BEMIS & ORDWAY - [2010] FMCAfam 816

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BEMIS & ORDWAY

[2010] FMCAfam 816

FAMILY LAW – Interim arrangements for care of two children aged 10 & 8 –parties separated in mid-2009 – since separation children have lived with the mother in rural South Australia – father lives in Central Queensland – father has failed to return children to mother following mid-year school holiday – father asserts children are at risk in mother’s care – mother has been charged with indecent assault – mother asserts father is violent and manipulative – father asserts mother poor role model for children – mother seeks recovery order – assessment of risk – best interests – should children be independently represented.

Family Law Act 1975, ss.4; 60B; 60CC; 61DA; 68L; 68LA

Goode & Goode (2006) FLC 93-286
In the Marriage of Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 18 Fam LR 255
Re K (1994) FLC 92-461

Applicant:

MS BEMIS

Respondent:

MR ORDWAY

File Number:

ADC2703 of 2010

Judgment of:

Brown FM

Hearing date:

28 July 2010

Date of Last Submission:

28 July 2010

Delivered at:

Adelaide

Delivered on:

3 August 2010

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

Norman Waterhouse

Counsel for the Respondent:

Mr Pieterse

Solicitors for the Respondent:

Bruce Gillan

ORDERS

The father return the children of the relationship [X] born [in] 1999 and [Y] born [in] 2002 (hereinafter referred to as “the children”) to the mother in [K] in the State of South Australia at a time and location to be agreed between the parties but to be no later than 12:00 midday on 7 August 2010.
In the event that the parties are unable to agree on a location at which the children are to be returned to the mother it will be outside the [omitted].

UNTIL FURTHER OR OTHER ORDER

The children live with the mother.
The children communicate with the father by telephone or such other electronic means at times to be agreed between the parties and failing agreement to be by telephone at 6:00pm Australian Central time on each Wednesday and Saturday.
The father spend time with the children during the forthcoming September/October South Australian school holidays from midday on 26 September 2010 until midday 5 October 2010.
The father be responsible for all costs involved with the children travelling between [K] and his home in [W], Queensland and in particular the father be responsible for collecting and returning the children from the mother’s home at [K] at the beginning and end of the period of time specified in this order.
Pursuant to section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [X] born [in] 1999 and [Y] born [in] 2002 and to facilitate such appointment the parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the children and, at the discretion of the family consultant, observed interaction of the children with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person nominated by the independent children’s lawyer with the costs of such assessment and the report arising from such assessment to be borne equally by the parties.
Pursuant to Section 26 of the Federal Magistrates Act the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 7 October 2010 at 9:15am.
Both parties file and serve a statement of their financial circumstances within 28 days of today’s order.
That further consideration of this matter is adjourned to 26 October 2010 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Bemis & Ordway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT Adelaide

