Bentleigh and Bentleigh

[2018] FamCA 264

FAMILY COURT OF AUSTRALIA

BENTLEIGH & BENTLEIGH [2018] FamCA 264

FAMILY LAW – CHILDREN – Interim Parenting – Best Interests – Where the father seeks orders that the children be removed from the care of the mother and placed in his primary care – Where final orders were made following defended hearing in May 2017 – Where the trial judge found that neither parent posed an unacceptable risk of harm to the children – Where the trial judge made orders that the children live with the mother and spend time with the father – Where a significant issue at final hearing was the mother’s allegations the father had sexually abused the children – Where the mother accepted in the course of the final hearing that the children had not been sexually abused – Where the mother withheld the children from the father four months after final orders were made in May 2017 – Where the mother has been non-compliant with the final orders – Where there has been significant change in the children’s circumstances to justify the reopening of the parenting proceedings on an interim basis – Where the father contends the mother poses a risk of psychological harm to the children – Where the mother contends the father has seriously neglected the children – Where it cannot be found that either parent poses an unacceptable risk of harm to the children – Where the risk of psychological harm posed by the mother can be mitigated by orders being made for the parties to attend therapy – Where the father’s parenting capacity is untested – Where the children would experience significant distress if orders were made as sought by the father – Father’s interim parenting application dismissed – Orders made for family therapy.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Bentleigh & Bentleigh [2017] FamCA 294
Deiter & Deiter [2011] FamCAFC 82
Garraghan & Westerfield (No 2) [2014] FamCAFC 96
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
Miller & Harrington (2008) FLC 93-383
Prewett & Mann [2013] FamCAFC 130
Rice & Asplund (1979) FLC 90-725
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Bentleigh

RESPONDENT: Ms Bentleigh

INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

FILE NUMBER: PAC 4005 of 2014

DATE DELIVERED: 27 April 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam

HEARING DATE: 3 & 4 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schroder

SOLICITOR FOR THE APPLICANT: Lewarne & Goldsmith

COUNSEL FOR THE RESPONDENT: Mr Hill

SOLICITOR FOR THE RESPONDENT: Perdriau Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Stanfords Solicitors

Orders

1. By consent, the mother is restrained from permitting the children engaging in any form of counselling or therapy or permitting any other person to do so without the consent of the father.

2. By consent, the parties are restrained from recording any conversation with the children or either of them or permitting any other person to do so.

3. Both parties are restrained from presenting the children to any service or any agency or permitting any other person to do so in relation to any disclosure or complaint made by the children about the care of the other parent or parent’s family other than in accordance with the orders of 11 May 2017.

Further orders

1. That the Interim Parenting Application filed by the father on 23 November 2017 be dismissed.

2. The parents shall within 21 days contact CC Psychology (“the Therapist”), for the purpose of arranging and attending the first available and offered intake appointment to enable the parents and B born … 2008 and C born … 2011 (“the children”), to participate in therapeutic counselling.

3. For the purposes of Order (5), each party shall:

   (a)       Ensure the children attend all scheduled appointments for as long as the Therapist deems necessary;

   (b)       Attend appointments themselves as requested by the Therapist; and

   (c)       Comply with recommendations made by the Therapist including attendance upon any other person that therapist may recommend.

4. The Independent Children’s Lawyer shall provide to the Therapist a copy of the report of Dr G, Dr H and a copy of the Reasons for Judgment dated 11 May 2017 and 27 April 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bentleigh & Bentleigh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 4005  of 2014

Mr Bentleigh

Applicant

And

Ms Bentleigh

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This matter concerns nine year old B and seven year old C, the children of Ms Bentleigh (“the father”) and Mr Bentleigh (“the mother”).

2. The parties began living together in August 2002, married in 2004 and separated on 1 January 2014. Following separation the children lived with the mother and spent defined time with the father.

3. In August 2014 the father initiated proceedings in the Federal Circuit Court of Australia which were transferred to this Court in December 2015. Following a contested final hearing Rees J delivered judgment in May 2017[1] (“the May 2017 Judgment”). A central issue in those proceedings was the mother’s contention that the father posed an unacceptable risk of harm to the children on the basis that he may sexually abuse them.

   [1]Bentleigh & Bentleigh [2017] FamCA 294

4. The final orders (“the May 2017 Orders”) provided for the parents to share equally parental responsibility for the children, for the children to live with the mother and spend time with the father each alternate weekend and for block periods during the school holidays and for the children to attend family therapy. Final property orders were also made at this time.    

5. In October 2017 the father filed a Contravention Application after the mother failed to make the children available for their time with him.  The contravention was not proved at hearing, but there was no dispute that the children had not spent time with the father in accordance with the May 2017 Orders.

6. The father filed an Initiating Application on 23 November 2017 seeking to revisit the parenting arrangements. On an interim basis he sought orders that the children live with him and spend no time with the mother, that the Department of Family and Community Services (“the Department”) be invited to intervene and that an Independent Children’s Lawyer (“ICL”) be appointed.

7. The mother initially sought interim orders in her Response filed 8 January 2018 that she have sole parental responsibility for the children and that the children live with her and spend no time with the father but this position had changed by the time the application for interim orders was heard.  

8. The parties appeared before me on 3 and 4 April 2018 for interim hearing. The father continued to seek orders that the children live with him and proposed that they spend no time with the mother for three months after which time they would commence spending time with her at a contact centre. The mother resiled from her original position seeking to change the May 2017 Orders on an interim basis and sought only that the father’s application be dismissed and the renewed parenting application be set down for final hearing.

