Chou and Parsons
[2017] FamCA 65
•10 February 2017
FAMILY COURT OF AUSTRALIA
| CHOU & PARSONS | [2017] FamCA 65 |
| FAMILY LAW – CHILDREN – Magellan – Best Interests of the children – Where allegations of family violence are not proven – Where the allegations of sexual abuse are not proven – Where allegations of physical abuse and neglect are not proven – Where the conduct of the father in making allegations is of concern – Where there is no unacceptable risk to the children – Where the accuracy of the parents’ evidence is questionable - The children live primarily with the mother – The children spend substantial and significant time with the father – The mother have sole parental responsibility – There be a change of the children’s surname. |
Births Deaths and Marriages Registration Act 1995 (NSW) s 28(5)
Evidence Act 1995 (Cth) s 140(2)(c)
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61DA, 64B(2), 65DA(2), 69ZX |
| Deiter & Deiter [2011] FamCAFC 82 Parson & Chou [2016] FamCA 3 Parson & Chou (No.2) [2016] FamCA 12 Reynolds & Sherman [2016] FamCAFC 240 W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235 |
| APPLICANT: | Ms Chou |
| RESPONDENT: | Mr Parsons |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Vincent |
| FILE NUMBER: | PAC | 4424 | of | 2013 |
| DATE DELIVERED: | 10 February 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 22, 23, 24, 25 February 2016, 4, 5, 12 July 2016, and 17 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fermanis |
| SOLICITOR FOR THE APPLICANT: | Rafton Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Breeze |
| SOLICITOR FOR THE RESPONDENT: | Blanchfield Nicholls Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Watts McCray Lawyers |
Orders
That all prior Parenting Orders concerning the children:
(a) B born … 2012 (‘B’); and
(b) C born … 2013 (‘C’).
be discharged.
That the mother have sole parental responsibility for the children subject to Order (16).
That the mother consult with the father in relation to the enrolment of the children in school, prior to finalising any decision in relation to such enrolment, and noting the father’s preference to have the children be educated in the private school system.
That the mother do all things and sign all documents necessary to ensure that the father be entitled to receive any such information as he may request from the preschool and/or school attended by the children or either of them from time to time, being such information that is ordinarily sent to parents, including but not limited to newsletters, reports, details of parent teacher interviews, details of any assemblies, school carnivals and other special events.
That the mother inform the father of any significant medical treatment proposed to be administered to either of the children, giving the father as much notice of such proposed treatment as is reasonably practicable.
That each parent have responsibility for the day to day care of the children while the children are in each party’s care.
That each party notify the other in writing, as soon as reasonably practicable, of any serious illness or injury suffered by the children or either of them while in that parent’s care, as well as of any medication or ongoing treatment prescribed.
That the children live with the mother.
That the children spend time with the father as follows:
(a) From the date of the orders until 10 February 2020:
(i)During all school holiday periods for the school attended by B, for two (2) separate four (4) day block periods, the first from the conclusion of school on the last day of term and the second commencing at 9.00am on the second Sunday of the school holiday period;
(ii)At all other times for five consecutive nights from the conclusion of school/pre-school on the first Friday of the school term until the commencement of school Wednesday and in the same pattern each alternate week thereafter;
(b) From 11 February 2020:
(i)During all Term school holiday periods for the school attended by B, for a seven (7) day period, commencing at the conclusion of school on the last day of Term in 2020 and each alternate year thereafter, and commencing at 9.00am on the second Sunday of the school holiday period in 2021 and each alternate year thereafter;
(ii)During Christmas school holiday periods for the school attended by B, for seven (7) day block periods, commencing at 9.00am on the first, third and fifth Sundays of the school holiday period in 2021 and alternate years thereafter, and on the second and fourth Sundays of the school holiday period in 2022 and alternate years thereafter;
(iii)At all other times for five consecutive nights from the conclusion of school/pre-school on the first Friday of the school term until the commencement of school Wednesday and in the same pattern each alternate week thereafter;
(iv)At any other times as may be agreed between the parties.
That for the purpose of these Orders, all school holiday periods for the school attended by B shall be defined as commencing at 3.00pm on the last day of school for that Term for students and concluding at 3.00pm on the day prior to the children returning to school for the next school Term.
That notwithstanding any other Order, the children spend time with each of the parents for special occasions as follows:
(a)For Christmas 2017 and each alternate year thereafter, with the father from 6.00pm on 24 December until 2.00pm on 25 December, and with the mother from 2.00pm on 25 December until 6.00pm on 26 December;
(b)For Christmas 2018 and each alternate year thereafter, with the mother from 6.00pm on 24 December until 2.00pm on 25 December, and with the father from 2.00pm on 25 December until 6.00pm on 26 December;
(c)For Easter each year, with the father from 6.00pm on Easter Saturday to 6.00pm on Easter Sunday;
(d)For Chinese New Year each year, with the mother from 6.00 pm on Chinese New Year’s Eve until 6.00pm on Chinese New Year’s Day;
(e)On Father’s Day each year, with the father from 6.00pm on the day prior to Father’s Day until 9.00am on the day following Father’s Day;
(f)On Mother’s Day each year, with the mother from 6.00pm on the day prior to Mother’s Day until 9.00am on the day following Mother’s Day;
(g)On B’s birthday each year, with the parent in whose care the children would not otherwise be, from the conclusion of school/preschool until 5.30pm in the event such day is a school day for B, or from 12 noon until 5.30pm in the event such day is not a school day for B; and
(h)On C’s birthday each year, with the parent in whose care the children would not otherwise be, from the conclusion of school/preschool until 5.30pm in the event such day is a school day for C, or from 12 noon until 5.30pm in the event such day is not a school day for C.
That for the purposes of these Orders, changeover shall occur at any preschool or school attended by the children from time to time and if changeover is not to occur at the commencement or conclusion of school/preschool, then for the purposes of changeover, the mother or her nominee shall deliver the children to the father or his nominee in front of Coles at Westfield Suburb O Shopping Centre at the commencement of the father’s time with the children, and the father or his nominee shall deliver the children to the mother or her nominee at the same place at the conclusion of his time with the children.
That both parties do all things and sign all documents necessary to change the surname of B and C to ‘Chou-Parsons’ with the Registry of Births Deaths and Marriages and with any other body or institution holding records or enrolments in respect of the children or either of them and that pursuant to section 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the children’s names in the form specified above.
That both parties be restrained thereafter from referring in any way to, or calling B by any name other than ‘B Chou-Parsons’ and from using any other name to register or enrol B with any group, body or institution.
That both parties be restrained thereafter from referring in any way to, or calling C by any name other than ‘C Chou-Parsons’ and from using any other name to register or enrol C with any group, body or institution.
That the mother is restrained from changing the children’s names to any name other than those provided for in this order.
Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the children B Chou-Parsons (previously known B Parsons) born … 2012 and C Chou-Parsons (previously known as C Chou) born … 2013, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the children reach the age of 18 years or the Court orders its removal.
That if either party wishes to take the children or either of them outside of the Commonwealth of Australia, they shall first seek the consent of the other and if that is not forthcoming, that party may make an application for Orders permitting the proposed travel outside of Australia.
That both parties be restrained from:
(a) Physically disciplining the children;
(b)Allowing or permitting any other person to physically discipline the children;
(c)Denigrating or allowing any other person to denigrate the other parent or member of the other parent’s family in the presence or hearing of the children;
(d)Making any critical or derogatory comments about the other or any member of the other parent’s family on any form of social media; and
(e)Using recording devices including but not limited to sports glasses, cameras and phones or other devices, at changeover, to take photographs or recordings of the other parent or the children and shall use his and her best endeavours to ensure that no third party who attends changeover uses such recording devices or takes photographs.
