Bendon and Bendon (No 3)
[2015] FamCA 1065
•2 December 2015
FAMILY COURT OF AUSTRALIA
| BENDON & BENDON (NO 3) | [2015] FamCA 1065 |
| FAMILY LAW – CHILDREN – Best interests – where the mother alleges that the father has sexually abused the children – allegation of unacceptable risk of sexual abuse - where the father alleges that the mother does not care for the children appropriately – where two of the children have medical problems – where the father alleges that the mother and the maternal grandmother undermine his relationship with the children – where the mother has failed to seek appropriate medical care for the children – where the mother has failed to ensure that the children regularly attend school – allegation that the mother poses a risk of physical and psychological harm to the children –– final orders made that the father have sole parental responsibility for the children, that the children live with the father and that the mother spend time with the children supervised by a contact centre |
| Family Law Act 1975 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson 2009 FLC 93-407; [2009] FamCAFC 96 In the marriage of B & B (1993) FLC 92-357 M v M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Slater & Light [2013] FamCAFC 4; (2013) 48 Fam LR 573 |
| APPLICANT: | Ms Bendon |
| RESPONDENT: | Mr Bendon |
| INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
| FILE NUMBER: | DGC | 672 | of | 2014 |
| DATE DELIVERED: | 2 December 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Johns J |
| HEARING DATE: | 21 – 23 & 26 – 28 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms O'Connell |
| SOLICITOR FOR THE APPLICANT: | Duffy & Simon |
| COUNSEL FOR THE RESPONDENT: | Ms Stavrakakis |
| SOLICITOR FOR THE RESPONDENT: | Fiona R McGregor |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Kenna Teasdale Lawyers |
Orders
IT IS ORDERED
That all previous parenting orders in relation to the children D born … 2005, E born … 2007 and F born … 2009 are discharged.
That the father have sole parental responsibility in respect of all major long-term issues for the children, save that the father shall, prior to making any decision with respect to any such issue for the children:-
(a)Inform the mother in writing (via letter or email) of any decision intended to be made;
(b)Seek the mother’s written response in relation thereto, the mother to provide a written response, if any, within 14 days of being advised by the father of the decision intended to be made;
(c)Consider by reference to the best interests of the children any such response received from the mother prior to making any decision; and
(d)Inform the mother in writing (via letter or email) as soon as reasonably practicable of his ultimate decision.
That the children live with the father.
That mother spend time and communicate with the children as follows:-
(a)At a supervised contact centre or agency in Perth, Western Australia (“the contact centre”) as nominated by the Independent Children’s Lawyer for such time as may be agreed between the mother and the father in writing on the following bases:-
(i) That within 14 days of receipt of notification by the ICL of the nominated contact centre, the mother and the father do all acts and things as may be required to make application to the contact centre;
(ii) Such time to take place on days and at times nominated by the contact centre, and where practicable to occur on consecutive days to coincide with school holiday or after-school periods;
(iii) The mother to spend time as provided in sub-paragraph (ii) hereof on up to six occasions per calendar year;
(iv) The mother to be solely responsible for the cost of supervision; and
(v) The mother to comply with all reasonable directions as may be made by the contact centre in order to facilitate supervision of her time with the children.
(b)In the event that the contact centre is not available to facilitate time between the mother and the children pursuant to sub-paragraph (a) hereof, such time to be supervised by Mr K Bendon or such other person as may be agreed between the mother and the father in writing.
(c)By Skype or telephone on two occasions per week at times agreed between the parties and failing agreement between 6.00 pm and 6.15 pm Western Australian time each Monday and Thursday and for the purposes of that communication:-
(i) Such communication to take place at 6.00 pm Western Australian time on each occasion unless otherwise agreed between the mother and the father in writing;
(ii) The father do all acts and things to ensure the children initiate the communication to the mother;
(iii) The father be at liberty to monitor the communication between the mother and the children and in the event that the mother discusses subjects or issues that may undermine the children’s relationship with the paternal family or destabilise the care arrangements the father be permitted to terminate the communication;
(iv) The mother keep the father advised at all times of her current telephone number on which she can be contacted.
(d)By telephone or Skype on Christmas Day, the children’s birthdays, the mother’s birthday and Mother’s Day each year and to facilitate such communication:-
(i) Such communication to take place at 6.00 pm Western Australian time on each occasion unless otherwise agreed between the mother and the father in writing;
(ii) The father do all acts and things to ensure the children initiate the communication to the mother;
(iii) The father be at liberty to monitor the communication between the mother and the children and in the event that the mother discusses subjects or issues that may undermine the children’s relationship with the paternal family or destabilise the care arrangements the father be permitted to terminate the communication;
(iv) The mother keep the father advised at all times of her current telephone number on which she can be contacted.
(e)By letter, card and/or gift on the special days referred to in sub-paragraph (d) hereof with such items to be provided to the children by the father, save that the father is not required to provide to the children any letter, card or gift which discusses these proceedings or subjects or issues that may undermine or destabilise the children’s relationships with the paternal family.
That the mother and the father each keep the other informed of their current residential addresses, postal addresses, telephone numbers and email addresses.
That the father do all acts and things as may be required to:-
(a)ensure that the children communicate with the mother by letter, card or gift on the special days referred to in Order 4(d) hereof;
(b)Advise the mother and keep her advised of the children’s residential address, school, treating medical practitioners and specialist medical practitioners and any allied health professionals, counsellors or therapists upon whom the children attend;
(c)Authorise any and all of the health professionals referred to in sub-paragraph (a) hereof to communicate with the mother and to provide to her copies of any reports and information produced with respect to each of the children’s progress, health, treatment or course of counselling or therapy as the case may be;
(d)Notify the mother as soon as reasonably practicable of any significant injury of illness suffered by the children and any injury or illness requiring admission to hospital;
(e)Keep the mother advised in writing of the management plan and treatment of the children, including but not limited to the children F and D arising from any re-assessment of them by a medical specialist.
That the mother and the father be and are hereby restrained by themselves, their servants and agents from:-
(a)Denigrating the other parent or members of their family in the presence or hearing of the children or any of them; and
(b)Discussing the affidavit material, professional reports, oral evidence and judgments in these proceedings in the presence or hearing of the children or any of them.
That the father be permitted to provide a copy of these orders and Reasons for Judgment to:-
(a)The children’s school;
(b)The contact centre; and
(c)The children’s treating medical practitioners, allied health professionals and therapists or counsellors upon which the children attend.
That the Independent Children’s Lawyer be permitted to forward a copy of the orders and Reasons for Judgment to the Department of Human Services.
That the appointment of the Independent Children’s Lawyer be discharged on 31 January 2016.
That all extant applications be otherwise dismissed.
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.
AND IT IS DIRECTED
That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the Subpoena Clerk at the Family Court of Australia Melbourne Registry to the person or organisation who produced same after the expiration of 30 days from the date of these orders or otherwise upon the conclusion of any appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bendon & Bendon 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 FOR JUDGMENT
Introduction
These proceedings relate to the parenting arrangements for the three children of the marriage, D, aged 10 years, E, aged eight years, and F, aged six years. The children were born and lived with their parents in Western Australia until September 2013, when they moved with the mother to live in Victoria. As to whether their move to Victoria was to be permanent or otherwise is one of the contentious issues in the matter.
The mother alleges that the father poses an unacceptable risk to the children; she alleges that F and E have been sexually abused by the father. The father denies those allegations.
The mother seeks orders that she have sole parental responsibility for the children and that they live with her.
The children D and F have each been diagnosed with mild cerebral palsy. The father challenges the mother’s capacity to meet the children’s day-to-day needs. He alleges that the mother has failed to appropriately attend to the children’s physical and emotional needs.
Further, the father alleges that the mother and her family do not support the children’s relationship with him and have engaged in conduct so as to alienate the children; he says that the allegations of sexual abuse raised against him are evidence of such conduct. As a consequence, the father seeks orders that he have sole parental responsibility for the children and that they live with him in Western Australia.
Although the Independent Children’s Lawyer (“the ICL”) did not state her position at the commencement of the hearing, preferring to await testing of the evidence, by the conclusion of the hearing she supported orders in the terms sought by the father.
At the commencement of the hearing I was asked to and did make orders by consent with respect to the parties’ competing applications for property orders. Those orders include provision for the father to retain the former matrimonial home in Western Australia.
The matter was listed for a four-day hearing before me, commencing on 21 April 2015. In fact, the hearing was conducted over six days, and concluded on 28 April 2015.