9. These Reasons deal with the father’s application for interim parenting orders.   

Background

1. The May 2017 judgment sets out in significant detail the background to this dispute. It suffices to record for the purposes of these Reasons the following background.

2. The parents had two little girls in the course of their 12 year relationship, B (“the older child”) who was born in 2008 and C (“the younger child”) who was born in 2011.

3. The parties separated in January 2014 when the younger child was almost three and the older child was five.

4. Since separation the children lived with their mother and spent time with their father which was initially pursuant to an agreement and later pursuant to orders of the court.

5. The mother, who suffered head injuries as a child and has been diagnosed with Bi-Polar disorder has also been suggested to have a mild intellectual disability.

6. Prior to the final hearing the children had been spending supervised time only with the father. The mother’s proposed orders up until a few days prior to the commencement of the hearing had been based upon her position that the father posed an unacceptable risk of harm to the children arising from allegations said to have been made by the children that the father had sexually abused them. The father at all times denied having sexually abused the children and it was his case that the mother or some other person had coached the children to make such allegations. 

7. Three days before the commencement of the final hearing the mother filed an Amended Response seeking orders that the parents have equal shared parental responsibility for the children, that the children live with her and spend alternate weekends and half the school holidays with the father.  

8. At the end of the first day of the final hearing the mother was given leave to file and rely on an affidavit which it was submitted explained her change of position. The mother deposed that she had raised the allegations of sexual abuse because the children told her things that concerned her but she accepted the evidence of the expert engaged in the proceedings and another psychiatrist engaged by her that the children had not been sexually abused. A live issue remained as I understand it about the manner in which the mother may react in the future if similar allegations were made by the children.       

9. In the May 2017 Judgment Rees J made findings that the father had perpetrated family violence against the mother (but not the children) but did not make a positive finding that the father had sexually abused the children as had been previously alleged by the mother. As to the issue of the mother acting on similar complaints that may be made by the children in the future, Rees J made the following comments at paragraphs [245] – [248]:

   I accept that there is a risk of further allegations being made if the children remain in the care of their mother.  However, there is also a risk of further allegations being made if the children are in the care of their father and spending time with their mother. That risk can be ameliorated by a provision in the orders as suggested by the ICL requiring the mother, in the first instance, to raise any disclosure with the children’s therapist. If there has been no therapist engaged for the children, then any disclosure to either parent should be raised, in the first instance, with DFCS.

   I accept that both of these parents have limitations in their parenting capacity but, weighing all of the matters set out above, I have concluded that the children should continue to live with their mother. I have no confidence, given that the father’s parenting capacity is largely untested, that the father’s parenting skills are sufficient to support, comfort and nurture the children in the distress that must necessarily follow upon their removal from their mother’s care.

   I have already considered the family violence perpetrated by the father against the mother.

   I do not consider that the risk of family violence or sexual abuse to the children outweighs the benefit to the children of having a meaningful relationship with their father. As stated earlier, I consider that any risk to the children of sexual abuse can be ameliorated by a requirement that overnight time with the father be spent at the home of the paternal grandparents or the paternal aunt.

10. Following the final orders the children continued to live with the mother and initially spent time with the father on alternate weekends and for half the school holidays in accordance with those orders. The father was at this stage living in the paternal grandparents’ home.  

11. In August 2017 a risk of harm report was made to the Department of Family and Community Services (“the Department”) that the children had returned home from time with their father with scratch marks and the older child had regressed in her behaviour at school. Around the same time the mother made an audio recording of the older child making disclosures about sexual abuse by the father. In that recording the child refers to “reporting to court” and asks the mother “when are you record that” (sic), to which the mother responds, “I’m not recording”.  

12. Three further risk of harm reports were made to the Department in September 2017 alleging that the children, particularly the older child, were anxious and scared of their father. It was reported that the older child had previously made allegations of sexual abuse by the father. A contact record from the Department on this date states “While there are Family Court orders for the father to have contact with the children the [maternal step-grandfather] has said he will not let the children go with the father”.

13. On 21 September 2017 the older child was taken to hospital where she made disclosures to her treating doctor that the father had sexually abused her though it was not clear whether she was reporting this was an event that had occurred in the past. The child was interviewed by a member of the Joint Investigative Response Team (“JIRT”) and a social worker in the presence of the maternal step grandfather.

14. The mother sent the father a text message on 21 September 2017 informing him that the children were not available to spend time with him in the upcoming school holidays for “medical reasons” and did not facilitate the children spending time with the father between 22 September and 1 October 2017.

15. The father recommenced spending time with the children on 7 October 2017.

16. On 12 October 2017 the mother took the older child to a local medical centre regarding the sexual abuse allegations. The medical records indicate that the doctor listened to the voice recording which he refers to as having been recorded on 24 August 2017.  

17. On 20 October 2017 the father filed a Contravention Application which was subsequently listed for hearing on 12 December 2017.

18. On 7 November 2017 the older child was again taken to a local medical centre regarding the sexual abuse allegations. 

19. On 23 November 2017 father filed an Initiating Application seeking interim and final orders be made for the children live with him and spend no time with the mother.