That each parent inform the other, and keep the other informed, of his or her current residential address, and notify the other party of any change to such address not less than forty eight (48) hours prior to such change occurring.
That each party inform and keep the other informed of his or her current telephone contact number and notify the other not less than twenty four (24) hours after any such change occurring.
Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a party contravenes these Orders are included in these Orders, annexed hereto.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chou & Parsons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 4424 of 2013
| Ms Chou |
Applicant
And
| Mr Parsons |
Respondent
REASONS FOR JUDGMENT
Introduction
B is a little boy of four and his younger sister C is three. The parents separated after a four year marriage prior to C’s birth and have been unable to agree about the children’s future parenting arrangements.
The children have lived in various parenting arrangements following separation, though for the past year they have lived mainly with their mother and spent regular but limited time with their father for reasons that are dealt with in this judgment.
At the completion of the parenting proceedings which were protracted and heard on various occasions in February, July and August 2016 the Independent Children’s Lawyer (“ICL”) proposed orders that would see the mother have sole parental responsibility for the children who would live primarily with her. Under the ICL’s proposal, the children would spend substantial and significant time with their father increasing over time.
At the end of the proceedings the mother adopted the ICL’s proposal in its entirety.
The father proposed diametrically opposite orders, that he have sole parental responsibility for the children and that they live with him. It is also the father’s contention that the children have been subjected to or exposed to an unacceptable risk of harm in the mother’s care. He proposes that the children spend very limited supervised time with their mother if his contentions are accepted by the court. If these contentions are not accepted it is the father’s case that it is nonetheless in the children’s best interest that they live primarily with him and spend substantial and significant time with their mother.
Background
The mother, who is 30 was born and raised in China. The father who is 36 grew up in Sydney. The parents met in 2008 at a time that the mother was seeking to remain in Australia on protection grounds.
The parents were married in 2009 and began living in a home owned by the father in a western Sydney suburb.
In July 2011, the mother was granted permanent residence as a partner to the father.
The eldest child, a boy named B, was born in 2012.
The relationship between the parties began to deteriorate from about March to May 2013. Both parties allege that the other was violent from about this time and the father alleges that the mother was also physically abusive towards B.
The parents separated in about July 2013 when the mother moved out of the family home and into a refuge with B. At the time the mother was about three months pregnant with the parties’ second child. The mother stayed in two different refugees and then moved to private accommodation. The father did not spend any time with B for six weeks following separation.
In early October 2013, B began living with the father. There is significant dispute between the parties about the circumstances in which this parenting arrangement commenced.
On 15 October 2013, the mother commenced proceedings in the Federal Circuit Court and sought a Recovery Order for B.
On 25 November 2013 the parties were interviewed by a Family Consultant in a Child Dispute Conference. Interim orders were made by consent on the same day that B live with the father and spend time with the mother two nights per week.
In late 2013, the mother gave birth to the second child, a girl who she named C. The father was not consulted by the mother about the child’s name and refers to her as “Y”.
The father did not see C until February 2014, when orders were made for him to spend time with the child for two and half hours on two occasions per week. The orders also provided for B to live with each of the parties on a “two night about” basis, that is, two consecutive nights with each parent with changeover to the other parent occurring on the third day. Orders were also made for the preparation of a Family Report by an external report writer.
From around this time the mother alleges that on many occasions the children were returned to her from the father with unexplained bruises to their bodies. The father makes similar complaints about alleged abuse and neglect by the mother. These allegations made by both parties are dealt with later in these Reasons.
In April 2014 the parenting orders were changed with the result that from this time B lived with each of his parents on a fortnightly rotating basis of three or four days in each parents’ care with between four and seven changeovers each fortnight. Under these orders the father also spent time with C three times per week for three hours on each occasion. Pursuant to the orders the mother was required regularly to undertake travel by public transport with two small children. Changeovers also occurred at hours and in places which were not child friendly, such as 8.00pm at a shopping centre or a police station.
The first family report was released in April 2014. An updated report was prepared in April 2015.
On 13 April 2015, the proceedings were transferred from the Federal Circuit Court to the Family Court and on 15 April 2015 directions were made in relation to a final hearing in the matter which was to commence on 17 August 2015. The trial did not proceed on that date.
On 18 August 2015 an oral application was made on behalf of the father that there be a change in the then current interim parenting arrangements which if made would have seen the children live with him and spend two periods of five hours with the mother each week. It became apparent however that the father was not in a position to pursue this application at the time, though it appeared to be suggested that he may be in a position to do so within a matter of days. The Court made an order that the father was to file an Application in a Case if he sought to change the current interim parenting arrangements for the children. No such Application in a Case was filed.
The then current interim parenting arrangements continued in accordance with the orders until 27 October 2015. On that day when each of the children were to be returned to the mother following time with their father, the father retained the children in his care. He claims that he was concerned about a risk of sexual abuse to which the children were exposed in the mother’s household. For a period of six weeks thereafter, the mother did not see or have any communication with the children.
The father then filed an Application in a Case seeking on an interim basis that he have sole parental responsibility for the children, that they live with him and that they spend time with the mother supervised at a contact centre for two hours a fortnight.
The father’s interim application was listed to be heard on 11 December 2015. On that date the application was not determined as there was insufficient time for the parties to examine documents produced on subpoena and there was a significant issue of additional evidence relevant to the application which was unavailable. Further, at around that time the report writer was due to assess the parties again and produce a further report which was considered likely to have been relevant to the interim application.
For the Reasons given in the first judgment in this matter delivered on 14 January 2016[1] the father’s time with the children was suspended on 11 December 2015 and the children were returned to their mother’s care until the hearing of the interim application could be completed.
[1] Parson & Chou [2016] FamCA 3.
The interim application was determined on 14 January 2016. For Reasons given in a second judgment delivered on that date [2] I made orders as sought by the ICL that the parents have equal shared parental responsibility for the children and that the children live with the mother. Under those orders B was to spend time with his father from 9 am Sunday to 6 pm Monday each week and C was to spend time with the father from 9 am to 6 pm each Sunday.
[2] Parson & Chou (No.2) [2016] FamCA 12.
The final hearing proceeded over four days in February and three days in July 2016. After I had originally reserved my judgment the proceedings were briefly reopened on 17 August 2016 for the admission of further evidence.
The Facts in Dispute
It is the father’s contention that the mother poses an unacceptable risk of harm to the children as there is an unacceptable risk that they may be physically abused or neglected by her when in her care and that they may be exposed to sexual abuse by others when in her care.
The mother also had initially contended in her case that she had concerns about physical abuse of the children in the father’s household, though this was ultimately not pursued and she conceded that she did not believe that the father or paternal grandmother had physically abused the children.
To a large extent the father’s contentions about the risk posed by the mother are based upon his allegations that she has physically harmed the children or failed to protect them from injury in the past and that she has failed to protect them from being sexually abused in her household in the past.
In M v M[3] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
[3] (1988) 166 CLR 69; [1988] HCA 68.
The Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[4] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[4] [2007] FamCA 1235 at [72].
The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[5] and will also be applied when determining the allegations issue of physical abuse in this matter.
[5] See e.g. Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[6], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[6] (2005) FLC 93–235.
