X]’s interaction with her siblings, Mr E stated in paragraph 81 of his Report the following:
81.The writer is concerned that [X] has not had the opportunity to form an effective relationship or spend time with her siblings. It is appreciated however, that for various reasons, this has not been possible. If arrangements were to be made for [X] to spend time with any of her siblings, the writer believes that this will need to be carefully planned and appropriately monitored to ensure that [X] is not adversely affected by such an experience. Consultations with the various professionals currently working with [X] and Ms Wadlow would need to occur. The use of a contact centre would also be appropriate.
Under the heading ‘Recommendations’ in his Report, Mr E set out the following in paragraph 82:
82.The writer would respectfully make the following recommendations based upon his assessment and dependent on relevant findings of fact:
i. That consideration be given to vesting primary parental decision making responsibility relating to [X] in Ms Wadlow. This arrangement should be predicated on the clear understanding that she ensures other important figures in [X]’s life; namely her parents and maternal grandfather, are kept informed about issues relating to [X]'s care.
ii. That [X] continue to live primarily with
Ms Wadlow.
iii.That any time [X] spends with either her mother or father be supervised by a mutually agreed person or alternatively at a Contact Centre. A referral to the [omitted] Contact Centre would be appropriate.
iv. That [X] spend unsupervised time with her maternal grandfather in accordance with the following schedule if the Court determines that Mr Oldham does not present an unacceptable risk of emotional, psychological, physical or sexual harm to her. Such time should only occur however, after Mr Oldham has consulted with the relevant professionals and has been able to demonstrate an acknowledgement of [X]’s capacities and a willingness to accept professional direction about how to manage her functioning.
a) Brief single day periods [e.g. for a few hours] on a fortnightly basis for a period of 3 months.
b) Single day periods [e.g. mid morning to late afternoon] on a fortnightly basis.
c) Any overnight time should only occur if the professionals involved with [X] believe she would be able to manage such a process.
v.That [X]’s time with her maternal grandfather be suspended if the Court determines that Mr Oldham does present an unacceptable risk of emotional, psychological, physical or sexual harm to [X] arising from the allegations that have been made against him and which are outlined in affidavit material available to the Court.
vi.That [X]’s time with her maternal grandfather only resume if Mr Oldham:
a) Acknowledges his past abusive behaviour;
b) Undertakes appropriate counselling to address the issues that have caused him to behave in such a manner; and
c) Is able to clearly demonstrate to the professionals he is working with that he would not present any unacceptable risk of harm to [X] in the future.
After the receipt of the psycho-sexual assessment of the maternal grandfather by Dr G, Mr E was asked to prepare an addendum to his Family Report to include any further recommendations he may have in relation to [X]’s living arrangements. Mr E provided the addendum to his Report dated 26 April 2013.
Mr E sets out the following in paragraphs 12 and 13 of his addendum to his Family Report:
12. Although the assessment undertaken by Dr G would suggest that Mr Oldham does not present with those factors normally associated with a person who would be a risk of sexual harm to a child, the writer nevertheless believes that the serious allegations made by Ms C in her affidavit dated 11 February 2013 will still need to be tested by the Court. If adverse findings of fact are made against Mr Oldham in relation to this issue, the writer would suggest that serious reservations should be held about Mr Oldham spending any unsupervised time with [X], and particularly given that her age and developmental deficits would, in the writer’s view, heighten the risks for her. The details of these issues are outlined in the writer's previous Family Report. In addition, the writer believes that unsupervised time should only be considered in the face of an adverse finding, if Mr Oldham engages in and completes the tasks identified in the previous Family Report.
RECOMMENDATIONS
13.The writer believes that the recommendations made in his previous Family Report remain relevant, even in light of
Dr G’s recent assessment.
At the final hearing of this matter Mr E was questioned in relation to what time, if any, [X] should spend with the mother and/or the father.
It is Mr E’ evidence that there would be no benefit for [X] if there was a stop-start arrangement in relation to her time with the mother and/or the father.
