Abbey and Crowne

[2014] FamCA 335

FAMILY COURT OF AUSTRALIA

ABBEY & CROWNE [2014] FamCA 335

FAMILY LAW – CHILDREN – With whom the children spend time – Where the parties have reached consent in relation to final parenting orders save for one issue – Where the Mother seeks an order that the children are not left in the sole care of maternal grandfather and that his contact with the children be supervised by the Father or his wife – Where the Court is satisfied that such an order meets the children’s best interests, together with the orders to be made by consent

Family Law Act 1975 (Cth)
APPLICANT:	Mr Abbey

RESPONDENT: Ms Crowne

INDEPENDENT CHILDREN’S LAWYER: Ms Susan Gray

FILE NUMBER: CSC 691 of 2008

DATE DELIVERED: 23 May 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Cairns

JUDGMENT OF: Kent J

HEARING DATE: 20 May 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Sandra Sinclair, solicitor

FOR THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Susan Gray, solicitor

Orders

IT IS ORDERED BY CONSENT ON A FINAL BASIS

1. That the parents have equal shared parental responsibility for the children E born … 2005 and L born … 2006.

2. That the parents have sole parental responsibility for making decisions on issues that are not major long-term issues for the children during times when either or both of the children are living with or spending time with that respective parent.

3. For the purpose of these Orders a major long-term issue will include, but is not limited to, issues about:

   (a)       the children’s education and extra-curricular activities;

   (b)       the children’s religious and cultural upbringing;

   (c)       the children’s health;

   (d)       the children’s names;

   (e)changes to the children’s living arrangements that will make it significantly more difficult for the children to spend time with a parent.

4. The children will live in Cairns with each of the parents on a week-about basis from after school on Friday until the commencement of school the following Friday.

5. Order number 4 of these Orders will be suspended during the Christmas School holiday each year, and:

   (a)in all odd numbered years the children will spend the first half of the Christmas school holidays with the father and the second half of those holidays with the mother;

   (b)in all even numbered years the children will spend the first half of the Christmas school holidays with the mother and the second half of those holidays with the father.

6. Both parents are restrained from denigrating the other parent or the other parent’s family or partner in the presence or hearing of the children and will remove the children from any situation where a third party is denigrating the other parent or the parent’s family or partner.

7. Both parents are restrained from discussing these proceedings with the children, including any discussion about the children’s future living arrangements.

8. Both parents are restrained from physically disciplining the children or allowing any other person to do so.

9. Each parent must notify the other parent as soon as practicable if either of the children requires urgent medical attention or receives a referral to a specialist medical practitioner whilst either of the children is in their care.

10. This Order irrevocably authorises the children’s:

    10.1    school or other educational facility;

    10.2    care providers;

    10.3    medical, allied health professional or health care professional; and

    10.4    entities with which the child is enrolled in extra-curricular activities,

    to:

    (a)provide to each of the parents any report, notice, copies of school photograph order forms, information or other material regarding the child which the parents so request at the expense of the requesting parent;

    (b)meet with either of the parents, either alone or in company, for the purpose of discussing either the children’s progress including at designated parent teacher events and in the normal course of the children’s day to day schooling.

11. That both parents given notice in a reasonable amount of time in advance will give serious consideration to swapping the week to week care arrangements of the children to accommodate the children spending time with relatives who travel from overseas, including Grandparents, Aunts, Uncles, Cousins, Siblings and any other significant relationship the children have.

12. Each party may communicate with the children at all reasonable times that they are in the care of the other party, including but not limited to by; telephone, Skype, email, social media and post.

13. In the event the children are in the care of a party on the below listed days, that party must facilitate the other party’s communication with the children for:

    13.1    Mother’s Day and Father’s Day (as the case may be);

    13.2    the children’s birthdays;

    13.3    the parent’s birthdays;

    13.4    the children’s step-parent’s birthdays.

IT IS FURTHER ORDERED ON A FINAL BASIS THAT

1. The father do all acts and things to ensure that the children are not left in the sole care of Mr D and that his contact with the children be supervised at all times by the father Mr Abbey or his wife Ms Abbey.

2. The parties including the Independent Children’s Lawyer have liberty to apply within thirty (30) days of the date of these Orders as to any error or omission contained in the above consent orders.