Physical Abuse and Neglect
The first question therefore, is whether I am satisfied that the allegations that the mother has physically abused or neglected the children are proven on the balance of probabilities, taking into account the matters set out in s 140(2) of the Evidence Act 1995(Cth).
The father relies upon two affidavits sworn by himself and two affidavits sworn by his mother in the proceedings. The father’s first affidavit sworn in July 2015 outlines his concerns about the mother’s abuse of the children up until mid-2015 when the trial was originally listed to proceed.
The father makes a range of complaints about the mother’s care of the children which he contends support a finding that she either physically abused or neglected B around the time of and following separation.
First the father alleges that in the months prior to separation the mother physically abused B. He says that in May 2013 in the course of an argument between himself and the mother, when B was playing around her legs, the mother slapped the child to his face which made him scream and run away. The father claims that he objected to the mother slapping the child “for no reason” but says the matter was not subsequently discussed. He claims that about one month later in the course of an argument when the mother also physically assaulted him and the child was again at the mother’s legs the mother again slapped the child across his face and made him cry. About a week prior to final separation the father alleges that the mother “again slapped B hard in the face for no reason”. The father says that on this occasion he tried to console the child and that he subsequently left the home as he was concerned for his own safety.
The father then alleges that between July 2013 and September 2013 immediately following separation when B was in his mother’s care, the child contracted a “chronic chest infection” and was sick for many weeks, but the mother failed to seek medical attention. The father also claims that the child received an “injury” to his left shoulder which caused a scar which he observed when the child was returned to his care in late September 2013. The father annexes a photograph of the child’s shoulder which he contends shows the “scar”. The father further alleges that during this period the mother failed to take B to an ophthalmologist as recommended by a paediatrician. He also complains that the child developed “severe nappy rash” while in the care of the mother in October 2013 and that from November 2013 until early January 2014 the child had “sustained continual sunburn” when in his mother’s care.
The father does not adduce any medical evidence in connection with the alleged chronic chest infection or shoulder injury and the photograph which he describes as showing a “scar” from an injury appears to show a healing superficial graze or abrasion. There is no evidence from an ophthalmologist to suggest that any harm was occasioned to the child due to the missed appointment nor is there any corroborative evidence of the child’s “severe nappy rash” or “sustained continual sunburn” while in the mother’s care.
The father further alleges that he observed injuries to various parts of B’s body from around mid-February 2014. These include scratches on the child’s neck near his spine and a “discolouration” on the child’s cheek which subsequently developed into a “black eye” after having been returned from the mother’s care.
The father alleges that on numerous occasions between April and October 2014 when the B was collected from the mother he had bruises to various parts of his body including his back, throat, forehead and abdomen. He says that in October 2014 after observing an injury to the child’s forehead which he describes as “a wound about the same size as a twenty cent coin” he asked B what had happened and that B said to him “mummy no good”.
The father also makes complaints about the presentation of C (who he refers to as “Y”) from November 2014 when she was about 11 months old. He alleges that on one occasion at this time the child had a bruise on her cheek and scratches on her neck/upper body and a “snotty nose”. He also says that he observed bruises on both of [C’s] forearms on Christmas Day in 2014.
On 2 January 2015 the father says he observed an (undescribed) “injury” to B’s forearm and when he asked the child what happened, B said “mummy”. The father contends that on other occasions from January 2015 B and [C] were presented with bruises and scratches following time in the mother’s care. On one occasion in January 2015 the father complains about B having a band aid on his elbow, and on another complains about [C’]s nappy rash.
The father says that he observed bruises and scratches to each of the children on numerous occasions between February and June 2015. He provides no detail in relation to some of his observations, such as on 21 March 2015 when he complains that [C] had “a fresh injury to her back”. He also complains about the children suffering from runny noses, that a handkerchief around the C’s neck on one occasion “posed a strangulation hazard”, and that on another C’s finger nails were “dirty and uncut”.
The father describes the marks on the children’s bodies as “injuries” and complains that the mother did not inform him when the children have been “injured”, how the “injuries” were sustained or when and whether medical treatment was administered. The father also makes a general complaint that the mother does not inform him that she has taken the children to the doctor or that the children are sick.
The father says that on many occasions over many months he questioned B’s day care staff about these apparent injuries but the staff explained that there had been no accidents sustained by the child when at day care.
The mother does not address any of these complaints specifically but generally denies the children have suffered from any injuries while in her care other than minor bruises or abrasions as may be expected in the course of ordinary childhood activities.
The father annexes to his affidavit photographs of the alleged “injuries”. These photographs in my view show minor bruises and superficial marks to various parts of each child’s body.
In addition to the injuries the father says he observed on the children, he also relies upon complaints said to have been made by B and inferences he draws about B’s conduct. According to the father’s affidavit B first made complaints that his mother had harmed him in October 2014 (when the child was almost two and a half). On this occasion the father claims that when he observed a “wound” to the child’s head and asked him what happened B said “mummy no good”. According to the paternal grandmother’s affidavit she also asked B about “an injury” to his forehead and B told her “mummy push me”. She also says that a few days later when asked whether he wanted to “come to mummy’s house” the child shook his head and said “no mummy push me”. According to the father, B began showing extreme distress and resistance at changeover into his mother’s care after this time.
Under cross-examination the father said that he believed the complaints that B made that the mother had hit both children. The father said that he believed whatever the child told him and it had not occurred to him that the child’s complaints may be a response to extreme conflict between the parents.
The father also confirmed that he had been concerned about the bruises and scratches to the children’s bodies throughout the proceedings but had never filed an urgent application to have the children live with him on this basis. The father also agreed that he had only contacted police on two occasions when the children presented with bruises and did not present the children to a hospital until his lawyer suggested that he do so.
B’s distress and apparent resistance at changeover into his mother’s care is well documented and both the father and paternal grandmother interpret the child’s complaints that he “wants to stay with Daddy” and distress at changeover as B demonstrating fear associated with the mother’s care.
In the course of the proceedings video recordings covertly made by the paternal grandmother of changeover between the parents between April and June 2015 were admitted in the father’s case. Each of the recordings shows C passing into the care of her mother without incident. In each B sits in his father’s lap or is held by his father who does nothing proactive to hand the child to the mother and when the mother physically takes B from his father’s arms the child resists, cries and/or screams and becomes very distressed.
The father adduces no medical evidence in relation to the alleged injuries suffered by the children. However, he has on occasions presented the children to a hospital emergency department. On 9 May 2015 the father and paternal grandmother presented both children to hospital and according to the discharge report they expressed “concerns about suspicious injury patterns when the children are in the care of their mother”. According to the same report, on examination B had “no signs of significant injury” and C had a bruise to her left cheek the size of a twenty cent coin and some superficial scratch marks to the back of her neck and left buttock. Medical practitioners discussed the case with the Child Protection Unit at the hospital and the Department of Family and Community Services (“Community Services”) and it is recorded that “both agencies advised that as yet there is insufficient grounds for intervention”. Two weeks later the father presented B due to concerns regarding new bruises while in his mother’s care. On examination it was observed that the child had faint oval bruises on his upper abdomen and back of his thigh.
In support of his contention that the mother has physically abused the children in the past, the father also relies to some extent upon reports prepared by the expert witness in the proceedings, Ms L.
Mr L, a child and family consultant prepared three expert reports in the proceedings. He is a very experienced professional with tertiary qualifications in social work. He has extensive experience in the United Kingdom and Australia including 10 years as a Senior Family Consultant in this court. Mr L interviewed the family on three occasions over almost two years and observed the interactions between the adults and children on each occasion. He was cross–examined by all parties and did not alter his opinion concerning issues of risk associated with alleged physical abuse. For these reasons I accept his evidence as to this issue and attach substantial weight to it.
