BOURKE & BOURKE

[2015] FCCA 224

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOURKE & BOURKE [2015] FCCA 224

Catchwords:
FAMILY LAW – Parenting – allegations of sexual abuse – consideration of unacceptable risk of harm – family violence – consideration of presumption of equal shared parental responsibility.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC

Evidence Act 1995 (Cth), s.140

Goode v Goode (2007) 36 Fam LR 422
MRR v GR [2010] HCA 4
Donaghey v Donaghey (2012) 45 Fam LR 183
M v M (1988) 166 CLR 69
Briginshaw v Briginshaw (1938) 60 CLR 336
In the marriage of L and T (1999) 25 Fam LR 590

Applicant: MS BOURKE

Respondent: MR BOURKE

File Number: BRC 1397 of 2012

Judgment of: Judge Lapthorn

Hearing dates: 6 November 2013; 3, 6 and 7 February 2014; 10 and 11 June 2014; 11 and 12 August 2014

Date of Last Submission: 3 November 2014

Delivered at: Brisbane

Delivered on: 10 February 2015

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: In Person

Counsel for the Respondent: N/A

Solicitors for the Respondent: In Person

Counsel for the Independent Children's Lawyer: Ms Frizelle

Solicitors for the Independent Children's Lawyer: Keyworth Harris & Lowe Family Lawyers

ORDERS

1. That the Father have sole parental responsibility for decisions about major long term issues in relation to the children [X] (born [omitted] 2001) and [Y] (born [omitted] 2004).

2. That for the purposes of exercising his sole parental responsibility pursuant to Order (1) herein the Father must:

   (a)Consult with the Mother in writing setting out any major long-term decision he is considering and the reasons for that decision prior to acting on his decision;

   (b)Give careful consideration to any written response received from the Mother within seven (7) days of his notification to her;

   (c)Within seven (7) days of making his decision forward to the Mother written notification of his decision.

3. That each parent have sole parental responsibility for decisions about the children’s day to day care, welfare and development whilst in that parent’s care.

4. That the children live with the Father.

5. That the Mother’s time with the children be suspended for a period of four (4) weeks from the date of these orders.

6. That after the four week period set out in Order (5) above, the Mother spend time with the children at all times as agreed between the parents in writing, but failing agreement as follows:-

   (a)During school terms each alternate weekend from after school Friday to before school Monday provided that if the Monday is a public holiday, then 3:00pm on Monday;

   (b)For one half of each school holiday period as agreed between the parents in writing but failing agreement as follows:

   (i)The first half of the school holidays at the end of terms 1, 2 and 3 in odd numbered years;

   (ii)The second half of the school holidays at the end of terms 1, 2 and 3 in even numbered years;

   (iii)On a week about basis for the school holidays at the end of term 4 commencing in the first week of the school holidays in odd numbered years and the second week in even numbered years;

   (c)Notwithstanding Order (6)(b)(iii) herein from 9:00am 24 December to 9:00am or immediately before Church on Christmas Day whichever is the earlier 2015 and each alternate year thereafter;

   (d)Notwithstanding order (6)(b)(iii) herein from 9:00am or immediately before Church on Christmas Day whichever is the earlier to 9:00am 26 December 2016 and each alternate year thereafter.

   (e)For the Mother’s birthday, if the same is not a school day, from 9:00am to 8:00pm and if a school day from after school to 8:00pm.

   (f)Notwithstanding any other Order herein for the children’s birthdays:

   (i)if not a school day, from 1:00pm to 8:00pm in even numbered years and from 9:00am to 1:00pm in odd numbered years; and

   (ii)If a school day from after school to 5:30pm in even numbered years and from 5:30pm to 8:00pm in odd numbered years.

   (g)For Mother’s Day, where Mother’s Day does not fall on the Mother’s alternate weekend time pursuant to order (6)(a) herein from 9:00am to 8:00pm.

7. That, unless otherwise agreed in writing between the parents, for the purposes of the children spending time with the Father during school holidays and on special occasions any provision for the children to spend time with the Mother pursuant to these orders is suspended during the following times:

   (a)For one half of each school holiday period as follows:

   (i)The second half of the school holidays at the end of terms 1, 2 and 3 in odd numbered years;

   (ii)The first half of the school holidays at the end of terms 1, 2 and 3 in even numbered years;

   (iii)On a week about basis for the school holidays at the end of term 4 commencing in the second week of the school holidays in odd numbered years and the first week in even numbered years;

   (b)From 9:00am 24 December to 9:00am or immediately before Church on Christmas Day whichever is the earlier 2016 and each alternate year thereafter;

   (c)From 9:00am or immediately before Church on Christmas Day whichever is the earlier to 9:00am 26 December 2015 and each alternate year thereafter.

   (d)For the Father’s birthday, if the same is not a school day, from 9:00am to 8:00pm and if a school day from after school to 8:00pm.

   (e)For the children’s birthdays,

   (i)if not a school day, from 1:00pm to 8:00pm in odd numbered years and from 9:00am to 1:00pm in even numbered years,

   (ii)If a school day from after school to 5:30pm in odd years and from 5:30pm to 8:00pm in even years.

   (f)For Father’s Day, where Father’s Day falls on the Mother’s alternate weekend time pursuant to order (6)(a) herein from 9:00am to 8:00pm.

8. That in the event that the children are to move between their parents’ homes other than to or from school, changeovers are to take place at the children’s Church. 

9. That the children be at liberty to telephone the parent with whom they are not living with or spending time with at any reasonable time they so wish.

10. That the Mother return the children’s mobile telephones to them and be restrained from removing the mobile telephones from them in the future.

11. That after the four week period set out in Order (5) herein the Mother be at liberty to communicate with the children by telephone each Wednesday between 7:00pm and 7:30pm.

12. That each party be restrained from denigrating the other parent, their partner, or a member of their family to or in the presence of or hearing of the children and must ensure that no other person does so and in the event of some other person doing so, then that parent must immediately remove the children from the vicinity of the person so doing.

13. That each party be restrained from discussing these proceedings with or in the presence of or hearing of the children. 

14. That each party be restrained from providing to the children a copy of any court documents including subpoenaed documents.

15. That the parties be restrained from allowing the children to view adult material including but not limited to printed or electronic material of a sexual or violent nature.

16. In the event of any dispute as to the interpretation, implementation or enforcement of this order including any claim by a party that it should be varied the parties shall first attend family dispute resolution (FDR) with a FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.

17. That each party return to the Independent Children’s Lawyer the bundle of subpoenaed documents within 30 days.

IT IS NOTED that publication of this judgment under the pseudonym Bourke & Bourke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1397 of 2012

MS BOURKE

Applicant

And

MR BOURKE

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of 13 year old [X] and 10 year old [Y] are in significant dispute as to their future parenting arrangements.  Their mother who is the applicant in these proceedings has sought parenting orders that would provide for the children to live primarily with her; that she have sole parental responsibility for them and that they have supervised time with their father at a contact centre until they turn 18 years of age.  The respondent father wants the children to live with him and spend alternate weekends with the mother.  The children were independently represented in these proceedings.  The Independent Children’s Lawyer sought orders for the children to live with their father and, after a period of six months, commence spending alternate weekends with the mother.  The father also supported the six month moratorium of time before the children commence seeing their mother again.  I will set out the competing applications in more detail later in this judgment.

2. Throughout these reasons I will at times refer to the applicant as the mother and the respondent as the father.  I will also refer to the children either by their names or collectively as the children.  The Independent Children’s Lawyer will be referred to as the ICL.  I mean no disrespect in doing so.

Brief Background

1. The mother is 49 years of age.  She is a full time parent and homemaker and currently lives in rented accommodation in a suburb of Brisbane.  She is a devout Christian.  Her faith is important to her and the way she lives her life and raises her children.

2. The father is 52 years of age.  He is a [occupation omitted] in full time employment.  He also lives in rented accommodation in a suburb not far from where the mother lives.  Like the mother he has a strong Christian faith and wishes to raise his children according to that faith.

3. The parties married [omitted] 1994 and separated around April 2010.  A divorce order was made on 28 May 2013.  [X] was born [omitted] 2001 and [Y] was born [omitted] 2004.  The mother has formed the view that the children are at serious risk of sexual and psychological harm in the care of the father.  She alleged that the father has a long standing addiction to pornography and that a number of disclosures and observations have led her to believe that he has sexually abused the children.  I will detail her allegations later in this judgment.  The father denied these allegations and alleged the mother is unable to objectively consider facts surrounding these issues.  The parties unsuccessfully tried to resolve their issues through counselling.

