BAUR & FUHRMANN
[2013] FamCA 957
FAMILY COURT OF AUSTRALIA
| BAUR & FUHRMANN | [2013] FamCA 957 |
| FAMILY LAW – CHILDREN – Parental responsibility – Where there are allegations of physical violence between the parents – Where there are allegations of sexual abuse of the children – Where an order is made for sole parental responsibility – Child’s views – Where the children are 14 years and 12 years respectively – Where the children are adamant they do not want to spend time with the father – Where an order is made that the children spend time with the father at the children’s request. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA, 65D |
| B & B (1988) FLC 91-957 B & B (1993) 16 Fam LR 353 W & W (2005) 34 Fam LR 129 |
| APPLICANT: | Ms Baur |
| RESPONDENT: | Mr Fuhrmann |
| INDEPENDENT CHILDREN’S LAWYER: | Lyrene Wiid Lawyers and Migration Agents |
| FILE NUMBER: | BRC | 4653 | of | 2007 |
| DATE DELIVERED: | 9 December 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 30 and 31 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Selfridge |
| SOLICITOR FOR THE APPLICANT: | McNamara & Associates |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lyons |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lyrene Wiid Lawyer and Migration Agent |
it is ordered by way of final order
That D, born … 1999 and J, born … 2002 (the children) live with the mother.
That the mother have sole responsibility for the major long term issues relating to the children with such issues to include but not be limited to:
(a)the children’s education;
(b)the children’s religious and cultural upbringing; and
(c)the children’s health.
That in the event that the children indicate that they wish to spend time with the father, the mother do all things necessary to facilitate such time including, if necessary, arranging for whatever therapeutic support she determines is necessary to facilitate such time.
That the children are at liberty to communicate with the father by telephone and/or written communication at any time they indicate a desire to do so and, for the purpose of facilitating such communication, the mother ensure that they are provided with any contact details she has for the father.
That the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baur & Fuhrmann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC 4653 of 2007
| Ms Baur |
Applicant
And
| Mr Fuhrmann |
Respondent
REASONS FOR JUDGMENT
These proceedings concern D, born in 1999 (aged about 14 ½ years) and J, born in 2002 (nearly 12 years) (“the children”).
The parties commenced cohabitation in May 1997, married in late 1998 and separated in April 2006. They divorced in October 2007.
The mother re-partnered in about October 2009. She does not live with her partner, Mr W, who resides separately in his own home with his own teenage children. The father is also in a relationship with the partner with whom he does not cohabit. The mother, Mr W, and father all live in the same geographic area. The father and mother’s respective properties are about 10 km apart and, on occasion, the father passes the mother’s residence twice per week in the course of his business.
On 17 September 2009, Barry J made an Order by consent (“the Consent Order”). The Consent Order provided that the parents have equal shared parental responsibility for the children, that the children live primarily with the mother and spend time with the father:
a)from after school Tuesday until before school Monday each alternate week;
b)for half of the school holidays;
c)on Father’s Day; and
d)on their birthdays.
Until March 2011, the children spent time with the father in accordance with the terms of the Consent Order. At that time, the mother alleged that J, then nearly nine years of age, disclosed that the father had touched him inappropriately.
The father was subsequently charged with one count of indecent treatment of a child under 16 years in relation to D and two counts of indecent treatment of a child under 16 years in relation to J.
On 23 March 2011, the mother filed an Application in the Court seeking that she have sole parental responsibility for the children, that they continue to live with her and spend no time with the father. A Notice of Child Abuse or Family Violence outlining that the father had been charged with two counts of indecent dealing in relation to J was also filed.
On 25 May 2011, Federal Magistrate Turner (as her Honour then was) ordered, by consent, that the operation of the Consent Order be suspended pending the resolution of the criminal matter arising out of J’s disclosures. It was ordered that the children live with the mother and spend no time with the father unless agreed between the parties or ordered by the Court.
On 9 November 2011, the charge in respect of which the child D was the complainant was withdrawn. The father was committed to trial in relation to both charges in respect of which J was the complainant.
On 19 April 2012, the Crown informed the relevant District Court that it was no longer proceeding with the indictment for the charges in respect of which J was the complainant. Contrary to the father’s submission, the charges against him were not “thrown out” by the Court - rather, they were not prosecuted.
Save for seeing him ‘in the community’ on occasions, the children have not spent any time with the father since March 2011. The father has, on an occasion, waved to J when driving past his school. He also sent D a birthday card.
The dispute
It is not in dispute that the children will continue to live primarily with the mother. What is in dispute, however, is the manner in which parental responsibility should be allocated and whether, and in what circumstances, the children should spend time with the father in the future.
The mother, who is supported in this respect by the Independent Children’s Lawyer, seeks an order that she have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) for the children. The father seeks that, as was the case pursuant to the Consent Order, the parents have equal shared parental responsibility for the children.
The mother seeks an order that the children not spend any time with their father until they ask to do so and that a “neutral third party” be involved in determining their ongoing wishes about time with their father. The idea of the “neutral third party,” who is also to monitor the time the children spend with the father and facilitate changeovers, comes from a Family Report prepared for the proceeding. The mother also seeks an order that the children communicate with the father by written correspondence and by telephone at their instigation.
In a Response filed on 26 July 2012, the father sought that the children live with each parent in the manner provided for in the Consent Order. However, when speaking with the Family Report writer in October 2012, he reported that having care of the children “maybe Monday to Friday” would be good.[1] As I understood his oral evidence in May 2013, he considered that it would take a little bit of time – possibly as little as a month – for him and the children to regain their previous attachment and relationship. In the circumstances that have arisen here, and where the children have not spent any time at all with him since March 2011, I consider such an approach demonstrates an inability to appreciate and recognise the children as individuals. It also provides cogent support for the conclusions about the father’s attitude to the children reached by the author of the Family Report writer as expressed in the Report and I accept the same.
[1] Family Assessment Report dated 12 October 2012, paragraph 9.9.1.
In summary, the Independent Children’s Lawyer seeks that:
a)the children be at liberty to telephone their father and the mother provide them with a contact number to facilitate this;
b)the children spend time with their father in accordance with their wishes;
c)any requests the children make to spend time with their father be guided and monitored by a counsellor or psychologist so as to ensure their emotional and physical wellbeing;
d)the father attend a parenting course or engage with a psychologist to enable or facilitate the children spending time with him.
The Court is assisted by a Family Assessment Report, dated 12 October 2012, (“the Report”) prepared Ms V, psychologist, (“the Family Report writer”) after interviews which occurred on 8 October 2012.
The Family Report writer did not interview the children with the father or undertake an observation of them interacting with him. She made this decision because:
a)the children told her repeatedly that they did not want to see the father; and
b)she assessed that their anxious presentation was such that there was an associated risk of a negative, and possibly harmful, interaction between the children and the father if the observation took place.
