Biss and Biss
[2009] FamCA 1234
•16 December 2009
FAMILY COURT OF AUSTRALIA
| BISS & BISS | [2009] FamCA 1234 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Whether sexual abuse – Whether unacceptable risk of sexual abuse – Finding made that no sexual abuse occurred – No unacceptable risk of sexual abuse – Family violence – Finding made that mother subjected to a protracted history of family violence by father with little insight by him as to his conduct or its effects – Parental responsibility – Presumption ousted by history of family violence – Determination made independently that equal shared parental responsibility is in children’s best interests – Equal time – Determination that equal time with each parent is in children’s best interests – Orders made accordingly |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA |
| B and B (1993) FLC 92-357 Briginshaw v Briginshaw (1938) 60 CLR 336 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 H & H (2003) FLC 93-168 H v W (1995) FLC 92-598 Hilton v Allen (1940) 63 CLR 691 Johnson & Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 Korban & Korban [2009] FamCAFC 143 Lindsay & Baker (2007) FLC 93-347 M and M (1988) 166 CLR 69 Mazorski & Albright [2007] 37 FamLR 518 McCall & Clark [2009] FamCAFC 92 MRR and GR [2009] HCA Trans 316 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Oakley & Cooper [2009] FamCAFC 133 Regent & Driscoll [2009] FamCA 14 Reifek v McElroy (1965) 112 CLR 517 R & R: Children’s wishes (2000) FLC 93-000 R v R (Children’s wishes) (2002) FLC 93-108 Re W (Sex abuse: standard of proof) (2004) FLC 93-192 Sleeman & Sleeman [2009] FamCA 745 Suffolk & Suffolk (No. 2) [2009] FamCA 917 T & N [2001] FMCAfam 222 WK v SR (1997) FLC 92-787 M and M (1988) 166 CLR 69 Vile & Probszic [2009] FamCA 25 Family Court of Australia, Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged, March 2009. |
| APPLICANT: | Mr Biss |
| RESPONDENT: | Ms Biss |
| FILE NUMBER: | BRC | 11057 | of | 2008 |
| DATE DELIVERED: | 16 December 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 7, 8, 9 and 12 October 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jordan |
| SOLICITOR FOR THE APPLICANT: | Simonidis Shoebridge |
| COUNSEL FOR THE RESPONDENT: | Mr Foley |
| SOLICITOR FOR THE RESPONDENT: | Harrington Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cameron |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland (Ms O’Neill) |
Orders
IT IS ORDERED
Parental responsibility
The parties have equal shared parental responsibility for A born … October 2002 and P born … September 2004 (the children) in relation to the major long-term issues concerning them, including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.
If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues.
The parties each be responsible or the children’s day to day care while the children are with each of them.
Living arrangements
School terms
During school terms the children live with each of the parties on the equal time week about basis with changeover to occur on Fridays after school.
After each school holiday period the equal time week about basis is to recommence after school on the first school day of the school term, with effect that the balance of that school week be spent with the party with whom the children have not spent the second half of the school holiday period, regardless of whether the children have spent the last week of the preceding school term with the mother or the father, with Friday after school changeover to recommence on the first Friday of each school term.
School holidays
During the school holiday periods:
(a)the equal time week about basis be suspended;
(b)the children spend the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father;
(c)the first half commence after school on the last school day of each school term; and the second half commence at 9.00am on the middle day of the school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the school term.
Special days
If the children are not already spending time with the mother on Mother’s Day, they spend time with her on that day from 9am until 5pm.
If the children are not already spending time with the father on Father’s Day, they spend time with him on that day from 9am until 5pm.
The children spend from 5pm on Christmas Eve until 2pm on Christmas Day with the party with whom they are not spending the first half of each of the Christmas school holiday periods.
The children (both) spend 2 hours on the birthday of either of the children with the party with whom they are not then spending overnight time unless a child’s birthday is a changeover day, and if no other period be able to be agreed between the parties the 2 hours be from 4.00pm until 6.00pm.
Changeover
During school terms, all changeovers are to occur at the children’s school.
During school holidays, changeovers for the commencement of the first half and the conclusion of the second half are to occur at the children’s school, and for the commencement of the second half changeover is to occur in the carpark of the K Shopping Centre near the entrance to Woolworths.
For special days changeover is to occur in the carpark of the K Shopping Centre near the entrance to Woolworths.
The parties may effect changeover at the K Shopping Centre either by themselves or by a responsible adult chosen by him or her who is known to the children and the other party.
When changeovers occur at the K Shopping Centre the parties are to ensure that as the children move from vehicle to vehicle the parties not come into contact with each other, and use their best endeavours (by appropriate instruction) to ensure that any responsible adult attending on behalf of a party does not come into contact with the other party or any responsible adult attending on his or her behalf.
Telephone communication
The parties are to permit the children to have liberal telephone communication with the party with whom the children are not spending time, including on special days.
Parties’ ability to make other arrangements in writing
Despite these orders, the parties may make other arrangements in relation to the children spending time with each of them, provided that such other arrangements are agreed in writing.
Parties’ communication
All written communications between the parties concerning the children, including in relation to the parties’ equal shared parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.
To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.
Psychological assessment of the child A
The parties, with the assistance of Mr R, psychologist, and the independent children’s lawyer arrange for psychological assessment of A as advised by Mr R in par 122 of the family report dated 12 June 2009 and share equally the cost of such assessment.
Upon receipt by the parties of such psychological assessment, the parties are to use their best endeavours to implement any advice in it concerning A’s emotional or other needs and share equally the cost of any such implementation.
Provision of orders, reasons for judgment and family report to certain persons
The parties may provide a copy of these orders, reasons for judgment and the family report of Mr R, on the confidential basis, to any counsellor or psychologist which he or she attends and must provide such, on the confidential basis, to any counsellor or psychologist which either of the children attends, including the psychologist to be attended by A for the purpose of his psychological assessment referred to in paragraph 21.
Information
The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
The parties must notify each other of the names and addresses of any treating medical or health practitioner including any counsellor or psychologist the children attend and any hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.
The parties must authorise the children’s school to provide each other at his/her request and expense information concerning the children, copies of school reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.
Attendance at the children’s school
The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.
Non denigration
The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the children.
Adult issues
The parties must not discuss adult issues with or in the presence or hearing of the children and use their best endeavours to ensure that other persons do not do so.
Motor vehicle seatbelt restraints
The parties must ensure that the children at all times are restrained by seatbelts while being driven in any motor vehicle.
Physical discipline
The parties must not use physical discipline in relation to the children and use their best endeavours to ensure that other persons do not do so.
Overseas travel
The parties each may take the children, during school holiday periods, on overseas trips, but only to Hague Convention countries, provided that the party intending to travel with the children must give the other party at least 30 days written notice of:
(a)the itinerary;
(b)details of accommodation and contact addresses while abroad;
(c)evidence of payment arrangements for the children’s return airfares; and
(d)registration of the children’s trip on Smart Traveller (or equivalent) maintained by the Department of Foreign Affairs and Trade.
Custody of passports
The children’s passports are to be held by the mother who must release them to the father 14 days before the departure date for any intended travel by the children with the father, who must return the children’s passports to the mother within 7 days of the children’s return to Australia.