4. When the father left the former matrimonial home at separation the children remained living with the mother.  He took a room at the home of a Christian couple he knew.  Initially the mother would not let the father see the children overnight limiting his time to visits at the former matrimonial home.  The father removed the children from the mother’s care in December 2011.

5. The mother filed her Initiating Application on 20 February 2012 seeking recovery of the children; orders for the children to live with her; and to spend supervised time with the father.  On 12 March 2012 the father filed his response seeking a week about parenting arrangement.  I made orders on 14 March 2012 that provided for the children to live with the mother subject to her receiving mental health treatment.  Those orders provided for the children to spend time with the father from after school Wednesday to before school Friday in one week and from after school Friday to before school Monday in the other week of a two week cycle.  That living arrangement has remained in place save for school holiday variations that have been put in place by various orders made subsequently.

Competing Applications

1. The orders sought by the parties are detailed and have changed throughout the course of the hearing.  I propose to set out what orders were sought by each party by the end of the submissions stage.

2. The mother sought orders in the following terms (emphasis retained):

   1.That the Applicant Mother have SOLE PARENTAL RESPONSIBILITY for [X], born [omitted] 2001 and [Y], born [omitted] 2004, relating to all short and long-term decisions regarding (but not limited to) all of the following:

   a) The Children’s health and general well-being;

   b) The Children’s education;

   c)  The Children’s religious upbrining.

   2.That the Children, [X] and [Y], LIVE WITH THE APPLICANT MOTHER.

   3.That all the Children’s belongings be returned within 7 days to the Applicant Mother with the Applicant Mother to advise Respondent father of times and locations where she will meet him to receive the goods.

   4.That the Respondent Father SPEND TIME with the children at a Contact Centre ONCE/MONTH for 1 hour with visits to be STRICTLEY SUPERVISED AT ALL TIMES until each child has reached the age of 18 YEARS.  Note:  The Applicant mother suggests once per fortnight visits if a Contact Centre opens closer the metropolitan area with the Mother at liberty to increase the frequency of visits if such occurs.  Monthly visits are to commence in February 2015 and will be arranged by the Applicant mother. 

   5.That if the Mother or Mother and Children are away one particular month then the Applicant Mother is to book a make-up visit for the following month. 

   6.That all costs associated with Contact Centre visits be met by the Respondent Father. 

   7.That the Applicant Mother is to arrange for the Children to telephone the Respondent Father once per fortnight with the Applicant Mother at liberty to suspend for a time or cease altogether the Children’s telephone contact with the Father if it is clear that the Father is inciting the Children to abuse the Applicant Mother. 

   8.That the Father and members of his family be at liberty to communicate with the Children on their birthdays, Easter and at Christmas each year by letter. 

   9.That the Applicant Mother keep the Father and his family advised at all times of a postal address for the purpose of the Respondent and his family communicating with the Children. 

   10.That the Respondent Father and members of his family be restrained from attending the Applicant Mother’s/Children’s residence or future workplaces or the Children’s school or school events off-site noting Orders 15, 16, 17 sought, or in the Children/Mother’s church. 

   11.That the Respondent Father, his legal representatives and all members of his family be restrained from attending upon or contacting staff or legal representatives of any of the following:

   a) [N] School or any future school the Children may attend.

   b) The Applicant Mother and the Children’s church (past, present or future).

   c)  The Applicant Mother’s or Children’s counsellors or doctors (past, present or future). 

   d) Any Contact Centre which the children attend.

   12.That ICL, Patricia Keyworth, Family Report Writer, Ms T, Counsel, Ann Frizelle, GP Dr A, Psychologist Ms M or any of their personal or business colleagues be restrained from attending upon or contacting the Applicant Mother or either of the Children, or staff or legal representatives of any of the following:

   a) [N] School or any future school the Children may attend.

   b) The Applicant Mother or Children’s church (past, present or future).

   c)  The Applicant Mother’s or Children’s counsellors or doctors (past, present or future). 

   d) Any Contact Centre which the Children attend.

   13.That the Applicant Mother be at liberty to retain, until such time as the Court lifts this order, the ICL bundle of documents pertaining to this case. 

   14.That the Respondent Father and all members of the Respondent Father’s family, be restrained from contacting either Child by any means EXCEPT BY CARD at birthdays, Easter and Christmas.  This includes ANY form of messaging and mutual internet gaming. 

   15.That the Respondent Father be restrained from taking or sending or causing or permitting the taking or sending of either or both the Children from the Commonwealth of Australia noting that the Respondent may have dual English/Australian passport, given that his mother was originally from England. 

   16.That the Australian Federal Police place the names of both Children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia for the purpose of preventing the removal of the Children from Australia in breach of these orders and maintain the Children’s names on the watch list until the court orders their removal. 

   17.That the Marshall and all officers of the Australian Federal Police and the police forces of the State and Territories are requested and authorized to give effect to these orders. 

   18.Any other orders which the court deems necessary. 

   19.That the Applicant Mother be at liberty to provide to DOCS, CYMHS, Queensland Police, the Children’s school, the Children’s church, the Father’s church a copy of these orders and to DOCS, and Queensland Police, a copy of the Written Judgment for their records.

3. The father supported the orders sought by the ICL but questioned whether there could be an assessment of the mother at the end of the proposed moratorium period and if there could be a facility for him to agree to the children spending more time with the mother “if, or as things improve”.

4. The ICL proposed the following orders be made:

   A  In the event that this Honorable Court finds that the children [X] (born [omitted] 2001) and/or [Y] (born [omitted] 2004) have not been sexually abused by the father and are not at risk of sexual abuse from the father, then the Independent Children’s Lawyer proposes the following orders be made.

   1.That the children [X] (born [omitted] 2001) and [Y] (born [omitted] 2004) live with the father.

   2.That to give effect to Order 1 hereof, the Father collect the children at the end of the school day or if not a school day from the Mother’s residence before 7:00pm on the day of judgment.

   3.That the mother make all of the children’s personal effects, clothing, school uniforms and shoes, school bags, books and equipment and mobile telephones available for the father with the children to be entitled to attend at the mother’s home to collect those items on either the day of judgment or by 7:00pm the next day.

   4.That each parent have sole parental responsibility to make decisions about the children’s day to day care, welfare and development whilst in that parent’s care.

   5.That the father have sole parental responsibility for decisions about major long term issues in relation to the children including but not limited to responsibility in relation to the children’s:-

   a)  Schooling,

   b)  Medical Treatment, and

   c)  Religious Welfare,

   With such decisions to occur in the manner set out in paragraph 24 hereof.

   6.

   a) That the mother’s time with the children be suspended for a period of six (6) months from the date of these orders.

   b) That the mother be entitled to send letters and presents to the children with the letters to be vetted by the father prior to them being passed to the children.

   7.That at the end of the six month period set out in order 6 (a) above, the mother spend time and communicate with the children at all times as agreed between the parents in writing, but failing agreement as follows:-

   a) Each alternate weekend from after school (or 3:00pm) on Friday to Sunday at 3:00pm provided that if the Monday is a public holiday, then 3:00pm on Monday.

   b) That the mother’s alternate weekend time with the children run during school terms and school holidays.

   c)  For the Easter public holiday period in 2016 and each alternate year thereafter.  That the mother’s alternate weekend time be suspended if it falls during the Easter public holiday period in odd numbered years.

   d) For Christmas Day from 9:00am or immediately before Church on Christmas morning whichever is the earlier to 9:00am on Boxing Day in 2016 and each alternate year thereafter.  That the mother’s alternate weekend time be suspended if it falls on Christmas Eve, Christmas Day or Boxing Day and be replaced by d & e hereof.

   e)  From 9:00am on Christmas Eve to 9:00am or immediately before Church on Christmas Day whichever is the earlier in 2015 and each alternate year thereafter.

   f)  For the Mother’s birthday, if the same is not a school day, from 9:00am to 8:00pm. If a school day from after school to 8:00pm.

   g) For the children’s birthdays, that the Mother’s alternate weekend time be suspended on the children’s birthdays and the following order be given effect:-

   (a)     if not a school day, from 1:00pm to 8:00pm in even years and from 9:00am to 1:00pm in odd years.

