Whatmore & Dillon
[2021] FedCFamC1F 374
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Whatmore & Dillon [2021] FedCFamC1F 374
File number(s): MLC 1074 of 2019 Judgment of: JOHNS J Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – CHILDREN – interim parenting orders – risk of harm – where the child has made allegations of physical discipline against the step-mother – where the father and step-mother deny the allegations – where the child has made consistent allegations to child protection and other adults – where the evidence needs to be tested – where there is an immediate need to protect the child from harm – where the father’s time with the child must be in the absence of the step mother Legislation: Family Law Act1975 (Cth) ss 60B, 60CC Cases cited: Goode v Goode [2006] FamCA 1346 Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 22 December 2021 Place: Melbourne Counsel for the Applicants: Mr Allen Counsel for the 1st Respondent: Mr Eidelson Counsel for the 2nd Respondent: Mr Turner Counsel for the Independent Children's Lawyer: Mr Kuan Solicitor for the Applicants: Knight Family Lawyers Solicitor for the 1st Respondent: Buscombe & Madden Lawyers Solicitor for the 2nd Respondent: Ballarat Lawyers Solicitor for the Independent Children's Lawyer: Kordell Lawyers ORDERS
MLC 1074 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WHATMORE
First Applicant
MS WHATMORE
Second Applicant
AND: MS DILLON
First Respondent
MS B DILLON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS:
BY CONSENT1.That the child of the relationship X born in 2014 spend time with the first respondent mother each week for no less than three hours at times agreed, but failing agreement from Thursday 4.00pm until 7.00pm and that all such time be in the presence of the second respondent maternal grandmother or Ms C Dillon.
2.That paragraph 11(b) of the orders made on 25 March 2021 be suspended.
BY THE COURT IT IS ORDERED UNTIL FURTHER ORDER:
3.That the father, his servants and agents be restrained from permitting the second applicant Ms Whatmore spending time or communicating with the child of the relationship X born in 2014.
4.That the first applicant father spend time with and communicate with the said child and in the absence of the second applicant, as follows:-
(a)On one day per week from 10.00am until 5.00pm as agreed, but failing agreement on Sundays; and
(b)As otherwise agreed in writing.
5.That all parties be restrained from:-
(a)Discussing these proceedings with the child or within her hearing;
(b)Using any form of corporal punishment or physical discipline upon the child; and
(c)Denigrating, abusing or insulting the other parent or party to these proceedings, to the child or within her hearing.
6.That all extant applications be dismissed.
7.That pursuant to s 65DA(2) and 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whatmore & Dillon is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
The matter comes before the Court today upon the Application in a Proceeding filed on behalf of the maternal grandmother. That application, filed 16 December 2021, seeks orders that the time that the child, the subject of the proceedings, X, aged 7, spends with her stepmother, Ms Whatmore, the second-named applicant, be suspended. Currently X lives with the maternal grandmother and spends regular time with the father and Ms Whatmore, and supervised time with the mother.
The maternal grandmother seeks further orders that ensure the continuation of X’s time with her father, Mr Whatmore, on the condition that his partner Ms Whatmore is not present. The application for those orders is supported by affidavits from the maternal grandmother, sworn 15 December 2021 and 21 December 2021. In addition, she relies upon affidavits from Mr D and Ms C, both sworn 16 December 2021.
The application of the maternal grandmother is opposed by the father and Ms Whatmore. They rely upon an Application in a Proceeding filed 20 December 2021. Effectively, what is sought by them is that there be a continuation of the existing interim parenting orders made on 20 November 2019 and 25 March 2021. Those orders combined provide that X spend time with the father (and with the father only) for five nights per fortnight during school term on an alternate weekend basis, from Friday after school to Monday morning. In addition, X is to spend time with the father each week from Tuesday after school to the commencement of school on Wednesday. Those orders also make provision for holiday time, providing that during the school holiday period, X spend time with the father each alternate week.
The father and stepmother rely upon their affidavits, each sworn 20 December 2021 in support of their application.
The application brought by the maternal grandmother is made as a result of concerns raised by her as to potential risk to X of suffering physical discipline and punishment at the hands of Ms Whatmore. In particular, concerns have been raised as a result of allegations and disclosures made by X to the maternal grandmother that Ms Whatmore has slapped her across the face.
The maternal grandmother relies upon events that occurred at a birthday party at a trampoline centre in November this year. It is alleged that X soiled her pants during that party, that the response of Ms Whatmore was to remove her from the trampoline centre and that upon return to Ms Whatmore’s motor vehicle, she slapped X across the face. That allegation is denied by Ms Whatmore. It is also denied by the father.
It is further alleged that as a form of punishing X, Ms Whatmore set fire to a Christmas present given to X. These matters were disclosed by X not only to the maternal grandmother but also to a teacher and counsellor at X’s school.
The maternal grandmother deposes that the notes produced by that school under subpoena to the court disclose discussions between X and the counsellor, that X has disclosed to that counsellor that she is scared of Ms Whatmore and that she does not feel safe around her.