ADC2703 of 2010

MS BEMIS

Applicant

And

MR ORDWAY

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Bemis “the mother” and Mr Ordway “the father” are the parents of [X] born [in] 1999 and [Y] born [in] 2002. These proceedings are concerned with temporary arrangements for the care of the two children, until there can be a full hearing of all the issues, which each party has raised about the other. Lawyers refer to such a hearing as an interim one.
The parties separated on 16 August 2009. At that time, they and the children were living at [W], near [L] in Central Queensland. When the parties separated, the mother went with [X] and [Y] to live at [B], near [K], which is around 100km north of Adelaide.
[B] is a property owned by the father. Between at least 1999 and February of 2009, it was the family’s home. They had lived at [W] together for only a few months. As a result, the mother asserts that [B] is [X] and [Y]’s home. Until recently, they were attending primary school in [K].
The separation between the parties was difficult. The mother says that the father had been violent towards her, something which the father denies. At any event, it is common ground that the father did not see [X] or [Y] until January of 2010. The father also visited the children, in [K], in May of 2010.
This was the background to arrangements being made for [X] and [Y] to visit their father at [W], during the mid-year school holidays, returning to their mother’s care, at [B], on or around 19 July, in time to start term 3 at [K] School.
At the same time, the parties were negotiating final arrangements, via their respective solicitors, for the division of their property and the care of [X] and [Y]. They were close to reaching agreement. At that stage, it was anticipated that the children would continue to live with their mother.[1]
[1] See annexure G to the mother’s affidavit filed 19 July 2010 being a facsimile dated 22 June 2010 from the father’s solicitor to the mother’s solicitor
The children have not been returned to the mother as anticipated. As a consequence, on 19 July 2010, she commenced proceedings in this court, seeking an order for the immediate return of [X] and [Y] to her and failing compliance with such an order that the appropriate police force be directed to recover the children from the father. She has no specific proposal as to what time the children should spend with their father in the interim. In the longer term, she proposes school holiday contact.
The father responded to this application on 26 July 2010. On an interim basis, he seeks an order that [X] and [Y] live with him at [W]. He has no specific proposals as to what time the children should spend with their mother or how they should otherwise communicate with her.
In conjunction with these interim parenting orders, he seeks the transfer of the case to the Brisbane Registry; the appointment of an independent children’s lawyer for [X] and [Y]; and most importantly, in the context of these proceedings, the preparation of an urgent family report.
The reason why the positions of the parties are so polarised is their very different views concerning an incident, which occurred on 5 July 2010, at [S], a township near [K]. The incident involved the mother and two other individuals, Mr S and Ms S. The mother has been charged with the indecent assault of Ms S. She has been bailed to appear before the Magistrates Court at [omitted] on 13 September 2010.
From what he has been told of the incident – Mr S is a friend of his and he has been provided with a copy of Ms S’ statement to police – the father believes that the children are at serious risk of psychological harm, if they return to the mother’s care. He places the risk on various bases as follows:
·[K] is a small closely knit rural community. It will be well known that the mother has been charged with a serious criminal offence involving Ms S. This will set tongues wagging and it will be inevitable that the mother and children will be subject to gossip and innuendo. More importantly, [X] and [Y] are likely to be teased and taunted by their school mates, to their emotional detriment. As such, they will become isolated, perplexed and unhappy children;
·The mother’s inappropriate behaviour towards Ms S may be indicative of some serious psychological dysfunction, on her part, which disqualifies her to be the children’s primary carer. This level of dysfunction needs to be independently and professionally assessed;
·The children know Mr S and Ms S and regard them as family friends. As such, they are likely to be traumatised by the concept that their mother would act harmfully towards Ms S. Given their intellectual immaturity, they will not be able to rationalise their mother’s behaviour and may feel perplexed and unhappy by the feelings precipitated by it. This, of itself, is likely to be emotionally detrimental to them.
It is on this basis that the father urges the court to take an extremely cautious approach to interim arrangements for the children’s care. This is the reason why he advocates an urgent family report be prepared and the appointment of an independent children’s lawyer. Necessarily, these steps will take some time to implement. In this intervening period, he argues that it would represent an unacceptable risk to the children to return to the care of their mother.
In the longer term, on a final basis, the father seeks orders that would see [X] and [Y] living with him, certainly until such time as the criminal proceedings against the mother have been resolved. Whatever prospect of the defacto property issues between the parties being resolved consensually seems to have evaporated. In these circumstances, both parties seek final orders in respect of defacto property settlement.
I do not know Ms S’s age. She has not provided an affidavit in these proceedings. Her statement to police was attached to Mr Ordway’s affidavit. From that I gather she is an adult. She is related to Mr S. She is his niece. He has provided an affidavit for the court, on the father’s behalf. In that affidavit, he expresses some serious criticisms of the mother, which suggest that she is promiscuous and mentally unstable.
The mother’s position is that she has been the children’s primary provider of care since the date of their respective births. In these circumstances, she believes that [X] and [Y] must be worried about being separated from her and not knowing when and if they will be returned to her care at [B]. She doubts the father’s account that the children are currently happy at [W], particularly as she has not been able to talk to them on the telephone regularly.
The mother did not initially choose to respond formally to the allegations of misconduct against Ms S, citing legal advice given to her that she should maintain her right to silence. Subsequently, given the father’s reliance on Ms S’s police statement, the mother has chosen to set out her version of what occurred between her and Ms S on 5 July 2010.[2] It is the mother’s case that she did not behave either criminally or otherwise inappropriately towards Ms S, who was drunk and attempted to initiate an act of intimacy with her, rather than vice versa.
[2] See mother’s affidavit filed 23 July 2010
The mother’s case is that the father is poorly and bitterly disposed towards her and will use the children as a tool to inflict emotional pain upon her. She believes he will stop at nothing to discredit her. As such, she asserts that Mr S is the father’s spy and he (Mr S) has used Ms S to “set her up”, presumably at the father’s instigation, in some way. Needless to say, it is the implication of her position that the father has a compromised level of insight into how a responsible parent behaves.
As will become apparent from what follows in these reasons for judgment, both parties have serious and trenchant criticisms of the parental capacity of the other. As such, there are potential risks to the children’s wellbeing arising from each parent’s proposal. The responsibility for the court is to do the best it can to quantify and assess those risks and determine where the best interests of the children lie against its assessment of those risks.