In relation to the father specifically, it is Mr E’s evidence that because the father is a virtual stranger to [X], any time the father spends with [X] would need to be focussed on what [X] is able to manage given her age and her functional capacities. Mr E suggests that the father will need to be able to commit to regular time with [X]. It is Mr E’s further evidence that any introduction of the father to [X] will need to be a long term process. It is Mr E’s recommendation that firstly [X] will need to understand that she has a father, that her father is Mr Maddin and then be reassured that the father will be someone who will be a reasonably constant figure in her life.
It is Mr E’s evidence that anything less than six visits per year by either the mother and/or the father would not provide the level of consistency or commitment that would enable [X] to cope emotionally and allow [X] to have a meaningful relationship with them. Mr E’s evidence is as follows:
[If the parents go] in and out of this child’s life, then that will be problematic for her and may make her feel quite angry and frustrated about the concept of a father or a concept even of the mother coming in and out of her life. What she needs and what every child needs at her age, but it’s also highlighted by the professionals that have been working with her, is that it’s particularly important for this little girl that she has a constancy of carer and constancy of attachment figures in her life. It seems as if she would find it particularly difficult to have those people come in and out of her life. She needs the constancy there in order for her to function in a better manner.
It is Mr E’ evidence that it would be preferable that no orders be made for [X] to spend time with the mother and the father if the Court was to find that the mother and the father were not able to commit to ongoing regular time with [X].
It is Mr E’s evidence that if [X] does not see her parents, it will be very important for [X] to develop a life story so that she has a knowledge of who her parents and siblings are.
It is Mr E’s evidence that it will be important for the applicant, as [X]’s primary carer, and the professionals supporting her to provide [X] with the necessary information to develop her life story so that [X] can develop a sense of her own history. It is Mr E’s evidence that this will be particularly important as [X] gets older.
In relation to the applicant, Mr E was asked whether he had any concerns in relation to the applicant’s ability to meet [X]’s needs, particularly given the concerns raised by [omitted] Contact Centre and Mr E himself in relation to the applicant being very protective of and somewhat obstructive in her cooperation with them at times. It is
Mr E’s evidence as follows:She certainly came well prepared with [X]. My understanding of the reports – the professional reports from NECAMHS and so on is that they haven’t raised any concerns about Ms Wadlow’s capacity to meet the very particular and special needs of [X], so there was nothing arising from my interview with her to suggest that she couldn’t do that. She was certainly well aware of [X]’s needs. She has organised and facilitated a wide range of professional involvement in this girl’s life that seemed to be appropriate if what is reported about her is accurate. And on that basis, it would seem that she is able to meet her needs.
When contemplating the applicant’s difficult and at times obstructive behaviour in relation to the making of arrangements for [X] to spend supervised time with the maternal grandfather and her presentation during the Family Report process, Mr E made the following observations:
In my experience carers of children who have a range of functional difficulties and behavioural problems to the degree that has been reported about [X] are particularly protective of that child, and are therefore very sensitive and hyper-vigilant about anything that would disrupt that child’s behaviour, distress that child, make it difficult for that child to manage things. Now some of those are quite legitimate and in this case it may be important for Ms Wadlow to develop some strategies and develop some understanding about how she can balance what is appropriate levels of protectiveness but also allowing [X] to develop and to have contact and involvement with people in her life.
Mr E was asked whether supervised time between [X] and the maternal grandfather should continue in the event the Court finds that the maternal grandfather poses an unacceptable risk to [X] arising from the serious allegations made by Ms C.
It is Mr E’s evidence that whilst ongoing supervised time between [X] and the maternal grandfather might be beneficial for [X], long time supervised time creates an artificial relationship and that supervised time is not something that can continue forever.
The law
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes section 60B(3) which deals with Aboriginals and Torres Strait Islanders):
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act requires that all parenting orders be made with the child’s best interests as the paramount consideration.
When determining what is in the child’s best interests, the Court must consider the matters set out under sections 60CC(2) and (3) of the Act.
Many of the matters set out in sections 60CC(2) and (3) of the Act are worded in such a way that they make reference to a child’s parents only.
The manner in which the Court is to consider those provisions of sections 60CC(2) and (3) of the Act that make reference to parents only in parenting cases that involve parties that are not a parent of the child/children in question has been considered in a number of cases by the Full Court.