In Mr L’s first report dated 8 April 2014 it is recorded that when interviewed the father alleged that there were several occasions when the mother slapped B across the face “for no reason” in July 2013 just prior to separation. It is not recorded that the father made any other complaints about concerns he had that the mother had otherwise physically abused or neglected the children. The father had however, made entries in “attachment diaries” that were provided to the parents at the time of the report interviews indicating his concern that the mother was not caring for B properly, including B having been returned several times from his mother’s care with signs of physical injury. The paternal grandmother who had also been provided with an attachment diary to complete did not make allegations of concerns about physical harm at that stage. When interviewed for the purposes of this report, the supervisor of B’s child care centre reported to Mr L that she had not noticed “any bruising or marks or anything like that that has rung alarm bells”.
Mr L’s first report in the main was concerned with his opinion about the attachment relationship between each parent and each child. So far as the allegation made by the father is concerned that the mother had slapped B on two or three occasions, Mr L opined that if this had occurred it seems likely that this was “in the context of the parents turbulent relationship in the months leading up to their separation”. It is also curious to note that in both the father’s affidavits and when interviewed by the expert, the father referred to the mother slapping the child “for no reason” as if his main concern was the absence of a reason rather than about this form of punishment itself.
So far as the father’s reports of marks and bruises on B after separation are concerned, Mr L was not able to say what may have caused them but he did report the following:
It is noted, however, in this regard, that it is not unusual for toddlers to acquire marks and bruises in the context of their play. It is also noted that the staff at his child care centre have not reported any marks and bruises on [B] that have caused them concerns about the possibility of non-accidental injury.
The expert prepared a second report approximately one year later in April 2015. When each of the parents were interviewed for this assessment they were asked to focus on the period from March 2014 to April 2015.
When interviewed on this occasion both the father and paternal grandmother reported that both children had regularly and frequently been presented to them over the previous 12 months with unexplained bruises and scratches that they allege could only have occurred while they were in their mother’s care. In the course of the interview the mother advised Mr L that she did not smack the children. The father and paternal grandmother also informed Mr L that B states that he does not want to go to his mother’s and when leaving the expert’s consulting rooms for the day Mr L heard B say to his father “don’t go mummy’s go to daddy’s house”. The father’s allegations of B’s strong resistance, sadness and fear when being transferred to his mother’s care and his concerns about the possibility of the mother having abused or neglected B were strong themes in his very detailed attachment diaries. In one entry the father claims that B is “often injured in his mother’s care, sometimes badly”.
In his second report Mr L considered the question of whether or not the children were being physically abused and / or physically or emotionally neglected when in the care of their mother as a central issue. He opined that if the reports of the father and paternal grandmother that the children have regularly frequently and over an extended period presented with unexplained bruises and scratches were accurate, it would suggest that the children were being directly physically abused or not properly supervised while in their mother’s care. The expert was unable to make an assessment as to this issue. However, while Mr L had some concerns about the mother’s credibility he also noted that when the children were presented by the mother for the report interviews they were neatly and appropriately dressed and did not present as physically neglected as had been alleged by the father. He expressed the following opinion:
…The degree of neglect that the father alleges would not be sufficient, in and of itself, to warrant a substantial reduction in the amount of time that the children spend with the mother – unless it were to be a feature of a broader picture of neglect that would include emotional neglect. (Emphasis added)
The issue of emotional neglect is a matter to which I will return.
When the parents were interviewed by Mr L in December 2015 for the purposes of the third report, the children were living with the mother and their time with the father was suspended, though it had been reinstated by the time the report was finalised in February 2016. The parents were asked at these interviews to focus on the period from March 2015 to December 2015. The main concerns of the father and paternal grandmother at that stage were allegations of sexual abuse resulting from disclosures said to have been made by B in October 2015.
Mr L however asked the father to discuss any indications of physical abuse that he believed may have occurred since April 2015. The father referred to three occasions only, all in April 2015, when he said he noted that C was bruised when presented to him by the mother. When asked about the same issue the paternal grandmother said that there had not been as many unexplained bruises to either of the children from April 2015 but that on one occasion in April 2015 B reportedly told his child care worker that “mummy hit me”. When asked to describe any events or situations that might indicate that the mother had been neglecting the children, the paternal grandmother reported that B had once arrived with “shoes on the wrong feet” and with “toys and sultanas (that could represent) a choking hazard”. When interviewed for the purposes of the third report, the mother was asked about disciplining the children. She said that she did on occasions get stressed but kept her distance to calm down and that “I sometimes pat but not smack”.
In relation to the ongoing allegations of physical abuse and neglect made by the father and paternal grandmother against the mother, Mr L noted in his third report that these allegations had often been referred to Community Services but had not been substantiated. He also noted that generally the mother attributed any physical signs of violence towards the children as claimed by the father “to likely be a result of normative childhood bumps and bruises that are common in the context of childhood play and exploratory activities”. Mr L was unable to come to any conclusion with respect to the parents’ positions other than to note that the children had “not presented with the types of injuries that would likely to occur at the most serious end of the abuse spectrum”.
When asked to express an opinion about matters that may have been reported by B, Mr L said the following:
Children become more and more verbal from a year and a half, two – onwards, more able to get a sense of what important adults want from them, and it’s very very common – and indeed I would say universal for children when they’re engaged with adults to often wonder – “I wonder what this parent wants from me. I wonder how they want me to respond.”
Later Mr L agreed that a child could easily be led into repeating what an important adult said to them and that children will say to a parent what they think that parent wants to hear particularly in the case of parents who are in a very high level of conflict with one another.
Under cross-examination the mother remained firm that she had not physically harmed or neglected the children. The tenor of her evidence is that while she may accept that each of the children on occasions were bruised she had not harmed the children, nor had they been harmed while in her care.
Overall it is the father’s case that the number and frequency of “injuries” sustained by both children when in the care with the mother is “abnormally high” and the children do not sustain any injuries while being cared for by him or the child care centre. He also contends that B is terrified of the mother and is “traumatised” and “extremely distressed” at being returned to the mother.
Under cross-examination, the father agreed that in his initial Response to the mother’s Application filed in November 2013 he had sought an order for equal shared parental responsibility with the mother. He said he had subsequently changed his mind and sought sole parental responsibility for the children when they were being presented to him with bruises and injuries “on a daily basis”.
In relation to the alleged propensity of the children to become injured in the care of the mother as compared with the father, the paternal grandmother maintained that the children had only fallen over and sustained bruising or grazing while in the father’s care on one or two occasions throughout their lives.
The only other relevant evidence in relation to allegations of physical abuse or neglect said to have been perpetrated by the mother is contained in the Magellan Report prepared by Community Services setting out the history of notifications made to that Department in relation to the children. It is recorded in that report that there were allegations of physical harm made to the Department in December 2013 and March 2014, neither of which were considered serious enough to proceed to a secondary assessment.
The first report in December 2013 included an allegation that the mother had “attacked [B] on three separate occasions” and that the child did not receive any medical attention while he was in the mother’s care. Further details in the report make it clear that the complaint relates to the father’s allegation that the mother slapped the child in the face in the period just prior to separation. In March 2014 it is recorded that B was observed to have a bruise to his left cheek and scratches on his neck and that these injuries occurred while the child was in the mother’s care.