The legal principles applicable

Interim hearings have to take place in a shortened form. There is no time available for the cross examination of the parties concerned. In addition there is usually insufficient time for all the available evidence to be to hand. The most common evidence, which is not available at the interim stage, is in the form of subpoenaed documents and any expert assessment which has taken place of the family concerned.
These types of evidence, coming as they do from independent sources, are very often central to the resolution of parenting cases at the final stage. In addition, for obvious reasons, at the final hearing stage, the parties concerned have more time to prepare their cases and call all the necessary witnesses. Necessarily, the final hearing is a longer one than the interim hearing, which allows the court to make any necessary findings of fact – essentially deciding if it believes one party or one witness over the other.
The hallmark of many, if not all, interim hearings concerning children, is that they arise against a background of emergency after some crisis has arisen in the lives of the parties involved, most often their separation or some other significant event. As a result emotions are often at their most raw and it is difficult for parents to maintain a degree of objectivity about what exactly has happened up to that stage. In such circumstances, it is only natural that one parent will think the worse of the other and assume that the worst has happened or is likely to happen to any children involved.
Such situations also cause great difficulties for the court. It may not be able to make findings of fact about issues in dispute between the parents concerned because all the evidence needed to make such findings is not as yet to hand. Yet the urgency of the situation and the degree of conflict and disputation between the parents concerned require that a decision be made.
The essential difference between an interim and final decision is that interim hearings do not determine long-term arrangements for the care of the child concerned, whereas final hearings do. However although the nature of the hearing concerned is different, the same legal principles apply at both the interim and final stage.
In making the interim decision (as at the final stage), the best interests of the child or children affected by the decision remain the most important consideration. The matters which the court must take into account in deciding how a child’s best interests are to be served is set out in the Family Law Act [see section 60CC].
What have been called the best interest considerations rest on two main pillars. The first is the importance to children of having a meaningful relationship with both parents. The second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child's best interests by section 60CC(2).
Other criteria relating to how a court is directed to consider how the best interests of any children concerned may be served by any order which the court makes are set out in section 60CC(3). These criteria are categorised as additional considerations.
There is a presumption that it is in a child's best interests for his or her parents to have equal shared parental responsibility for him or her. [section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
The court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
In the case of Goode & Goode[3], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[3] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.

·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.

Background and matters agreed between the parties

As has previously been outlined, the respective positions of the parties are polarised in the extreme. As such, there are few agreed facts between them.
The mother was born [in] 1977. The father was born [in] 1967. The parties met in 1997. At the time, the mother was working [on a property] owned by a member of the father’s family. She has an employment history of [omitted]. The father is a [occupation omitted].
The parties lived together at [B] since the time of [X]’s birth. They moved to [W] in early 2009. The parties separated in August 2009, when the mother and children drove back to [B]. The children were largely in the sole care of the mother from August 2009 until the start of the mid-year school holiday in 2010.

The parties attended mediation, in Adelaide, in February of 2010. Since that time, the parties have been negotiating a settlement of the various issues between them and were close to entering into a formal agreement shortly prior to the commencement of the mid-year school holidays. The parties had agreed that [X] and [Y] would remain in the mother’s care.

