FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ashford & Gladstone [2024] FedCFamC1F 737
File number: MLC 7475 of 2018 Judgment of: WILLIAMS J Date of judgment: 6 November 2024 Catchwords: FAMILY LAW – PARENTING – Allegations of child sexual abuse and family violence perpetrated by the father – Where the mother, at the conclusion of the trial, concedes that the evidence does not support a finding that the father poses an unacceptable risk to the children – Where the mother nevertheless maintains her belief that the child was sexually abused by the father – Finding that the father has not sexually abused the child and the mother’s allegations are groundless – Finding that the mother poses an emotional and psychological risk to the children emanating from her fervent belief the father has sexually abused the child absent any objective evidence – Where the father seeks the children live with him and spend substantial and significant time with the mother – Where the mother seeks a week about arrangement – Best interests of the children – Where the father is best placed to ensure an ongoing relationship between the children and both parents – Change of residence – Order for sole parental decision making to be vested in the father and for the children to spend significant and substantial time with the mother Legislation: Evidence Act 1995 (Cth) s 140
Family Law Amendment Act 2023 (Cth)
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 238 Date of hearing: 16–19 July 2024 and 26 August 2024 Place: Melbourne Counsel for the Applicant: Mr McLeod Solicitor for the Applicant: Roubos & Associates Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Creative Family Law Solutions Counsel for the Independent Children's Lawyer: Ms O’Connell Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 7475 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GLADSTONE
Applicant
AND: MR ASHFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.For the purpose of s 61D of the Family Law Act 1975 the father be allocated sole responsibility for the long-term parenting decisions for X born 2013, and Y born 2017, (collectively “the children”).
3.For the purpose of paragraph 2 above:
(a)The father will notify the mother of any long-term decision affecting the children through the parenting app as in paragraph 18 below;
(b)The mother provide details of any input she seeks to put in response…
Continue reading Ashford & Gladstone
Sign in free to access the full text
- AGLC
- Ashford & Gladstone [2024] FedCFamC1F 737
- Case
- [2024] FedCFamC1F 737
- Decision Date
CaseChat Overview and Summary
The court meticulously reviewed the evidence, including affidavits, reports from the Department of Families, Fairness and Housing (DFFH), and interviews conducted by the Sexual Offences and Child Abuse Investigation Team (SOCIT). The court concluded that the evidence did not support the mother's allegations of sexual abuse and found them to be groundless. However, the court acknowledged the emotional and psychological risk posed by the mother due to her fervent belief in the allegations, despite the lack of objective evidence. The court found that the father was best placed to ensure an ongoing relationship between the children and both parents, and that the ongoing parental conflict was detrimental to the children’s well-being.
The court ordered that the children live with the father, with the mother spending substantial and significant time with them under specific conditions, including mandatory psychological counselling. The court also issued detailed provisions for changeovers, communication, education, travel, and other aspects of the children's lives to ensure a stable and supportive environment. The court emphasized the importance of minimizing the children's exposure to parental conflict and ensuring their safety and well-being. The orders reflect the court’s determination to protect the children and facilitate their relationship with both parents, while addressing the risks identified in the case.
In summary, the court found that the father was best suited to have sole responsibility for long-term parenting decisions, while the mother would have substantial and significant time with the children, subject to conditions aimed at promoting their well-being and mitigating the risks identified in the case. The detailed orders reflect the court's efforts to balance the children's needs for safety, stability, and a relationship with both parents.
Orders
Orders of the court
MLC 7475 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS GLADSTONE
Applicant
AND:
MR ASHFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1. All previous parenting orders be and are hereby discharged.
2. For the purpose of s 61D of the Family Law Act 1975 the father be allocated sole responsibility for the long-term parenting decisions for X born 2013, and Y born 2017, (collectively “the children”).
3. For the purpose of paragraph 2 above:
(a) The father will notify the mother of any long-term decision affecting the children through the parenting app as in paragraph 18 below;
(b) The mother provide details of any input she seeks to put in response to the Father’s proposal within 14 days of receiving such notification;
(c) The Father will consider the mother’s input and thereafter notify her of the decision made within 14 days.