20. On 30 November 2017 the older child was presented at a local medical centre with an alleged head injury said to have been sustained after the child fell off a swing when in the care of the father approximately 10 days earlier. The child underwent a CT scan the next day. Although the mother contends that the child was found to have a fractured skull, she conceded through her counsel in the course of the interim hearing that no fractures were observed, consistent with the medical records.   

21. At the hearing on 12 December 2017 the contraventions alleged by the father (that the mother did not make the children available to him for holiday time) could not be established as the May 2017 Orders did not specify when the father’s time with the children in the school holidays was to commence. Orders were made on that date pursuant to section 70NBA of the Family Law Act 1975 (Cth) (“the Act”) varying the May 2017 Orders by defining the father’s school holiday time and specifying when changeover is to occur.

22. On 15 December 2017 the matter was allocated to the Magellan Protocol[2], a Magellan Report was ordered and an ICL was appointed. The matter was subsequently removed from the Magellan Protocol due to the allegations of abuse being historical in nature and the proceedings were listed for interim hearing.

    [2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.

23. The father spent time with the children over the Christmas holidays between 15 December 2017 and 6 January 2018.

24. The father says that in late January 2018 he was contacted by someone from the Department regarding allegations of abuse made against him.

25. The older child was again taken by the mother to the local medical centre in regards to allegations of sexual abuse on 4 February 2018.

26. On 16 February 2018 the father was interviewed by Departmental officers regarding the care of the children. He says he was not questioned about allegations of sexual abuse.

27. On 19 February 2018 the mother took the older child to the local medical centre and reported that she had a burn on her right knee. The children have not spent time with the father since this date.  

28. The father was contacted by the Department on 22 February 2018 regarding the alleged burn. He claims he was informed that the mother had alleged that he had poured hot coffee over the child causing the injury to her knee. The father alleges the child had a wart which he treated appropriately.

29. The parties received an email from the Department on 26 February 2018 indicating that the allegations of sexual abuse made against the father could not be substantiated and the Department held no fears concerning the father spending time with the children.  

30. At the interim hearing on 3 April 2018 the father sought that the children live with him, spend no time with the mother for three months and then commence spending time with the mother at a contact centre.

31. After filing an Outline of Case and an Updated Notice of Risk in Court on 3 April 2018, the mother sought orders that the father’s application be dismissed and the new parenting application be set down for final hearing. Pending final hearing the mother seeks that the May 2017 Orders remain in force.  

32. The ICL supports the orders as sought by the father. In the event that the Court is not minded to make orders as sought by the father the ICL sought that an order be made suspending the father’s time with the children. This order had not been sought by either party.

33. As there was insufficient time to hear the parenting application especially given the change in the mother’s position, the interim hearing was adjourned part heard to 4 April 2018.   

34. On 4 April 2018 the parties were given the opportunity to make further submissions. Orders were also made with the consent of the parties restraining each party from recording conversations with the children or presenting the children to any service or agency in respect to allegations about the care of the other parent except in accordance with the May 2017 Orders. An order was also made restraining the mother from permitting the children to engage in any form of counselling or therapy without the consent of the father. Judgment was reserved in respect of the outstanding interim issues.   

Change in the children’s circumstances

1. Counsel for the mother submits that the father must establish that there has been a sufficient change in the children’s circumstances in accordance with Rice & Asplund[3] before the parenting orders may be revisited, including on an interim basis.

   [3] (1979) FLC 90-725

2. Counsel for the father contends that the mother’s non-compliance with the May 2017 Orders, including withholding the children from him and taking the children to medical practitioners for the purposes of making allegations of sexual abuse against the father (after having accepted that the children had not been sexually abused), constitutes a sufficient change in circumstances that it would be in the children’s best interests to revisit the parenting orders. The ICL supports the father’s position.     

1. As is clear from recent Full Court decisions, such as Prewett & Mann[4], there is no doubt that the principles established in Rice & Asplund (supra) and the subsequent line of authority apply to proceedings such as these where a party is seeking to have final parenting orders reconsidered.

   [4] [2013] FamCAFC 130

2. The so-called “rule in Rice & Asplund” arises from the following remarks made by Evatt CJ in that case at [78,905-06]:

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an earlier custody order.  To do so would be to invite endless litigation for change in an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the applicant … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …

   Evatt CJ continued:

   These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision.  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.  These principles apply whether the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

3. As further explained in Prewett & Mann (supra) at [9]:

   The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).

4. The way in which the rule is to be applied was set out by the Full Court in Marsden & Winch[5], where it was said at [50]:

   … The court must look at:

   (1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.

   (2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.

   (3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself.  Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.

   [5] [2009] FamCAFC 152

5. As the Full Court said in Miller & Harrington[6], what is required for the applicant to establish is a prima facie case of changed circumstances.

   [6] (2008) FLC 93-383

6. The May 2017 Judgment and the orders made in conjunction with that judgment were predicated on the mother’s acceptance of the expert evidence that the father had not sexually abused the children. Paragraphs [47] and [48] of the May 2017 Judgment make clear the mother’s case at the final hearing in 2017:

   The mother’s case was that the father had been an absent parent and had little participation in parenting the children during the relationship. She alleged that he had used pornography during the relationship and that, on one occasion, B had opened her computer and looked at pornographic material which had been downloaded by the father. She alleged that the father had perpetrated acts of family violence towards her, on occasions in the presence of the children.

   The mother raised the allegations of sexual abuse because the children told her things that concerned her. She accepted the expert evidence of Dr G and Dr H that the children had not been sexually abused.

