Andrews and Nicola (No. 2) - [2014] FamCA 167

FAMILY COURT OF AUSTRALIA

ANDREWS & NICOLA (NO. 2)

[2014] FamCA 167

FAMILY LAW – CHILDREN - Wife excluded from son’s life because of her disruptive behaviour – Long history of litigation where husband has always been the primary carer – Supervised time rejected as unhelpful – Child resistant to any relationship – Conflictual parental relationship unlikely to change – Sexual abuse allegations concerning another child found to be without foundation.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Andrews

RESPONDENT:

Ms Nicola

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

4394

2008

DATE DELIVERED:

25 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

20 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Jenkinson

SOLICITOR FOR THE APPLICANT:

Trapski Family Lawyers

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dowler

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Danielle Webb Lawyer

Orders

The husband have sole parental responsibility for K born … January 2004.
That K live with the husband.
That the wife be restrained by injunction from contacting or communicating with K except by the form of presents, cards and letters delivered to the husband at such times as the wife sees fit.
That the husband give to K the items referred to in paragraph 3 unless he decides that they contain inappropriate messages likely to destabilize K’s emotional well-being.
That K be permitted to travel internationally without the consent of the wife.
That the Minister be at liberty to issue a passport for K without requiring the consent of the wife.
That the Registrar return K’s passport to the husband forthwith.
Save as to issues of costs, all extant applications are dismissed.
That the Independent Children’s Lawyer is discharged.
That pursuant to s 65DA(2) and s 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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Andrews & Nicola (No. 2) 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 MELBOURNE

FILE NUMBER: MLC 4394 of 2008

Mr Andrews

Applicant

And

Ms Nicola

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 29 July 2010, Burchardt FM (as his Honour then was) made final parenting orders concerning the child R then aged 10 and the child K then aged 6.
His Honour ordered that both children live with their father Mr Andrews (“the husband”) and that he have sole parental responsibility for them. His Honour ordered the time between the children and Ms Nicola (“the wife”) be mostly alternate weekends from after school on Friday to the commencement of school on the following Tuesday morning along with one half of the various holidays. Those orders were made after a three day contested hearing.
His Honour, inter alia, observed in his reasons:
2.The father wants the children to live predominantly with him, as they have done since about 2005, and the mother’s ultimate position is that there should be shared equal time on a week-about basis. The Independent Children’s Lawyer (“ICL”) proposes orders substantially as sought by the father.
3.The father seeks sole parental responsibility and is supported in this regard by the ICL. The mother proposes joint parental responsibility.
…
17.These proceedings have been bitterly fought. Counsel for the father asserted that there have been 24 Court appearances. I have not added them up myself but as a matter of impression that figure seems about right. There have been numerous applications including numerous contravention applications lodged by the mother.
…
21.It is fair to say in my view that both parties agree, and the ICL certainly makes this submission also, that communication between the father and mother is uniformly atrocious.
Because of the nature of the proceedings before this Court, the following observations of his Honour are particularly poignant:
28.Nonetheless, it is quite clear that the father has been the person having primary care of the children since late 2005 or at the very latest, early 2006. It should be noted that in the ultimate, the mother raises no protective concerns as to the father other than the suggestion as to his ill health, a matter to which I shall return.
Despite the supposed finality of the 2010 hearing after what his Honour noted as numerous applications, the parties have returned to the courts and litigated again. An issue of concern in the lead up to this trial was the wife’s failure to attend for a court ordered psychiatric assessment appointment. An assessment was to have been undertaken by Dr D. The original time was apparently not suitable to the wife and Dr D wanted her to come back so that he could complete his assessment. She did not attend at the appointed time. Indeed, she failed to attend three appointments. When cross-examined about her non-attendance, she pondered whether that was because she was in the process of moving residence. She said she had left a message for Dr D but did not receive a call in return. Weeks went by as the trial loomed yet she thought she had done enough because she had left the one message. The significance of that is that Dr D had a paucity of information upon which to do his assessment. The wife knew that because it was the subject of discussion at a pre-trial hearing. That did nothing to stir her into action.
Burchardt FM observed that the wife had been late in returning to a psychologist for an appointment in 2010. His Honour was critical of the wife for that and so am I in respect of her unresponsive approach to the psychiatrist appointed in this trial. She must have known this issue was important.
Of the issue of parental responsibility, Burchardt FM said:
48.The ICL supports the father having sole parental responsibility. I accept that submission. I accept that it is not in the children’s best interests for shared parental responsibility to continue. There is a history of high conflict between the parents, and the father and mother have been quite unable to improve their ability to communicate even after five years of separation and litigation. The family report writer has recommended sole parental responsibility to the father, and all the evidence and material in this case support such an outcome.
As to the issue with whom the children should live, Burchardt FM said:
52.The mother’s position has changed dramatically from time to time. During the currency of the proceedings and, indeed, only shortly before trial, she sought an order suspending the father’s time with the children altogether and that the children live permanently with her.
His Honour rejected the wife’s position and said:
55.In my view, the best interests of the children will be met by making the orders sought by the ICL. These orders reflect in large part the settled pattern of the children’s lives over the last four years (excluding times when less time has been spent with the mother, essentially at her own election). They are also consistent with the recommendations of the report writer.
His Honour had a hope that the orders he was making would give the children a settled life. That was a forlorn hope. The intervening period has not been settled. Now the circumstances have changed again.
Here, the issue is about whether there is an unacceptable risk of physical or emotional harm to K who is now nine years of age if he is to continue to live with his father. That question focuses on the allegations made by the wife against the husband arising from statement made by now 14 year old R.
The proceedings were initially about R as well. In 2012, R left her father’s home and went to live with the wife. She has lived in a number of places since then and not necessarily with the wife. She is now attending boarding school in the country. That information only came to light in cross-examination of the wife by counsel for the Independent Children’s Lawyer.
It was the wife’s application that K live with her because of an allegation made by R that the husband had prostituted her over a number of years. In my view, there is no evidence to find that there is an unacceptable risk to K. As such, there is no basis to alter the existing orders at least in relation to K.
The wife conceded that if I found there was no unacceptable risk to K, there was no reason to alter his settled living arrangements with the husband. That would then require the focus to be on what time should be spent between K and the wife.
As can be seen from the orders made by Burchardt FM in 2010, the wife was to have significant time with K. That has not been occurring since 2013 when orders were made suspending the wife’s time with K. At a time when she was represented by counsel, she consented to that order and has not seen K since. The husband now seeks to discharge orders in relation to K having time with his mother permanently. He asserted that K was at risk of emotional harm in the presence of his mother.
For the reasons that follow, there is no basis to be concerned about K being cared for by his father but K’s time with his mother is problematic and therefore the focus of these reasons.
The background does not need to be set out extensively. The husband and wife married in 2000 after living together from 1997. They separated in July 2005 and have long been divorced. It is noteworthy that both children went to live with the husband virtually from the moment of separation.