I accept the Family Report writer’s evidence that her decision to proceed in the manner that she did was not based simply upon the children’s initial comment that they did not want to see the father but, rather, followed:
a)her interaction and interview with them;
b)their consistent expressed views that they were adverse to seeing the father;
c)the information they provided to her; and
d)her impression of their functioning.
I also accept that the Family Report writer did not rely, simply, on a single statement made by the children and that, during her interview with them, she “checked in” with them about their stance and told them that she would be present if they spent time with the father. Despite receiving this information, the children remained consistently opposed to seeing the father.
I accept that the main reason the Family Report writer determined not to require the children to see the father was because she thought they would be upset and distressed and that such interaction may potentially have been harmful to them. I further accept that she also considered that forcing time between the father and the children, who were upset and distressed, for the purpose of observation and reporting, would have been unfair to the father.
I also accept that the Family Report writer conscientiously formed the view that any attempt to force the children to see the father would fail.
Principles[2]
[2] See MRR v GR (2010) 240 CLR 461; Cox & Pedrana (2013) 48 Fam LR 651.
In these proceedings, being proceedings for a parenting order (s 64B of the Act) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Family Law Act (1975) (Cth) (“the Act”), make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.
When making a parenting order I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility for them (“the presumption”): s 61DA of the Act. The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4) of the Act.
The presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of the children or another child or family violence: s 61DA(2) of the Act.
The mother told the Family Report writer that her relationship with the father was domestically violent in that:
a)she wasn’t able to go “anywhere” by herself;
b)the father always “put her down”; and
c)the father was occasionally physically violent toward her leaving bruises on her back and head.
Whilst denying the allegation particularised in 26 a) above, the father accepted that he “put her down” on a couple of occasions toward the end of the relationship.
I accept the mother’s account of an incident that occurred in early 2006 during an argument between the parties about money. The father accepted that he might have “bumped” the mother in the legs but I accept that he kicked her in the leg very hard and pushed her completely out of bed. I accept the mother’s admission that, when she got up from the floor, she struck the father with her right hand. The father accepts that he pushed the mother, causing her to fall over. I further accept the mother’s evidence that, after this, the father pushed her to the floor (he says to ‘restrain’ her) and banged her head into it (he accepts that he may have ‘accidentally’ pushed her head into the floor).
The father admits that he pinned the mother to the floor, pushed her in the back to “subdue her” and that she was lying face first on the floor with him sitting on her back. He accepted that he then pushed the mother out of the room. I also accept that, as he did this, the mother’s arm was caught and twisted. It is accepted that the father ‘barricaded’ himself inside the room. When telling the Family Report writer about this incident, the father laughed on the basis that the mother had hurt herself whilst trying to hurt him. Such behaviour demonstrates a lack of empathy to say the least.
I do not accept the father’s account that any injury suffered by the mother during this incident was “basically self-inflicted on herself.” I consider it clear that both parties engaged in a violent interaction.
The father accepts the mother’s assertion that he has been verbally abusive to her on occasions. He said that he has sworn at her over the telephone on lots of occasions, telling her to “fuck off and leave us alone”, when, on one occasion, she called eight to 10 times when the children were in his care.
I accept that, following separation, the father, on occasion, followed the mother around and, initially at least, frequently drove past Mr W’s house once he learned he and the mother were in a relationship.
Whilst the father accepted that he had been named as the ‘respondent’ in multiple protection orders – all of which were expired as at August 2012 and one of which named the mother, Mr W and the children as ‘the aggrieved’- he did not accept that he had acted in the manner alleged in the applications filed in support of the Orders. Given the matters described above, I do not accept his denials in this regard.
I accept the maternal grandfather’s evidence that, on an occasion at “the grid,” the father asked him to fight him and pushed him. Despite the caution I express below about the maternal grandmother’s evidence regarding J’s comment to her, I accept that the maternal grandmother saw the father swear at and instigate physical violence toward her husband.
I am satisfied that there are reasonable grounds to believe that the father has engaged in family violence toward the mother. I am also satisfied that he did in fact engage in family violence toward the mother during the relationship in the manner that she alleges. I find that a reasonable person who was the recipient of this violence and the behaviours outlined above would fear for or be apprehensive about her personal wellbeing or safety.
It follows that the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[3]
[3] Cox & Pedrana (2013) 48 Fam LR 651, [19].
I must determine that which is in the children’s best interests, in terms of both the allocation of parental responsibility between the parents and the time that they spend with the father, having regard to the considerations set out in s 60CC of the Act.
The Act does not define the term ‘meaningful relationship’ nor does it prescribe criteria on which the Court should rely in order to assess how the children’s parents have or should have a meaningful involvement in their lives. In McCall & Clark[4] the Full Court concluded[5] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents.
[4] (2009) 41 Fam LR 483.
[5] Ibid at [19].
Given that it is accepted that the children will live primarily with the mother, the Court must consider and determine whether there is a benefit to them in having a meaningful relationship with the father, such finding not being dependent simply on a lack of danger of physical or psychological harm. If I determine that such benefit exists, then I must consider whether this benefit needs to ‘give way’ to the need to protect the children from physical or psychological harm.[6]
[6] Vigano & Desmond (2012) 47 Fam LR 552, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
Neither child identified anything “good” about the father when they spoke, individually, with the Family Report writer in October 2012. I infer, given that the father’s case contains an assertion that the mother coached or in some way influenced J to make a false allegation of sexual abuse, that the father’s position is that no weight should be placed upon such comments and/or expressions of view.
However, such views were expressed against a history of the children previously having had the opportunity, in the period from September 2009 until March 2011, to live with the father for six nights each fortnight. They have had a significant personal opportunity to experience his parenting of them and to form their views of him. I consider it unlikely that, if the children’s relationship with the father was as strong and ‘good’ as the father perceives it to have been, the mother would have been able to influence them in the manner he alleges that she has. I consider it more likely than not that the children expressed to the Family Report writer the views that they have reached about the father and his parenting following their own personal experiences of the same.
There is nothing in the Family Report writer’s assessment of the children to suggest that their comments did not arise from their own perceptions of their father as a parent. As detailed below, both children reported the father’s approach to dealing with occasions when J wet the bed. I accept these accounts and consider that the father’s response to this issue provides an understandable basis for the children’s resentment and criticisms of his parenting capacity. In addition, D expressed his view of his father’s behaviours as “weird” and “stalking”. Given that the father says that, during periods when the children were in the same room, he would lie naked on the couch under a blanket rubbing his legs, it is understandable that a child of D’s age may come to view such behaviour in the manner he described.