3. The Independent Children’s Lawyer be discharged.

4. All outstanding applications be removed from the pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abbey & Crowne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 691 of 2008

Mr Abbey

Applicant

And

Ms Crowne

Respondent

REASONS FOR JUDGMENT

1. Mr Abbey (“the Father”) and Ms Crowne (“the Mother”) are the parents of E born in 2005 now nine years of age and L born in 2006 now seven years of age.

2. Susan Gray is the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the interests of the children in these parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

3. The trial of the parenting proceedings was listed in the sittings in Cairns in the week commencing 19 May 2014.

4. In the event the parents with the assistance of the ICL were able to reach agreement reflected in consent orders as to all relevant care arrangements for the children, leaving in the end only one issue.

5. Before turning to that issue, it is to be noted that the consent orders provide for the parents to have equal shared parental responsibility for the children. The orders further provide for the children to live in Cairns with each of the parents on a week-about basis. Otherwise the proposed consent orders deal with holiday time and a range of other issues concerning the children.

6. The sole issue that the parents were unable to reach agreement about, and which the Court thus has to determine, is the order sought by the Mother in these terms:

   The father do all acts and things to ensure that the children [E] and [L] are not left in the sole care of [Mr D] and that his contact with the children be supervised at all times by the father [Mr Abbey] or his wife [Ms Abbey].

7. Mr D referred to in that order is the Mother’s father and thus the children’s maternal grandfather. Ms Abbey is obviously the Father’s present wife.

8. Before dealing with that issue some relevant observations ought be made about the consent orders and the fact that the parents have been able to largely agree on the care arrangements for the children save and except for the issue referred to.

9. The parents were in a de-facto relationship for some 14 years from 1994 until September 2008. Following their separation the parties were able to negotiate and agree upon consent orders which saw the children living with each parent essentially on an equal shared care basis. The parents were also able to resolve property and financial issues.

10. It is thus clear that there was historically a significant degree of cooperative parenting in the post-separation period from September 2008 at least until about January 2012.

11. In about January 2012 the Mother moved to Town B, New South Wales from Cairns because her current husband, Mr Crowne had to pursue work in northern New South Wales. Nevertheless, the Mother regularly visited Cairns and the children also spent school holiday time in the period following January 2012 with the Mother in about the first six months of 2012.

12. For his part the Father commenced a relationship with his current partner in December 2008.

13. Significant issues arose in mid 2012 and indeed it was on 20 June 2012 that the Father and the maternal grandfather as Applicants initiated the current parenting proceedings in the then Federal Magistrates Court of Australia. By those proceedings those Applicants sought orders that the children live with the Father and that he have sole parental responsibility for them. Orders were also sought that the Mother be restrained from bringing the children into contact with her husband Mr Crowne.

14. The Applicants sought to have the application for interim orders in similar terms heard urgently and on an ex parte basis.

15. It is significant to the issue to be determined that the maternal grandfather elected to be a party to the Initiating Application referred to. Indeed, there is evidence to support the Mother’s contention that he was the prime mover in the making of that application and reference is made in the Mother’s evidence to his financial support of the proceedings.

16. Whilst it is evident from the summary of issues the ICL provided when instructing the relevant experts in this case that there were many allegations and counter-allegations by each parent against the other from about this time; and an issue or potential issue was the Mother’s then proposed relocation to either northern New South Wales or the Gold Coast area from Cairns (and the effects of that if the children were to live primarily with her) lying at the centre of the dispute were allegations that Mr Crowne had acted inappropriately in a sexual way towards the children.

17. It is unnecessary, and probably unhelpful, to detail here particulars of the allegations of sexual abuse that were made based upon alleged disclosures or behaviours of the children, or either of them, at the relevant time. Suffice to note that the allegations were plainly allegations of sexual abuse levelled at Mr Crowne. It is unnecessary to detail them because at least by the time of the family report prepared by Mr P, psychologist, the Father was not pursing any allegations of sexual abuse and these allegations were not thereafter pursued by the Father. He is recorded as relaying to Mr P “I don’t believe the kids are at any sexual risk by [Mr Crowne]; just that they have been exposed to a derogatory style of parenting.”

18. What is relevant about the allegations of sexual abuse to the issue to be decided is, first, the role of the maternal grandfather in those allegations and what those allegations entailed for the Mother and her husband, Mr Crowne.  