The husband

The husband is 46 years old and supplies goods to the adult entertainment industry. I mention the nature of his business because there has been a spectre hanging over this case that the husband has somehow been involved with, and in, the adult entertainment industry. That features also in the allegations made by R against the husband. There is no evidence that would enable the Court to make a finding of impropriety against the husband nor that his business is anything other than a commercial retail operation.

The wife

The wife is 33 years of age. At the present time she is not in employment and is dependent upon Centrelink benefits. Those details were not readily apparent from her evidence.
In the reasons for judgment of Burchardt FM earlier mentioned, the reader also finds reference to the wife having remarried and given birth to a child who is now five years of age. No reference was made to that marriage or child in the wife’s affidavit material in the current proceedings. In cross-examination by counsel for the Independent Children’s Lawyer, it transpired that the marriage had come to an end over a year ago and the now five year old child is living with his father. When asked why that was so, the wife indicated that the child had been in the primary care of his father all along. She said that she has weekend time each week.
When asked why the details in her affidavit were at best cursory, the wife indicated that if she put everything in it would be very large. As indicated in the reasons for judgment of Burchardt FM, the wife is a very experienced litigator and very well organised. She cross-examined effectively and had come well-prepared. In circumstances where she was seeking that both R and K live with her, not only the paucity of the evidence but her silence on particular subjects such as how she would care for those children, was quite disconcerting.
In these proceedings, the husband was the applicant and the wife the respondent. The husband was represented by counsel but the wife appeared unrepresented as she did before Burchardt FM. The Court had the benefit of an Independent Children’s Lawyer who appeared by experienced counsel. In addition to being very well prepared, the wife understood the process when it was explained to her. She made notes as she went and expressed the understanding of what was happening.
In a curious statement, the wife said that she was frustrated that the husband would not attend mediation nor involve himself in discussions about R. He made his position very clear in relation to his daughter. He said that his desire was to focus on K to protect him from being destabilised by the wife. That said, he also said that it distressed him in not being able to have a relationship with R. Apart from one period of time of a few minutes at the family consultant conference, the husband has had nothing to do with R for over a year. On any view of the evidence, R is a troubled young woman. The husband said that he had abandoned the pursuit of parenting orders about R despite that fact that in the few minutes that he spent with his daughter, there were signs that they might be able to have a relationship in the future. Unfortunately, the evidence appears to be that immediately after that discussion (which was supervised and monitored by the family consultant), R was said to have been in tears with her mother. It was said by the wife that R had recorded the conversation on her mobile telephone and given it to the wife. That recording was not produced by the wife.
In summary, on all of the evidence before the Court, I found nothing that would indicate that the husband was an inappropriate parent of K. No challenge was otherwise made to his parenting capacity.

The parties’ proposed orders

The husband sought orders that he have sole parental responsibility for K and that his son live with him. He sought an order that the wife not be permitted to spend time with K or if there was to be such time, it be supervised by the wife’s sister and that otherwise the communication between mother and son be by way of cards, letters and gifts.
The husband also sought injunctive orders precluding the wife from attending any school that K attended or from attending the husband’s residence or place of work.
The husband also sought orders in relation to K having a passport. Other ancillary orders were also sought.
The husband’s only evidence was set out in an affidavit he filed on 6 December 2013. Although he has remarried, he did not rely upon any evidence from his wife. In the circumstances, that would not have been necessary in any event because the father’s capacity as a parent was not in issue nor was K’s relationship with his stepmother.
The wife sought orders that K live with her and that if the Court found there was an unacceptable risk to K being with his father, the father’s time be supervised. If no such unacceptable risk was found, the time between the husband and K should be each alternate weekend from Friday through to Monday. The wife said that in the event that the Court rejected those positions, she should have alternate weekends from Friday to Monday.
The wife also sought an order that whoever had the care of the child should have sole parental responsibility. Indeed, that mirrored the position in the orders of Burchardt FM in 2010. The wife otherwise sought that the husband not contact R and various orders in relation to K’s passport.
Apart from the husband and the wife, there were only two other witnesses. Dr D is a psychiatrist. He provided a report to the Court and was not required for cross-examination. The other witness was the family consultant Dr B. He was required to give evidence and was cross-examined.

The evidence about R

In the 2010 proceedings before Burchardt FM, nothing I have read suggests that that court was informed of serious sexual assault or any other assault by the husband on R such as to warrant a finding of unacceptable risk for R in his care. The paucity of that evidence in this particular case is surprising having regard to the long period of time over which the events regarding R are said to have occurred but also because reports of “concerns” about the husband (albeit from anonymous sources) were made to welfare authorities.
Pursuant to s 69ZW of the Act, two Department of Human Services documents were admitted into evidence because they were relevant to this issue. None of the information contained in the reports was challenged by any party. Thus, there is no reason to doubt the accuracy of the assessments by the Department of Human Services.
The chronological history that follows is a sad one but based upon the facts which were largely uncontroversial in this hearing, it would not be possible for me to find that there is any unacceptable risk to K based upon the presently unresolved allegations of R about her father.
Before embarking upon that evidence, it is important to observe that the onus of proof as to the allegation of sexual impropriety lies with the wife and the standard of proof is the balance of probabilities. I take into account however the allegations are very serious and must be approached with caution having regard to the consequences for K let alone R and their parents. (see s 140(2) of the Evidence Act 1995 (Cth))
From the Department of Human Services’ response to the court order, it transpired that in June 2006 when both children were residing with the husband, “concerns” were raised that the husband had forced the wife into prostitution when she was 16, had allegedly operated a brothel and had pornographic material in his home. The significance of that statement was that the Department understood the allegation was focussed on the fear that the husband would therefore use then six year old R in the same way. Because of the confidentiality of the notifier protected by statute, the source of this information remained anonymous. The Department assessed that there was no immediate risk to R or K. At that time, both children were still residing with the wife but there was a pending application before the Court.
In late May 2008, further “concern” was raised about a “possible sexual abuse” by the husband of R. The allegation that had been reported to the Department was that R was presenting with bruising to her “leg/vagina”. When contemplating that, the notifier must have been in a position to view the leg/vagina. How else would the allegation arise. The Department’s report indicated that R was then taken to J Hospital where she was seen by a specialist who found no evidence of a bruise or injury. Importantly, R “clearly stated” that nothing had happened. R stated to the Department that she had not been sore until a preceding Sunday during which time, she had been with her mother from the previous Thursday. The inference was that it was the wife who made the complaint to the Department and presumably had been in a position to do so having regard to the need to see the child’s genitalia to be so precise.
In early June 2009, further “concerns” were identified that the husband worked within the “adult industry” and that the children might be exposed to certain aspects of his work. It was reported to the Department that the husband would take the children on deliveries to adult industry venues but it was acknowledged that the children did not know that they were adult industry venues. It was acknowledged also that the children were not allowed to go inside the venues. Again, the Department was not troubled by the allegation.
Two important observations must be made about this evidence. First, no medical evidence was presented to this Court about the May 2008 period as indicated from the Department records. Secondly, in the same period, the Department said there was insufficient evidence for the matter to proceed to investigation. They closed their file.