Despite this, albeit with some hesitation, I am prepared to conclude that, on some level, there is some benefit to the children in having a meaningful relationship with the father. I am buttressed in this conclusion by the Family Report writer’s evidence that, whilst she did not support face-to-face time between the children and the father, she did not consider that there should be absolutely no involvement or connection between them.
Given that the Family Report writer recommended that the father maintain a connection with the children via written correspondence, I consider that I am entitled to infer that she identified some unspecified benefit to them of maintaining such connection.
The mother asserts that the father poses a risk to the children which is of such magnitude and effect that it outweighs the ‘children’s entitlement to have a meaningful relationship with both parents’. This risk, asserted to be unacceptable[7], arises from the alleged behaviour outlined in J’s complaint made in March 2011, the impact on the children of exposure to father’s asserted violent behaviour and the impact on the children’s emotional and psychological functioning of having to spend time with the father in circumstances where they are strongly opposed to this course.
[7] M v M (1988) 166 CLR 69 at 78; B and B (1993) FLC 92-357; W and W (2005) 34 Fam LR 129
Where, as here, allegations of inappropriate interaction between a parent and a child or sexual abuse are made, the determination of those orders which are in children’s best interests requires an examination of the evidence relied on in support of such allegations. Whilst it may sometimes be appropriate to make positive findings on the question of abuse – namely, whether on the balance of probabilities a parent has sexually abused a child – it is not the role of this Court to hear cases so as to determine the guilt or innocence of a party.
The Court should refrain from making a positive finding that sexual abuse has actually occurred unless impelled by the circumstances of the particular case to do so. The evidence before me, whilst concerning for the reasons outlined later, does not impel me to make such a finding.
A Court should not, unless satisfied on the balance of probabilities, make a positive finding that an allegation is true. In answering the question of whether the issue has been proven to the Court’s reasonable satisfaction, due regard must be had to the seriousness of the allegation, the inherent unlikelihood of a given description and the gravity of the consequences flowing from the particular finding. ‘Reasonable satisfaction’ should not be produced by “inexact proofs, indefinite testimony or indirect inferences”[8] and proper regard should always be had to other not improbable explanations for events.
[8]It may often be that the Court cannot confidently make a finding that sexual abuse has or has not taken place.[9] It must not be forgotten that the ultimate or primary or paramount consideration is whether a particular order is in the best interests of the children.[10] The existence of allegations of inappropriate behaviour or sexual abuse does not alter this fundamental. The resolution of such allegations is ancillary and subservient to a determination, following an assessment of the relevant statutory considerations, of that parenting order which is in the children’s best interests.
[9] B & B (1988) FLC 91-957.
[10]M v M (1988) 166 CLR 69.
In M v M[11] the High Court noted, at p77:
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access were granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of the child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, would have a detrimental impact upon a child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access cases.
[11]Ibid.
In balancing the risk of harm from abuse and the possible benefit from parental time and communication, the test which remains to be applied, notwithstanding the amendments to the Act which post-dated the decision in M v M, may best be expressed by saying that a Court will not make an order for time between children and a parent if such time would expose them to an unacceptable risk of abuse.
In applying this test, the Court must determine whether there is a risk that sexual abuse will occur and then assess the magnitude of that risk. A decision may then be made in respect of the means by which, if considered appropriate, such risk may be ameliorated. Whilst the imposition of supervision on the time children spend with a parent may sufficiently meet the risk of physical harm, supervision does not necessarily deal with the potential impact on a child of face-to-face interaction with a parent who has abused the child or whom the child believes has abused that child.
The father does not dispute that J made the comments alleged by the mother and noted in records maintained by the Police and the Department of Communities, Child Safety and Disability Services (“the Department”). However, he contends that the child has been “pressurised” by the mother and the paternal grandparents into making such allegations.
In passing I note that, whilst J has previously been assessed, by the school at which he attends, to have severe impairment in his expressive language skills, moderate impairment in his language memory skills and mild impairment in his receptive language and language content skills, such assessment does not, as I understand it, suggest that he has any particular cognitive or memory deficits.
I accept that, in March 2011, immediately upon arriving from the father’s home, J disclosed to the mother that his father had touched his penis. I accept that he was crying when he told her that:
a)he did not want to go back to the father’s house because his father was touching him;
b)the father gets around the house naked hanging onto his penis; and
c)the father touched his (the father’s) penis and put his hands down J’s pants.
It is not disputed by the father that the children have seen him naked on occasions. He accepts that they may well have seen him drying himself, including his penis, after showering. He denies that he ‘gets around’ hanging onto his penis or that he has ever put his hands down J’s pants and touched his penis.
Until the maternal grandmother was cross-examined, it appeared that the occasion referred to above was the first occasion on which J had made any allegation about the father engaging in inappropriate behaviour. However, during her cross-examination, the maternal grandmother said that, prior to the mother telling her (in about March 2011) that J had made allegations about the father, J told her about the father putting his hands in his underpants and playing with his “little bits”. She said that he “just came out with it” around the kitchen table – she didn’t think anyone else was present.
The maternal grandmother remarked that the children had previously spoken of their father being naked around the home. She expressed that her view was that this was not “anything to worry about”. She could not remember telling the mother about J’s comments to her, explaining this omission on the basis that she had “imagined” that J had told his mother about this before her. She said that she did not notify the Police or the mother because it was not “ up to her” at the time. For a reason she could not now remember, she thought that that the mother was aware of J’s comments before she was.
When asked why this startling information was not in her affidavit material, the maternal grandmother said it was because no-one had asked her about it. She said that the Police did not speak to her in 2011. She denied that she had fabricated this event.
I approach the maternal grandmother’s evidence about this with significant caution. I find it difficult to accept that, in circumstances where she was aware that J had told the mother of the father’s inappropriate behaviour toward him, she would not raise this earlier disclosure with either the mother or the Police.
I accept that mother believes what J told her is true because of his upset at the time of making that comment. I also accept that J told and has continued to tell her that he does not want to go back to the father’s house. I accept the mother’s evidence that J has not lied about ‘the serious stuff’. Whilst the mother and Mr W both gave evidence that J has, in the past on occasion, lied about things, I accept their evidence that such lies have been about things like doing his homework or jobs around the house – matters in respect of which it has been easy to ‘catch him out’. In contrast, he has been consistent over time in recounting to the mother, Police, the Department and the Family Report writer that his father touched him on the penis or ‘private parts’.
When the mother took J to the P District Child Protection and Investigation Unit on 8 March 2011, she told the Police that he told her the previous evening that he did not want to go back to the father the following week because he (the father) had been touching him on the private parts.
