Bendon and Bendon (No 2)

[2015] FamCA 669

FAMILY COURT OF AUSTRALIA

BENDON & BENDON (NO 2) [2015] FamCA 669

FAMILY LAW – CHILDREN – INTERIM ORDERS – Best interests – where the independent expert evidence indicates a risk to the children remaining in the mother’s care - interim orders made that the children live with the father and that the father have sole parental responsibility – order made that the mother communicate with the children

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

APPLICANT: Ms Bendon

RESPONDENT: Mr Bendon

INDEPENDENT CHILDREN’S LAWYER: Kenna Teasdale Lawyers

FILE NUMBER: DGC 672 of 2014

DATE DELIVERED: 28 April 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 28 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stavrakakis

SOLICITOR FOR THE APPLICANT: Duffy & Simon

COUNSEL FOR THE RESPONDENT: Ms O'Connell

SOLICITOR FOR THE RESPONDENT: Fiona McGregor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Kenna Teasdale Lawyers

Orders

IT IS ORDERED

1. That all previous parenting orders be discharged.

2. That until further order the children D born … 2005, E born … 2007 and F born … 2009 live with the father.

3. That until further order the father have sole parental responsibility for the children.

4. That the father be permitted to enrol the children in G School Western Australia.

5. That until further order the mother communicate with the children as follows:-

   (a)At the conclusion of two weeks after the children commence living with the father, the father facilitate the children sending written correspondence to the mother;

   (b)At the conclusion of four weeks after the children commence living with the father, by Skype or telephone twice per week between 6.00 pm and 6.15 pm Western Australian time each Monday and Thursday;

   (c)At the conclusion of four weeks from the date of these orders the mother be at liberty to forward written correspondence and gifts to the children.

6. That IT IS REQUESTED that if practicable Ms B, Family Consultant explain these orders and their effect to the children prior to them leaving the Court this day and in the event that she is not available the Independent Children’s Lawyer inform the children of these orders.

7. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. That my Reasons for Judgment be transcribed and remain on the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bendon & Bendon (No 2) 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 MELBOURNE

FILE NUMBER: DGC 672  of 2014

Ms Bendon

Applicant

And

Mr Bendon

Respondent

And

Independent Children’s Lawyer

REASONS

1. These reasons for judgment were delivered orally.  

2. These proceedings relate to parenting arrangements in respect of the three children of the marriage - D, aged nine, E, aged seven, and F, aged six.  Today is the sixth day of the final hearing before me with respect to parenting matters. 

3. By way of background, I note that the mother is Ms Bendon.  She is aged 40 years.  She lives in H Town, Victoria with the three children of the marriage. 

4. The father is Mr Bendon.  He is aged 41 years.  He lives in I Town, Western Australia.

5. The parties commenced cohabitation in 2005 or thereabouts.  They married in 2006 and a physical separation was effected upon the mother and the children moving to Victoria to live in September 2013. 

6. There are very serious and significant issues at play in this matter.  The questions for my determination include:

   ·   with whom the children live;

   ·   a determination in relation to allegations of sexual abuse raised against the father in respect of his conduct towards the children F and E; 

   ·   the issue of whether or not the father poses an unacceptable risk in the context of those allegations; 

   ·   the allegations made by the father as to the mother’s conduct with respect to the children; 

   ·   whether the mother has manipulated and coached the children in respect of the allegations of sexual abuse;  and

   ·   whether the children have been neglected by the mother when in her care. 

7. Two of the children, F and D, have special needs.  Each of those children has been diagnosed with mild cerebral palsy.  There are significant issues and concerns raised by the father as to how the mother has managed and attended to the needs of those children.

8. As I have indicated, the hearing has been conducted before me over a period of six days.  I have had the opportunity of hearing the evidence of both of the parties.  Each has been cross-examined.  In addition, I have heard evidence from the wife’s mother, Ms J, and the husband’s father, Mr K Bendon.  I have also had the opportunity of considering the evidence of Mr L, a worker from the Department of Human Services, and Dr C, who is the single expert psychiatrist engaged by the Independent Children’s Lawyer to undertake psychiatric assessments of the father and the mother.  Further, Ms B, family consultant, has prepared a memorandum and a full family report in the matter, her family report having been released on 11 March 2015.