A further report in May 2015 cited concerns that each of the children had bruises, red marks and scratches over a long period of time and that B had said “mummy did it” and protested that he did not want to return to his mother’s care. The complaints were regarded as “non-ROSH [risk of serious harm] by the Department. Further reports in a similar vein later in May 2015 were assessed by the Department as giving rise to no concern that the bruising was caused by trauma and there being no indication that the mother had deliberately inflicted injury on the children.
Discussion and Findings
I am not satisfied that the mother has physically abused the children or neglected them when in her care with the result that they were physically injured as contented by the father for the following reasons.
First, there is no evidence that the bruising and other marks observed by the father and paternal grandmother on the children’s bodies from time to time were in fact “injuries” or indicate that the children have been in some way harmed.
Further, on close analysis although the father makes a large number of complaints about bruising and other marks he observed, the paternal grandmother who has been at all times closely involved in the children’s care only provides corroboration for six such events over three years. Moreover, several of the events to which the paternal grandmother refers are minor in the extreme such as shoes being on the wrong feet or being too tight, or a child’s fingernails being too long.
The father also did not seek medical attention for any of the matters which he says concerned him except on two occasions in May 2015 when he presented the children to a hospital emergency department. On each of these presentations nothing of a concerning nature was observed by medical practitioners. I infer from the father’s failure to otherwise seek medical attention for the children that he did not regard the “injuries” as sufficiently serious to warrant such attention.
Further, Community Services to whom some complaints of physical harm and neglect were made did not regard the notifications as risks of serious harm or assess that there were any concerns about the mother’s conduct towards the children.
The photographs attached to the father’s affidavit, in my view, show minor and superficial bruises and grazes consistent with the mother’s concession that the children did from time to time bruise or mark themselves in the course of ordinary play.
It is also clear that both parents took the children to medical practitioners from time to time for other reasons but there are no records to indicate that any concerns were raised by the doctors about non–accidental injury nor does it appear that the doctors, as mandatory reporters, made any reports to Community Services about injuries to the children. Similarly, the children attended child care regularly throughout the period that the father alleges that they were injured in the care of the mother, but no complaint was made by the staff at the child care centre who were also mandatory reporters. The children’s supervisor at the childcare centre also informed Mr L in the course of his first assessment that no matters of concern with respect to physical injury had arisen when the children were attending child care. Mr L was not challenged about his evidence given under cross-examination that this was not a case where abuse of the children was a concern to him.
So far as physical neglect is concerned, many of the complaints made by the father are extremely minor such as complaints about inappropriate or soiled clothing and the children suffering from colds or presenting with shoes that were too tight and the like. He is, in my view, particularly censorious in making such complaints. The mother is a single woman, alone in a foreign country, doing the best she can on a limited budget with little financial assistance from the father, which if provided may assist in addressing the very matters about which he complains. Mr L also was not challenged on his evidence that the children’s presentation when in their mother’s care was inconsistent with the father’s allegations about neglect.
Sexual abuse
The father also contends that there is an unacceptable risk that the children may be sexually abused while in the care of the mother. This risk is said to arise from his contention that the children were sexually abused when in the mother’s care in around October 2015 which the mother denies. For the reasons given when discussing the contentions about physical abuse and neglect, I must first determine whether I am satisfied to the requisite standard that the alleged sexual abuse occurred.
According to the father’s affidavit, on the evening of 25 October 2015 when B was in his care, he and the child were watching a children’s film on television. The film included a scene in which a whole family are sharing the same bed. The father then says the following occurred:
…[B] commented on this scene saying words to the effect of “bed is full of people”. I asked [B] words to the effect of:
“do you sleep in mummy’s bed?”
[B] replied: “yes”
[B] then said to me words to the effect of: “[Q] touches us wee wee”
I said to [B] “who is us?”
[B] responded:
“[Q] touches my wee wee. [Y] touches [Q]’s wee wee, [Q] touches mummy’s wee wee. Me and [Y] and mummy and [Q] all sleep together in mummy’s bed at mummy’s house”.
The father says he was shocked when he heard B say this and then recorded a conversation with the child as he thought no one would believe him. In the recorded conversation B is heard to repeat these allegations and also to make far more extensive disclosures including that there is another person called “Dad” who also touches each of the children on the “wee wee” and that the touching on the “wee wee” happens every day.
Under cross–examination the father remained adamant that he had made the recording of the conversation with B immediately following the child’s initial disclosure. He said that he had made the recording on his phone but had lost that phone some months before the hearing. He said although the phone had a video capacity he had not used it to record the conversation in that manner.
After the father heard the initial disclosure from B and says he recorded the further conversation with the child he then telephoned his mother. He then says the following occurred:
This evening I called my mother and put the phone on loud speaker.
[B] said to his grandmother “[Q] touch my wee wee”.
The grandmother said to [B] “Who is [Q]”?
[B] did not answer.
The grandmother said to [B] “What does [Q] do”?
[B] said to the grandmother “[Q] touch us wee wee”.
The grandmother said to [B] “Who is us”?
[B] did not answer.
The grandmother said to [B] again “What does [Q] do”?
[B] said to the grandmother “[Q] touch my wee wee, [Q] touch [Y] wee wee, [Q] touch mummy wee wee, [Y] touch [Q] wee wee”.
The grandmother said to [B] “When does [Q] touch your wee and [Y’s] wee wee and mummy’s wee wee”?
[B] said to the grandmother “[Q] touch my wee wee in bed”.
The grandmother said to [B] “Where do you sleep at mummy’s house”?
[B] said “me and [Y] and mummy and [Q] sleep in the same bed”.
The paternal grandmother corroborates the father’s evidence about the circumstances in which she spoke to B on the telephone on the evening of 25 October 2015. Her account of the child’s conversation with her is identical to the father’s account.
Under cross–examination when asked about how she was able to give such a detailed account of the conversation in an affidavit sworn three months after the event the paternal grandmother said that she had taken notes and the notes were at her home. She then said that she had not told the father that she had taken notes or provided them to the father’s lawyer. She then claimed to have no recollection of the process by which her affidavit came to be prepared. The handwritten notes said to have been made by the paternal grandmother were called for but not produced.
The following day (26 October 2015) the father took B to the Children’s Hospital where the child was examined by a doctor but not admitted. The father says that he was advised by the doctor that she would notify Community Services and that B was discharged back into his care. The father did not contact the mother to discuss his concerns.
The father agreed under cross–examination that he did not tell the examining doctor about the recorded conversation with B. He agreed that he had attended the hospital for the child to be examined and he had his phone with him with the recording still on it. He could offer no explanation why he had not played the recording of B making the disclosure to staff at the hospital and ultimately agreed that his failure to play the recorded disclosure to them did not make sense.
The father also agreed under cross–examination that in an earlier affidavit of 8 December 2015 (filed for the purposes of his application to vary the interim parenting orders) he had deposed to the following in relation to the examination by the doctor at the hospital:
During the examination [B] made similar disclosures to Dr [G] as the ones he made to me and my mother the night before.
A letter sent on the father’s behalf by his lawyer on 29 October 2015 to the mother’s lawyer also contains an assertion that “[B] made similar disclosures to Dr [G]”. In his trial affidavit the father says that his recollection was that B did not make those disclosures to the doctor. When cross–examined about the discrepancy in his position the father contradicted his trial affidavit and sought to explain that B had behaved in a manner which he regarded as amounting to making a similar disclosure to the doctor. He explained that in the course of the examination when he related B’s disclosure to the doctor B nodded his head in agreement.