7. The May 2017 Orders provided for the father to spend substantial and significant unsupervised time with the children[7]. Those orders also provided the following:

   (21)That each party is restrained from discussing with the children any allegation raised in these proceedings or from showing the children any court documents.

   (22)That each parent is restrained from presenting the children to a medical or health practitioner for the purposes of the children making a disclosure about the father.

   (23)That in the event the children make any disclosure in the nature of sexual impropriety, each parent shall immediately contact the children’s therapist to seek advice of the therapist and shall follow the advice given. If no therapist has been appointed, then the parents shall contact the Department of Family and Community Services for advice before taking any other step.

   [7] Orders (5) – (8) of the May 2017 Orders

8. Counsel for the mother submits that the mother had complied with these orders except for the orders that the children spend time with the father.

9. Counsel for the father submits that the mother’s presentation of the children to the local hospital and local medical centre on numerous occasions for the purposes of the children making disclosures of sexual abuse is a breach of Orders (22) and (23) of the May 2017 Orders.

10. The mother does not deny taking the children to the hospital and medical centres but claims that she did not do so for the purpose of the children making disclosures of abuse.

11. The mother’s claims in this regard are difficult to believe given that documents produced on subpoena from the local medical centre (Exhibits 4 and 10) indicate that one of the reasons the older child was presented to the centre on multiple occasions was because she was a “child abuse victim” and there were statements made in the course of consultations with doctors that she had been sexually abused by the father.

12. The mother admits that she subsequently took the children to Victims Services to obtain counselling without informing or involving the father and continued to present the children to medical centres rather than contacting the Department about her concerns. Inherent in obtaining counselling from an agency such as Victims Services is an underlying assumption that the children have been the victims of abuse.

13. It is clear in my view that the mother has taken the children to the local hospital, medical centre and engaged counselling for them in relation to sexual abuse allegations made against the father. This is contrary to the regime for dealing with such allegations in the May 2017 Orders.  

14. The May 2017 Orders, particularly Orders (22) and (23), were made by Rees J to mitigate the risk that further allegations of sexual abuse would be made and the effect on the children of the mother’s response to those allegations including ongoing investigations and ceasing the father’s time. In not complying with those Orders, and withholding the children from the father without explanation, it can be inferred that the mother no longer accepts the expert opinions, as she said she did at the final hearing in 2017, that the father has not sexually abused the children. This acceptance was central to the findings and orders of the trial judge.

15. At this stage it is difficult to conclude whether it is likely that orders will be varied in a significant way at any new parenting hearing and whether this would justify the potential detriment to the children caused by the litigation itself. For the purposes of this interim hearing no clear detriment to the children from the litigation has been identified and I regard the change in circumstances as sufficiently significant to entertain this application for a variation in the parenting orders on an interim basis.  

The matters in dispute

1. The father contends that the children are at unacceptable risk of emotional and psychological harm in the primary care of the mother due to her persistence in giving weight to the children’s allegations that he has sexually abused them and presenting them to medical professionals for the purposes of making disclosures of abuse. He claims these behaviours, and the mother withholding of the children from him, will continue if they remain in her primary care.   

2. While alleged ongoing disclosures made by the children of sexual abuse by the father remain an issue in these proceedings, from the father’s perspective the mother’s position at the interim hearing was quite different.

3. At the interim hearing the mother contended that the father had seriously neglected the children and failed to supervise them appropriately resulting in the older child sustaining injuries to her head and leg. She did not contend that the father posed an unacceptable risk to the children due to his neglect of them or on any other basis including risk of sexual abuse. She seeks that the father’s application be dismissed and the May 2017 Orders continue.

4. The parties substantially agree as to the chronology of events since the May 2017 Judgment however they disagree as to the motivations and circumstances surrounding various events.   

5. Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may have some regard to the matters in dispute.  In SS & AH[8], their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [8] [2010] FamCAFC 13

6. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[9], a decision of the Full Court citing Deiter & Deiter[10]).

   [9] [2013] FamCAFC 182

   [10] [2011] FamCAFC 82

7. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

The father’s allegations of risk

1. The father alleges that the mother is subjecting the children to emotional and psychological harm in continuing to present them to medical practitioners in relation to allegations of sexual abuse.

2. It is submitted on behalf of the father that the mother’s behaviour in this regard and her non-compliance with the May 2017 Orders, as outlined earlier in these Reasons, indicates that she has not genuinely accepted that the father has not sexually abused the children. This behaviour commenced very shortly after the May 2017 Judgment (in which the mother was noted to have accepted the opinions of the experts and the father was determined not to pose an unacceptable risk of harm to the children). The father contends that she cannot therefore be trusted when she claims that she will not facilitate the children making further disclosures of abuse and will cease withholding the children from the father.

3. It is the father’s contention that if orders are not made as sought by him then the allegations of abuse and the constant presentations of the children to medical professionals and counsellors, including Victims Services, will continue.  

4. The ICL also submits that the children are being psychologically harmed by the mother facilitating constant medical assessments and counselling in relation to sexual abuse allegations. The ICL further submits that despite what the mother says she clearly does believe that the children have been sexually abused by the father.

5. Documents produced on subpoena from the local medical centres and hospitals which the children attend indicate that the older child has been presented to medical practitioners on multiple occasions since the May 2017 Judgment, including as recently as 4 February 2018, in relation to the allegations that the child is a victim of sexual abuse.