Factual issues in dispute between the parties

At this stage, the parties agree on few other important issues between them. The mother says, prior to separation, she was the children’s primary carer because the father worked long hours on his properties.
The father disagrees saying his parental input was equal to that of the mothers, as she would be frequently away socialising and both [X] and [Y] took a particular interest in the [property] and wanted to spend as much time with him as possible, whilst he was working.
The mother says that she and the children were forced to flee from [W] because the father was violent towards her. In particular, he tried to strangle her in front of the children. As a result, the mother asserts that the children were frightened because they feared the father would hurt their mother.
The father denies this allegation. It is his case that it was the mother who had been abusive towards him and he was compelled to restrain her. In addition, it is his case that the mother unilaterally removed the children from [W], whilst he was away and he only learnt of her decision to leave with the children, when she telephoned him from [H].
It is the mother’s position that the father has significant issues to do with the over consumption of alcohol, which causes him to become abusive and aggressive, particularly towards her. As a result of this type of behaviour, the mother asserts that both [X] and [Y] are frightened of their father.
The father assets that the mother has behaved violently and erratically towards him, during the parties' relationship. He says that it is she who has been verbally abusive and threatening towards him, rather than vice versa. In addition, it is his position that the mother has issues to do with the consumption of cannabis.
Since the parties separated and in particular during the recent school holidays, the father says that both [X] and [Y] have disclosed to him details of what they have said is their mother’s erratic conduct. He says each child has written down the complaints they have about their mother’s conduct. These notes, apparently in each child’s handwriting, have been annexed to the father’s affidavit.[4]
[4] See annexure D and annexure E attached to the father’s affidavit filed 26 July 2010
In particular, [X] has complained that:
·She found a pipe and green chopped up leaves in her mother’s bag;
·She found yellow and green balls that smelt like burnt weeds;
·Her mother has got angry, whilst driving and swerved so severely she nearly hit a tree;
·The mother has threatened to kill her, [Y] and her father;
·The mother has threatened to stab the children, if they didn’t put away the dishes;
·The mother says mean things about the father;
·The mother has locked the children in their bedrooms, whilst she went over to the shed;
·When the children have asked to telephone their father, the mother has indicated that she has no credit on her phone but [X] has later observed her mother making her own social calls.
[Y] has apparently corroborated some of these complaints. She has also complained that her mother calls her bad names and swears at her. She has also indicated that she has smelt burnt grass in her mother’s bag.
The mother categorically denies that she would ever hurt or threaten to hurt either the children or their father. It is her position that the parties both used cannabis during their relationship and she has used the drug occasionally, since the parties separated, but never in the children’s presence. She is willing to subject herself to regular drug testing and to be subject to an injunction restraining her from using any illicit drug.
The mother is concerned that statements about her, purportedly handwritten by the children, have appeared in the father’s responding material. She is concerned that this may indicate the father is either attempting to enlist the children against their mother or is discussing adult issues with them. She regards the letters as emotionally unhealthy for the children. I treat the contents of the letters with caution, particularly give it is unclear to me how the letters came to be written and at whose instigation.
The mother states that she is concerned that the father is currently depressed. She asserts that the father has access to firearms at [W]. By necessary implication, she says that the combination of the father’s heavy alcohol use, his allegedly unstable mental condition and his ready access to firearms pose a significant risk to the well being of [X] and [Y].
The mother further asserts that conditions at [W] are primitive. Due to the property’s remoteness, it would be necessary for the children to attend classes at the School of the Air. It is her position that, whilst she was living at [W], with the children, she was able to supervise the children’s education. She believes that in her absence, the father will not be able to attend to the children’s educational needs.
The father denies any suggestion that [W] provides inadequate accommodation for the children. It is his case that the children are currently quite safe and happy with him and will be able to be adequately schooled if it be the decision of the court that they remain in his care at [W].
Mr S has provided an affidavit in these proceedings.[5] It is his position that he has been a friend of both parties and he has only wanted to assist the mother, since the time she returned to [B] in August of 2009. In these circumstances, he has visited [B] regularly and has helped the mother with minor repairs around the property. He has also had cause to visit the property because he has [business omitted] on it.
[5] See affidavit of Mr S filed 26 July 2010
In his affidavit, Mr S has now raised significant complaints about the mother. In particular, he asserts that the mother would touch herself in a sexually provocative way in his presence. In addition, he asserts that the mother would play with the sexual organs of animals.
In addition, Mr S has deposed that the mother has told him that she wants to kill the two children and herself as soon as they are returned to her from the father. Essentially, Mr S portrays the mother as an emotionally unstable person. It would appear to be the case that he has no doubt that it was the mother who instigated the improper conduct involving his niece, Ms S.
The mother’s position is that Mr S has been instructed by the father to spy on her. To this end, it is her position that he has arrived unannounced at [B], at unsocial hours of the day and night, notwithstanding her requests to him not to do so. It is her case that she has rejected Mr S’s romantic advances towards her.
The parties were apparently in dispute as to arrangements regarding how and when the children would get to [W]. In these circumstances, Mr S apparently offered to drive the mother and children to [T], which is about half way between [L] and [K]. This forms the background to the different accounts of what occurred between the mother and Ms S on 5 July 2010.

