Barker and Ferris
[2008] FamCA 1112
•19 December 2008
FAMILY COURT OF AUSTRALIA
| BARKER & FERRIS | [2008] FamCA 1112 |
| FAMILY LAW – CHILDREN – Parenting proceedings – agreement between parents on all issues except for children’s surname usage and whether the father to be restrained from permitting contact between the children and the paternal grandfather by reason of allegations of abuse by the grandfather – finding of unacceptable risk of abuse – contact between children and grandfather prohibited |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Barker |
| RESPONDENT: | Ms Ferris |
| FILE NUMBER: | PAF | 3045 | of | 2004 |
| DATE DELIVERED: | 19 December 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 25, 26 & 27 November 2008 |
REPRESENTATION
| THE APPLICANT: | Mr Barker appeared on his own behalf |
| COUNSEL FOR THE RESPONDENT: | Mr Moss |
| SOLICITOR FOR THE RESPONDENT: | Marriott Oliver |
Orders
The mother is permitted to have the children whose birth is registered as
(a) B Barker; and
(b)L Barker, pursuant to order 6 of orders made 28 November 2008
known as and use the surname of ‘[Ferris].
The father is restrained and an injunction is granted restraining him from permitting his father, the paternal grandfather, to have any contact with the children referred to in order 1 hereof.
IT IS NOTED that publication of this judgment under the pseudonym Barker & Ferris is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAF 3045 of 2004
| MR BARKER |
Applicant
And
| MS FERRIS |
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings are about two children, aged almost 8 and 4 years respectively. Their parents have agreed about most of their future arrangements, including parental responsibility and related obligations as well as the time the children will spend with each of them. The terms of their agreement is set out in a Schedule to these Reasons. They are unable to agree about two issues which remain for the Court to decide. The first is about the children’s surname usage. The second is whether or not the children may have contact with their paternal grandfather and that, in turn, centres around allegations that he hit and sexually abused the child B (a daughter) on occasions of contact between November 2005 and March 2006.
Approach
In making those decisions, the best interests of the children are the paramount consideration [s 60CA]. The factors the Court is obliged to consider in determining best interests are set out in the Act as ‘primary considerations’ and ‘additional considerations’ [s60CC] and the evaluation is guided by specified objects and underlying principles [s 60B]. That said, there is a body of case law revolving around these two remaining issues, some of which precedes the 2006 amendments to the Act but it remains apposite nonetheless. The cases do not replace the obligations the Act imposes, but they are guidelines to the approach to those decisions.
As for the name issue, a convenient summary of the cases was given in the majority judgment of Kay and Holden JJ in Flanagan & Handcock (2001) FLC 93-074 [see George and Radford (1976) FLC 90-060; 1 Fam LR 11,510; Chapman v Palmer (1978) FLC 90-510; 4 Fam LR 462; Beach v Stemmler (1979) FLC 90-692] and there has been no substantive development since. These considerations arise:
·the best interests of the child prevails, not supposed parental rights, and mere convenience is not sufficient reason to change a child’s name;
·the contact the other parent has had and is likely to have with the child in the future;
·any short and long term effect for the child if their name remains as it is or is changed;
·any confusion of identity which may arise for the child if their name is changed or not changed;
·any embarrassment the child is likely to experience if the child’s name is different from that of the parent with whom the child primarily lives;
·the effect of any change on the relationship between the child and the parent whose name the child does not bear;
·the degree of identification the child has with his/her father, mother and any other person in their household;
·the effect of frequent or random changes of name; and
·the desire of the father to have his name restored or introduced.
As for the prohibition sought on contact with their paternal grandfather, the High Court in M and M (1988) 166 CLR 1235 recognised there may be cases where a positive finding can be made that abuse occurred, others where it is found to be groundless, and still others where the Court cannot confidently make a finding one way or the other. But risk of abuse is fundamental to decisions about a child’s care arrangements and so the decision will turn on whether the evidence establishes to the requisite degree of satisfaction – and, given the gravity of the allegation, that will be pursuant to s 140 Evidence Act 1995 (Cth) – there is a risk of harm to the child from the proposal under consideration and on the evaluation of the magnitude of that risk. At 78, M and M:
‘25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’
In a discussion of various Full Court decisions on the issue the Honourable John Fogarty AM summarised the principles in his paper ‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law 249 [approved by subsequent decisions of the Full Court eg. Johnson and Page (2007) FLC 93-344):
1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7.But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In those cases where the Court is able to conclude there is no unacceptable risk from the proposal being considered, it may be relevant nonetheless to consider whether the child’s carer has a genuine belief that abuse occurred and whether that is likely to impinge on the carer’s capacity and therefore on the child’s interests. There is a string of earlier cases on the point [R and C, 25 June 1993, unreported; B and B (1993) FLC 92-357; Sedgley v Sedgley (1995) FLC 92-623; and Sampson and Sampson (1977) FLC 90-253] which were discussed by the Full Court in A and A (1998) FLC 92-800 at 84,996:
‘3.27 It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that judge would need turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in but frequently referred to in this area) demonstrated: see also, for example, Re Andrew (1996) 20 Fam LR 538; FLC 92-292..
3.28 If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. That reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interest of the children contact should continue and/or whether it should be supervised to allay those fears.’
Finally, there may be occasion, depending on the findings and the circumstances, to consider whether supervised contact has any role for the future. It is recognised, of course, that it is not merely the question of immediate physical harm or risk of harm to a child but also emotional harm or other adverse consequences for the child to be having contact with a person the subject of an unacceptable risk finding. The discussion more usually centres around a balance of benefit to the child of a relationship with the subject person and the possible impact of contact on the child’s interests overall [M and M (supra) at 77; see also In the Marriage of Bieganski (1993) 16 Fam LR 353 at 368].
Evidence
Apart from the parents’ evidence and the tender of documents from the Department of Community Services [DoCS] and the Joint Investigative Review Team [JIRT], there was evidence from a number of witnesses.
The father called evidence from his parents, the paternal grandfather and the paternal grandmother; his paternal grandparents, the paternal great-grandfather and the paternal great-grandmother, and his sister, the paternal aunt C. The mother’s witnesses were her parents, the maternal grandfather and the maternal grandmother; a family friend, Mr T; her brother, the maternal uncle; and her brother’s fiancé, Ms H. Only the paternal grandfather, the paternal grandmother [by telephone] and Mr T were required for cross-examination.
There is also assistance from a report by Dr Q, child and family psychiatrist, although she was not required for cross-examination. Her November 2006 report is based upon interviews she conducted the previous month and the examination of documents made available to her at that time. She has had no involvement since then. Her report is of limited relevance to the remaining two issues - she was not asked to address the name issue and, quite properly, she identifies the prohibition on contact issue as dependent upon the Court’s finding of risk of harm on the available evidence which, of course, includes the various assessments she made of the situation presented to her. Nonetheless, I shall refer to her views later.