In the matter of Donnell v Dovey (2010) 42 FamLR 559 at paragraphs 121 and 122, the Full Court cited with approval the decision of
Moore J in the matter of Potts & Bims [2007] FamCAFC 394.In Potts & Bims (supra), Her Honour was determining a dispute between the children’s parents and the maternal grandparents. Having considered the manner in which the Court should deal with those matters under sections 60CC(2) and (3) which make specific reference to parents only, Her Honour concluded that those subsections that referred specifically to “parents” could not be specifically considered in the context of parties who were not the child’s parent. Her Honour concluded however, that if the matters under sections 60CC(2) and (3), which were excluded for consideration because they made reference to “parents” were relevant to the best interests of the children, then those factors could be considered by reference to the catchall provision of section 60CC(3)(m). Her Honour was of the view that this enabled the Court to consider all factors that are relevant to the best interests of the children in question, whether the parties to the proceedings were the children’s parents or not.
This is the approach that I will take in considering the present matter before the Court.
Section 60CC(2) of the Act sets out the primary considerations which the Court must take into account when determining best interests and they are as follows:
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
[X] has only a very tenuous relationship with the mother. [X] has spent, at best, a couple of hours with the mother on four to six occasions since July 2009. [X] has spent no time with the mother since July 2011.
[X] has no relationship with the father. [X] has not seen the father since she was 12 months of age. The father is a stranger to her.
Neither the mother nor the father are proposing that [X] live with them.
Both the mother and the father live in South Australia.
The mother has the care of the mother and the father’s youngest son [C], aged six. The mother is dependent upon social security. Her capacity to regularly travel to Victoria is limited. The mother also has exhibited very little capacity to commit to any kind of regular interaction with [X].
The father has significant mental health problems. The father’s presentation in Court is such that there must be concerns about his current functioning. He lives in supported care in the community and has a social worker who visits him on a weekly basis. Whilst in
part-time employment, he too appears to have very limited financial resources such that he could afford to travel to Victoria regularly. Further, it is questionable whether the father has the mental and physical capacity to undertake regular travel to Victoria unaccompanied. The father’s case worker accompanied the father at the final hearing.[X] has considerable physical and emotional difficulties which are being properly monitored and addressed by the supports that have been put in place by the applicant.
In the NECAMHS report dated 25 October 2012, NECAMHS is quite clear that they do not support time taking place between [X] and her parents because of the negative impact on [X]’s emotional wellbeing if time with her parents is unpredictable, truncated and missed.
The evidence of the Family Report writer Mr E is that if the mother and the father cannot commit to ongoing long-term regular interaction with [X], this would have a negative impact on [X]’s emotional development and outweigh any benefit to [X] of trying to establish a meaning relationship with her parents.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This sub-section goes to the very core of this matter and the question as to whether [X] living with or spending time with the maternal grandfather would place her at an unacceptable risk of abuse given the serious allegations made against him by his step-daughter Ms C.
When determining parenting cases which involve allegations of sexual abuse, the obligation of the Court to make orders that are in the best interests of the child remains the paramount consideration.
In M v M (1988) FLC 91-979, the High Court per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ held at page 77077 as follows:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
Having observed that whilst there will be cases where the Court will be able to make a positive finding that the alleged abuse is well-founded or cases where such allegations are groundless, there will be many cases where the Court cannot confidently make a finding that sexual abuse has taken place. The High Court held in M v M (supra) at
page 77081 that:
… the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.
The High Court considered the many efforts by the Courts over time to develop a ‘formula’ to define with greater precision the magnitude of risk which would justify an order that a child not spend time with a parent and held in M v M (supra) at page 77081:
This imposing array indicates that the courts … will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The Full Court of the Family Court in the matter of B v B (1993)
FLC 92-357 confirmed at 79778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
The relevant standard of proof in matters where there have been allegations of sexual abuse is on the balance of probabilities.
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In M v M (supra) the High Court held at page 77081 as follows:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Given the seriousness of an allegation of sexual abuse and of the ramifications if there is a finding that the abuse has occurred, the Court will not make a finding of abuse unless it is satisfied on the balance of probabilities at the highest standard.
The evidence of Ms C, the mother, Ms I and the maternal grandfather has been set out in detail in this judgment and will not be reiterated here.
Suffice it to say, the allegations by Ms C are extremely disturbing.
