FEDERAL MAGISTRATES COURT OF AUSTRALIA
GIPSON & GIPSON	[2012] FMCAfam 774	

FAMILY LAW – Interim Parenting Orders – allegations of sexual abuse and counter allegations of mental health issues.	

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011	

Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 
MRR v GR [2010] HCA 4	

Applicant:	MR GIPSON	

Respondent:	MS GIPSON	

File Number:	BRC 5374 of 2012	

Judgment of:	Lapthorn FM	

Hearing date:	24 July 2012	

Date of Last Submission:	24 July 2012	

Delivered at:	Brisbane	

Delivered on:	2 August 2012	

REPRESENTATION
Counsel for the Applicant:	Mr Bunning	

Solicitors for the Applicant:	Murdoch Lawyers	

Counsel for the Respondent:	N/A	

Solicitors for the Respondent:	Madsen Law	

Counsel for the Independent Children’s Lawyer:	N/A	

Independent Children’s Lawyer:	C M Bint Family Lawyers	

ORDERS – PENDING FURTHER ORDER
(1)	That the children [X] born [in] 2004 and [Y] born [in] 2006 live with the mother;
(2)	That within 7 days of the date of these orders both parties do all acts and things as are necessary to undergo the intake required by the [H] Contact Centre and the [L] Contact Centre.
(3)	That the children spend supervised time with the father at the Contact Centre that is first available to accommodate the parties, each weekend for at least 2 hours as can be arranged by the Contact Centre. 
(4)	That within 48 hours each party provide to the other a landline or mobile telephone number on which they and the children can be contacted.
(5)	That the children communicate with the father between the hours of 6.00pm and 6.30pm each Monday, Wednesday and Friday by telephone and in relation to such communication the mother shall:
(a)	Ensure that the children are available to receive the telephone call;
(b)	Arrange for the children to telephone the father on the following night, if for any unforeseen circumstance, the children miss the telephone call from the father.
(6)	That the children continue to attend [C] School.
(7)	That by this order the school attended by the children is authorised to provide each parent information ordinarily provided to parents in relation to the school, the children’s educational progress and other school related activities and supply them upon request with copies of school reports, photographs, certificates and awards obtained by the children at the requesting parent’s cost.

IT IS NOTED that publication of this judgment under the pseudonym Gipson & Gipson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA 
AT Brisbane	
BRC 5374 of 2012
MR GIPSON	
Applicant

