Astarita and Cotton

[2017] FamCA 87

FAMILY COURT OF AUSTRALIA

ASTARITA & COTTON [2017] FamCA 87

FAMILY – CHILDREN – Interlocutory applications – Risk of harm – Where the children have meaningful relationships with both parents – Where the mother alleged the children are at risk of harm through their sexual abuse by the father – Where the mother proposes any interaction between the children and father is professionally supervised – Decided the evidence is insufficient to demonstrate the children are at an unacceptable risk of harm through sexual abuse by the father – Ordered mother’s application is dismissed

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 69ZW

Family Law Rules 2004 (Cth)

APPLICANT: Mr Astarita

RESPONDENT: Ms Cotton

FILE NUMBER: NCC 1651 of 2012

DATE DELIVERED: 10 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 10 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carty

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Ms Kaiti, CBD Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1.Order 4 made on 7 August 2013 is suspended.

2.Orders 1 to 5 made on 25 November 2016 are discharged.

3.The mother and father shall take all reasonable steps to ensure the children spend time with the father, unless otherwise agreed:

a.From the conclusion of this hearing until 4:30 pm on Sunday, 12 February 2017;

b.During school terms, each alternate weekend from 8:00 pm on Friday until 4:30 pm on Sunday, commencing on Friday, 24 February 2017, and thereafter on the first Friday of each school term; and

c.For the first week of the autumn, winter and spring school holidays.

4.For the purpose of implementing Order 3(a) hereof the father shall collect the children from the Director of  Child Dispute Services in the Newcastle Registry of the Family Court of Australia and the parties shall exchange the children on Sunday, 12 February 2017, at the Suburb A Police Station

5.For the purpose of implementing Order 3(b) and 3(c) hereof the parties shall cause the exchange of the children between them or their nominees at the Suburb A Police Station.

6.For the purpose of implementing Order 3(c) hereof the children’s school holiday visits with the father shall be deemed to commence at 8:00pm on the last day of school term and conclude at 4:30 pm on the second Saturday thereafter.

7.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

8.Otherwise:

a.The Application in a Case filed by the applicant father on 20 December 2016 is dismissed;

b.The Response to an Application in a Case filed by the respondent mother filed on 7 February 2017 is dismissed;

c.The Response to an Application in a Case filed by the respondent mother filed on 8 February 2017 is dismissed; and

d.Any and all outstanding applications for interim relief are dismissed.

IT IS FURTHER ORDERED THAT

9.Pursuant to s 62G of the Family Law Act, a Family Consultant shall prepare and furnish to the Court an update family report concerning the children of the parties touching upon those matters of relevance to the care, welfare, and development of the children.

10.In order to facilitate preparation of the family report:

a.Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant;

b.Each party must ensure the attendance of the children at such interviews and observation sessions at such times and places nominated by the Family Consultant; and

c.The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.

11.The proceedings are adjourned until 9:30 am on Friday, 26 May 2017, for further procedural directions.

12.Leave is granted to the respondent mother to issue subpoenae to:

a.The Proper Officer of B Child Care Centre C Town;

b.The Proper Officer of D Child Care Centre;

c.The Proper Officer of E Town Pre-School; and

d.The Proper Officer of F Speech Pathology.

13.Leave is granted to the Independent Children’s Lawyer to provide to the Secretary of the NSW Department of Family and Community Services:

a.A copy of these Orders; and

b.A copy of the Reasons for Judgment once published.

BY CONSENT, IT IS FURTHER ORDERED THAT

14.The Application-Contravention filed by the father on 30 July 2015 is dismissed, with no order as to costs.

NOTATION

A.The parties will be independently notified of the dates and times of their appointment with the Family Consultant, which are presently expected to take place on or about 18 April 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1651 of 2012

Mr Astarita

Applicant

And

Ms Cotton

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1.These proceedings concern twin daughters, born in 2011, who are now just over five years of age. 

2.In August 2013, final parenting orders were made in respect of the children between the applicant father and respondent mother. Those orders provided for the parties to have equal shared parental responsibility for the girls, for them to live with the mother, and for them to spend substantial and significant time with the father. Unfortunately, the orders did not quell the parties’ rancour.  They both complained of the other’s failure to adhere to the orders and both complained of continuing harassment by the other. Fresh proceedings were commenced by the father in July 2015 in the Federal Circuit Court, though the proceedings were transferred to this Court in November 2015. 

3.The mother’s position, until recently at least, was that the father’s application for new parenting orders should be dismissed because there had been no material change in circumstances to warrant any revision of the orders made in August 2013.