Ms C was a compelling witness. Her demeanour and presentation was consistent with the very disturbing evidence she was giving. She was at times quite flat and at other times very distressed. It was quite apparent that having to reveal this information was a painful and difficult process for her.
Ms C’s evidence was consistent with her affidavit and she was able to give a level of specificity to the various disturbing instances that she was describing that gave them a genuine ring of authenticity.
Ms I, the applicant’s mother, was also an impressive witness, in whose truthfulness the Court has no doubt.
It is Ms I’s evidence that the mother told her that she had been able to obtain money from the maternal grandfather with regularity because of her threats to disclose his abuse of her during her childhood.
The mother denies having said this to Ms I and she similarly denies that there is any regularity in her obtaining money from the maternal grandfather.
However, the maternal grandfather’s evidence is that he regularly gives the mother money albeit he is adamant in his denial that this is because the mother is threatening him with disclosure of abuse.
It is the mother’s evidence that her Facebook postings in which she indicated she was going to report her father to the police, that it was time people learned the truth about her father and that he should pay for what he had done were lies and were posted out of anger because the maternal grandfather was asking her to repay money he had lent her to purchase a motor vehicle.
Given Ms I’s evidence that the mother told her she was able to blackmail the maternal grandfather to give her money by threatening to expose his abuse of her as a child, it is open to the Court to postulate that the mother in these Facebook postings was again threatening to expose the maternal grandfather’s abuse if he pursued her for the repayment of money he had advanced her.
The maternal grandfather adamantly denies Ms C’s allegations, attributing her allegations to her dislike of him and of her being motivated to exact revenge on him for kicking her out of home when her relationship with Mr C was discovered.
Ms C’s evidence came to light as a result of enquiries made by the Independent Children’s Lawyer following long-term family rumours being relayed to him by the applicant and her mother that the maternal grandfather abused Ms C and the mother.
It is apparent that Ms C was an unwilling witness and there was nothing in her demeanour or in her evidence that gave any indication that she was placing her evidence before the Court in an endeavour to exact revenge on the maternal grandfather.
In her affidavit sworn on 11 February 2013, Ms C explains that her reason for filing her affidavit is her concern that [X] will be at risk of abuse if she were to spend unsupervised time with the maternal grandfather.
I am satisfied that this is the reason for Ms C’s evidence coming before the Court and that she was not motivated to place falsehoods before the Court in order to exact revenge on the maternal grandfather.
Having considered the evidence of Ms C, Ms I, the mother and the maternal grandfather, I am satisfied that on the balance of probabilities that Ms C was physically and sexually abused by the maternal grandfather when she was a minor living in his home.
There is no allegation before this Court that the maternal grandfather has ever abused [X]. However all time that the maternal grandfather has spent time with [X] has been in the presence of the applicant or the applicant’s mother or supervised at [omitted].
In Mr E’s Family Report, it is his clear recommendation that if the Court determines that the maternal grandfather presents an unacceptable risk of harm to [X], then his time with [X] should be suspended and should only resume if he acknowledges his past abusive behaviours and undertakes appropriate counselling to address those issues such that he is able to satisfy professionals that he does not present an unacceptable risk to [X].
Given the finding that the maternal grandfather physically and sexually abused Ms C, I am satisfied that it cannot be seen to be in [X]’s best interest to live with the maternal grandfather or, at this time, to spend time with him. It is the Court’s finding that the maternal grandfather poses an unacceptable risk of harm to [X], particularly given his blanket denial of that abuse and of any acknowledgement that he has behaved in any way inappropriately.
The High Court in M v M (supra) held that even if the Court were to make a finding of unacceptable risk if unsupervised time were to take place, there are circumstances where it would be open for the Court to find that there would be no unacceptable risk if the time was to take place on a supervised basis.
The maternal grandfather has been spending supervised time with [X] at [omitted] and the feedback from the contact centre coordinators is that this time has been progressing satisfactorily and that [X] has been enjoying her time with the maternal grandfather.
[Omitted] Contact Centre only has a limited capacity to provide supervision and is not in a position to provide that service on an indefinite basis.
There is no evidence before the Court as to a suitable alternate supervisor.
Further, it is Mr E’s evidence that the artificiality of long-term supervised time is not always in the best interests of the child whose time is being supervised.