4. The children live with the father.
5. The children be enrolled in B School for secondary schooling.
6. The mother spend time and communicate with the children as follows:
(a) During school terms, each alternate week from the conclusion of school (or 3.30 pm) Friday, until the commencement of school (or 9.00 am) Monday, commencing on the Friday immediately following the making of these orders;
(b) During school terms, each alternate week from the conclusion of school (or 3.30 pm) Wednesday, until the commencement of school (or 9.00 am) Friday;
(c) From 4.00 pm Christmas Eve to 4.00 pm Christmas Day in the year 2025 and each alternate year thereafter, and the time that the mother spends with the children shall be suspended from 4.00 pm Christmas Day to 4.00 pm Boxing Day in the year 2025 and each alternate year thereafter;
(d) From 4:00pm Christmas Day to 4.00 pm Boxing Day in the year 2024 and each alternate year thereafter and the time that the mother spends with the children shall be suspended from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in the year 2024 and each alternate year thereafter;
(e) From 5.00 pm on the eve of Mother’s Day until the commencement of school (or 9.00 am Monday) and the time the mother spends with the children shall be suspended each year from 5.00 pm on the eve of Father’s Day until 9.00 am Monday;
(f) On each of the children’s birthdays for a phone call between 6.00 pm and 6.30 pm; and
(g) Such further and other times as may be agreed between the parents in writing from time to time.
School holidays and special occasion time
7. Each parent spend time with the children for one half of each of the school term holidays as may be agreed between the parents in writing, and failing agreement the mother to have the first half which is to commence upon the conclusion of the last day of the school term until 12.00noon on the middle Saturday;
8. Each parent spend time with the children for one half of the long summer holidays as may be agreed between the parents in writing and failing agreement:
(a) In the year 2024/2025 with the mother on a week about basis with time to occur in weeks 1, 3 and 5 and each alternate year thereafter;
(b) In the year 2025/2026 with the mother on a week about basis in the weeks 2, 4 and 6 and each alternate year thereafter;
(c) For the purpose of paragraphs (a) and (b) above time is to commence at 12:00noon on the Saturday immediately following the conclusion of the school term, with each changeover to occur at 12:00 noon Saturday;
(d) Time in accordance with paragraphs 6(a) and (b) is suspended for all of the school holiday periods and to give effect to the Christmas time with arrangements.
(e) the children are to be returned to the father no later than two (2) days before the first term school term commences in each year, at 10.00 am on that day.
Recovery order
9. That in the event that the children are not returned to the care of the father or removed from the father’s care contrary to these orders without prior agreement in writing or an Order of this Court, a Recovery Order will issue for the return of the children. The Recovery Order is to lie in the Registry to be uplifted upon the Father filing an Affidavit deposing to the failure of the mother to provide or return the children to his care and directed to the attention of the chambers of the Hon. Justice Williams.
10. That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary, by force:
(a) To find and recover the children X born 2013, and Y born 2017 and to deliver the said children to the father or such other place as the father and the person effecting such recovery agree to be appropriate; and
(b) To stop and search any vehicle, vessel, or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
11. All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
12. The Recovery Order set out in Orders 9 to 10 remain in force for five years from the date of these orders.
Changeover
13. All changeovers which occur on a school attendance day are to occur at school, with all other changeovers at to occur at the Suburb C Police Station.
14. The parent who does not have the care of the children is otherwise specifically prohibited from being present at the school at changeover times.
Communication
15. The mother is at liberty to contact the children via FaceTime on each Tuesday between 6.00 pm and 6.30 pm with the father to facilitate such calls and the mother to initiate such calls to a device or number nominated by the father.
16. The father is at liberty to contact the children on each Saturday via Facetime between 6.00 pm and 6.30 pm with the mother to facilitate such calls and the father to initiate such calls to a device or number nominated by the mother.
17. That the children are at liberty to contact either parent in accordance with their specific wishes, with each parent to facilitate such communications.
18. That for the purpose of communication between the parents as to the implementation and operation of these orders such communications are to be undertaken via the AppClose parenting app and via the SMS in the case of an emergency including a delay in attending for changeover.
19. That each parent must keep the other advised as to any changes to their residential address, landline and mobile telephone numbers, and email addresses, and notify the other of any change to such details within 24 hours of such change.