There is also a Family Report which became available at the end of May. The reporter interviewed the parents, the children, and the father’s partner and she inspected the documents she listed, including Dr Q’s report. She did not interview the grandparents. She gave some further evidence at the hearing but it was brief and of limited significance to the remaining issues.
Relevant facts
The parties’ relationship began during 1999. Their daughter, B, was born in December 2001. Some of the history of their relationship canvassed in their affidavits can be put aside in light of their agreement about arrangements. More relevantly, in May 2004 the father was the driver of a motor vehicle involved in an accident which resulted in the death of a passenger and injury to himself. He was subsequently charged with various offences related to dangerous and negligent driving causing death while under the influence of alcohol. In August of that year their relationship broke down and they separated. On 21 December 2004 the father instituted these proceedings in the Federal Magistrates Court seeking parenting orders. Their son, L, was born in January 2005. In April 2005 the father was convicted and sentenced to a term of imprisonment. He was released from prison in August 2006 and his parole period expired in January of this year. During this time there was a dispute about L’s paternity which was resolved in February 2006 by DNA results affirming the father’s paternity.
In the meantime, the paternal grandparents took over the conduct of the litigation by intervening in the proceedings and seeking orders permitting them to have contact with the children. They later withdrew as intervenors and have no current application before the Court. Briefly, their circumstances are that they have been married for some 27 years and they have five children and a number of grandchildren. They have lived in South Australia since 2001. Some years ago the paternal grandfather, an interstate truck driver at the time, rolled his truck while his daughter, the paternal aunt C, was a passenger and she became an incomplete quadriplegic as a result. With the settlement money she received she bought acreage near K where she now lives and her parents live either with her or nearby and assist in her care. Other members of the family also live in the area and there are said to be close knit connections amongst all family members. The paternal grandfather is known to B and his other grandchildren as “Y”, a nickname he explained as arising from one good-humoured occasion some time ago. On the history given by the mother, not put in dispute, there had not been all that much contact between B and her grandparents before interim orders were made by consent in the Federal Magistrates Court at Wollongong on 10 October 2005 providing for contact between B and her paternal grandparents as follows:
1.That the Paternal Grandparents have contact with the child [B] as follows:
a.Wednesday 12 October 2005 from 10am to 1 pm, such contact to occur in the presence of either the Mother or Maternal Grandmother;
b.Saturday 22 October 2005 from 10am to 1 pm, such contact to occur in the presence of either the Mother or Maternal Grandmother;
c.Sunday 23 October 2005 from 10am to 1 pm, such contact to occur in the presence of either the Mother or Maternal Grandmother for the first hour only;
d.Saturday 5 November 2005 from 10am to 2pm;
e.Sunday 6 November 2005 from 10am to 2pm;
f.Saturday 19 November and 3 December 2005 each day from 10am to 3pm;
g.Sunday 20 November and 4 December 2005 each day from 10am to 3pm;
h.From 12noon 21 December to 2pm 22 December 2005;
i.From 31 December 2005 and each alternate weekend thereafter from 12noon Saturday to 2pm the following Sunday; and
j.Telephone contact each Wednesday between 3pm to 3:30pm to be facilitated by the Paternal Grandparents telephoning the child on a mobile phone number supplied by the Mother.
2.Contact in Orders la. and 1c. shall occur at [N Park].
3. Contact in Orders 1b. shall occur at [M Park].
4.Contact in Orders 1d., 1f. and 1h. shall be facilitated by the Mother or her nominee delivering the child to the Paternal Great Grandparents' home at the commencement and collecting the child at conclusion of contact.
5.Contact in Orders 1e. and 1g. shall be facilitated by the parties or their nominee meeting at [N park]
6.That contact pursuant to Order 1h. shall occur only when either the Paternal Grandmother or Paternal Grandfather are present.
7.That the proceedings be adjourned to the first circuit sitting in 2006 at a date to be allocated by the Court.
8.That without admission the Paternal Grandparents will not bring the child into contact with the Father during contact periods.
Notation
A. The Father confirms his intention to pursue interim contact.
The first occasion of contact occurred on 12 October but the mother brought it to an end in late March 2006 in the face of allegations that the paternal grandfather had abused B. He denies any wrongdoing. His son, the applicant father, believes he has done nothing wrong and he opposes any prohibition on the children’s contact with his father.
The evidence establishes this chronology of events:
(a)On 12 October 2005 the visit was supervised at a park in N. The paternal grandfather and his wife were present and they taped by video parts of the gathering.
(b) The 22 October visit was also at a park. It is said the mother was late and arrived in the company of a friend but on the paternal grandfather’s evidence the occasion proceeded smoothly.
(c) 23 October was again at a park. There is a difference of opinion about whether or not the mother was to be present [plainly the orders says she could be present for the first hour] but she remained nonetheless. The paternal grandfather says the mother was at all times within sight and hearing whereas she says he moved away with B and was not within her sight or hearing all the time.
(d) The 5 November visit was preceded by a telephone call from the paternal grandfather to the mother to ensure she was coming, that she realised it was to occur at his parents’ home in M, and to remind her she had to drop B off there. There was other discussion about the Court order. She arrived late and they had a further exchange about the terms of the orders and whether she could be arrested for ‘breaking’ court orders before she departed with B 15 minutes after arrival.
(e) On 6 November N was the pick up point. Before the appointed time the paternal grandfather went with his daughter G to the N police station to ‘get some advice from them and if they could come with them to the park to see the peace is kept.’ The police declined. At the park he asked his daughter to remain in the car; she video taped the visit from a distance. There was an exchange between the paternal grandfather and the mother about whether he was to be allowed out of her sight with B and about the use of the video before the visit came to an end. The paternal grandfather returned to the N police station and spoke to the police again, though his purpose is not apparent.
(f) The first indication of B saying anything implicating her grandfather in wrongdoing arose on 13 November and comes from the evidence of the maternal grandmother. As she tells it, B had been looked after the previous day by a friend who asked who is “Y”. The maternal grandmother replied: It’s the interim contact orders, its [Mr Barker Snr], the paternal grandfather, he’s a boisterous little man, there’s not much we can do about him playing boisterously”. The friend reported B saying Y ‘hurts’ her.
(g) 19 and 20 November 2005 was the first weekend of unsupervised contact. The mother describes B as distressed on the first morning and she had to be reassured; she was quiet when collected later and she kept her arms crossed when her grandfather tried to hug her to say goodbye. On the way home she said to her mother “[Y] hit me” and when asked why she said “because I wanted you Mummy”. The mother describes B as distressed again before the next day’s visit and she asked her mother to stay saying: “I’m scared of [Y]”. On her arrival home later in the day B said: “[Y] hit me”….“When we were in the park. I wanted you Mummy and [Y] hit me”. The mother telephoned the DoCS hotline and reported her concerns. After the 20 November visit the maternal grandmother also reports B saying to her: “[Y] hit me, I wanted Mummy, I was whinging”.