The mother must ensure, by appropriate arrangement with the father, that the children at all times have current Australian passports with more than 6 months currency before expiry.
PACE Alert System
The children’s names be removed from the PACE Alert System in force at all points of arrival to and departure from of the Commonwealth of Australia.
All other orders discharged
All other orders concerning the children are discharged.
All other applications dismissed
All other applications concerning the children are dismissed.
Undertakings
The parties are released from their undertakings given respectively on 5 December 2008 (father) and 17 December 2008 (mother), including the mother’s undertaking as modified by order made on 9 October on 2009.
Independent children’s lawyer
Subject to order 21, and the next order, the independent children’s lawyer is discharged.
Liberty to apply
The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.
IT IS NOTED that publication of this judgment under the pseudonym Biss & Biss is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11057 of 2008
| MR BISS |
Applicant
And
| MS BISS |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern A born in October 2002 now 7 years and P born in September 2004 now 5 years whose parents are Mr Biss (the father) and Ms Biss (the mother).
The father by his amended application filed 7 October 2009 (original filed 5 December 2008) seeks final orders that the parties have equal shared parental responsibility for the children; the children live with him and spend time with the mother at all times as may be agreed between the parties but failing agreement on alternate weekends from Friday afternoon until Monday morning and half of the school holiday periods; there be liberal telephone communication; there be specific orders relating to overseas holidays and other orders including that the mother be restrained from bringing the children into contact with Mr W who is the mother’s partner.
The mother by her application filed 7 October 2009 (original filed 5 December 2008 and previously amended on 9 March 2009) seeks final orders that she have sole parental responsibility for the children; the children live with her and spend time with the father on alternate weekends from Friday afternoon until Monday morning and half of the school holiday periods but with a staggered regime (alternate weeks until the end of 2011 and then a first half/second half regime); and other orders including that the father be restrained from taking the children on overseas travel.
The independent children’s lawyer, in final submissions, urged that the parties have equal shared parental responsibility for the children; during school terms the children live with the mother and spend time with the father from Thursday after school until Tuesday before school in alternate weeks (9 nights mother/5 nights father); during school holiday periods equal time with each parent on the first half/second half basis; and other orders.
In essence, the father and the mother had mirror opposite proposals that during school terms the children live with each and spend only 3 nights in each fortnight with the other parent, with half school holidays, whereas the independent children’s lawyer favoured that during school terms the children spend more time with the mother than the father in a 9 nights/5 nights regime, with half school holidays.
These proposals however were put against the background that since 17 December 2008 pursuant to interim consent orders made on that date the children have spent equal time with each of the parties in a week about arrangement, with changeover occurring on Fridays at 4.00pm, which arrangement at the time of the trial had subsisted for some ten months with apparent success, despite a highly conflictual parental background.
Mr Jordan of Counsel, for the father, in final submissions urged that there is no basis to reduce the children’s time with the father which had subsisted at the time of the trial for some ten months so that if the father’s proposal not be accepted then in the alternative the father proposed that the week about arrangement should continue by way of final order.
Background matters
The parties married in October 1998. They separated in August 2008, when A was nearly 6 years and P nearly 4 years.
The father is now 33 years and the mother 32 years.
The mother lives at V, and the father at W, which are suburbs in Brisbane’s south western area in close proximity to each other; close proximity also to the maternal grandparents, who live at K; and close proximity also to A’s school and P’s kindergarten.
The parties have agreed that P will commence Year One in 2010 at the school presently attended by A.
The father was raised in the United States of America. At all times his parents have resided and continue to reside in the USA. Since the separation the father has not re-partnered. He has a close female friend, Ms JU. The father and Ms JU have not yet decided whether their close friendship may become a committed relationship.
The mother was raised in Australia. Since the separation the mother has re-partnered with Mr W. The mother and Mr W were friends at high school. They re-met, by chance, at a shopping centre in mid 2008 shortly before the parties’ separation, resumed their friendship at that point and commenced and subsequently quickly developed their relationship in about September 2008 shortly after the parties' separation. At the time of the trial the mother and Mr W were expecting a child, due in November 2009, a son to be named C. The mother and Mr W plan to marry in 2010. They plan also to have a second child together, in a few years time, subject to the mother’s health, her present pregnancy having proved difficult.
The father is very bitter about the mother’s relationship with Mr W, believing it to have commenced before the parties’ separation and indeed to have been its cause.
The mother, however, presented the case of a prolonged history of severe family violence by the father, summarised in a chronology comprising part of her case outline, cross referenced to her affidavit material, to which chronology I would refer without setting out extracts.
The father, whilst admitting some discrete incidents of family violence, denied its extent and severity.
The mother, during the parties’ relationship, assumed the primary role of homemaker but also had employment outside the home as a cleaner. At the time of the trial, with the birth of her third child imminent, she was not working outside the home.
The father works as a tradesman. He also has training, but no formal qualifications, in accountancy.
Presently, the mother and Mr W do not live together, but within close proximity to each other. This circumstance has arisen by reason of an undertaking given by the mother on 17 December 2008 not to bring the children into contact with Mr W. As will be seen, I propose to release the mother from that undertaking with effect, according to the evidence, that the mother and Mr W soon will commence to reside together.
History of contact since the separation
The parties and the independent children’s lawyer provided a schedule as to the time the children have spent with each of the parties since the separation: see ex 5. For present purposes it is sufficient to observe that since the interim consent orders made on 17 December 2008, as mentioned, a week about arrangement has subsisted.
Notice of Child Abuse or Family Violence
On 5 December 2008, the mother filed a Notice of Child Abuse or Family Violence, containing the following, at Part E, as to child abuse. As is self evident, the notice does not contain allegations of child abuse, but rather a series of observations:
1.I have seen [P] touching herself on her private parts. I have seen her touching herself; or she would be openly touching herself whilst I was in the room. I brought this up with the father and asked him why she was doing this and he said “at least someone in the house is sexually active”.
2.When [P] and [A] takes baths she often tried to grab at [A’s] private parts. On several occasions she has grabbed him on the penis and said “put your willy in my ginger”. [P] tries to put bath toys up her private parts whilst she is in the bath.
3.On one occasion I was walking past [P’s] room whilst the father was changing her. I heard [P] say “put your willy in my ginger”. I turned back around and said to the father “why is she saying that?” The father replied “I don’t know – you can change her” and walked away and left her.
4.After we separated and [P] had spent time with the father I caught her putting rocks/stones down her pants whilst we were at a friend’s place. I asked her why she was doing this and she said “because it’s itchy”.
The notice, at Part G, sets out an extensive list of family violence allegations by the mother against the father, and also observation and comment:
Domestic Violence Allegations
1.The father and I have been married for 10 years and in this time I have been subjected to multiple incidents of both physical and emotional violence.
2.In July 1999 the father hit me in the face and head which resulted in bruising.
3.In September 1999 the father backhanded me and busted my lip.
4.In April 2001 the father broke my arm by kicking me resulting in attendance at the Emergency Department at […] Hospital.
5.In April 2003 when I was 6 months pregnant with [P] the father backhanded me and busted my lip again.
6.Frequently he told me he was going to “snap my neck and mop the floor with my head”; also he said he would “rip my head off”.
7.He has threatened to kill me about 3 times.
8.He has also shown violence towards the children.