During the 2009 period, the parties were preparing for a parenting dispute in the Federal Magistrates Court. A family report was ordered and undertaken by Ms C. That report was used in the hearing before Burchardt FM which culminated in the judgment earlier mentioned.
I shall return to the period immediately after the 2010 orders when I deal with how K managed the two households but it is sufficient to say that the evidence was remarkably silent on the question of problems until about 2012. Nothing I heard would justify a finding that either child was at risk of any harm in the husband’s care up to that hearing.
In May 2012, R ran away from the home of the husband. It was the husband’s uncontroversial evidence that during that period of time, R wanted to live with the wife and she was going through a difficult time with mood swings, was sullen and argumentative and generally very difficult to deal with. The husband described R as being a bully towards K. K corroborated that to the family consultant.
In August 2012, R spoke to family consultant Ms E. In cross-examination, the wife agreed that the interview between R and Ms E had taken place but she said that although R had complained about being sexually assaulted by the husband, the family consultant in that interview did not write it down. Counsel for the husband cross-examined upon the family report document. That issue was never raised with Ms E. Having regard to its seriousness, I find such a statement implausible. That said, the wife could only have known that from what R told her. Two inferences are open. First, the wife made this up. Secondly, R lied to her mother. Each is open but in any event, Ms E never appears to have been told about the assertion by R and importantly, the wife had plenty of opportunity to raise it. What was noted by Ms E was R’s unhappiness with her father. R told Ms E that she had been unfairly treated within her father’s home, by her school and by her counsellor culminating in the wife removing her from the school and enrolling her elsewhere.
Six weeks after the first interview with Ms E, R had a further discussion with the family consultant. She described living with her father as unbearable and people such as the school counsellor and teachers were ganging up on her. R described being taken to the police station by her mother on two occasions and being assisted in obtaining an intervention order against the husband. Ms E noted
On the second occasion she ([R]) was interviewed by the Sexual Offences and Child Abuse Investigation Team (SOCCA) in relation to her allegations towards her father.
That statement was made in the context of R engaging with a psychologist Ms F for counselling. No evidence was called as to what was being said between Ms F and R.
It was the wife’s evidence that R did not “disclose” to her the sexual abuse allegations against the husband until February 2013. That does not sit comfortably with the quotation mentioned above from the family consultant. One might have thought that if R was interviewed by the police and was making allegations of sexual impropriety, the wife would have known about it, guessed about it or at least become conscious that all was not well with R. However, there is some support for the assertion of the wife that she did not know about R making allegations against her father. It seems the authorities decided not to tell the wife.
In June 2012, the Department of Human Services received a further report about R relating to physical harm from the husband. By this time, R had been with her mother for a month. The concerns raised were referred by the Department to the police but a decision was made by the police not to take the matter any further. When the Department interviewed R’s school, it was advised that R did not make any “disclosure” in relation to any sexual abuse allegation.
Only weeks later, R became involved with a man with whom the wife worked. She began text messaging this man using a number taken from the wife’s mobile telephone. The text messages were all on R’s own mobile telephone. The evidence in relation to this was entirely unsatisfactory but I have concluded that the messages were of a sexual or relationship nature.
It would seem that there were a number of communications between the man and R but from the wife’s perspective, the 33 year old hospitality worker with whom she worked, was resistant to any approaches by R. It was the wife’s evidence that she reported the matter to the police. According to the wife, CCTV footage showed R and the 33 year old going to the work toilets at the same time. The police took R’s phone and decided not to make any charges because the hospitality worker had not encouraged the relationship but rather, tried to diminish it. That does not explain the necessity for the adult and child to go to the toilet together but it does show a very confused young girl.
Around the same time, the wife found cigarettes in R’s school bag and confronted her about lying. The wife made no secret of the fact that she “kicked out” R on the night not knowing exactly where R would go. R ended up at the home of the wife’s brother. This man had an intervention order against him and was not permitted to have any contact with the wife. That evidence alone raises questions about who this man was and why the relationship between the wife and her brother had deteriorated to such an extent that the wife required the State to intervene to protect her. It raises questions of how troubled R was that she would go to such a man. It must raise the obvious question of how volatile the mother and daughter relationship was to cause R to run to this man.
It was by a process of elimination that the wife found out where R was and then had difficulty extricating the child from the home of her brother. When the Department of Human Services became involved, they were sufficiently concerned because they issued a protection application in the Children’s Court to enable them to have some control over R.
The wife conceded that her brother was a violent man as well as a drug abuser. It seems that he is or was recently facing criminal charges including making threats to departmental officers as well as the police. I have read what purports to be a transcript of the recorded conversation between the department worker and the wife’s brother and would conclude that he is a very angry man. These charges arose out of this period when R was staying with the brother. Doing the best I can, it seems the brother had been told of R’s allegations (presumably about her father) and he decided that the Department and Police were not taking them seriously. His threats to these authorities were very strong and just what R knew or saw and heard remains unsaid.
Needless to say, R was taken from the brother’s residence and went home to live with the wife.
In the course of the investigation by the Department, “further information” was said to have been obtained by its officers in which R had reported that she had been “sexually exploited” by the husband. When both the police and the department worker spoke with R, the child said she did not wish to make a statement as she was fearful as well as concerned that if her mother was made aware of the allegation, it would be raised by the mother in the Family Court proceedings. Police made a decision not to tell the wife at that time but decided that they would continue to do some preliminary investigations. Importantly, the Department chose to refer R to a counsellor attached to a sexual assault counselling unit.