6. It is not in dispute that the mother and both children have been engaged in counselling with psychologists to whom they were referred by Victims Services since October 2017. Documents produced on subpoena by that counselling service indicate that a number of the older child’s counselling sessions have been focused on allegations that the father sexually abused her and the psychologist’s notes indicate that the child has made disclosures of abuse in the course of those sessions.

7. Hospital records produced on subpoena include a notation made on 4 February 2018 when the older child was presented to the hospital for sexual abuse allegations that the child was referred to a sexual assault service.

8. It is alleged by the father that the children’s engagement with these services has never been disclosed to him nor to the Court and the Court could have no confidence that the mother would not continue to engage the children with sexual assault services despite her assurances that she will desist from doing this.

9. It is submitted on behalf of the mother that the documents produced on subpoena from the counselling service attended by herself and the children demonstrate that the counselling is not being provided on the basis of any assumption that abuse has taken place. The mother relies upon notes made by the counsellor that “If what [the older child] and her sister report is true, then they are being placed at risk by Court ordered visits to their father” (emphasis added).

10. I do not accept the submission made by counsel for the mother. The counsellor’s notes do not positively indicate that the services provided are not predicated on the assumption the children have been abused. Notes from counselling sessions between the counsellor and the older child indicate that sexual abuse is a significant matter consistently raised during the sessions and the therapist is at least exploring the possibility that the allegations are true.

11. I hold serious concerns about the mother’s intentions in engaging with Victims Services particularly given her apparent acceptance in the 2017 final hearing that the father did not pose an unacceptable risk of harm to the children on the basis of sexual abuse. Despite the mother accepting in the course of the interim hearing that approaching Victims Services was not the appropriate starting point for therapy for the children she did not concede that the counselling service to which she was referred by Victims Services and which she and the children have been engaging with for six months was not appropriate therapy as contemplated by the May 2017 Orders.  

12. Orders were made on 4 April 2018 restraining the parents from presenting the children to any service or any agency or permitting any other person to do so in relation to any disclosure or complaint made by the children about the care of the other parent or parent’s family other than in accordance with the orders of 11 May 2017.  

13. The trial judge specifically contemplated in the May 2017 Judgment the possibility that the mother may continue to make allegations. Her Honour felt this possibility was ameliorated by the mother being required to raise any disclosures with the children’s therapist or the Department before taking further action. Orders to that effect were made as follows:

    (10)That each party shall do all things necessary to facilitate the children’s attendance upon a therapist, being a child psychologist or psychiatrist nominated by the Independent Children’s Lawyer after consultation with the single expert, Dr G, and Dr H and IT IS NOTED that neither party is in a position to pay privately for a therapist for the children and the therapist will need to be engaged with the assistance of the public sector.

    (11)For the purposes of Order 10, each party shall:

    (a)Ensure the children attend all scheduled appointments for as long as the therapist deems necessary;

    (b)Attend appointments themselves as requested by the therapist; and

    (c)Comply with recommendations made by the therapist including attendance upon any other person that therapist may recommend.

    (12)That the Independent Children’s Lawyer shall provide to the therapist a copy of the report of Dr G, Dr H and a copy of the Reasons for Judgment

14. It is clear that therapy as contemplated has not occurred and the appropriate process under the May 2017 Orders for dealing with disclosures of sexual abuse has not been followed by the mother.

15. The father proposed in the course of the interim hearing that family therapy occur with an appropriate family therapist in the event orders are made as he proposes that the children to live with him. 

16. The ICL made enquiries in the course of the interim hearing, and identified an appropriate family therapy service in the mother’s local area in the event that the May 2017 Orders are not varied as sought by the mother.

17. The concern that the children may be psychologically abused by the mother’s behaviour in responding to and encouraging disclosures from the children that the father has sexually abused them was clearly contemplated in the May 2017 Judgment. I accept that the mother’s concerning behaviour has continued after the May 2017 Judgment was delivered and that this behaviour indicates that she does not accept, as she previously stated she did, that the father has not sexually abused the children.

18. However, it is also clear in the May 2017 Orders that family therapy with an appropriately qualified therapist was to occur, to mitigate the concerns regarding the mother’s care of the children. These orders have also not been followed. In other words, the means by which this risk associated with the mother’s ongoing concerning behaviour was to be mitigated has not been able to run its course. Rather, the parties have chosen to return to court and re-litigate the parenting arrangements once again.   

19. I cannot make a positive finding that the children are at unacceptable risk of harm in the care of the mother on the basis of her conduct following the May 2017 Orders. The mother’s conduct is almost identical to the evidence that was before the trial judge in 2017 and it was Her Honour’s finding that the risks of harm to the children in the mother’s care arising from this conduct could be mitigated by the orders she made. Both parties agree that regardless of the children’s primary residence they should attend an appropriately qualified family therapist to reduce the risk of psychological harm posed by the mother.

20. In my view real efforts should be made for the children to be provided with the appropriate therapeutic support to mitigate this risk. It is also imperative that the mother complies with the restraints made in May 2017 on responding to complaints that may be made by the children.      

21. Having said that it is important for the full suite of orders made in May 2017 to operate, I do find that the mother’s behaviour since the May 2017 Judgment is concerning. It is a matter to which I give significant weight in determining this interim parenting application.         

The mother’s allegations of risk

1. It is very difficult to understand exactly the nature of the risk, if any, the mother claims is posed by the father to the children. In circumstances where she seeks that the May 2017 Orders remain in force in the interim, and those orders provide for the father to spend unsupervised time with the children, she must be taken to accept that the father does not pose an unacceptable risk of harm to the children.

