Biss and Biss

Case [2009] FamCA 1234

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

  1. 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.

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AGLC
Biss and Biss [2009] FamCA 1234
Case
[2009] FamCA 1234
Decision Date

CaseChat Overview and Summary

This matter concerned the parents, Mr Biss (the father) and Ms Biss (the mother), and their two children, A and P. The father sought final orders for equal shared parental responsibility, with the children living with him and spending time with the mother on alternate weekends and half of school holidays. He also sought orders regarding communication, overseas travel, and specifically sought to restrain the mother from bringing the children into contact with her partner, Mr W. The proceedings were heard by O'Reilly J.

The court was required to determine the terms of final parenting orders, including arrangements for parental responsibility, living arrangements, school holidays, special days, changeovers, communication between the parties, and provisions for the children's welfare and education. A key issue involved the father's concerns regarding the mother's partner, Mr W, stemming from allegations made by P about Mr W's conduct. The court also considered the need for psychological assessment of A and the role of the independent children's lawyer.

O'Reilly J made detailed orders concerning equal shared parental responsibility, requiring the parties to consult and make genuine efforts to reach joint decisions on major long-term issues. The court established a week-about living arrangement for the children during school terms, with specific provisions for school holidays and special days. The orders also addressed communication protocols between the parties, mandating email or text message for written communication concerning the children and prohibiting denigration or discussion of adult issues in their presence. The court ordered a psychological assessment of A and stipulated that the parties share the costs of the assessment and any recommended implementation. The court also made orders regarding notification of accidents or injuries, access to medical and school information, attendance at school activities, and prohibitions on physical discipline and overseas travel restrictions.

The court ordered that the parties have equal shared parental responsibility for the children. The children were to live with each party on an equal time week-about basis during school terms, with specific arrangements for school holidays and special days. The court also made detailed orders regarding communication, the psychological assessment of A, and various other matters concerning the children's welfare, including prohibitions on denigration, discussion of adult issues, and physical discipline. The independent children's lawyer was discharged, and the parties were released from previous undertakings. Liberty to apply was granted for clarification of the orders.

Orders

Orders of the court

IT IS ORDERED

Parental responsibility

1.

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.

2.

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.

3.

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.

4.

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

5.

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.

6.

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

7.

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

8.

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.

9.

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.

10.

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.

11.

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

12.

During school terms, all changeovers are to occur at the children’s school.

13.

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.

14.

For special days changeover is to occur in the carpark of the K Shopping Centre near the entrance to Woolworths.

15.

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.

16.

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

17.

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

18.

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

19.

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.

20.

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

21.

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.

22.

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

23.

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

24.

The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.

25.

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.

26.

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

27.

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

28.

The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the children.

Adult issues

29.

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

30.

The parties must ensure that the children at all times are restrained by seatbelts while being driven in any motor vehicle.

Physical discipline

31.

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

32.

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

33.

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.

34.

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

35.

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

36.

All other orders concerning the children are discharged.

All other applications dismissed

37.

All other applications concerning the children are dismissed.

Undertakings

38.

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

39.

Subject to order 21, and the next order, the independent children’s lawyer is discharged.

Liberty to apply

40.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 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, 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’.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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. 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. 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.