At the conclusion of the hearing I was asked to and did make interim orders regarding the care arrangements for the children pending final orders. Upon hearing submissions on behalf of each of the parties, I made orders on an interim basis that the children live with the father and that they have limited communication with the mother. I provided oral reasons for judgment in relation to that decision which have been transcribed and remain on the Court file.
The Parties
The applicant is Ms Bendon, aged 40 years. She is the mother of the children. Her occupation is described as home duties.
The mother lives in M Town, Victoria.
The father is Mr Bendon, aged 42 years. He is engaged in full-time employment in the construction of commercial ceilings.
The father lives in the former matrimonial home in Western Australia.
Background
The parties met in 2005 whilst on holiday in Country N. At that time the father was living in Western Australia and the mother was living in Victoria. The mother moved to Western Australia and commenced living with the father in late-2005.
The parties married in 2006 and physical separation occurred upon the mother’s return to Victoria with the children in September 2013.
At the time of the hearing D was aged nine years and in Grade 4, E was aged seven years and in Grade 2 and F was aged six years and in Grade 1. All of the children attended H Town School at the time of the hearing.
D and F have been diagnosed with cerebral palsy. At the time of the hearing neither child had been assessed by nor received treatment from any doctor or other allied health professional in relation to their condition since prior to their arrival in Victoria in September 2013. The failure by the mother to take any active steps to engage with health professionals regarding the treatment and management of the children’s conditions since their arrival in Victoria was a central issue in the case from the father’s perspective. It was his position that the mother is incapable of appropriately providing for the children’s physical needs.
The children have lived with the mother since September 2013 and have had limited time with the father since that time. That this is so is due to the allegations raised by the mother in these proceedings that the children have been sexually abused and are at risk of abuse by the father. I will deal with those allegations and my findings in relation to them later in this judgment.
Proceedings were commenced by the mother in the Federal Circuit Court at Suburb S on 12 March 2014.
The mother filed a Notice of Child Abuse on 9 April 2014. The abuse alleged by the mother related to a disclosure said to be made by D almost two years earlier in July 2012 that the father had “put his hand in F’s bum”. I will deal with that allegation later in this judgment.
On 28 April 2014 orders were made by Judge Small in the Federal Circuit Court transferring the proceedings to this Court. That day, interim orders were made that the children communicate with the father by telephone as agreed between the parties and failing agreement, each Monday, Wednesday and Friday between 6.30 pm and 7.30 pm.
On 30 May 2014 orders were made by Registrar Moser for the preparation of a report pursuant to s 11F of the Family Law Act1975 (Cth) (“the Act”). In addition, orders were made for the appointment of the ICL.
The parties’ competing applications for interim orders were listed for hearing before Senior Registrar FitzGibbon on 18 July 2014. That day the father appeared in person and the mother was represented by counsel. Orders were made by consent that the parties attend for psychiatric assessment by Dr C. Orders were also made for the father to spend time with the children between 11.00 am and 4.00 pm the following day on the basis that that time be supervised by the paternal grandfather. The proceedings were otherwise adjourned for further interim hearing to 19 August 2014.
The matter was heard by Senior Registrar FitzGibbon on 19 August 2014. That day orders were made by consent that provided that the father spend time with the children on 21 August 2014 from 10.00 am to 5.00 pm and during the September 2014 school holidays from the first Saturday until the middle Saturday, such time to occur in Western Australia; there was no requirement that that time be supervised. All parties were represented by counsel at that interim hearing.
The matter was listed before me on 7 November 2014. That day, further orders were made by consent providing that the father spend unsupervised time with the children on the following day, 8 November 2014, such time to occur in Victoria. There was a notation to those orders that the mother maintains her concerns as to the father spending unsupervised time with the children. Orders were also made that day for the preparation of the matter for final hearing. The hearing commenced before me on 21 April 2015.
The Mother’s Position
The mother relied upon:-
·Her case outline filed 17 April 2015;
·Amended Initiating Application filed 5 November 2014;
·Her affidavit filed 18 December 2014;
·Her financial statement filed 11 February 2015;
·Affidavit of Ms J filed 13 February 2015;
·Section 69ZW report of the Department of Human Services dated 29 September 2014;
·Affidavit of Dr C filed 11 September 2014;
·Children and Parents Issue Assessment prepared by Ms B dated 17 July 2014; and
·Family Report prepared by Ms B dated 10 March 2015.
At the commencement of the hearing, the mother confirmed through her counsel that she sought orders in the terms of the Minute of Order attached to her case outline filed 17 April 2015. In summary, that minute seeks:-
·That in the event that there is a finding that the father poses an unacceptable risk to the children:-
(a)The mother have sole parental responsibility for the children;
(b)The children live with the mother in Victoria; and
(c)The father spend supervised time with the children as determined by the Court or agreed between the parties with the maternal grandmother to supervise the father’s time on specified dates;
·In the event that the Court finds that the father does not present an unacceptable risk to the children that:-
(a)The parents have equal shared parental responsibility for the children;
(b)The children live with the mother in Victoria; and
(c)The children spend time with the father in Perth for specified periods during the term and long summer vacation periods.
·In the event that the Court determines that the children should live with the father in Western Australia the children spend time with the mother in Victoria for specified periods during the term and long summer vacation period.
The mother’s position did not alter throughout the proceedings and it was confirmed by her counsel in closing submissions that she continued to seek orders in the terms of the Minute of Order attached to her case outline.
The Father’s Position
The father relied upon the following material:-
·His case outline filed 16 April 2015;
·Amended Response to Initiating Application filed 17 October 2014;
·His affidavit filed 19 January 2015;
·Affidavit of Mr K Bendon filed 2 March 2015;
·Affidavit of Dr C filed 11 September 2014;
·Children and Parents Issue Assessment prepared by Ms B dated 17 July 2014; and
·Family Report prepared by Ms B dated 10 March 2015.
At the commencement of the hearing, the father sought orders in the following terms:-
·That the father have sole parental responsibility for making decisions regarding the children;
·That the children live with the father; and
·That the question of the mother’s time and communication with the children be reserved.
The father’s case opened on 24 April 2015, being the fourth day of the hearing. In opening, counsel for the father submitted that the father sought orders for the mother to spend time with the children on the following basis:-
·That there be a period of three months where the mother spends no time with the children;
·That the mother engage in counselling to address her concerns regarding sexual abuse and her perception that the children have been abused by the father; and
·That at the expiration of three months, the mother spend supervised time with the children in Western Australia. The father proposed that he supervise the mother’s time with the children.
The father’s position in relation to the time the mother is to spend with the children altered following the oral evidence of Ms B, Family Consultant. In closing submissions, the father amended his position and sought orders in the terms of Exhibit R4, being a Minute of Orders sought. That Minute provides that the mother spend time and communicate with the children as follows:-
·Commencing June 2015 by telephone/Skype on Tuesday and Friday each week between 6.30 pm and 6.45 pm, the mother to initiate the telephone call and the father to be at liberty to monitor and terminate the call; and
·Commencing after 1 July 2015, supervised time in Western Australia, such time to be supervised by a professional supervision service if available, or alternatively by the paternal grandfather.
The ICL’s Position
The ICL relied upon the following material:-
·The ICL Case Outline filed 20 April 2015;
·Children and Parents Issue Assessment prepared by Ms B dated 17 July 2014; and
·Family Report prepared by Ms B dated 10 March 2015;
·Affidavit of Dr C filed 11 September 2014;
·Section 69ZW report of the Department of Human Services dated 29 September 2014; and
·Documents produced under subpoena by the Department of Human Services; Victoria Police; Commissioner of the Western Australian Police; the Department of Child Protection, Western Australia; Child Protection Victoria; Dr O; SECASA; H Town Primary School; and Dr P.
At the commencement of the hearing, the ICL indicated that she was not in a position to formulate specific proposals in relation to the care arrangements for the children until such time as the witnesses had given evidence and been cross-examined.
In closing submissions, the ICL sought orders in the terms of a Minute of Order dated 28 April 2015, being Exhibit ICL15. In summary, the position of the ICL at the conclusion of the hearing was as follows:-
·That the father have sole parental responsibility in respect of all major long-term issues for the children, save that the father shall prior to making such decisions:-
(a)Advise the mother in writing of the decision intended to be made;
(b)Seek the mother’s written response in relation thereto (and the mother to provide a written response if any within 14 days of being advised by the father of the decision intended to be made);
(c)Consider by reference to the best interests of the children any such response of the mother prior to making any such decision; and
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
·That the children live with the father.
·That the mother not communicate with the children subject to:-
(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 on Mondays and Thursdays; and
(c)Thereafter the mother be at liberty to forward written correspondence and gifts to the children.