The Police interviewed J on 8 March 2011. He told them that:
a)the father had been putting his hand down his pants and playing with his penis for about the last year;
b)the last occasion had occurred when he last stayed at the father’s house and he was sitting in the lounge room watching television;
c)the father came and stood next to him and then put his hand down his pants and underwear and then played with “it” by shaking around;
d)he told his father to stop and then got up and went into his room;
e)his father later came into his bedroom naked but nothing else happened;
f)there had been occasions when, as he was playing pool, the father stood next to him put his hands down his pants and underwear and played with his penis; and
g)his father had done this on many occasions when he was in the lounge room and on a few occasions when he was in the pool room.
The father said that, on one occasion, he was naked when he carried J into his (the child’s) bedroom. He described that this happened in summer when he slept in the nude and that, after the boys had fallen asleep on the lounge, he carried J into his bedroom. At some point J woke up and saw him naked. It follows, I consider, that, insofar as J told the Police about his father being naked on an occasion in his (the child’s) bedroom at night, he was honest and accurate.
J also told the Police that he had not said anything about this before because he was embarrassed to tell his mother. He said that he told her the night before because he knew that his brother would soon be able to choose not to go to the father’s anymore and he did not want to go there alone.[12]
[12] Magellan Report dated 10 July 2012.
I record that, prior to the March 2011 disclosure, the Department had received a number of complaints about the care provided to the children by the father. One of the concerns, reported in late January 2010 was that “[J] is sad and withdrawn before he goes to stay with the father”. Further, on 3 March 2010 the Department was informed that whilst J “has not disclosed being harmed in his father’s care however has started wetting the bed for the last two weeks.”
The mother denied the assertion, put to her by the father, that she had told J that, when D turned 12, he was not going back to spend time with the father.
Given the consistency and detail of J’s complaints, I am not persuaded that, even if the mother told J this, it provides a reasonable or plausible alternative explanation for J to make the disclosure in the terms and manner that he did. The comments recorded by the Police are to some extent detailed and specific. They distinguish between locations in which it is alleged that events occurred.
Consistent with his presentation at trial, when the Police spoke with the father, on 13 March 2011, he said that J had been “put up” to the allegations by the mother and her parents because they were trying to destroy him and stop him from seeing the children. Whilst there had been complaints to the Department on various occasion about the level or manner in which the father was caring for the children, some of these pre-dated the Consent Order. I consider that, had the mother been focused upon preventing the father from seeing the children, it is highly unlikely that she would have agreed to a shared parenting regime in which the children spent time with the father for six nights per fortnight as was provided for in the Consent Order.
On 23 May 2011, J spoke with Departmental officers. He said that he had been touched inappropriately by the father in the groin area over a period of a year. This is consistent to some extent with the information he had previously provided to the Police. He told Departmental offices that he didn’t like his father at all, doesn’t feel safe around him and that he (the father) makes him feel angry.
At or around the same time, Departmental offices interviewed the Principal of the children’s school. She said that J had been very “unstable emotionally” (which she believed was affecting his learning ability) and that he presented with a number of “behavioural indicators” that he had been in some way harmed: namely, that he was always withdrawn and quiet, sometimes close to tears and could seem upset or confused. This description of the child’s presentation was consistent with that noted by Departmental officers at interview.[13]
[13] Magellan Report dated 10 July 2012.
The Department recorded an outcome of “Substantiated Emotional harm caused by sexual abuse” following its conclusion that J had experienced sexual abuse as a result of being touched inappropriately by the father over a “lengthy” period of time. The Department assessed that J had experienced detrimental harm which had an impact on his emotional well-being and psychological health as indicated by his observed behaviour and mannerisms.[14]
[14] Magellan Report dated 10 July 2012, page 5.
As at about the end of May 2011, the Department concluded that the children would be placed at an unacceptable risk of being harmed if they were to spend time with the father. Such conclusion was arrived at following the children having been interviewed by the Police and the Department.
The father contests the Department’s conclusions, noting that he was not interviewed by Department officers. It is trite to note that I am not bound by the conclusions reached by the Department but must undertake my own assessment of the allegations in the context of my primary focus of determining those parenting orders which are in the children’s best interests.
The Police interviewed D on 20 March 2011. He told them that the father walked from the shower through the house naked and “plays” with his “bits” – when asked to explain what he meant he said his “dick”. As noted above, the father accepts that he walked from the shower through the house naked. D also said that, when he and J were present in the lounge room, the father would sit in front of the television underneath a blanket, naked, and play with his “bits”. I understood the father’s evidence to be that he often lay naked on the lounge under a blanket in front of the television, rubbing his legs up to his groin, while the boys were in the room. He denied any allegation that he played with his “bits”, saying instead that he was rubbing his legs, including to the groin because they were very sore and aching. As the father was under the blanket, it is quite possible that, given his own account of rubbing “including to the groin”, to the children, the father was playing with his ‘bits’.
D told Police that “it” happened almost every day during their last visit to the father and that he did not want to go back to his father’s home because of “it” and hated being there.[15] It seems to me that, given the father’s evidence that this behaviour occurred ‘often’, Dl provided a reasonable description of the frequency of the father’s behaviour.
[15] Magellan Report dated 10 July 2012.
Toward the end of the interview, D said that he knew that J had been touched by the father. When asked to elaborate, he said there was a photo where the father could be seen touching J’s groin area and that J had told him that the father had touched it.
This becomes relevant because, on 20 January 2012, following the pre-recording of J’s evidence, D was asked to identify the photo he referred to in his interview. The photograph he identified is a family portrait which shows the children sitting on their parents’ laps – the father’s hand, palm against the child’s stomach, rests on J’s leg. Whether it might be arguable that a child of D’s age might describe that which is shown in the photo as the father touching J’s “groin area”, such interaction is in no way sinister.
Following this, the Crown determined not to proceed with the charges in which J was the complainant. However, there is nothing in the evidence before me to suggest that J was asked to undertake the same exercise as D did.
In any event, the fact that the matter was withdrawn and did not proceed to trial is simply another part of the evidence before me. The fact that the Crown decided, for whatever reason or reasons, not to proceed to trial with the matter does not mean that a positive determination was reached about the substance of the allegations nor does it, I observe tritely, mean that there was a positive determination that the allegations were unfounded or that they were, as the father told the Family Report writer, “utter bullshit”. It also does not mean, in a strict sense and, contrary to the father’s assertion, that the charges were ‘thrown out’ of Court.
D told the Family Report writer that he did not see his father touch J and reported that his father had not touched him (D). He reported that the father would be naked and “he would fiddle with himself”. He denied that his father had an erection or ejaculated on these occasions.
The father accepts that, on occasions, the children have seen him naked in his own home. They have seen him drying himself, including, on occasions, his penis, with a towel as he walked from the bathroom to where the pool table is situated in the home. His own evidence, therefore, places him naked in the vicinity of the pool table.