And

MS GIPSON	
Respondent

REASONS FOR JUDGMENT
Introduction
1.	The parents of [X] and [Y] separated in April this year.  Their father filed an application on 20 June 2012 seeking urgent interim orders for the children to live with him. He alleged the children’s safety was at risk because the mother’s mental health was compromised. The mother in turn alleged the children would be at risk of being sexually abused if they were to live with or spend unsupervised time with the father.
2.	The dispute initially came before me on 17 July but was adjourned until 24 July to enable more time for the court to hear the matter.  On 17 July I ordered the children to be independently represented and fortunately Legal Aid Queensland was able to arrange for a very experienced Independent Children’s Lawyer to be appointed within the very short adjourned period.
3.	On that day I also made orders restraining the parties from removing the children from Australia; placing the children’s names on the Airport Watch List; retaining the children’s passports with the Registry Manager of the Family Law Courts Brisbane Registry; requiring each party to keep the other informed about any medical attention the children receive; and restrained the parties from denigrating the other in the presence of the children.
Background
4.	The parties who are Indian by birth were married in India [in] 2002 but soon thereafter migrated to New Zealand.  They moved to Australia in 2008.  [X] was born [in] 2004 and [Y] was born [in] 2006.  The parties had a three month separation in 2007 when they were living in the Wellington area of New Zealand.  When the parties separated on 21 April this year the father moved out of the former matrimonial home in [F].  The mother and children continued to live there until the middle of June when she went with the children to a women’s refuge. 
5.	The father who is 40 years of age is an [occupation omitted].  He has returned to the former matrimonial home after spending some time living with the pastor of his church.
6.	The mother is currently 37 years of age and works for [omitted].  The mother and children have moved out of the refuge and are currently living in [C] at [R].  She has not disclosed her address to the father.  
Competing applications
7.	The Father filed his Initiating Application on 20 June 2012.  He was granted an exemption in relation to the requirement to file a Dispute Resolution Certificate.  He filed an Amended Initiating Application on 26 June and tendered at the hearing a minute of orders sought.  The mother filed her response on 14 July 2012 and a Notice of Child Abuse, Family Violence, or Risk of Family Violence on 19 July.  
8.	Although each party sought detailed interim orders the crux of their competing applications was that they each wanted the children to live with them and to spend supervised time with the other parent.  They also sought a sole parental responsibility order in their favour.  
9.	There is also an issue as to whether the children should return to the previous school or remain at the one the mother has recently enrolled them in.  The father also sought an injunction preventing the mother taking the children to see their current psychologist.
Issues
10.	Given the nature of the allegations raised by each party it will be necessary to assess whether the children are at risk of harm and if so the level of that risk in the care of either parent.  This assessment needs to be undertaken without the benefit of an expert report by either a psychiatrist or family report writer.  Therefore the determination needs to be for a limited duration until more information is available.  The ICL has already made tentative appointments for psychiatric assessments but the court is unlikely to have the benefit of any report for two or three months.
11.	In determining the level of risk the children may face in the care of either parent, it is necessary to consider the mother’s allegations that the children have been sexually abused in the father’s care, and the father’s allegations that the children are at risk of emotional harm and possibly physical harm in the mother’s care.
The Evidence
12.	The father relied on his affidavits filed:
a)	20 June 2012;
b)	26 June 2012; and
c)	17 July 2012.
13.	The mother relied on her affidavits filed:
a)	14 July 2012; and
b)	21 July 2012.
14.	She also sought to rely on the affidavit of Mr S affirmed 23 July 2012.  I allowed only limited parts of this affidavit to be read. Mr S is a Psychologist who has been seeing the children. I allowed only those parts of the affidavit that recorded his observation of the children.  I did not allow those parts that appeared to express an opinion as the deponent highlighted the limitations to his report in paragraph 2.4 and the opinions expressed appeared to be in response to correspondence from the mother’s solicitor rather than as a consequence of a joint request for a forensic expert.
15.	A number of documents were tendered into evidence by each party and the ICL.  These documents were often part of larger bundles.  All of the exhibit markings were prefixed with the letter “F” denoting they were tendered as part of the father’s case however to avoid duplication I did not require the pages tendered by the mother and the ICL to be given different exhibit identifiers.  I have had regard to all of the tagged pages within the bundles.
16.	I was also greatly assisted by the written submissions handed up by the legal representatives for the parties as well as the oral submissions.
17.	The matter before me was heard on the papers and therefore disputed questions of fact, of which there were many, were not able to be determined.  I do not propose to analyse the facts in detail however it will be necessary to address some inconsistencies in the evidence by reference to the subpoenaed documents.  I will do so when I consider the s.60CC factors. 
Legal Principles
18.	All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975.  Since the initiating application was filed after 7 June 2012 the court is required to determine the matter under the new provisions that came into effect that day.  In determining the outcome of such proceedings the Court is required to have regard to the objects and principles that underlie that part and must consider the best interests of the child as the paramount consideration.  
19.	The objects of Pt VII are to give effect to the United Nations Convention on the Rights of the Child and to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.  Section 60B(2) sets out the principles underlying those objects.  Unless it would be contrary to a child’s best interests the principles are:
a)	Children have a right to know and be cared for by both their parents; 
b)	Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)	Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)	Parents should agree about the future parenting of their children; and
e)	Children have a right to enjoy their culture.