·At the conclusion of two months after the children commence living with the father, the children spend time with the mother as follows:-
(a)Supervised by a professional supervising agency or person on such dates and times in Western Australia as may be agreed between the parties;
(b)Such other supervised time with non-professional supervisors as may be agreed between the parties; and
(c)Such other times as may be agreed between the parties.
·The mother be responsible for the costs of all professional supervision and her travel and accommodation costs in Western Australia.
Relevant Legal Principles
Section 60B(1) of the Act sets out the objects of Part VII of the Act. Those objects are to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining a particular parenting order, the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations the court must consider in determining what is in the child’s best interests. I will return to those considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. In certain circumstances, the presumption can be rebutted or not applied. For the reasons set out below, I am satisfied that it is not in the children’s best interests that the parents have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the children’s best interests and reasonably practicable for the children to spend equal time with each parent (s 65DAA(1) or substantial and significant time with each parent s (s 65DAA(2)). Given that I am satisfied that it is not in the children’s best interests that the parents have equal shared parental responsibility, the provisions of s 65DAA do not apply to this case.
The principal concern raised by the mother is that the father has sexually abused F and E. The correct approach in considering such allegations was considered by the High Court in M v M (1988) 166 CLR 69 (“M v M”). There the High Court made it clear that when proceedings involve an allegation that a child has been sexually abused, it does not alter the paramount and ultimate issue for the court, namely what is in the child’s best interests. The resolution of an allegation of sexual abuse is subservient and ancillary to the court’s determination of what is in the best interests of a child.
The High Court noted at page 77 that:-
… [T]here will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making the positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring … and assess the magnitude of that risk.
The High Court then considered how to define the magnitude of the risk and concluded that the test was best expressed by saying that the court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk of sexual abuse”.
The Full Court considered the principles to be applied in cases involving allegations of sexual abuse in its decision in In the marriage of B & B (1993) FLC 92-357. At page 79,778 it said as follows:-
The test propounded by the High Court in M v M and which is authoritative in this jurisdiction, is:- “That a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.
The “unacceptable risk” test is applied by the Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” (M v M at page 78). Thus, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the child in permitting time spent outweighs the potential benefit to that child of spending time with that parent.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362 Dixon J said as follows:-
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Given the serious implications of a finding that sexual abuse has occurred, the Court should not make such finding that it has occurred unless it has been proven to this higher standard.
The relevant standard of proof in relation to allegations of sexual abuse is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the Court must take into account the following:-
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
In determining the matter I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the father, the mother and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
The Issues
The issues in this case, as identified in the parties’ affidavit material and the Family Report, and during the course of the hearing may be summarised as follows:-
·Whether the children have been sexually abused or exposed to sexually inappropriate behaviour by the father;
·Whether the father poses an unacceptable risk of sexual abuse to the children;
·Whether the children are at risk of harm in the mother’s care due to her failure to provide an appropriate level of care for the children, particularly having regard to the needs of D and F who have been diagnosed with Cerebral Palsy;
·Whether either parent poses an unacceptable risk to the children and the consequences from a finding of unacceptable risk;
·The extent to which the children have been exposed to the dispute between the parents and the impact of such exposure;
·The capacity of each parent to appropriately care for and make decisions regarding the care, welfare and development of the children;
·With whom the children should live;
·The time the children should spend with the non-resident parent and whether such time should be supervised.
It is convenient to consider the issues for determination under the umbrella of the ss 60CC(2) and (3) considerations. I will first consider the primary considerations under s 60CC(2).
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
From the mother’s perspective and having regard to her application it is clear that her view is that the children are at risk of physical and emotional harm in the father’s care. As such, the mother challenged the benefit to the children of them having a meaningful relationship with the father.
Equally from the father’s perspective, by the conclusion of the hearing, it was his view that the mother’s time with the children should be limited and supervised. Simply put, the father says that the children’s physical and psychological welfare is compromised when in the mother’s care. Further the father alleges that his relationship with the children has not been and will not be supported by the mother; if the children remain in the mother’s care, they will be deprived of the opportunity of having a meaningful relationship with the father.
The position of the ICL was that whilst it is generally in the interests of children to have a meaningful relationship with both parents, having regard to the geographical distance between the parties and the possibility that the mother may walk away if she does not achieve her proposal, as stated by her to the Family Consultant, Ms B (Family Report dated 10 March 2015, paragraphs 34 and 46), it may not be possible for the children to have the benefit of a meaningful relationship with both parents.
The ICL submitted that the children would benefit from having a meaningful relationship with both parents, but in order to have such relationship with the mother, the children require safeguards to ensure that their physical and psychological health and well-being is not compromised.
The question of what is a meaningful relationship was considered by Brown J in the decision of Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. Her Honour concluded at paragraph 26 of that judgment that a meaningful involvement “is one which is important, significant and valuable to the child”. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents, that is, one that is important, significant and valuable as defined by her Honour.
The Full Court considered what is meant by a meaningful relationship in the decision of McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 and concluded that:-
119. … the preferred interpretation of the benefit to a child of having a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
By the conclusion of the hearing that the children should have a meaningful relationship with both parents was not in issue; the central issue for determination was whether the children’s relationship with both parents could be supported having regard to the very serious allegations raised by each parent against the other.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The mother commenced proceedings in the Federal Circuit Court at Melbourne by Initiating Application filed 12 March 2014. Accordingly, the provisions of s 60CC(2A) apply. Therefore, the Court is to give greater weight to the considerations set out in sub-paragraph (2)(b).
Have the children been sexually abused by the father?
At the heart of the mother’s application that the father poses an unacceptable risk to the children are her allegations that the father has sexually abused the children or behaved in a sexually inappropriate manner towards them. In support of that allegation the mother identifies three events in her trial affidavit filed 18 December 2014 (“the mother’s trial affidavit”) which gives rise to her concerns. The first of those events is said to have occurred on 26 July 2012 when it is alleged that the father anally penetrated F, placing his hand in her bottom. The second incident occurred on or about 1 August 2013 when it is alleged that the father inappropriately touched F between her legs. The third category of concern raised by the mother relates to disclosures said to have been made in the period between August and October 2014 by F and E that the father inappropriately touched them.
In addition to those matters, the mother raises concerns as to her observations of sexualised behaviour by D towards F which is said to have occurred in December 2013.
During cross-examination, the mother raised a further allegation with respect to the father’s conduct towards F. She alleged that on one occasion when F was aged approximately four years, the father permitted F to touch him on his groin when seated at the kitchen table. That allegation had not previously been raised by the mother.
Allegation that father sexually abused F in July 2012
On 26 July 2012, the children were in the care of the father at the parties’ home whilst the mother attended to the family shopping. At that time, D was aged almost seven years, E was almost five years and F was aged three years and five months. Upon the mother’s return home from shopping, she put the children to bed. F’s nappy was not changed prior to her being put to bed that evening.
In her trial affidavit the mother deposes that F was unsettled that night and that she gave F a bottle at approximately 5.00 am. Although she was unsettled, the mother did not change F’s nappy during the night.
At paragraph 12 of her trial affidavit the mother deposes as follows:-
The next morning when I was changing [F’s] nappy I noticed blood and yellow spots in her nappy. I recall asking the [sic] [D] and [E], who were standing near me at the time if the Husband had touched [F], meaning, wiped [F’s] bottom while I was out the previous night. [D] then told me he saw the Husband stick his hand in [F’s] bottom. I recall [F] then said words to me to the effect of “it was a big ouch. I cried”.
During cross-examination, the mother was unable to recall whether she had asked F if the father had touched her. She confirmed she accepted D’s statement and that it was her belief that the father had placed his hand in F’s anus. Notwithstanding that belief, the mother confirmed in her oral evidence that F was not exhibiting any signs of pain on the evening that abuse is said to have occurred. She could not recall whether F had any bruising around her bottom.
The mother’s evidence was that the two yellow spots she observed in F’s nappy looked like “cum”. She stated that upon her return home from shopping F greeted her at the door and that her presentation appeared normal. When asked by counsel for the father whether F appeared distressed the mother could not recall. During cross-examination by counsel for the ICL the mother conceded that it was possible that what D observed was the father merely wiping F’s bottom after she had toileted. She also conceded that had the father placed his hand in F’s bottom, it would be “painful and messy” and confirmed that F exhibited no pain upon the mother’s return home from shopping.
On 27 July 2012, following D’s alleged disclosure the mother telephoned the father to inform him of that disclosure. At the time of that call the father was at work. The father’s evidence is that upon receipt of the call from the mother and being informed of the alleged disclosure, he told the mother that he would discuss the matter with her upon his return home from work.