9.The father has threatened to smack [A] if he does not finish his dinner.
10.On 23 August 2008 the father smacked [P] for having an accident in her pants. Since this time [P] has been very distressed about going to the toilet.
11.The father has also repeatedly destroyed and damaged property we have lived in. In March 1999, January 2000 and January 2001 he has punched holes in walls. He has also damaged our phones and doors.
Current Incidents of Violence
12.On 4 August 2008 the day we separated, the father had thrown me across the room and slapped me in front of the children. He also threatened to pull out the floorboards in our home saying that it would devalue our home and make it look like squatters lived there.
13.[In] September 2008 at my daughter’s birthday party the father telephoned and threatened to hit me and my Dad.
14.It was because of this continuing violence following on the separation that forced me to file and obtain a Protection Order on 29 September 2008 which included both the children. I was unrepresented at the time.
Threats to take the Children
15.On 13 October 2008 the father obtained the assistance of his solicitor to have the children removed from the Temporary Protection Order. On the same day, he also filed a cross Application which admits the violence towards me. He admits to :-
4.2the verbal abuse and punching a hole in the wall
4.3smashing 2 phones
4.4pushing me
4.5backhanding me and busting my lip
4.6knocking a hole in the door
4.7breaking my arm
4.8pushing me
4.9threatening me that he will pull out the floorboards. He admits to taking the children somewhere that I can never find them. (original numbering sequence)
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, if a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child:
·the Court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·the parents’ current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents; and
·the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial Judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Principles relevant to findings of sexual abuse
In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(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 Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
Approach to the analysis of evidence relating to sexual abuse disclosures
In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial Judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred … .
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.
Principles relating to unacceptable risk of sexual abuse
In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family 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”.
The test propounded by the High Court in M and 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.” (at page 77,081)
The “unacceptable risk” test is therefore the standard used by the Family 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”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act [now s 65E] and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. … ;
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.;
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. (emphasis added)
In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk.
In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
The evidence
The father relied upon evidence by himself; Ms AU, a friend whose husband is Mr DU; and Ms JU, his friend to whom I have made reference earlier, whose former husband, it seems, is DU’s brother.
The mother relied upon evidence by herself; Mr W, her partner; the maternal grandparents; Ms N, a friend; Ms D, the mother’s paternal aunt (sister of the maternal grandfather); and Dr L, in relation to an attendance on A.
The independent children’s lawyer relied upon evidence by Mr R, psychologist, who prepared a family report; and Ms H, a child caseworker with the Department of Communities (Child Safety).
In addition, the evidence comprised documentary exhibits (exs 1- 5); which included a videotaped interview of P by Senior Constable E and a transcript of the interview prepared by Auscript (ex 2).
It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully.
P’s disclosures – analysis of evidence as to whether sexual abuse occurred – finding that no sexual abuse occurred
P’s disclosures, and observation as to them, are set out below.
On 29 November 2008, P disclosed to the father that Mr W had touched her “ginga”. The father’s affidavit in relation to the disclosure provides:
71.On Saturday 29 November 2008 at 3.30pm I took [P] to the toilet whilst she was spending time with me. I tried to make [P] go to the toilet herself but as she was four years of age at the time she asked me to help clean her.
72.As I was cleaning her [P] said to me words to the effect of ‘[Mr W] touches my Ginga’. This is the name that [P] calls her private parts. I asked [P] when this had happened and she did not say anything. I did say to [P] that she was not in trouble. [P] then said to me words to the effect of ‘It was when he was hugging me and he touched my Ginga with his fingers and then he put me down’. I asked [P] when it happened again and she said to me words to the effect of ‘it was when we were in Sydney’.
73.I did not speak to [P] about this again for about another hour and a half at which time I said ‘was it an accident’. [P] said to me words to the effect of ‘No it happened when he took me to the toilet in Sydney and he touches my Ginga then. Then he hugged me and put me down’.
Ms AU said that P made the following disclosure on 29 November 2008 in her presence on the deck of her home:
21.On 29 November 2008 the father and the children were at my home visiting with myself and my children. We were sitting at the table on my patio when [P] said words to the effect of ‘[Mr W] touched my ginger’. The father had not mentioned this to me earlier. There was no discussion going on at this time about anything of a sexual nature and I was shocked by what [P] had said. I evaded what [P] had said and changed the subject.
22.[Mr DU] and I did discuss the issue with the Father later when the children were playing but not in the presence of the children.
On 2 December 2008 P was interviewed by Senior Constable E (ex 2), who said by way of general report (ex 1, p171):
GENERAL REPORT
A telephone call was received from the informant the victim’s father, he stated to Police that the victim had disclosed to him that the NOK’s new boyfriend the suspect had touched the victim on her vagina with his fingers. The victim subsequently participated in a 93a statement in which she disclosed that the suspect had touched her on her vagina (the victim calls her vagina her ginger). The victim disclosed to police that she was sitting on the toilet at the time and that the subject touched her the same way her mother touched her when she assisted her on the toilet. The victim stated that she does not like it when somebody touches her vagina. The victim disclosed that the incident possibly could have happened in Sydney. There is no evidence to suggest that any criminal offence has occurred. It appears that the suspect has been touching the victim in the course of assisting her whilst she is on the toilet. The report is entered for reporting purposes only. (emphasis added)
The transcript of interview (ex 2) supports this conclusion. See at T12-26, especially at 20 line 20 – 21 line 40; 22 lines 10-25; and 24 lines 5-45.
In addition, I would refer to the notes compiled by MS H, child caseworker with the Department (ex 1, p6) as to information provided to her by a notifier on 2 December 2008, it being common ground that the notifier was the mother, in particular the following:
N stated SC [P] has stated “do you want to see my ginger” to Mo’s partner while SC has been in the bath.
In this extract, “N” denotes the notifier, who was the mother, “SC” the subject child and “Mo’s partner” Mr W.
The extract appears as the fifth last dot point of 13 dot point items attributed as statements by the mother as the notifier to Ms H.
Under intensive cross examination by Mr Jordan of Counsel, for the father, the mother said she had no recollection of stating that subject matter to Ms H, although acknowledging that the subject matter of all or most of the other dot point items had been reported by her to Ms H.
The mother’s case in relation to her notification was that in her view P had been demonstrating sexualised behaviour which may have been attributable to sexual abuse of P by the father. It was put by Mr Jordan that the mother’s stated inability to recollect this particular subject matter of her notification to Mr H was dishonest because it may implicate Mr W. However, I do not think that necessarily follows, and think it is more likely that the mother genuinely may not have recalled all of what she said to Ms H some 8 or 9 months before the trial, Ms H saying in her cross examination, which I accept, that the 13 dot points were as told to her by the mother “to the best of my recollection.”
The evidence of both the mother and Mr W was to the effect that between the parties’ separation in August 2008 and the mother’s undertaking given on 17 December 2008 not to bring the children into contact with Mr W, the children had been in contact with Mr W on six occasions. The first was a day in June 2008 when the mother and the children collected Mr W from Brisbane Airport and spent time at a park. The second was a day in July 2008 in Brisbane which involved seeing a film. The third was 5 and 6 October 2008 overnight in Brisbane at the mother’s home. The fourth was about two weeks later 19 and 20 October 2008 overnight. The fifth was a four night trip to Sydney in the first week in November 2008 at a hotel, which involved also the Opera House, Sydney Harbour Bridge, Mr W’s sister’s home, a revolving restaurant and a park. The sixth was about 16 November 2008 in Brisbane when Mr W visited for 2 nights.