In her evidence, the wife said that R only told her about being sexually abused by the husband in February 2013 when her case was listed in the Federal Circuit Court. That precipitated that Court transferring the proceedings to this Court. In cross-examination about all of that, the wife maintained R told her of being abused by her father between the ages of eight years and 11 years. She confirmed that R said that she had been sexually abused ten times and had told this to the counsellor at the sexual assault unit. The wife said she did not know whether “disclosures” were made to the counsellor other than the fact that the counsellor told the wife that R had told them what had happened. It was the wife’s evidence that she thought that the sexual assault counsellor was dealing with the sexualised text messages arising out of R’s association with the hospitality worker rather than sexual misconduct of the husband.
When pressed to explain what R was alleging, the wife said that R confided in her that she had been assaulted by the husband in that he had taken her to a place and held her down forcefully whilst she had sex with men who paid the husband $50,000. According to the wife, R said that she was shown pictures of dead girls made to look like they had taken their own lives but indeed had been murdered. According to the wife, the purpose of this exercise was to ensure that R was compliant because that was what would happen to her if she was not.
The wife was also silent in her evidence about what had happened to R subsequent to the Department’s involvement. It seems that R has ceased having counselling with the sexual assault unit and now has her own private psychologist. No evidence was called about that. R has also now begun attending the child abuse section of J Hospital because she presented as unsettled.
The wife also conceded that she had pressured R into making statements to the police because of the severity of the allegations.
In August 2013, as a result of an order made by this Court, the parties including R attended family consultant Dr B. Dr B said that R became extremely tearful when discussing issues about the husband’s care of her. She told him that her father worked with adult industry venues and used to take her there when she was younger. Whilst that evidence is not controversial, the husband was explicit in saying that he had taken the children on his deliveries on some few occasions but had never taken either of them inside because they were not 18 years of age. There is no reason for me not to accept the husband’s evidence in relation to that.
R then told the family consultant that her father took her to a venue which had blacked-out windows and told her to go inside the door. She said she ran off and nothing further occurred. R then told Dr B that she did not wish to discuss things further and he desisted.
Subsequent to the family consultant’s interview, R has been involved in a further traumatic situation. This too was not in the wife’s affidavit evidence but was elicited in cross-examination.
In about September 2013, when left alone in the home of the wife’s brother, R woke to find a man outside the window in a “hoodie” threatening her with a gun in his hand. Whilst this was happening, R rang her mother who told her to call 000. The wife who was absent said that she then returned immediately to the house but the police did not appear to attend. When asked what the man said, the wife said it was words to the effect that R was never going to see her brother again and that her father was “right”. The man said that he was going to kill R’s mother. It was the wife’s evidence that she thought this was consistent with R being shown the pictures of the murdered girls to which I have just referred and was designed to frighten her. No evidence was led about what investigation was undertaken by the police nor what counselling R received. Based on the fact that this is a reported statement by R, uncorroborated by any other independent source, I reject the wife’s suggestions (if that is what it was) that the husband had orchestrated this to frighten R into remaining silent. R is a troubled young woman and her stories as expressed by the wife have varied. I find the evidence about anything R says is unreliable.
After that incident occurred, the wife said that R had changed schools. She is now in a boarding school at an undisclosed location. Fees are about $30,000 per year but only $8000 of that has been paid by the wife. According to the wife, she is expecting a property settlement from her recently separated husband and the money will then go towards that. When asked why she did not want to disclose the whereabouts of the school, the wife said that the husband had interfered in the past. For the reasons just set out, I reject that evidence. I do not find there is any evidence of the husband interfering with evidence or threatening people for his own ends.
All of the facts set out above would have been put under a spotlight to some extent because the Court ordered that the wife attend with R upon psychiatrist Dr D. Dr D’s evidence which was admitted without challenge, said that he was unable to provide an integrated report because the wife’s assessment was incomplete and he was not given an opportunity to assess R. As earlier indicated, the wife failed to attend three appointments and Dr D chose not to organise anything further.
In his contemplation about what all of this meant, Dr B said that the wife had long raised the claim that the husband was a sexual risk to her as well as the children in the department records that went back to 2006. As he observed, the allegations now are not substantially different from what had been asserted to the Department of Human Services in the past.
Dr B opined that the Department had been aware of the allegations for some time and had not deemed K to be at sufficient risk to warrant intervention. He opined further that it was only when R was in the care of the wife that the allegations were raised. That is probably unsurprising. However, I note that the investigations by the Department all appear in their records which have been admitted pursuant to s 69ZW of the Act.
Dr B thought it was curious that the timing of R telling her mother about the allegations was immediately prior to the final court hearing. As earlier observed, the wife maintained that she had not been told by R of the allegations until just prior to that hearing. However, the 2012 assessment by family consultant Ms E made clear that the allegations being investigated related to the husband and not just the hospitality worker. The wife expressed horror in the witness box that if the family consultant knew of the allegations against the husband prior to February 2013, the supervised meeting between R and her father took place. I reject that on the basis that the family consultant was not aware of the detail of the allegations but in any event, neither the police nor the Department of Human Services had expressed concerns.
Dr B finally noted that the husband had no known history of sexual deviance, sexual offending or patterns of inappropriate conduct that would align him with the sort of offender who would exploit their own biological child. Dr B hypothesised about what might explain it all but none of his explanations are of assistance absent the inquiries that could have been made by Dr D or indeed comprehensive evidence other than that to which I have referred, from the wife.
Putting all of that evidence together, and bearing in mind the onus of proving the allegation lies with the wife, I could not be satisfied on the balance of probabilities that the allegation justifies a conclusion of unacceptable risk to K. If indeed (as was submitted by counsel for the Independent Children’s Lawyer) there was some foundation for the allegations as might be proved by a criminal trial in which the husband might be charged with offences arising out of R’s allegations, the Department of Human Services would have every opportunity to step in to protect K at that time.
Accordingly, there is no justification for the position advocated by the wife in respect of removing K based upon the test of unacceptable risk because of the allegations of R.