In paragraph 13 of her trial affidavit the mother deposes that upon the father’s return home from work she repeated to him what D had said. She deposes that the father denied those allegations.
During cross-examination the mother conceded that her discussion with the father regarding D’s alleged disclosures occurred in the presence of the children. She further confirmed that all of the children were involved in the discussion regarding the alleged disclosures.
During cross-examination the mother indicated that she did not know what to think when faced with D’s disclosure. She stated that she telephoned her mother to seek advice as to what to do and that her mother advised her to take F to the doctor if there was a further disclosure.
The mother conceded during cross-examination that F had previously had difficulties with constipation; she confirmed that F had previously had some rectal bleeding when using her bowels.
Later in cross-examination by counsel for the ICL, the mother disclosed that on the afternoon of 27 July 2012, being the day she observed the blood and yellow spots in F’s nappy, D was stung by a bee. Due to his allergy to bee stings, the parties took D to the I Town hospital for treatment; all of the children, including F, attended the hospital. Notwithstanding the attendance of the family on the I Town Hospital that afternoon, the mother confirmed that she sought no treatment or assessment of F with respect to the alleged sexual abuse. Given the allegations that the mother observed blood as well as yellow spots in F’s nappy and D is said to have seen the father stick his hand in F’s bottom, the failure of the mother to seek any assessment or treatment for F in circumstances where she found herself at the emergency department of the hospital is extraordinary.
Approximately 10 days after the alleged disclosure by D, the father commenced sleeping in his motor vehicle in the driveway of the former matrimonial home. He continued to sleep in his car from that time until the parties’ physical separation in September 2013 when the mother and the children commenced living in Victoria. The father’s explanation for sleeping in the car was that he did so to remove himself from the conflict and avoid arguments with the mother. He described the mother as being extremely volatile and moody, said that she yelled and that his response was to walk away from that behaviour. The father otherwise continued to assist the mother with the care of the children; the mother conceded that if the children were ill or she needed assistance with their care she continued to call upon the father for such assistance.
The mother and children moved to Victoria to live in September 2013. The mother maintains that the move was intended to be permanent. The father disputes that allegation. In support of her position the mother relies upon the fact that the parties listed the former matrimonial for sale prior to her departure from Perth and that household chattels were transported to Victoria. The father conceded that the home was listed for sale but maintains that the property was never going to sell at the price listed; the father’s view was that the mother would tire of living in Victoria after a few months and return to Perth. Whether the move to Victoria was to be permanent or not is not a matter about which I need make findings; it is a matter not relevant to my determination as to the children’s best interests.
Reporting of the 26 July 2012 allegations
The allegations as to the father’s behaviour on 26 July 2012 were not reported to any authority for a period of approximately 17 months, after the mother and children had moved to Victoria. That disclosure was made by D during an appointment with a general medical practitioner, Dr O, on 8 December 2013.
At that time, the mother and children were living with the maternal grandmother at her home in H Town, Victoria. The mother deposes in her trial affidavit as to an evening in December 2013 when the children were playing at a caravan at her mother’s residence. At paragraph 23 of the mother’s trial affidavit she deposes that whilst assisting F in toileting F disclosed to her that D had looked at F’s bottom. The mother’s response to that disclosure was to question D as to why he was looking at F’s bottom and to inform D that she would take him to an appointment with a doctor to enable D to discuss the matter.
At paragraph 24 of her trial affidavit, the mother deposes that D attended upon Dr O on 8 December 2013. The mother did not accompany D into the consultation. The maternal grandmother confirmed during her oral evidence that all of the children, the mother and the maternal grandmother accompanied D to the doctor’s clinic; the maternal grandmother described the occasion as “a morning out”. Given the alleged purpose of the appointment was for D to discuss his sexualised behaviour towards his sibling, I find the attitude and approach of the mother and the maternal grandmother to that appointment to be bizarre. At the time D was aged eight years; that the mother considers it appropriate to allow him to attend a consultation with his doctor to discuss such sensitive issues alone is extraordinary, particularly so given that D has cerebral palsy.
It was during that appointment that D disclosed to Dr O that the father had “put his finger on F’s bum” (Exhibit ICL12). As a result of that consultation, Dr O made a notification to the Department of Human Services (“DHS”).
As a consequence of that notification the allegations were investigated by the police and DHS.
On 10 December 2013 the children were interviewed by police. Exhibit ICL12 is the file of Victoria Police with respect to investigations into those and subsequent allegations made regarding the father’s conduct. The police notes of 10 December 2013 in relation to the interview with D regarding his disclosure record the following:-
… [D] explained who he lived with and immediately explained that they left their dad behind (in Perth) because he did something naughty.
When questioned further about that [D] disclosed that he had seen his fathers [sic] hand go into [F’s] bottom but couldn’t give any more specific detail about what part of his fathers [sic] hand was used or what part of [F’s] bottom was touched.
[D] couldn’t describe what [F] was doing or what position she was in at the time.
[D] was aware of his private parts and did not disclose any offence committed against him.
E was also interviewed on 10 December 2013. The notes of E’s interview record the following:-
[E] was aware of his private parts and when asked who could touch his private parts explained that mum could but no-one else.
[E] stated that no one else had touched his private parts or asked him to touch their private parts.
When questioned about why his father slept in his car he said, “coz he touched my sisters [sic] rude part” and that he knows that because his mum had told him.
During F’s interview, her statements were reported as follows:-
[F] stated she did not like her dad as he looks at her rude parts and further explained this happened a time when she was on the toilet (it is suspected this occurred since the family have been living in [H Town]). [F] was aware of her private parts and stated no-one had touched her.
[F] stated that [D] took her pants down and looked at her rude parts when they were in her nanna’s caravan watching Bindi.
It was as a result of this incident that the mother … took [D] to the doctor to discuss his sexualised behaviour/interest.
No further police action was taken following those interviews. The police report noted that whilst the information provided by the children is concerning there was no specific offence disclosed by any of the children.
Of particular concern arising from those interviews, from the Court’s perspective, is the statement reportedly made by E to the police that he was informed by his mother that his father had inappropriately touched F.
The statements of both D and F provided little detail of the father’s alleged inappropriate touching. No timelines were provided and no specific detail given as to the alleged inappropriate touching of F by the father. The interviews were conducted almost 17 months after the touching is alleged to have occurred.
I have significant reservations as to the weight that can be attached to those disclosures in circumstances where it would appear that the mother has discussed with at least one of the children the allegations and where there is so little particularity as to what is said to have occurred.
Counsel for the ICL cross-examined the mother in relation to the events of December 2013 and her response to D’s sexualised behaviour towards F. She was questioned as to why she took D to see Dr O rather than his usual general medical practitioner, Dr P, whom D had been seeing since September 2010. The mother proffered no explanation for that decision other than that Dr P is very busy.
It would appear from the notes with respect to the police investigation (Exhibit ICL12) that the maternal grandmother, Ms J, provided much of the information relied upon in the notification by that doctor to DHS. The police notes of interview with Ms J indicate that Ms J informed the Police of the following:-
·That the maternal grandmother had been to Perth to help look after the children;
·That the maternal grandmother saw blood on F’s nappy herself;
·When E went to defecate, it looked like a big chunk of semen;
·E felt scared to shower with his father;
·She had never seen anything happen, however it was the children’s reaction which made her believe that the father had done something to them.
Given that Ms J was not in Perth at the time of the alleged sexual abuse on 26 July 2012, the statement attributed to her in the police notes that she saw blood in F’s nappy is extremely troubling. Ms J could provide no explanation for the content of the notes.
The mother confirmed during cross-examination that, following the investigation by the police and DHS in December 2013, she was advised to work with DHS in relation to child welfare and that the police were not proposing to take any further action unless further evidence was produced.
A second notification was made to DHS on 10 April 2014. The mother could not recall whether or not she had made that notification. At the time of that notification, the parties had a pending hearing before Judge Small in the Federal Circuit Court on 28 April 2014. As a result of that notification, D was interviewed by police on 25 April 2014 and a VARE statement was obtained from him. The notes of that interview (Exhibit ICL12) are as follows:-
During the VARE statement of [D] it appears he has often spoken to his mother about the incident as he made comments including:
dad touched my sister “inappropriate”
“When I was talking to my mum about this”
“[F] was the victim”
The police notes with respect to that interview conclude as follows:-
[D] describes that he saw his father penetrate his two year old sister’s anus with four fingers.
[D] describes that his father was wiping F’s bottom and that she was bending over at the time.