The father also gave conflicting evidence under cross–examination of his understanding of the opinions formed by professionals at the hospital when he presented B on 26 October. He ultimately reluctantly conceded that on that date staff at the hospital could not find anything of concern.
The following day, 27 October 2015, the father also reported the child’s disclosures to Community Services. Later that day the paternal grandmother collected C from the mother for that child’s time with the father and brought her to the father’s residence. The mother was not informed of any of the father’s concerns about sexual abuse in her home.
The father says that at approximately 6.45 pm while he was changing the younger child’s nappy he observed “bruising on her inner thighs, at the top of her legs adjacent to her private parts”. He says he was extremely alarmed to see bruising in this area of the child’s body especially in light of B’s disclosures a few days earlier and took the child to the Children’s Hospital for examination.
The father gave conflicting evidence under cross–examination about the impact of B’s disclosures of 25 October upon him and his views concerning the safety of the children in the mother’s home. At one stage he said that the disclosure did not cement in his mind a deep distrust of the mother until C presented with “bruising” on her thighs two days later. The father said that the bruising confirmed what B had previously told him. The father said that he did not think of any other possibilities to explain the bruising and agreed that he was deeply concerned that the bruising occurred in connection with sexual abuse. He agreed at that stage that he felt “very poorly” about the mother.
The father was then cross–examined about his conversation with a social worker and Registrar from the Child Protection Unit when interviewed at the hospital when he presented C with the suspicious “bruising”. In the hospital notes which record that conversation the following is written:
Current visitation agreement:
B à57%; C à 3 hours Sat & Sun mornings, Tue nights
– [Mr Parsons] wants shared custody
“what parent wouldn’t want that?”
The father agreed that this record is very inconsistent with how he was feeling about the mother at the time (as he wouldn’t want her to have “shared custody”).
The father did not return the children to the mother’s care on 27 October 2015 in compliance with the interim parenting orders. The paternal grandmother was contacted by the mother shortly after 8pm which was the appointed hand-over time. At this stage the paternal grandmother, father and two children had just arrived at the hospital. The paternal grandmother sent the mother a text which read “[B] made disclosures regarding inappropriate sexual behaviour at your residence. Am unable to return the children tonight. My legal rep will contact you tomorrow”.
The father says that the child was not examined by a doctor until 1 am or 2 am the following day (28 October 2015) and that the doctor said to him “[C] needs to be admitted to the hospital as an in-patient as the location of the bruising is suspicious”. Medical Records made at the time record “Advised: we cannot make any judgment of how the child has gotten the bruises we must treat the case as bruising of unknown cause”.
The paternal grandmother waited at the hospital with C and the father went home with B. Upon arrival at home he found a card under the door from the police who had apparently been contacted by the mother as she was concerned about the children’s welfare.
The father says that on 28 October 2015 [C] was examined “by the Child Protection Unit” and further photographs (of the “bruising”) were taken. He says that he was advised that the child would be discharged into his care as she was not at risk while living with him. Later that day the paternal grandmother sent a further text message to the mother who arranged a further welfare check by police upon the children.
The father was cross–examined about his understanding of the opinions formed by professionals at the hospital when he presented C for examination. He did not agree that the doctors did not see anything that raised concern and in particular maintained that the doctor who examined C was concerned about her. The father remained adamant that “one of the workers” told him that C’s bruises were in a suspicious location and appeared to maintain that one of the examining doctors held this opinion.
Ultimately, under cross–examination, the father did accept that the Child Protection Unit did not find any unacceptable risk of harm to C due to the bruises though he maintained that they believed there was a “risk”, even though there is no record to this effect.
The mother does not dispute the father’s evidence that the children were not returned to her in accordance with the interim orders on 27 October 2015, and that the paternal grandmother contacted her by text message. The mother says that she requested the police to attend the father’s premises on three occasions at around this time to check on the welfare of the children.
The mother also says that after the 27 October 2015 handover she did not see or have any communication with either of her children until orders were made on 11 December 2015 returning the children to her care. She sets out in her affidavit the efforts she made to obtain further information about the reason why the father had retained the children in his care. She says that she was first informed of the allegation that B had disclosed that “[Q] touches us’ wee wee” on 29 October 2015 in response to correspondence her lawyer had sent to the father’s lawyer the previous day.
On 2 November 2015 officers of the Joint Investigation and Response Team (JIRT)[7] accepted the complaint for further investigation and assessment and on the same day contacted the father seeking to arrange an interview with the children. An interview with B was ultimately arranged for 11 November 2015.
[7] The Joint Investigation and Response Team is made up of officers from Community Services and police and investigates complaints of sexual abuse and serious physical abuse of children.
On 9 November 2015 the father filed an Application in a Case seeking a change in the interim parenting orders pending final hearing. On the same day he notified Centrelink that both of the children were in his care.
In addition to the JIRT interview on 11 November 2015, B was interviewed a second time on 16 November 2015. According to the Magellan report from Community Services, B did not engage with the interviewer in the first interview. Police records indicate that the child did not talk during the interview. In the second interview on 16 November the child once again said very little and made no disclosures of sexual harm by anyone.
Under cross–examination the father agreed that he was present during both of the JIRT interviews of B and that the child did not make any disclosures. He initially denied but later agreed that it was explained to him [by the JIRT officers] at the conclusion of the second interview that due to a lack of evidence it may be that nothing had happened to the child. The officers also said they would speak to the mother to establish the identity of Q. The father agreed that at the end of the second interview he asked the JIRT officer what he should do now and said that he had hoped the child would make a disclosure. He agreed that he may have appeared disappointed that [the child] had not [made a disclosure]. The father did not agree under cross examination that he felt relieved that B had not made a disclosure as he believed this was due to the child’s shyness [rather than indicating that nothing of concern had happened].
The father agreed that he then emailed a copy of the recording of the conversation with B to the JIRT officers and in doing so sought to show the JIRT officers that B had in fact made a disclosure. Police records produced on subpoena indicate that the JIRT officers held concerns about the father’s conduct in recording the conversation such as that he “appears to be very keen to drag this information out of [B]”. After hearing the recording police remained of the view that “it appears that there is no evidence to support that [the child] has been indecently assaulted”.
JIRT officers subsequently interviewed the mother who advised that Q is the surname of a female friend who had been to her home about seven to eight times and who had slept at her home with her own child on two occasions. The mother said Ms Q had never slept in a bed with herself, B or C.
On 8 January 2016 Community Services completed a safety and risk assessment which indicated that the children were safe in the care of the mother and that the risk level was moderate. The Department have taken no further action in relation to the matter.
The paternal grandmother’s second affidavit corroborates the father’s version of events of 25 to 28 October 2015. In addition the paternal grandmother says that on 15 November 2015 (the day before the second JIRT interview) when both children were playing she heard B say to his sister “does [Q] touch your wee wee?” and that [C] replied “yes”.
The paternal grandmother was cross–examined about the 15 November conversation which she said occurred at the father’s home. She said that the father was present at the home but she was not sure if he was in the room. The witness said she felt upset when she heard the children’s conversation but did not agree that she was horrified saying it confirmed what B had said earlier. The paternal grandmother said that she would not have told her son straight away about this conversation because “he already knew”. She subsequently said that she told the father about the conversation “at some point” but could not remember what he said in response. The paternal grandmother’s evidence was then as follows:
Did you suggest to him that perhaps you should go along to the police interview the next day and tell the police what you heard? ---But that’s hearsay. What would be the point of that.
That wasn’t my question. I didn’t ask ?- - -no I didn’t. [B] wasn’t speaking to me.
