FLAST CASE SUMMARY: Wentworth & Wentworth 2019: Competing Parenting Applications- Sexual Abuse Allegations- Unacceptable Risk

Wentworth & Wentworth [2019] FamCA 57 (8 February 2019)

FACTS:

  • June 2016, before the parties separation the mother left the home with child X and resided in Sydney for a few weeks before notifying the father on the 21stJuly 2016 the marriage was over, the mother did not reveal her location with child X for some time, child X was 2 years old at the time.
  • Child X has always lived the mother.
  • Child X has spent very limited time with her father as a result of the mother’s accusations the child is at risk of sexual abuse by the father.
  • July 2016, the father spent time with the child at a park with his parents. The mother states the visit went well and child X had a good time.
  • 26 August 2016, the mother filed an application in the FCC seeking an order for sole parental responsibility and for the child to live with her- there was no mention in the application for child X to spend time with the father (the mother claims it was her intent to do supervised visits).
  • October 2016, the mother relocated with child X to another town (that she has no connection to) 166 km away from the town she resided with the father.
  • 23 November 2016, an order was made by consent for the child to spend every Sunday with the father supervised by a member of his family. The first visit was on 27 November 2016.
  • 22 December 2016, Family Report: The father was assessed by Dr N as a “low risk” of sexual offending.
  • 7 February 2017, final order made by consent for child X to live with the mother and spend time with the father.
  • July 2017, shortly before the start of the father’s scheduled overnight time, the mother made allegations to the police against the father and a temporary protection order was made for the protection of the child. The mother removed her request days later after admitting to police she was not afraid of the father.
  • 4 July 2017, the father resumed proceedings and his time was suspended on 26 July 2017 pending investigation of the mother’s allegations.
  • 1 September 2017, Detective Sergeant P conducted an interview with child X. The DS P informed the mother that she believed the father had exposed the child to an indecent act in the toilet, the DS P did not interview the Father.
  • November 2017, the application for a protection order for the child was now withdrawn by police.
  • 11 November 2017, the father spent no time with the child until he saw her at the family report interview.
  • 18 December 2017, a further order for supervised fortnightly time was made on and the first visit occurred at the contact centre on 10 February 2018.
  •  8 March 2018, the Department of Child Safety (Qld) told the mother that her allegations against the father were not proven, the child did not disclose any information during the interviews. Child safety were more concerned the mother was confused about the child’s behavior.
  •  27 October 2018, the mother alleged the visitation with the contact centre had not been sufficiently supervised based on statements allegedly made to her by the child. The contact center withdrew their services. The centre denied that anything inappropriate had happened during the supervised visits.
  • The mother now seeks equal shared parental responsibility, the child X (who will turn 5 in 2019) live with her and spend time with the father.
  • The mother in her application made allegations the father sexually abused the child.
  • The fatherseeks sole parental responsibility, the child to be removed from the mother’s care to live with him and spend time with the mother.
  • The ICL’s position is for child X to live with the father and have sole parental responsibility and for the child X to spend alternate weekend time with the mother, but only after a suspension of six weeks and at least three months of supervised time only.
  • The mother withdrew the claims of sexual abuse against the father during the final hearing and now supports a finding (sought by the father and the ICL) that the father has not sexually abused the child in any way.

 ISSUE:

  • Is there an unacceptable risk of emotional or psychological harm to the child X if she resides with the mother, if it is determined the father has not sexually abused the child?
  • Will the mother promote child X relationship with the father if child X continues to reside with her?
  • If there is a change to the child’s living arrangements, how can any unacceptable risk from the mother be prevented?
  • Should an interim order be made?

HELD:

The court determined the father to have sole parental responsibility, and for the child to reside with him. The mother to spend time with the child graduating from supervised time in a contact centre to unsupervised time on alternate weekends after a six week no contact suspension.

 The mother was also ordered to do six sessions with a psychologist and refrained from recording any video or audio footage of child X where alleged to be either making allegations of sexual abuse or displaying sexualised behaviour, additionally she is now refrained from making any further complaints to the police or child safety in relation to any of the allegations made up to and including the date of this order.

In determining these orders the Court must regard the best interests of the child as the paramount consideration (s 60CA).The best interests of the child are determined by reference to primary considerations, family etc. (s 60CC).

In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected(s 60CC(2A)).

The court established the father did not sexually abuse the child (there was no opportunity for the father to have sexually abused the child)and condemned the mothers conduct, even though the mother withdrew her allegations at the final hearing the court did not believe this was a genuine move and was done out of fear of losing custody of the child.The mother said to Dr E in May 2018 that it did not matter what judgements were made, she would uphold her belief the father had sexually abused the child.

The Family Report writer also states the mother “continues to be adamant the child is at risk of sexual abuse if she is to spend time”with the father, and believes the evidence gathering behavior will continue if the child resides with her.

It was determined the mother presents an unacceptable risk of emotional or psychological harm to child X and does does not have the capacity to promote the child’s relationship with her father. The risk of harm by the mother can be improved by supervision and psychological therapy.

The court also stated it has serious concerns about the conduct of the interview by the DS P and their readiness to participate in unfounded hearsay. The court states the DS P had no regard to the child’s responses to direct questions or have an open mind with the investigation.

Moreover, the court considered making an interim order to give the mother a chance to refrain from questioning the child, and making complaints to the authorities, however ultimately the court determined the mother’s behavior will most likely not change, and that an interim order should not be made.

 

 

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