If an adult male did penetrate a two year olds [sic] anus with four fingers it would have caused significant pain and injuries to the child which there is no evidence of.
It is quite feasible that the father was only wiping the subject’s bottom after she had gone to the toilet (pot).
There is insufficient evidence to warrant further investigation in relation to this matter.
Counsel for the ICL cross-examined the mother with respect to the VARE interview of D conducted on 25 April 2014. The mother’s recollection of that interview and the circumstances of the interview were vague. When questioned about D’s use of words such as, “inappropriate” and “victim”, the mother was unable to state how D, who was then aged almost nine years, would have known of such words.
The father is adamant in his denial of the allegations raised against him. He described the allegations as “disgusting” and stated that they were “as bad as it gets, terrible”. The father was a softly spoken and earnest witness; he appeared genuinely appalled by the allegations made against him. Throughout his evidence the father impressed as an honest and forthright witness; he impressed as a loving father who sought to be reunited with the children and to have a meaningful relationship with them.
The father was cross-examined by counsel for the ICL in relation to the mother’s allegations. During cross-examination the father confirmed that the parties discussed the allegations upon his return home from work on 27 July 2012. The father confirmed that he was distressed by the allegations. He stated the mother’s response at that time was words to the effect that he should not worry about the allegations as “it’s just [D] being [D]”. The father stated that the mother raised the allegations “every now and again”; it was his view that she raised the allegations in order to agitate him.
It was the father’s evidence that F suffered from constipation and that previously the mother had shown him discharge in F’s nappies. During cross-examination by counsel for the ICL the father confirmed that he was never shown F’s nappy which is said to have had spots of blood.
I accept the evidence of the father in relation to the events of 26 and 27 July 2012; the father’s account was measured and logical.
The account of those events as reported by the children to the mother, police and workers at DHS varied from the father placing his hand, four fingers or a finger in F’s bottom. The mother’s recall of the circumstances when disclosures were said to be made to her and indeed her recall as to the nature of those disclosures was poor. At times the mother was vague and unresponsive when cross-examined with respect to those matters. Given the seriousness of the alleged disclosures, it seems implausible that the mother would have such a poor recollection of those events.
There is no independent medical evidence to support the mother’s contention that the father placed his hand or fingers in F’s bottom. The mother’s evidence as to F’s behaviour in the aftermath of that alleged abuse is inconsistent with the allegations of abuse. The mother’s own description of F upon the mother’s return from shopping was that she appeared normal. F exhibited no discomfort or pain notwithstanding what is alleged to have been serious physical abuse by the father. That the mother did not seek any form of medical intervention on behalf of F, particularly in circumstances where she attended the emergency department of the local hospital the following day, is incredible. That view is bolstered when one considers that the matter was not disclosed to any authority until approximately 17 months after the abuse is alleged to have occurred.
It was only during cross-examination by counsel for the ICL that the mother conceded that what D may have observed on 26 July 2012 was the father wiping F’s bottom after she had been to the toilet; having regard to all of the matters referred to above, I am satisfied on the balance of probabilities that that is the most likely explanation for what D observed that day.
Did the father touch F inappropriately in the living room in August 2013?
The mother alleges that on 1 August 2013, when still living in the former matrimonial home in Western Australia, she observed the father touching F inappropriately in the family living room. At the time, F was aged four and a half years.
At paragraph 19 of the mother’s trial affidavit she deposes as follows:-
On around 1 August 2013 [F] was standing with her head resting in the Husband’s lap who was sitting down. [F’s] head was between the Husband’s legs. I told the Husband I didn’t think it was appropriate that [F] was laying on his lap in that way and I asked him to turn [F] around. I then saw the Husband put one hand between [F’s] legs and slid his hand from front to back. He then moved his hand onto [F’s] back and turned her around so that she was facing away from him. [F] did not have a nappy on at the time. The Husband said to me he thought that [F] was wearing a nappy.
The mother was cross-examined by counsel for the father and the ICL in relation to this allegation. The mother confirmed in her oral evidence that at the time of the alleged abuse, the children were watching television with the father in the living room. All of the children were present in the living room at the time the abuse is said to have occurred. The mother confirmed that she asked the father to turn F around and that in doing so he had one hand on her bottom and one hand on her back to turn her around. The mother conceded that the incident lasted a couple of seconds and that F was dressed at the time. She was wearing underpants together with a long-sleeved top and was dressed for bed.
When asked as to what was her concern with respect to the incident, the mother’s evidence was that the father had slid his hand between F’s legs. She confirmed that she considered that behaviour to be sexual abuse.
The father was cross-examined with respect to the mother’s allegations. Again he was steadfast in his denial of any inappropriate touching of F. The father denied that he had touched F’s genitals. It was his evidence that he was sitting on the floor and that he turned F over in a game of “roly poly”; any touch to her bottom or crotch was innocent, in the context of turning her over and lasted a matter of seconds. Otherwise, the father’s evidence is that the only time he has touched F’s bottom or genitals is in the context of bathing her and changing her nappy.
The mother’s view of the incident, which on her own evidence lasted but a few seconds, must be considered in the context of the evidence of Dr C, who conducted a psychiatric assessment of both parties, and Ms B, Family Consultant, who has observed the parties and produced a Family Report in relation to her observations.
Dr C assessed the mother on 6 August 2014. The history provided by the mother to Dr C details a history of her exposure to violence and sexual abuse commencing at age six. She reports to Dr C that she was sexually abused by her first step-father when aged six, and again when she was 16 or 17 and that when she was 19 she reported that he wanted her to “lie down and give him a hug” (report of Dr C dated 11 August 2014 annexed to his affidavit filed 11 September 2014 (“Dr C’s report”)). She described that incident to Dr C as inappropriate behaviour. The mother also reported to Dr C that she was raped at age 16. The mother reported that she was physically abused by her step-father when he was drunk on at least one occasion.
As a result of her experiences the mother confirmed to Dr C that with respect to inappropriate behaviour and sexual abuse “I know what to look out for. It’s the behaviour of certain people and how they behave. It’s made me more street-wise”.
At page 6 of Dr C’s report, Dr C assessed the mother’s cognitive functioning as follows:-
… she 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. Her serial sevens were done accurately and quickly. Her interpretation of proverbs was concrete.
Dr C’s report provides a summary of the mother at page 6 in the following terms:-
From early on in her life she alleged she has been sexually abused. Her account of this was vague and it appeared that her mother had made her aware of such difficulties with men from an early age. She alleged she was raped at the age of 16. Those experiences she said made her particularly wary of the possibility of abuse involving children and their fathers.
On page 7 of his report Dr C notes that the mother’s description of her childhood suggests that it was dysfunctional, that she struggled at school, that she was cared for by various relatives at different times, that she has never worked, and that she “simply stayed home and appears to have developed an overly dependent relationship with her mother”.
Dr C’s view was 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”.
In conclusion, Dr C reported at page 7 as follows:-
[The mother] 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 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…
Dr C is a consultant psychiatrist who has been in private practice for almost 30 years and is experienced in conducting assessments for the Family Court. There was no challenge to his qualifications or experience. His evidence was thoughtful and measured. I accept his evidence with respect to the mother’s functioning.
At the time of the preparation of the Family Report of Ms B dated 10 March 2015 (“the Family Report”) Ms B reports at paragraph 39 that “[the mother] is insistent that [the father] has sexually abused the children and she repeated allegations providing additional information about [the father] ‘…inappropriately handling F and touching her between the legs’.”
Ms B has had the opportunity to observe the family over two reports, having also prepared a Children and Issues Assessment in the matter on 17 July 2014. In the Family Report Ms B concludes that there are a multitude of inconsistencies in the reports of the mother as to her allegations of sexual abuse. At paragraph 110 of the Family Report Ms B identifies that those inconsistencies in the narrative are a strain on credibility in two ways. She notes that:-
… The first are the revisions of her narrative in the face of evidence to the contrary including the children’s disputation of some of her allegations. The second element reveals a pattern of reporting hinted at during this assessment and is [the mother’s] tendency to report events inaccurately escalating the drama and with scant attention to the actuality of the event. Both situations create significant difficulties in determining what events have actually occurred and at what magnitude in [the mother’s] world of experience. There is no doubt though that part of this drama is about drawing attention to herself consistent with observations of her as being socially inappropriate.