The evidence relating to K

Between the 2010 orders and May 2012, life seemed to go on as normal for K. The unchallenged evidence is that K has a very close and loving relationship with the husband and is settled in his home and school. The wife’s evidence was that she could not comment upon any of that because K’s relationship with her was “non-existent”. She has not seen him for over a year.
The husband asserted that the telephone calls that had been taking place between K and his mother were “problematic” and that K spoke in a monosyllabic way with “Yes” and “No” answers. The wife simply disagreed and there was little investigation by either party of that in the hearing. No telephone communication is currently occurring.
In May 2012 when R went to live with the wife, K remained in his father’s care. Contact between the wife and K continued. Indeed, K witnessed some of the volatile relationship between the wife and R.
In the school holidays in the middle of 2012, K was with the wife pursuant to the 2010 orders. The wife applied for an intervention order against the husband and was successful in being granted an interim order. The basis of the intervention order seems to have been R’s complaint against her father that she was being continually yelled at, hit and restrained as well as being locked in a cupboard for days. R described threats by her father to kill her mother and that she was required by her father to read the court documents from 2010. In that context, the wife applied for the intervention order but also included K. As K was in the wife’s care and should then, but for the intervention order, have been returned to the husband he applied for a recovery order. On 14 August 2012, Turner FM made an order that K be returned to the husband by 6.00pm that night and thereafter remain living with the husband. For reasons that are not clear, his Honour then replicated and repeated the orders of 2010 in relation to the wife’s time with K and made specific orders about R spending time with the husband by agreement between the husband and R. His Honour then fixed a final hearing for February 2013.
The evidence of both parties is that the hearing that day concluded before Turner FM at 4.10pm and shortly thereafter, the wife sought from the husband an extension of the time from 6.00pm return to 7.00pm.
At 7.00pm, the wife arrived at the husband’s residence with K in the car. She sent a text message to the husband indicating that K was refusing to come out of the car. The husband and his wife then went to talk to K who was distressed and crying uncontrollably saying that he did not want to get out of the car.
K was told that a court had ordered him to return to his father and his response was that he did not care. A dispute arose as to what then happened. The husband said that the wife locked the car doors and wound up the window on K’s side whereupon the wife said that she was calling for assistance. The wife denied all of that save for the fact that she called 000. The wife said that by this time, the husband was becoming aggressive. It is more probable therefore that the wife did lock the doors and wound up the windows as asserted by the husband.
The wife’s telephone call to the police resulted in two squad cars attending. Some police spoke to K and others to the parties but it was common ground that a police officer said that K was very scared and told her that all he could remember was bad memories and fighting between the parents. Just how K could remember that is unclear having regard to the limited time that the husband and wife had been together but, as will be seen below, his memory of some of the things he has been through seems to be short-lived. The police officer said that K had told her that he had written down all of the bad things but was too scared to tell anybody about it. K then left with the wife. I find that the wife had not made a sufficient effort to get K to return and the calling of the police was quite inappropriate as all it did was disturb K all the more.