The transcript of interview (ex 2) has P describing Mr W touching her “ginga” in Sydney.
The mother said that P is in the habit of asking people to “wipe her” when on the toilet and on one occasion in Sydney said “[Mr W] can you wipe me” at which Mr W looked at the mother with an embarrassed look, or a “look of surprise”, because “he hadn’t been around kids”, but that the mother had wiped P, not Mr W. The mother said that on the next occasion, 16 November 2008, in Brisbane, Mr W “walked in” when P was on the toilet in the mother’s ensuite but “he didn’t know she was in there” and “he walked out straight away”.
Mr W said categorically that he has never “wiped” P. He said that in Sydney P “asked me to wipe her”, which embarrassed the mother and he said (eyebrows raised) “n-o-o-o-o” and that “[P’s] little face was quite offended when I said no and I left the room.” Mr W said that on no occasion did he bathe P. He said however that on one occasion when the mother and P were in the bathroom and he was in the bedroom resting on the bed, after P’s bath “[P] came running in” and said “do you want to see my ginga” but the mother, very embarrassed came in and “whisked her away”, such incident lasting “about three seconds.”
Mr W’s evidence was given in a very natural and straightforward manner and I have no reason to doubt its veracity. The mother’s evidence similarly was given in a very natural and straightforward manner and I have no reason to doubt its veracity. I have dealt already with the point raised by Mr Jordan against the mother’s credibility, which I reject.
Mr Jordan did not urge that there be a finding of sexual abuse of P by Mr W, and indeed appeared to concede that the evidence could not support such a finding. Mr Foley of Counsel, for the mother, and Mr Cameron of Counsel, for the independent children’s lawyer, urged that on the evidence I should make the finding that no sexual abuse of P by Mr W occurred.
Mr Cameron submitted, which I accept, that the child’s evidence is capable of innocent explanation, namely that Mr W may have assisted the child with her toileting on one occasion, indeed, “in the same way” in which the mother assisted the child (General Report, above, and see ex 2, T20 line 20-21 line 40); see also the child’s evidence that the father “helps her” in her toileting but “normally doesn’t touch my ginger a lot” (ex 2, T20 lines 35 – 40) inferring that the father, in toileting P, also has on occasions touched her “ginger”; and see also the mother’s affidavit, par 122, deposing that P has said to her on several occasions “daddy touches my ginga”, which the mother thought was a strange comment because P had also told her that “Both [A] and I have touched her ginga”.
Mr Cameron submitted however that the denials by the mother and Mr W of any touching of the child on her “ginga” by Mr W gives rise to a “dilemma”, but one which “can be explained”, possibly, by some compulsion on their part to “give a version of events” which included their denials. Whilst this is a possibility, and there is plain inconsistency between the child’s evidence in this regard on the one hand and the mother’s and Mr W’s evidence in this regard on the other hand I have observed already that I have no reason to doubt the veracity of the mother’s and Mr W’s evidence. In particular, as the trial judge I would observe that the context and the manner in which their evidence was given persuade me that caution was taken by them to avoid any circumstance of the nature of the child’s disclosures. Thus, when choosing between the child’s evidence, and the mother’s and Mr W’s evidence, I have no hesitation in preferring the mother’s and Mr W’s evidence rather than the child’s evidence.
On all of the evidence, I am satisfied that no sexual abuse of P by Mr W occurred, and I so find.
Similarly, on all of the evidence, I am satisfied that no sexual abuse of P by the father occurred, and I so find.
Ultimately, I am satisfied that P’s behaviours, although described in some of the material as “sexualised behaviours”, are more likely to have other innocent explanation. I would add that the mother’s notification concerning possible sexual abuse of P, by the father, seems to have been based upon surmise, having regard to P’s behaviours, and the mother’s further surmise that the father may have exposed P to pornographic material, which would seem to have no factual foundation: see the father’s affidavit at pars 137-141; the cross examination concerning those paragraphs; and the father’s evidence that whilst he has viewed emailed pornographic material such has been late in the evening when P would not have had opportunity to see it.
I am conscious that Mr R, the family report writer, at par 109 of the family report concluded that “Certainly, the child’s reported statements suggest that she has, at the very least, been exposed to inappropriate sexual material and that at some point, she was not adequately protected from potential harm.”
Whilst I give weight to Mr R’s opinion, having conducted the trial, an advantage not available to Mr R, and having considered all of the evidence very carefully, I am satisfied that this is not so. If I should be wrong in that factual conclusion, and P was at some stage “exposed to inappropriate sexual material”, which possibility can never be excluded, such does not alter my conclusion that P has not been sexually abused.
Unacceptable risk
Mr Jordan conceded, properly, that it is “difficult to see” how any determination of unacceptable risk of sexual abuse of P by Mr W could be made and made clear that such determination was not urged.
Mr Foley and Mr Cameron supported a determination that there is no unacceptable risk of sexual abuse of P by Mr W.
Despite Mr Jordan’s concessions, he said however that the father still sought an order that the mother not bring the children into contact with Mr W “because of a concern of unacceptable risk”, but then made clear his understanding that the only basis for such an order would be if, and only if, I should determine that there is an unacceptable risk to P of sexual abuse by Mr W. Mr Jordan’s submission is anomalous, having regard to his earlier concession. However, as the submission was made, I must deal with it. Mr Jordan said that there are “six or seven pieces of evidence” which “might enliven” such concern, being:
· P’s disclosure to the father (set out above)
· P’s disclosure to Ms AU (set out above)
· P’s disclosure to Senior Constable E (set out above)
· P’s asking of Mr W whether he wanted to see her “ginga” (Mr W’s evidence)
· The mother’s and Mr W’s failure to disclose P’s question to Mr W (the subject of the fifth last dot point of the mother’s notification, as recorded by Ms H) in their affidavit material and in the Notice of Abuse filed by the mother, raising issues of credit
· The circumstance that since the “exclusion” of Mr W by the mother’s undertaking 17 December 2008 P’s statements have “ceased”
· The circumstance that the videotaped interview of P by Senior Constable E (which was played in Court) was assessed by “adult eyes” (that is, by those in the courtroom) whereas P at the time was a 4 year old child (the inference being I think that it is not possible to exclude that sexual abuse did not occur).
I have carefully considered Mr Jordan’s submission based upon these matters, in particular as to whether, by reference to the Honourable John Fogarty’s “accumulation of factors” principle, being the seventh in his summary of principles referred to above, there is an identified risk of sexual abuse of P by Mr W, and I conclude firmly that there is not.
It follows that it is not necessary to proceed to any “balancing exercise” as to whether any level or degree of identified risk of harm to P by Mr W outweighs any possible benefit to P of spending time with him when P lives with or spends time with the mother.