   (b)     If a school day from after school to 5:30pm in even years and from 5:30pm to 8:00pm in odd years.

   h) For Mother’s Day, where Mother’s Day does not fall on the mothers alternate weekend contact, from 9:00am to 8:00pm.

   8.That the mother’s alternate weekend or extended time with the children be suspended if it falls during following times at the Christmas, Easter public holidays, Father’s Day, Father’s Birthday and the children’s birthday and that the children live with the father during these periods as follows:-

   a) For the Easter public holiday periods in 2015 and each alternate year thereafter. 

   b) For Christmas Day from 9:00am or immediately before Church on Christmas morning whichever is the earlier to 9:00am on Boxing Day in 2015 and each alternate year thereafter.

   c)  From 9:00am on Christmas Eve to 9:00am or immediately before Church on Christmas Day whichever is the earlier in 2016 and each alternate year thereafter.

   d) For the Father’s birthday, if the same is not a school day, from 9:00am to 8:00pm or if a school day from after school to 8:00pm. 

   e)  For the children’s birthdays,

   (a)     if not a school day, from 1:00pm to 8:00pm in odd years and from 9:00am to 1:00pm in even years,

   (b)     If a school day from after school to 5:30pm in odd years and from 5:30pm to 8:00pm in even years.

   f)  For Father’s Day, where Father’s Day falls on the mothers alternate weekend contact, from 9:00am to 8:00pm.

   9.That the father be entitled to spend 2 extended holiday periods with the children each year wherein one weekend of the mother’s time with the children will be suspended in each such period and for that purpose the Father give the mother written notice that her weekend time during such period will be suspended with such wirtten notice to be given not less than 1 month prior to the weekend which the father proposes to suspend.

   10.That all changeovers during school terms at school time occur at the children’s school.  For all changeovers which are to occur on non-school days, or after school hours, such changeovers to take place at the parties’ Church. 

   11.That after the period of six months as set out in paragraph 6 (a) the children be at liberty to telephone the parent with whom they are not living or spending time at any time they so wish.

   12.That the mother return the children’s mobile telephones to them and further that the mother be restrained from removing the children’s mobile telephones from them in the future.

   13.That the mother engage and attend upon a mental health practitioner as recommended by her treating General Practitioner to deal with any issues that the mother may have in regard to her mental health as identified by such mental health practitioners and to assist the mother to deal with the findings of the Court and the change of living arrangements for the children.

   14.That the mother attend upon her treating General Practitioner within 14 days of this order to obtain a referral to a suitable mental health practitioner. That the mother provide a copy of the order of the Court to her treating General Practitioner.

   15.That the mother will advise the Independent Children’s Lawyer of the mental health practitioner to whom she is referred within 7 days of such referral and the Independent Children’s Lawyer is hereby authorised pursuant to Section 121 of the Family Law Act 1975 (Cth) to publish to the treating medical practitioner the following information:-

   a) Family Report of Ms T dated 31 July 2012,

   b) Dr. V’s Report dated 2 August 2013,

   c)  Family Report of Ms T dated 26 September 2013,

   d) Dr. V’s Report dated 31 October 2013, and

   e)  Final Orders of Federal Circuit Court made in this matter

   16.That each party be restrained from denigrating the other parent, their partner, or a member of their family to or in the presence of or hearing of the children and must ensure that no other person does so and in the event of some other person doing so, then that parent must immediately remove the children from the vicinity of the person so doing.

   17.That each party is restrained from discussing these proceedings with or in the presence of or hearing of the children. 

   18.That each party is restrained from providing to the children a copy of any court documents including subpoenaed documents or providing the same to any other person.

   19.That each party is required to return to the Independent Children’s Lawyer the bundle of subpoenaed documents provided to them at the end of the Appeal period or judgment in any appeal, whichever is the later.

   20.The mother is restrained from discussing the allegations of sexual abuse and/or use of pornography raised in these proceedings with any other person save and except for the mother’s treating medical practitioners or mental health practitioner to whom she is referred or a member of the Queensland or Federal Police or in other court proceedings.  Provided that the Mother is in all circumstances restrained from discussing the allegations of sexual abuse and/or use of pornography raised in these proceeding in the presence of or hearing of the children.

   21.That the parties not show the children or allow the children to be shown material of an adult nature including matters of a sexual or violent nature.

   22.That the parties each attend upon their respective counsellors for further assistance in relation to their parental responsibilities.

   23.In the event of any dispute as to the interpretation, implementation or enforcement of this order including any claim by a party that it should be varied the parties shall first attend family dispute resolution (FDR) with a FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.

   24.Unless contrary to the children’s immediate welfare, the Father, before making any major long-term decision about the children must:

   a) Consult with the mother in writing setting out any major long-term decision   making  proposal and the reasons  for that proposal;

   b) Give proper consideration to any counter-proposal made by the mother;

   c)  In the event that the father receives no response from the mother within 7 days then the father shall be entitled to act on the assumption that the mother has agreed with the position proposed by the father.

   d) If the mother responds to the father within 7 days, then the father shall carefully consider the mother’s response prior to making a decision.

   e)  Forward to the mother (in writing) within 7 days his decision;

   f)  The Mother and Father are only to address issues that pertain to the best interests of the children.

1. Although the minute of orders sought by the ICL contained a preface that the orders sought were subject to the court making a finding that the children were not at an unacceptable risk of harm with the father the ICL did not proffer an alternative minute of order if such finding was made.  It is disappointing the ICL did not give thought to the alternative.  The issue of risk of harm was a live issue for determination.  Given the mother’s mistrust of the ICL’s objectivity such an approach would not have assisted in alleviating her concerns.

Material relied upon

1. In support of her application the mother relied on:

   a)Her Amended Initiating Application filed 7 March 2013;

   b)Her two affidavits filed 10 October 2013;

   c)The affidavits of her witnesses:

   i)Professor H filed 10 October 2013;

   ii)Mr J filed 29 January 2014;

   iii)Mrs H filed 10 October 2013;

   iv)Ms C filed 10 October 2013; and

   v)Mr C filed 10 October 2013.

   d)Her outline of case document filed 1 November 2013 and amended on 29 January 2014;

   e)Her written submissions filed 26 September 2014 which were amended and filed 3 November 2014.

2. In support of his case the father relied on:

   a)His Response filed 12 March 2012;

   b)His Notice of Child Abuse or Family Violence filed 31 May 2012;

   c)His affidavits filed:

   i)4 October 2013, of which there were two separate affidavits;

   ii)4 November 2013;

   iii)4 February 2014; and

   iv)10 June 2014.

   d)The affidavit of his witness, Ms M filed 4 October 2013.

   e)His outline of case document filed 4 November 2013 and his written submissions filed 12 September 2014.

3. Two family reports were obtained by the ICL from Ms T.  These reports came into evidence by way of Ms T’s affidavits filed:

   a)2 August 2012; and

   b)17 October 2013.

4. The ICL also obtained psychiatric assessments from Dr V which came into evidence by way of Dr V’s affidavits filed:

   a)12 August 2013; and

   b)1 November 2013.

5. The ICL filed an outline of case document on 1 November 2013 and her written submissions were received on 29 August 2014.

6. Both the parties were cross-examined as were the following witnesses:

   a)Mr J;

   b)Mr C;

   c)Ms C;

   d)Ms M (under subpoena and without any affidavit evidence);

   e)Dr V; and

   f)Ms T. 

7. A number of documents were tendered into evidence.[1] 

   [1] Exhibit ICL1:  Police recording of 28 January 2012;

8. I have had regard to the affidavits and oral evidence as well as the documents tendered into evidence and have considered the outlines and written submissions of each party.

Issues

1. The significant issue to be considered is whether these children are at an unacceptable risk of harm if they are to live with or spend time with their father.  This issue has arisen because the mother holds the strong view that the father’s alleged addiction to pornography compromises his ability to safely care for these children and other observations by her have led her to the conclusion that these children have been sexually abused by the father or are at serious risk of being so abused.  In the event that the court is not satisfied the father is an unacceptable risk of harm to the children the question arises as to whether the mother is able to be sufficiently objective about that issue so as not to compromise her parenting of the children.  If not, then the issue for consideration is whether there is an unacceptable risk of harm to the children from their mother’s inability to shield them from emotional harm by the expression of her beliefs as to the father’s risk to them.