On the following day, the husband ascertained that K had not been taken to school and when he inquired of the wife what was happening, her response was that K was not feeling any better. It is hardly surprising that there were problems for K as the wife was making no attempt to comply with the recent court order. The matter then returned to court again.
On 22 August, both parties returned to the Federal Magistrates Court before Turner FM and this time, his Honour ordered that K be brought to the court as soon as practicable. It was the wife’s evidence that she intended to do that but ultimately, it became unnecessary because the husband collected K from school.
Whilst at the Federal Magistrates Court some days later, the parties attended upon family consultant Ms E. I have earlier referred to Ms E’s interview with R but she also interviewed K. He seemed settled back with his father and the family consultant asked him about the fact that only a week before, he had refused to get out of the car and returned to his father. Indeed, K had written a message at that time which the wife attached to her affidavit of evidence in chief. This was written on the day after K would not get out of the car. He wrote that he had telephoned his father and left a voice message saying that he did not want to go back but his father did not return his call. He wrote that he concluded from that that it meant that his father was allowing him to stay at his mother’s house and that made him very happy. He then drew a picture of himself and his mother. Cross-examination of the wife about that document was illuminating. The wife suggested that it was all K’s own doing. I reject that. K was not being encouraged by his mother to return pursuant to the orders and to the place that he had been living since just after the original separation. One of the accusations of the husband against the wife is that she manipulated K. I am satisfied that that is exactly what this was.
The family consultant Ms E asked K about why he did not want to return to his father but the child could not remember why that was the case. Ironically, K asked the family consultant to speak to the wife and find out the answer. He then volunteered that the wife had asked him to write down his reasoning and K thought that his mother was going to give this document to the court. That simple statement by K as reported by Ms E indicates clearly that K was being manipulated by his mother.
The parties then returned to the Children’s Court for the return of the intervention order. By this stage, K was back in the care of the husband. Although there was a dispute about whether or not an order was made in relation to K, I am satisfied that it was and it was one to which both parties consented but it had conditions attached to it. Whether there was a misunderstanding on the husband’s part about the nature of the order or not, matters little. The husband agreed on 31 August 2012 to an order with a condition in respect of K not to publish on any social networking site, any material about K. It is not at all clear why that was necessary but otherwise, the order was general in its terms that the husband was not to commit any family violence in relation to K.
It seems that K’s time with the wife then resumed.
At the end of October 2012, R was kicked out of home by the wife. On that day, K was in her care. The Department of Human Services contacted the husband to advise him of the drama. He was told that a protection application was being made in the Children’s Court in relation to R.
On Monday 29 October 2012 which was the day that the protection application was before the Children’s Court, the husband collected K early from school. He said that he was worried about K being exposed to what was going on in the wife’s household and feared for K’s safety. Cross-examination of the husband by the wife was along the lines that the husband was an opportunist and defying court orders. I reject that. Having heard the evidence of the wife about R being “kicked out” and the problems between the wife and her brother which included the requirement of the wife to obtain an intervention order against him, I find it reasonable for the husband to have been concerned about K’s welfare at that time. The wife was endeavouring to get R back from her brother who was refusing to hand her over. If the Department of Human Services was sufficiently concerned about R’s welfare, it is hardly surprising that the husband would be any different.
The wife did not see K for some weeks. This began a seriously problematic period for K. On 9 November 2012, the wife attended at the husband’s address and demanded to take K. The husband’s wife was present but K was not. As she was unsuccessful, the wife seems to have reverted to seeking assistance from the police. That precipitated the police attending the husband’s home for what became known in this hearing as a “welfare check”. The police seemed to be satisfied that K was not in any danger and left.
As I have already previously indicated, a second appointment in 2012 with family consultant Ms E occurred on 10 October 2012. The focus of attention in that meeting was really on R. R told the family consultant that she missed her younger brother and was grieving that their relationship was more distant as a result of their separation. That seems entirely inconsistent with what K was saying. Ms E ultimately concluded that there were no safety concerns for the children living in the father’s care.
From December 2012 and for the ensuing three months, time between the wife and K continued. The final hearing before Turner FM was obviously pending. A family report was released to the parties on 24 January 2013. Ms E prepared that report. It is not necessary for me to deal with that report because it was not an issue between the parties here but suffice to say that the recommendation was that K was to live with his father. Importantly, Ms E wrote:
That [K’s] time with his mother is significantly reduced or suspended, or consideration be given to this time being supervised.
Despite that recommendation, nothing seems to have occurred about K. This is the time however when the sexual abuse allegations regarding R arose and the proceedings were transferred by the Federal Circuit Court.
On 5 March 2013, the solicitors for the husband wrote to the solicitors for the wife stating that K would not be provided pursuant to the 2010 and 2012 orders. That occurred after an incident on 2 March 2013 when the wife attended K’s sport match.
The sequence of events is somewhat unclear but it appears that the wife had been advised that K had slipped over in a supermarket and hurt himself. The wife attended K’s sport match to see K with his leg bandaged. The wife was told by the husband that K was “okay” and he then began ushering K away. There was a dispute between the parties as to whether the wife was screaming. I accept that she was and no doubt that would have been disconcerting if not frightening for K. The wife said that the husband was pointing his finger at her presumably for the purposes of telling her to leave. In her evidence, the wife said that when she spoke to the police immediately after the event, an officer described this wagging or waving the finger as an “indecent assault”. It is hard to imagine how any reasonable or rational person could see anything indecent in that sort of action let alone anything that might be deemed to be an assault.
Unfortunately however, this precipitated a later visit by the wife to the sport match which she explained and justified on the basis that the police had told her to get the names of the witnesses who were present when the “indecent assault” occurred. Regardless of exactly what happened, it was an unpleasant and unseemly scene. I find the wife was responsible for the drama and I reject her suggestion that she was only there doing the bidding of the police to get witnesses. No evidence was called by the wife from the police nor was any police document produced to corroborate the wife’s version of facts. Having been transferred to this Court, the case came before the Court again.
On 27 March 2013, all parties along with the Independent Children’s Lawyer were before the Senior Registrar. All parties were represented. The wife’s time with K was suspended by agreement. That has remained the position between the wife and K since that time. It is important to recall that the Court had the report of Ms E.
In the order made by the Senior Registrar on 27 March 2013, paragraph 5 provided for the parties and the children to attend upon psychiatrist Dr D for a psychiatric assessment as soon as possible. I have already referred to that.
When K spoke to the family consultant in 2012, he made the observation that the parties had been before the Court on a large number of occasions. He was right but his understanding was that there was fighting going on between his parents that he did not understand. The Department of Human Services’ records show numerous complaints but very little of it was substantiated. Considerable cross-examination occurred of the wife in relation to the number of occasions that she called 000 simply for the purposes of a welfare check. At the time that the orders relating to K were suspended, the wife contacted the police in relation to a long weekend wanting them to do a welfare check on K because her time with him was being thwarted as she saw it by the husband. The police went to the house to find that the husband was not home and ultimately further calls were made and the husband was found at a holiday home in seaside country Victoria. Police were required to attend for a welfare check. This happened on a number of occasions. The wife’s evidence was that she insisted on being called back by the police officer who undertook the inquiry. It appears that the wife saw the resources of the Victorian police force and the 000 call centre as an appropriate way of satisfying her own need. Her justification was that she was entitled to know that her son was safe. Having regard to the time that K had been in the husband’s care, the number of court appearances, the involvement of the Department of Human Services and the fact that there were lawyers who could negotiate problems between the parties, the wife’s approach was unreasonable and perplexing. As I observed in the hearing, the resources of emergency services were being used up quite inappropriately at a time when presumably, they were already strained. The wife seemed not at all troubled about what she was doing. It was clear on the evidence that over a space of just three days, there were three police checks and two on the weekend before. That was unnecessary and intrusive. It significantly points to an inference I can draw that the wife fails to see how destructive of her relationship with K and disruptive of his settled life with his father, her actions have been. I have serious concerns that, on a whim, these sorts of disruptions will occur again.

Dr B interviews K

K was interviewed by family consultant Dr B in August 2013. He was described as engaging well during interviews and there were no anomalies in his presentation. He impressed Dr B as being well-reasoned, reflective and able to explore key themes. Dr B gave evidence that when pressed, K could not recall information but that was not interpreted as an attempt to avoid discussing the issue. K spoke positively about his father as well as his step-mother. There was no evidence that K was apprehensive, fearful or unsettled in the care of his father.
K described his relationship with R as volatile and chaotic and that she was nasty to him. He said he had no desire to spend time with her and did not feel a great sense of loss.
Dr B investigated the time between K and the wife from K’s point of view for the period in 2012. K described that as not really liking it and feeling really uncomfortable. He described his mother yelling at him but also that there was a lot of screaming between R and the wife. He gave a description of the incident at the sport match which is consistent with the evidence of the husband. When asked about time with the wife, K said that he was too worried to go. None of this evidence was challenged and I accept it.

The husband’s position concerning K

The husband argued through his affidavit that K was at risk “of being in the presence of the mother” due to a number of matters. Although it was somewhat confusing, my understanding of his argument was that the emotional risk to K was high because he would be destabilised by the wife. The husband’s evidence was that the wife continued to believe that the children but particularly R had been abused and that it would happen again if the child K was not removed from the husband’s care. There is a strong foundation for his belief. In her evidence, the wife made it clear she does believe that the husband has abused R and that it is only a question of time before K is in the same position.
The husband referred to the numerous complaints to police since February 2013 to which I have already referred as well as the notification to the Department of Human Services.
The husband also pointed to a biblical message received in text form from the wife’s telephone. When cross-examined about it, the wife said that her brother sent the message on her telephone. It was not until the hearing that the wife disclaimed responsibility for that. I accept she did not send the message because she convinced me she did not understand its cryptic meaning. However, she gave no plausible explanation how her brother was in a position to send such a message. The message referred to the fact that bad trees could not bear good fruit and if a tree could not bear good fruit, it was cut down and thrown in the fire. The wife maintained she did not understand the biblical significance of the message but she certainly did not apologise to the husband for it having been sent by her brother. This is the brother who is currently facing serious criminal charges arising out of his conduct when the Department of Human Services intervened to give R back to the wife.