The father denied emphatically ever touching J or grabbing his penis. He was not interviewed by officers from the Department – perhaps unsurprisingly given that he had been, or was about to be, charged with criminal offences.
I have some reservations about the father’s veracity. I reach this conclusion because, in his affidavit filed 18 February 2013, the father said[16], referring to the 18 months prior to March 2011, that “I do not recall him ever wetting the bed.” However, during cross examination, he said, in referring to the 12 months prior to March 2011, that J wet the bed on three maybe four occasions whilst he was in his care. In attempting to explain away this disparity in his evidence, the father said that that which is contained in his affidavit is probably a “slight slip of the tongue”.
[16] At paragraph 6.
I accept the Family Report writer’s evidence that, in cases like the present, the possibility of coaching by a parent always needs to be considered. I further accept her evidence to the effect that there is no clear evidence to suggest that the mother has in any way coached J to make the disclosure he made in March 2011. Whilst the Family Report writer concedes that it is “certainly possible” that J has been coached and/or pressured and/or influenced by the mother to make the allegations, there was nothing in his presentation during interview to suggest that this had occurred. J denied being coached, as did D.
I accept, because it seems logically consistent to me, that, when a child (or any other person) is sharing the view or story of another person, it is unlikely for the child (or that person) to be able to be consistent over time in both the telling and in the emotional response or behaviour demonstrated during the recounting of the event. I accept the Family Report writer’s evidence that J’s emotional reactions during his relaying of events to her appeared to be congruent with harm.
The Family Report writer expresses the opinion that it would be unlikely for children of the ages of these children to “maintain consistent allegations” since March 2011 “along with the congruent emotional symptomology in [J’s] case” if they were simply repeating false allegations. I accept that it is likely that, if J had been coached to make false allegations of sexual behaviour by the father, his narrative would be inconsistent and incongruent. I accept that Family Report writer’s evidence that this was not the case during her interview with him.
The mother said that J had never said anything like that to her before and that neither of the children had displayed what she regarded as sexualised behaviour. I accept her evidence in this respect. She denied coaching or training J to make the disclosure. I accept her evidence in this respect, again noting the consistency of J’s repeated disclosures to persons other than the mother.
I accept the mother’s evidence that J gets emotional when he talks about the allegations and upset if he sees the father. I accept that she believes what the children have said, at least in part because of J’s presentation to her, and that what they have said is true. Consequently I accept her evidence that she believes the father to be a “paedophile”.
J told the Family Report writer that the worst thing about the father was “he touches there” – he pointed to his genital area and confirmed that he was referring to his penis. J told the Family Report writer that the father had touched his penis whilst he was at his father’s home and that this had occurred on multiple occasions. He said sometimes his father was clothed and sometimes he was not. He said D was not present. He described the father “grabbing” his penis and reported this made him feel “angry” and “sad”. He didn’t know whether the father had an erection or had ejaculated because “I didn’t look, I looked away”. He denied that the father made him touch his (the father’s) penis or anyone else’s penis.
The mother’s case also advances that the children will be at an unacceptable risk of harm if exposed, in the future, to the father’s verbal abuse in the manner that has previously occurred to her. She told the Family Consultant in March 2008 that the father had a “short fuse” and that there had been a lot of emotional and verbal abuse in the relationship. She further acknowledged that the children, particularly D, would have heard their parents verbally arguing at times.[17]
[17] Exhibit 1.
Whilst the mother advances that there is a history of domestic violence between the parties and that the children would be at risk, because of this, if they spent time with the father, there is no specific evidence of the children ever being physically harmed by the father whilst in his care. The mother provides no evidence whatsoever of any comment by either of the children to suggest that they have been the recipients of physical abuse from the father. Further, the mother entered into the Consent Order in the full knowledge of the father’s behaviours.
Given the Family Report writer’s assessment of the mother – which I summarise as being that she is a caring and capable parent who is focused upon ensuring that the children are protected from risk – and the mother’s actions in acting immediately to report J’s allegation of abuse to the relevant authorities, I consider it unlikely that the mother would have agreed to the terms of the Consent Order if she genuinely considered that the children would be at risk of physical harm in the father’s care.
On the evidence before me, I am not persuaded that the children would be at risk of physical harm if they were to spend unsupervised time with the father.
The consistency of J’s disclosures to the mother, Police, the Department and the Family Report writer leaves me with a sense of unease and disquiet. Whilst the father asserts that the mother has in some way influenced J to make the disclosure, I note that the observations of the school Principal support the mother’s evidence that the child was experiencing some disturbed behaviours. Given the significant concerns which I hold about the father’s behaviour in lying naked under a blanket in the lounge room while the children were present, the consistency with which J has maintained that his father touched him inappropriately, including in the manner conveyed to the Family Report writer, and the emotional congruence he has demonstrated whilst recounting this, I am persuaded that the children would be at an unacceptable risk of, at the very least, continued exposure to behaviour which demonstrates an lack of appreciation of proper parenting boundaries if they spent time with the father on an unsupervised basis.
Even if I am wrong in the conclusions I have reached about the harm and level of risk to which the children may be exposed should they spend time with the father on an unsupervised basis, the strength of their adverse views about the father, as expressed to the Family Report writer in October 2012, is such that it mitigates strongly against an order being made compelling them to spend time with him.
I accept the Family Report writer’s evidence that given her experience in working with children she was very ‘alive’, at the time she conducted the interview with the children, to the idea or possibility of coaching or the children being subjected to pressure to express a particular view. I further accept that they expressed their perceptions, views and wishes to her and that these were not unduly influenced by the mother or others. I accept that both children expressed similarly robust views about not spending time with the father but that D was more open to the idea of non-direct (face-to-face) interaction.
I accept that it is unlikely that, in expressing their views to the Family Consultant, the children were influenced by any perceptions of loyalty to Mr W. I accept the Family Consultant’s evidence that, whilst the children liked him, they did not necessarily view him as a father figure because, given that he does not live with them and has not played the role of a “day to day” father figure.
I further accept that, contrary to the father’s perception of the children’s reaction to spending time with him prior to March 2011, the children presented to the Family Report writer that they weren’t particularly happy or enjoying time with the father before it stopped.
When spoken to by the Family Report writer D, who presented as a friendly child, reported his mood to be “anxious”. This was considered to be consistent with his presentation. He described his mother as “trustworthy” and considered that there was nothing “bad” about her or Mr W.
D told the Family Report writer that he and J did not spend time with their father because he did “weird stuff” such as “being naked on the veranda” and “touching [J]”.
D said that he couldn’t remember anything “good” about the father and reported that he sort of stalked people. He told the Family Report writer that the “best possible outcome” would be that he and J remain living with their mother and not have any time with the father. When asked to explain his rationale he replied it was because his mother is a great person and the father is not.
