BRONWELL & BRONWELL - [2018] FamCA 1041

FAMILY COURT OF AUSTRALIA

BRONWELL & BRONWELL

[2018] FamCA 1041

FAMILY LAW – CHILDREN – Where there is one child aged 12 years – Where the child is currently living with the father and spending supervised time with the mother – Where the mother seeks that the child live with her and that she spend five nights per fortnight with the father – Where the father seeks that the child live with him and that she spend gradually increasing time with the mother, initially supervised – Where the mother has inappropriately retained the child twice in the past – Where there is high parental conflict – Where the father alleges that the child has been sexually abused in the mother’s care due to his observation of a number of the child’s behaviours – Where the court expert described the father as pathologising some of the child’s behaviours – Where an order is made for the mother to spend gradually increasing time with the child, without supervision.

FAMILY LAW – PARENTAL RESPONSIBILITY – Where the mother seeks that the parents have equal shared parental responsibility for the child and the father seeks that he have sole parental responsibility in respect of health and education – Where the presumption of equal shared parental responsibility applies – Where there is high parental conflict – Where the presumption of equal shared parental responsibility is rebutted – Where it is in the child’s best interest for her father to have sole parental responsibility.

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAA, 65DAC, 67Z

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Leighton & Carey [2010] FamCAFC 94
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

APPLICANT:

Mr Bronwell

RESPONDENT:

Ms Bronwell

INDEPENDENT CHILDREN’S LAWYER:

KD Holmes Solicitors

FILE NUMBER:

SYC

6278

2015

DATE DELIVERED:	7 December 2018
PLACE DELIVERED:	Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

12, 13, 14 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Longworth

SOLICITOR FOR THE APPLICANT:

Gordon & Barry Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Dr McConaghy

SOLICITOR FOR THE RESPONDENT:

Metta Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

KD Holmes Solicitors

Orders

All previous parenting Orders are discharged other than Orders 6, 9 and 10 made on 14 November 2018.
Subject to Order 3, the father shall have sole parental responsibility for X (“the child”) born … 2006.
In the exercise of his parental responsibility the father shall:
(a)advise the mother in advance of any decision he proposes to make in the exercise of parental responsibility;
(b)take into account any views expressed by the mother about the proposed decision; and
(c)inform the mother of the decision he makes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BRONWELL & BRONWELL [2018] FamCA 1041
Case: [2018] FamCA 1041
Decision Date: 7 December 2018

CaseChat Overview and Summary

This case concerned parenting orders for a 12-year-old child. The mother sought for the child to live with her and spend five nights per fortnight with the father, while the father sought for the child to live with him and for the mother to have gradually increasing, initially supervised, time with the child. The dispute was heard by Loughnan J.

The court was required to determine the primary issue of where the child should live and the extent of each parent's time with the child, considering allegations of sexual abuse by the mother, high parental conflict, and the child's behaviour as interpreted by the father and the court expert. Additionally, the court had to decide on parental responsibility, with the mother seeking equal shared parental responsibility and the father seeking sole parental responsibility for health and education, and whether the presumption of equal shared parental responsibility should be rebutted.

Loughnan J reasoned that while the mother loved the child, she had not provided stable parenting in recent years outside of a supervised setting and had failed to promote the child's relationship with her father. The court found that the mother's proposed arrangements would likely interfere with the father-child relationship and potentially lead to an unhealthy enmeshment between mother and daughter, to the child's disadvantage. The court also noted that both parents had compromised mental health which had impaired their decision-making. Despite submissions regarding the father's perceived lack of insight into the child's need for a relationship with her mother and his response to a suicide threat, the court ultimately found that the father was better equipped to promote the child's best interests. The presumption of equal shared parental responsibility was rebutted due to the high parental conflict.

The court ordered that the father have sole parental responsibility for the child, subject to him advising the mother in advance of decisions and taking her views into account. The child was ordered to live with the father, with gradually increasing time allocated to the mother over several stages, commencing with limited supervised time and progressing to unsupervised time. Specific provisions were made for holidays, special days, and communication between the parents, including restraints on denigrating the other parent. The court also ordered the father to pay half of the Independent Children's Lawyer's costs.