Ms B was cross-examined in relation to her assessment. During cross-examination by counsel for the mother Ms B described the mother’s allegations of sexual abuse and her motivations for those allegations as follows:-
I think she is entirely manipulative. She knew what would happen when she made those claims. And she made those – I mean there are things that are uncomfortable for anybody who deals in the arena of sexual abuse. You have a child that you claim is up all night screaming. You talk about cum and blood in their nappy. You don’t take them to a doctor. You don’t report it to the police. You do nothing about it. You sit on it until you get … to another state where you wanted to be in the first place… [The mother] has been very open about that. And then at some time later, a doctor that the children don’t see historically, the child is taken there and he makes some statement and then the reporting process unfolds. It was never managed in any mature, responsive, protective fashion by the mother. So I think it served her – these claims served her purpose.
Ms B holds the position of Family Consultant. She is a psychologist and has experience as psychologist in private practice, as a mediator, counsellor, child consultant and as a family dispute resolution practitioner. Her qualifications were not challenged. She has observed this family across two assessments on 17 July 2014 and on 3 March 2015. The Family Report dated 10 March 2015 is detailed and thorough. During cross-examination, Ms B was careful and considered. Her observations with respect to the family were compelling and insightful. Accordingly I accept her evidence.
During cross-examination by counsel for the mother, Ms B was asked to comment on the mother’s assessment of the alleged sexual abuse. In response Ms B questioned the accuracy of the mother’s reporting. She identified as one of the issues in the case the accuracy of the mother’s reporting. The issue from Ms B’ perspective was “the lens you look at things through”. In the mother’s case, it was her observation that the mother considers all matters through a lens of sexual abuse. With respect to the allegation that the father permitted F to touch him inappropriately she noted as follows:-
How is that inappropriate? There would be kids all over Melbourne that will be doing that. Parts of bodies get touched. It doesn’t necessarily mean a fondle. And a fondle takes time. And in that time if there was a fondle, surely as a mother you would have raised your voice and stopped the process and indicated your extreme anger… So I think it has got to do with the lens with which things are examined.
Having regard to the mother’s evidence of the alleged inappropriate touching, that it occurred in the presence of the children and the mother, that it lasted a few seconds and that it was a touch which occurred in the context of the father turning F over, in what was described as a “flipping” motion, I am satisfied that this is an event viewed by the mother through the lens of sexual abuse. In my view the mother’s evidence does not support her contention that the father touched F inappropriately on that occasion.
Allegations of D’s sexualised behaviour
Following the mother’s return to Victoria with the children in September 2013, she alleges that she observed sexualised behaviour by D towards F in December 2013. As a result of her observations of D looking at F’s bottom, the mother arranged an appointment for D to attend upon Dr O, It was at that appointment that D is alleged to have made disclosures that the father had sexually abused F, sticking his hand up F’s bottom. I have addressed those allegations earlier in this judgment.
Did the father permit F to touch him inappropriately?
During cross-examination, the mother alleged that in early 2013, whilst she was in the kitchen and the father was seated at the kitchen table, she observed F approach the father and put her hands on the father’s groin. The mother confirmed that the father was wearing trousers and was seated. The mother alleged that F’s hand went around the father’s penis. The mother alleged that when she asked the father to stop F from touching him the father responded by laughing at her.
During cross-examination by counsel for the ICL the mother confirmed that she did not consider that incident to be one of sexual abuse by the father towards F. Rather, the mother viewed the father’s response to F’s behaviour as a failure by him to place appropriate boundaries around the child’s behaviour.
During cross-examination by counsel for the ICL the father confirmed he recalled the incident and that it occurred in early 2013. The father confirmed that F approached the father whilst he was seated at the kitchen table and rested her hands in his lap. The father’s evidence was that F’s hands were in his lap for a matter of seconds. Further, the father’s evidence was that the mother remonstrated with him and stated that he should never permit such behaviour to occur again. The father’s evidence was that he responded to the mother’s reaction with incredulity; he stated that he thought the mother “was kidding”.
The father stated that the incident occurred shortly after he had returned home from work. He entered the home, seated himself at the kitchen table and F came to greet him. F was either almost four years or had recently turned four at the time of that incident.
The mother’s evidence in relation to this incident was vague and unconvincing. The allegation was raised by her for the first time during cross-examination by counsel for the father. My impression was that the matter was raised by the mother in an effort to bolster her case. In contrast, the father’s description of the incident was forthright and reasonable and I prefer his evidence in relation to the incident.
I am satisfied on the basis of that evidence that the incident was little more than a casual and innocent touch by a young child to her father’s lap when greeting him upon his return home from work. I am satisfied that there was no inappropriate touching between F and her father on that occasion and further that the father did not act inappropriately on that occasion.
Has the father touched E inappropriately?
At paragraph 30 of her trial affidavit the mother alleges that on 11 September 2014 after he had returned home from school, E told her that the father had played with his “willy” and that he “didn’t like it”. The mother deposes that her response to that disclosure was to take E to the Q Town police station where E made a statement.
The Victoria Police notes disclose that E was taken by the mother to the police station on 3 September 2014, eight days prior to the alleged disclosure (Exhibit ICL12). On that day an interview was planned with E for 4 September 2014. That interview was conducted by Senior Constable Guerin in the presence of L of DHS. During interview E was reported to state as follows:-
[E] stated that he did not like when his Mum and Dad would fight and they would fight a lot. [E] stated that he was happy to stay with dad and missed him when he was not with him.
[E] said that Dad would kiss them on the cheek and tell them he loved them. No disclosures were made of a sexual nature.
When the mother presented to Q Town police station with the children on 11 September 2014, E was not interviewed on that occasion as there were no immediate concerns for the children’s welfare.
The alleged disclosure by E occurred approximately two weeks prior to his scheduled holiday time with the father in Perth.
On 17 October 2014 after that holiday period, the mother took E to see his general medical practitioner, Dr P. E was aged seven years at the time of that consultation. The mother waited outside the consulting room during E’s attendance.
That the mother considers it appropriate for a child of E’s age to attend a consultation with his doctor alone in my view raises serious concerns as to the mother’s parenting capacity; the mother demonstrated little insight that such an experience may be overwhelming, confusing or frightening for a child of such young age.
Dr P’s notes record that E informed him that his father had touched his “doodle” and F’s “bump” [sic]. E also complained that he had to look after his elder brother during the visit to Perth. Dr P’s notes also record that the mother has an intervention order against the father. As a result of the disclosure by E to Dr P a notification was made to DHS.
Similar allegations were repeated by E to Ms B when interviewed for the Family Report. At paragraph 81 of the Family Report Ms B notes that “as E entered the interview room, the pleasant child morphed into ‘character’ offering” what she described as an “orchestrated recitation”. She reported E’s disclosure that:-
[the father] played with my doodle in Perth years ago… I was in the bath laying down and he came and played with my doodle, he is a naughty man. Mum feels she would like to stab him in the rib, she wants us to be rid of him, he hides food under the couch, he is very, very rude. Nan doesn’t like him, he is horrid, Pop doesn’t want to hear about him and wishes he was never born.
Ms B’s evidence as to E’s disclosures was not challenged.
It is evident from E’s statements to Ms B that the mother and maternal grandparents have engaged in discussion with E regarding the father; the attitude of those adults towards the father has been clearly communicated to E. There has been no attempt by the maternal family to conceal from E that the mother wants to be “rid of [the father]”. Ms B’s account of E’s report provides a chilling insight as to the attitudes and influences to which he is exposed in the mother’s household.
The observations of Ms B of the children with the father are in stark contrast to the allegations made by the children during discussions with her. For example, at paragraph 102 of the Family Report Ms B notes that:-
With little discussion, [the father], [D] and [E] join together excitedly playing Foosball, calling out to each other and laughing, [the father] providing instructions and compliments to the children.
At paragraph 105 of the Family Report Ms B notes that when leaving the childcare room the father asks E for a hug and E replies suggesting “one hug, I’m playing” and then allows himself to be stroked and he and his father share a thumb-shake. Again, the evidence of Ms B was not challenged. Ms B reports that the children have a strong emotional connection with the father. I accept that evidence.
The notes of both Victoria Police and DHS raise significant concern that the children have been coached. The concern raised by Ms B and those agencies is that the children’s reports have been tainted by the influence of the mother and others within her constellation.
Having regard to the manner in which E made disclosures to Ms B, I am satisfied that there is a significant basis for those concerns. E was aged seven years and eight months at the time of interview by Ms B; he was then reporting abuse said by him to have occurred “years ago”.
That disclosure is in stark contrast to the statement made by E to Victoria Police at interview on 4 September 2014 as noted earlier in the judgment. Consistent with the statements made by E on 4 September 2014 during interview by Victoria Police on 10 December 2013 the notes of interview (Exhibit ICL12) record as follows:-
[E] was aware of his private parts and when asked who could touch his private parts explained that mum could but no-one else.