(h) 21 December 2005 was the first overnight visit. B was returned to U by the paternal grandfather. He explains that the mother had called to say she had difficulties with transport, he offered to take B back to U, and he did. He began the journey from M when contact was due to conclude under the orders, explaining: ‘I was not going to chew up my family’s time ……I was going to do it after that set time.’ The mother says B wet the bed that night for the first time since she had been out of nappies. The maternal grandmother reports B saying to her after this visit “I don’t like [Y], I like Geema and Geepa” [paternal great-grandparents] and she confirms that B wet the bed.
(i) There was further bedwetting on her return from the second overnight visit, according to the mother. It is the mother’s further evidence that B became unmanageable after overnight contact began, she was verbally aggressive, she started swearing and on a couple of occasions she hit her mother which was out of character.
(j) On 29 January, after arriving home from a visit, the mother reports B saying to her: “[Y] hits me when I’m not naughty. [Y] gets angry with me and hits me”. The mother notified DoCS.
(k) On 11 February the mother reports B saying on the way to the overnight visit: “I don’t like [Y], he hits me all the time.”
(l) On 21 March the mother says B spontaneously kissed her on the mouth in a “passionate way” and when asked who kisses like that she said: “[Y] does, I don’t know why he does it”. The mother notified DoCS.
(m) On 22 March the mother says B was sitting on the floor playing with her Barbie dolls when she said: “[Y] touches me on my rude bits”, pointing to her genital area, adding “down there on my fanny”, and she then said: “[Y] took me into my room and closed the door and kissed me” and “he touches me when he kisses me and no one saw it”. She also said: “[Y] buys me presents all the time…Barbies, we play Barbies in my room”. The mother notified DoCS. The maternal grandmother reports this exchange with B on 22 March:
B: Nanna I want to tell you about [Y]. [Y] touched me down here and kissed me on the lips.
Maternal grandmother: Have you told mummy, it is important to tell mummy.
B: I have told mummy.
(n) 23 March the maternal grandmother reports this exchange with B while handing pegs to her grandmother at the clothesline:
B: I told you [Y] touched me down there and kissed me on the lips.
Maternal grandmother: Yes you have [B].
(o) On 24 March B was interviewed by JIRT. B is recorded as appearing to be in good health, well cared for, and meeting all milestones. It continues: ‘During the JIRT interview, [B] disclosed that her grandfather “[Y]” “hurts me and does things that are not nice and he lies about things”……..“[B] did not appear as if she wanted to talk about the matter and did not disclose any further details.’ The mother was advised not to provide access to the paternal family at the time and this would be re-assessed by the Department at a later stage after “all relevant parties have been spoken to”. It was recommended that B have a physical examination and this was arranged with a paediatrician.
(p) The mother did cease contact. She says B was unsettled in her sleep for some time after the contact ceased.
(q) The paternal grandfather says he was interviewed by the authorities by telephone. There is no record of that interview in the documents tendered.
(r) On 3 April the mother reports B playing with her barbies when she said: “[Y] pulled my undies down and touched me on my fanny and the yucky stuff on my bed at Geema and Geepa’s”, she demonstrated by pulling her undies down, put her hand on her genital area and rubbed it a few times, agreeing in response to her mother’s question that is what the paternal grandfather did to her. The mother notified DoCS.
(s) On 10 April the mother describes B sitting on the floor playing with toys when this exchange occurred:
Mother: We are going to the doctor tomorrow about [Y] [to see paediatrician]
B: So [Y] doesn’t do it again to me
Mother: Yes
B: But he has done it to me again
Mother: When
B: When I was there again at Geema and Geepa’s. [Y] showed me his rude bits in my room. He pulled his undies down and he put my hand on it. He made me touch it.The mother notified DoCS.
(t) On 11 April 2006 B was examined by a paediatrician who reported no evidence of trauma, the hymen was partly intact [said to be normal for a girl of this age] and the remainder of the physical examination was normal. The mother gave evidence that she heard B say to the doctor: “[Y] kisses me and touches me on my rude bits”. However, it is not put quite this way by the doctor in his reporting letter. He relates being told by the mother of B’s disclosure of the grandfather kissing, touching, pulling down her underwear and exposing himself to which he adds: “When I asked [B] briefly about this she indicated that this had occurred.”
(u) On that same day it is the evidence of the maternal grandparents that this exchange occurred with B:
B: Nanna have you told Poppy about [Y]?
Maternal grandmother: A little bit
B to her grandfather: Can I tell you
Maternal grandfather: If you want to
B: [Y] touched my private parts and kissed me on the mouth
Maternal grandfather: When did he do this
B: He did it two times. He pulled my undies down when he touched me down there. He did it in the bedroomMaternal grandfather: No one should touch you there except mummy and the doctor….
(v) Records of the authorities note that the interview had elicited ‘little information being disclosed’, the child had not seen the alleged offender since, no evidence of sexual assault was found by the doctor and there was no detail of disclosure in the report. This is also noted: ‘It would be abusive to reinterview the child by CSC caseworkers in relation to the information that has already been investigated.’
(w) On 23 April 2006 B’s maternal uncle and his fiancé both give evidence of a spontaneous statement by B about her name - wishing to be known as Ferris and not Barker because the “[Barkers] are not nice people” – to which she added: “[Y] touched me on the rude part”.
(x) On 12 June the maternal grandmother reports B using the word ‘fuck’. B identified “Y” as saying the word. She also reports B saying to her in a whisper on 13 June: “Who’s fucking your mother?” before identifying “Y” as saying it.
(y) Mr T, a family friend, gives evidence that on 14 July while visiting the Ferris family home B said to him: “[Y] took me into the bedroom at Grandma’s. He pulled down my undies and touched my rude bits down there. He pulled his undies down and made me touch his thing.”
(z) In the final analysis the records note that staff could not determine whether B is the victim of sexual abuse, there was difficulty of completing a comprehensive assessment of B ‘due to her current situation and the current family dynamics’ and in the assessment report there is reference to serious concerns because the level of risk for B could not be determined due to the ‘complex nature of the current family dynamics’. The concern was identified as risk of harm from her paternal grandfather based on her repeated disclosures to her mother and to the paediatrician, alleged sexualised behaviours and behaviour management issues on return from visits; yet further concern was said to arise from the prospect the mother was using the abuse as a ‘tool for being able to cease [B’s] access’ with the paternal family. The report contains a recommendation that the Family Law Court undertake an assessment of the family members involved and that B have a complete paediatric assessment to establish her current level of functioning assess how she is coping. By letter dated 26 July 2006 the authorities advised the mother the case was closed.
