Challis and Challis

[2018] FamCA 773

FAMILY COURT OF AUSTRALIA

CHALLIS & CHALLIS [2018] FamCA 773

FAMILY LAW – CHILDREN - Best interests – Where the mother concedes that the children do not face an unacceptable risk of harm from their father – Where the parties consent to equal shared parental responsibility and for the children to live in a week about arrangement from 2019 – Where the proposed consent orders are in the best interests of the children.

Family Law Act 1975 (Cth)

M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Ms Challis

RESPONDENT: Mr Challis

INDEPENDENT CHILDREN’S LAWYER: Ms Sexton

FILE NUMBER: LEC 497 of 2015

DATE DELIVERED: 27 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 26 - 27 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Frizelle

SOLICITOR FOR THE APPLICANT: McVittie Legal

COUNSEL FOR THE RESPONDENT: Ms Oakley

SOLICITOR FOR THE RESPONDENT: Small Myers Hughes

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Lismore Family Law

Orders

1. The mother and father have equal shared parental responsibility for all major long term issues of the children, X born … 2003 and Y born … 2008 (“the children”).

2. The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision, however, they are not required to consult with each other about the daily care of the children.  The types of decisions about which the parents are required to inform and consult include, but are not limited to:

   (a)       Changing the children’s names;

   (b)       Relocating the place of residence of the children;

   (c)       Changing the children’s school;

   (d)       A significant medical intervention for the children.

3. Unless otherwise agreed between the parties in writing, the children shall:

   (a)       Live with the father:

   (i)From 10.00am on 29 September 2018 until 10.00am on 6 October 2018;

   (ii)Until the commencement of Term 2, 2019 each alternate weekend, from after school Thursday until before school Tuesday;

   (iii)Upon commencement of Term 2, 2019 in each alternate week from the conclusion of school upon the first Friday of that school term until the commencement of school the following Friday and each alternate week thereafter; and

   (iv)Commencing in 2018, for one half of the December/January school holiday periods, being the first half in even numbered years and in alternate years thereafter and the second half in odd numbered years an in alternate years thereafter;

   (b)       Otherwise live with the mother.

4. Unless otherwise agreed between the parties in writing, the children shall spend time with:

   (a)       The mother on Mother’s Day from 10.00am to 5.00pm if not otherwise in her care, and on the mother’s birthday from 10.00am to 5.00pm if a non-school day, of from after school to 6.00pm if a school day (and that time pursuant to paragraph (3)(a) be suspended);

   (b)       The father on Father’s Day from 10.00am to 5.00pm if not otherwise in his care, and on the father’s birthday from 10.00am to 5.00pm if a non-school day, of from after school to 6.00pm if a school day (and that time pursuant to paragraph (3)(b) be suspended).

5. The:

   (a)       Parent with whom the children are not living in that week shall be at liberty to communicate with the children by telephone between 6.30pm and 7.00pm on Tuesdays and Thursdays;

   (b)       Children shall communicate with their parents at all such reasonable times as the children reasonably request;

   and for the purposes of this Order, each parent shall:

   (c)       Ensure that the children are able to access the telephone to make the call;

   (d)       Ensure that the children have privacy during the conversation; and

   (e)       Facilitate any call that the children request, without questioning the children as to their basis for wanting to make a call.

6. That except as otherwise ordered, the father and mother shall collect the children from and return them to school during times that they have the children.

7. That if the children are not attending school the children shall be collected by the father or his nominee from the mother or her nominee at the commencement and conclusion of the time with the children at the Woolworths in B Town.

8. That the mother and father shall:

   (a)       Keep the other parent informed at all times of their residential address and contact telephone number;

   (b)       Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide the other parent with information that they are lawfully able to provide about the children;

   (c)       Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.  This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.

9. That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of the school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).

10. That during the time the children are with either parent, that parent shall:

    (a)       Respect the privacy of the other parent and not question the children about the personal life of the other parent;

    (b)       Speak of the other parent respectfully;

    (c)       Not denigrate or insult the other parent, the other parent’s partner or family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent, the other parent’s partner or family in the hearing or presence of the children.

11. That the parties shall forthwith retain Ms C to meet with the children (and the parents if Ms C deems it necessary) to explain the Orders to the children and to provide the children with generic self-protection education, with the costs of the session/s to be met by the father.

12. That the independent children’s lawyer be discharged.

13. That all previous parenting Orders be discharged and that each party pay their own costs.

AND IT IS NOTED THAT

A.Each of the parents have been represented by Counsel and solicitor during the course of the trial conducted before Justice Carew in the Family Court of Australia at Brisbane that commenced on 26 September 2018 and was concluded by consent after the mother had been cross-examined and prior to the father, any of his witnesses, of the author of the family report being cross-examined.

B.The mother accepts the father does not present an unacceptable risk of sexual, physical or emotional harm to the children.

C.The parents agree that neither of them will discuss the allegations of the children being at risk in the father’s care with the children.

D.The parents agree to consult with Ms C as to how best to respond to any questions the children may have as to the previous or future parenting arrangements for the children.

E.In the event that the parties are in close proximity on each of the children’s birthdays, and Christmas Eve, they agree to facilitate time with the other parent.

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 Challis & Challis 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 BRISBANE

FILE NUMBER: LEC 497 of 2015

Ms Challis

Applicant

And

Mr Challis

Respondent

EX TEMORE REASONS FOR JUDGMENT

1. This matter has a complicated history and was listed before me for trial for three days commencing yesterday. That listing came about as a result of a successful appeal by the father on 13 November 2017 which ultimately was conceded by the mother at the hearing of the appeal. The Full Court comprising Thackray, Strickland and Murphy JJ made the following comments inter alia when allowing the appeal and remitting it for rehearing before a judge other than the original trial judge (per Thackray J):

   …

   3.We received written submissions from all parties so the Court had a thorough understanding of the matter prior to the commencement of the hearing.  In those submissions, the Independent Children’s Lawyer (“ICL”) readily, and in my view properly conceded, that there were errors as identified by the appellant in his submissions.  Nevertheless, by one means or another, an effort was made by the ICL and the respondent to defend his Honour’s decision.

   4.However, in the course of oral argument, Mr Cameron, counsel for the respondent, made a series of very proper concessions in what I consider was in accordance with the finest traditions of the bar.  He accepted there were significant difficulties with elements of his Honour’s reasons which, having been identified, inevitably led to the outcome the parties have now agreed.  It is to the great credit not only of counsel but also the parties to have come to this agreement.  The parties themselves may have difficulty in understanding all that has transpired, but what has occurred today is entirely appropriate because there were insurmountable difficulties with his Honour’s reasons.

   5.First, his Honour made a positive finding of sexual abuse against the appellant.  That is a finding of very great gravity.  That finding was neither sought by the parties nor was it open on the evidence before his Honour.

   6.Secondly, some specific findings were made, which were, with respect to his Honour, who gave ex tempore reasons for judgment, contrary to the evidence.

   7.There may well have been other errors as claimed; however, given that the matter is to be remitted for rehearing by another judge, it would be inappropriate to express any other opinion as to the validity of those complaints, as what I have said already is sufficient to justify the making of the orders that have just been made.

   (emphasis added)

2. The lower court judgment date was 2 June 2017 and reasons for judgment were delivered ex tempore after a three day trial.

3. The matter was transferred to this Court on 21 November 2017 and on 10 May 2018 I made trial directions listing the matter for trial before me.

4. One particular order that I made required each party to arrange a time with the Registry to inspect all documents produced to Court pursuant to subpoena as soon as reasonably practicable. This is a standard order made by me as I have become somewhat dismayed by parties maintaining positions at trial that may not be sustainable when full knowledge of all evidence becomes apparent and regularly parties do not seem to be aware of all relevant evidence or it might be they have closed their minds to all but evidence that supports their point of view.

5. In any event and despite this very clear requirement the mother conceded during cross-examination that she had not done so. Her solicitor accepts responsibility for this failure but however it occurred it was most unfortunate and frankly alarming that not only one trial but a second trial proceeded with the mother being apparently oblivious to significant relevant evidence.

6. It is all the more alarming when one considers the observations made by the Full Court that findings made by the previous trial judge were not open on the evidence.

7. In May 2018, the following significant issues were identified as relevant to this trial, namely,

a)Whether there is an unacceptable risk of harm to the children from the father by reason of his alleged sexual abuse of the mother’s eldest child, Ms D (now 19 years old); and

b)Whether the parents have the capacity to make joint decisions about major long term issues.

1. The issues as identified were confirmed at the commencement of the trial before me yesterday.

2. The mother sought an order for sole parental responsibility for X (15) and Y (10) and for the children to spend only supervised time with their father. The supervisors have jointly been the maternal grandparents since the first Order was made in October 2015.

3. The father sought an order for equal shared parental responsibility and alternate weeks and holiday time with the children unsupervised.

4. I stood the matter down at 4.15pm yesterday afternoon and directed the mother to review the subpoenaed material which had been tendered by consent into evidence yesterday.

5. Today the parties asked for time to have discussions and reached an agreement.

6. What no doubt became apparent to the mother and prompted her concession for the first time that her allegations against the father may have been mistaken was that Ms D was experiencing significant personal issues relating to underage sex with a boyfriend, bullying at school, extreme stress as a result of being caught in the middle of the dispute between her mother and step-father, truancy, risk taking behaviour etc. at the time the allegations were first raised by the mother.  

7. The father has always denied any wrongdoing but that denial, on its own, is not determinative.

8. In cases involving allegations of abuse while a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”,[1] where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[2]

   [1] See M & M (1988) 166 CLR 69 (“M & M”) citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [2] See M & M (supra) and see also N and S and the Separate Representative (1996) FLC 92-655.

9. X and Y have a right to be cared for by both parents and in fact enjoy spending time with their father but greater weight must be given to the need to protect them from physical or psychological harm.

10. In deciding whether to make a particular parenting order, the Court must regard the best interests of children as the paramount consideration (s 60CA).

11. The fact that the parents’ consent and are supported by the independent children’s lawyer is a powerful yet not determinative factor in considering whether or not to make the order sought.

12. The best interests of the children are determined by reference to primary considerations, namely, the benefit to the children of having a meaningful relationship with both parents and as already noted the need to protect the children from any physical or psychological harm, and additional considerations including any views expressed by a child, the nature of the relationship between a child and each parent, the past involvement of each parent with a child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the children etc. (s 60CC).

13. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order. No such protections were sought in this case.

14. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

15. Section 61DA provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In this case both parents and the independent children’s lawyer urge upon me an order for equal shared parental responsibility. I consider that to be appropriate despite the history. It is clear that despite their dispute they have been able to communicate and agree about some issues about their children’s care and they wish to make those decisions jointly in the future. Each of them have made significant concessions either in the lead up to or during this trial.

16. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

17. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

18. While only the mother’s evidence has been tested before me, I have had the advantage of reviewing the material relied upon by each party including subpoenaed records. It is telling in my view that while the mother found the experience of cross examination difficult it gave her pause for thought about her stated beliefs up to this point in time and her attitudes to the father.

19. It is dismaying that adults repeatedly present to this Court stating that they make allegations against their former husband or wife or partner because ‘they believe their child’ but in truth it is their own interpretation of what a child says that they ‘believe’.

20. Sexual abuse of a child is an abhorrent crime but the mere making of an allegation should not impose on children a lifetime of supervision. It is necessary to carefully consider the evidence, assess it and evaluate it, which the mother has now done in the full knowledge that she finally has all the bits of the puzzle. To her credit she has made the concession that her children do not face an unacceptable risk of harm from their father and I can only hope that both parents can move on to make the best possible decisions for their children into the future.

21. That should not involve blame. It should involve forgiveness and acknowledgement that they have jointly brought two children into this world and no one loves them more than they do. The mother should be supported in this decision by her parents who likewise have not had the full story. What the mother chooses to share that with them is of course a matter for her.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 27 September 2018.

Associate:

Date:  28 September 2018