When asked by the Family Report writer what it would be like if a decision was made that he and his brother have occasional contact with the father via telephone or letter writing he said that he “wouldn’t mind” this. He did, however, state that he did not wish to have face to face time with the father.
When asked what it would be like if an order was made that saw a return to the care arrangements which predated March 2011, D said that he didn’t want to live with the father either part-time or full-time and that “it would be worse than before”. He said he did not want the father as a father figure.
The Family Report writer considered that J presented in the same manner as D: friendly but reporting an anxious mood which was observed to be consistent with his presentation. He appeared sad and anxious when discussing his alleged history of abuse and the parenting options. He described his mother as “caring” and Mr W as “very helpful”.
The Family Report writer observed that the interactions between the children, the mother, Mr W and the maternal grandfather were appropriate and warm.
J told the Family Report writer that he felt worried about seeing the father, stating that if he does see him “I want to get out, I don’t want a look at him”. He, too, reported that there was nothing that was good about the father. When asked how he would feel if he was not required to spend time with the father he said he would be “speechless” and smiled broadly. He said that he did not want to have telephone contact with the father and whilst he initially reported that receiving letters and cards from him would be “okay because I could throw them in the bin” he then said “actually, no, I don’t want that.”
J further reported that he did not want to have any face-to-face time with the father, stating that this would be “terrible, just being near him”. He said that “it would be terrible, I couldn’t put up with it” when asked what it would be like if there was a reversion to be pre-March 2011 care arrangements.
As I understood his evidence, the father accepted that the boys were expressing strong views that they did not want to spend time with him. He considered that they were doing so because they were acting at the “will” of the mother and maternal grandparents.
I do not accept, as was suggested by the father, that because, in March 2008, J told the then Family Consultant that “Mum’s the boss and she makes the rules”, means that, when the children spoke with the Family Report writer in October 2012, they were simply repeating the mother’s views.
I accept the Family Report writer’s opinion, based on her interaction with the children, that she did not believe that their expressed opinions, views and wishes were those of other people.
I accept that the views expressed by the children to the Family Report writer were– inasmuch as any person’s view can be regarded as such - their own. I further accept her evidence that the views and wishes expressed by them were more reflective of their own personal views and wishes than amounting to them “parroting” some other person’s views.
I also accept her evidence that therapeutic intervention for the purpose of recommencing the children’s face-to-face time with the father would be counter to the clear views expressed by the children about what they want to occur and why. The Family Report writer expressed the opinion that the children’s perceptions should be listened to and, for this reason, at least in part, she would not recommend therapeutic intervention designed to reintroduce the children to the father.
I accept the Family Report writer’s evidence that the children’s views were clear and that, having considered the questions posed to them, they gave clear, considered and well thought out answers. I further accept that the children were definite and clear in their expression that they did not want to have time with the father. I consider that significant weight should be accorded to these expressions of view given that the children speak from the experience of living with the father for six nights per fortnight in the period from September 2009 until March 2011.
Further, given the children’s ages, the proximity of the parents’ residences, the diminutive size of the community within which all parties live, the father’s relatively regular travel past the mother’s property and the fact that the mother works until about 5.00 pm each afternoon, it cannot be concluded other than, if the children wanted to spend time with the father, they could easily have acted to ensure that this occur.
While the father relies upon the observations of friends that, on occasions when they had the opportunity to observe the children’s interactions with him, the children presented as happy, enjoying his company, interacting with him in a jovial manner,[18]it is clear, from the contents of the Family Report, that the children do not now share such perceptions.
[18] See the affidavits of Ms Q, Ms H, Ms M and Mr R.
Given the comments the children made about the father to the Family Report writer, it is easy to accept the evidence of the maternal grandfather and the mother to the effect that the children have not said anything positive about their father.
Before March 2011, the father paid half of the costs of the children’s school books, purchased some school uniforms and, of course, was responsible for meeting their needs whilst they lived with him. Insofar as it is relevant to consider the parties’ current respective contributions to the children’s financial support, the evidence establishes that, over the last two years, the father has contributed no more toward their financial support than he has been assessed by the Child Support Agency to pay. At present that is about $31.00 per month. Save for this, the mother meets the totality of the costs of supporting the children.
The mother told the Family Report writer that J was “happy at home” since time with the father has ceased. She reported that, unlike the case when he was spending time with the father, he now experienced nocturnal enuresis only occasionally. The mother reported that, from her perspective, D also was “generally happy” since not having time with the father.
The mother considers that if an order is made requiring the children to spend time with the father it will “set them back a long way, especially [J].”[19] I accept that she believes that if J was forced to spend time with the father he would not “handle it very well”.
[19] Family Assessment Report dated 12 October 2012, paragraph 6.9.2.
The maternal grandparents both believe J’s allegations about the father. Because of this, both consider that the children will not be safe if they spend time with him. The maternal grandparents have historically spent a significant amount of time caring for the children and continue to do so. If an order is made requiring the children to spend face-to-face time with the father, they will live with the mother who believes that they are being exposed to harm during such time and will continue to be cared for on occasions by their grandparents who hold the same view.
I accept that the Family Report writer has accurately and honestly set out the comments made by both children to her about how they would feel if they were required to spend time with the father. Neither wants it and both strongly oppose it.
I accept the Family Report writer’s evidence that, if a decision is made for the children to have face to face contact, she anticipated their functioning would deteriorate from the time they learned of that decision. I accept that the children would feel that they were not listened to, would be unhappy and feel unsafe and that it is reasonable to expect their emotional and behavioural functioning to deteriorate across all aspects of their lives.
I accept the Family Report writer’s evidence that the father perceives that there are no issues or difficulties in the children spending time with him now that the charges have been withdrawn. Given this and his view that there would be “no problem” once everyone got used to the children resuming spending time with him, it is highly unlikely that the children would receive an empathetic or insightful response from the father to assist them in managing any reintroduction of time.
I note also that, if J spends time with the father, he will spend time with a parent who believes he is a “liar who lies regularly.” Exposure to such a view is unlikely to be beneficial to J’s functioning and/or development.
It follows from the above that I accept and find that a mandated reintroduction of face-to-face time between the children and the father will, more likely than not, result in a deterioration in their overall functioning. Given J’s educational difficulties, as outlined in Ms U’s report[20] such a consequence would be even more significant for him than it may be for D.
[20] Exhibit 4.
As the parties live in the same geographic area and, prior to the disclosure in March 2011, had implemented a shared parenting regime, there is no practical impediment (be it expense or otherwise) to the children spending time with the father if they seek him out. Nothing of a practical nature would substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis.