1. The interim hearing which began on 3 April 2018 came about in unusual circumstances. As indicated previously the father had initially dealt with allegations of non-compliance with the May 2017 Orders by bringing contravention proceedings. At that stage as I understand it the mother proposed defending any alleged contravention if found to be proved on the basis that she had a reasonable excuse for non-compliance. As it turned out the contravention was not proved.

2. At the commencement of the interim hearing on 3 April 2018 the mother made clear through her counsel that she was no longer seeking that the interim parenting arrangements be varied and sought only that the father’s application to vary the orders be dismissed. However, it was not in dispute that she had withheld the children from the father just prior to the interim hearing.  To afford the father procedural fairness in understanding the mother’s case and so that the Court could understand her case she was directed to file an updated Notice of Risk and a case outline.

3. The mother’s Notice of Risk and accompanying affidavit filed in Court on 3 April 2018 states that the children are at risk of serious neglect in the care of the father. The mother particularises two particular instances of concern.

4. It is clear that the mother asserts the father poses some risk of harm to the children. Despite not contending that this risk is unacceptable, it is still necessary to assess her allegations of risks posed by the father to determine whether her proposal that the May 2017 Orders remain in force is in the best interests of the children.[11]

   [11]Garraghan & Westerfield (No 2) [2014] FamCAFC 96

5. The first allegation made by the mother is that on Monday 19 February 2018 the older child returned from time with the father with a burn on her leg. The mother took the child to the local medical centre for treatment. The mother does not refer to how she understood the child sustained the injury in her affidavit. She claims the father did not inform her of this injury to the child.

6. The father deposes to noticing that the older child had a wart on her right knee on Saturday 17 February 2018 when the children were spending the weekend with him. The father claims he treated the wart with a “wart pen” and covered it with a band aid. The father claims he did not think to mention it to the mother as the older child knew what had happened and he didn’t think there would be any issue about it.

7. The father further deposes to receiving a telephone call from the Department’s Child Abuse Squad on 22 February 2018 during which he was advised that the child had a burn on her right knee and that the mother had alleged he had poured hot coffee over the child’s knee. The father denied the allegation which had not been put to him by the mother despite correspondence between the parties’ solicitors in the preceding days.

8. Documents produced on subpoena from the medical centre include a consultation record from the older child’s treating doctor which contains the following information:

   Surgery consultation recorded by [doctor] on Monday, 19/02/2018

   Arrived today with her mum and grandmother.

   They report an incident of sustaining burns to her right knee two days ago, from hot liquid.

   When her mum picked her up yesterday, she had some dressing on the burns area.

   Noted repeated presentation on account of assault.

   She now has a case worker who is aware of this incident

   O/E: Right knee: There is a large scab over the lateral border.

   Tender

   No knee effusion

   Full ROM of the knee.

9. This record indicates that while the child did have a burn on her right knee, it had scabbed over, was not producing any liquid and the child had full range of motion in her knee. There is no indication that the doctor held significant concern about the injury or that the burn was particularly serious. The record also does not indicate that the father was reported to be the cause of the child’s injury. In my view, this is more consistent with the father’s explanation for the mark on the child’s knee than a suggestion that the child had been burnt by hot coffee.  

10. The second, and more serious, allegation made by the mother is that around 1 December 2017 she discovered that the older child had a head injury. The mother provides limited detail as to the surrounding circumstances but claims that following the child undergoing scans she was diagnosed with “a depressed fracture with haematoma”. When the mother questioned the child as to how the injury occurred she alleges the child told her “at Daddy’s place on the swing”. The mother claims the father also did not inform her of this accident or injury.

11. The father deposes to being informed by the mother via text message on 30 November 2017 that the older child had visited the doctor for a “eclude fracture haemorrhage”. He asked the mother via text message how the older child hurt herself and was told that the injury occurred “a couple of weeks ago on monkey bars”.

12. The father deposes to attending at the local medical centre on 1 December 2017 and speaking with the child’s treating doctor following the child having a CT scan. He claims the doctor informed him, the mother and the paternal grandmother that the child did not have a head injury and was more concerned about the child’s eczema not being properly treated.

13. Documents produced on subpoena from the medical centre which the older child attended contain the following relevant records:

    Surgery consultation recorded by [doctor] on Thursday, 30/11/2017

    Reason for visit:

    Fall

    cay (sic) tells me that she had afall off the swing on to grass approx10 days ago , and swing hit her onher head .

    c/opain over the side.

    mum sasy she has an indentation , which she has not felt before.

    o/e she has depressionand tenderness over the parieto occipital area, ? normal.with soft tissue injury

    . hr 99 perla , no neurodeficit

    CT as h/o child protection issues

    Her eczema is not good

    has few patches- awaiting Rx from Dermatologist

    Actions:

    Imaging request printed: CT scan – Head. (H/o fall backwards 2 weeks ago .pain and tenderness with indentation over the rt occipital area . h/o child protection issues. eclude fracture , haemorrhage)

    …

    Surgery consultation recorded by [doctor] on Friday, 1/12/2017

    Reason for visit:

    Results follow up.

    seen with dad , paternal gradma ,and [B’s] mum .

    Dad was upset about the allegation that her fall happened at hsi place and he denies it.