But plainly it was not closed from the mother’s point of view. Some months later, on 9 January 2007, she presented at the police station requesting that B be re-interviewed and the investigation resume. It is said she was insistent and she resisted what she was told of the delicate nature of a child being interviewed. Her question: “But how can I get them charged?” In any event, on re-interview the child immediately disclosed “[Y] hits me”. She could not provide further details and “[Y] makes me touch his rude bit, kisses me on the lips. He got me and he said I’m gonna touch his forever”. The child was unable to provide any details around the disclosure. Asked if she could describe Y’s rude bit, she said: “Its exactly the same as my brother [L’s]. Cause he is a boy and he’s got one too.” Asked about differences she said: “no they are exactly the same thing”. Asked how big L’s rude bit was she indicated about 2 cms and asked how big Y’s rude bit is she indicated the same size and said: “it’s the same they are both boys”. The authorities took the matter no further.
Some months passed before the father contacted the Department in September 2007 expressing concerns about B’s emotional well being ‘as the mother is accusing his father of sexual abuse’. He reported speaking to B about it and that B had told him it is not true. He wanted to enlist the Department’s help in having the mother stop putting questions to B.
There is evidence from the father and his wife that on occasions of overnight contact at their home at no stage was the paternal grandfather left alone with B, save for one occasion he took her to Woolworths and they returned shortly afterwards with toys, because either one of them or the paternal grandmother were always present when B was in his company.
The mother gave evidence about conduct within the father’s family before matters were resolved between her and the father and it may be of some relevance to this issue. She says C, the father’s sister, had told her she had been raped in 2000 when she was about 10 years of age and then in 2002, a year after her accident, she told her the perpetrators had been her brothers, the father and another brother. It is the mother’s evidence she took this up with the paternal grandmother who confirmed it was true. True or not, the mother is certainly telling the truth about what C told her because C’s affidavit confirms it. On her account of it, however, she told the mother a lie. She explains they had become friends and she was jealous of the relationship developing between the mother and her brother [the father] and did not want a repeat of an earlier situation where her friendship with another girl ended when the relationship between her brother and her friend broke up. The aim of telling the mother ‘[the father] and [another brother] abused me when I was eight’ was to ensure the mother did not go out with either of them and she would not lose her as a friend. A month or so later the mother took her to a counsellor and, it could be anticipated, there would be a record somewhere of her attendance. But she thought it best never to tell her the truth and she kept quiet about it and let the mother think it was true. She says she has never been sexually abused by her brothers and what she told the mother was a story she made up.
Assessment – Dr Q
Dr Q conducted interviews six months or so after contact with the grandparents had ceased, well over two years ago now. While not all of her assessments are relevant now, they throw some light on this issue. For that purpose, her summary of the matters she was asked to address follows:
a) Whether the children are at risk of being exposed to physical or psychological harm, abuse, neglect or family violence.
The two children are developing well and it seems that they are well provided for. They separated easily from their mother suggesting that they are quite secure and confident.
The mother and her parents allege that there was domestic violence, which is denied by the father and his parents. There is not a lot of independent evidence. [The mother] made a report to the police some time after the alleged assaults and the maternal grandfather states that he witnessed bruising on [the mother’s] neck and face, although apparently took no action at the time.
There were no indications from [B’s] play to suggest that she has experienced abuse but there was considerable anxiety that appeared related to reports that daddy had been bad and gone to prison.
b) Relationship between the children and each other and each of their parents and any other relevant person.
Both children are primarily bonded to their mother, which is to be expected since they have been solely in her care, [L] for all of his life, and [B] for all of the last two years. They also have significant bonds with the maternal grandparents who show a strong commitment to them.
In spite of a lengthy separation from him, [B] related very easily and quickly to her father, suggesting that there was a very strong fundamental bond of attachment, which was easily renewed. [L] greatly enjoyed his visit with the family, surprisingly since they were essentially strangers to him. He was extremely relaxed and confident with them.
The father and the grandparents and great grandparents were all extremely child focussed and very attentive and appropriate with the children.
c) Willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother and her parents are clearly reluctant to facilitate contact with the father or his family, except possibly with the great grandparents.
The father and his family are highly committed to maintaining contact with the children. [The father] seems to bear very little animosity towards [the mother] and it was notable that information such as her past history of drinking was provided by his parents rather than by him. There seems very little hostility and no disposition on [the father’s] part to alienate the children from their mother. I note that he is prepared to accept whatever contact can be made possible. In this he appears to be adopting a very realistic and appropriate attitude.
d) Capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs.
The father related very appropriately and warmly to the children and they were very responsive to him and very relaxed. The grandparents and great grandparents similarly were extremely child focussed. The children related very easily with them and vice versa.
The mother impressed as somewhat avoidant in her attachment style but the children are secure and confident and are developing well and had no difficulty separating from her. It appears that they are securely attached to her and that she is providing well for them. The maternal grandparents are also very capable of providing for the children. The only issue with the mother and her parents is whether they are seeking to alienate the children from the father, if this were the case and if there were no adequate reasons for them so doing then they would not be meeting the psychological needs of the children.
e) The attitude to the children to the responsibilities of parenthood demonstrated by each of the parents or other relevant person.
The mother appears to have been responsible in her attitude towards the children throughout their lives.
The father has had some difficulties in the past with gambling and perhaps recklessness as indicated in the fatal car collision. He appears to have used his experience of imprisonment productively and his current attitude towards the future and rehabilitation seems promising. Importantly his parents seem quite realistic in their attitude towards those problems. He seems to have shown a steadfast commitment to his children throughout.
f) Mental state of mother, father and paternal grandparents as far as it relates to parenting issues.
The mother's history suggests that she was depressed during the relationship and continues now to present as depressed. She attributes this to these current problems. She also gives a history of symptoms of anxiety and posttraumatic stress which are typically manifest in relationships of domestic violence. Notably she was guarded and the impression was that she provided a limited account of herself. Notably the paternal family volunteered more information about [the mother] than she had provided, particularly her adoption, that she had a serious drinking problem in the past; and the suggestion that she is much under the influence of her father. While the paternal family is not providing an unbiased account, it would be of concern if the mother and her family have not provided a complete history.
If the history of the paternal family can be relied upon and it is the case that her adoption has been a highly significant issue for [the mother], it would be of concern that she did not mention this even though such matters were enquired after.
[The father] appears to be appropriately remorseful regarding the fatal accident and to have profited from his experience of imprisonment. Notably he did not manifest much of an externalising focus and the history suggests a person who is capable of rehabilitation. In particular he seems strongly committed to the children.
g) Opinion regarding allegations of sexual abuse and whether the children are at risk in the household of the mother, father and/or paternal grandparents.
The paternal family impressed as a strongly knit group who provide a lot of support to each other. The history they provide on a lot of important issues is markedly at odds with that that provided by the maternal family. This is particularly the case with the issue of [the paternal aunt C] having been sexually abused by her brothers. They regard these allegations as intended to alienate the children from them. However, if the history given by the mother and her parents can be relied upon, there would be considerable concern about risk of sexual harm and domestic violence and the father's reliability in the future in relation to the children. These are very serious issues and relate to the credibility of the two families.