Orders

Orders of the court

All previous parenting Orders are discharged other than Orders 6, 9 and 10 made on 14 November 2018.

Subject to Order 3, the father shall have sole parental responsibility for X (“the child”) born … 2006.

In the exercise of his parental responsibility the father shall:

(a) advise the mother in advance of any decision he proposes to make in the exercise of parental responsibility;

(b) take into account any views expressed by the mother about the proposed decision; and

The child shall live with the father.

The child shall spend time with the mother as agreed between the parties in writing and, failing agreement, as follows:

(a) for a period of six months from the date of the Orders:

(i) from the conclusion of school each Wednesday until the commencement of school Thursday save that during school holidays that time will be from 12.00 pm each Wednesday until 12.00 pm Thursday; and

(ii) from 10.00 am until 5.00 pm each alternate Saturday during school term and during school holidays.

(b) thereafter, until the commencement of the 2020 school year:

(i) during school term, from the conclusion of school each alternate Wednesday until commencement of school on Friday;

(ii) during school holidays, from 12.00 pm each alternate Wednesday until 12.00 pm on Friday; and

(iii) from 10.00 am until 5.00 pm each alternate Saturday during school term and during the school holidays.

(i) during school terms:

· in week one, from the conclusion of school on Wednesday until the commencement of school on Thursday; and

· in week two, from the conclusion of school on Friday until the commencement of school on Monday.

(ii) during each of the term one and term two school holidays, from 12.00 pm on the first Monday of the holidays until 12.00 pm on the following Friday.

(d) from the commencement of term three in 2020 and thereafter:

· during school term, each alternate week from after school Thursday to before school Monday;

· during each of the short school holidays, from 12.00 pm on the first Monday of the holidays until 12.00 pm on the following Friday; and

· during the December/January holidays, in each alternate week from 12.00 pm on Monday until 12.00 pm the following Friday.

Notwithstanding any other Order the child shall:

(a) remain in the care of the father on Father’s Day;

(b) remain in the care of the mother on Mother’s Day;

(d) spend two hours, from a time agreed between the parents, with the mother on the child’s birthday; and

(d) spend four hours with the mother on Christmas Day from a time agreed between the parents.

In the event that the child is retained by the mother contrary to these Orders or the mother ceases to engage with the family therapy ordered on 14 November 2018, the father is at liberty to apply on 48 hours’ notice for a recovery order and / or to suspend or vary the Orders for the mother’s time, as the case may be.

the child’s counsellor shall continue to be Ms B at C Group (or in the event that Ms B is not available, such person as may be recommended by Ms B and in default of such a recommendation, as selected by the father).

Each party shall follow all reasonable recommendations of Ms B including ensuring the child’s attendance at appointments as directed by Ms B and shall follow up on any referrals made by Ms B.

10.

The Independent Children’s Lawyer is at liberty to provide a copy of these Orders, a copy of the Court’s decision and a copy of the report of Dr D to Ms B.

11.

The child’s paediatrician shall continue to be Dr E (or in the event that Dr E is not available such person as may be recommended by Dr E and in default of such a recommendation, as selected by the father).

12.

Each party shall follow all reasonable recommendations of the child’s paediatrician in relation to medical treatment for the child, including ensuring the child’s attendance at all appointments as directed by the paediatrician and following up on any referrals to allied health professionals made by that paediatrician.

13.

The parties shall authorise any doctor, dentist, therapist or allied health professional upon whom the child attends, to discuss her treatment with the other party and to provide to the other party copies of any test results, letters, or referrals made at the request of the other party and at the other party’s expense.

14.

The parties shall keep the other party informed as to any prescribed medication the child is taking, including any changes to that medication that may occur from time to time.

15.