    CT head provisionally reported no fracture or IC bleed.

    dad concerned that [B’s] skin is lot better when she spends time with him when he applies treatments .

    advised mum to be onsistent with her treatment.

    Dads solicitor informs me that [B] has seen 10 doctors .

    I see from Dr [DD] about re to paed and Dermatologist , adv mum to follow up on this .

    Dad has court access orders to be with her in drs appointments and to be made aware of [B’s] rx etc

14. The results from the CT scan sent to the older child’s treating doctor, also produced on subpoena, record the following:

    There is no acute fracture or intracranial injury.

    There is mild depression of the outer table of the right posterior parietal bone, however There is no fracture and the inner table is not depressed. There is no overlying scalp hematoma.

    This is most likely form (sic) old trauma.

15. The medical records contained in the documents produced on subpoena clearly show that the child did not have “a depressed fracture with haematoma” as alleged by the mother in her affidavit filed 3 April 2018. The medical records are more consistent with the father’s version of events than they are with the version of events deposed to by the mother.

16. It is unclear whether the mother misunderstood the child’s condition as explained to her on 1 December 2018 or whether she has deliberately misrepresented the child’s injuries in these proceedings. 

17. Neither of the injuries to the older child described by the mother in her updating Notice of Risk appear to have been serious. There is no evidence to suggest that the head injury was caused by the father or that it was sustained by the child while she was in the father’s care.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[12].

   [12] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting.

3. Pursuant to s65D(1), subject to certain sections a court may make such parenting order as it thinks proper.

4. Neither parent is seeking a change to the order made in May 2017 that they equally share parental responsibility for the children.

5. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

6. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. It is likely that the interim parenting arrangements under consideration will be in place at least for many months.

7. If orders are made as sought by the father then the children will not spend time with the mother for three months after first moving to his care and will subsequently spend gradually increasing time with the mother at a contact centre. Implicit in the father’s orders is that he envisions this parenting arrangement will be in place for a significant period of time.

8. If orders are made as sought by the mother the May 2017 Orders will remain in effect. These orders were made by Rees J with the intention that they would be final orders and in place for many years.  

9. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in s 60CC(2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

3. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[13] 

   [13] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. There is no additional expert evidence as to the children’s current relationships. I accept the finding of the trial judge in May 2017 that there is a benefit to the children in having a meaningful relationship with both parents.

5. The risk of harm allegedly posed by each parent has been explored in detail earlier in these Reasons. Although I cannot make any definitive findings at this interim stage in weighing the probabilities of the competing claims it does not appear that either parent currently poses an unacceptable risk of harm to the children.

6. The risk of harm arising from the mother’s conduct is likely to be appropriately mitigated by implementing all of the measures contemplated in the final orders.

The additional consideration: s 60CC(3)

1. Section 60CC(3) sets out additional considerations. These considerations were canvassed in the May 2017 Judgment at paragraphs [206] – [248]. There is limited evidence before me that suggests these findings do not still stand. Many additional factors are not relevant in the context of this interim parenting application. Those that are relevant are discussed below.  

Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the children

1. The father claims that the mother has sought to exclude him from decision making for and spending time with the children.

2. As discussed earlier in these Reasons I accept that the mother has made decisions about the children’s health, including decisions about counselling, without informing or involving the father. I also accept that the mother has withheld the children from seeing the father on a number of occasions since May 2017 which has resulted in the children missing out on spending time with their father as they are entitled.

3. At the interim hearing the mother amended her application to seek that the May 2017 Orders remain in force on the basis that she would recommence facilitating the father’s time with the children.

4. I do have some reservations about whether the mother is genuine in her assurance that she will abide by the May 2017 Orders but this matter is not determinative of this application.      

Likely effect of any change in the children’s circumstances

1. In my view this is a very weighty matter in this application.

2. It was the trial judge’s finding in the May 2017 Judgment that the children’s most important relationship was with their mother who has always been their primary carer. Rees J also accepted the unchallenged expert evidence that the children had anxious-avoidant and anxious-ambivalent relationships with their father who had been a largely uninvolved parent early in the children’s lives.

3. The father’s application is that for three months following the children moving to his care they spend no time with their mother and that then their time with her would be limited and supervised.

4. Even if the children’s relationship with their father has improved since the May 2017 Judgment, it is likely that the children will experience significant distress if removed from the care of the mother. This is of particular concern given that the children have consistently made disclosures that they have been sexually abused by their father. The father’s proposed orders would mean the children would have no contact with their primary carer with whom they have a meaningful relationship during a period of significant trauma. The father’s ability to comfort the children in such a situation is questionable, as was noted in the May 2017 Judgment at [2018]:

   There is no doubt that, for the children, moving them from the care of their mother would be devastating. How they would cope with such a move is unknown. The capacity of the father and the paternal family to adequately parent the children if such a move is made is in question.

5. If orders are made as sought by the mother, and the May 2017 Orders are complied with, then there will be limited change in the children’s circumstances other than them recommencing spending time with their father, as has been determined to be in their best interests.    

Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs

1. This issue was canvassed at length in the May 2017 Judgment. The following comments were made about the mother’s parenting capacity at paragraph [225]:

   I accept that there are limitations on the mother’s capacity. Her memory is problematic. She cannot drive and is reliant on public transport. She has bi‑polar disorder which seems controlled by medication. She has not been diligent in maintaining contact with her psychiatrist.