If however it were necessary to proceed to such “balancing exercise”, I would find without hesitation that there is clear benefit to P in her being able to spend time with Mr W as part of the mother’s new family unit, comprising herself, Mr W and C. I have mentioned that the mother and Mr W plan to commence to reside together with their new child C and to marry in 2010. There is evidence that both P and A get on well with Mr W, and at the time of the trial were anticipating happily the birth of their new half sibling. Further, in any “balancing exercise”, if it were relevant, I would find without hesitation thus that the possible benefit to P of spending time with Mr W outweighs any risk of harm to her by Mr W.
Accordingly, I will not make the order sought by the father that the mother not bring the children into contact with Mr W and, as mentioned earlier, will release the mother from her undertaking in this regard. The release includes the undertaking as modified by the order which I made on 9 October 2009, which modification expressly was put in place only pending judgment, to enable the mother, Mr W and the children to be in the company of each other as a family unit having regard to C’s then imminent birth.
The independent children’s lawyer sought that I make an order that the mother take responsibility for bathing and toileting P and ensure that Mr W not do so. Plainly, as was put in argument, any such order, unfairly, would have the potential to carry the inference that P is not safe in Mr W’s care, which inference may malign him, without foundation. Thus, I will not make that order.
Equally plainly, however, the mother and Mr W themselves may seek to ensure that Mr W does not attend to any of P’s bathing or toileting, to avoid any future potential disclosures by P, which, having regard to the history of the matter, should be avoided circumstantially.
It was not submitted by Mr Foley or Mr Cameron that there is unacceptable risk to P of harm by sexualised behaviour by being exposed to pornography in the father’s home. I have referred already to the evidence about this, which is insufficient to conclude that there is risk to P of such exposure. Although, as said, the contrary was not submitted by Mr Foley or Mr Cameron, I have included this observation on the evidence for the sake of completeness.
The statutory matters
The children’s best interests
Having dealt with the matters of alleged sexual abuse and unacceptable risk, I will turn now to the statutory matters concerning the children’s best interests.
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark [2009] FamCAFC 92 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
In all of the circumstances of this case, there is no reason to conclude, applying “the prospective approach”, that there is other than benefit to the children of having a meaningful relationship with both of the children’s parents.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
I have dealt sufficiently with matters relating to risk of sexual abuse and exposure to sexual material and found that there is no unacceptable risk and thus not a need to protect the children in this regard.
There is not any case of the need to protect the children from physical or psychological harm from being subjected to or exposed to neglect.
There is however a significant case presented by the mother of the need to protect the children from physical or psychological harm from being subjected to or exposed to family violence by the father.
I have referred already to the mother’s allegations of family violence in her Notice of Abuse or Family Violence, and as summarised in the chronology comprising part of the mother’s case outline, cross referenced to her affidavit material.
I accept the mother’s affidavit evidence supporting her allegations of family violence, and find that it comprises a protracted history of family violence to the mother by the father, over the 10 year period of the parties’ relationship, some of which violence occurred in the presence of the children, and find further that the father has little insight as to his conduct or its effects. In this regard, the mother’s affidavit material is mandatory reading, although, for the purpose of these reasons, I will not refer to it in detail. As I have said, it is summarised well in the mother’s chronology, which itself presents a devastating synopsis, cross referenced, as it is, to the mother’s affidavit material, able to be read in conjunction with it.
Further, there is evidence of past violence by the father directly towards the children, in particular, by way of his smacking of A, which A described to Mr R, the family consultant.
In relation to the father’s violence to the mother, there is no doubt, on the evidence which I accept, that it was prolonged and severe, and that whilst the father made discrete admissions of violence towards the mother during the course of the parties’ relationship, his denial of the extent and severity of the violence serves only to demonstrate his lack of acknowledgment and non acceptance of responsibility for the family violence he perpetrated.
Mr Foley described the mother as having suffered “years of disempowerment”, which I accept, and described that in the mother’s decision to separate from the father she became “empowered” to no longer be subjected to his violence, thus enabling her to move on into a new relationship in which, fortunately for the mother, there are no indications that violence is present or is likely to occur.
There is great force in Mr Foley’s submissions in this regard.
However, no matter how severe was the violence to the mother by the father during the parties’ 10 year relationship, and without at all minimising its reality, seriousness and effect on the mother and indeed on the children, there is now another reality, which is that the violence between the father and the mother was a feature of a relationship now firmly in the past.
Moreover, a protection order was put in place on 16 February 2009 against the father in the mother’s favour, by consent without admission, which will remain in force until 15 February 2011.
Thus, whilst not in any sense disregarding the past violence to the mother by the father, it is my function at this point to consider whether, prospectively, there is a need to protect the children from violence by the father.
Often, it has been said, that the past is the best indicator of the future.
Thus, it is necessary to consider the evidence as to whether the violence by the father to the mother during the course of their 10 year relationship, some of which was in the presence of the children, was peculiarly a feature of that relationship, or whether the father in other respects, post separation, has demonstrated a wider pattern of violence since the cessation of the parties’ relationship including towards the mother, the children and other persons.
The mother’s evidence provides several allegations of post separation violence which, for ease of reference, may be seen in her chronology, cross referenced to her affidavit material, between 8 August 2008, which incident caused the mother to leave the father, and the most recent alleged incident as at the time of the trial, 25 July 2009.
The mother, in her case outline at page 10, drew particular attention to the following selection of alleged incidents:
·26 December 2008: This was a changeover day. The mother alleges that the father swore at her (mother’s affidavit, par 137);
·2 January 2009: This was a further changeover day. The mother alleges that the father deliberately smashed A’s bike into the rear windscreen of the mother’s car, smashing the windscreen, then “calmly” apologised, inferring pretence, saying “it was an accident” (mother’s affidavit, par 138);
·27 January 2009: This was A’s first day at school. The mother says the father swore at her in front of the children because she was intruding on “his time”, the father said “you shouldn’t be here as it’s my week”, and continued to swear at and bully her such that “both children appeared fearful and agitated” (mother’s affidavit, par 140);
·15 May 2009: the maternal grandfather says that at a rugby game the father swore at him, which he did in return, then the father pushed him with his open hand three times, slapped his face with his right hand saying “C’mon, c’mon, hit me” with his left hand under his chin, at which the maternal grandfather says he raised his fists but did not at any stage lunge to strike, this occurring in front of the mother and A (maternal grandfather’s affidavit, pars 56-69; mother’s affidavit, par 171);
·18 July 2009: The mother says that while A was in her care, at a rugby game she noticed that A was crying and that the father said words to A such as “do you understand me?”, followed by “you will next week when I’ve got you”. The mother said she knows what the father means when he says such words as he is a “smack-until-you-obey-me person” (mother’s affidavit, par 193);
·25 July 2009: This was another of A’s rugby occasions. The maternal grandfather says that on 13 August 2009 he was interviewed by police upon a complaint by the father that on 25 July 2009 the grandfather had pushed the father to the ground. The grandfather says the incident did not occur and is “fictional” (maternal grandfather’s affidavit, pars 70-71).
Although these are some only of the mother’s examples, as they are the ones mentioned in her case outline I take them to be regarded by the mother as the most serious. I fully understand the mother’s case, however, which is that these serve as mere examples of a pattern, and so cannot properly be considered as each only in isolation, or each only as discrete events. However, as the mother has selected these examples, by reference in her case outline, I will deal now with the father’s responses to them.