In addition to the disclosures made by X to workers at her school, the section 69ZW report dated 23 June 2021 also contains disclosures made by X to child protection officers. The report notes that during investigation and interview of X on 5 October 2020, X disclosed and demonstrated to the workers how her stepmother had slapped her across the face the previous week. It is reported there that X said that she “pooped” herself by mistake and the stepmother had slapped her several times across the face, that X was placed in the bath by the stepmother when she was crying. The report notes that X said her father was not present during this incident and she did not tell him when he returned home from work.
It is submitted on behalf of the maternal grandmother that given the safety concerns for X in the stepmother’s care, at this time, the appropriate course is for there to be safeguards protecting X. It is submitted on behalf of the maternal grandmother that there should be no interruption to X’s opportunity to spend time with her father. It is on that basis that it is put to the Court that the father should have daytime periods with X on a weekly basis but that at this time, pending a testing of evidence, there should be no time between X and the stepmother.
In addition to the material filed at court, SMS text messaging from the father to the mother that has occurred since the filing of these applications has been produced to the Court. Those texts disclose that the father has forwarded a text message to the mother indicating that she can no longer spend supervised time with X in his home. He used foul and aggressive language in communicating that message to the mother. As a consequence, I have been asked to make orders by consent today ensuring that there is no interruption to the mother’s time with X. I have made orders in those terms, which will ensure that the mother continues to have weekly time with X under the supervision of either the maternal grandmother or maternal aunt. The mother has supervised time with X as a result of concerns related to the mother’s mental health.
In addition to the text messages from the father, a TikTok video, which was posted by the stepmother, again, following the filing of these applications, has been produced to the Court. In that TikTok video, the stepmother expressed in the strongest of terms her views as to the position of parents, her view that children can be “liars and manipulators” and that, further, if you are a person who does not believe that children can lie and manipulate, you should be “deleted” from the step-mother’s world. It would appear from those statements that the step-mother holds strong views as to the capacity of children to tell lies and manipulate; further if you do not share those views, she is strident in her position that she does not want you to be part of her world. In her affidavit material filed, the step-mother states plainly her views that X has told lies in relation to the allegations made against her. These views are confirmed and shared by the father in the affidavit material filed on his behalf.
The question for the court is whether or not it is appropriate for there to be an injunction restraining the stepmother from spending time with X pending the trial in this matter. The matter is listed for final hearing before Justice Hartnett to commence on 7 February 2022, a period of some seven weeks.
In determining whether time should be spent between X and the stepmother in that intervening period, I must make a determination as to what is in X’s best interests. That determination is guided by the objects and principles set out at section 60B of the Family Law Act1975 (Cth) (“the Act”).
In determining the matter, I have regard to the affidavit material filed by each of the parties, which, of course, is untested. The Full Court in the decision of Goode v Goode [2006] FamCA 1346 notes that “the procedure for making interim parenting orders will continue to be an abridged process where the scope of the inquiry is ‘significantly curtailed’” (at [442]). Where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.
I have before me not only the material filed by the parties but also the report to which I have earlier referred from the Department of Families, Fairness and Housing. That report is noteworthy as it records that there are consistent allegations made by X to the child protection workers, as to the step-mother’s conduct, as well as disclosures made by her to her teachers and also to the maternal grandmother.
In determining what is in a child’s best interest, I must have regard to the factors set out in section 60CC of the Act. In particular, and relevantly given the allegations raised I must have regard to the primary considerations and particularly the need to protect X from the risk of harm. The allegations raised in the material as to physical punishment of X are serious and squarely raise concern as to her being exposed to risk of harm in the step-mother’s care. They are allegations made over an extended period of time, as noted in the reports to the Department, to her teachers and also to her maternal grandmother.
X is very young and clearly does not have the capacity at this time to protect herself. She comes from a family where she has been surrounded by conflict for a prolonged period of time. She is a child who has incontinence issues, and she has been engaged with psychologists and therapists to assist and support her. All of those factors mean that she is particularly vulnerable. I am well satisfied that she needs to be protected at this time to ensure that there is no exposure to the type of risks alleged by the maternal grandmother.
I know and am well aware that the father and the stepmother deny the allegations made. There will be a fulsome opportunity for a testing of evidence in a matter of weeks. In the interim period, the father will have the opportunity of having an ongoing meaningful relationship with X, albeit it will be for more limited time than she is accustomed to.
It is a matter of concern to the Court that at this stage, neither the father nor the stepmother appear to have awareness or insight as to the potential impacts of their behaviour on X. In support of that observation, I refer to the text message sent by the father to the mother, effectively withdrawing his support for her time with the child. That is evidence of him engaging in the adult conflict rather than being focused on what is best for X. Similarly, the post by the stepmother to TikTok is illustrative of her lack of insight or awareness as to the potential impact of such conduct upon X.
Seemingly, the stepmother seeks to delete from her world people who do not agree with her or her parenting strategies. That approach does not bode well for X given that neither the mother nor the maternal grandmother at this time agree with the stepmother’s parenting strategies. It is for the foregoing reasons that I make orders as sought by the maternal grandmother.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 22 December 2021
0