2. A relevant factor for consideration is the ability of the parties to provide appropriate care for the children in the context of children having been adversely affected by the separation and ongoing dispute between the parents.  This will require a consideration of the nature of the relationships between the children and each of the parents and the ability of the parents to cope when faced with troubling behaviour by the children.

Credit

1. Neither party was legally represented and they each struggled to present their case at the final hearing which was unfortunately conducted over eight days spread over a nine month period.  Their presentation before me was concerning at times. 

2. The father’s affect appeared flat for most of the hearing.  He was frustrated with the allegations he faced and his understanding of what was required of him in putting his case to the court.  He did not however appear to lack capacity to do the task and I am satisfied he did so to the best of his ability.  When he gave evidence I found him to give an honest recollection of facts although he sought to be very detailed in his description of events.  This appears to be consistent with the observations of Dr V.

3. The mother’s presentation was at times very concerning.  I needed to call a number of breaks to enable the mother to regain her composure.  She was emotional and dramatic throughout these proceedings becoming very loud many times especially in the early stages of the hearing not only in her speech but at times by wailing.  So much so I needed to inform her she could be heard in the court rooms on either side of mine.  She would often become teary and have trouble completing words or sentences.  Her face would at times become contorted.  At other times she would appear flat in her affect.  The mother conceded she was an expressive person and this was supported by the observations of Dr V and Ms T and as was recorded in some of the tendered documents.  I found her evidence to be given truthfully by her in that I never doubted she honestly believed the evidence she was giving was the truth however I was not persuaded that she was always able to be objective in her recall.

4. The evidence of the parties differed considerably.  Overall I was persuaded the father was the better historian.  In making this finding I re-iterate my finding that the mother was giving an honest account of what she believed the evidence to be but where her evidence differed from that of the father I preferred his evidence as more reliable and objective.

5. The mother raised a number of serious criticisms of the ICL, the family report writer and [X]’s counsellor.  In her written submissions she asserted these professionals to be “dishonest, unprofessional, perjurous (sic) and abusive”. 

6. Ms M, who is a psychologist, has been seeing [X] as her therapeutic counsellor since June 2012.  The mother has been highly critical of

   
   

   Ms M accusing her of being unprofessional, unethical and breaching confidentiality.  The mother sent a number of emails to Ms M expressing her concerns which ultimately led Ms M to engage a solicitor to write to the mother after the mother indicated that she intended to report her to her professional body and also asked for her personal address. She believes that Ms M has been seduced and manipulated by the father.  That she has taken his side against the mother causing her to exclude the mother from input into her daughter’s counselling and has actively worked against the daughter’s relationship with the mother.  She put to Ms M that she had spent lengthy periods alone with the father rather than counselling the child.  This was denied by the psychologist.  The mother put to the father in cross-examination that he had a sexual relationship with Ms M.  He denied this.  The accusation was not put to Ms M.  I accept the father’s evidence.

7. The mother was also particularly aggrieved that Ms M spoke to the family report writer, at the family report writer’s request. Ms T recorded Ms M as saying that she was working with [X] to help her cope with her time with her mother.  She was reported as saying that the mother had been “very unwell” for a long time.  Ms T reported:

   [56] Ms M expressed the view that the great difficulty with this matter is that unless the mother receives ongoing care and monitoring of her mental state on a regular basis, one cannot predict what impact she will have upon the children and her prognosis would be bleak.

8. Ms M denied using the phrase: her prognosis would be bleak.  Ms M is not a psychiatrist and the mother has never been her client.  [X] is her client.  The mother put the following to Ms M:

   Why are you offering opinion on my mental health, even in general, when you are not my counsellor?

9. Ms M replied:

   Because I have to draw hypotheses around my client’s life and the things that they struggle with.  So what I work with is what the client puts forward to me that they’re struggling with.  And so, therefore, what came into play, the things that she was struggling with, were the issues that I had observed.

10. Ms M rejected the mother’s proposition that she had overreached her ethical obligations in speaking to the family report writer about her observations and the child’s perceptions of the mother’s mental health.  I respectfully agree with Ms M.  The mother’s criticism is misplaced.  Ms M has not conducted a psychiatric assessment on the mother, something she would not be qualified to do.  She did however use her observations of both parents to form a view as to how she could provide therapeutic assistance to the child.  In doing so she was acting professionally.  In responding to the family report writer’s request for information she was also acting professionally. It should be remembered that in cross-examination of the family report writer Ms T indicated she included the details of the conversation out of thoroughness but made her own independent assessments of the parties and children.

11. The mother considered Ms T to be biased.  She put to the report writer that the father had manipulated her emotions and evoked sympathy to the point that she has suspended critical thinking in the preparation of her reports.  Ms T rejected this criticism.  It was put to the report writer that she had failed to follow ‘normal report writer investigative procedures’ and ‘withheld crucial evidence from the court in order to try and convince the court to hand the children over to the [father]’.  This was also rejected by Ms T.  The following questions were asked and denied:

    Has the ICL informed you at any point in these family law proceedings that she has concerns for her personal safety unless you write family reports which recommend that the children be removed from my primary care and placed in the primary care of the respondent?

    I put to you, Ms T, that when I drew the court’s attention to your misconduct as a family report writer and breaches of your oaths you became overwhelmed with a desire to exact revenge in me.

12. Despite those serious allegations being put to the report writer the mother was not able to establish any foundation for them.  There was nothing in the family reports either by the way they were written or the manner the report writer appeared to have gathered her information that would cause me any concern as to her professionalism.  I accept her evidence and find the mother’s allegations to be unfounded.

13. The mother accused the ICL of attempting to pervert the course of justice. She held the view that the ICL had, like the other professionals, been manipulated by the father.  In her written submissions the mother argued that the ICL had misrepresented evidence and set out a number of examples.  I do not propose repeating her submissions.  I accept the ICL has got some dates wrong in her submissions but I am not satisfied that the evidence has been misrepresented in any malicious way.  The mother accused the ICL of sending a message to her via an unnamed third party to the effect that she would lose her children if the mother did not stop criticising the family report writer.  There was no direct evidence before the court that would enable me to accept the mother’s assertions.  I am not satisfied the mother has established the ICL has acted unprofessionally although I accept there were some errors in her written submissions.  I do not accept the ICL was biased but I am satisfied that the way in which the ICL drafted the proposed minute of order presenting the orders on the basis of being subject to a finding that the children are not at an unacceptable risk of harm with the father but not presenting alternative orders if a finding of unacceptable risk was made would only add fuel to the mother’s belief that the ICL had approached her task in a biased fashion.

Evidence

1. Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. I do not propose detailing all of the evidence before me but will address the relevant evidence that require findings of fact to inform my consideration of the children’s best interests. I will consider much of this evidence when I consider the factors set out in s.60CC however it is convenient to set out briefly the evidence in relation to the psychiatric assessments and family reports at this stage.

2. Ms T prepared two family reports. The mother chose not to attend the second round of report interviews. In the first report released after interviews conducted in July 2012 she observed the children to be happy and well bonded with their father but withdrawn around their mother. She considered them to have a more relaxed relationship with the father and to have aligned themselves with him. She opined that there was no reason why the children’s time with their parents could not be divided equally but warned that unless the mother addressed issues surrounding heightened levels of emotional troubles for the children in her care the children may need to spend less time with their mother. By the second report prepared in September 2013 the report writer had taken up the concern expressed in the earlier report about the emotional troubles in the mother’s home and recommended the children live primarily with the father and spend alternate weekend time with the mother. She also considered that smaller blocks of school holiday time with the mother would be more beneficial for the children. When giving her oral evidence Ms T maintained the opinion the children would benefit by living primarily with the father. She expressed the view that they would also benefit from having a period of respite from the mother’s care before resuming regular weekend time with her. Ms T considered a moratorium would enable the children to settle into their father’s home as their primary home and be free of exposure to denigration of the father by the mother during this transition period. I will address the reports and her evidence in more detail when I consider the s.60CC factors.