An examination of the father’s material as to post separation events shows a different picture. The father denies that he swore at the mother on 26 December 2008 (father’s affidavit in response, par 128). As to 2 January 2008, the father says that A had tried to help him take his bike off the back of the father’s truck, and that the father did not want him to do so in case he hurt himself, A then letting go, with effect that the bike fell, with “stunt pegs” hitting the back of the mother’s windscreen, her car being parked less than one metre away. The father said that immediately he said to the mother “I’m sorry it was an accident”, and that the event “scared me a bit when it happened” (father’s affidavit in response, pars 129-131). As to 27 January 2009, the father said that both he and the mother were present at A’s first day of school, to support A. Whilst he does not deny swearing at the mother, he said that neither child was fearful or agitated, he has photographs of the children on that day (inferring that the photographs show the children as not fearful or agitated) and that A enjoyed his first day of school (father’s affidavit in response, par 132). As to 15 May 2009, the father challenged the maternal grandfather’s evidence strongly. As events transpired, the grandfather made a complaint to police who charged the father with breach of the protection order in the mother’s favour. The father has pleaded not guilty. The hearing is scheduled for 17 December 2009. In turn, the father has applied for a protection order against the grandfather, the hearing of which is scheduled for the following day 18 December 2009. In relation to these scheduled hearings, the father said that at them “the truth will emerge”, implying that the maternal grandfather was the aggressor, not him. In relation to 18 July 2009, the father said that on that day he was coaching A’s rugby game, and that after the game A had kicked an opposite player in the shins, which the mother did not see, and that he spoke to A about that incident but “did not have harsh words with him” (father’s affidavit in response, pars 150-152). In relation to 25 July 2009, I am unable to identify any affidavit response by the father to the maternal grandfather’s affidavit, pars 70-71; and seem not to have made any note of this matter being raised with the father in cross examination.
In relation to these specific post separation allegations by the mother, it is not necessary for me to make findings, however, I will do so where I can. I will make a specific finding in relation to the mother’s allegation of deliberate smashing by the father of the windscreen of the mother’s car, because, if true, such would amount to an extreme act of violence by the father post separation, particularly when the photograph of the smashed windscreen attached to the mother’s affidavit is viewed. In relation to this alleged incident of family violence, I accept, without hesitation, the father’s evidence that the smashed windscreen occurred by accident, and, specifically, occurred in the manner described by the father, that is to say, that A had tried to help the father take A’s bike from the back of the father’s truck, but the father indicated that he did not want A to do this in case he hurt himself, A then letting go of the bike, which fell onto the mother’s windscreen, her car being then parked less than one metre away, and that the father genuinely apologised to the mother, such apology not being a pretence or sarcastic remark to conceal any deliberate smashing of her windscreen. I find accordingly. On 26 December 2008 and 27 January 2009, I find that probably the father did swear at the mother. However, these occasions were in the aftermath of the demise of the parties’ relationship, each occurring on “special days” (Boxing Day 2008, and A’s first day of school in 2009), and thus, in context, within a relatively short period after the parties’ separation, when the potential for emotional volatility was high. The alleged incident on 15 May 2009, as I have observed, is yet to be the subject of factual determination in the State Courts. As to 18 July 2009, I am inclined to accept the father’s evidence, rather than the mother’s, for the reason that the father’s was cogently expressed, and plausible, whereas the mother’s evidence appears to be biased reconstruction. As to 25 July 2009, it appears plain, having regard to the maternal grandfather’s evidence, that indeed the father must have made a complaint to police as otherwise the 13 August 2009 interview of the maternal grandfather by the police would not have occurred. However, there is insufficient evidence to make a finding in relation to the apparent complaint by the father to police that on 25 July 2009 the maternal grandfather assaulted him, that is, as to whether it was a false complaint, and if so, its motive.
Having regard to matters post separation, there is also A’s report to Mr R, the family report writer, of A saying to Mr R of the father “he always shouts” and “he smacks me”: family report, par 86.
In relation to this, the father said that he shouts to get A’s attention, but denied that any conduct by him to A was inappropriate
Mr Foley submitted not only that A’s complaint to Mr R should be taken seriously, but pointed to evidence concerning the father’s failure to undertake a post separation parenting program, despite being ordered by Federal Magistrate Slack to do so in December 2008, and the father’s failure to act on recommendations of Mr R made in his family report, for example, at par 128, that the father would benefit from counselling to assist in post separation adjustment because of his presentation as harbouring considerable anger towards the mother for leaving the parties’ relationship.
Mr Foley submitted also that on the evidence the father had “told lies” in relation to parenting matters and submitted that the case is such that the real issue of prospective future violence by the father to the children cannot be “glossed over”, urging that the Court “cannot lightly assume the father will improve” in relation to his demonstrated long term pattern of violence, which Mr Foley described as systematic, serious and concealed. Mr Foley, in his written submissions, referred to observations by the Russian novelist Alexander Solhenitsyn, and US Senator Dianne Fienstein, as to the effect of the concealment of family violence and its non visible effects. He referred also to ex 4, being a page in the mother’s personal diary headed “[the father’s] hurtful words”. The father said that he had found the diary during the weekend before the trial, and referred to extracts from it, but did not refer to the page subsequently tendered which became ex 4.
Mr Foley referred to the Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged, Family Court of Australia, March 2009, at p8, Section D, inviting that the mother’s evidence, to which I have referred, fulfils the criteria of the several bullet point matters referred to on page 8.
Mr Jordan submitted however that the father’s past violence is not the “be all and end all of the matter”, and urged that the Court should recognise a distinction between the circumstances which existed in the family pre separation and the circumstances post separation.
Mr Jordan urged that in the immediate post separation period the father “plainly was hurt and bewildered”, but that he has not been physically violent towards the children, such that the evidence of the father’s relationship with the children post separation does not provide any current basis to find a need to protect the children from family violence by the father.
In particular Mr Jordan urged, which I accept, that a cut lip which occurred to A was a childhood accident; and that the father did not occasion or require that A “eat his own vomit”, that being a false allegation and/or exaggeration, and indeed an example of the mother using “mistruths and exaggerations”, as alleged by the father, in her description of events.
I would refer finally to an incident concerning P and a rock, which I accept also was a childhood accident. In this regard, there were allegations by P that Ms AU smacked P with a stick after pulling her pants down while P was in the father’s care. This was denied by Ms AU, who explained that DU, her husband, had smacked P but not with her pants down, and in circumstances in which she condoned the smack as P had dropped a rock from a truck tray onto the bridge of her son’s nose, while her son had tried to catch it, breaking her son’s nose.
As I understood the mother’s case, she relied on this as an example of the father permitting other adults physically to discipline the children, and thus to perpetrate violence on them. However, I am satisfied with Ms AU’s explanation of what occurred, and find that the event did not amount to violence to P.
Mr Cameron referred to the father’s alleged smacking of A as a significant matter, but drew attention to the circumstance also that apart from A’s comment to Mr R, par 86 of the family report, there is no evidence that A has been abused physically by the father since the parties’ separation. Mr Cameron drew attention to the circumstance that the several school reports concerning A since the parties’ separation do not contain any disclosures by A of physical discipline by the father. This, it seems to me, is a notable circumstance, and one likely to be indicative of the matter prospectively, particularly as for the 10 months before the time of the trial A and P had spent equal time at the home of the mother and the father, and yet, apart from what A reported to Mr R, neither child has made any disclosure as to physical violence by the father to either of them.