The mother is strongly supported by her parents. It may be the case, as alleged by the paternal family, that she is unduly influenced by them, but there was insufficient clinical evidence to be certain of this.
h) Any other matter.
The children are accustomed to being in the primary care of their mother but the father's application is for contact and he does not contemplate a change of residence.
The children were extremely settled and happy with the father and the extended paternal family and there is every indication that they would enjoy their time in that setting. If the court were satisfied that there is no risk of sexual harm to the children and that the father is neither drinking excessively nor prone to violence and that there is no risk of sexual harm then there would be no reason not to promote as generous a regime of contact as is possible given that he will be living interstate.
The same is true of the grandparents and the great grandparents, all of whom seem to be strongly committed to the children. It was clear that the children greatly enjoyed their time with the family and would benefit from the advantages of sustaining contact with this strong extended family network. However, this would depend on the court's determination that there is no risk of sexual harm to them from the paternal grandfather.
On the basis of the commitment of the father and his family and the strength of the children's attachments to them continuing contact would be in the best interests of the children. However, the children, and more particularly [L], are too young to undertake interstate travel as unaccompanied minors at this stage; this should be deferred until [L] is seven years of age.
It is not in the best interests of the children to have separate contact arrangements so a regime of contact would need to be graduated according to the developmental capacity of the younger child, [L].
Once the children are school age there would be no difficulty in them spending part of their holiday time in South Australia but until they reach school age there will be difficulties in sustaining contact.
Accordingly, until [L] is established at school, say at the end of his kindergarten year, I would suggest that contact occur at the home of the great grandparents. The frequency of this would depend on the ability of the father to travel and whether the paternal great grandparents are resident in New South Wales. If it were possible then alternate weekend contact would be reasonable or at least one weekend a month. Once the great grandparents have relocated to South Australia then the father would need to make suitable arrangements for contact to continue in New South Wales and it would be preferable that at least one other member of the family participates in these visits. Even if the court were of the view that there is no issue of risk of sexual harm it would seem prudent that he not exercise contact alone to preclude the risk of further allegations.
Commencing the year 2008, when [L] will have turned 4, the children could spend a period of block contact of five days with their father over the summer holidays, either in New South Wales or in South Australia, provided that travel arrangements were appropriate. The following year this could be seven days in the summer holidays.
Commencing the year 2010, when [L] will have turned 6, the two children could spend a week of each of the school holidays with their father. Thereafter they could spend half the school holidays with their father in South Australia.
I would recommend that the father be permitted to exercise additional contact if he were able to visit New South Wales and can provide the mother with sufficient notice. He should be kept informed of the children's progress at school and be allowed to participate in significant school events.
If the court were of the view that the father poses some risk of sexual harm to the children then contact should be limited to supervised at the home of the paternal great grandparents for a full day and no overnight, once a month. Under these circumstances I would not recommend overnight contact until [L] is seven and then for limited periods only and I would not recommend block contact until [L] is 10 and there should be no separate contact arrangements for the children. If the paternal great grandparents are not resident in New South Wales, this contact may need to be exercised at a contact centre.
The paternal great grandparents impress as grounded and responsible people who clearly have the children's welfare and best interests at heart. However they have age and health limits of which they are aware. A contact arrangement involving them as supervisors at their home may not be feasible for more than a limited period of time.
Discussion
In the evaluation of the risk of harm and its magnitude it can be said at the outset that in several respects the evidence weighs against a finding of abuse.
First, there were no physical indicia of abuse on examination by the paediatrician after contact with the grandfather was terminated. That, however, is no real surprise given the description of what is said to have occurred.
Secondly, Dr Q’s assessments reveal that she saw no indication from B’s play to suggest she had experienced abuse. The paternal grandfather was among the broader family members Dr Q assessed as ‘extremely child focussed and very attentive and appropriate with the children’ and being ‘highly committed to maintaining contact with the children’, they related easily to the children and the children to them, the children were ‘extremely settled and happy’ in the company of their father and extended paternal family and ‘there is every indication that they would enjoy their time in that setting’. While Dr Q properly reserved to the Court the finding of fact about risk of sexual harm from the paternal grandfather [as she did with the father], there is nothing in her observations or assessment of underlying behaviour tending to indicate substance in the allegations against the grandfather. By the same token, there are limits to the weight that can be given to her untested assessments; that is to say, while she assessed B as ‘relaxed and comfortable’ within the paternal family, a reading of her report suggests her observations occurred within a group environment and that does not necessarily give a clear picture of B’s response to being alone with her grandfather. Subject to that caveat, Dr Q’s observations within the process she undertook did not indicate anything consistent with the grandfather having abused B.
The paternal grandfather underscores his and the family’s commitment to establishing and maintaining a relationship with B by pointing out what was involved for him – and his wife on the occasions she accompanied him – in travelling to M from South Australia for that purpose: there was a total of 2,000 kilometres in the round trip; it took about 22 hours; and it cost $200 each way even when it was limited to an hour and on one occasion lasted 15 minutes. It can be accepted this does show commitment. Yet there is a degree of intensity about it, reflected also in his visit to the police before contact was to occur on one occasion when that seems to have had no practical purpose. All the same, the family circumstances at the time are acknowledged; that is to say, he and his wife took over the litigation while their son was in prison and it is understandable they would wish B to build relationships with her father’s family in his absence and to feel strongly about that.
Also weighing on that side of the scales is the paternal grandfather’s denial of any wrongdoing. The thrust of his position is that the allegations are the handiwork of the mother who was/is motivated to undermine or prohibit any relationship between B [or both children] and the paternal family. Of this it might be observed that she consented to orders for contact with the paternal grandparents in October 2005 rather than take the matter to a contested hearing. Even so, no doubt consent is given to court orders for a range of reasons and of course there are those who give their consent determined thereafter to scuttle the arrangement by whatever means they can. Certainly on any version of events the initial encounters and later changeovers were beset by tense and unpleasant exchanges between the mother and the paternal grandfather, but that was not one sided and there is nothing to support a finding the mother comes into that category.