19. It is clear on the evidence in the Mother’s case that the maternal grandfather played a central role in the allegations being advanced in the first place. He and his current wife questioned the children when the children were with him and it was alleged by the maternal grandfather that relevant disclosures were made. The maternal grandfather prompted the Father to act. Indeed, as already noted, he chose to himself become a party to the institution of the proceedings.

20. On 28 November 2012 Justice Benjamin made an order by consent that all previous parenting orders in respect of the children be discharged. His Honour further ordered, on an interim basis, that the parents have equal shared parental responsibility for the children and that they should live on a week-about basis with each parent. By the time of that order the report of Mr P which will be further referred to was available. Importantly the order made by Benjamin J contains the notation that the maternal grandfather filed a Notice of Discontinuance of his application on 3 August 2012 and his Honour removed the maternal grandfather as a party to the proceedings.

21. The making of the subject allegations had obvious and serious ramifications for both the Mother and her husband Mr Crowne. Both the Queensland Police Service and the relevant Department became involved in investigating them. It is stating the obvious that those allegations put at risk Mr Crowne’s livelihood and indeed his liberty and thus had very serious potential ramifications for the Mother. It is obvious from the content of the Mother’s evidence and the expert reports that will be referred to that the effects upon the Mother and Mr Crowne and their sense of stability was profoundly challenged by these allegations being advanced even though they were not ultimately pursued. The Mother’s affidavit evidence details the numerous respects in which the making of these allegations caused stress or problems for the Mother and Mr Crowne. Indeed she also details adverse ramifications for the children.

22. An important matter of context to the allegations is that there is no issue as between the parents on the evidence that there has for some considerable time been a very hostile relationship between the Mother and her father and as between Mr Crowne and the maternal grandfather, not only because of the making of the allegations. The history includes the maternal grandfather being terminated from employment by the same company in which Mr Crowne worked and was the maternal grandfather’s superior. It is clear that the maternal grandfather attributes blame to Mr Crowne for the termination of his employment and that of his son (the Mother’s brother) by that company and the financial consequences of that for the maternal grandfather.

Resolution

1. As these are parenting proceedings Division 12A within Part VII of the Act applies. That Division sets out the principles for conducting child-related proceedings and the duties and powers of the Court in giving effect to those principles.

2. Conscious of the duties and powers set out in Division 12A, I sought from each party at the outset of the trial of these proceedings whether any party required any witness or deponent for cross-examination. Each of the Father, via his solicitor Miss Sinclair; the Mother who was self-represented; and the ICL confirmed that no cross-examination of any witness was required for the purpose of the Court determining the outstanding issue and that it could be determined by reference to the respective affidavit material filed and by the making of submissions. The trial thus proceeded on that basis.

3. I am satisfied having regard to the objects and principles in Division 12A and the nature of the issue to be resolved in the context of the consent orders, otherwise that this issue is amenable to determination on this basis.

4. The Father opposed the order sought by the Mother essentially by reference to two matters. First, Ms Sinclair submitted that the order would impose an onus or obligation upon the Father. That is obviously so, but if it be in the best interests of the children for such an onus or obligation to be imposed that is obviously no impediment to the making of the order. Second, it was submitted by Ms Sinclair that the children have a relationship with their maternal grandfather and that an order in these terms would impose an unnecessary restriction upon that relationship. In this respect it is to be noted that the Mother does not seek an order that the children not be brought into contact with their maternal grandfather. The order she seeks is simply that this not occur out of the presence of the Father or his current partner.

5. I interpolate here that one possible solution advanced during the hearing was that the supervision be carried out by the maternal grandfather’s current wife, but the Mother was not amenable to that proposal on the basis that, whilst to a lesser extent, the maternal grandfather’s current wife had participated in the relevant interview of the children surrounding the allegations of sexual abuse being advanced.

6. The position of the ICL in relation to the subject order sought by the Mother was that the ICL did not oppose the making of that order and Ms Gray confirmed that the ICL could not oppose that order on the evidence. I note that annexed to the Mother’s affidavit material is a letter from the ICL dated 4 July 2013 which includes:

   We note the relocation is no longer an issue and we note the mother purports [the father] has advised he is always present if [the maternal grandfather] spends time with the children. Whilst we accept the children may have a relationship with [the maternal grandfather] if that relationship causes stress to the children’s mother then it cannot be ignored. We would be pleased if Ms Sinclair could take her client’s instructions as to whether he has stated to Ms [Abbey] that she [sic] is present when the children see [the maternal grandfather] and what his concern is with the proposed order 12 of the mother.

