Carnegie & Ginter 2013 FamCA 331
The parents of a 6 year old girl had a shared care arrangement when the mother alleged that the child had been subject to sexual abuse by the father and paternal grandmother. The mother applied for the child to live with her and for the father to have supervised access.
The mother quoted the daughter as reporting that the father touched her genitals in specific ways while she was being bathed, using his hand and soap. The mother recorded the daughter in the bath for 45 minutes by videotape while asking the daughter to repeat what had happened and to demonstrate actions. The mother pressed the child to answer questions (monitor). The mother then reported the incident to child protection authorities and to police.
Parts of the mother’s affidavit were ruled inadmissible as evidence as they related to historical concerns of the mother that had been raised before previous orders were issued. The judge considered it was incongruous for the mother to have agreed to the child having unsupervised access with the father if she maintained her earlier concerns.
A family consultant reported that the child had a fairly secure attachment with the father, and anxious attachment with the mother (attachment anxious). The father was considered capable of providing the child with security and reassurance. The mother was considered unable to set firm boundaries and to have a tendency not to distinguish her own emotional needs from the needs of the child, presenting a great danger of an enmeshed relationship developing (differentiate own/others emotions, parenting style permissive).
The consultant recommended that the child live with the father and that time with the mother be supervised. These recommendations were supported by the ICL.
The judge found that the mother held a strong belief that was unshakeable that the child had been sexually abused by the father, although this view was not supported by authorities (unsubstantiated allegation).
The judge found that the child already showed signs of an enmeshed relationship with her mother as the child was as attuned to the feelings of her mother as to her own feelings. The daughter had told the consultant that the mother really missed the daughter when she was with the father.
The judge found that the mother was prone to monitor excessively and had effectively interrogated the child about possible sexual abuse, and was likely to continue this approach unless she participated in therapy (personality rigid, therapy for parent).
The judge noted that a family court has no power to order a parent to participate in therapy unless this is a precondition for a child to spend time with a parent (conditional access).
The judge ordered:
- that the father have sole parental responsibility
- that the child live with the father
- that time the child spent with the mother be supervised for an interim period (supervised access)