4.In October 2016, the father filed an application for interim parenting orders because he alleged the mother refused to allow the children to spend any time with him.

5.The mother failed to appear at court on 11 November 2016 to meet that application and, by reason of the father’s belief the mother had surreptitiously moved away to another area with the children, a Commonwealth Information Order was made and the father’s application was adjourned for two weeks to 24 November 2016.

6.On that date, the mother was represented before the Court by counsel, though she did not appear in person. Her counsel’s application for adjournment was granted, though only for one day. 

7.On 25 November 2016, the mother appeared and was represented by her current solicitor. The interim hearing proceeded and interim parenting orders were made in respect of the children, for which ex tempore reasons were given.  Those orders were not the subject of any appeal. The interim orders suspended the order formerly made in August 2013 particularly providing for the time the children should spend with the father and substituted for it fresh orders that provided for the children to spend time with the father:

(a)For two days each week until they commenced school in 2017; and

(b)Once they commenced school this year, on alternate weekends (Friday to Monday) and for half of school holidays.

8.Because of the parties’ animosity and professed anxiety about harassment by the other, the orders required the parties to exchange the children under supervision at a nominated contact centre.

9.It was noted at the time:

The mother has undertaken to the court that she will faithfully comply with these orders. 

10.It was also expressly noted at the time:

It is intended that even if the [J] Contact Service Centre is closed at times when these orders require the children to be exchanged between the parties, the exchange of the children will still take place at or about that venue.

11.Almost immediately, there were problems. The father filed another interim application on 20 December 2016, because he contended the mother was failing to obey the orders. The application was listed for hearing on 3 February 2017. 

12.Although the mother’s solicitor appeared at Court on that date, the mother did not and she failed to file any Response or evidence, as required by the Family Law Rules 2004 (Cth). The hearing was adjourned to today and, in the meantime, the mother filed her Response and an affidavit.

13.The father wants the orders made on 25 November 2016 changed, by reversal of the children’s residence, because he contends the mother has proven her intention to deliberately flout orders and ruin his relationships with the children. 

14.The mother wants the orders made on 25 November 2016 changed, to require any interaction between the children and the father to be professionally supervised, because a disclosure made to her on 30 December 2016 by one of the children caused her to believe the children are at risk of sexual abuse in the father’s care.

15.The Independent Children's Lawyer initially contemplated that the Court might make a coercive order compelling the mother to re-establish her residence with the children on the Central Coast of NSW (inferentially to enable continued operation of the orders made on 25 November 2016), but following an indication the Court would not likely make such a coercive interim order, the Independent Children's Lawyer instead supported the father’s application. 

Evidence

16.The father relied upon his affidavit filed on 16 January 2017. 

17.The mother relied upon her affidavit filed on 7 February 2017. She abandoned her application for leave to rely upon her earlier affidavit, filed on 24 November 2016, which she read at the last hearing on 25 November 2016.

18.The parties and Independent Children's Lawyer also relied upon the Family Report dated 24 January 2017. 

19.On 3 February 2017, I made an order under s 69ZW of the Family Law Act 1975 (Cth) directing the NSW Department of Family and Community Services (“the Department”) to produce to the Court “any document or other record relating to notifications of abuse made and investigations of such notifications in relation to the parties’ two children … in the period since 25 November 2016.” The Department complied. The documents were produced and marked for identification, following which a selection of those documents were then tendered in evidence as exhibits by both parties.

Legal principles

10.Orders in respect of children are made under Part VII of the Family Law Act, where the meaning of a “parenting order” is defined (s 64B).

11.When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

12.When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

13.The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may either be rendered inapplicable or rebutted by the evidence.

14.In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Section 60CC(2)(a)

15.The hearing was conducted on the basis of the parties’ implicit acceptance that both children have meaningful relationships with both parents from which they derive considerable benefit. 

16.The issue at hand, from the mother’s perspective, was the subordination of the value of the children’s relationships with the father to ensure their protection from harm he may cause them. The issue perceived by the father was the need for the children to live with him because of the mother’s intent to destroy, or at least impair, their relationships with him without reasonable cause. 

17.The answer to that conflict lies in analysis of the evidence adduced by the mother to vindicate her fear that the children are at risk of harm through their sexual abuse by the father, which brings me to s 60CC(2)(b).

Section 60CC(2)(b)

18.The mother asserts the need to protect the children from harm they are liable to suffer through their sexual abuse by the father. The risk of their sufferance of such harm is said to spring from revelations made by one or both children to the mother on or about 30 December 2016. Unfortunately, the evidence adduced about it is patently unsatisfactory. 

19.The mother simply deposed:

Over the next few days [after the children’s return to her on 24 December 2016] the children disclosed things to me which caused me concern for their safety. Then on 30 December 2016, the children made disclosures about molestation by their father. 

20.Importantly:

(a)the mother said both children made disclosures to her;

(b)the detail of their disclosures is entirely omitted from the evidence;  and

(c)it remains unclear when the alleged “molestation” by the father is alleged to have occurred, which is significant because, save for the visit to the father on 23 and 24 December 2016, the children spent no time with him after August 2016.

21.The mother said she reported the disclosures to the Department on 3 January 2017. In fact, her report was apparently made on 4 January 2017 (Exhibit F1).

22.According to the Department’s records (Exhibit F1), the mother reported N told her the father let her touch his private parts and her twin, L, did not have to touch his private parts as much as she did. 

23.Significantly:

(a)the mother reported to the Department that only one child made that disclosure, not both children as she said in evidence;  and

(b)it is still entirely unclear when the alleged misconduct supposedly occurred.

24.Unfortunately, reports to the Department about the children and the parties’ shortcomings are not isolated occurrences. The family was known to the Department from during the mother’s pregnancy with the twins in July 2011 and, since then, there have been 45 reports about them (Exhibit M1). The most recent allegation needs to be assessed in that context of intense distrust and the mutual eager willingness to report alleged misconduct by the other.

25.The following observations also bear upon the veracity of the most recent allegation:

(a)As already mentioned, the evidence is quite unclear about whether one or both children made some form of adverse disclosure about the father.

(b)There is no evidence from the mother about the circumstances in which the disclosure was made – for example – whether it was volunteered or made in response to a loaded question.

(c)It remains quite unclear as to when the alleged misconduct occurred. Obviously enough, the reliability of the allegation depends on context and would be damaged if – for example – the child or children said it occurred long ago and it had never been mentioned before when they made other disclosures about the father.

(d)At the time the mother made her report to the Department in January 2017, she also informed the Department that N said to her “I don’t like dad. I hate dad.” Most likely, the children are well aware of the high parental conflict and are attuned to say negative things about one parent to the other.

(e)At that time, the Department assessed the mother was “beside herself” not wanting to send the children back to see the father (Exhibit F1). Most likely, the children were well aware of the mother’s negative attitude to their visits with the father.

(f)It is an agreed fact the children were interviewed by staff of the Department two days ago but there is no evidence at all as to what, if anything, the children independently reported to staff of the Department during those interviews. Self-evidently, it may have been nothing at all.  What is certain, there has been no action taken against the father since those interviews. He has not been contacted by either the police or staff of the Department as part of any wider investigation.

(g)The mother previously reported to the Department, in August 2016, that L complained of being forced to touch the father’s bottom, over his clothing, which report N apparently corroborated (Exhibit F1).  That complaint certainly resulted in no further action against the father.

(h)In October 2016, an anonymous complainant (perhaps the father) told the Department that the children reported they sleep with the mother and her partner, and further, her partner blows raspberries on their navels using his mouth and tongue. The mother was apparently confronted with that allegation by the caller and she denied it. She apparently said it was a lie. If the caller truthfully reported to the Department the statements made by both the children and the mother, then it must follow the mother knows the children lied about an incident that occurred in her household. One wonders then why she is seemingly unprepared to entertain the notion that the recent report of N (or alternatively both children) about the father might be untruthful. 

26.The evidence adduced by the mother, including the evidence garnered with the Court’s assistance by compelling the Department’s urgent production of relevant documents, is insufficient to demonstrate the children are at an unacceptable risk of sexual abuse by the father.

Section 60CC(3)

27.The mother’s attention to these proceedings has been lax. She evinces an intention not to heed direction, she failed to attend the Court on 24 November 2016, and she relocated her residence with the children from the Central Coast to G Town apparently sometime in late 2016 without telling the father or the Court. The father still has equal shared parent responsibility for the children, so the mother’s failure to consult him over such significant changes for them as the relocation of their residence to a distant place and their enrolment in their first school reflects poorly upon her.

28.She also failed to present with the children to the interviews with the Family Consultant on 16 January 2017. She said she did not get the letter, but that might be explained by her relocation without notice to G Town. In any event, the order about preparation of the Family Report was made on 23 September 2016 in her presence, when the anticipated date of the appointment was also noted on the record. The Court staff tried to contact the mother on 16 January 2017, but her telephone was “switched off or out of range”. She deposed she had changed her number by then, without notifying the husband, the Independent Children's Lawyer or the Court.