   (Emphasis added)

7. The obvious concern of the Mother is that by reason of the maternal grandfather’s hostility towards her and in particular towards her husband Mr Crowne the maternal grandfather might in future, given the opportunity, act to create problems in the form of allegations from the children in the same manner the Mother perceives he has done with respect to the subject allegations leading to the institution of these proceedings.

8. The Mother’s fear in that respect is fortified by a body of evidence. First, there is the fact of the maternal grandfather’s role in advancing allegations that were not ultimately pursued. That role included the maternal grandfather being a party to the proceedings at the outset but then electing to no longer participate in the proceedings only after the serious ramifications of the making of the allegations were in train.

9. There is clear evidence in the Mother’s case that the maternal grandfather has acted malevolently in distributing material from these proceedings to persons who are not parties to the proceedings. One example is the maternal grandfather writing to his son, the Mother’s brother, and forwarding extracts of material with a covering letter asserting that Mr Crowne, when interviewed by the police, made “admissions” with respect to the subject allegations. That is a fabrication. Mr Crowne has always adamantly denied the allegations and it is simply untrue that he made any admissions to the police. It is equally untrue, I find, that the Queensland Police Service would have said anything of the kind to the maternal grandfather.

10. There is also evidence that the maternal grandfather has chosen to share contents of the family report by Mr P with other family members of the Mother. Ms Sinclair for the Father submitted to the effect that this problem has been taken up by her and/or the Father with the maternal grandfather.

11. It would thus appear that the maternal grandfather has acted, prima facie, in contravention of s 121 of the Act by disseminating such material.

12. I pointed out to the Mother, who during the hearing sought an injunction against the maternal grandfather, that it is not normally the function of the Court to police the observance of s 121 of the Act and moreover there would have to be notice given to the maternal grandfather of any injunction sought. The Court advised the Mother that she could separately pursue with relevant authorities any potential breaches of s 121 by the maternal grandfather.

13. The point here relevant to the issue the Court must determine is that the maternal grandfather has a demonstrated capacity to act malevolently against the interests of the Mother and her husband by advancing adverse allegations to others outside of the setting of these proceedings.

1. In my judgment it therefore cannot be concluded that the Mother has some irrational or baseless fear concerning the maternal grandfather. Given that he apparently has some agenda with respect to Mr Crowne arising out of the difficulties surrounding the employment situation earlier referred to and the fact of his involvement in these proceedings in the manner and respects referred to there is, in my judgment, a continuing risk presented by the maternal grandfather that he would create difficulties for the parenting arrangements, and thus for the children, in future.

2. As already noted, the consent orders proposed by the parties include an order that the parents have equal shared parental responsibility for the children. That gives effect to the presumption in s 61DA(1) of the Act that it is in the best interests of the subject children for their parents to have equal shared parental responsibility for them. Section 61B defines “parental responsibility” as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. That obviously extends to how and with whom children spend time and its exercise is governed by s 65DAC including the need for parents to consult about decisions and to make genuine efforts to come to a joint decision about issues.

3. It may therefore be observed that it is legitimately part of the exercise of the Mother’s equal shared parental responsibility that the views she has formed about her own father in terms of potential effects in future of his interaction with the children has significance. The parties jointly have the right to determine, jointly, with whom the children spend their time. Absent an order, it would be contrary to the Mother’s equally shared parental responsibility for the Father to unilaterally act to have the children spend time with the maternal grandfather unsupervised.

4. It is clear that the order sought by the Mother is a parenting order within the meaning of s 64B of the Act. Parenting orders are made by reference to the best interests considerations set out in s 60CC of the Act.

5. One of the “primary” considerations expressed in s 60CC is the need to protect children from psychological harm. Given the history of the parenting arrangements for these children, interrupted in the manner referred to, there is obvious potential for such harm to the children if the maternal grandfather were in future determined to advance, via the children, allegations adverse to the Mother or her husband if those allegations have no real substance.