The incident of 5 July 2010

The mother asserts that Mr S asked her to drive his utility to his property at [S], so he could collect his truck. She agreed to help him in this way. Presumably she had no intention of staying there once both vehicles had been delivered.
Mr S asserts that the mother offered to do some cleaning, at his house, in order to help repay him for his assistance in driving the children to [T]. He says that whilst the mother was at his home, he received some bad news, which caused him to drink some alcohol. As a result, he could not drive his truck because it is a condition of the use of such vehicles that drivers have a zero alcohol concentration.
The exact mechanics of how the mother came to be in [S] and why she could not return to [K] are currently unclear to me. The mother says, in the past, she had declined invitations to attend at Mr S’s home because she does not trust him.
Anyway, what is important is that a situation arose whereby Mr S, the mother and Ms S were present together at Mr S’s home in [S]. Alcohol was consumed. All three apparently then agreed to go to the [S] Hotel, where they consumed more alcohol. It is the mother’s case that Mr S and Ms S drank more than she did. Mr S asserts that the mother asked if she could stay the night at his home. He had no objection. The three then returned to Mr S’s house, where still more alcohol was consumed.
The mother asserts that Mr S went to bed at around 2:00am. Certainly, Mr S agrees that he went to bed before the two women, who decided to watch a DVD in Ms S’s bedroom. Accordingly, Mr S is unable to provide direct evidence of what occurred between Ms S and the mother, after he had retired for the night.
As such, the only witnesses to the alleged indecent assault by the mother on Ms S are Ms S and the mother herself. Ms S has not provided an affidavit in these proceedings. A copy of her statement to the police has found its way to the father, as he has annexed it to his affidavit material. The mother is suspicious that Ms S would provide this sensitive document to the father and suspects that she may have an ulterior motive for so doing.
Ms S deposes that Mr S went to bed at around 11:30pm. She agrees that she and the mother decided to watch a DVD together. She describes herself as being moderately drunk at the time. She deposes that the mother suggested that she and the mother drink another bottle of wine together. A suggestion Ms S says she declined, which caused the mother to become very angry.
At this point, Ms S says she left the house, followed by the mother, who threw the bottle of wine on the curb. Ms S says she was frightened and went to a neighbour to seek assistance. The neighbour in whom Ms S wished to confide was in bed. Accordingly, Ms S decided to go back to the house and go to bed. It is her case that she had a bad headache at the time and was feeling stressed and confused. She got into bed, whilst still clothed.
Thereafter, Ms S alleges that the mother assaulted her, removing her top and underwear before touching her breasts in an increasingly violent manner. Ms S says she tried to kick out but could not move. She then asserts that she passed out, the implication being that she had been drugged.
In her statement to police, Ms S deposes that she woke up at around 11:30am the next morning and found herself completely naked. She asserts that her nipples and legs hurt and she herself felt intoxicated and unwell. Ms S says that she was unable to find her knickers. This is the basis of the indecent assault charge against the mother.
Ms S says she was taken to the [omitted] Hospital, by Mr S, at around 2:00pm on that day, where she was medically examined. I have not been provided with any information regarding any toxicology specimens, which were taken on this occasion. I have not been provided with any other documents, which relate to the police investigation, other than the mother’s bail undertaking, which restrains her from approaching Ms S.
The mother has a totally different account of what occurred on 5 July 2010. I do not know if she had made any statement herself to police or been formally interviewed. I do not know whether any toxicology or forensic specimens were taken from her or whether any other evidence was collected by the police, particularly if some stupefying drug was found, either in the possession of the mother or in the bloodstream of Ms S. Ms S statement to police was made on 12 July 2010. I have not been advised as to why there was this delay between the alleged assault on Ms S and her formal complaint to police.
The mother asserts, in an affidavit filed on her behalf on 23 July 2010, that Ms S suggested to her, after Mr S had gone to bed, that she and

Ms S should find some drugs for their mutual consumption. A suggestion the mother says she declined. It is her case that Ms S then requested her assistance to reinsert a nipple ring into the nipple of one of her breasts. This apparently led to Ms S showing the mother her breasts and sharing other intimate details with her about her life.
The mother asserts that she fell asleep, whilst watching a DVD with Ms S and awoke to find Ms S making sexual advances to her. The mother says she rebuffed these advances and went to sleep at around 5:00am.
Mr S confirms the mother’s evidence that she awoke around 7:00am and left soon afterwards. It is Mr S’s evidence that he thought the mother was behaving oddly. He observed a smashed wine bottle in the gutter, which he cleared away.
Mr S confirms that Ms S complained to him that she had been sexually assaulted by the mother, when she awoke at around 11:30am. He took her to hospital to be medically examined. It is his evidence that Ms S was very distressed about what had happened to her.
Mr S says he telephoned the mother to see what she had to say about the incident. It is his case that the mother disclosed to him that she had sucked Ms S’ breasts, although the implication seems to have been that this was consensual.
The mother has deposed that she has no prior criminal convictions. She has vehemently denied having indecently assaulted Ms S. It is her case that Mr S and Ms S have concocted the allegations against her, after having entrapped her to stay the night at Mr S’s home in, order to engineer a compromising situation involving her.
The mother has provided a letter, which she says she received from