In about May 2011, the principal of the children’s school told Departmental offices that the children seemed a lot more settled when with the mother[21] - she had no concerns for them in their mother’s care. Consistent with this, the mother demonstrated a sound understanding of the children’s functioning and emotional world to the Family Report writer in October 2012 and also demonstrated a capacity to acknowledge both positive and negative experiences with the children.
[21] Family Assessment Report dated 12 October 2012, paragraph 9.4.2.
I find that there are no concerns as to the mother’s functioning and capacity to parent the children safely and appropriately. I accept the Family Report writer’s evidence and find that there are no significant concerns about Mr W’s capacity, in his role as the mother’s partner, in a safe and appropriate manner.
In speaking to the Family Consultant in March 2008, the father did not perceive that there had been conflict in his relationship with the mother. Like her, he did not appear at that time to understand the impact of parental conflict on the children.[22]
[22] Exhibit 1.
I accept the Family Report writer’s evidence that, during interview in October 2012, the father demonstrated “limited understanding of the children’s functioning and emotional world” and that this was consistent with his reported parenting style and recent lack of interaction with the children. I also accept that he demonstrated a limited capacity to acknowledge both positive and negative experiences with the children whilst they were in his care.
The mother told the Family Report writer that J had told her that, when he experienced nocturnal enuresis when at the father’s home, the father did not change the sheets. D and J both confirmed this account when they spoke with the Family Report writer individually. I accept this evidence.
The mother also told the Family Report writer that the children had told her that there was minimal food made available to them whilst they were in their father’s care. The father acknowledged to the Family Report writer that he had provided “minimal food” to the children for school lunch as “they didn’t need it”.[23] The father relied upon the evidence of Ms C, who taught J in 2011 and who had no concerns about his presentation at school or the adequacy of his lunch provisions. I accept this evidence and consider that any concerns about the manner in which the father met the children’s nutritional needs whilst in his care would not of itself persuade me to order that their time with him be supervised or that they spend no time with him unless they indicate a desire to do so.
[23] Family Assessment Report dated 12 October 2012, paragraph 9.4.2.
The mother told the Family Report writer that, on occasions when she has seen the father in the local community since March 2011, he “mocked her” (by mimicking her behaviour) and commented that she is “fat”, “ugly” or a “loser.” The father accepts that he has mimicked the mother’s behaviour in public.
The mother also reported that wires at the property had been cut and wound together, and the car keyed – she clearly thinks the father is responsible for this but had no evidence to support this contention.
I accept the mother’s evidence that, if she were persuaded that the children were “safe” in the father’s care and it is what they want, they should have some sort of relationship with him. There is no suggestion that, prior to the March 2011 allegation being made, the mother failed to comply with the terms of the Consent Order.
On an unspecified date at some time before March 2011, both parents were asked by school staff to leave school grounds because they were having a physical tug-of-war over the children. Whatever the cause, this behaviour reflects poorly on both parents and is a credit to neither.
More recent evidence establishes that the mother intends to make every effort to ensure that the children receive the benefit from as high a quality of education as can be provided. I further accept that she assists J, in particular, with his academic endeavours. She has, by her actions, demonstrated significant commitment to ensuring that the children are assisted to achieve their potential.
In refusing to provide the children to spend time with the father after the disclosure in March 2011, the mother acted as recommended by the Police. I consider that she was, and has been, motivated to act protectively toward the children.
Given the mother’s evidence about J’s disclosures to her, it is understandable that the mother has not been supportive of the children’s time with the father. Unfortunately she has, through calling him a “paedophile” in a public place whilst the children were present, also demonstrated an inability to contain the expression of negative perceptions about him.
Mr W forthrightly told the Family Report writer that he didn’t like the father. In part at least, he appeared to base this view on matters he had been told such that the father had allegedly previously spat at the maternal grandmother and physically assaulted the maternal grandfather. He also reported that the father had followed his children to school which from his perspective was “not intimidating, just annoying”.[24] I accept that he is unlikely to support the children spending time with the father in the future unless the children themselves express a desire to do so.
[24] Family Assessment Report dated 12 October 2012, paragraph 7.6.1.
The maternal grandfather and maternal grandmother, who have been involved in caring for the children after school while the mother works for a couple of hours, both say that they have no reason to not believe what the children have said about the father. I accept the maternal grandfather’s evidence that, when J spoke to him “quite a while back” about the father, it was not in a positive sense. Again, I conclude that it is unlikely that they will support the children spending time with the father unless such request emanates from the children themselves.
The father told the Family Report writer that if the children remained in the mother’s full-time care “they won’t learn right from wrong”. Such comment clearly displays the father’s inherent view of the mother’s incapacity as both a person and a parent. I accept that he generally holds negative views about the mother’s psychological functioning, motives, extended family and their relationships and interrelationships and her historical parenting skills. I accept that he has, by his acknowledged actions in mocking the mother in a public setting whilst the children were present, demonstrated an inability to contain his negative perceptions of her and that such behaviour is indicative of an incapacity to consider and appreciate the emotional impact on the children of exposure to such views.
The mother has considered, albeit without notification to the father, the prospect that the children change schools and attend at a private school in the future so as to provide them with what she understands and perceives to be additional educational opportunities. I accept that such action is intended to ensure, as best she can, that the children are provided with every opportunity to succeed academically.
The father said, during his cross examination, that he would not ever force the children to do something that they “did not want to do”. However, when challenged that they have clearly and forcefully continued to express that they do not want to spend time with him, it is clear that the father does not believe that it is the children’s “will” that they do not want to see him but rather that they are expressing their mother’s views and desires. I consider it is highly unlikely that the father would ever accept that the children do not want to spend time with him.
The father considers that the maternal grandparents have far too much influence on the children. He did not think it a good thing that the children have a relationship with them, considering that this had done “miles more harm than good”. Accepting as I do that this involves a degree of speculation, the expression of such an attitude is, perhaps, one of the reasons behind that the children’s view that they do not wish to spend time with the father. Further, exposure to such a view in the future is unlikely to be beneficial for the children.
A Protection Order was made on 18 August 2006 and varied on 30 July 2007. A further Temporary Protection Order was made on 3 June 2009. After that date a Protection Order was made in the local Magistrates Court. This order expired on 2 July 2011. I do not intend to repeat those matters relevant to the issue of domestic violence which have been outlined above.
If the Court makes an order that the children’s parents are to share parental responsibility for them and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by their parents: s 65DAC(2) of the Act.
As long ago as March 2008, the Family Consultant who prepared the Children and Parents Issues Assessment noted that:
a)neither parent perceives the other in a favourable light, and they are both critical of the other in regard to certain aspects of their parenting;
b)both parents willingly blame the other for the ineffective communication and appear unwilling to look at what part them [sic] may both play in the apparent breakdown in communication.[25]
[25] Exhibit 1.