6. Section 60CC(3)(b) requires the Court to consider the nature of the relationship of the children with other persons, including grandparents. Whilst Ms Sinclair’s submission that the children have a relationship with the maternal grandfather may be accepted, it may also be observed on the evidence that there is no history or pattern of substantial care or involvement by the maternal grandfather in the lives of these children. For significant periods he has apparently travelled away from the Cairns area and it would seem that he had not seen them for some months prior to his involvement in mid 2012. This is not to diminish the relationship but simply to observe that it is not the experience of these children, it would seem, to spend significant periods in the sole care of their maternal grandfather. Moreover, and more importantly, the order sought by the Mother, as already noted, is not to the effect that the children are not to spend time with the maternal grandfather. The order only goes to the time occurring in the presence of either the Father or his wife.

7. A further relevant consideration in s 60CC is the capacity of the maternal grandfather to provide for the needs of the children, including their emotional and intellectual needs. There is obvious concern, I find on the evidence, about the maternal grandfather’s capacity to focus upon the needs of the children as opposed to any agenda he might have with the Mother and her husband which may impact upon the children.

8. A relevant statutory consideration set out in s 60CC is the obligation to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children (s 60CC(3)(l)).

9. It is obvious that against the history of these parents being able to cooperatively parent over the period from their separation until mid-2012 and the cooperation evidenced now in their ability to reach agreement, notwithstanding the issues that divided them, on the parenting orders now to be made it would be undesirable that any malevolent influences were allowed to again upset that equilibrium in future.

10. Section 60CC(3)(f) requires the Court to consider the capacity of each of the child’s parents to provide for the children’s needs, including emotional and intellectual needs.

11. In this context the Mother’s capacity would obviously be impacted if there were from her perception an ever-present risk in future that the maternal grandfather may act divisively as between the parents as the Mother perceives he has done with respect to these proceedings historically and the making of the allegations.

12. It is notable that Mr P observed in his family report at paragraph 192:

    Unfortunately, and in such context; it would appear that the maternal grandfather became proactively involved in difficulties; and which motivation to do so may have been more related to prior relationship challenges with Mr [Crowne]; rather than any substantive concerns regarding actual abuse (sexual or otherwise) of the children.

13. Mr P further observed at paragraph 198:

    The writer reiterates, however, that pre-existing levels of goodwill and trust between the parents appear to have been sorely tested by the allegations of sexual abuse of the children…

14. Dr C, psychiatrist, undertook a psychiatric assessment of both parents in early 2013. Full details of both parents’ backgrounds are set out in his reports on each parent and need not be restated here. However, Dr C relevantly observed of the Mother:

    I noted that she was a lady who obviously had a fairly difficult childhood and had a difficult relationship with her father. I noted she was sexually abused during her childhood years by a grandfather and I noted that she saw herself as having periods of depression throughout much of life, indeed from childhood. … So, I think it is fair to say that she is a lady who does have some chronic psychiatric/ psychological disturbance probably best described as a chronic and fluctuating depression and perhaps, at least partly, in response to problems in her life.

    I note that she has had an ambivalent relationship with her father. That has now broken down because she sees him as having sided against her and having made claims that the children have been sexually abused.

15. In my judgment there would probably be an adverse effect upon the capacity of the Mother to provide for the children, in terms of the statutory consideration referred to, if in future she remained anxious, concerned or worried about the prospect of her father again involving himself in the family dynamics in a way similar to that which has occurred, giving rise to these proceedings and degree of hostility impacting upon the children.

16. For these reasons I am satisfied that it would be in the best interests of these children that the order sought by the Mother is made. In my judgment, the balance between the children maintaining a relationship with the maternal grandfather and the competing considerations referred to lies in favour of the order sought by the Mother.

17. To similar effect, whilst recognising that such an order does place some onus or obligation upon the Father, in my judgment the best interests of the children dictates that such an onus or obligation be imposed.

18. I therefore resolve the disputed issue by making the order sought by the Mother. I am otherwise satisfied that the orders proposed to be made by consent are in the best interests of the children.

19. Because Ms Sinclair acknowledged that the minutes of consent she provided to the Court contained an error or omission and there has been a need to re-formulate the consent orders by reference both to those proposed minutes of orders and the Mother’s Amended Response, I have formulated in the above orders all of the orders to be made by consent by reference to those documents. I include a provision for liberty to apply in the event that some error or omission has been made by me in re-formulating those consent orders.

20. For these reasons I make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 May 2014.

Associate:

Date: 23 May 2014