The wife’s position in relation to K

The wife set out in her affidavit that K was not at physical risk but she repeated the allegation that the husband was responsible for the child abuse of R. She justified her conduct at the sport match, the calling of the police stations and the contacting of the Department of Human Services as being appropriate because of her responsibility as a parent. This concern as a parent seems to have been largely dormant until R ran away from the husband. Absent some clear assessment from a psychiatrist to indicate that there is no problem with that behaviour, it is my concern that it borders on an obsession under which the wife would do anything she could to be with K without considering the impact on him and in particular, his stability in the husband’s household.
The wife’s evidence went further. She said that she was not involving K in the court proceedings. I reject that and find as I have earlier mentioned that she encouraged K to write down his thoughts at the time she over-held him.

The options open to the Court

I shall contemplate the legal issues below but on the basis of a finding that there is no unacceptable risk to K in the care of the husband, the only question that is relevant now is what time should K spend with the wife. Dr B made that position very clear. Having regard to the evidence that he was told about concerning the wife’s behaviour, at best, the time had to be supervised because of the impact on K and the prospect that the various incidents of over-holding and confrontation in front of K such as at the sport match could happen again. Dr B thought that the only solution was to have the time between mother and child supervised but there was no person proffered to undertake that task who would be acceptable to all parties. A paid supervisor is not a possibility in this case having regard to the impecuniosity of the wife and the husband’s financial circumstances were not canvassed in any detail. Whilst a contact centre might be a possibility, it cannot last forever and if the resources were to be terminated as I expect they were, K’s door would again be shut on the assumption that after many years of litigation, little will change and supervision will be required for some years.
Dr B thought that as K became older, he would be better able to manage a relation such as that which currently prevails between the husband and the wife. At the moment, K’s view is that he is not particularly interested in having any involvement with the wife. Dr B said that there continued to be concerns about the destabilising impact if K were to resume the contact with his mother that has been non-existent now for almost a year. Dr B said:
Moreover, [K] could readily be incorporated into the chaotic dynamic if he were to spend significant periods in his sister’s company without an appropriate adult in substantive attendance.
Dr B conceded that it was important for K to maintain some connection with the significant persons in his life and the wife was such a person. That could not occur however without some significant supervision and the only person that Dr B could otherwise think of was the wife’s sister but no evidence was called in relation to her to indicate any willingness to participate. In relation to R, Dr B thought that it was important to protect the sibling relationship between the children but the potential for damage in this particular case outweighed any benefit.

Submissions

The Independent Children’s Lawyer recommended that there be supervised time at the contact centre. In discussion it was conceded that was problematic. I have to reject that submission based on the probability that it will be a short-lived experience and K will be resistant.

The legal issues

Notwithstanding the findings above, it is still necessary to approach the question of not only what each party seeks by way of orders but also how any order can be seen to be proper and in the best interests of K. The Court is obliged therefore to consider the provisions set out in Part VII of the Act. Part VII guides the exercise of the Court’s power to make parenting orders. As these proceedings began after the June 2012 amendments to the Act, those provisions apply.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and it details how those objectives are achieved (s 60B(1)) together with the principles which underlie those objects (s 60B(2)).
Section 60B(1) provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underpinning those objects focus on children having rights to know and be cared for by their parents. Being “cared for” by both parents (s 60B(2)(a)) has been distinguished in the legislation from “spending time” with both parents (s 60B(2)(b)). “Spending time” is referred to as a right of children to happen regularly. Similarly, the significant roles of parents are repeated throughout Part VII (as examples, s 60B (1), s 60CC(2)(a), s 61C, s 61DA and s 65DAA) These are optimum levels of participation by parents but that participation must be restricted when it is not in a child’s best interests.

Section 65D of the Act provides the source of the Court’s power to make a “parenting order” and s 64B sets out the types of orders that a court can make if it decides to exercise the power.
Section 65D is subject to s 61DA which requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. However, that presumption does not apply where the Court finds there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. It is also a presumption that is rebutted if the Court is satisfied that it is not in the best interests of the child for the parents to have equal shared parental responsibility.
In respect of family violence, orders have been made which include both R and K as persons entitled to the protection of the State. The presumption is rebutted if the Court is satisfied that there are reasonable grounds to believe that the parents have engaged in abuse of the child. Abuse is defined in s 4 of the Act to mean the following:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
I am not satisfied that there has been any assault or sexual assault of either of the children. I am not satisfied that there is any evidence that the husband has involved R or K in any sexual activity as a sexual object. I am not satisfied that either parent has caused either child serious psychological harm or caused serious neglect. In respect of the psychological harm, there is little doubt in my mind that the wife has exposed K to psychological harm but the evidence of the husband indicates that the child manages all of those problems well such that there is not sufficient evidence for me to be able to make a finding that he has suffered serious psychological harm. There is not sufficient evidence for me to make any finding as in relation to what psychological harm (if any) R has suffered.
The presumption in s 61DA(2) is also rebutted if a person has engaged in family violence. Family violence is defined as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
I reject any assertion by the wife that the husband has been involved in any conduct that fits within that definition. In respect of the husband, I am satisfied that he has faced a constant barrage of harassment by the wife that has not only affected his family but also has caused him to be fearful about what she would do particularly having regard to his evidence about the behaviour of the wife’s brother.
The words “coercing” and “controlling” have similar underlying meanings. That is, the intention or indeed action of the party, is to forcibly constrain the freedom of the other so that the recipient is left fearful. In my view, the wife’s behaviour has been the direct cause of the interference in the husband’s freedom and has left him fearful that it would happen again if the wife was not prevented from so doing.
I am satisfied on the balance of probabilities that there has been family violence in this case such as to justify the rebuttal of the presumption in s 61DA(2).
The presumption may also be rebutted, as I indicated, by the Court being satisfied that it is not in the best interests of the children and in particular, K, for the parents to have equal shared parental responsibility. I do not need to make findings in respect of that because each party agreed that responsibility for decision-making should go with the parent with whom the child lived and that equal shared parental responsibility was not workable. On that basis alone, I am satisfied that it is not in the best interests of the children for that order to be made.
Even if that was not correct and the Court is obliged to examine whether it would be possible for decision-making to be made jointly, s 65DAC gives a good example of the required standard of parenting about decisions that the legislation expects of parents. It provides that if two or more persons are to share parental responsibility about major long-term issues, any order is taken to require the decision to be made jointly by those persons. That, as the legislation provides, requires each of those parents:
(a)to consult the other person in relation to the decision to be made; and
(b)to make a genuine effort to come to a joint decision.
The evidence supports the conclusion that the parties could not reach that required standard of parenting.
I turn then to what orders should be made in this case.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration. The best interest principles are guided by the matters that the Court is required to consider as set out in s 60CC.