In these circumstances, I am of the view that orders for ongoing supervised time between [X] and the maternal grandfather is neither viable nor in [X]’s best interests.
Section 60CC(3) sets out the additional considerations to be considered by the Court when determining what orders are in the child’s best interests. Those matters which are of some relevance will be considered.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As previously noted, [X] does not have a relationship with either the mother or the father.
[X] is clearly primarily attached to the applicant, who has provided her with loving and appropriate care since she was 12 months of age.
There is little doubt in my mind that [X] sees the applicant as her primary carer and source of nurture and love.
I am also satisfied that [X] has a loving relationship with the applicant’s immediate family including the applicant’s mother, her children and her grandchildren.
Sadly, [X] has not been afforded the opportunity to develop a relationship with her three older siblings, [A], [B] and [C].
[A], [B] and [C] have lived separately from each other in South Australia since 2009 and appear to spend relatively limited time with each other.
[A] and [B]’s carers have not shown any inclination to bring them to Victoria in order to spend time with or meet [X]. There is no evidence that there would be any willingness or capacity on their part to do so in the future.
The mother, who has the care of [C], has never brought [C] to spend time with [X] on any of the very few occasions she visited [X] in Victoria between 2009 and 2011.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As noted, the mother and the father both live in South Australia.
The father has considerable mental health and general health challenges that severely impact on his ability and capacity to travel to Victoria with any regularity.
The mother is also resident in South Australia and seems to lack the financial means and commitment to travel with any regularity to visit [X] in Victoria.
The applicant is dependent upon social security and does not have the financial resources to enable her to travel with any regularity to
South Australia to enable [X] to spend time with the mother, the father or [X]’s siblings.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
As has been set out in this judgment, [X] has considerable emotional and physical difficulties.
To her credit, the applicant has engaged with relevant services and professionals to assist [X] to address and overcome these difficulties. [X] is assisted by speech therapy, occupational therapy, a treating paediatrician and an involvement with NECAMHS where she is seen by both a psychologist and an adolescent psychiatrist.
[X] started at kindergarten this year and during her first term, arrangements were made through Scope so that she had the assistance of an aide to help her adjust to that new environment.
[X]’s kindergarten seems to be very sympathetic to [X]’s needs and is working with the applicant and the professionals assisting [X] to allow her to transition successfully to mainstream schooling.
Whilst there has been some criticism of the applicant for being overprotective of [X], given the very damaged and hurt little girl that came into her care four years ago, it is somewhat understandable that she is quite protective of [X] and acts to ensure that the very positive progress that [X] is making is not undone.
The same cannot be said for [X]’s parents.
Because of his mental health and health issues, the father has not been in a position to assist [X] in any way and the reality is that he is unlikely to do so into the future.
Similarly, the mother has not shouldered any of the responsibilities for [X] in the last four years. The mother is critical of the applicant, and accuses the applicant of failing to keep her abreast of [X]’s issues. I am satisfied however that the mother has taken no proactive interest in [X], her development or her health issues.
I am also satisfied that, even with the best of intentions, the mother will not be able to be responsible for [X]’s intellectual, emotional or physical needs in the future.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As has been well set out in this judgment, neither of [X]’s parents have exhibited or demonstrated any parental responsibility for [X] since she came into the applicant’s care four years ago.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
It is the clear evidence of the professionals looking after [X] and Mr E, the Family Report writer, that [X] needs consistency and commitment from those who are caring for her and from those who are seeking to establish any form of meaningful attachment or relationship with her.
The person who has provided that consistency and commitment of care for [X] is the applicant.
At the request of the maternal family, the applicant took [X] into her care in June 2009. At that time, I am satisfied that [X] was in a terrible state both physically and emotionally.
The applicant has given [X] her undivided care, love and support and has done everything necessary to put in place the requisite arrangements to assist [X] in overcoming her many difficulties such that she is growing and developing into a delightful little girl.
The mother and the father are both asking this Court to put in place arrangements that will enable them to establish a relationship with their youngest daughter.
The reality is however that neither of them are able to do this in a consistent and reliable way such that this Court could be satisfied that orders for them to spend time with [X] would be in [X]’s best interests.