9. At the conclusion of the fourth day of the hearing I granted leave to the Independent Children’s Lawyer to make an oral application.  The application made that day was that I make interim orders for the children to spend time with the father effective from 9.00 pm that day.  The basis for that application was evidence given by Dr C that day in respect of risks he perceived, were the children to remain in the mother’s care.  The children have been in the father’s care since those orders were made. 

10. The parties have this afternoon before me had closing submissions made on behalf of them by counsel representing each of them.  An oral application has been made on behalf of the father this afternoon seeking orders on an interim basis that the children live with him, that he have sole parental responsibility and that he be permitted to re-enrol the children at the school previously attended by them in Western Australia.  That application is supported by the Independent Children’s Lawyer. 

11. In addition to those orders, the Independent Children’s Lawyer seeks orders that the mother have the opportunity to communicate with the children, initially by the children writing to her after a period of two weeks in Western Australia and at the conclusion of a four week period, the children to commence communicating with the mother via Skype or telephone. 

12. Those applications are opposed by the mother.  She seeks interim orders that the children be returned to her care and that the children live with her.  Further, she seeks an interim order that the children spend time with the father and communicate with him during the June 2015 school term holidays for a period of one week.

13. The Full Court has considered the approach to be adopted by the Court in determining interim matters.  That approach is set out in a decision of Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346. In particular, the Full Court stated the approach to be adopted on interim parenting applications at paragraphs 81 and 82 of that decision. There, it is highlighted the difficulties that can face the Court in interim determinations insofar as there are conflicting facts, little helpful evidence and disputes between parties in relation to what constitutes the best interests of the children.

14. The Full Court said that in determining interim matters, it is important to identify the competing proposals of the parties; to identify issues in dispute with respect to the interim hearing; to identify agreed or uncontested relevant facts; to consider the matters in s 60CC of the Family Law Act 1975 (Cth) that are relevant and, if possible, to make findings with respect to those matters; to decide whether the presumption in s 61DA with respect to equal shared parental responsibility being in the best interests of the child applies; and, if the presumption does apply, to decide whether it is rebutted because the application of the presumption would not be in a child’s best interests.

15. The position that I am in today is unique insofar as I have heard all of the evidence.  The evidence that is particularly relied upon by both counsel for the father and the Independent Children’s Lawyer is the evidence of Dr C and Ms B.  They are independent experts engaged by the Independent Children’s Lawyer to assist the Court in determining what is in the children’s best interests.  The evidence of both of those witnesses was powerful and persuasive in assisting me to determine what is in the children’s best interests in this interim period.

16. Dr C assessed the mother in August 2014.  He sets out in his report, which is annexed to his affidavit filed 11 September 2014, the mother’s past psychiatric history.  He notes the allegations made by her against the father with respect to sexual abuse and details as to the relationship she had with the father.  He noted at page six of his report that with respect to the mother’s cognitive functioning:-

    [S]he told me that she didn’t watch the news.  She doesn’t read except online.  She lives in her own world.  She could not tell me what was going on in the world.

17. Dr C noted that the mother’s account of her own experience of sexual abuse was vague but noted that those experiences made her particularly wary of the possibility of abuse involving her own children.  At page seven of his report he noted that the mother’s difficulties:

    … lie in the area of her personality functioning and intellectual grasp.  She struggled at school, possibly due to the effect of the uncertain and unstable circumstances in which she lived. 

18. Later, he noted:

    She impresses as a person of vulnerable disposition who has essentially lived in her own world and has struggled to reach the normal adult developmental milestones of independence, and a formed identity.  Her ability to describe her inner emotions and the nature of the relationship between herself and [the father] was limited.  It is highly likely that the allegations are driven by factors relating to her needs and disappointments when [the father] left her in December 2013.

19. During his viva voce evidence, Dr C was questioned as to the potential impact upon the mother of the realisation that she was at risk of losing her children, that is, that the father would be successful in his application and that, the Independent Children’s Lawyer’s position as at Friday afternoon was that she would be seeking orders in the terms of the father’s application.  That question was put having regard to observations contained at paragraph 116 of the family consultant, Ms B’ report. 

20. At paragraph 116 of that report, Ms B notes:

    [Ms Bendon] herself has raised a concern about her incapacity to integrate views not consonant with her own.  In the event that the court does not concur with [Ms Bendon’s] view of events, [Mr Bendon] has raised specific concerns about possible harm to the children and his prediction should be well-regarded by the court.