Mr S on 19 July 2010. The letter states: “Ms S’s parent’s done police thing not me okay.” It is the mother’s case that she has heard from one of her friends that Mr S has been boasting, in a local hotel, that he has succeeded in entrapping her so as to provide the father with a pretext to retain the children.
I am unable to ascertain, in any definitive way, the truth of what occurred on 5 July 2010. I am concerned at the status of much of the evidence, particularly the significant omissions in it and the fact that it is marked by significant elements of hearsay, particularly Mr S’s alleged confession he has played a part in entrapping the mother, to the effect that “I finally got that bitch to my house” “our plan worked” “the father’s got the kids” “that sluts going to end up in jail”.[6]
[6] See mother’s affidavit filed 23 July 2010 at paragraph 24
In addition, it is highly possible that it will take some time for the charges against the mother to be resolved finally. It may ultimately be impossible for the criminal court to conclude that the mother did indecently assault Ms S, according to the prerequisite standard of proof, which is proof beyond reasonable doubt.
Nonetheless, I must determine the interim issues, before this court, according to the applicable principles in the Family Law Act1975. Principally, I must determine what are the risks to the children both of remaining in their father’s care and of returning to their mother, pending the final determination of these proceedings and indeed the criminal proceedings currently pending against the mother.
On the one hand, it is likely to pose an emotional risk to the children, if they are prevented from pursuing a meaningful relationship with their mother, possibly over several months, whilst this court pursues its investigations. The children are likely to be unhappy and sad because they are not able to see their mother, who has undoubtedly played a very significant role, in their care, up to this stage. It is a significant thing for a child to have a major parental relationship curtailed, particularly if it is with a primary carer.
On the other hand, if the mother is emotionally unstable and so likely to be a poor role model for the children and if they are subjected to taunting and bullying at [K], this too may pose an emotional risk to the children. It is potentially damaging for a child to be held up to mockery and derision because of the actions, even if innocent, of a parent.
These risks have to be balanced against one another to arrive at the outcome, which is likely to be in the best interests of the children. This can only be done by considering the various section 60CC factors, and the evidence applicable to them, although it is impossible for the court to make concluded findings of fact about the very many and serious criticisms each party has of the other.
At the end of this exercise, the court must attempt to quantify the degree of risk arising, for the children, from each party’s proposed outcome. If the degree of risk is so great, as to be unacceptable for the court to consider it as an outcome, the court should reject such a proposal, at the interim stage. It is not an easy task for the court to perform, at this interim or provisional stage.

Section 60CC factors

a) The primary considerations

The mother is highly critical of the father for depriving the children of the opportunity to have a meaningful relationship with her, as a result of his unilateral decision to retain the children at [W]. In her submission, the father’s action is not consistent with the behaviour of a responsible or thoughtful parent.
It is her case that the children will be pining for her and their home at [B], given the fact that she has been the children’s undisputed primary carer, at the very least, since August of 2009 and before that date was undoubtedly involved with them to a very significant degree. She is critical of the father for not being more sensitive to the children’s likely reactions and feelings.
In support of her position, she points to the fact that the father’s criticisms of her parenting are recently made, and he did not choose to institute any proceedings, in respect of the children, immediately following the parties’ separation. In addition, he was prepared to countenance the children remaining in her care, on a final basis, until the allegations of Ms S arose.
In these circumstances, she contends that, by necessary implication, the father has previously conceded that the children’s best interests will be served if they remain in their mother’s primary care, and, as such, he has acknowledged the importance to them of maintaining the same level of meaningful relationship with their mother, which has arisen as a result of the arrangements in place since August of 2009. The only factor which has changed is the complaint of Ms S.
Both parties assert that the other represents a poor role model for the children because of previous violent behaviour. The mother’s case is that she and the children were forced to flee [W] because of the father’s violence towards her.
The father also asserts that the mother has behaved violently towards him. More recently he alleges that the two children concerned have alleged that the mother has threatened them. Allegations which the mother vigorously refutes.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for any child concerned. Children learn their behaviour from their parents. Parents who use violence or inflict force on others are inappropriate psychological role models for children. In this case, both parties asserts that the other is an inappropriate role model for [X] and [Y].[7]
[7] See in the Marriage of Patsalou (1994) 18 Fam LR 426
The concept of family violence is specifically defined in the Family Law Act [section 4]. It means conduct, whether actual or threatened, by a person towards another or towards the property of a member of a person's family that causes that or any other member of the person's family reasonably to fear for or reasonably to be apprehensive about his or her wellbeing or safety.