3. Dr V saw the parties in early 2013 for psychiatric assessment and released a report on 2 August 2013.  On 31 October he did a follow up report after considering further written material that had been supplied to him by the ICL.  In his first report he concluded that neither party had exhibited to him at the time of the interviews any mental condition, psychosis, mood disorder or anxiety disorder.  He did not consider there to be any substance abuse or dependence on the part of either party.  He raised the view however, that both parties had vulnerabilities in personality.  He considered the mother to have histrionic traits in her personality with richness of affect and gesture.  He considered the father to have obsessionality with the need to describe things in great detail.  When he reviewed the other material he maintained his opinions from the first report but added that the mother’s vulnerabilities may be more significant than he considered during the interviews earlier that year.  He considered the mother’s behaviour to be self-defeating which suggested that her personality issues were quite significant.

Legal Principles

1. All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975.  In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[2] and must consider the best interests of the child as the paramount consideration.[3] 

   [2] S.60B

   [3] S.60CA

2. The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:

   a)Children have a right to know and be cared for by both their parents;

   b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;

   c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;

   d)Parents should agree about the future parenting of their children; and

   e)Children have a right to enjoy their culture.

   [4] S.60B lists the objects and principles for Pt VII.

3. The legislative framework which must be followed in all parenting cases,[5] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6]  This presumption does not apply in cases of child abuse and/or family violence or may be rebutted when the evidence establishes that it is not in the child’s best interests for it to apply.[7]

   [5] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286

   [6] S.61DA

   [7] S.61DA(2) & (4)

4. For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8]  Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[9]  When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[10]  A major long-term issue in relation to a child means an issue:

   [8] S.61B

   [9] S.61C

   [10] S.65DAC

   about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a) the child’s education (both current and future); and

   (b) the child’s religious and cultural upbringing; and

   (c) the child’s health; and

   (d) the child’s name; and

   (e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[11]

   [11] S.4

5. In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[12]  If the court finds that equal time is not in the child’s best interests or  that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[13]

   [12] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4

   [13] S.65DAA(2)(c) & (d)

Determining the best interests of the children – the s.60CC considerations

1. The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors. I am required to consider the factors that were applicable at the time of the filing of the mother’s Initiating Application which was 20 February 2012. In light of the serious allegations made by the mother I propose to address the risk of harm issues first however this approach should not be interpreted as that issue having been considered above all other issues and considerations. Murphy J in Donaghey v Donaghey[14] held:

   [22]  The court’s central task – the determination of orders that best meet the best interests of a particular child or children in his, her or their particular circumstances – and the mandatory process which governs that task – do not change because allegations of abuse are made.

   [14] (2012) 45 Fam LR 183

1. His Honour went on to say that the consideration of a potential risk of harm is to occur in the context of a broad assessment with an ultimate focus on best interests.[15] 

   [15] Ibid at [25]

Risk of harm

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[16]

Any family violence involving the child or a member of the child’s family[17]

Any family violence order that applies to the child or a member of the child’s family, if:

(i)     The order is a final order; or

[16] S.60CC(2)(b)

[17] S.60CC(3)(j)

(ii)    The making of the order was contested by a person[18]

[18] S.60CC(3)(k)

1. The crux of the mother’s case is that these children are at an unacceptable risk of harm if they are to live with the father or have unsupervised time with him.  This case is rejected by the father and the ICL.  The ICL argued that the children are at risk of psychological harm in the care of the mother given her unwavering belief of the threat the father poses to the children.

2. The ICL invited the court to make the following findings:

   a)That the father has not sexually abused [X].

   b)That the father has not sexually abused [Y].

   c)That the father does not present an unacceptable risk of sexual abuse to [X].

   d)The mother has an unshakable belief that the father has sexually abused his daughter.

   e)That the father does not present an unacceptable risk of sexual abuse to [Y]

   f)The mother has a belief that the father has sexually abused his son.

   g)That the father has not exposed the children to pornography and there is no risk the father would in the future expose the children to pornography.

   h)That the father does not present an unacceptable risk of emotional or physiological harm to the children.

   i)That the mother has caused [X] to suffer psychological and emotional harm.

   j)That the mother has caused [Y] to suffer psychological and emotional harm.

   k)That the mother presents an unacceptable risk of psychological and emotional harm to [X], due to her belief [X] has been sexually abused by the father.

   l)That the mother presents an unacceptable risk of psychological and emotional harm to [Y], due to her belief [Y] has been sexually abused by the father.

   m)That the mother has an unshakable belief that the father has engaged in the watching of child pornography.

3. In determining the issue of whether there is an unacceptable risk of harm the court is guided by the decision of M v M[19] where the High Court held that the trial court must on the evidence determine whether there is a risk of sexual abuse occurring and the magnitude of that risk.  In doing so the trial court is not required to resolve the allegations in a definitive way as would be required in a criminal court.  Indeed the court is not to make a positive finding accepting the allegations unless satisfied on the balance of probabilities having regard to the factors set out in Briginshaw v Briginshaw[20] which are now encapsulated in s.140(2) Evidence Act 1995 (Cth). In Briginshaw Dixon J stated:

   When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

   [19] (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; (1988) FLC 91-979

   [20] (1938) 60 CLR 336 at 361-362

4. S.140 Evidence Act reads:

   (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.

Mother’s allegations as to the father sexually abusing the children

1. The mother alleged that in 2008 [X] had said to her “I feel ticklish in my private parts”.  The child would have been around seven years of age.  Her evidence was that after being told this she approached the father telling him what she had been told.  She said he responded by saying “If that has happened it would have been accidental.  I’ll be careful how I tickle next time”.  There was no dispute that the father often played a tickling game with both children.  The mother claims that at that time she accepted what the father had said to her and did not think of it again until about two years later when according to her the father disclosed he had a lifelong addiction to pornography.  This disclosure caused her to immediately remember what her daughter had told her two years previously.  On the day of this conversation with the father the mother took the children for a drive and she asked [X] “[X], a while ago you said you were ticklish somewhere, exactly where was that?”.  She said that the child pointed with her finger directly to her vagina and her anus without saying a word.  Not long after this the mother asked the father to move out of the former matrimonial home.

2. The ICL argued that the mother had given inconsistent evidence in her affidavits and oral evidence over the time of these proceedings.  Whilst that may have been the case, given the passage of time and the emotional nature of these allegations and the mother’s own emotional vulnerabilities I place little weight on the inconsistencies. 

3. In support of her allegations the mother directed the court’s attention to the evidence of Dr H and Mrs H.  This evidence though is not helpful as they only tell the court what the mother has told them.  They do not corroborate the disclosures from the child.

4. The father denied tickling the child in her private parts but if he did brush up against them it would have been by accident.

5. In mid-2011 the mother again raised the issue of being ticklish with [X].  She did this in the context of the child having sex education at school.  The mother’s evidence was that the child just looked blankly at her and did not recall her previous discussion with the mother. 

6. The mother did not raise her concerns as to the risk of sexual abuse with the police or child welfare authority at the time of the father’s disclosure about pornography.  In October 2011 however she raised the concerns with the Department of Communities, Child Safety and Disability Services (“the Department”).  Interviews with the children were conducted and no disclosures were made.  Both children said they felt safe with their parents.  The mother and father were also interviewed.  During the mother’s interview she told the officers of the Department that on at least eight occasions during sexual intercourse with the father he said [X]’s name in a gentle tone.  When he did so the mother would stop the sex and tell him.  She alleged that he did not realise what he said and they prayed about it. 

7. The father agreed that he did say [X]’s name during sex but that it was not on the number of occasions the mother alleged.  He also said that he stopped himself when he started to use her name.  He agreed that they prayed about it. 

8. After assessing the interviews the Department telephoned the mother on 26 October 2011 and advised her that they held no concerns for the children’s safety with the father and that there was no evidence to support her concerns.  They record in their notes that the mother sounded disappointed.  At this point the mother asked the Department to have [X]’s mattress forensically tested.  She said that she had turned it over and found a small stain on it which she believed was semen.  When questioned as to why she thought it was semen she is recorded as saying “Haven’t you been listening to me [name omitted]?  He told me that he used to masturbate in the house”. The mother was encouraged to engage with her doctor and seek a psychiatric referral.

9. During 2011 and 2012 the mother contacted the police on many occasions.  She was interviewed in her home on 28 January and 2 July 2012.  During the latter interview the mother told the police that she had seen what she believed to be semen on her daughter’s mattress after she turned it over.  She said she ran her finger over it.  She said she was shocked.  She raised it with the father by asking him if he had ever masturbated on her bed.  According to the mother he replied that he could not remember.  When the interview appeared to be wrapping up the mother raised the following:

   On one other occasion …on one occasion…this is only on one occasion…around about a year ago...on my son’s sheets...I noticed a substance which I believe was also semen.