But the paternal grandfather’s denial is not just about the mother’s supposed motives; he elaborates in some detail his own actions and related reasons. As he explained it at one point in the course of his evidence, there are a lot of things he does not do because of these allegations and being ‘on guard’ all the time with a grandchild is one of the ‘sickest parts of this whole scenario’. He has a lot of grandchildren but when it comes to B he has to be on guard all the time. He was protecting himself against these allegations – ‘everything is video taped so…where did I hit the child, where did I do that’ – and he was protecting himself ‘right from the beginning’, the ‘whole time we got Court proceedings’ in Wollongong, ‘every time we had, there was always somebody there.’ It has to be said this struck a rather unusual chord since the allegations had not arisen from the beginning and the need to be on guard and protect himself from false accusation is curious. He continues: ‘One, I’d have to be alone with [B] which like I said, I cover me bum very well. I always keep someone with me. Two, that room you can only close it from the outside, you bolt it from the outside. [The mother] knows the room is there.’ Asked why he felt the need to make sure someone was with him all the time, he said: ‘I can’t treat [B] like other any other grandchild because the mother has this psychological problem where she’ll make up allegations so that’s why. Every time I came over I brought my daughter with me, everybody….’ Reminded that no one made sexual assault allegations until march 2006, he went on to refer to the allegations about hitting prior to then [although he learnt about that at the same time as the allegations of sexual abuse], explaining: ‘prior to that she also made allegations in other areas so I’m very distrusting of [the mother] and her fantasies.’ and ‘…I’ve always had a fear, I explained it in Dr [Q’s] report, and [the mother] knew this fear. When I was 6 ½ years of age, being hyperactive, I watched TV, a show called ‘Dallas’. Bobby Ewing was the main actor.’…..‘Like I said about watching this particular program, I had a fear. You’d have to watch the program and see it through a 6 year olds eyes, where a person was accused of doing something wrong by somebody else and then blackmailing them into giving them money or reward and then saying if you don’t give me money I’m going to accuse you of raping me, this girl was underage. In that type of program it was splashed all over the media and the whole family was ridiculed. I know it’s only a soap but look at it through a 6 year olds eyes. I watched it when I was 6. I was hyperactive back then. I snuck out, I watched TV, Mum and Dad were asleep. I watched this particular program. I can tell you most of the things in that program, even back then. It was that detrimental to me I could never ever be put into that sort of predicament. That’s the way I am. I can explain the whole program to you even though it was back when I was 6 ½ years of age.’ Asked about his other grandchildren, he said he does not always have somebody with him when he looks after them. Why that is so, in light of his response to the Dallas program, he explained: ‘I don’t think […], my other son’s partner, is that way inclined. I don’t think anyone else is that way inclined. I’ve got specific fears to [the mother] rather than anyone else in the family.’ Why that is so he explained by reference to something that happened on the first contact visit to his parent’s place: ‘One of the things was on the day we took [B] to my parents’ place, they’ve got a shrine to their grandkids. Even though [the father] and [the mother] weren’t together, there was still a picture. I lifted [B] up and showed her the picture. She said is that my Daddy? She said my Daddy’s in jail … because he hurt me. I said no, drink driving…had an accident. I believe she was already starting to build a case against [the father].’ He said they had been video taping during the visits before then because he did not trust the mother in the first place, she was ‘building a case’ against the father: ‘…she was starting to manipulate [B’s] mind to say that your father’s a bad person, he’s already starting to hurt you. I think she was trying to build a case in [B’s] mind why he wasn’t there and I think by the time [the father] got out of jail, and [the father] would have started pursuing custody again, she was going to start bringing [B] in saying he did this to you, he did that to you.’ As for what that had to do with his feeling the need to have somebody with him while caring for his granddaughter, he explained: ‘If she was already preparing to do it to my son, then there’s nothing stopping her from doing it to me. She transferred that anxiety of a person trying to take another person away from you. She fears [the father] taking [B] away in any shape or form. So she starts to build a case and then when I stepped up with the rest of my family and said if [the father] can’t see the children, we want to, she transferred that anxiety to me and started to rebuild a case against me hence the smacking right up to a certain point. That point was when [L] was allowed by the Court to come and see us. That very first week the DNA had been done and they said [L] is [the father’s] child, he should be allowed to go with [B] to the grandparents’ home to be part of that visitation procedure. She ran into DOCS and said he’s molesting my child now. Come on your Honour, it just seems very odd, too neat. Hence I still haven’t seen my grandson until such time as Dr [Q’s] office. The whole case has been snowballed for 4 years because of it. It’s just an ongoing process.’
Aspects of this evidence can only be described as strange. Not only is it elaborated with unnecessary detail which of course, rather than being seen as an attempt to construct a smokescreen, might be written off to being merely part of his style or personality generally. But it also sits uncomfortably with the objective facts. For a start, there is nothing that could be identified as reasonably requiring someone’s presence all the time B was in his company ‘right from the beginning’. B’s comment on being shown the photograph of her father came not ‘from the beginning’ but after a number of contact visits and, furthermore, his explanation for the link between what the child said and his reasoning about the need to have someone there all the time is convoluted and by no means apparent.
His reasoning for being so motivated before the child’s comment about the photograph seems to be linked to the effect the Dallas episode had on him as a 6 or 6 ½ year old. The leap from the circumstances of false accusation he described there to false accusation about abuse of his grandchild is not explained and, despite the attempt to do so, his explanation for this experience affecting only his thinking about B and no other grandchild is less than convincing. Also, the paternal grandfather’s age is not apparent from any of the evidence, but his wife was born in 1961 and if he was born a decade either side of that his evidence means the Dallas program would have screened in Australia sometime in the 1950’s, the 60’s or into the 70’s. Scholars of television history could pinpoint the answer to that, but I would say the suggestion he was so moved by an episode of Dallas as a 6 or 6 ½ year old is not only odd but highly improbable.
As part of his position and the protection factors he saw as necessary, he cites the video taping of visits. No doubt at least parts of the early visits were video taped, but plainly the whole of the visits before they ceased were not and so it does not really assist to resort to the existence of video tapes. Nor is it the case that he followed through with his purpose of always having someone present when he was with B. In his evidence he infers the lack of opportunity or the existence of what might be called inhibiting factors such as the door on the room downstairs having a lock on the outside. But despite what was said by his parents about it, his own evidence identifies occasions he was alone with B - once he took her to the shops on his own and on another occasion he drove her back to her mother’s at the end of a visit – when obviously his view of the need to always have someone present for fear of false accusation of abuse did not prevail.
When allegations of abuse rest at least in part on what a child is reported to have said about it, as it does here, one obvious question is whether the reports of the child’s statement can be believed. That is beyond doubt in this case since B made statements not only to her mother but to a range of others - to her maternal grandmother and grandfather, to her uncle, to a family friend, she confirmed it when asked by a paediatrician and, while the absence of detail did not permit authorities to draw a conclusion, she made statements in a JIRT interview initially of her grandfather hurting her, being not nice and telling lies and in the later interview of hitting, kissing on the lips and making her touch his ‘rude bits’. All of the reported statements directly implicate her paternal grandfather, and no one else, in abusive conduct.
The mother’s evidence, and to an extent that of her grandmother, suggests uncharacteristic change in B’s behaviour during and after the period when the abuse is said to have occurred. This describes oppositional and aggressive behaviour as well as regression into bedwetting. It is also the mother’s evidence that at times B resisted going on contact visits and on one occasion she was observed to reject her grandfather’s overture of affection on departure by crossing her arms. There is another reference to the grandfather licking the car window as B was departing, explained by the paternal grandfather as him just pulling funny faces. Whatever the case, another obvious question is whether this description of the child’s behaviour can be believed. In my opinion, it can.