21. Dr C was asked by counsel for the Independent Children’s Lawyer as to the risks to the children of harm at the hands of their mother upon the mother learning of the Independent Children’s Lawyer’s views.  Dr C assessed that there was a risk of harm to the children in the event of the mother being unsuccessful upon judgment being delivered.  He indicated that protection for the children was required in those circumstances.  Further, he indicated that there was a risk to the children in the event of final submissions from the Independent Children’s Lawyer’s effectively supporting the father’s position.  He indicated that the risk to the children was the same as would be the case upon delivery of judgment indicating success insofar as the father’s application is concerned.  He was not in a position to comment as to the position of risk as at Friday afternoon and left that as a matter for the Court.

22. Ultimately, I determined, having regard to the s 60CC factors, particularly subparagraph (2)(b), that the need to protect the children in the circumstances was paramount. Accordingly I made interim orders on Friday afternoon that the children spend time with the father commencing that day.

23. Ms B has given evidence today.  She has been cross-examined by counsel for each of the parties.  She too was questioned as to the risks to the children at the conclusion of the hearing today upon submissions being made by the Independent Children’s Lawyer supportive of the father’s case.  She indicated she could not quantify the risk of harm but that there was a risk.  She also indicated that she was relieved to hear that the children were safe, they having been placed in the care of the father the preceding Friday. 

24. Ms B gave evidence to the effect that the mother’s family was compromised.  She indicated that they do not perform to societal norms.  Her evidence was that the mother is highly explosive, that she is unpredictable, and that she is reactive.  She indicated concern that there may be guns available in the mother’s household or within the households of those family members who live in proximity to her.  She indicated that the mother does not see the children as individuals; she sees them in her own image.  The evidence of Ms B was that there is a real risk to the children.  That risk is heightened, she says, because the mother’s family is reactive.  They support and maintain the narrative that the mother has pressed before me with respect to the sexual abuse allegations made against the father.

25. The mother has made very serious allegations of sexual abuse against the father.  However, her evidence with respect to those matters has been vague.  She has not been consistent in her allegations.  As I have noted in discussions with counsel for the mother, there are many inconsistencies between the evidence of the mother and the maternal grandmother with respect to those matters. 

26. The allegations with respect to F touching her father’s groin when she was aged approximately three highlight what is said to be the mother viewing the world through the lens of sexual abuse.  Her first and instinctive reaction to F’s behaviour was to view it as sexual abuse and not innocent play or engagement of F with her father.  Likewise, that is the view adopted by the mother when considering the allegation arising on 1 August 2013, being the event where the father describes F playing “roly-polies” on the floor with him whilst E and D also in the room.  The father described putting his hand between F’s legs to flip her over.  The mother’s view of that event is that the father fondled F’s genitals.  F was dressed when that incident occurred.

27. Based on the evidence that I have heard over the past six days, I do not consider that the father poses an unacceptable risk to the children.  I am bolstered in that view by virtue of the fact that the mother has previously consented to orders for unsupervised time, indeed, as recently as September 2014, when the children spent a week unsupervised in the father’s care.  Likewise, the mother has consented to orders this year for the children to spend unsupervised time with the father.  Indeed, her position before me today in this interim hearing is that the father have unsupervised time with the children in June of this year.

28. In those circumstances, I am satisfied that it is appropriate that the father have the care of the children pending final orders being made. I have given careful regard to the evidence of the independent experts in this case. Each has indicated that the children are at risk of physical harm if they are to remain in the mother’s care at this point in time. Section 60CC requires as a primary consideration that I have regard to the need to protect the children from such harm, and it is on that basis that I make the interim orders.

29. In the circumstances of the case, particularly with regard to the risks indicated by both Dr C and Ms B, I am satisfied that the presumption with respect to equal shared parental responsibility is rebutted and it is on that basis that I have made an order, on an interim basis, for the father to have sole parental responsibility for the children.

30. As to the orders I have made with respect to communication, again, I have had careful regard to the evidence of Ms B who has indicated that she considers that it is appropriate for the children to be able to communicate with the mother and it is on that basis that I have made orders in those terms at this.

31. These are interim orders only.  I have not reached a concluded view with respect to the matters that I have been asked to consider.  I have heard a vast amount of evidence over the past six days.  I am making these orders due to the risks that have been indicated by both of the experts and upon the concern that I have that the children’s welfare be protected.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 28 April 2015.

Associate: 

Date:  28 April 2015