Children’s health and wellbeing
20. The parents are at liberty to take the children to D Medical Centre and E Medical Centre for their general medical care and treatment, with any/all copies of treatment reports to be provided and shared between treating practitioners and parents.
21. That each parent to do all acts and things to enable the children to continue to attend upon their current counsellors, namely Ms F (Y) and Mr G (X), or such other allied health profession as may be nominated by either of them, as is recommended.
22. That both parents will keep the other advised as to:
(a) the name and address of any health professionals of the children; and
(b) any medication prescribed for the children, and required by the children during the other parent’s time period, with any such mediation to be provided by way of exchange at changeover; and
(c) except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any medical appointments for the children and the purpose of such appointments; and
(d) authorise and direct any and all health and allied health professionals to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time;
(e) each party is at liberty to individually attend upon health and allied health professionals.
23. In addition to attending upon their allied health practitioners, the children are at liberty to attend upon their respective school Chaplains or other wellbeing officers in accordance with their respective wishes and otherwise as may be agreed to between the school and the father.
24. That the mother and father each advise the other as soon as practicable and within upon becoming aware of:-
(a) any significant injury or illness affecting the children or either of them;
(b) any required referral upon a medical specialist including details of such referral;
(c) any illness requiring the provision of any medication prescribed by a Medical Practitioner; and
(d) any hospital attendance or proposed hospital attendance by the children or either of them.
Mother – psychologist
25. That the time the mother spends with the children is conditional on the mother attending counselling, and the mother;
(a) Forthwith engage with a psychologist at her sole expense for the purpose of supporting her in promoting a relationship between the Father and the children, and to otherwise assist her with respect to the findings made by this Court, Victoria Police and the Department of Families, Fairness and Housing (DFFH).
(b) Will attend for initial fortnightly sessions, and then otherwise as recommended by her psychologist;
(c) To assist the psychologist as to paragraph (a) above the mother is to provide and prior to the psychologist attending upon her copies of the following:-
(i) a copy of the final parenting orders and Reasons for Judgment;
(ii) DFFH Section 67Z Response released 24 August 2022
(iii) DFFH Magellan Report released 28 September 2022;
(iv) DFFH Section 69ZW Report dated August 2023;
(v) DFFH Section 69ZW Report dated January 2024;
(vi) DFFH Section 67ZBE Response dated July 2024;
(vii) Magellan Report – Consultant Ms H dated March 2023;
(viii) Psychological Assessment of the mother – Dr J;
(ix) Psychosexual Assessment of the father – Dr J;
(d) will provide a letter to the father confirming her attendance and compliance with her treatment plan on a three-monthly basis and otherwise at the cessation of engagement.
Education and extra circular activities
26. The parents do all things necessary to authorise each other and keep each other authorised to receive information at their respective expense copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent.
27. Both parents are be permitted to attend the children’s schools or extra-curricular events for sports days, concerts, and otherwise usual activities affiliated with the school or extra-curricular activity providers to which parents are invited or welcomed to attend.
28. For the purpose of paragraph 27 above, neither parent in attending such event to in in anyway inhibit or hinder the children leaving the event with the parent who has the care of the children pursuant to these orders.
29. That both parents will keep the other advised as to any school absence days for the children including the reason for such absence, noting that if a child is unwell on a day of changeover, changeover of care is still to occur.
30. Both parents are permitted to each have access to all communication portals operated by any school, subject to any formal school policy.
Travel
31. Both parents are at liberty to travel interstate with the children provided that such travel is undertaken during their respective live with/spend times periods pursuant to these orders and the other parent is advised of travel dates, location, and contact details for the children for the duration of such travel.
32. Both parents are at liberty to travel overseas with the children provided that:
(a) Such travel is undertaken during their respective time with periods or such other time with the express written agreement of the other parent;
(b) That the travelling parent provided to the other parent a copy of a return airline flight, itinerary, location and contact details for the children for the duration of the travel period, at least 45 days prior to departure.
33. Both parents do all acts and things within 28 days of any request to the other to obtain an Australian passport for each of the children and equally pay one half of any costs associated with obtaining or renewing a passport.
34. The father retain the passports in his possession, save that he is to make passports available to the mother for the purpose of any overseas travel. The children’s passports are to be returned to the father within seven (7) days of the children’s arrival back in Australia.
Restraints
35. Save as is necessary for the parents to explain these orders, the mother and father and their servants and agents be and are hereby restrained by injunction from:
(a) Discussing these proceedings or the contents of any documents filed in these proceedings with or in the hearing or presence of the children or either of them;
(b) Denigrating, rebuking, or speaking negatively about the other parent or each parent’s extended family to or in the hearing or presence of the children or either of them; and
(c) Discussing any of the allegations raised against the other to or in the hearing or presence of the children or either of them.
Further orders
36. Both parents will facilitate the return of all items required for the children’s attendance at school or participation in extracurricular activities, including but not limited to school uniforms, school bags and books, which are to move with the children at changeovers.
37. Both parents will facilitate children transitioning to the other parent’s home with any comfort items with such items to be returned with the children at changeover.
38. That to the extent that any orders are inconsistent with any intervention order, these orders will prevail pursuant to s 68P of the Family Law Act 1975 (Cth).
39. Each party may supply a copy of these orders to the Magistrates Court of Victoria, the children’s schools, carers and treating health and allied health professionals.
40. The father facilitate the children attending upon the Independent Children’s Lawyer for the purpose of explaining these orders, following which the Independent Children’s Lawyer is hereby discharged.
NOTATIONS
A. The parents understand that the child, Y, is not to be given any antibiotics and any other medication that a doctor from one of Y’s treating medical practices (E Medical Centre or D Medical Centre) has not prescribed other than medication prescribed by the K Hospital.
B. That term times pursuant to orders 6(a) and (b) shall resume each term in the same continuous pattern as though there were no interruption of time during school holiday periods.
41. 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 the parents adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Turning now to the general considerations.GENERAL CONSIDERATIONSWhat arrangements would promote the safety of the children Both parents allege safety concerns for the children in the other parents’ care. The main issues identified in these proceedings relevant to this consideration are:(a)Incidents of family violence and family violence proceedings as deposed to by both parents.(b)The mother’s contention the father has engaged in coercive and controlling behaviour, including following her and pressuring X to monitor her conduct;(c)The mothers’ concerns regarding Y’s disclosures of sexual abuse perpetrated by the father, noting that she concedes the father does not pose an unacceptable risk of harm to the children, but maintains her allegations against him are not groundless and continues to believe the father has sexually abused Y;(d)The father’s allegation the mother is influencing or coaching Y with respect to her disclosures, in which Y has been exposed to a plethora of interviews including numerous attendances upon SOCIT and DFFH who report concerns regarding possible coaching by the mother in circumstances where the disclosures have been fully investigated and not substantiated. (e)The mother’s unilateral suspension of the father’s time with the children on multiple occasions and her inability to promote a relationship between the father and the children, which poses a risk of psychological and emotional harm to the children; (f)The emotional harm to both children due to the ongoing and unrelenting parental conflict. I will now consider the above safety concerns. Allegations of family violence In early 2022, DFFH investigated protective concerns about the children, following the early 2022 school incident, in which both parents attended changeover, and the police were called to mediate between them. The DFFH substantiated harm on the basis of emotional and psychological harm to the children being exposed to “the high levels of parental acrimony”, and safety planning was completed to prevent further conflict at the childrens school. The case was closed in April 2022. Subsequently, three further reports were received by DFFH relating to the risk of parental conflict and allegations of family violence, which were pursued by the parents in the Magistrates Court in the context of IVO proceedings. In March 2022, the parents sought cross interim Intervention Orders. The allegations pertained to each parents’ inappropriate behaviour at changeovers, the fathers allegedly controlling behaviour which also included allegations of him monitoring the mothers’ movements via X, and the fathers alleged sexually inappropriate behaviour towards Y. In mid-2022, a further interim IVO was obtained by the mother against the father. Exhibit ICL-12 is the Victoria Police Sub-Incident Summary Report dated August 2022. The document summarises the basis of an application for an IVO brought by the mother against the father. The mother alleges numerous serious acts of family violence perpetrated by the father. These include, amongst other things, the father allegedly pushing her to the ground in 2019, manipulating X, controlling all financials including child support payments, threatening, and bulling her via text message, keeping her under surveillance, cutting off an animal’s head, beating dogs, and controlling and dominating her movements.