In the event of a medical emergency involving the child, the parent who has the care of the child shall ensure that:

(a) the other parent shall be notified as soon as practicable;

(b) the other parent shall be provided with the full details of the practitioner or medical facility upon which the child attends as soon as practicable; and

(c) the other parent is authorised to access information as to any treatment provided, the production of these Orders being sufficient authority to facilitate this Order.

16.

The mother is restrained from presenting the child to any therapist, counsellor, mental health practitioner or paediatrician other than in accordance with these Orders or with the written consent of the father.

17.

Each party shall authorise F School to provide to each party copies of all school reports, newsletters, invitations and all other documents relevant to the progress of the child at the school.

18.

Each party is restrained from denigrating the other parent in the child’s presence or hearing and shall ensure that no other person does so.

19.

Each party shall keep the other informed of his or her residential address, contact telephone numbers (of each party and the child) and email address, and shall advise the other of any change not later than 24 hours after such change.

20.

Except for the case of an emergency, communications between the parties shall be in writing, including email or text message, and the communication shall be limited to matters pertaining to the child.

21.

Within three months after the date of these Orders the father shall pay one half of the Independent Children’s Lawyer’s costs, in the sum of $6,666.50.

22.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

23.

Leave is granted to the parties to apply within 28 days, on giving at least seven days’ notice to the Court and each other in relation to the wording of these Orders.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Johnson & Page (2007) FLC 93-344 the Full Court discussed the legal principles in determining the question of unacceptable risk as follows commencing at 81,888:65. In W and W (Abuse allegations: unacceptable risk) (2005) FLC ¶93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.66. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC ¶93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC ¶92-655 at 82,713 which are as follows:One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child's best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child's development, as well as the effects of future contact with the party. As Thomas J said at 670:“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC ¶77-080 termed ‘subservient and ancillary to the court's determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child's welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the[81890]accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J's approach at 681-2:“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J's decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L's best interests.”This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court's emphasis]…68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:1 The decisive issue is and always remains the best interests of that child.All other issues are subservient.2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.6 The onus of proof in reaching that conclusion is the ordinary civil standard.7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.and thereafter expanded some points contained in the summary.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issue here is about the mother’s ability to focus on the child’s best interests. If her accommodation was unsafe or inadequate it was for the mother to make alternate arrangements for the child. That would include asking the father to care for the child for additional time, if that was the next best option. The mother did that after T assaulted her. (3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or The range of proposals before the Court would have the only significant change being the mother’s proposal for the child to primarily live with her. Although I am satisfied that the mother dearly loves the child, outside a supervised setting, in recent years, she has not been able to provide the child with stable parenting and to promote her relationship with her father. The likely effect of the arrangement proposed in the mother’s orders is that there would be an interference in the relationship between the father and the child and possibly an enmeshment between mother and daughter, to the child’s ultimate disadvantage. There are no real practical difficulties in the range of orders being considered. (3)(f) the capacity of:(i) each of the child’s parents; and(ii) any other person (including any grandparent or other relative of the child); Like their daughter, each of the parents has compromised mental health. This is likely at times to have impaired their decision making about the child. The question is whether one of the parents is better equipped than the other to promote the child’s best interests. It was submitted on behalf of the ICL that the father lacked parenting capacity in the sense that he failed to appreciate the importance for the child of a relationship with her mother. It was submitted that concern also arises because the father did not take adequate steps in response to the child’s stated threat to kill herself. While there was no apparent link between the threat and the mother, it is submitted that an insightful parent would have identified the child’s misery as being linked to the absence of the mother in her life. He apparently does not appreciate the possible implications of those matters for his relationship with the child. It was also submitted that the mother has a similar lack of insight. She has no appreciation of the child’s need for a relationship with her father. All of that leaves the child in a terrible situation and as Dr D expressed, notwithstanding her age, the child is a vulnerable child. In respect of the post-it notes, we only know of them because the father put them into evidence. He gave evidence about his immediate reaction to viewing the notes, running after the child to make sure that she was safe. The father also has the assistance of Ms J. Since she started to live with the father and the child, she has lived through the very difficult period experienced by the child and her parents.