2. The more concerning limitation on the mother’s parenting capacity that seems to have become evident since May 2017 is her inability to analyse critically disclosures made to her by the children about abuse by the father and her refusal to accept findings of experts and the court that the father has not abused the children and that he does not pose an unacceptable risk of harm to them. On the basis of her beliefs the mother has subjected the children to numerous visits to health professionals and has engaged the children in sexual assault counselling leading to them potentially being as risk of psychological harm.

3. The mother’s misunderstanding, whether deliberate or not, of information provided to her by doctor about the children’s health also raises serious concerns about her parenting capacity.  

4. The mother has informed the Court that she is willing to cease the children’s counselling through Victims Services and recommence facilitating the children’s time with the father. Orders have also been made restraining the parties from taking the children to any agency or service for the purposes of making complaints about the other parent’s care of the children.

5. Rees J also raised concerns about the father’s parenting capacity at paragraph [217]:      

   … the father, since separation and until the orders for professional supervision, has always spent his time with the children either at his parents’ home or at his sister’s home and he has also left the children in the care of his parents during school holidays when he worked. He has never raised the children by himself or had to care for the children on his own. In that regard, he is completely untested and his parenting capacity is unknown.

6. The father’s ability to care for the children on a full-time basis remains untested. It is noted that the father remains living with his parents who appear to be of great support. However, the father’s parents are in their eighties and it is unclear what level of support they could provide were he to take on the care of two children under the age of 10 who have a skin problems that require constant attention and would likely be exhibiting distressed or defiant behaviour.

7. The trial judge came to the following conclusion about the parenting capacity of the mother and father at paragraph [246] of the May 2017 Judgment:

   I accept that both of these parents have limitations in their parenting capacity but, weighing all of the matters set out above, I have concluded that the children should continue to live with their mother. I have no confidence, given that the father’s parenting capacity is largely untested, that the father’s parenting skills are sufficient to support, comfort and nurture the children in the distress that must necessarily follow upon their removal from their mother’s care.

8. I hold similar concerns about the father’s parenting capacity being untested particularly as the children are likely to be in a state of significant distress if orders are made for them to live with him. On the evidence before me I can have no confidence that he would be able to care for the children appropriately.

9. Despite the reservations I have as to the mother’s parenting capacity, it is not enough for the father to demonstrate that the mother’s parenting capacity is impaired in order for orders to me made as sought by him. He must also demonstrate that his parenting capacity is sufficient to provide for the children’s needs and in my view, the father has been unable to do so.  

Family violence

1. I note that Rees J made the following findings about family violence in the May 2017 Judgment at [74]:

   The father’s initial denials of loss of control, coupled with his later admissions in cross-examination, lead to the conclusion that the father has perpetrated family violence and that his denials cannot be relied upon. It is not necessary to rule on each allegation but it is sufficient to say that I find that family violence occurred and that the incidents were more frequent and more serious than the father admitted.

2. While Rees J did not find that the father perpetrated family violence against the children and family violence is not contended to be an issue in this interim application by either party, it is relevant to the father’s parenting capacity as discussed above that he has, on the evidence before me, done nothing to address his violent behaviour. This is significant in light of paragraph [73] of the May 2017 Judgment which is as follows:

   [The Expert] accepted that the incidents of family violence were a concern in terms of the father’s ability to manage the children given that his parenting capacity is untested. When put to her that she was not able to form a view about the likelihood of the father being violent whilst raising the children because he has never done it, her response was “if he has got other people present, it’s much less likely to happen.” She said, if he does not have other people present, “then you can’t rule out that he might lose his temper.” [The Expert] said she could not rule out the possibility of the father being violent given his history.

1. On these bases family violence remains a concern in relation to the father’s untested parenting capacity given the circumstances in the father’s household have not changed since the May 2017 Judgment.       

Whether it is preferable to make an order least likely to lead to the institution of further proceedings in relation to the child

1. While this consideration is often not relevant in interim proceedings, it is of significance in the context of this application given the submission of the father that if orders are made as sought by the mother she will continue to contravene the May 2017 Orders.

2. Based on the history of this matter and the undisputed fact that only four months after the May 2017 Judgment the mother did not make the children available on a number of occasions, there is a strong possibility that the mother may continue to do so in the future if I dismiss the father’s application. This may, in turn, lead to the father filing further contravention applications.

3. I do hold reservations about the mother’s willingness to comply with the May 2017 Orders. A court can never guarantee that parents will comply with orders of the court. However, orders must always be made in the best interests of the children and not in accordance with what the parents are most likely to comply with.

4. In light of other considerations discussed in these Reasons and as these are interim proceedings, this matter is not given significant weight.     

Conclusion

1. In coming to a decision about what orders are in the children’s best interests, I must balance the various matters to which I have referred.  In my view, there have been serious concerns raised about the mother’s behaviour and her parenting capacity. However, these concerns do not amount to a finding that the children are at unacceptable risk of harm in the mother’s care nor are they sufficient to overcome the concerns held about the untested nature of the father’s ability to care for the children on a full-time basis.

2. Having regard to both the primary considerations and the additional considerations set out in s 60CC and in light of the history of the matter, I am of the view that it is in the best interests of the children to remain living with the mother and for orders as to appropriate family therapy for the children to be made to mitigate the risk of psychological harm possibly faced by the children in her care.

3. Accordingly, I make orders as set out at the forefront of these Reasons.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 27 April 2018.

Legal Associate

Date:  27 April 2018