Her Honour: do you seriously suggest that that’s relevant that [B] wasn’t speaking to you? He was speaking to [Y] he wasn’t speaking …
The paternal grandmother later said that she did not think the conversation she had overheard was relevant.
The father was also cross-examined about his knowledge of the conversation said to have been overheard by the paternal grandmother on 15 November 2015. He said that he did believe that his mother had told him about the conversation but agreed that it was not in his affidavit because the children’s conversation had not been said to him. He also agreed under cross-examination that he did not tell police the following day on 16 December 2015 (when B attended for his second JIRT interview) about the conversation or suggest to police that they speak to his mother. He later said it was his view that the police had to hear the disclosure directly from the child. He then claimed that he regarded the information about the conversation overheard by his mother as “useless” and reiterated that police told him that they did not want to hear it [a disclosure concerning the abuse] from anyone but the child himself. Finally he claimed that the reason he had not raised the matter with the JIRT officers is because he didn’t think to do it.
In response to the allegations concerning sexual abuse in her household the mother said in her affidavit (which was sworn on 8 December 2015) that she did not know the identity of the person “Q”. In oral evidence she said that the only occasions on which she heard B refer to his “wee wee” were in relation to toilet issues and when the child’s eczema became itchy and afflicted his groin from time to time. The mother denies that C has ever slept in a bed with any person other than herself on occasions when the child needed comfort and says that C sleeps in a cot in her room and B sleeps in a bed on his own. The mother denies that anything untoward of a sexual nature as alleged by the father has occurred when the children have been in her care.
The mother was extensively cross–examined about her denial in her affidavit that she knew anyone called “Q” particularly as she had informed JIRT when interviewed (a week later on 15 December 2015) that “Q” is the surname of a female friend who had been to her home about seven to eight times and who had slept at her home with her own child on two occasions. The mother said that she first heard that the sexual abuse was alleged to have been perpetrated by a person named “Q” in her home in the letter from the father’s solicitor on 29 October 2015. At that stage she responded to the letter and a short time later swore her affidavit in which she denied her knowledge of a person called “Q”. She maintained that she was being truthful as she did not know at that stage whether the allegation related to a male or female of that name. She says that the name “Q” is used as a first name and surname for both males and females [in Chinese] and it did not occur to her that at the time she swore the affidavit her female friend had the surname “Q”.
Under further cross–examination the mother said that her friend with the surname “Q” had an English first name of “Y”. She said that in the presence of the children she refers to this friend as “Ayee” which means “Aunty” in English. The mother says that to her knowledge neither child knew Y Q’s surname and may not even know the mother’s own name, as in Chinese culture children do not refer to adults by name but by title. There was no challenge to this evidence.
The father does not dispute that he knew of a person named “Q” associated with the mother even though he told various people such as doctors at the hospital that he did not know who Q was. In a document prepared by a caseworker from D Group in November 2014 (Exhibit 5) it is recorded that the mother’s friend by the name of “Q Q” looked after C for a short time on that day. This document was produced on subpoena and access was granted to it on 17 August 2015. When interviewed by the expert on 1 December 2015 (after the father had retained the children but before the interim hearing) the father told the expert “there is a reference in the [D Group] notes to [C] “being looked after by [the mother’s] friend [Q]”. Under cross–examination when asked about her knowledge of information about ‘Q’ the paternal grandmother said that the father “may have come to the court and inspected some subpoenaed documents and found a [Q] in some documents”.
The mother said that it was not until the D Group document was drawn to her attention that she recalled that Y Q had cared for C on an occasion when she needed to take B to childcare. In relation to that entry, the mother said that she did not use Y Q’s name when speaking with the caseworker. She did not remember hearing Y introduce herself as “Q Q” and denied ever referring to Y as “Q Q”.
The mother stood firm in her evidence that she has not had any partners since she separated from the father and that no males have stayed the night at her home. She says that she has never had any worries or concerns about any friend who has stayed the night at her home or ever observed anything worrying [about their conduct].
Of note, it was not put to the mother under cross–examination that the person “Q” had touched the children and herself on their genitals at any time or on an occasion or occasions while everyone was in the same bed or that everyone had shared the same bed on any occasion.
The recorded conversation
The recording of the conversation made by the father was admitted into evidence and is as follows:
Father (F): When you stay at Mama house, when you stay at Mama house, you sleep in a bed with Mama and [Y] and [Q], who’s another lady. Is [Q] an old lady or a young lady?
[B]: [Q] lady
F: And we all sleep in the same bed? You know who sleeps in the other bedroom in Mama house?
[B]: Unable to hear [B] clearly
F: Anybody sleep in the other bedroom in Mum’s house?
[B]: Yes
F: Who sleeps in there?
[B]: Dad
F: Dad?
[B]: Unable to hear [B] clearly
F: Ahh. Hold, hold on Dad sleeps in the other bedroom in Mama house?
[B]: Yes
F: What, do we know what Dad’s name is?
[B]: No. [Q] touch my wee wee and then [Y] touch [Q’s] wee wee
F: Hold on hold on. So you said Dad touched your wee wee. This is the Dad that lives at your Mama house, yeah?
[B]: Yeah, [Q] touched my wee wee, [Y] touched [Q’s] wee wees
F: So [Y] touched [Q’s] wee wee
[B]: Yes and me too
F: And [Q] touched your wee wee?
[B]: Yes
F: And also Dad in the other bedroom touched [B] wee wee?
[B]: Yeah
F: Does your Mum know this happens?
[B]: Yes
F: Your Mum knows about it. How long has this been going on? Has this happened more than once? Does it happen often or just one time?
[B]: One time
F: One time
[B]: Yes
F: And does [Q] and Dad always sleep in Mama house? Every day?
[B]: Yes, in the daytime. All us’s wee wee
F: Does Daddy touch everybody’s wee wee?
[B]: Yeah
F: Y and [B] and [Q] and Mummy?
[B]: Yes, and Daddy
F: And Daddy
[B]: Yeah
F: This is Daddy from Mama’s house?
[B]: Yeah
F: Not me Daddy.
[B]: Dad?
F: Hmmm
[B]: I don’t like … [unclear]
F: That’s okay
[B]: Daddy can I have apple juice?
F: Sure.
F: How long has [Q] and Daddy been living at Mama house?
[B]: I don’t know
F: Well have they been there for a week, or a day or a long time?
[B]: A day.
F: Days or Weeks? How many nights? [B]? Do you know how many nights they’ve stayed there?
[B]: Yeah. The moon’s coming up and Santa coming.
F: Has it been more than one night?
[B]: Yeah
F: Really, okay. Do we know how old is [Q] and Daddy? Are they young people or are they old people?
[B]: They’re old people
F: Old people
[B]: Yes
F: Okay. And your Mum, where was your Mum when all these people were touching all these people’s wee wees, where was Mummy?
[B]: In my house
F: Mummy was there too?
[B]: Know what?
F: Did someone touch Mummy’s wee wee too?
[B]: Yes, and me too and me too and [Q] too.
F: When did this happen? Did this happen a long time ago or did this happen yesterday or one week ago?
[B]: Yesterday.
F: It couldn’t have happened yesterday
[B]: I want some more smarties
F: Unless it was yesterday morning, you were here yesterday. Are you sure it was yesterday? Or was it a few days ago?
[B]: Yesterday
F: Before you went to school?
[B]: Yes, I touch [Q’s] wee wee and then Dad touch Mama wee wee and you too.
F: Well I wasn’t there, he couldn’t have touched my wee wee.