[E] stated that no-one else had touched his private parts or asked him to touch their private parts.
When questioned about why his father slept in his car he said, “coz he touched my sisters rude part” and that he knows that because him mum had told him.
At the commencement of the police investigation of the matter, E made clear and positive statements that he had not been touched inappropriately. Since that time he has been exposed to ongoing investigations by DHS and police at the behest of the mother. It is evident from the statements made by him to Ms B that he has been subjected to inappropriate commentary by the mother and maternal grandparents which have cast the father in a negative light. The behaviour of E with the father observed by Ms B conflicts with the statements made by him at interview; the observations of Ms B indicate that E shares a warm and loving relationship with the father.
Accordingly, I am satisfied on the balance of probabilities, having regard to the inconsistencies with respect to E’s statements, the circumstances in which the disclosures have been made and the role played by the mother and maternal grandparents in the making of those disclosures, that E has not been sexually abused by the father.
Has the mother and/or the maternal family coached or influenced the children to make disclosures?
Coaching or influence by the mother
The father alleges that the children have been coached by the mother or her family members to make disclosures of inappropriate conduct by him towards the children. There is much force in that submission when one has regard to the history of the children’s disclosures to the police and DHS in the aftermath of the initial disclosure in December 2013, and in the context of the Family Court proceedings. The chronology of those disclosures is as follows.
As noted above, all of the children were interviewed by Victoria Police on 10 December 2013, following notification by Dr O.
D was interviewed by Victoria Police on 25 April 2014. As noted earlier in this judgment, the police notes disclose concerns that D had discussed the allegations with the mother. At the time of that interview the matter was listed for hearing in the Federal Circuit Court on 28 April 2014.
On 2 September 2014 the mother, the maternal great grandmother Ms R, and F attended at Suburb S Police Station. The purpose of that attendance was to report disclosures said to be made by F to the mother and Ms R on 25 August 2014. That attendance occurred shortly prior to the children spending time with the father for one week in Western Australia for the September 2014 school holidays in accordance with the orders made by Senior Registrar Fitzgibbon on 19 August 2014. During that attendance upon the police, Ms R alleged that F had disclosed to her that she was not looking forward to her holiday in Perth as she did not want her father to hurt her. The police notes disclose that Ms R reported that she then questioned F as to how the father hurt her and F responded stating “[h]e stuck a finger in my bum and it hurt”. It was also alleged that E had made disclosures to his uncle, [Mr T], that his father “used to play with [his] willy”.
As a result of those allegations an appointment was arranged for F and E to be interviewed by Mr L of DHS on 4 September 2014. During that interview, the notes of interview (Exhibit ICL12) report that F described her father as being “naughty” and when asked about what she meant F stated that the father had “stuck his fingers in her ‘fanny’ and pointed to her vagina”. F went on to disclose that the father had put his fingers inside her vagina and that he had toilet paper for when she had finished on the toilet. F further stated that she told her father no to touching her on the vagina and that her mother and E were there and could see the incident. F was asked about the circumstances of the incident but could recall nothing further about that incident. The notes record that F stated that her mother had promised her “Maccas” for coming and speaking with the police. That interview with F was conducted more than two years after the alleged sexual abuse.
The disclosures made by F during that interview are particularly disturbing, given that there is no allegation made by the mother that she saw the father touching F’s vagina. The mother conceded during cross-examination that that incident, as reported by F, did not occur.
Where practicable it was conceded by the father and the ICL that such time should be spent at a contact centre. That proposal was supported by Ms B. However, given the difficulties in securing places at such centres the question was raised as to alternatives to a contact centre. Ms B was asked whether she had a view as to whether the father should provide supervision in the event that a place at a contact centre is not available. Ms B was clear in her view that the father was not appropriate to supervise the mother. That evidence was based upon the parties’ marital history and the difficulties the father had managing the mother’s behaviour. Further, she pointed to the allegations raised by the mother against the father and stated that having regard to those allegations the father should not be placed in the position of supervisor. I share that view.
Further, Ms B expressed the view that the children should feel relaxed when spending time with the mother. It was her view that the presence of the father may stifle that environment. I accept that evidence.
As an alternative, it was proposed that the paternal grandfather provide supervision. Ms B’s view of the paternal grandfather as a supervisor was more positive. She noted him to be a contained, quietly spoken gentleman and that there would be less likelihood of “things becoming volatile” if he were to be the supervisor. The paternal grandfather was called to give evidence. My observation of him during his evidence was that he is a gentle, moderate man who seemed somewhat bewildered by the allegations raised against his son. The evidence of Ms B supports the view that the children have a positive and loving relationship with the paternal grandfather. During his evidence, he confirmed his willingness to act as a supervisor of the mother’s time if required.
In the circumstances, I am satisfied that in the event that a contact centre is not able to assist the parties, that the paternal grandfather is an appropriate person to supervise the mother’s time with the children.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I have addressed these issues earlier in the judgment.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have addressed the issues with respect to allegations of sexual abuse earlier in this judgment.
The mother made application for Intervention Order in the Magistrates' Court of Victoria on 20 December 2013. That application was made in the aftermath of the disclosures by D to Dr O about which I have made findings earlier in this judgment. The application of the mother was listed for a contested hearing on 20 August 2014. However the mother withdrew her application prior to that contested hearing.
On 18 September 2014 the mother made a further application for an Intervention Order naming the father as the respondent and the children as protected persons. That application was made shortly prior to the children’s departure for Perth for holidays with the father pursuant to Court order and the day after the mother and the children had a home-visit and interviews by Mr L of DHS. That application was listed for a contested hearing on 16 December 2014. Again the mother withdrew that application prior to the contested hearing.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Clearly, it is desirable that any orders made finalise the proceedings between the mother and the father. The children have been the subject of litigation for a period of almost two years. The burden of that litigation and being embroiled in the dispute between their parents has had a significant impact upon them.
Sadly, given the mother’s attitude and demeanour and her limited capacities as identified by Dr C it is necessary that her time with the children be supervised.
Ordinarily, the Court is reluctant to make orders for long-term supervision, although it can and should do so if it is determined that such orders are in the children’s best interests. The Full Court cautioned against the making of such orders in the absence of a review mechanism (see Champness & Hanson 2009 FLC 93-407; [2009] FamCAFC 96; Slater & Light [2013] FamCAFC 4; (2013) 48 Fam LR 573). Those decisions express concern as to making orders for long-term supervision without at least providing an opportunity for the party the subject of the supervision order to have some mechanism for seeking to remove the supervision requirement.
In this case, the mother has demonstrated little insight or awareness as to the impact of her behaviours upon the children, which has had a devastating impact upon their relationship with the father.
Dr C has given evidence as to his assessment of the mother’s limited intellectual capacity. Further, in his oral evidence Dr C expressed in the strongest of terms that it was his view that the mother has little prospect of developing insight, even with the assistance of counselling. His summation of the mother’s position is as follows:-
… This is a woman who is not functioning at an adult level. She is, as you say, enmeshed and totally lives her life in a world through the prism of her mother and her mother’s view of the world and men. So what we are dealing with is the system. And it would require some form of systemic intervention to assist the process [of change].
In order to effect any change, or development of insight, it was Dr C’s view that not only would the mother need to engage in therapeutic counselling but that her mother, Ms J and the maternal great-grandmother, Ms R would also require such therapeutic assistance. That view is based on the evidence of Ms J and her views expressed with respect to the allegations that the father has sexually abused the children. Dr C’s assessment is that the prognosis for any change in the mother or indeed in the system, as he described, of the mother, maternal grandmother and maternal great-grandmother is very low. Further, Dr C’s view was that such change would likely be resisted by the mother and her family.
If the mother were to engage in on-going therapeutic intervention to address the issues as identified by Dr C it may be that in the future she is in a position to seek orders for unsupervised time. From the children’s perspective this would be a positive outcome. Further, if the mother were to return to live in Perth, Western Australia (which was not part of her application before the Court), it is likely that she could have supervised time with the children on a more frequent basis.
Whilst it is generally preferable that proceedings end, it is to be hoped from the children’s perspective that the mother considers the assessment of Dr C and actions his recommendations regarding therapeutic intervention so as to create an environment where unsupervised time may be contemplated in the future.
(m) any other fact or circumstance that the court thinks is relevant
There are no other relevant facts or circumstances.