To elaborate that, it is obvious that the mother holds a very adverse view of the paternal grandfather and, it can probably be said, of the Barker family. Added to that, it was Dr Q’s assessment some six months after the contact with the grandparents ceased that the mother (and her parents) were reluctant to facilitate the children’s contact with the father or his family except possibly with the great-grandparents. Also, it is noted that the authorities expressed some concern at the prospect the mother may have been using the issue as a ‘tool’ to have the contact cease which tends to be supported by her actions in presenting the child for re-interview in January, months after the investigation had closed, in an effort to have authorities take the matter up again despite being told of the risks of re-interview. It seems the mother had continued to talk to B about the topic or the issue was kept alive in the child’s mind by some means because on the eventual re-interview B is described as ‘immediately’ making the statements identified earlier. While the mother’s anxiety to see action on what she believed to be the situation might be understandable – and her belief may have been well founded - it is little wonder the authorities took the view of the situation that they did. There is also a progression over time up the ladder of allegations - initially of being ‘hurt’ and ‘hit’, then kissing on the lips and touching her ‘rude bits’, being ‘hurt’ by her grandfather who does ‘things that are not nice’ and he ‘lies about things’ when interviewed by authorities, followed in the period between April and July, by which time the contact had ceased but before the authorities closed their investigation, to pulling her underwear down, touching her genitals was repeated, ‘yucky stuff’ on her bed, the grandfather exposing his genitals to her and making her touch his genitals, and finally identifying her grandfather when she used the word ‘fuck’ and another time whispered to her grandmother ‘who’s fucking your mother’.
Yet none of this persuades me to reject the evidence of B’s statements or about her surrounding behaviour. There is a child-like and therefore plausible ring to some of B’s statements; for example, her explanation for being hit because she ‘wanted’ her mother and because she was ‘whinging’ and there could be no explanation for a child saying ‘who’s fucking your mother’ other than it was heard somewhere. I am certainly satisfied the maternal grandmother did not make it up. Apart from the use of that sort of language, the reported statements appear to have been within the range of the child’s competence with language at the time – at least there is no suggestion to the contrary from Dr Q - and there is nothing bizarre or inherently improbable or unbelievable about the content of her complaints. Having said that, the father places some emphasis on the statements B made in the re-interview on 24 January 2007 related to the size of her grandfather’s ‘rude bits’ compared to those of her baby brother’s. For the father this seems to demonstrate the absurdity of the allegations and the utter improbability of any such thing having occurred. Of course B’s description does lack the logic an adult might bring to the discussion, but I cannot see it the same way her father does since it is also entirely plausible that a child of B’s age might have that perspective and discuss it in those very terms.
There is also the question whether there is some explanation for the statements other than the truth of what is being said. Of course it is conceivable that children can make some relatively innocent statement about something that happened and a parent leaps on it and has the child elaborate it into something else entirely out of deliberate malice and with the intention of bringing a situation not to their liking to an end. I do not accept that happened here. The paternal grandfather’s view seems to fit somewhere into this category but there is no support for that. It is also conceivable that some innocent remark may have been made and the child then encouraged by the parent to repeat and extend it, not deliberately out of malice but from some inherent anxiety about such matters or perhaps over-vigilance for some reason. Again, I can identify no support for this as an explanation. Nonetheless, it is acknowledged that there may conceivably be some explanation other than the events described occurred though it has not come to light.
In the final analysis, when these considerations are weighed in the balance there could not be a positive finding that abuse of the kind alleged, sexual and otherwise, was perpetrated by the paternal grandfather. Given the gravity of the issue, something more than what was presented and the way it was tested here would need to be available before a positive finding could be the result. However, having regard to the child’s statements as discussed, the paternal grandfather’s evidence about anticipating an allegation of abuse of his granddaughter without objective cause, and his elaborate, inconsistent and improbable explanation for holding such a concern all give weight, first, to a finding of risk of harm for this child being in his company and, secondly, the magnitude of that risk is unacceptable.
Best interests
To determine this and the name issue, yet to be discussed, there would seem to be an obligation to canvass the s 60CC considerations but that can be done briefly:
(i)The first of the two primary considerations is the benefit to the child having a meaningful relationship with both parents. The arrangements agreed between the parents will see to that. The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In so far as the evidence relates to the conduct of either parent, the consent arrangements resolve that. In so far as it relates to the paternal grandfather, the finding of unacceptable risk of harm has been discussed and needs no further elaboration here.
(ii)As for the additional considerations –
· The children’s views are not relevant on either issue.
· Their relationships with their parents will be supported by the consent orders providing for them to live with their mother and spend time regularly with their father.
· As for their relationships with others, their relationships with their maternal family will continue as they have. So far as the paternal family is concerned, there has been no contact with B for 2½ years or more, apart from when the interviews with Dr Q occurred in October 2006, and L’s contact has only been on that occasion.
· As for willingness to facilitate the children’s relationships, including with others apart from their other parent, it is accepted that the mother’s resistance to the paternal grandfather having any contact with the children stems from her view that he abused B. There is nothing to suggest her view is not genuinely held; on the contrary, there is every indication she does believe it. On the other hand, the father believes it is not true and there is no reason to question the genuineness of that; it does not diminish his capacity as a parent to meet the needs of his children. It does mean, however, that some cautious consideration would be necessary before he were to be given responsibility for supervising any contact between his daughter and his father.
· There is minimal change for the children involved in either decision on the mother’s proposals.
· Any arrangement permitting contact between the children and their paternal grandfather is likely to lead to further litigation since opinions seem to be so strongly held on each side.
Contact with paternal grandfather
Of course it is recognised that extended family members, more particularly grandparents, can be the source of valuable input into the development and upbringing of children, to their sense of identity and belonging, and to giving them the advantage of a range of family relationships. But of course that assumes the relationship is without unacceptable risk to their well-being and otherwise likely to be beneficial. The finding here is against that so far as it relates to contact with their paternal grandfather. Nor can supervised arrangements be considered appropriate to the situation. Quite apart from the fact that there must be a risk of disturbance to the child from any such arrangement, there is no proposal for it and nor is there any appropriate supervisor nominated as willing to undertake the responsibility. Moreover, the strength of opinion within both families suggests the opportunity for the issue to continue to be agitated in any setting involving the children would be contrary to their interests and that is to be avoided. The children’s primary relationships are with their parents and they are assured under the consent orders.
Orders will issue accordingly.