29.The Family Consultant observed as follows:

[59]:  It is the view of the family consultant that the impact of the conflict on the children has had, and will continue to have a detrimental impact upon the children’s mental health and capacity to reach age appropriate milestones.  Hence it would appear that one avenue available to reduce the impact of the conflict on the children is to remove one parent from the children’s lives.  Such an arrangement would be as a last resort. …

[61]:  The impact of the father’s proposal on the children would be that they will be removed from their primary carer, which may be very traumatic for them.  However, if the Court finds the mother is as neglectful, irresponsible and poses an unacceptable risk to the children (as alleged by the father) then they may be best placed with the father.

[62]:  Conversely, if the mother has ceased the children’s time with the father because of unacceptable risk of harm issues, then she needs to provide evidence to Court, and it may be that the children live with her and have no time with the father. 

30.As I have already indicated, the evidence placed before the Court by the mother does not prove the existence of any unacceptable risk of harm posed to the children by the father.

31.The Family Consultant also relevantly observed:

[63]:  It is the view of the family consultant that the children need both parents in their lives so that they can identify characteristics of that parent within themselves. …

[66]:   If the Court finds the mother cannot facilitate a relationship between the children and the father; and/or if she does not have the capacity to parent then it is recommended the children live with the father and spend time with the mother. …

[68]:   If the mother can provide evidence as to why she has not attended changeover and facilitated the children’s time with the father (i.e safety concerns) then until such time as she and the children can be assessed, the children should remain in her care.

32.In the affidavit sworn by the mother, she deposed:

I was prepared to facilitate the children’s time with their father by dropping them off to changeover, despite the distance.  I had previously done this for years with my sons, where I would drive from the Central Coast to H Town, return, for changeover. … I hired a car to get to Court on the last occasion, and again borrowed a car from family to get to the contact centre for changeover.  I will not have a problem from getting that support from my family when I need to travel from G Town to the Central Coast.

33.I see no reason to doubt such evidence from the mother. If she was not being truthful, she should nonetheless be held to account for the evidence as truthful and be expected to do as she says.

34.For those reasons, the mother has not made out her case for the imposition of supervision of the future interaction between the children and the father, nor has the father made out his case at this interlocutory stage for reversal of the children’s residence.

35.At this juncture it is necessary to return to the presumption of equal shared parental responsibility. As I have already indicated, the orders made between the parties in August 2013 provided for them to have equal shared parental responsibility for the children. That order has never been disturbed. When interim orders were last made in November 2016, the only order from August 2013 to be suspended was the order that made provision for the future interaction between the children and the father. The order vesting equal shared parental responsibility for the children in the parties remained unchanged. Neither party, nor the Independent Children’s Lawyer, made any submission at all about the allocation of parental responsibility, either presumptively or otherwise, and in those circumstances I see no need to change the order that has now been in existence for well over three years. The parties will retain equal shared parental responsibility for the children, pursuant to operation of the orders made in August 2013. 

36.Because that is so, s 65DAA of the Act is engaged and the Court is obliged to consider whether the children should live with the parties for equal time, or alternatively, live predominantly with one and spend substantial and significant time with the other.

37.Neither party contended that an equal time arrangement for these children is appropriate. Self-evidently, it is not an appropriate residential regime in circumstances where the parties now live several hours’ drive apart from one another – the father on the Central Coast and the mother in G Town. 

38.Nonetheless, the mother countenanced the prospect of the children continuing to spend substantial amounts of time with the father (even though she argued for that to be under supervision) by her willingness to drive fortnightly from G Town to the Central Coast to ensure implementation of orders much like those imposed in November 2016. Although alternate weekend visits with the father may arguably not meet the definition of “substantial and significant time” within the meaning of the Act (s 65DAA(3)), the tyranny of distance between the parties’ households precludes the father’s regular involvement in the children’s day-to-day activities. Alternate weekend visits and visits during school holiday periods amount to a substantial level of interaction between the children and the father, which I am satisfied should occur.

39.For those reasons, the orders will remain largely as already made. Under the orders made in August 2013, the parties shall have equal shared parental responsibility for the children and they shall live with the mother. The children will now spend time with the father each alternate weekend on the Central Coast, though the times of the visits imposed by the orders made in November 2016 will need to be adjusted to take account of the distance that now separates the parties’ homes. It will be up to the mother to get the children to and from the Central Coast each alternate weekend for that purpose, as she said she is willing to do.

40.I therefore make the following orders.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 10 February 2017.

Associate: 

Date:  23 February 2017