Family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[8]
[8] See JG & BG (1994) 18 Fam LR 255 at 261
Again, these are factors which the court must bear in mind in examining issues of family violence, in the context of determining the best outcome for any child concerned. Not all incidents of family violence or of violence per se will be necessarily damaging to a child.
The task for the court is to assess the likely risk of harm to the child concerned, whether physical and/or emotional, if an interim order is made for the child to either live or spend time with a parent against whom allegations of family violence or abuse have been made.
In this case, the allegations made by the father and Ms S are serious. However, neither child was exposed to the incident between Ms Bemis and Ms S. Both [X] and [Y] were in Queensland at the time. It seems difficult to regard the allegations made against the mother as family violence, in the strict sense defined in section 4. [X] and [Y] are unlikely to be fearful for their own safety because of the mother’s conduct, even if her behaviour is as described by Ms S.
If Ms Bemis is convicted of an assault on Ms S, it may be said that she has sexually abused Ms S. But neither child was involved in this episode directly. As such the action does not involve child abuse, in the sense defined in section 4 of the Family Law Act.
I have to assess the degree of risk to the children, arising from the mother’s alleged conduct and fashion a response, which is commensurate to the degree of risk involved. In all the circumstances of this case, I think it extremely unlikely that either [X] or [Y] would be exposed to a similar incident to that which allegedly occurred between the mother and Ms S.
The father’s case is essentially based on the incident of 5 July 2010, which he asserts justifies him retaining the children in defiance of the pre-existing agreement between him and the mother that the children would be returned in sufficient time to be re-enrolled at the [K] School for term three.
His case is that there is a significant risk that the mother will engage in similar behaviour in the future. However, he cannot point to any similar episode occurring in the past. His fear, in this regard, seems to me to be largely conjectural and perhaps somewhat opportunistic.
In assessing the degree of risk to the children arising from a recurrence of the type of behaviour alleged against the mother by the father and Ms S I think the following matters are relevant.
Neither of the children were present during the alleged incident. The father is unable to demonstrate a pattern or course of conduct against the mother of similar lapses of judgment. In the past, the father has been content to leave the children in the mother’s care. Finally, the mother vehemently refutes the allegations against her.
In these circumstances, in my assessment, it would pose a significant risk to the children’s well being if a previously viable relationship between them and their mother was interrupted, possibly for several months. I do not think that such a response is commensurate to the degree of risk potentially posed to the children by their mother.
The father’s case is that the children are likely to come to psychological harm, if they are returned to [K] because they will inevitably be exposed to ridicule and bullying because of the gossip surrounding the mother’s police charge.
I agree that this represents a real possibility. As counsel for the father points out, children can indeed be very cruel to one another. However, the second consideration, set out in section 60CC(2)(b) directs the court to protect a child from psychological harm, arising from being exposed to abuse neglect or family violence. In its strict terms, such taunting or bullying is neither family violence nor abuse.
If the mother did nothing about such behaviour, it may possibly amount to some neglect of the children. However, I think it unlikely that the mother would countenance the children being subject to such bullying at either their school or in the environs of [K]. She is likely to take steps to protect the children from such conduct.
In particular, it would be open to her to raise these issues with the school authorities, who would be legislatively obliged to put in place measures to protect the children from such bullying. She will be able to monitor the children’s emotional reaction to any person who raises the matter of the charge with either [X] or [Y] and provide appropriate reassurance to the children.
In my view, it would not be a commensurate response to the risk arising from such behaviour, which again remains conjectural, that the children remain in Queensland with their father. I reiterate my assessment that it is likely to be potentially more harmful for the children not to be able to see their mother for several months. This is likely to be very alarming for them.
I am not persuaded that it is an appropriate response to the possible risk of the children being bullied, by other children, in [K] that there be a family assessment undertaken, prior to the children interacting directly with their mother. Such a report will take a significant period to complete.
The report writer concerned will not be able to appraise the likely situation in [K], although he or she may be able to make an assessment of each child’s individual level of emotional resilience. However, such a report will take several weeks to prepare, during which time, the children will not be able to have any level of meaning in their relationship with their mother.
In addition, I am not persuaded that such a family report will necessarily be able to conclude whether or not the mother suffers from any psychological abnormality, which is likely to cause her to repeat the predatory sexual behaviour, alleged against her by Mr S and Ms S. I reach this conclusion because fear of the children being exposed to such behaviour was not a concern of the father prior to 5 July 2010.

Additional considerations

The views of the children are uncertain at the present time. Certainly, I am sceptical about the father’s assertion that neither child is missing her mother and both are content to remain in [W] indefinitely.
It seems to me to be highly likely that the children’s most significant relationship, at present, is with their mother. I reach this conclusion because she has provided more of their care in the immediate past. It also seems likely to me that both [X] and [Y] are well settled in the [K] area and are likely to have many friends at school.
In these circumstances, I have grave concerns at the likely effect on [X] and [Y] of being separated from their mother, possibly for several months, whilst the investigations proposed by the father are completed. In this context, I have some reservations about the father’s capacity to encourage an appropriate level of relationship between the children and their mother.
The mother is critical of the father’s capacity to support the children’s educational and medical needs. She is fearful that the children will not receive a proper education if they remain at [W]. In addition, [X] suffers dizzy spells, which are currently being examined at the Women’s & Children’s Hospital in Adelaide. The mother is critical that the father’s actions have deprived [Y] of appropriate medical attention.
In my view, there is an element of unilaterality arising from the father’s behaviour. He has not sought to discuss, directly with the mother, her version of what occurred on 5 July. Rather, he has preferred to accept what has been told to him and think the worst of the mother.
In this context, he asserts that the mother will be incapable of protecting the children from coming to psychological harm, at the [K] School and in the neighbourhood surrounding it, because of the bullying to which the children are likely to be exposed.
Apart from his assertion of this state of affairs, the father has no means of definitively establishing it to be true. It remains conjecture whether the children will be so bullied and further and more importantly, it cannot be established that the mother will be incapable of protecting the children from this kind of behaviour.
Again, a balance must be struck between the emotional consequences of the children not seeing their mother with the possible risk of them being bullied at school. Again, I have reached the conclusion that it would be a greater risk for the children not to be able to re-engage with their mother.
Both parties assert that the other has demonstrated a poor attitude to the responsibilities of being a parent. As is clear from these reasons for judgment, both parties have very many and varied criticisms of the other arising over several years. However, the fact remains that the father was prepared to entrust the children to the mother as their primary carer.