Name usage
B is registered with the surname of “[Barker]” and it has been agreed L’s record of birth is to be amended to register him under that surname in lieu of “[Ferris]” Both children, however, are known generally in the community by their mother’s surname of Ferris. The question is whether that can continue or whether she must take steps to have them known by their registered birth name of Barker. She did indicate in the course of cross-examination that she would compromise her views by having their surnames registered as “[Barker-Ferris]” but the father did not see this as satisfactory since he believes the “[Barker]” would soon be lost. As he sees it, they should be known for all purposes as “[Barker]”.
The outcome has to be consistent with the best interests of the children overall, taking into account the objects of the Act; namely, ensuring children have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests; protecting children from exposure to physical or psychological harm; ensuring they receive adequate and proper parenting to help them achieve their potential; and ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s 60B(1)]. The principles underlying the objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; a right to spend time on a regular basis and communicate regularly with both parents and significant others; a right to enjoy their culture; and that parents jointly share parental duties and responsibilities and should agree about future parenting [s 60B(2)].
With those matters and the primary and additional considerations in mind, there is a deal of merit in the position put by each parent and there is not a lot of evidence on which to construct discussion. That said, these considerations arise:
(a) The father’s role in the children’s lives and upbringing and their contact with him was interrupted by his term of imprisonment at a crucial period of their development. But that came to an end a while ago and relationships have been resumed and assured for the future through the arrangements now agreed. There is no reason to think those arrangements will not continue as the orders envisage. Therefore, the children will live primarily with their mother and spend time regularly with their father.
(b)The community in which the children have been living and will continue to live with their mother will not include their father, even if his foreshadowed move to Queensland does not come to pass.
(c)The children are known in the community for all purposes by their mother’s surname of Ferris and not by Barker and that has been in place for some time. That situation came about not by their father’s agreement but by their mother’s decision.
(d)The father is anxious to stress the importance of maintaining his family name for the children and he considers they will be confused later in their life when it is time to obtain documents such as driver’s licence and passport where their birth name will be relevant and used for those purposes. Continuation of the current situation can only add to the confusion for them. He also sees potential confusion for them if their mother were to change her surname later in the event of marrige.
The issue is not capable of a solution that is acceptable to both parents. When their proposals are balanced and the children’s interests considered overall, I have come to the view that they should be permitted to continue to use the surname of Ferris as they do now while their birth records will show their surname to be Barker. Even while recognising that this came about at the behest of the mother, it has been in place for quite some time now including during the prolonged period when their father was unavailable. To require them to change the name by which they have come to identify themselves in the community is very likely to be confusing and potentially embarrassing for them. That may be short term after the issue has been confronted at school and elsewhere, that is recognised, and probably the adjustment could be made if it had to be. But having done so, they would be known in the community by a name other than the parent they live there with and that is likely to require ongoing explanation to one extent or another. It is also recognised that when it comes time to obtain formal documents as an adult, such as the father suggested, their name will differ from the name used to identify themselves for all other purposes and he correctly points out that is likely to result in difficulty for them. But that is a matter to be balanced with other considerations and it is a matter they are more likely able to address as adults when that time comes. I considered but rejected the use of hyphenated name of Barker-Ferris; this did not find favour with the father and probably he is right in the view he took of it. Of course the decision to permit continued use of the mother’s surname does not diminish the importance for the children of their connection to their father and lineage on that side of their heritage but their regular contact with their father will serve to reinforce their “[Barker]” identity quite apart from their name usage on a day to day basis.
Ultimately, therefore, I conclude the children’s best interests will be met by permitting the continued usage of “[Ferris]” as their surname.
SCHEDULE OF PARENTS’ AGREEMENT
‘1.….
The children [B] and [L] reside with the mother.
The mother and father have shared parental responsibility for making decisions about the long term care, welfare and development of the children.
That each party have sole responsibility for making decisions about the day to day care, welfare and development of the children whilst in their respective care.
That neither party are to make derogatory or negative remarks about the other parent, their family or their parenting capacity in the presence or the hearing of the children and they must used their best endeavours to ensure that no other person makes negative or derogatory remarks about the other parent or their family in the presence or within hearing of the children.
That within twenty eight days (28) of making these orders the mother does all things and signs all documents necessary to change [L’s] name from [L Ferris] to [L Barker] and to ensure that the birth certificate of [L] is amended to reflect the father's name as [Mr Barker] and forward a copy to the father within (4) weeks of having received such document.
That the mother provide the father with both the children's Medicare number within fourteen days of making these orders.
The mother be able to communicate with the children by telephone at all reasonable times whilst the children are in the father's care.
The father be able to communicate with the children by telephone at all reasonable times.
That both parties inform each other as soon as possible in regards to change of address or phone numbers.
The father spend time with the children as follows:
i) On every fourth weekend from 3.30 Friday until 2pm Sunday;
ii)Christmas Holidays 2008 from 12 noon on 23rd December 2008 until 2pm on 29th December 2008.
iii)Christmas holidays 2009 and each alternate year thereafter from 2pm on 8th January until 2pm on the last Sunday of the school holidays.
iv)Christmas school holidays 2010 and each alternate year thereafter from 3.30pm on the Friday at the end of the last week of the school until 2pm on 8 January.
v)April School Holidays 2009 from 2pm on 18 April to 2pm on 28 April 2009..
vi)July 2009 School holidays from 2pm on 12 July 2009 to 2pm on 21 July 2009.
vii)October school holidays 2009 from 2pm on 3 October 2009 to 2pm on 11 October 2009.
viii)Commencing 2010 and each alternate year thereafter from 2pm on the Saturday in the middle weekend of each of the three school holidays (excluding Christmas holidays) until 2pm on the last Sunday of such holidays.
ix)Commencing 2011 and each alternate year thereafter from 3.30pm on the Friday at the end of the last week of school term until 2pm on the Saturday of the middle weekend of each of the three school holidays (excluding Christmas holidays).
x)On the weekend following [B’s] birthday from 10am Saturday to 2pm Sunday.
Whilst the parties reside within 300 km of each other the father or a member of his family or his partner shall collect the children from the mother's residence at the commencement of the time he is to spend with the children and the mother or a member of her family shall collect the children from the father's residence at the conclusion.
That should for any reason either the children are unavailable to spend time with the father of a weekend or the father is unable to spend time with the children then within 72 hours notice shall be given to the other party and the father and children shall spend time with each other on the next weekend.
If either party moves a distance of more than 300 km from the other party's place of residence then weekend contact shall be suspended and the provisions in these orders so far as school holiday contact shall apply.
Should the parties reside at a distance in excess of 300km from each other then the party who has moved shall bear all transport costs excluding the costs of taking the children to and from the Sydney airport.
That either party shall be able to take the children interstate on holiday provided that they advise the other party of the travel details and provide them with a contact phone number while they are away.
That the mother shall do all things to authorise the children's school to provide the father with copies of school reports and other relevant information concerning the children's progress at school.
That each party shall notify the other if the children fall seriously ill or are hospitalised whilst they are in their care.’
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date: