Calvert and Madock
[2020] FamCA 219
•8 April 2020
FAMILY COURT OF AUSTRALIA
| CALVERT & MADOCK | [2020] FamCA 219 |
| FAMILY LAW – CHILDREN – Whether the mother poses an unacceptable risk to the children – Where the mother has a fixed belief that the father has abused the children and remains a risk of doing so again in the future – Where the mother poses a significant risk of psychological harm to the children because of her fixed belief – Where the risk cannot be mitigated by the mother undertaking psychological or psychiatric treatment – Where there is evidence that the mother has demonstrated an inability to protect the children in the past – Order for sole parental responsibility in favour of the father – Order that the children live with the father – Order that the children spend time and communicate with the mother as determined by the father. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA and s 61DAA |
| Harridge and Anor and Harridge and Anor [2010] FamCA 445 M v M (1988) 166 CLR 69 Maldera & Orbel (2014) FLC 93-602 N and S and the Separate Representative (1996) FLC 92-655 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 Re Andrew (1996) FLC 92-692 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 S v Australian Crime Commission (2005) 144 FCR 431 Wacando v The Commonwealth (1981) 148 CLR 1 WK v SR (1997) 22 Fam LR 592 |
| APPLICANT: | Ms Calvert |
| RESPONDENT: | Mr Madock |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Bassano |
| FILE NUMBER: | CSC | 106 | of | 2014 |
| DATE DELIVERED: | 8 April 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 10 and 11 March 2020 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Williams |
| SOLICITORS FOR THE RESPONDENT: | Collier Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Slade Jones |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Bassano Law |
Orders
All previous parenting order in relation to the children W born … 2009; X born … 2011 and Y born … 2013 (“the children”) be discharged.
Parental responsibility
The father shall have sole parental responsibility for the long term and day to day matters relating to the children.
Living arrangements
The children shall live with the father.
Time and communication with the mother
Whether any of the children spend time or communicate with the mother, and the circumstances under which they may do so, shall be determined by the father as an incident of his sole parental responsibility for the children.
Notwithstanding order 4 hereof:
(a)The mother shall be permitted to send to the children on birthday card or letter, on Christmas card or letter each year, and gifts as she sees fit; and
(b)The father shall not be permitted to allow unsupervised time between the child or children and the mother.
The father shall send copies of the children’s school reports and any school photos to the mother as soon as possible upon receipt.
Restraints
The mother be restrained and an injunction to issue restraining the mother from attending upon:
(a) Any medical practitioners; or
(b) Any hospital or allied health providers; or
(c) A prescribed child welfare authority; or
(d) The Queensland Police Service or any other police service;
(“the professionals”) with any concern relating to the children.
Order 7 hereof shall not have any effect if the mother:
(a)First obtains the father’s written (SMS will suffice) consent to attend upon the professionals; or
(b)In the case of emergencies, within 24 hours, presents a copy of this order to the professionals; or
(c)First obtains the permission of the court.
Other orders
The mother and the father shall keep each other informed of all contact details including their residential addresses, telephone numbers, and email addresses.
The Independent Children's Lawyer shall explain the orders to the children within 14 days hereof.
The father is granted leave to provide a copy of the orders, judgment, the psychiatrist’s report and the Family Report to:
(a) Any educational facility the children attend from time to time;
(b) The Queensland Police Service;
(c) Any medical practitioners, hospitals or allied health providers;
(d) The prescribed child welfare authority; or
(e) Any other authority or agency.
The mother shall provide a copy of the orders, judgment, the psychiatrist’s report and the Family Report to such counsellor or psychologist as she may choose to engage from time in relation to the acceptance of the findings in the judgment supporting these orders.
The Independent Children's Lawyer is discharged with the thanks of the court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal that may be brought therefrom.
Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Calvert & Madock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC106/2014
| Ms Calvert |
Applicant
And
| Mr Madock |
Respondent
REASONS FOR JUDGMENT
introduction
These proceedings relate to the appropriate parenting arrangement for the parties’ three children, being W born … 2009 and hence presently 10 years of age, X born … 2011 and hence presently 8 years of age, and Y born … 2013 and hence presently 7 years of age (“the children”).
As ultimately formulated, Ms Calvert (“the mother”) sought orders that she have sole parental responsibility for the children, who would live with her, but spend unspecified time with Mr Madock (“the father”) in Melbourne. She also proposed that the father communicate with the children on two occasions per week, and on special days.
For his part, as ultimately formulated, the father proposed that he have sole parental responsibility for the children, who would live with him, and spend time and communicate with the mother as he may determine from time to time, save that he not be permitted to allow unsupervised time between the children and the mother. That said, that final position was reached by adopting a proposal of the Independent Children's Lawyer; before then, the father had been proposing that the children spend supervised time with the mother at the D Town Contact Centre at such times as it could accommodate when the mother is visiting D Town, and further, that she be permitted to communicate with the children twice a week and on special days.
As I have indicated, the Independent Children's Lawyer’s proposal was ultimately that advanced by the father.
On 11 March 2020 I reserved my decision in relation to this matter. This is that decision and the reasons for it.
BACKGROUND
The father
The father was born in Australia on … 1988, and hence is presently 31 years of age. He told Dr B, a psychiatrist who examined him for the purposes of these proceedings, that he grew up mostly in rural areas in southern Queensland. After he completed grade 12 he worked in a variety of jobs, before obtaining work with a business in C Town. It was at that stage of his life when, aged 19, he commenced a relationship with the mother in January 2008.
The mother
The mother was born in the United Kingdom on … 1989, and hence is presently 30 years of age. She and her family moved to Australia when she was 11 years of age, and it seems that thereafter they lived in a variety of rural locations in southern Queensland. She completed grade 12, and thereafter obtained employment in fast-food, retail and clerical roles. It was at this stage of her life, when aged 18, and whilst in C Town, that she met the father and commenced a relationship with him.
The relationship
It appears as though the early stage of the relationship in C Town was uneventful, with both parties in employment. W was born there, but apparently became ill, in consequence of which the parties moved from C Town to D Town.
The mother says that after W’s birth, she began to be subjected to domestic violence, including being raped by the father. She further says that in 2009 the father held a knife to her throat, and did so again on another occasion, before putting a pillow over her face and raping her whilst he had his hands around her neck. I shall need to address those allegations in due course.
On … 2011 X was born. In October 2012 the parties separated. By then the mother was pregnant with Y.
Post separation
Y was born on … 2013.
In June 2013 the mother formed a relationship with Mr E. Although she was unaware of it at the time, by then he had a child, V, to a previous relationship, although the child lived with his mother.
On 24 February 2014, the father first commenced proceedings in the Federal Circuit Court in relation to parenting orders for the parties’ children.
At some stage which the evidence does not enable me to determine, Mr E commenced spending time with V, seemingly in response to the child’s mother seeking to have him assessed for child support.
On … 2014, the mother’s fourth child, Z, was born. Z’s father was Mr E.
In March 2015, Mr E ceased employment. At about that time V also started spending time overnight in the mother’s household.
On 13 May 2015 Mr E assaulted V, causing him severe brain injury. The mother’s relationship with Mr E thereupon ceased. In due course Mr E was charged with causing grievous bodily harm to V, and convicted and jailed.
On 17 March 2016, final consent orders were made in the parties’ then parenting proceedings. They provided for equal shared parental responsibility, and for the children to primarily live with the mother, but spend increasing amounts of time with the father, until by the commencement of January 2018, they would spend equal time in both households.
On 10 June 2016 the father commenced a relationship with a Ms F. It appears as though the mother had some difficulty either in accepting, or in dealing with Ms F.
Also in June 2016, the mother met her present partner, Mr G, although both he and she claim they did not form a relationship until December 2017. Nonetheless, between June and December they spent time together both in north Queensland, and in Victoria, where Mr G was residing. In either late September or early October 2017, the mother proposed to the father that she and the children relocate from north Queensland to Victoria. Although she did not tell the father, in fact she was proposing to cohabit with Mr G, although they both claim they were not then in a relationship. The father refused.
In December 2017 the mother says she commenced her relationship with Mr G.
On 27 December 2017, W reportedly exposed his genitals whilst jumping on a trampoline. The mother believed that he had learned that behaviour from his father. She referred the matter to the Department of Child Safety, who in due course, referred her to an organisation called Q Group.
In January 2018 the children commenced to live equally between the parties’ households.
On 5 February 2018, a further notification was made to the Department that Ms F had been bruised, and that there was swearing taking place in the father’s home. The mother denied that she was the notifier, although she accepts that she was made aware that the notification had been made.
In April 2018 Mr G stayed with the mother in D Town for some period. Whilst he was there, on 6 April 2018, after the children had been in the father’s care, they were collected by the mother and Mr G. The mother says that at about 1.00 am that night, Y awoke from a nightmare and was shaking, crying and had vomited. She is said to have reported that “[d]addy touched my wee-wee” (Mother’s affidavit filed 27 February 2020, paragraph 8). The mother decided to give her a shower to calm her down, and in due course Y returned to sleep.
Next, on 7 April 2018, the mother took the children to see a movie, but noted that W had his hand down the front of Z’s nappy. When asked why he did that, W’s response was “[d]addy does it to [Ms F] on the couch all the time in front of us” (Mother’s affidavit filed 27 February 2020, paragraph 9).
Then on 9 April 2018, Y made a further alleged disclosure to the mother, in front of the maternal grandmother, saying “[d]addy has been touching my wee wee’s”. The maternal grandmother asked whether it had occurred in the shower whilst washing her or getting dressed, to which Y allegedly responded “no in bed [he’s] naked next to me” (Mother’s affidavit filed 27 February 2020, paragraph 10).
The mother then reported this to Q Group the following day, and it appears as though the Department of Child Safety again became involved. Whether it was by the Department, or Q Group, either way the mother was advised to go and collect the children from school and withhold them.
Although in her trial affidavit the mother says that she commenced these proceedings on 11 May 2018, in fact the application was filed on 9 May 2018, and it had been signed by the mother on 8 May 2018. (This potentially significant anomaly was unfortunately not explored during the course of cross-examination). In those proceedings the mother sought, on both a final and interim basis, orders that she have sole parental responsibility for the children, who would live with her, and on an interim basis, only have telephone calls with the father “if this Honourable Court deems fit.” A similar order was sought on a final basis, and if the court thought it appropriate, that there be an opportunity, at the mother’s discretion, for the father to spend supervised time with the children at a Contact Centre or in the presence of an agreed supervisor.
On 28 May 2018, interim orders were made in relation to twice weekly telephone time between the children and the father.
On 25 and 27 July 2018, Family Report interviews were undertaken. On 14 October 2018 the ensuing Family Report was released, which recommended that the children live with the father, and have initially supervised contact with the mother for ten weeks, before moving to an unsupervised period of another two months, until culminating in alternate weekend time with the mother. It was contemplated that the matter would then be reviewed after a further two months.
Also in October 2018, seemingly after the Family Report had been released to her, the mother effectively abandoned the children by moving to Victoria, and telling the father via a text message to pick them up from school. She asserts that the reason why she then went to Victoria was because she was unable to secure appropriate housing for herself and the children in D Town, and therefore had no option but to relinquish the children to the father. Since that time she has lived with Mr G in H Town.
By arrangement with the father, the children were made available to spend time with the mother when she next came to D Town, on 25 March 2019. The mother says that Y then made a further allegation to her, namely, that the father had inappropriately touched her. A notification ensued, and the following day the father was contacted by the Department. It is not in dispute that the father went straight to the police station and made a statement denying all allegations. The following day the police told the father that the allegations were not substantiated, and he wrote to the mother requiring that the children be immediately returned to him. Coincidentally, the parties were in a joint court event the following day. In Court the mother asked the Registrar conducting the event why she couldn’t just take the children to Melbourne. The father then formed the belief that she was likely to do so, and, after the children were returned to his care, took steps to conceal their whereabouts from the mother.
On 28 March 2019 the mother filed an Application in a Case seeking the recovery of the children. In her supporting affidavit, she not only repeated the allegation that the father had touched Y’s “wee-wee,” but made two further allegations, namely that the father had threatened to harm the children if they told anyone what had occurred in his home, and that he had made X pull his pants down and dance around naked while he videoed him.
On 10 April 2019 I heard the mother’s Recovery Application filed 28 March 2019 and dismissed it. However the orders I then made provided an opportunity for her to file any Application in a Case seeking a change in the parenting orders by 24 April 2019. It seems that the mother did not file any such application. Before me she claimed that she had left an application for filing with the Cairns Registry, but there is no evidence of it on the court file. In any event, the mother conceded that she made no effort to follow up any filing, or to enquire why what she claims to have sought to file, had not thereafter been dealt with. Her explanations in her oral evidence were less than satisfactory; she variously said that she “didn’t have time to chase up the application,” that she was “more worried about [her] brother” and that she “forgot about it.”
Notwithstanding her lack of face-to-face time with the children, the mother has continued to communicate with them by telephone each Wednesday and Sunday, with the father’s agreement. There have been some difficulties with that communication, but apparently, on the whole, it has been effective.
Most recently, there were orders made by consent on 31 January 2020 that the children spend time with the mother from 4.00 pm Friday 7 February until 7.30 pm Sunday 9 February 2020. That occurred. The mother says that on the morning of 9 February, Y told her that the father had “stood on my brush and got really angry and threw it at the wall near the TV”. The mother says that Y continued, saying “[w]hen I accidentally dropped the PlayStation 4 controller Daddy got really scary angry and got all 3 of us into my room and picked my wooden doll house up and threw a lot of times on the floor breaking it then made me pick it up I was really scared and wanted you mummy” (Mother’s affidavit filed 27 February 2020, paragraph 28). The father denies any such events occurred.
Current situation
As at the time of the trial, the mother remained living in H Town with Mr G and Z. She is studying towards some allied health qualifications, whereas Mr G works in transport. I have no real information in relation to Z’s welfare, but it appears as though it is uneventful.
For his part, the father remained working at a business in a D Town suburb, and has all three children living with him. He had not re-partnered since separating from Ms F in September 2018. There is no indication that the children are not attaining their milestones and achieving well at school, although it is said that W has some cognitive delay, and Y has been diagnosed as suffering from autism.
THE ISSUES
With the assistance of the parties at the Trial Management Hearing, I identified the following issues in this case, in that their determination were likely to substantially inform its outcome:
1.What is the nature of the relationship between each parent, parent’s partner and the children.
2.What risk, if any, does each parent and their household pose to the children and what, if any, means are available to mitigate such risk.
3.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.
4.Would each parent facilitate a meaningful relationship between the children and the other parent.
5.What are the respective parenting capacities of each parent, and what is their ability to meet the physical, emotional and intellectual needs of the children.
6.What is the likely impact on the children of each parties’ proposal.
7.Would the parties’ communication be sufficient to support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other party/parties.
Once I have discussed the relevant statutory provisions and legal principles, but in advance of a consideration of the appropriate parenting orders, I shall discuss those issues, together with any relevant factors under s 60CC of the Family Law Act 1975 (Cth) (“The Act”).
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Act contains the relevant statutory provisions dealing with children. Section 60B of the Act specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) of the Act to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for his or her parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC of the Act, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA of the Act provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.
In Maldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Act in the following terms:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family…or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, “a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence.” Section 4AB(2) and subsection (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1995 (Cth) provides as follows:
(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;
(b)the nature of the subject-matter of the proceedings; and
(c)the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170–171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
(Footnotes omitted)
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See WK v SR (1997) 22 Fam LR 592 at p.599; Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N and S and the Separate Representative (1996) FLC 92-655 (“N & S”), where in the well-known passage at 82,713-4, Fogarty J said:
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 a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At pages 76 and 78 the Court said as follows:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
…
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
In Harridge and Anor and Harridge and Anor [2010] FamCA 445 Murphy J, having referred to N & S, proceeded to adopt the following list of inquiries in relation to risk assessment at [73]:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B. Mahendra ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is clearly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. They are generally employed only where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN EACH PARENT THEIR PARTNER AND THE CHILDREN
Ultimately this issue did not prove particularly contentious. The Family Report writer, Mr J, gave unchallenged evidence that, as regards the mother, the children accept her as a parent, and do get nurture, comfort and support from their relationship with her. However he thought that the relationship was fundamentally unhealthy, because of the mother’s fixed belief that the father had sexually and otherwise abused the children. I shall discuss that belief in due course, but it was not controversial, in that during her oral evidence, the mother, time and time again, adamantly stressed that belief, and went so far as to say that the only thing that would persuade her otherwise, was if there was a paediatric or other medical examination of Y, which determined that her hymen was intact. When pointed out to her that the mere touching of her vagina may not have left any medical evidence, her view did not in any way alter.
It seems unlikely to be a mere coincidence that since moving to Victoria, every time that the mother has spent time with the children, has resulted in further disclosures allegedly being made by them. The mother has made it plain that, in the event more disclosures were made in the future, she would continue to report them to the responsible authorities. I shall discuss the likely reasons for her belief, and her responses, in due course, but for the time being it is only necessary to say that nonetheless, there is an intact and meaningful relationship between the mother and the children, although the long term effect of that relationship on the children is professionally questioned.
As to the relationship between the children and Mr G, he was not present at the Family Report interviews and observations, and hence Mr J could offer no opinion as to this matter. Mr G did not give direct evidence as to his relationship with the children, but I infer that they know who he is, and have some species of trust in him.
As to the children’s relationship with Z, again there is little evidence, but I assume that the children know and love her, although they have little experience of actually living together in the same house.
Turning to the father’s relationship with the children, somewhat ironically at the time of the Family Report interviews, because of the mother’s allegations, Mr J did not undertake an observation of the father with the children. However he thought that from the material which he then viewed, and has subsequently viewed, the relationship between the father and the children was flourishing, and that he provides for their needs, and affords them nurture, comfort and support. That was certainly the effect of the father’s evidence, and he was not challenged. I accept that the children have a good relationship with him. I shall discuss the allegations of sexual abuse and physical and emotional violence when discussing risk.
ISSUE 2 – RISK POSED BY PARENT AND HOUSEHOLD AND MEANS OF MITIGATION
Overview
This was the primary focus of the trial. For her part, the mother says that the father is a risk of sexual, physical and emotional harm to the children. However somewhat contradictorily, she did not say that the father’s time with the children should therefore cease or be supervised, but rather proposed that he spend unsupervised holiday time with them.
For his part, the father says that the mother poses an unacceptable risk of harm to the children, because of her fixed and unshakable belief that he has sexually abused Y, and physically and emotionally abused each of the children. He points to the longevity of her belief, and the fact that, despite those allegations being found not to be established by both the police and the Department of Child Safety, and despite her being advised by Dr B to seek professional help in relation to those fixed beliefs, they have persisted, and she has not sought any such help, albeit perhaps she may have recently taken some steps down that path.
Further, there were some subsidiary risks identified in relation to the mother, namely that when living with Mr E, she failed to remove the children from his domestic violence, that she has in the past impulsively made decisions in relation her and the children’s domestic circumstances, that she has experienced flashbacks which have impeded her care of the children from time to time, particularly when with Mr E, and that she abandoned the children in November 2018, which predicts that she may do so again.
I will consider those risks in greater detail hereafter.
The father
I have already referred to the allegations of abuse in relation to the father. On two occasions now, Y has apparently told the mother that the father has touched her vagina, and on one occasion has elaborated further, saying that it occurs when he is lying naked in bed. Further, the mother says that W explained that he was exposing his penis because his father does it all the time, that the children have said that they have seen the father and Ms F having sexual relations of some kind, and have said to the mother and Mr G that the father has acted violently, for instance by destroying Y’s doll’s house.
All of these matters (with the exception of those raised in February 2020) have been the subject of investigations by both the police and the Department of Child Safety. The police have positively concluded that allegations are unfounded. The Department have now twice interviewed Y, and no disclosures were made. The mother says that no statements were made because Y was scared, as both interviews were undertaken by two male officers.
Whilst I will discuss possible explanations for the mother’s fixed belief when discussing the risks associated with her, it was uncontroversial (in the sense that Dr B was not cross-examined or challenged in relation to it) that a live explanation is that the mother has adopted a psychological defence mechanism, arising out of her failure to protect not only the children, but also V, when she was in a relationship with Mr E, by asserting that it is the father, rather than Mr E, who is a risk of harm.
However the material which the mother advances in support of her case could not possibly persuade me to the requisite standard, that the father abused the children in any of the ways that she asserts. There is absolutely no corroborative evidence from anyone other than the mother (although Mr G and the maternal grandmother claim to have heard some of the children’s alleged disclosures) and there is no indication from the children’s school or other community members that the father’s conduct has ever been in any way untoward, or that the children have ever made any disclosures to them.
The mother seeks to buttress her claims by allegations that the father was domestically violent to her during the course of the relationship, including raping her on at least two occasions, holding a knife to her throat, and on one occasion covering her head with a pillow. However, again, there is a complete absence of corroborative evidence. The mother has not made any criminal complaint to police in relation to any such events, nor is there any independent evidence, or indeed evidence of the mother even making contemporaneous complaint to anyone, in relation to such events. Again the evidence could not possibly persuade me to the requisite standard that the father committed those serious criminal offences.
There was no evidence of any criminal history of the father involving violence, or dishonesty, or evidence of him behaving violently towards other children or domestic partners. Other than the mother’s assertions, there was a gaping evidentiary void.
Both sexual abuse, and family violence more generally, are very serious matters, likely to significantly harm both the immediate victim, and those otherwise exposed to it, perhaps permanently such that the gravity of the likely consequences are severe Nonetheless, I assess that the probability of the father acting in the future in the way that the mother claims he has acted in the past, is low. It therefore follows that I assess the risk of harm that the mother says the father poses to the children is likewise low. That said, it is not non-existent, but is at the very low end of the spectrum.
The mother
I have already adverted to the fact that, in her evidence, the mother was intractably wedded to her belief that the father had abused the children in the ways that I have discussed, and remained a risk of doing so in the future. Further, I have referred to Dr B’s theory that perhaps the mother is unconsciously using those beliefs, as a means to maintain her psychological coping. The genesis for this theory lies in the mother’s present lack of memory in relation to significant details surrounding a matter that I have thus far largely skimmed over, namely the grievous bodily harm that was perpetrated upon V whilst he was in the home where the mother and children were living.
In her evidence before me, the mother said that her memory of the night in question was that she had returned home from court, and showered four of the five children in the home. She was in her bedroom with Y, who was having something of a meltdown, and screaming because she had not wanted to leave the shower. She claims that Y’s screaming prevented her from hearing anything else. She says that, so far as she knows, W and X were still in the shower, and Mr E was in the boys’ bedroom with V. She says that the first she knew that anything had happened was when Mr E came and told her that V had an accident. She went into the boys’ bedroom, and saw V on the floor, obviously injured, and lapsing in and out of consciousness. Her evidence was that she did not believe that either W or X had seen whatever it was that Mr E had done to V, such as to inflict grievous bodily harm. She further denied that there had ever been any previous untoward behaviour by Mr E towards V, or indeed her children, although she conceded, that in the lead up to May, there had been some tension in the household around finances, because Mr E was not working. Tension also had come to the fore because of her involvement in these court proceedings.
In effect, the mother’s evidence was that she and Mr E were in a happy relationship, that there had been no forewarning of any risk which he posed to V, or indeed her own children, and that the events of 13 May 2015 came out of the blue.
However that is not what she told Departmental officers at the time.
Particularly, initially on 13 May 2015, the Departmental records note as follows in relation to their interview with the mother:
· I have dealt with Child Safety before around on of my children having a broken clavicle. CSO K further explained the Child Safety role and why we are involved now.
[The mother] provided the following information about the day of the incident and the incident whereby V has sustained massive head trauma and injury:
· I had court in the morning at the Family Law Court. It was stressful; I suffer from PTSD and anxiety from my ex partner.
· Went shopping after court and then came home and had dinner with all 5 of the kids.
· All 4 kids showered together as they love that.
· V was with his father, I had the other children.
· Y was throwing a tantrum.
· I heard a yelp and a slap, then Mr E [ie Mr E] called my name once and then twice. I saw V laying on the ground, eyes opened and he blinked for me.
· Tried basic first aid, rolled him over. He was laying on the floor unresponsive and I immediately [knew] something was wrong.
· Mr E called the ambulance, he was yelling at them and I was trying to remain calm.
· I took the 2 boys out of the shower. Told Mr E what happened, he said V collapsed, I didn’t see what happened.
· In the last couple of months things have got worse.
· I have FLC orders in relation to my older 3 kids – Mr E never hits the other kids.
· Never seen him hit them, he does yell at them trying to make them tougher.
· Told him not to discipline the kids.
· Never talked to anyone as no one would believe me.
· V comes every second week Mon – Wed and he would yell and hit him.
· I was trying to be as protective as possible.
· I didn’t see the incident when W’s clavicle was broken. Allegedly his dad put him over his shoulder and dropped him.
· My older kids see their dad every other weekend supervised at L Group.
· Ms M Calvert is my mum she lives in N Town.
· Mr O Calvert is my brother; I’m going to go with the kids and live with him in P Town, CSO K discussed with [the mother] the need to have the children seen by a Dr for a full health appraisal. She was agreeable to this and requested to attend the appointments.
(Emphasis added)
The mother was interviewed again on 15 May 2015. Relevantly the Departmental records note as follows:
Relationship with Mr E
· Mr E has never been aggressive towards me
· I left him in 2013/2014 but I was being heavily influenced by Mr Madock at that time.
· I’ve had no contact with Mr Madock since April 2014
· I don’t want anything to do with Mr E or a person like that or Mr Madock. I’m protecting my kids, they’re my life.
Mr E’s parenting/relationship with V
· A lot of Mr E’s (sic) smacking of V is not normal. When he smacks him it’s like someone smacking a rug to get the dust out of it.
· I have tried to intervene in the past and Mr E has told me to go away.
· I wanted to leave but I couldn’t leave with our 4 mth old daughter.
· He was always around me and knew everything I was doing; I couldn’t tell anyone.
· Mr E’s behaviour changed in March 2015 when he stopped working and V starting sleeping over.
· Mr E’s expectations of V were too high; he expected him to act like a 6 year old.
· I tried to take V away in the past but Mr E would snatch him back.
· V wouldn’t eat dinner. Mr E would tell him multiple times to eat and then he would get angry with him. He would start smacking him; not normal smacking. He hit him 2-3 times on the bum on the nappy.
· Sometimes V would be standing and Mr E hit him so hard he would fall to the ground. V would whimper and Mr E would smack him again for whimpering.
· Sometimes my children were there but not all the time; they would’ve heard it.
· I was powerless, wish I could’ve done so much more.
· Wish I told someone, anyone; my counsellor but it was a very controlled environment.
(Emphasis added)
The mother, when confronted with these previous versions, denied that she could recall saying such things. My impression was that she was honest in that denial, but nonetheless, her evidence in that regard is not accurate.
Dr B was asked, initially in the context of the mother’s fixated belief that the father was abusing the children, whether, rather than this being evidence of alienation of the children from the father, it might rather be the mechanism by which she copes. He agreed with that proposition, and said that it was likely a psychological defence, to project her own guilt onto the father. I inquired of him whether that might also explain her suppression, or loss of memory, of the detail of the events that occurred on the night of 13 May 2015, and his response was to the effect that denial was a most common defence mechanism, and can alter a person’s actual belief of what occurred.
Although the evidence does not enable me to reach any positive conclusion, I am quite concerned the mother, particularly insofar as there was physical abuse involved, has potentially transferred much of what she witnessed Mr E do, but did not adequately respond to, onto the father.
Further, I have some concerns in relation to the mother’s reasoning. For instance, she believes, and vehemently resisted any challenge to that belief, that by virtue of the fact that the father had raped her (on her evidence) on two occasions during the relationship, and because she suspected (or perhaps had detected) him accessing legal pornography of teenage girls, that he was therefore a paedophile. On more than one occasion, she said that she had reached that conclusion during some family violence counselling, in relation to the “circle of violence”. She thought that it “all then made sense”, and that the father sexually abusing Y was just a perpetuation of that domestic violence. I regret I could not follow her reasoning, even with her repetition of it under questioning by me.
Dr B in his psychiatric report dated 16 September 2019 at page 28 said as follows:
I have set out my concerns about the mother’s mental health and psychological functioning above. Her personality vulnerabilities are of mild-to-moderate severity but she is vulnerable to experiencing anxiety and low mood when under stress and appears to have some tendency to distort her recollection of events. I would recommend that the mother continue with supportive psychological counselling but would counsel against uncritical acceptance of the history the mother provides since this could serve to reinforce a distorted view of the world and actually increase her anxiety and concerns about the safety of the children. Ideally, any clinician treating the mother should be privy to the facts of the situation (presuming such facts are available). The mother needs to understand that the accusations she makes about the father actually impact upon the psychological well-being of her children and the potential consequences of continuing this behaviour. At this point in time, there is no indication for medication or hospitalisation.
Despite that recommendation, the mother has undertaken no such counselling. She has, in the last couple of months, commenced some form of counselling with a psychologist, but no evidence was led from her before me. Moreover, critically, there is no evidence that objective information, rather than the mother’s own subjective history, was afforded to that therapist. Dr B, in his oral evidence, was adamant that was an essential part of the therapy that he recommended, and that if the therapist only had the mother’s account, it would be inevitably taken as fact, and the therapy which ensues will only reinforce the mother’s beliefs. He thought that an uncritical therapeutic acceptance of the mother’s history was actually likely to further damage her.
However, Dr B retreated from his earlier suggestion made in his report, to the effect that the mother should undergo therapy, as given the further lapse of time, he now thought that the mother’s belief was probably too entrenched to be amenable to any form of counselling. He thought that her belief was likely now too important to the mother’s psychological equilibrium, her coping, and her sense of self. He did not think that even some development of insight would allow her to retreat from her beliefs, which have now become fundamental to her existence.
Further, there was an illogical component to the mother’s belief, namely her insistence that it could only be undone by positive evidence of an absence of abuse. Of course, the sort of proof which she had in mind, namely a paediatric examination, would not exclude sexual assault of Y, although she seemed illogically to think that it would. However the fact that she pressed for an order (if I thought it appropriate) to have such an examination undertaken of Y, is itself worrying. Further, she was adamant that all three children should be psychiatrically assessed, although exactly why, was unclear. Perhaps she thought that it might be more likely to result in disclosures, than the investigations by police had.
Therefore, unlike in some cases, where the court is confronted with a parent who proclaims that they are prepared to entertain the prospect that their belief is wrong, here the mother was, in effect, her own worst enemy, because she roundly rejected every attempt to get her to see another point of view. Unfortunately, Mr G seemed to have a similar view, even to the point of sharing the mother’s desire for a paediatric examination of Y. Having him in the mother’s household is only likely to serve to reinforce her beliefs, and certainly is unlikely to in any way challenge them.
As to the risk which the mother’s beliefs pose, Dr B said that, if she were to continue to seek to elicit, and then pursue, disclosures from the children, it could increase their anxiety and undermine the relationship which they have with the father. For instance, he was troubled that the children may get counselling for abuse that simply had not occurred. He said that it may well cause the children to lose their sense of safety and security which they gained from the father, and could even undermine the children’s placement with the father.
Dr B was not challenged by the mother in relation to this evidence, or indeed any of his evidence generally. Rather, the mother somewhat plaintively enquired of him what was she supposed to do in the face of disclosures. She was not prepared to accept that, they having been investigated by the appropriate authorities, she needed to substantially, if not wholly, discount her belief in the truth of them.
Therefore the only conclusion which I can draw from the evidence is that the mother is likely to continue in her fixated belief that the father has not only in the past abused the children, but is likely to do so again in the future, and will remain ever vigilant to the signs of that, including being highly receptive to any conversation with the children which she construes as containing a disclosure of abuse. I assess that the chances of her continuing to generate such “disclosures” is high, and that there is indeed a risk that the children may thereby have their relationship with the father undermined. Particularly, I cannot overlook that the fact that the mother has only seen the children twice since November 2018, and yet on both occasions she has managed to elicit disclosures from them, although she says that they were spontaneous and unprompted.
Before leaving this issue, I should advert to two contradictory aspects of the mother’s case. The first is that, notwithstanding her belief that the father had abused the children in the past, and continued to pose a risk of real harm to the children, she nonetheless abandoned them to his care in November 2018. That suggests a lack of authentic belief on her part. Likewise, although her orders proposed that the children would live with her, she also proposed that they spend significant periods of unsupervised time with the father. Given her perception of the risk which he poses, it is inexplicable that she would proffer such a regime of orders, and yet even when that contradiction was pointed out, she did not seek to vary the terms of the orders under which she proposed that the father would spend time with them (albeit Mr G did). Notwithstanding those contradictions, I nonetheless formed the view that the mother’s beliefs were genuine, and that she was, on the whole, an honest, if mistaken, witness. However as I pointed out during the course of submissions, her honesty in this respect works counterproductively for her case, in that it only serves to reinforce that she is acting genuinely, rather than maliciously, by raising these matters in relation to the father.
Ultimately I conclude that the mother poses a significant risk of psychological harm to the children by virtue of her fixed belief that the father has abused, and remains a risk of abuse to, the children.
Turning then to the mother’s failures to remove the children from the domestically violent circumstances in which she was living with Mr E, I have already addressed the basic facts. I am well satisfied that what the mother told the authorities in 2015 was accurate, and that it is quite likely that she has subsequently suppressed those memories, because she recognises, or at least unconsciously recognised, that she indirectly caused the harm to V, and that she placed her own children in harm’s way, perhaps exactly the same harm that was meted out to V. There is therefore some risk, if she were to be in another domestically violent relationship, that she may again fail to remove, or otherwise protect, the children from exposure to harm. However whilst this is a live risk based on her past behaviour, I do not see it as particularly significant in this case, given her presently apparently stable and non-violent relationship with Mr G.
The third risk was her past history of impulsive decision making in relation to her own domestic circumstances. Firstly, there was her relationship with Mr E, with whom she said she fell in love “within a week,” and thereafter quickly moved to live with him. The second is her relationship with Mr G, with whom she had only met in June 2017, and yet only a little less than three months later, and, according to her and Mr G, without them having formed any relationship other than friendship, she was contemplating, and indeed saying that she had decided, to move to H Town to live with him. Other than spending a couple of weeks with him in the three months since she first met him, she did not know him. She had never been to his house. Although her brother was a friend of Mr G, it does not seem as though the mother knew any of Mr G’s friends. It was a most impulsive decision to move young children from North Queensland to Melbourne, to live with a man whom she virtually knew nothing about.
I am satisfied that the mother is likely prone to impulsive decision making in relation to her own domestic relationships, and circumstances. However again, I assess the risk which this poses to the children as presently ameliorated by virtue of her relationship with Mr G, albeit one which may present itself in the future. Beyond that, the nature of the risk, and the magnitude of the potential harm which may ensue, are too amorphous to further assess.
The fourth species of risk arises from the mother having, in the past, experienced flashbacks, to the point where when living with Mr E, at times she was under the belief Mr E was in fact the father. She claims that these flashbacks were the result of post-traumatic stress disorder, although Dr B doubted that she qualified for such a diagnosis. However she was not challenged that, during these flashbacks, she was unable to properly care for the children, and retreated to the bedroom, leaving the care of the children to Mr E. Although there is little evidence of her presently suffering such flashbacks, I note she continued to claim she was suffering them during her interview with Dr B, and there was no evidence from her as to when they ceased (if indeed they have). Plainly however, there is a risk to the children, if they were in her care, and she were to experience some dissociative episode or flashback, to the point where she mistakes the identity of people. However again it is very difficult to make any quantitative assessment of the magnitude of the risk, or the likelihood of it arising; that said, it cannot be altogether ignored.
The final area of risk associated with the mother relates to her abandonment of the children in November 2018. She says she did so because she was homeless. I must say I regard that evidence with some scepticism. Moreover, it is very difficult to see that homelessness per se would be an adequate justification for placing children with someone whom you believe to have perpetrated sexual, physical and emotional violence of them in the past, and is a real risk of continuing to do so. I have a deep suspicion that the mother was then prioritising her needs to have a domestic relationship with Mr G, over her children’s interests. I am also strongly sceptical of the mother’s evidence that her decision to leave for Victoria was wholly uninfluenced by the Family Report, which recommended that the children change from her care to the father’s. Even if those two matters were unconnected, the mother’s behaviour in passing the children to the father, remains highly concerning.
Combining all of those risks, and making an overall risk assessment, is extremely problematic. Many of the risks are amorphous and unable to be other than identified. However it is plain that the most serious risk arises from the mother’s intractable beliefs in the relation to the father. As I have said, the unchallenged evidence is that risk of harm is high, and that such harm as it eventuates, could be significant. Moreover, as explained by Dr B, it is now likely that the risk cannot be mitigated by the mother undertaking psychiatric or psychological treatment. It is likely now a permanent risk. The risk is, however, proportionate to the amount of time that the mother spends with the children, and might also be mitigated by supervision (although somewhat curiously, Mr J did not think that supervision was a sufficient mitigatory strategy).
I have considered whether or not the description “unacceptable” is appropriate to describe the risk posed by the mother in this case. I would have to say that I am disinclined to apply that descriptor, although I accept that the level of risk which the mother poses is approaching unacceptable. Although it might seem semantic, I would prefer to describe the risk which the mother poses to the children as an appreciable and real one. Further, I am not persuaded that it cannot be properly mitigated, as I shall discuss shortly.
ISSUE 3 – BENEFIT TO CHILDREN FROM MEANINGFUL RELATIONSHIP WITH EACH PARENT AND MEANS OF FACILITATION
Ultimately this issue did not prove to be particularly controversial. Mr J’s unchallenged evidence was to the effect that, but for the mother’s fixed belief in relation to the father’s past abuse, and the risk which he thereby still poses to the children, they likely would benefit from a meaningful relationship with her, which would best be facilitated by them spending as much face-to-face time, and communicating, with her as the circumstances permitted.
In relation to the father, he had no such caveat, and thought that the children would benefit from a meaningful relationship with him, and from them spending time and communicating with him.
I accept all of that evidence.
ISSUE 4 – WOULD EACH PARENT FACILITATE MEANINGFUL RELATIONSHIP BETWEEN THE CHILDREN AND THE OTHER PARENT
Based upon the mother’s belief of the father’s past conduct, and the risk which she believes he poses to them still, Mr J’s evidence was that the mother would not be likely to facilitate a meaningful relationship between the father and the children if they were in her primary care. I accept that is likely the case. That said, I do not overlook the evidence that she abandoned the children to the father’s care in November 2018, but I do not see that as actively seeking to facilitate a relationship.
As to the father, Mr J’s evidence was that, if the mother was to continue to promulgate claims of abuse, which saw the father being continually investigated by police and other authorities, then he would likely be resentful, and resistant to facilitating a meaningful relationship between the children and the mother. However he thought that, in the event that the mother amended her ways and did not do so, the father would likely facilitate a meaningful relationship.
That evidence was unchallenged, and I accept it.
ISSUE 5 – PARENTING CAPACITY OF EACH PARENT AND ABILITY TO MEET CHILDREN’S NEEDS
Mr J’s evidence was that the mother’s principal deficit was her demonstrated inability to protect the children in the past, when she had placed the children in clear danger whilst living with Mr E. He thought that there were significant issues with her capacity to meet the needs of these children. When I challenged him in relation to that evidence, insofar as the mother appears to be undertaking a reasonable job of parenting Z, he thought there may be a very different story in play, given Z had a totally different history to the other children, and he thought that the mother’s parenting capacity may be different in relation to that child, compared to the others. I must say I had some difficulty understanding that evidence. However, in the past, the mother has plainly not acted sufficiently protectively of the children when she was living with Mr E, and her fixed and unchallengeable belief in relation to the father’s risk of the children necessarily means that there is some impediment in her meeting the emotional needs of the children. However I do not understand it to be suggested that she is incapable of meeting their physical or intellectual needs, on a basic, day-to-day level.
As to the father, Mr J’s understanding was that the children were flourishing in his care, which likely demonstrated that he was able to meet their needs, and evidenced adequate parenting capacity. I accept that evidence.
ISSUE 6 – IMPACT ON CHILDREN OF EACH PARTIES’ PROPOSAL
At the time that Mr J gave his evidence, the father’s proposal, and indeed the Independent Children's Lawyer’s proposal, were not finalised. However one of the scenarios which I canvassed with him, when discussing the issues, was that there might be a removal of face-to-face time between the children and the mother. He thought that would actually be better for the children, and whilst the children might need help to understand why they were no longer seeing the mother, he thought that they would ultimately cope. Whilst acknowledging that this outcome was the lesser of two evils, in that the children would substantially lose their relationship with their mother, nonetheless he thought it was the preferable choice.
As to the mother’s proposal, he was strongly opposed to it. He thought that the children’s psychological health would be damaged if they went to live with her, and he wondered whether or not they would actually lose all contact with the father, given the mother’s antipathy to him arising from her fixed beliefs.
On any view, the mother’s proposal would see momentous change for the children. They would go to live with a man whom they know, but have never lived with, in a house where they have never stayed, in a city and region which they have never visited, and change schools to one where they have no established peer group, and no friends.
It would be an enormous change. It is not suggested that the mother has any relatives in the vicinity with whom the children are familiar, or that it would otherwise be anything other than a wholesale uprooting of the children from their established routines, friendship groups, and schools. All of that is without including the evidence of Mr J as to the risk to their psychological health, simply by virtue of residing with the mother. I am satisfied that the impact on the children of the mother’s proposal would be significant and adverse.
ISSUE 7 – COULD COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY
Ultimately neither party sought an order for equal shared parental responsibility, as each conceded that their communication could not possibly support it. This issue therefore evaporated.
SECTION 60CC CONSIDERATIONS
It will be appreciated that I have already addressed both primary considerations, and a number of additional considerations when traversing the issues. Nonetheless I make the following further observations in relation to some of the additional considerations.
I have no evidence of the children’s views, but I am not satisfied that they would be deserving of weight in any event. Particularly it is said that W has some cognitive delay, and has the cognition of an eight year old child.
The children have relationships with their grandparents, but they did not feature in any way in this litigation.
It cannot be ignored that the mother, in effect, abandoned the children by moving to H Town in November 2018, and thereby practically forfeited the opportunity for decision making, and spending time with the children, although to her credit, she did maintain a communication regime.
The father appears to be solely responsible for the costs of raising the children.
On either party’s case, there is practical difficulty and expense in the children spending time with the other parent. That is because neither of these parties is in a position to regularly fund travel between D Town and Melbourne. However, maintaining communication is not as problematic.
The mother claims that there was family violence during the relationship, and that there has been family violence perpetrated upon the children by the father subsequently. The evidence does not permit me to make positive findings about those claims, and hence I am not persuaded on the balance of probabilities that they occurred.
Interim family violence orders have applied, but there is little that I can infer from those.
It would plainly be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to these children, given that the parties have been litigating in relation to them since 2014.
PARENTAL RESPONSIBILITY
It was conceded by both parties that parental responsibility must be afforded to the parent with the primary care of the children. As shall be seen, that will be the father. It therefore follows that there should be an order for sole parental responsibility in favour of the father.
WITH WHOM SHOULD CHILDREN LIVE
This was the primary battleground between the parties. With their assistance, during the course of the hearing, I identified the following points as either favouring the children living with the father, or being contrary to the children living with the mother:
(a)The children have a good relationship with the father, from which they derive nurture, comfort and support;
(b)Other than statements the mother says that the children have made to her, there is no reason to think the father’s household poses any significant risk to the children;
(c)The mother poses an appreciable risk of harm to the children, given:
·Her apparent inability to entertain the possibility that the father has not abused the children, which is likely to see her continue to act consistent with her beliefs;
·Her past failures to remove them from domestically violent, and even dangerous, environments;
·Her past impulsive decisions in domestic contexts, eg intending to move interstate to live with a “friend” whom she had only known for less than three months;
·Her past incapacity to care for the children when experiencing “flashbacks”, albeit for which she has since received some treatment;
·Her past abandonment of the children, (albeit said to be because of her homelessness);
(d)The children would likely obtain benefit from a relationship with the father, and living with him is probably the best means of them obtaining that benefit;
(e)The father is more likely to be the parent who facilitates a relationship between the children and the other parent;
(f)Other than the mother’s claims, there is no reason to think that the father does not have the capacity to provide for the children’s physical, emotional and intellectual needs;
(g)Given that the children have been living with the father since November 2018, continuing to do so is likely to have the least adverse impact upon them, whereas moving to live with the mother and her household might effect significant disruption to them, especially since they have no friends or relatives in Victoria, or familiarity with their new surrounds.
On the other hand I identified the following matters as favouring the children living with the mother, or being contrary to them living primarily with the father:
(a)The children have a good (albeit perhaps unhealthy) relationship with the mother, and are familiar with the other members of her household;
(b)Unless they live with the mother, given her financial circumstances, it is unlikely they will otherwise experience much face-to-face time with her;
(c)It cannot be excluded that the father’s household poses some risk of harm to the children;
(d)But for the mother’s belief that the children have been abused by the father, it is likely that they would obtain benefit from a relationship with her, and living with her would likely the best means of them obtaining that benefit;
(e)It is likely to be the only way they will have any meaningful relationship with their half sibling, Z.
(f)The father may prove reluctant to facilitate a relationship between the children and the mother, especially if she continues to make allegations of him abusing them;
(g)Whilst there are some real question marks over the mother’s parenting capacity, she does presently have the care of a child, and has in the past been the primary carer of the children;
(h)The children might benefit from a “fresh start” in a new city.
Weighing those competing considerations in the balance tells very strongly in favour of the children primarily living with the father. I place particular weight upon the risks which the mother poses, which now appear likely to be permanent and intractable, the degree of disruption to the children’s lives if there were to again be a change in their primary care (particularly given their abandonment by the mother in November 2018) and the fact that the father is more likely to facilitate some residual relationship between the children and the mother, than she would be between them and the father.
There will therefore be an order that the children live with the father.
MOTHER’S TIME AND COMMUNICATION WITH THE CHILDREN
I have already noted that, when the evidence closed, there was a disparity between the position of the father and the position of the Independent Children's Lawyer. Particularly, the father was seeking orders that the mother have supervised time with the children in D Town whenever she attended, and that she have twice weekly communication with the children by Skype or other electronic means. On the other hand, the Independent Children's Lawyer was seeking orders that the father be able to determine the time and communication between the children and the mother. When I pointed out to counsel for the Independent Children's Lawyer that we already knew what the father was prepared to concede the regime should be, and hence there was no reason not to make orders as the father sought, the Independent Children's Lawyer expressed concern that the real evil would be unsupervised time. There was therefore some recasting of the proposed orders by the Independent Children's Lawyer, which in their final form, found acceptance by the father, and hence their positions aligned.
For her part, in the event that the children lived with the father, the mother identified that she wanted to have orders for the children to spend half of school holidays with her in Melbourne.
The reality is that the mother’s proposal is not practical, in that the parties could not possibly afford to fly either themselves and three children, or when the children are able to travel independently, three children, backwards and forwards from D Town to Melbourne four times a year.
However there is a more fundamental difficulty with the mother’s proposal, and that is that the level of risk which she poses, given her intractable belief as to the risk to the children when they are in the father’s care, which makes unsupervised time presently not in their best interests. It simply cannot be overlooked that on the only two occasions that the mother has seen the children since November 2018, she has elicited disclosures from them of abuse at the father’s hands. I regret to say that it predicts that, in the event that the mother were to spend any further unsupervised time with the children, she is likely to extract similar disclosures again, and her clear evidence is that she will then report them to the relevant authorities, and seek that they be investigated. This is likely to be the pattern of any and every occasion that the children spend unsupervised time with her. Therefore unsupervised time cannot be countenanced.
The only other live proposal is that of the father and the Independent Children's Lawyer. Although I raised with the parties the prospect that there might be interim orders, so as to try and encourage the mother into undertaking the psychological assistance which Dr B had recommended in 2018, two points tell against that. The first is that she has not availed herself of the opportunity to date. The second is Dr B’s pessimistic evidence that it is now likely too late for that therapy, as the belief that the father has sexually and otherwise abused the children has become a fundamental part of who the mother is, and essential to her coping. In any event, I cannot overlook the desirability of concluding these proceedings, and not having the parties in a holding pattern of interim orders for a further 12 months.
There is then the unfortunate phrasing of the order which the father and the Independent Children's Lawyer seek, in that it really leaves it to the father to determine what, if any, time and communication the children should have with the mother. As unsatisfactory as such an order is, nonetheless there are two matters to be said in its favour. The first is that father has been willing to facilitate unsupervised time between the mother and the children, and maintain a regime of communication between her and them, even though the then extant orders did not require him to. That speaks strongly to him likely continuing facilitation of some species of relationship between the mother and the children. The second matter is that the father’s position, even at the end of trial (albeit subsequently changing) was to continue to afford the mother supervised time, and to keep the present communication regime. I do not think it likely that the father therefore will simply close down the children’s relationship with the mother. Rather I am satisfied that he will likely continue to seek to allow the children to maintain some species of relationship with the mother, although in a way which protects them from the risk of harm which she poses to them. Therefore, as unsatisfactory as it is to, in effect, wholly abdicate the determination of the scope and nature of one parent’s relationship with the children to the other, there seems no other viable option in this case.
Whilst I could make orders as the father had originally sought of my own volition, (and plainly they were sufficiently raised with the parties), there are a number of variables. The first is that the children may wish, as they age, to communicate with the mother other than at set times and as a group. Common experience would suggest that is likely. The second is that as the children age, the father may well form the view that supervisors other than a Contact Centre could be utilised. Therefore the flexibility which the father’s form of order has inherent in it is one of its few attractions. It will allow the father to mould the nature of the children’s relationship with the mother to suit both her functioning over time, and the children’s wishes.
Therefore, although not without some reservation, I conclude that the orders sought by the father and the Independent Children's Lawyer are in the children’s best interests, and will make them.
OTHER ORDERS
Otherwise I am satisfied that the balance of the orders sought by the Independent Children's Lawyer and the father are in the children’s best interests.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding one hundred and thirty nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 April 2020.
Associate:
Date: 8 April 2020
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