Conclusions

Given the polarised positions of the parties and their poor and mistrustful relationship with one another, I have come to the conclusion that it would not be appropriate for the presumption of equal shared parental responsibility to be applied to their care of [X] and [Y]. In addition given the geographical constraints, it is self apparent that the children will have to live predominantly with one parent.
At this interim stage, I have come to the conclusion that the parent, who should be responsible for providing the children’s home, is to be the mother. For the reasons already provided, I do not think that it would pose an unacceptable risk of harm to [X] and [Y] if they return to live in [K].
Having made this decision, there is no necessity to transfer the proceedings to the Brisbane Registry of the court. Although I accept that it will be inconvenient for the father to have to travel to Adelaide, for any final hearing required, it seems to me that such a hearing should take place close to where the children are living.
In my view, it is also a case which warrants the independent representation of the children concerned. In Re K[9] the Full Court of the Family Court set out some criteria to guide the court in respect of the appropriate circumstances in which to appoint independent counsel for children. Some of these criteria, outlined below, appear to be applicable to the circumstances of this case:
·Cases where there is an apparently intractable conflict between the parents;
·Cases where the conduct of either or both of the parents concerned is alleged to be anti-social to the extent that it seriously impinges on the welfare of the children concerned;
·Cases where it is alleged there are issues of medical, psychiatric or psychological illness or personality disorder in relation to one of the parents concerned.
[9] Re K (1994) FLC 92-461
Given the complexity of the current circumstances surrounding the children, I have come to the conclusion that it would be in their best interests if an order is made that they be independently represented [Family Law Act section 68L].
When appointed, the independent children’s lawyer will have an important role in acting as an honest broker between the parties and ensuring that any views expressed by [X] and [Y] are properly put before the court [Family Law Act section 68LA].
In addition, in my view, this is clearly the type of case which requires a comprehensive family assessment. The independent children’s lawyer is likely to play a central role in determining who should prepare such a report and its terms of reference.
For obvious reasons, at the present time, the parties have concentrated on issues to do with arrangements for [X] and [Y]’s care. However, both parties’ applications raise issues to do with the settlement of defacto property. As yet, neither party has filed a statement of financial circumstances. I will make orders requiring the filing of such a document by each party.
It also seems appropriate that I should refer the parties to a financial mediation conference, in order to ascertain whether there is any likelihood of the parties being able to reach agreement about the property issues, without recourse to a court hearing. In this regard, I note that the parties have apparently, in the past, been close to agreement in this regard. It is likely to be expedient to see if agreement can be reached again.
Accordingly, I will make an order requiring [X] and [Y] to be returned by the father to the mother, in [K]. Given the geographical considerations, it seems appropriate to me that they be so returned by midday on 7 August 2010. In the circumstances of the case, the father should be responsible for returning the children and should bear the costs involved.
I accept that the children also have a close relationship with their father. I have no reason to think anything other than that they enjoy spending time with him at [W]. Accordingly, I am satisfied that it would be in the best interests of the children to spend time with their father, during school holidays, until such time as the other parenting issues between the parties can be finally determined. This is likely to be some time in the first half of 2011.
Neither party has given considered attention to the issue of school holidays, particularly what should happen at Christmas time. In general terms, I think it appropriate for the children to spend slightly more than half of each school period, with their father, given the geographical constraints, which prevent the father seeing more of the children.
It is a very long way from [L] to [K], although I appreciate people who live in the outback are used to driving long distances. It seems to have been a matter of some dispute between the parties as to how [X] and [Y] are to travel to [W] and back to [K]. On the last occasion, Mr S assisted but it would seem to be inappropriate for him to be involved in future.
Given all these factors, it seems imprudent for me to make formal orders in respect of school holiday arrangements, other than in respect of the forthcoming September/October school holiday. I will adjourn the proceedings until after the financial mediation conference and the appointment of the independent children’s lawyer, so more detailed submissions can be made in respect of these matters. On the adjourned date, which will be in mid to late October, I also anticipate appointing a date for final hearing, depending on how long the parties consider the final hearing will take.
In the meantime, I will make orders which will enable the father to communicate with [X] and [Y] regularly by electronic means. I have not been told whether the parties have access to email and webcam technology. I assume not. Accordingly, I will make orders for the father to have regular telephone communication with the children, at times to be agreed between the parties and failing agreement to be twice a week at 6:00pm Australian Central Time on each Wednesday and Saturday.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:

Date: 3 August 2010