10. The mother went on to say that she had assumed it was a nocturnal omission from her eight year old son and she washed the sheet.  It was after a few months she realised she had not seen anything since.  The father had not been living in the house at the time.

11. The police went on to explain to the mother that without any disclosure from [X] it was unlikely that the Department or police would pursue the matter but that by having her recollection on tape there would be some supportive evidence if the issue was to be revisited in the future.

12. The father gave evidence of having used pornography for a number of years both in print form and by use of the internet.  He denied ever accessing child pornography as alleged by the mother.  He also said he did not view videos but still images.  He conceded that when he has travelled away he has used pornography and many years ago relieved himself whilst parked in bushland.  He did not accept that he had an addiction to pornography.  He accepted that he had masturbated whilst living in the former matrimonial home but never around the children.

13. The mother is absolutely convinced the father is a risk to these children.  She believes that he has touched [X] in a sexual way and has masturbated on her bed and may have also done so on their son’s bed.  She believes he has an addiction to pornography and that he has accessed child pornography.  She believes he has told her so.  The mother believes the child [X] has kissed the father on the lips.  During the hearing the mother appeared to accept that although she had this belief the court may not be satisfied that there was sufficient evidence to come to the same conclusion.  Notwithstanding this insight she pressed upon me in her submissions to make those findings.  I am unable to do so. 

14. There is insufficient evidence to make any finding that the father has touched the child in a sexual way.  There is no evidence that the child has ever disclosed that the father had touched her.  The only evidence comes from the mother saying the child has told her she is ticklish in her private parts.  Whilst the mother has made an assumption that any such ticklish feelings could only have come from the father there is no evidence to support that.

15. There is insufficient evidence to find that the stain observed and felt by the mother on [X]’s bed is semen.  The stain has not been forensically tested.  Even if such a stain was found to be semen and that it came from the father there is insufficient evidence to find that the child was present during any ejaculation by him.

16. There is insufficient evidence to find that the substance found by the mother on [Y]’s bed was semen.  The mother washed the sheets.  The father was not living in the house at the time.

17. The mother raised a concern that [Y] had told her he was sleeping in the same bed as the father.  The father denied doing so.  I accept his evidence.

18. I find that the father has not sexually abused either child. 

19. I accept the father’s evidence that he has not accessed child pornography but that he has accessed adult pornography over many years.  The mother’s anxiety has been fuelled by this revelation and she questioned him relentlessly about his use of pornography.  He said that on one occasion the mother asked him to describe the worst pornography he had ever viewed.  He told the mother he had looked at one image that appeared to showed two women and a male and he assumed it was portraying a mother teaching her teenage daughter how to give an older man oral sex.  He said that the photo disgusted him and has not looked at it again.  The mother’s evidence is that he also told her about a site involving a teacher having sex with students.  This site was named “Big Tits at School”.  Another site he was said to have accessed involved bestiality.  The mother also said the father had told her of a site called “Amy” that was an animated site.  During the course of the hearing it appeared the mother was referring to Anime.

20. In 2011 the mother made numerous calls to various police agencies raising her concerns about the father having accessed child pornography or what police term child exploitation material.  When the police interviewed her on 28 January 2012 she was warned not to continue making the same allegations to different police stations.  The family computer was taken by police for investigation, no child exploitation material was found on it.  The police searched a sight called “Big Tits at School” and concluded that the site appeared to be an adult pornography site where “adult women are dressed as students, males are the teachers and so the story goes”.  The mother believed the father had wiped the hard drive of any evidence of child pornography.  There is no evidence that enables me to find that the father has accessed child pornography.

21. I am also satisfied that the father has sought out support for his use of pornography and accept his evidence that he has not looked at it for over two years.  The father said he has a block on his computer to prevent access to such sites.  I am satisfied the children are not at risk of observing pornography in his home.

22. The mother also accused the father of causing the children emotional harm by referring to her in front of the children as being “crazy”, “psychotic”, and an “unfit mother”.  The mother has concluded the father has called her these things to the children because that is what the children have said to her.  Both children told the report writer that their father does not say nasty things about their mother.  I am not satisfied that the mother has established that the father has denigrated her to the children.

23. I find that the children are not at an unacceptable risk of harm in the father’s care.

Are the children at risk of harm with the mother?

1. The ICL argued that the children have suffered psychological and emotional harm as a result of things said and/or done by the mother.  The mother has told the children that the father had raped and murdered a woman and disposed of the body.  She has described the father to the children as “a porn junkie” and has argued with the father in front of the children about his use of pornography.  The children have reported to Ms T that the mother has denigrated the father to them.  [X] told Ms T “She’ll say things to us like he is a liar and he’s a sick man and stuff.” [Y] told her that sometimes the mother “Says he’s evil and he’s wicked.  He stole us for four months”.

2. An incident occurred at the mother’s home on 1 December 2011.  When the father went to say goodbye to the children and say a prayer with them.  The mother refused his request to allow him to do so in private.  I accept the mother’s evidence that she felt the father, by making that request, was trying to manipulate the children.  I do not however accept that her belief was correct.  I find the father was seeking some private time with the children to share a prayer and to say his goodbyes.  As a result of the mother’s conduct [X] took herself off to the father’s car and [Y] became distressed and was crying.  The mother phoned the police.  When they attended the home the mother could be heard saying to the children “your father has sex with children”.  The mother gave evidence of [Y] yelling at her to stop telling lies about their father.

3. I was most concerned to hear the mother’s evidence in relation to this incident.  She accepted the incident was very emotional but appeared to lack any insight into how it might have affected the children.  The mother said she told the children that their father watched adults having sex with children and added “Thank God I didn’t say anything else.” 

4. The children have witnessed the mother physically assault the father by scratching, kicking and bitting him and throwing things at him.  On one occasion [Y] hit the mother after witnessing her strike the father.

5. [X] told her counsellor that during a fight with her mother about taking too long to have a shower the mother phoned the police and then said they were coming over.  This appeared to have greatly upset the children.  The police did not attend.  On another occasion the child told her counsellor that she was embarrassed at a major shopping centre when the mother began shouting at her which resulted in police speaking to the mother.

6. In April 2012 [Y] argued with the mother in her car.  The argument appears to have started over some take away food the mother purchased for him that was not to his liking as it had tomato in it.  During this argument which became very heated the child kicked his mother and sister and said that he was going to kill everyone including himself.  The child started to punch himself in the head.  The mother left him in the car while she went inside and removed all the knives and other dangerous items from the kitchen.  [X] had been instructed by the mother to keep an eye on [Y].  [Y] got out of the car, went inside the house and found his mother in her bedroom where he kicked and punched her.  He was not even eight years of age at this stage.  The mother phoned her solicitors and then the police.  The police phoned for an ambulance.  If the mother’s evidence is to be accepted five police vehicles attended the home and the child was taken to hospital and assessed by the Child and Youth Mental Health Service (CYMHS).  The mother did not inform the father.  The CYMHS did not consider the child to have mental health needs despite the mother advising them of his expressed suicidal ideation.  He told those assessing him that he was not going to kill himself and he appeared remorseful for the argument.  The mother was of the view that the father had allowed [Y] to view a violent movie and let him play with toy guns which had caused this behaviour in the child.  The CYMHS had assessed the child as feeling angry towards his mother and worried that she would prevent him from seeing his father.  The child was referred to a psychologist and after some time the parents had reported improvements in his behaviour.

7. The mother has discussed the contents of the Family Report with the children and accused the father of lying in the interviews.

8. I am satisfied that the mother has an unwavering belief that the father has sexually abused the children and is addicted to pornography including child pornography.  I find that she has not been able in the past to refrain from denigrating the father including telling the children that the father is a liar, watches pornography and adults having sex with children.  I find the mother has lacked insight into the emotional effects on children by engaging in negative discussions with them about the family report and the father.  This is despite the mother attending the Focus on Kids – Parenting After Separation Course run by Relationships Australia in 2012.  Nothing in the mother’s presentation gave me any comfort that she has gained any greater insight into her conduct and its potential effects on the children.