The father’s mental health and physical health issues, coupled with his being resident in South Australia, mean that the father is most unlikely to be able to visit [X] regularly for the minimum of six times per year as is recommended by [X]’s treaters and the Family Report writer.
Similarly, the mother’s history is such that the Court cannot be satisfied that she could travel from South Australia where she lives with
[C] to Victoria to see [X] regularly on six occasions per year.It is the clear evidence of all experts that to have [X]’s parents come in and out of her life would be more detrimental to [X] than having the opportunity to develop a relationship with them.
Parental responsibility
The applicant is seeking orders that she have sole parental responsibility for [X].
The maternal grandfather is seeking orders that he and the mother have shared parental responsibility for [X].
That the Court can make an order conferring parental responsibility for a child on a person other than a parent is quite clear under the Act.
Section 61D(1) of the Act provides as follows:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 64B(2) of the Act sets out the matters which a parenting order may deal with in the following terms:
(2)A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility…
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
I am of the view that given my findings in this matter, it will be in [X]’s best interests that an order be made for the applicant to have sole parental responsibility for [X].
Conclusion
This matter relates to the living arrangements for [X].
[X] has lived in the care of the applicant, her second cousin, since June 2009. Since that time, [X] has spent no time with the father, very limited short visits with the mother and regular supervised time with the maternal grandfather.
The applicant is now seeking orders that she have sole parental responsibility for [X], that [X] live with her, that [X] spend no time with the maternal grandfather and that the mother and father be able to send [X] cards, gifts and letters.
The maternal grandfather is seeking orders that [X]’s care transition to him on a graduated basis and that thereafter [X] spend time with the applicant once a month and with her mother, father and siblings by agreement.
Serious allegations were made against the maternal grandfather by his step-daughter that when she was a child she was physically and sexually abused by the maternal grandfather.
A finding has been made by this Court that on the balance of probabilities, the allegations made by Ms C are sustained.
In light of those findings and the maternal grandfather’s blanket denial of them, the Court is satisfied that there is an unacceptable risk to [X] if she were to spend time with the maternal grandfather.
[X] has a number of emotional and developmental difficulties which are being addressed through the efforts of the applicant and by the professionals engaged to assist [X], including a speech therapist, an occupational therapist and with the assistance of NECAMHS. It is the evidence of the professionals assisting [X] that she requires a consistency of interaction and commitment from her primary carer and those who are developing a relationship with her in order to better manage her emotional difficulties.
It is the evidence of [X]’s treaters and of the Family Report writer Mr E that if the Court could not be satisfied that the mother and the father were able to commit to a consistent and regular regime of interaction with [X] at least six times each year, then it would be harmful to [X] for this Court to make orders that there be face-to-face time between [X] and the mother and the father at this time.
The father has significant mental health and physical health issues which, coupled with his residence in South Australia, mean that he would not be able to provide the consistency of interaction that [X] would need.
The mother, who is also resident in South Australia, has a long history of inconsistency of interaction with [X]. Her evidence was such that this Court cannot be satisfied that she would, whatever her best intentions, be able to commit to the consistency and regularity of interaction that would be in [X]’s best interests.
The Independent Children’s Lawyer in this matter has put before the Court his proposal in relation to orders that he believes will be in the best interests of [X]. Those orders are that the applicant have sole parental responsibility for [X], that [X] live with the applicant, that the mother and the father be permitted to send cards, letters and gifts to [X] on special occasions together with correspondence and gifts no more than once a fortnight to be vetoed by the applicant, that the maternal grandfather spend no time with [X] and be restrained from approaching, communicating with or being within a five kilometre radius of [X].
The orders proposed by the Independent Children’s Lawyer accords with the orders that I have determined will be in [X]’s best interests with one small exception.
The Independent Children’s Lawyer’s proposal that there be an order that restrains the maternal grandfather from coming within five kilometres of [X] is impractical given these parties live in country towns. Accordingly, I intend to make an order that restrains the maternal grandfather from coming within 500 metres of [X].
I certify that the preceding two hundred and eighty-six (286) paragraphs are a true copy of the reasons for judgment of Judge Bender
Associate:
Date: 7 August 2013
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Injunction
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Jurisdiction
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Procedural Fairness
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