Section 60CC Considerations

Section 60CC refers to primary considerations and additional considerations. The primary ones require the Court to focus on the benefit to the children of having a meaningful relationship with both parents but also to protect them from physical and psychological harm from (relevantly) being exposed to abuse or family violence. To the extent that there was ever any doubt as to which of those takes priority, the legislation now makes clear that the Court is to give greater weight to the latter.
Unlike the definition earlier mentioned which requires the Court to make a finding about serious psychological harm, s 60CC requires the Court to look at parents protecting children from psychological harm. I find that K is psychologically affected whenever there is a confrontation between the parents. The evidence supports the conclusion that K took time to settle after various periods with the wife. Each time he went with the wife, it took days to settle him down and get him back to a normal routine.
There is currently no relationship between the siblings nor between R and the husband nor between K and the wife. I do not know the nature of the relationship between R and the wife other than the fact that she comes home from boarding school and that she was keen to start there this year rather than live with the wife. In the evidence of the family consultant, it is clear that the nature of the relationship between K and his mother is very strained. He shows little interest in her. There is clearly no relationship between R and the husband. I find it would not be in K’s best interest to force him to spend time with the wife even under a supervised environment because it will be contrary to his wishes and create all of a confusion that he has managed to avoid over the last twelve months. If he becomes more mature when older to understand the dynamics of his mother’s life, it may very well be that he will show some interest but at the moment I could not find that it is in his best interest to spend time with her because of the likely confusion and distress it will cause.
There is no doubt that the relationship between K and his father is close, loving and well-founded. The evidence supports the conclusion that little has changed in that relationship over the many years that K has lived with his father. It is not necessary that I endeavour to make a finding otherwise about R and her relationship because I am not being asked to make orders in respect of where she lives or with whom.
Turning then to the additional considerations in s 60CC, I propose to deal with those matters generally but otherwise rely upon the findings earlier set out.
K has a very strong view which the family consultant set out and I propose to follow his view and give it considerable weight.
The father’s role in K’s life has been significant. I could not say the same for the wife. It would be unreasonable to draw too many parallels with the relationships that the wife has with her other two children but it gives me significant disquiet that R has chosen to go to boarding school in circumstances where it was the wife’s evidence that the child did not want to live in the home where she was staying with a friend of her father but there is also her evidence elicited in cross-examination that the child of her more recent marriage is living away from her other than on weekends because the father of that child is the primary carer. Evidence about all of those things was not provided by the wife until it was elicited in cross-examination. All of that evidence is relevant to the question of parental capacity which in my view, is lacking in the case of the wife.
I have no concerns about the father’s capacity to provide for K. He meets the child’s emotional and physical means and that was never an issue in dispute in these proceedings. As indicated, the wife did not provide any detail about how she would care for K or what plans she would have for his schooling until that information was drawn from her.
I do not propose to repeat the details about family violence. The family violence orders simply cloud the position here because although it was the husband’s evidence that there was no intervention order in respect of K, that was clearly not the case but whether in the circumstances any weight should be given to that order bearing in mind that K was then living with the husband, I can only find that neither the Magistrates’ Court nor the Department of Human Services have expressed any concern about the ongoing role that the husband plays in K’s life.
The parties have litigated consistently for a decade and the children have not only been in and out of court but have had their lives disrupted by interviews and by police inspections. The wife began the proceedings by criticising the husband for not wanting to mediate any dispute between them but it is apparent from the evidence that the parties could never reach an agreement about what is good for their children and in particular for K. It is important to stop these proceedings and on that basis, the question of what role the wife plays needs considerable thought. Whilst some supervised time at a contact centre might be a temporary solution, K is still vulnerable and in my view, would not be sufficiently protected from the dysfunction that would be caused by having his life unsettled and if the supervision was to end within a year, K would most likely have had his mother step into his life only to depart from the scene again in such a short space of time. That is not good for K. When K is older, dialogue can take place between the parties with some input from K as to the relationship he would have with his mother.
In my view, taking all of the matters set out in s 60CC into consideration, I do not find it is in the best interests of K at this stage to have any association with his mother on a face to face basis but it is important that some form of relationship be continued that will not disrupt his stability whilst at the same time giving him an opportunity to mature to the point where he can manage a relationship on a face to face basis. The best way to do that is to have the wife restricted to presents, cards and letters so that K remembers who his mother is. The orders set out at the start of these reasons in my view, provide that opportunity.

An injunction against the husband contacting R

The wife did not seek orders that R live with her but she did seek an injunction that the husband not contact the child. It would not be appropriate or proper to make that order. I do not know that the relationship between R and the husband currently is other than as I have described it above. At the appointment with the family consultant, R did spend time with the husband but since then, the police have apparently continued to investigate the child’s allegations. It was the wife’s evidence that R is in boarding school and therefore there is no prospect of the husband contacting her. There is no evidence of any attempt by the husband to pursue R since the child left home in 2012. There is evidence that after R ran away from home, the husband did not involve himself in any significant way in the Children’s Court proceedings. The Department of Human Services withdrew its Children’s Court proceedings in December 2012 because they were satisfied that the husband was not seeking time with R. Thus, I could not be satisfied that an order of the nature sought by the wife is proper in the circumstances.

Passports

The husband sought an order that K be allowed to travel internationally and that he be authorised to sign any necessary document that would enable the issue of a passport for K. The wife did not oppose that but wanted any passport held by the Court.
The Independent Children’s Lawyer remained silent in her case outline on that issue. In my view, if the husband has sole parental responsibility as I must order here, the inconvenience of coming back and forth to the Court is unnecessary. The wife asked the husband whether he would “report” to her about overseas trips and he agreed he would if so ordered. It is common ground that communication as I have indicated, is non-existent. In the circumstances where there is no face to face order for the future for K, any form of notification contemplated by the wife is not only unnecessary but has the potential to encourage further litigation. The husband said that he had all of his family and business ties here and there is no reason for me to doubt that evidence. It is therefore in K’s best interests that he be permitted to travel internationally and that the husband hold his passport.

I certify that the preceding One Hundred and Thirty Five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 March 2014.

Associate:

Date: 25 March 2014