1. The children have also witnessed their mother being physically and verbally violent to the father, although that was some time ago.  The children’s disclosures to the family report writer and the counsellors suggest these children have struggled emotionally at times as a consequence of the mother’s conduct.  This though is not a daily issue as the evidence suggests that the child have also had positive times with the mother. Whilst I find the children are at risk of emotional harm in the mother’s care when she is unable to refrain from denigrating the father I am satisfied that they are not at an unacceptable risk of harm with her given there have been positive experiences for them in her care and they are receiving counselling support. 

2. Before I leave this consideration I need to highlight that in making my findings as to the mother’s acts of family violence towards the father I am not exonerating the father from his responsibility in this regard.  There is no doubt, in the nature of this dispute, the father has also engaged in verbally aggressive conduct towards the mother. His evidence was that he only used physical force to confront an attack on him by the mother.  I am not entirely persuaded of that however on balance I find that the mother has been the main perpetrator of violence particularly in front of the children.  No family violence orders have been made between the parties.  The mother suggested this was because the father did not want the mother to make any allegations to the police in relation to child pornography.  I do not accept that submission.

The children’s relationships

The benefit to the child of having a meaningful relationship with both of the child’s parents;[21]

[21] S.60CC(2)(a)

The nature of the relationship of the child with:

(i)   each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);[22]

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;[23]

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

[22] S.60CC(3)(b)

[23] S.60CC(3)(c)

(i)     either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living[24]

[24] S.60CC(3)(d)

1. The children each have a close and loving relationship with their father and appear to have aligned themselves with him during this dispute.  The mother is critical of Ms M and her approach to counselling [X] blaming her for this development. 

2. The mother has been the children’s primary carer all of their lives.  They have had significant difficulties in their relationships with the mother particularly around the time of and after separation but I accept the mother’s evidence that despite these difficulties they have also had some good times and both children still have close relationships with her. [X] had told her counsellor that there had been some improvements in her relationship with the mother even though there was still conflict.  The mother’s inability to refrain from denigrating the father to the children will not assist the mother/child relationships.

3. The mother argued that I should find that the father is not likely to support an ongoing relationship between the children and her and pointed to the time when the father withheld the children from her for four months in 2011/2012.  I am not satisfied that that finding is open to me.  I accept the father’s approach in withholding the children was motivated out of his concern for the children’s welfare at a time the father believed the mother’s emotional state was not conducive to ensuring the children’s wellbeing.  Since the interim parenting orders were made returning the children to the mother’s primary care in 2012 the parties have by and large complied with them.  The parties have had difficulties in making arrangements for school holidays and associated handovers but there is nothing to suggest the father has not been willing to promote a positive relationship between the children and the mother.

4. In light of the mother’s views of the father however the same cannot be said about her ability to promote a positive relationship between the children and their father.  Whilst the mother denies telling the children the father has sex with children she did concede she told them he watches adults have sex with children.  The mother has called the father a liar to the children.  Whilst the mother has complied with the court orders for the children to spend time with the father despite her strongly held concerns as to their welfare whilst with him I remain concerned that she will not promote a positive relationship.  [Y] complained in the family report interviews that the mother made telephone time with the father difficult and continued to be negative about him.  This clearly troubles [Y].  [X] also reported the same difficulties.

5. In the first report the report writer formed the view the children had a stronger bond with the father after observing them.  She considered that they were animated, happy and relaxed around their father and that that was not evident with their mother.  They appeared to be more serious and withdrawn with her. Although the mother was not observed with the children for the second report given her failure to participate, the report writer formed the view this difference in the children’s relationships with their parents had intensified. She concluded that although the children were thriving in the father’s care their time with their mother was at times stressful, challenging and emotionally and psychologically unhealthy. [X] had told her that she and her mother fought a lot – half of the time she was in her care. Ms M gave evidence that she had been assisting [X] with strategies to cope with her relationship with her mother and that [X] had reported that there had been some improvements.  The mother tendered copies of notes and cards evidencing some positive exchanges between mother and daughter.

6. I find that the children’s relationships with their mother have been strained and at times conflictual.  So much so that the police have had to become involved.  Notwithstanding this they have also had good experiences with her and there have been some improvements.  Overall though the children have a closer and more comfortable relationship with their father.

The child’s views

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views[25]

[25] S.60CC(3)(a)

1. In the first family report [X] is recorded as saying that she enjoyed living with her father more than with her mother.  She said she got irritated and angry when her mother would say bad things about her father.  She said she would like to live with her father for a week and a half and a couple of days with her mother.  In the second report [X] said she would like the time to be week about as she did not like the week to be “all cut up”.  She went on to say that she would like even more time with her father.  She said that when she is with her mother she missed her father but that the reverse was not the case.

2. [Y] said that he would like to spend a week about with each parent when questioned for the first report.  He expressed concerns as to fairness for his parents.  This theme of fairness remained an issue for him when he was interviewed for the second report.  He said he would like the time to be a week about but that he would like to have more time with his father but that would not be fair.

3. I propose to give significant weight to the children’s views.  Although [Y] is just 10 years of age he presented to the report writer as having an understanding of the reasons he was being interviewed and that he was happy to express his views even though he knew his mother would read them.  [X] is 13 years of age.  In light of the children being caught up in the dispute between the parents and in particular being exposed to the mother’s negative comments about the father I am satisfied that their wishes should be respected and accorded some significant weight.  Their wishes though should not, on their own, be determinative of the dispute but must be considered along with the other factors.

Practical difficulties

The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[26]

[26] S.60CC(3)(e)

1. The parties live in close proximity to each other such that I do not have any concerns about practical difficulties impeding on the children’s ability to spend time with either parent.

Parental capacity and responsibility

The capacity of:

(i)   each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs [27]

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[28]

The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent[29]

[27] S.60CC(3)(f)

[28] S.60CC(3)(i)

[29] S.60CC(4). Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents: (a) has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child; and (b) has facilitated, or failed to facilitate, the other parent: (i) participating in making decisions about major long-term issues in relation to the child; and (ii) spending time with the child; and (iii) communicating with the child; and (c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child. S.60CC(4A) provides that if the child’s parent’s have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

1. I am satisfied that each parent is able to meet the children’s day to day physical needs such as ensuring they have a roof over their heads, are fed appropriately and are adequately clothed.  The children have attended school regularly.  Although the children complained to the report writer that the mother was always in a rush of a morning I am not satisfied this issue, if it is one, is of any significant concern.

2. The significant issue is whether the parents are able to meet the children’s emotional needs.  They both attended a parenting after separation course in 2012.  I am satisfied that the father has been better able to shield the children from emotional harm during this dispute.   The mother has not been able to keep her dispute with, and her views of, the father from the children.  They have expressed frustration to the report writer as to the mother calling the father a liar and being critical of him to them and to others.  Their relationships with her have at times suffered as a consequence.  Overall I am satisfied the father is better able to meet the children’s emotional needs.

Background issues

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[30]

[30] S.60CC(3)(g)

If the child is an Aboriginal child or Torres Strait Islander child:

a)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

b)the likely impact any proposed parenting order under this Part will have on that right[31]

[31] S.60CC(3)(h). S.60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture

1. Neither party identifies as Aboriginal or Torres Strait Islander or from any particular cultural background requiring me to give consideration to this issue.

Presumption of Equal Shared Parental Responsibility

1. I am satisfied given the history of family violence that the presumption of equal shared parental responsibility does not apply.  I am further satisfied that the parties do not have an effective communicative relationship that would enable them to make joint decisions for the long terms needs of these children.  The mother’s evidence was that she found communicating with the father to be rather stressful and she preferred to avoid him as much as possible.  Whilst they have used emails to communicate this has not been without difficulty and misunderstanding.  I accept the submission from the ICL that the parents’ lack of ability to communicate effectively was not conducive to co-parenting.

2. Accordingly I will not make an equal shared parental responsibility order.  Given my ultimate finding that the children should live primarily with their father I propose to order that he have sole parental responsibility for the long term decisions affecting the children.

Consideration of Equal Time or Substantial and Significant Time

1. In light of my findings in relation to parental responsibility I am not required to consider whether it is in the best interests and reasonably practicable for these children to live with the other parent in an equal time or a substantial and significant time arrangement.  Although the father was at the commencement of these proceedings desirous of having and equal time arrangement neither party sought such an order at the conclusion of the hearing.