All communication between the parents broke down in March 2011. The mother and the father have minimal contact. At the local show in June 2012, the father ‘mocked her’ by making a face at her and mimicking her walk. While “laughing loudly,” the father corroborated this account to the Family Report writer. The mother has previously called the father a ‘paedophile’ at the local shops. The father told the Family Report writer that the mother was “lucky she is not up on charges” as a consequence of this behaviour. I accept that this comment accurately represents his opinion.
As mentioned above, the mother told the Family Report writer about matters – such as wires being cut and the car being keyed – which had happened on her property and insinuated that she thought the father responsible for these things. She gave evidence that she thinks the father was responsible because he follows her and “likes causing me pain and suffering”. In a similar fashion, the father believes that the mother or her household is, in some way, responsible for events on his property. That both parties believe these actions originate with the other, in the absence of any proof, is a clear demonstration of the complete absence of trust between them.
The mother sees nothing positive in the father’s parenting. Even exclusive of the March 2011 allegation, she considers that he is not a good “father figure” to the children because he places his interests and needs (for example taking them to tennis until late at night on a school day) before theirs.
In a similar manner, the father did not have much of a positive nature to say about the mother as a parent: she cooked and cleaned for the children and “very little else”. No more needs to be expressed to demonstrate the degree of his antipathy for her than to record that, despite the children living with the mother for the majority of time, he described her actions in taking J to cricket as her “finally doing something for them rather than for herself.”
The father believes that the mother has coached or influenced J to make the disclosure. He told the Family Report writer that when he sees the mother he ignores her. I accept that he also ignores Mr W. When asked how both parents would communicate in the future about the children, the father responded by saying that it would be a struggle and that, if the mother realised that the children needed both parents, “it” could happen. Such comment demonstrates an inability to accept any responsibility for difficulties in communication between the parties.
Both parties have previously applied for and, in the mother’s case, obtained protection orders naming the other as respondent. Both consider that the other has harassed and intimidated the other for a number of years. The evidence clearly establishes that the parties cannot communicate at all and there is no real prospect that this situation will change in the foreseeable future.
I am not satisfied on the evidence before me that the children’s parents could now make decisions about major long term issues in relation to them ‘jointly’. They could not, I consider, carry out the obligation imposed on them by statute.
Consequently I am satisfied that it is not in the children’s best interests that their parents have equal shared parental responsibility for them.
The mother will continue to be the children’s primary care provider. Since March 2011 she has been completely responsible for making all decisions in relation to the children. I accept that she will continue to focus significantly upon making decisions designed to ensure that the children are afforded the greatest prospect of maximising their respective potentials. She clearly has the confidence of the children, both of whom can identify no shortcomings in her parenting of them. For these reasons, I am satisfied that it is in the children’s best interests that their mother has sole parental responsibility for them.
Given the ongoing hostility of the parents and their mutually critical views of, and antipathy toward, each other, there is no utility in requiring the mother to seek, and then consider, the father’s views about major long term issues relating to the children before making such decision. Should there be any doubt about this conclusion, on the father’s evidence, such input would not be listened to “in the least” by the mother.
The Family Report writer recommends that the children do not spent time with the father. I accept her evidence. I consider that it is not in the children’s best interests that an order be made compelling them to spend time with the father. I have already determined that the children would be at an unacceptable risk of harm if they were to spend unsupervised time with the father. I have found that such an order would be contrary to their strongly expressed and consistent views, based on their own previous experiences of being cared for by the father.
Whilst it did not form part of any party’s submission, I also consider that supervised time would carry with it certain risks also: namely that, given the children’s strongly expressed and consistent desire not to spend any time with the father, such an order would convey to them that their views have not been listened to – even where they spring, as I have found them to, from their own experiences. Further, particularly in J’s case given his comments to the Family Report writer, but not limited to him, even supervised time is likely to have a destabilising and detrimental effect on the children’s overall functioning, a matter which I do not regard as being in their best interests.
As previously expressed, I accept the Family Report writer’s recommendation that therapeutic intervention not be used for the purpose of recommencing the children’s face-to-face interaction with the father. As I understood her evidence, it would be beneficial for the children to receive such therapeutic support if they seek, in the future, to interact with the father. Such a process seems likely to be helpful as it would provide the children and the parents with an opportunity to “check in” about how that process was proceeding.
Given my determination about the allocation of parental responsibility for the children, as outlined above, I consider it proper that no specific order be made about what therapeutic support should be provided to the children in the event that they seek to spend time or interact with the father. The mother, as the parent with whom the children live and with whom they have a close and trusting relationship, will be best positioned to determine what support is needed and from whom it should be provided in that event.
The Family Report writer accepts that incidental contact between the children and the father is likely given that the children and the parents all live in a proximate geographic location. I agree and consider that this reality is likely to provide the children with an opportunity, should they seek it, to recommence their relationship with the father. They should, I consider, be made aware of any change to the father’s contact details known to the mother so that they can communicate with him if they so desire.
Whilst the Family Report writer recommended that the father be permitted to engage in written correspondence with the children, I take into account J’s expressed desire not to receive such communication in determining that this is not in his best interests. Whilst D presented as more open to receiving written communication from the father, I consider that there are other means, such as the telephone, available to him to initiate interaction with the father if he so desires it and that it is preferable that J not be exposed indirectly to such communication as would be the case if such correspondence was received at the children’s home.
I have considered making an order restraining the father from contacting the children unless they initiate contact with him. However, the proximity of the parties means that there may well be a relatively high risk of incidental contact and inadvertent breaches of such an order and the potential litigation associated with this could not be seen as being, in any way, beneficial to the children.
The Independent Children’s Lawyer sought an order that the father attend at a parenting course or engage with a psychologist to enable or facilitate the children spending time with him. This recommendation was contained in the Family Report in October 2012. The father has not done a parenting program because, as he sees it: he doesn’t agree with it, doesn’t need it and does not have a problem raising children. In such circumstances, there is little utility in compelling the father to attend a parenting course and I decline to make such an order.
In case it may be of assistance in the event that the children, or either of them, express a wish to spend face to face time with the father, I record that the Family Report writer’s evidence was to the effect that, in that event :
a)time between the children (or child) and the father occur quite gradually and for a short period of time initially so as to maximise the likelihood of the children continuing to seek to engage with the father; and
b)contact should not originally be lengthy because it would be much less likely to succeed given that it would occur in a context different to that which pre-dated March 2011; and
c)it may be beneficial for a neutral person to facilitate change over so as to maximise the prospects of the time occurring successfully.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 9 December 2013.
Associate:
Date: 9 December 2013
M v M (1988) 166 CLR 69, 76 citing Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336,
362.
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Family Law
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Negligence & Tort
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