In my view, the current state of the evidence does not support a determination that, presently, or prospectively, the children are at risk of being subjected to or exposed to family violence by the father so as to determine that there is a need to protect them, in the sense of either removing the children from his care entirely, or ensuring that all of their time with him be supervised.
In contrast Mr Foley of Counsel, for the mother, strongly urged that the very serious violence by the father in the past, showing an entrenched pattern of violence, indicates against equal time and that the mother should be the children’s primary carer, 11 nights per fortnight, with only 3 nights per fortnight with the father.
Mr Cameron of Counsel, for the independent children’s lawyer, in favouring significantly more time with the mother than with the father, 9 nights per fortnight with the mother and 5 nights per fortnight with the father, thus representing a reduction of the children’s current time with the father, seemed to place considerable weight on the following matters in his written submissions (par 25): the mother was the primary carer of the children before the separation; even having regard to A’s age and the circumstances in which he was interviewed by Mr R, nonetheless regard should be had to his wish to spend more time with the mother; the mother will be more available to the children, having regard to the circumstance that presently she is not working and that the father’s work hours are such that the children are in the care of Ms AU from 6.30am until 1.00pm, whereas the mother will have the benefit of assistance from both the maternal grandparents, who have a significant role in the children’s lives, and assistance also from Mr W; the children will “need more time” in the mother’s new household to “bond with and develop a relationship with [C]”; there is likely to “be more consistent routine” for the children in the mother’s household, which the father acknowledged in his evidence; and that there is concern that the father will not promote the relationship between the mother and Mr W but may seek to undermine it.
I have taken all of these matters carefully into account. In respect of the last mentioned matter, it is necessary to observe that the father at the trial expressed the same concern, namely that in the mother’s household the mother will not promote a relationship between the children and the father and may well seek to undermine it, so that the father, in his own words, would become “marginalised in the children’s lives”, or at least be seen by the children as the less important parent. Whilst it is significant that during the parties’ relationship the mother was the children’s primary carer, whilst the father was the primary earner, that particular relationship for the children had the parents both living with the children under one roof, which dynamic has now changed.
Further, whilst undoubtedly routine is important for children, it is a fact of life that one or both parents often will be in the workforce, with family arrangements made accordingly. Indeed, having a father in the workforce as part of family daily routine, even if such should necessitate the children being cared for by another person for a few hours before school, is not necessarily a negative factor, particularly where the circumstance of the children not having the father available to them in the mornings before school balances against the advantage of the father being fully available to the children in the afternoons after school and fully available at dinner time and bed time. The father’s evidence, it must be understood, was in the context of P being at kindergarten, whereas from 2010 she will be in Year One, with normal primary school hours.
Conclusion as to the children’s best interests
In my view, having regard to all of the evidence, the submissions, the statutory matters I am required to consider, and in particular having considered the positive and negative factors as to whether equal time is in the children’s best interests, I have determined firmly that it is.
Put simply, in my view, the positive factors to which I have referred outweigh the negative factors to which I have referred.
The concerns as to alleged sexual abuse of P have been negatived. The aspect of the father’s family violence has been put into current context. The successful implementation and maintenance by the parties of an equal time regime since December 2008, and the considerable changes already facing the children once judgment is given of commencing to live with the mother, Mr W and C, together with all other matters I have mentioned, satisfy me that an equal time order is in the children’s best interests.
I recognise that the interim orders made on 17 December 2008 provided for equal time week about, whereas the parties and the independent children’s lawyer now propose that the children spend half of the school holidays with each parent. Thus, any equal time order, if made, will operate so as to provide for equal time during the school terms, and half of the school holidays with each parent.
Reasonable practicability
It is necessary, having regard to the anticipated reasons for judgment by the High Court in MRR and GR [2009] HCA Trans 316, 3 December 2009, at p37, to consider specifically and discretely each of the matters in s65DAA(5), to which matters I will now turn.
How far apart the parties live from each other
As observed already, the parties live in close proximity to each other. The parties live also in close proximity to the maternal grandparents and the children’s school.
The parents’ current and future capacity to implement an arrangement for the children spending equal time or substantial and significant time with each of the parents
Having regard to the successful implementation of the equal time arrangement since December 2008, there is no reason to think that the parties do not have current and future capacity to continue successful implementation of an arrangement for the children spending equal time with each of the parties.
In this regard, I reject the mother’s submission (case outline, p10) that the father has limited capacity to implement an equal time arrangement having regard to the “level of conflict” between the parties following the making of the 17 December 2008 orders. The mother’s case outline referred to the alleged post separation incidents on 26 December 2008, 2 January 2009, 27 January 2009, 15 May 2009, 18 July 2009 and 25 July 2009. I have dealt with each of these matters. Moreover, it must be observed that whether the children spend 3 nights, 5 nights, or 7 nights per fortnight with the father, all would involve the same number of changeovers; and the parties and the maternal grandparents will continue to attend A’s rugby events and other school events for the children. Further, the parties and the independent children’s lawyer have proposed that all changeovers during school terms be at the children’s school, with changeovers for holidays and special days to occur at the K Shopping Centre, near the entrance to Woolworths. Thus, I am unable to see how these specific matters raised by the mother impact upon reasonable practicability.
The parents’ current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement for the children spending equal time or substantial and significant time
I have dealt with this matter sufficiently, save to add that the mother acknowledged in her cross examination that in the future she could see no impediment to the parties’ communicating with each other by means of a communication book, and I would refer to observations I have made already as to their ability to communicate by email or SMS text, such that in their parenting of the children they need not come into physical contact with each other.
Moreover, I would make the somewhat obvious observation that the parties’ need to communicate with each other, and to resolve difficulties that might arise, whether in relation to practical or emotional matters is a reality regardless of whether the children are with the father or the mother predominantly or with each of them for equal time.
In this regard, it ought not be taken that I have overlooked the matters in the careful analysis by Federal Magistrate Ryan, as she then was, now the Honourable Justice Ryan, in T & N [2001] FMCA Fam 222 at [93], referred to in argument before the High Court in MRR and GR (above) by Mr Page SC, at p30, which matters seemingly are as much relevant to reasonable practicability as to whether an equal time order is in a child’s best interests. Having regard to the circumstance of the pending High Court reasons in MRR and GR, it is useful to set out the matters identified in T & N, and to make relevant observations:
· The parties’ capacity to communicate on matters relevant to the child’s welfare.
· The physical proximity of the two households.
· Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
· The prior history of caring for the child.
· Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
· Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
· Where they disagree on these matters, the likelihood that they would be able to reach reasonable compromise.
· Do they share similar ambitions for the child? For example, religious adherence cultural identity and extra-curricular activities.
· Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
· Whether or not the parties respect the other party as a parent.
· The child’s wishes and the factors that influence those wishes.
· Where siblings live.
See also, H & H (2003) FLC 93-168 at [47]-[48]:
· The child’s age.
Of those matters, there is little evidence in relation to the sixth, of attitudes to homework, health and dental care, diet and sleeping pattern. The seventh, eighth and ninth inevitably will be tested as the children grow older, and are likely to arise whether the children spend predominant time with one parent or equal time with each. The other matters have been dealt with throughout these reasons and I would refer to the analyses of them without unnecessary repetition.