20.	The legislative framework which must be followed in all parenting cases, mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.  In interim proceedings the presumption applies unless the court considers it would not be appropriate for it to apply.
21.	In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents.  In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.  If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.
22.	In determining what is in a child’s best interests the court must have regard to a number of considerations set out in s.60CC.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents  
23.	There is no dispute in this case that the mother has been the children’s primary carer all of their lives.  They have a significant relationship with her.  If the father’s proposal was to be accepted there is a risk the stability they currently have with her would be disrupted.
24.	The children have not seen their father since the middle of June.  It is important that they commence to do so as soon as possible to avoid any deterioration in their relationship.
25.	Whilst this consideration is the first of the primary considerations I am required to give greater weight to the next consideration.      
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
26.	Each party has made serious allegations against the other such that it is necessary to assess the level of risk, if any, for the children in the care of either parent.  I propose to address the mother’s allegations first and then consider the allegations raised by the father.
27.	The ICL submitted there were a number of inconsistencies in the evidence in relation to the mother’s allegations.  I was not invited by her to draw any conclusion as to the reason for those inconsistencies.  Counsel for the father however submitted that the inconsistencies were sufficient for me to draw a conclusion adverse to the mother.  Without having the opportunity to have the evidence tested I would be hesitant to draw any adverse conclusions about those inconsistencies however the extent of the evidence will assist me to assess the level of risk to the children.
28.	The mother asserted that although she had no direct evidence of the father sexually abusing the children she was convinced that this has occurred.  She maintained her concern notwithstanding the police and officers of the Department of Community Services (Child Safety) (the Department) have investigated her concerns and have recorded them as unsubstantiated. 
29.	In her affidavit material she set out a number of factors that have led her to form the view that the father has acted in a sexually inappropriate way with the children. These factors have included a disclosure by [Y] in 2010 that: Dadda hurt my pee pee; observing the children exhibiting behavioural problems at home and receiving similar reports from their school; observing both children adopt a pose which she described as their hips raised and the bottom pointed upwards and on the morning of 19 April the mother found the child [X] in the father’s bed in different clothes to what he wore to bed with her the night before.
30.	She gave evidence of approaching her local general practitioner, police, the Department and a child psychologist with her concerns.  
31.	The father has denied the allegations.  He is concerned that the mother has been attempting to coach the children into making allegations against him and that as a consequence they are at risk of emotional harm by the mother attempting to alienate them from him.  In support of this concern he relied upon a transcript of videos that formed part of the documents produced under subpoena from the Police where it appears that the mother had asked the children a number of leading questions.  The police noted that neither child made any disclosures and recorded an opinion that the mother had been “schooling” the children.  If that is the case it would appear she has been entirely ineffective as the children have not made any disclosures.
32.	The notes of Dr C five days after the parties separated show that the mother spoke to him about her relationship difficulties but did not indicate that she had separated from the father.  She also told the doctor that she was suspicious the father was sexually abusing [X] and wanted him to have a physical examination.  This was not done.  The doctor told the mother that it might cause trauma to the child.  She accepted this advice.  The records noted the mother told the doctor that she had not witnessed any abuse nor had she been told by the child that it had occurred.  She described anxious behaviour on the part of the child and that she had observed the child to be in a new set of clothes after sleeping the night with the father. Despite the documents showing the children presented to the clinic many times a year this appeared to be the first time the mother described behavioural problems to a doctor. 
33.	Two days after this visit the mother told an officer of the Department that [Y] had told her that: Daddy hurt my private part and that both boys had been exhibiting bad behaviour including taking their clothes off and touching their private parts.  The inconsistency with what is recorded in the doctor’s notes two days earlier is stark.
34.	The following day the mother was interviewed by police.  She gave them a detailed history of her concerns in regards to the father and his family dating back many years both in Australia and New Zealand.  From the record of her account it is difficult to determine a time frame for the events alleged by her but she is recorded as saying that [X] would wail and curl into a foetal position and smear his own faeces on the wall.  She apparently told the police that the children were seeing a psychiatrist.  This was not correct at that time. She told the police that [Y] told her that his father had touched his bottom and had recorded the conversation.  The words recorded here are different to those recorded by the Department the day before.  
35.	The mother returned to the doctor on 3 May, and told the GP that [X] was having significant anxiety and behavioural problems at home and at school.  She does not appear to have told the doctor about the alleged disclosures to her by the children.  The mother received a mental health care plan for the children including a referral to a psychologist. 
36.	As part of its investigation the Department contacted the children’s school on 7 June 2012.  The school advised that there were no behavioural or academic indicators on the part of either child to suggest that any sexual harm had occurred.  They commented that the school had little interaction with the father but that the mother had presented as a caring mother who was committed to the children’s education.  On one occasion the mother told teachers at the school that the father was “hurting” the children but had not elaborated.  She indicated that both she and the children were safe.  The mother told a teacher that she intended to take the children back to India.  The teacher had denied telling the mother that the child [Y] was not “psychiatrically ok” but did say that at times he lacked focus.