Conclusion
The first matter which I must determine is the question of the allocation of parental responsibility. Each of the parties seeks an order for sole parental responsibility. The father’s application for sole parental responsibility is supported by the ICL. The mother has made what the father describes as “heinous” allegations against him. The parties’ capacity to communicate effectively with each other has been irreparably damaged as a result of those allegations. There is a high degree of distrust between the mother and the father. As a result of the evidence of Dr C as to the mother’s functioning and based on my own observations of her during the hearing, I have grave concerns as to the mother’s ability to elevate the children’s needs above her own. Accordingly, having regard to those matters, I am satisfied that it would not be in the children’s best interests if the parties were to have equal shared parental responsibility. Given the mother’s intransigent views regarding the father and his role in the children’s lives, I am satisfied that there should be an order for the father to have sole parental responsibility.
Given my findings as to the risk to the children of psychological and physical harm in the mother’s care I am also satisfied that it is in the children’s best interests that they live with the father. The evidence of Ms B supports my view that the children's opportunity for a settled life, where all of their physical, emotional and intellectual needs are met is provided in the father’s home. I accept Ms B’ evidence that if removed from the influence and belief system of the mother, the children will be unburdened and their relationship with the mother will benefit.
I have made findings that the children are at risk of psychological harm in the mother’s care. There is no evidence before me of the mother undertaking any regular therapeutic treatment to address those issues. The mother in her evidence demonstrated an inability to moderate or contain her attitudes and behaviours towards the father, and did not demonstrate any insight as to the damaging effect of that behaviour upon the children and their relationship with the father. Accordingly, I am satisfied that the children’s time with the mother must be supervised.
The evidence of Ms B supports the view that the mother’s time should be supervised by a professional contact centre or agency where practicable. I will make orders requiring the ICL to nominate contact centres in Perth which provide supervision services. In the event that no such agency is available, the paternal grandfather is able to fulfil that role. Accordingly, I will make orders that the paternal grandfather supervise the mother’s time in the absence of any other professional agency being available to fulfil that role.
The children should spend time with the mother during school holidays and after school on up to six occasions per year to ensure that the children have the opportunity of regular time with the mother.
Ms B supports the children continuing to have communication with the mother via Skype and telephone. That is a means of communication where the children can see their mother. It is also a means of communication that can be terminated in the event of the mother engaging in inappropriate conduct. I am satisfied that it is appropriate to make orders to facilitate such communication. I will also make orders permitting the mother to provide written communication to the children by way of letters, cards or gifts.
The mother should also be provided with information as to the progress of the children’s education and medical treatments. I will make orders ensuring that that information is provided to her.
That the mother’s role in the children’s lives is to be limited by these orders is a matter of great sadness for the children. However, I am satisfied that such limitation is necessary in order to protect the children from the damaging effects of the behaviours of the mother and the maternal family; since the children’s arrival in Victoria, they have been exposed to an on-going and relentless campaign by the mother and her family against the father. The father’s positon in the eyes of the children has been besmirched and undermined as a result of the repeated allegations that he has abused the children. I am satisfied on the balance of probabilities that there is no foundation for those allegations. I am also satisfied that if left in the care of the mother, the children have little prospect of ever having a meaningful relationship with the father. The orders will ensure that the children have the opportunity of a relationship with both parents. Further, the orders will ensure that the children’s physical and emotional needs are met in circumstances where I have found that the mother has failed to attend to those needs.
The Orders
Accordingly, I order as follows:-
1.That all previous parenting orders in relation to the children D born … 2005, E born … 2007 and F born … 2009 are discharged.
2.That the father have sole parental responsibility in respect of all major long-term issues for the children, save that the father shall, prior to making any decision with respect to any such issue for the children:-
(a) Inform the mother in writing (via letter or email) of any decision intended to be made;
(b) Seek the mother’s written response in relation thereto, the mother to provide a written response, if any, within 14 days of being advised by the father of the decision intended to be made;
(c) Consider by reference to the best interests of the children any such response received from the mother prior to making any decision; and
(d) Inform the mother in writing (via letter or email) as soon as reasonably practicable of his ultimate decision.
3.That the children live with the father.
4.That mother spend time and communicate with the children as follows:-
(a) At a supervised contact centre or agency in Perth, Western Australia (“the contact centre”) as nominated by the Independent Children’s Lawyer for such time as may be agreed between the mother and the father in writing on the following bases:-
(i)That within 14 days of receipt of notification by the ICL of the nominated contact centre, the mother and the father do all acts and things as may be required to make application to the contact centre;
(ii)Such time to take place on days and at times nominated by the contact centre, and where practicable to occur on consecutive days to coincide with school holiday or after-school periods;
(iii)The mother to spend time as provided in sub-paragraph (ii) hereof on up to six occasions per calendar year;
(iv)The mother to be solely responsible for the cost of supervision; and
(v)The mother to comply with all reasonable directions as may be made by the contact centre in order to facilitate supervision of her time with the children.
(b) In the event that the contact centre is not available to facilitate time between the mother and the children pursuant to sub-paragraph (a) hereof, such time to be supervised by Mr K Bendon or such other person as may be agreed between the mother and the father in writing.
(c) By Skype or telephone on two occasions per week at times agreed between the parties and failing agreement between 6.00 pm and 6.15 pm Western Australian time each Monday and Thursday and for the purposes of that communication:-
(i)Such communication to take place at 6.00 pm Western Australian time on each occasion unless otherwise agreed between the mother and the father in writing;
(ii)The father do all acts and things to ensure the children initiate the communication to the mother;
(iii)The father be at liberty to monitor the communication between the mother and the children and in the event that the mother discusses subjects or issues that may undermine the children’s relationship with the paternal family or destabilise the care arrangements the father be permitted to terminate the communication;
(iv)The mother keep the father advised at all times of her current telephone number on which she can be contacted.
(d) By telephone or Skype on Christmas Day, the children’s birthdays, the mother’s birthday and Mother’s Day each year and to facilitate such communication:-
(i)Such communication to take place at 6.00 pm Western Australian time on each occasion unless otherwise agreed between the mother and the father in writing;
(ii)The father do all acts and things to ensure the children initiate the communication to the mother;
(iii)The father be at liberty to monitor the communication between the mother and the children and in the event that the mother discusses subjects or issues that may undermine the children’s relationship with the paternal family or destabilise the care arrangements the father be permitted to terminate the communication;
(iv)The mother keep the father advised at all times of her current telephone number on which she can be contacted.
(e) By letter, card and/or gift on the special days referred to in sub-paragraph (d) hereof with such items to be provided to the children by the father, save that the father is not required to provide to the children any letter, card or gift which discusses these proceedings or subjects or issues that may undermine or destabilise the children’s relationships with the paternal family.
5.That the mother and the father each keep the other informed of their current residential addresses, postal addresses, telephone numbers and email addresses.
6.That the father do all acts and things as may be required to:-
(a) ensure that the children communicate with the mother by letter, card or gift on the special days referred to in Order 4(d) hereof;
(b) Advise the mother and keep her advised of the children’s residential address, school, treating medical practitioners and specialist medical practitioners and any allied health professionals, counsellors or therapists upon whom the children attend;
(c) Authorise any and all of the health professionals referred to in sub-paragraph (a) hereof to communicate with the mother and to provide to her copies of any reports and information produced with respect to each of the children’s progress, health, treatment or course of counselling or therapy as the case may be;
(d) Notify the mother as soon as reasonably practicable of any significant injury of illness suffered by the children and any injury or illness requiring admission to hospital;
(e) Keep the mother advised in writing of the management plan and treatment of the children, including but not limited to the children F and D arising from any re-assessment of them by a medical specialist.
7.That the mother and the father be and are hereby restrained by themselves, their servants and agents from:-
(a) Denigrating the other parent or members of their family in the presence or hearing of the children or any of them; and
(b) Discussing the affidavit material, professional reports, oral evidence and judgments in these proceedings in the presence or hearing of the children or any of them.
8.That the father be permitted to provide a copy of these orders and Reasons for Judgment to:-
(a) The children’s school;
(b) The contact centre; and
(c) The children’s treating medical practitioners, allied health professionals and therapists or counsellors upon which the children attend.
9.That the Independent Children’s Lawyer be permitted to forward a copy of the orders and Reasons for Judgment to the Department of Human Services.
10.That the appointment of the Independent Children’s Lawyer be discharged on 31 January 2016.
11.That all extant applications be otherwise dismissed.
12.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.
AND IT IS DIRECTED
That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the Subpoena Clerk at the Family Court of Australia Melbourne Registry to the person or organisation who produced same after the expiration of 30 days from the date of these orders or otherwise upon the conclusion of any appeal.
I certify that the preceding three hundred and thirty-seven (337) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 2 December 2015.
Associate:
Date: 2 December 2015
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Family Law
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Procedural Fairness
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