The impact on the children of an arrangement for the children spending equal time or substantial and significant time
The mother’s written submissions included that the “shared care arrangement” (seemingly, the week about arrangement), “is having a negative impact, particularly on [A]”, “as identified by the mother and the family report writer.”
I have analysed already however Mr R’s concerns as to A, which cannot be isolated as being the result of the equal time arrangement, of itself, as opposed to the broader context of other matters specifically identified by Mr R, including the circumstance of the level of conflict and tension between the parties, at least as at May/June 2009.
The mother’s written submissions included reference also to the factors identified by Jennifer McIntosh and the Honourable Richard Chisholm in their article Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research; and reference to several of the “parent factors” and “child factors” identified in that article. However, all of those matters have been dealt with variously throughout these reasons and it would be repetitious to revisit them and thus unnecessary to do so.
Conclusion as to reasonable practicability
Having considered and balanced the matters required to be considered, I am satisfied that the children spending equal time with each of the parents is reasonably practicable.
Conclusion as to whether equal time is in the children’s best interests
Having determined that an order for the children to spend equal time with each of the parents would be in the children’s best interests, and reasonably practicable, I will make that order.
Restraint concerning Mr W, and mother’s undertaking
My determination that Mr W has not sexually abused P, and that there is no identified risk of sexual abuse of P by Mr W, and thus no unacceptable risk to P if she should be brought into contact with Mr W, has effect that I will refuse the restraint order sought by the father. Further, as earlier indicated, I will, discharge the mother from her undertaking given on 17 December 2008, including as modified on 9 October 2009.
Father’s undertaking
The father’s undertaking given on 5 December 2008 will be discharged, as no longer relevant.
Seatbelt restraints
An issue arose as to the children’s safety while in the father’s care by his not ensuring that the children wear appropriate seatbelt restraints when in a motor vehicle. Having regard to the children’s ages, it is appropriate that there be an order that both parties ensure that the children have appropriate seatbelt restraint when travelling in any motor vehicle.
Physical discipline
A’s complaint to Mr R of “smacking” of him by the father is a matter which should be the subject of a specific order of restraint.
As is often the case, however, such an order is made in relation to both parents, and that is the order which I will make.
Overseas travel
The mother’s material includes, both in the Notice of Abuse or Family Violence, at par 4.9, and her affidavit material, that the father threatened to take the children, stating that the mother would never see them again.
The father said in his material that whilst he said words to that effect he retracted his words “in about 5 seconds”.
Mr Foley submitted that there is concern that the father made the threat; and that although he says he retracted it shortly afterwards “little reassurance can be taken from this.”
I reject this submission. In my view the context of the father’s statement, as set out in his affidavit, does not demonstrate that there was genuine intention behind the statement.
The father’s parents, as mentioned, reside in the USA.
Mr Foley drew attention, in his written submissions, to the circumstance that no evidence has been filed from the father’s parents, resident in the USA, to indicate their willingness to abide the decisions of the Court, or to state that they would not assist the father to “harbour” the children in the USA.
In oral submission, Mr Foley made clear that he sought a Jones v Dunkel (1959) 101 CLR 298 inference.
I will however not draw that inference. First, although it was put in cross examination to the father, as I recall, that his parents would have been able to provide affidavits, there was no suggestion in the pleadings that the father’s parents might assist him in harbouring the children in the USA. Secondly, the state of the existing evidence, being the admitted threat, and its immediate retraction, does not of itself fairly support a positive inference of danger to the children, capable of being assisted by affidavits by the father’s parents, to enable any positive inference that their evidence would have been unhelpful to the father’s case. Thirdly, such use of the rule would be tantamount to converting conjecture or suspicion into inference. See, generally, recent discussion as to application of the principle in Suffolk & Suffolk (No. 2) [2009] FamCA 917 at [78] – [87].
Further, I take into account that the USA is a signatory to the Hague Convention.
Thus, I will refuse the restraint order sought by the mother.
The father sought, by way of his proposed orders, that he be at liberty to take the children on overseas holidays, provided that there be notice to the mother and provision of relevant information.
In my view, such is in the children’s best interests, and I will make such an order, particularly as the paternal grandparents live in the USA, and there would thus be benefit to the children in their being able to visit them. I will, however, include in the order that overseas travel for the children be limited to Hague Convention countries.
The children’s passports conveniently should be held by one parent or the other, and released for travel purposes. The mother seeks to have custody of the passports, which seems convenient. I will make an order however that the mother ensure, by appropriate arrangement with the father, that the children at all times have current Australian passports with more than 6 months currency before expiry, because some destination countries require that.
Counselling the parties
Mr R, in his recommendations, advised a wide range of professional assistance which may be taken up by the parties.
The independent children’s lawyer sought, in a set of proposed orders, mandatory attendance by each of the parties upon counsellors for various purposes as identified by Mr R: see the independent children’s lawyers set of proposed orders pars 7-9 in relation to the father, pars 10 and 11 in relation to the mother, as well as pars 13 and 15-16 generally.
However, some of the proposed orders, as formulated, would require that the independent children’s lawyer not be discharged, and that indeed that there be a “reporting” system by the parents to the independent children’s lawyer.
In my view, there is no basis for such a “reporting” role for the independent children’s lawyer in relation to the parties.
Further, as the orders I make will be final orders, in my view the parents each need carefully to consider acceptance of Mr R’s advice as to their attendance at programs recommended by him as an ordinary aspect of their current and future parenting, and so as to improve, each of them, their parenting skills.
Thus, I will not make any such orders concerning the parents, but will order, as I think is appropriate, that if either of the parents attends upon any counsellor or psychologist then he or she, on the confidential basis, may provide to such a copy of the orders and reasons for judgment as well as Mr R’s report.
Counselling - A
I have indicated already that in relation to A, Mr R’s recommendation for psychological assessment should be heeded, and I will make an order concerning that, including that the costs of the assessment and of the implementation of any advice in it be shared equally between the parties.
Plainly, it will be relevant for the psychologist assessing A to have reference to the orders, reasons for judgment and Mr R’s report, and I will include that in the orders.
Other matters
The orders otherwise as to ancillary matters are not controversial and I am satisfied that each is in the children’s best interests. These include orders as to changeover, telephone communication, the parties’ communication, information, attendance at the children’s school, non denigration and discussion as to adult issues. There will be a further order relating to the use of seatbelts by the children while being driven in any motor vehicle which, on the evidence, is appropriate for their safety.
The content of the orders relating to changeover largely are as agreed during argument by the parties and the independent children’s lawyer.
Otherwise, largely the orders are drawn from various of the draft orders proposed by the parties and/or the independent children’s lawyer.
Discharge of the independent children’s lawyer
In my view, the matter of psychological assessment of A, as recommended by Mr R, is so important that the independent children’s lawyer should not be discharged until the assessment is arranged and obtained. It will be up to the parties, after that, to take such steps as may be indicated in the report, as a continued aspect of their parenting of the children.
I will therefore order that the independent children’s lawyer assist in the arrangement of that psychological assessment, and be discharged after that, subject to any necessary applications as to intended operation of the orders.
I certify that the preceding two hundred and sixty-one (261) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.
Associate:
Date: 16 December 2009
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