Discussion

1. When I weigh and consider the factors discussed above I conclude that it would be in the best interests of these children to live primarily with their father.  I am satisfied that he is better able to meet their day to day and emotional needs.  In coming to that conclusion I have rejected the mother’s submission that the father has sexually abused the children and that they are at an unacceptable risk of harm in his care.  I accept the ICL’s and father’s submissions that the mother is unlikely to move in her belief in that regard and as a consequence will have difficulty refraining from denigrating the father to the children.  Although she has been the primary carer for these children all of their lives, the children have a closer relationship with their father.  I do not accept [X]’s counsellor has been influenced by the father to undermine the mother daughter relationship.  The children’s positive relationship with their father has not doubt been influenced by their lived experiences with both parents.  I will make an order that the children live with the father.

2. I find that it is in the children’s best interests to spend time with their mother.  The ICL submitted the children would benefit from a moratorium in spending time with the mother.  This was the view of Ms T.  The suggested period of time was six months.  Whilst I accept there would be benefits for the children in having time to adjust to a new primary home and for the mother to come to terms with a change that she is strongly opposed to I am not persuaded that a six month period is necessary.  It is not possible to determine what period of time would be needed but in my view too long a period may not assist this family to move forward.  The mother has never forgiven the father for retaining the children in his care for four months in 2011/2012.  [Y] told the family report writer that the mother had said the father had stolen them for four months.  Any lengthy moratorium may just fuel the mother’s anxiety and anger at the father.  Having said that a move to the father’s primary care will require a period of time for the parties to adjust.  The father had questioned whether there should be some review after the moratorium.  I understand why he would make such a submission given the element of unknown as to how the children and the mother will cope with the change.  In my view though a review prior to the children spending time with the mother is fraught with the potential for further litigation and a prolonging of uncertainty for everyone.  In my view the children should have four weeks to settle in with the father.  This would ensure they get used to his primary care and enable the mother to reflect on the change.  The time frame will give everyone a sense of certainty as to when the new arrangements will commence.

3. The report writer was concerned that large blocks of time for the children with the mother may be too much for them.  She opined that the optimum time should be no more than three nights and two days in a row.  Ms T was of the view that seven day blocks would be too great a time for the children in the mother’s care.  I accept Ms T’s opinion and will order the children spend time with their mother on alternate weekends from afterschool Friday to before school Monday. 

4. It was also the report writer’s view that there should be shorter blocks of time during the school holidays.  Ms M had given evidence that [X] had been concerned about spending a lengthy block of holiday time with her mother and away from her father but that all had gone well.  I did not have any evidence as to the length of this time.  The ICL argued for no block periods of time for the children to be with their mother during the school holidays but that the alternate weekend time continue with the father having the option of suspending the mother’s weekend time on two occasions each year to enable him to take the children way for a holiday.  In light of Ms M’s evidence of the child [X] finding the holiday period with her mother to not be as stressful as she had anticipated I am satisfied that the children should spend half school holidays with each parent but that so as to minimise any stressful periods in the mother’s household I propose to order the long school holidays during summer be for periods of one week in each household.  Whilst that may restrict the ability of the parents to take the children away on a holiday greater than seven days at a time that disadvantage needs to be weighed against the benefit for the children in spending holiday time with both parents in a way that will not cause them angst.

5. The ICL sought orders providing for the mother to engage with and attend upon a mental health practitioner as recommended by her general practitioner.  She also sought ancillary orders for the publication of the court orders and various reports used as evidence in these proceedings to that mental health practitioner.  The order was drafted as a stand-alone order and not as a pre-condition of any parenting order.  The court does not have power to make such an order.  In In the marriage of L and T[32]the Full Court of the Family Court held that although the court had power to make an order that a party attend upon a psychiatrist and undergo treatment as a condition of a spend time with order or order for a child to live with them there was no power under any provision in the Act to make a non-conditional order.  Even if I was to accept the ICL intended the orders to be drafted as if they were conditional I am not persuaded such orders are appropriate in this case.  Dr V considered the mother may have some personality vulnerabilities but she did not have any mental illness.  He also said that unless a person was willing to engage with a therapist or mental health professional and has some insight into their vulnerabilities there was little benefit in engaging in that therapy.  The mother is unlikely to shift in her views of the father at least for some time.  In time the mother may decide to seek therapeutic assistance to assist her to come to terms with the court’s decision but unless she is willing to do so of her own accord and in her own time I do not have confidence that it would be of any benefit to her.  I will not make those orders sought by the ICL.

   [32] (1999) 25 Fam LR 590

1. The ICL sought a number of injunctions against the parties in relation to denigrating each other or showing the children copies of documents used in these proceedings.  I will make those orders.  Whilst I have found the mother will have difficulty in refraining from denigrating the father to the children she did impress as wanting to comply with court orders.  Such an order may assist her to do her best not to denigrate him despite her deeply held concerns.

2. In light of my findings as to the mother’s allegations against the father and my ultimate finding that it is in the children’s best interests for them to live primarily with the father it is not necessary for me to address the many orders sought by the mother.  She did however raise a number of concerns as to the children having access to the internet and use of mobile phones.  I am satisfied the father has taken steps to put appropriate blocks on the internet connection in his house so the children do not access pornography.  The mother was concerned that if the children used a tablet device away from the father’s home they may still access inappropriate content.  This is a dilemma for most parents.  I am satisfied the father is alert to these concerns and would use his best endeavours to monitor the children’s use of mobile devices.  The mother also had an objection to the children using mobile phones given her perceptions of risk of physical harm from radiation.  I have no evidence that would enable me to determine that level of risk.  Given the children are now getting older I am satisfied they should be able to access and use mobile telephones and will make the orders sought by the ICL in that regard.  I am also satisfied the children should be free to phone their parents when they wish to do so provided it is at a reasonable hour.  Given the children will be living with their father during the school weeks and seeing their mother on alternate weekends it is appropriate for the mother to phone the children each Wednesday.  Whilst I accept there have been difficulties with phone time I am persuaded that one set call each week would provide a routine for the children and assist in promoting the children’s relationship with the mother.  To assist with the children settling into the new arrangement these calls should not commence until the expiration of the four week period to which I have already referred.  The children though would still be at liberty to contact their mother during this period.

3. The mother also sought a number of injunctions against the father, the ICL, Counsel for the ICL, members of the father’s family, the professional witnesses in this case and unnamed colleagues of the witnesses.  I have no power to make the orders sought by the mother directed to people who are not parties to these proceedings.  In relation to the father and the ICL the orders sought are draconian and no evidence was presented that would warrant any order of the kind sought.

4. The mother also sought an order that the children’s names be placed on the airport watch list.  The mother’s submission was speculative and not evidence based.  I will not make the orders sought.

5. It is appropriate that the parties return the bundle of subpoenaed documents that was given them to assist in the trial.  They should do so within 30 days. 

6. The mother sought an order that she be permitted to provide a number of documents used in the trial to a number of entities.  I am not satisfied that it is appropriate to make that order as she did not make any submissions addressing this issue.

7. For these reasons I make the orders set out at the commencement of this judgment.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn

Associate: 

Date:  10 February 2015

Exhibit ICL2: Police recording of 2 July 2012;
Exhibit ICL3: Letter from Thynne & Macartney dated 13 November 2013 addressed to the Applicant mother;
Exhibit ICL4: Bundle of agreed subpoena documents;
Exhibit ICL5: Email dated 21 February 2014 from the father to the mother annexing photo entitled “two princes”;
Exhibit ICL6: Bundle of email correspondence between the mother, the father and the Independent Children’s Lawyer between 22 February 2014 and 5 April 2014;
Exhibit ICL7: Certificate of attendance on Relationship Australia dated 4 September 2012;
Exhibit M1: Email dated 17 October 2013 from the mother to Ms M;
Exhibit ICL8: Two photos taken by the father of himself where he alleges being assaulted by the mother.
Exhibit M2: Bundle of cards from the children to the mother;
Exhibit ICL9: Relationships Australia certificate of attendance for the mother dated 6 September 2012;
Exhibit ICL10: Screening Criteria/ Response Priority dated 25 May 2012 from the Department;
Exhibit ICL11: Screening Criteria Summary3 December 2012 from the Department; and
Exhibit ICL12: Written information provided by the mother to the officers of the Department, undated.