37.	On 12 June the mother told the police that she had separated despite the fact that she had already separated from the father when she spoke to them on 29 April.  The mother was aware by this stage that the Department and police did not consider the children to be in need of protection from the father.  She phoned her doctor that day and told him she was surprised and unhappy that the department allowed her children unsupervised ‘contact’ with the father even though the psychologist advised her not to allow unsupervised time. The Departmental notes however recorded the psychologist as denying telling the mother the father should not have contact with the children but did tell her that if her allegations are correct the children may regress if they see the father and it may be traumatic for them.  I am not surprised the mother may have interpreted the comments of the psychologist to mean the children should not see their father unsupervised.
38.	A letter in similar terms dated 15 June was sent to each of the parents from the Manager of the [F] Child Safety Service Centre advising them that the Department had investigated the child protection concerns allegedly affecting the safety and well-being of both children whilst in their respective care. The outcome of the investigations was “Unsubstantiated – Children Not in Need of Protection” for both children.  The Department had concluded the children had not suffered harm as defined in the Child Protection Act (Qld) 1999 and they have parents willing and able to ensure their care and protection needs are met.
39.	Despite this letter and oral advice from the police and the Department the mother has maintained her belief that the children are at risk in the father’s care.  Whilst I accept the submissions made by both the ICL and the solicitor for the mother that it is possible the mother may have been simply scared or highly emotional after having separated and was trying to protect her children as best she saw fit, in light of the many allegations she has levelled against the father and his family as recorded by the police I am not sure if that is the case.  However without a thorough psychiatric assessment and an ability to have the evidence tested I am simply not in the position to determine the motivation behind her allegations.  For that reason I do not accept the submission made on behalf of the father that it is open to the court at this interim stage to make a finding adverse to the mother as a result of the many allegations she has raised about him and his family.  Even if it was open to me I would decline to do so until I had an opportunity to observe the mother in the witness box and have the evidence tested.
40.	When I consider all of the available evidence I am not satisfied there is any evidence warranting a finding that the children are at an unacceptable risk of sexual harm whilst with the father. 
41.	The father’s case is that the mother suffers a mental health condition whereby she can be loving and caring for periods of time but at other times she makes allegations about him and his family. These allegations have been many and varied and have included family violence of physical and sexual natures as well as by way of controlling behaviour.  There have also been allegations of involvement in witchcraft.  He is concerned that if the children remain in her primary care they will become alienated from him.  He also raised a serious allegation that on 12 June 2012 the mother said to him:  If I can’t be with the children in this world, I will be with them in the next world.  
42.	The Department has investigated the father’s concerns.  The mother’s doctor advised the Department that he had no concerns in relation to the mother’s mental health.  The father found some unused tablets which he said belonged to the mother.  These were Stemzine, Calmex and Loette.  He conducted an internet search and concluded these drugs were used as an anti-psychotic, to treat anxiety and to regulate hormones respectively.  Apart from the Loette I am not satisfied there is sufficient evidence to conclude those drugs were ever prescribed for or taken by the mother. The notes from the mother’s doctor show that the mother had been taking Loette for PMS (presumably premenstrual syndrome) and on 23 September 2011 he prescribed Endep for persistent headaches and PMS.  Counsel for the father argued that Endep was a drug used to treat depression and tendered an internet printout of the consumer medicine information for it.  It is clear however the doctor had prescribed it in relation to headaches and pain.  There is no evidence the mother has been treated for depression or any other mental health issue. 
43.	After considering the father’s allegations and concluding their investigation the Department advised the father in the letter dated 15 June to which I have already referred that they consider the children’s parents were willing and able to ensure their care and protection needs were met.  Despite the seriousness of the father’s allegation in relation to potential harm to the children by the mother I am not satisfied there is sufficient evidence to find the children are at an immediate unacceptable risk of harm in their mother’s care.
44.	If the father’s allegation as to the potential for the mother to alienate the children from him is correct there maybe a longer term risk of emotional harm to the children.  It is clear that if the mother had been embarking on a course of action to coach the children to make false allegations about the father she has been unsuccessful given their failure to make such disclosures.  This issue would be better able to be determined after the court has the benefit of the psychiatric assessment of the parties and a family report.
45.	The ICL submitted that the children’s best interests would be served at this stage by remaining in the primary care of the mother and to spend supervised time with the father.  Ms Bint was very clear to say that she did not consider the children to be at risk of sexual harm in the father’s care.  Her submission was based on the father’s concern as to potential physical harm to the children by the mother if the court was to order his time to be unsupervised.  In my view the greater concern would be the risk of further allegations being made that the father had engaged in inappropriate conduct with the children if the time was not supervised if the mother did have the mental health issue raised by the father.  
The additional considerations: s.60CC (3)
46.	A number of the additional considerations are not able to be determined at this early interim stage because of the conflicting evidence and the need for a more thorough psychiatric assessment and family report.  For this reason I do not intend to conduct a detailed analysis of all of them.  I note that the father has wanted to see the children since the mother denied him that opportunity in mid-June.  He also alleged that the mother has taken the children overseas in the past without his consent.  His lawyers wrote to the mother’s former lawyers on 28 June seeking a proposal from the mother as to how the children could spend time with him.  In that letter whilst he maintained the position that supervised time was not necessary he was prepared to consider any proposal that would enable the time to recommence.  There was no response to this correspondence.
47.	In light of the allegations the issues of parental capacity and the nature of the children’s relationships with each parent and extended family will become important considerations at a later stage after the more detailed assessment to which I have already referred.
48.	The father would like the children to return to their old school in [F] which would only be practical if they were to live with him.  I am concerned to avoid further disruption to the children.  If they were to return to that school whilst living with the father when there is potential for them to be returned to the mother’s care, and therefore back to their current school, if after the release of the reports it is determined they should be living primarily with the mother the changes would likely be quite unsettling for them.  
49.	The mother made an application to the Queensland Magistrates Court for a protection order alleging family violence by the father.  I am informed there is no interim order in place.  The evidence is unclear as to whether this application has been finalised.  As well as the complaint in relation to sexual harm the mother alleged the father had physically harmed the children.  The police and Department are aware of these allegations.  Both parties were encouraged by the Department in the letter dated 15 June to seek assistance to ensure the children are not exposed to family violence in the future.  Given the serious allegations raised by each party against the other the risk of conflict between the parents is high.  For this reason I do not consider it appropriate for the parties to meet when the children are to see the other parent.  
Presumption of Equal Shared Parental Responsibility
50.	I do not consider it appropriate to apply the presumption of equal shared parental responsibility given the serious allegations each party has raised against the other. However given the need for more information, particularly the proposed psychiatric assessments I do not consider it appropriate to determine the competing applications for sole parental responsibility at this stage. That issue will be better determined at a later date.
Consideration of Equal Time or Substantial and Significant Time
51.	Having not applied the presumption of equal shared parental responsibility I am not required to consider the provisions of s.65DAA.  This decision is intended to be of limited duration pending further information.
Discussion
52.	I have been persuaded to adopt the position urged upon me by the ICL notwithstanding the serious allegations raised by the father.  Both parties have raised serious allegations against the other which if pressed will need to be determined at a final hearing.  Although I am comforted to a certain extent by the investigations carried out by the police and the Department, many doubts still remain.  When I weigh up the evidence before me I am satisfied that there is insufficient evidence to conclude the children are at an unacceptable risk of harm in either parent’s care.  When I consider that finding with the fact that the mother has been the children’s primary carer all of their lives and that this decision is for a short period of time I am persuaded their best interests would be served by continuing to live with the mother.  This would also have the benefit of providing at least some sense of stability for the children in the meantime.  The children should continue to attend their new school at least until further order so as to avoid any further disruption to their lives.
53.	It is important however for the children to recommence their relationship with the father.  Although I have found the children would not be at an unacceptable risk of harm in the father’s care I propose to take a cautious approach until further information is obtained.  I am concerned that if the father is ultimately shown to be correct in relation to the mother’s mental health he is at risk of further allegations being levied against him by the mother if he is to see the children unsupervised.  This may lead to the children being interviewed again by police and the Department.  This should be avoided if at all possible.  The mother has already been warned in a letter by the Department that there is the potential for emotional harm to the children by that process but if the father is correct she may not appreciate the seriousness of this.  
54.	For the same reason I am of the view that a professional contact centre would be more appropriate than having other persons to do the supervision no matter how appropriate they otherwise might be.  Although the mother had proposed a couple of supervisors pending the availability of a contact centre, without evidence as to their suitability I do not intend to make such an order.  Use of a professional contact centre should also limit the prospects of the parents coming into contact with each other and thereby avoid any conflict in front of the children.
55.	There are often significant delays in accessing the services of contact centres.  The closest contact centre to the father is at [L] and the closest for the mother is [R].  I understand there are some significant delays at the former.  In order to ensure the children commence seeing their father at the earliest opportunity I propose to make orders that would require the parties to enrol in both centres so that they may take up the first available and to leave open more options in the future if it is necessary to continue with supervised time.  
56.	The mother was not opposed to the children having telephone communication with the father and I will make an order accordingly.
57.	The father also sought to restrain the mother from taking the children to see their current psychologist who provided an affidavit in her case.  I do not consider this order to be in the children’s best interests.  It is clear that they have experienced significant disruption to their lives by their parents’ separation and the investigations.  Although they have only seen Mr S on a couple of occasions I would not want them exposed to yet another professional at this stage.  They may benefit from seeing him further.  The Departmental notes indicate that Mr S appears to have an open mind in relation to the mother’s allegations and is directing his efforts in a therapeutic way which is likely to be of benefit for the children.
58.	For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Lapthorn FM

Associate:  

Date:  2 August 2012