[B]: [Q] touch your wee wee
F: Nobody touched my wee wee because I wasn’t there. I was here.
[B]: [Q] touch your wee wee
F: Hmmm. Has this happened more than once?
[B]: Yeah
F: How many times does this happen? Does this happen every day? Every week?
[B]: Um, every day!
F: Everyday?
[B]: Unable to hear [B] clearly
F: Shit, I never knew this. Umm do you know [Q’s] last name or do you know [Q’s] full name?
[B]: No
F: Is it [Q] Smith
[B]: Yeah
F: Or [Q] Chou?
[B]: No
F: Or [Q] something?
[B]: No
F: What about Daddy in the other room, what’s his name?
[B]: Unable to hear [B] clearly. [Q] touched us’s wee wee
F: Does [Q] have lots of visitors to Mama house?
[B]: [Q] touch my wee wee
F: Q has some people come to visit her?
[B]: Yes. [Q] touch my wee wee and [Y] touch [Q’s] wee wee and then and then [Q] touch Mama wee wee
F: [B], do you know it’s not good to touch other people’s wee wee’s?
[B]: Yeah
F: Next time if somebody try to touch your wee wee I want you to run away.
[B]: Okay
F: Okay
[B]: yep
F: and you take [Y] with you. You and [Y] run away and hide somewhere. Okay, can you do that for me?
[B]: yep
F: Please
[B]: Yes okay
[B]: Unable to hear [B] clearly. I want my book. Unable to hear [B] clearly.
F: Hmmm… I don’t know what to do about this [B] this is big. Hmmm
[B]: This is big?
[B]: Daaaad. Daddy, what’s in here?
F: Does [Q] have lots of money [B]?
[B]: Unable to hear [B] clearly
F: Does [Q] give you lots of presents?
[B]: Merry Christmas has presents.
Unable to hear conversation from 7.52-8.00 minutes
F: What sort of presents do you get?
[B]: I’ll get Christmas. Can’t find … unable to hear [B] clearly
F: Are you sure [B], this is very important. [B], look at me. This is very important. Look at me. Are you telling the truth? I can’t hear you, you need to say something. Are you telling the truth or are you making this up?
[B]: telling the truth
F: Really? And does Mum know that [Q] touches your wee wee?
[B]: Yeah Mama knew. And we have to run around and hide somewhere and then [Y] touches [Q’s] wee wee and [Y] touch [Q’s] wee wee and [Y] touch [Q’s] wee wee and then [Y] touches [Q’s] wee wee.
F: What happens after all this? What happens when everybody’s finished touching everybody’s wee wee? Does everybody go away or does everybody come closer?
[B]: Mmm. Long silence.
F: Ahh, what am I supposed to do about this?
F: Do you like it when [Q] touches your wee wee?
[B]: Yes. And [Y] too.
F: Do you like it when [Q] touches your wee wee?
[B]: No
F: Does it scare you?
[B]: No. Daaad stop it.
F: Are you sure it doesn’t scare you?
[B]: No. Don’t touch my hair.
F: Hmmm. Can you just tell me your name.
[B]: Yeah
F: What’s your name buddy? [B], what’s your name?
[B]: [B]
F: [B] who?
[B]: [B Parsons]
F: ok. Thank you
The father said that a few days after it was made he transferred the recording from his phone to his computer to free up further memory on his phone to store other items including photos and music. He then said he deleted the original recording from his phone.
The father also initially stated under cross–examination that the file properties still held the original data including the date on which the recording was created but subsequently said that when the file was moved to his computer the creation date of the recording was also changed. As a result there is no corroborative evidence concerning the date on which the conversation was recorded.
The father also agreed under cross-examination that he had not made any reference to the recording of the conversation with B in either of his two affidavits prepared for the purposes of an application to change the interim parenting orders heard on 11 December 2015. He also agreed that he first provided a copy of the recording to his lawyers at court on the day of the interim hearing and did not believe that he had previously notified his lawyers that he had made the recording.
Discussion and Findings
It is submitted on behalf of the father in relation to the October 2015 disclosures by B and discolouration on C’s inner thighs that the court should find “that the children are at an unacceptable risk of harm if the mother’s time with them is not supervised”. When asked to identify the specific nature of the risk said to require supervision it was submitted that the risk is that the mother will expose the children to sexual abuse by others and that in this regard I should be satisfied that a person identified as “Q” sexually abused the children [in the mother’s household] in the past. It was submitted that there is no evidence that the mother was aware of the abuse but that the court should find that she failed to protect the children from it.
The difficulty with the father’s contention as encapsulated in these submissions is that the case had been conducted on the basis that the sexual touching by “Q” occurred when the mother, Q, the children (and at times a person known as “Dad”) were all in bed together and that all of them were involved in touching the “wee wee” (genitals) of the others. According to the child’s recorded conversation the mother also knew that this has occurred. The position that there is no evidence to support the mother’s knowledge of the sexual abuse, and that the risk of harm in relation to her is that she failed to protect then children from being abused by others is at odds with this basis upon which the case had been conducted.
Notwithstanding the inconsistency between the way in which the case was conducted and the final submissions I must still consider whether I am satisfied to the appropriate standard that the children were sexually abused by a person identified as “Q” in the mother’s household as this finding is central to the father’s contention that there is an unacceptable risk that the children will be sexually abused when in the mother’s care.
I am not satisfied to the appropriate standard that the children or either one of them were sexually abused in the mother’s household as alleged for the following reasons.
First, I am of the view that there are real concerns about the accuracy of the evidence of the father and the paternal grandmother concerning the disclosures said to have been made by B. I am also concerned about the reliability of the account given by B on each occasion, even if it can be accepted that the child spoke the words attributed to him.
The father’s case that the children were sexually abused by a person named “Q” in the mother’s home in around October 2015 is based on disclosures said to have been made by B on the following occasions:
i.In his conversation with the father on the evening of 25 October 2015 when they were watching television together.
ii.In a conversation between B and the father which was recorded by the father [exhibit 8].
iii.In a conversation between B and the paternal grandmother later on the evening of 25 October 2015 [which was also overheard by the father].
iv.In the conversation between B and C on 15 November 2015 which was overheard by the paternal grandmother.
So far as the first disclosure on 25 October 2015 is concerned, it is to be noted that the father does not claim that he made any note at the time even though he says that the words spoken by B are set out in his affidavit as a verbatim account. He also confirmed under cross–examination that the entirety of B’s disclosure is set out in paragraph [5] of his affidavit of 8 February 2016 (and repeated in paragraph 86 of these Reasons). This account if accepted includes B unambiguously claiming that the person known as “Q” touches him and the mother on the “wee wee” and that Y touches “Q” on the “wee wee” and that they all sleep together in the mother’s bed in the mother’s house.
Thereafter it appears that the father in particular demonstrated a responsible attitude to parenthood and a good capacity to care for B and later C on a day to day basis. He continued, however, to maintain a lack of empathy, and a generally negative view of the mother and her situation, without regard for the impact that this would have on the children.
At times when each of the parents have withheld one or both children from the other they have shown a poor attitude to their children and responsibilities of parenthood. Both parents inability to have learnt to communicate with one another in a civil manner since separation and continuing to expose the children to high levels of conflict reflects poorly upon both of them.
The arrangement between the father and paternal grandmother to covertly video record changeovers in 2015 in an effort to obtain evidence (that the mother had been untruthful when she told the expert that B did not exhibit signs of distress upon separation from his father) and the father’s actions at those changeovers show a poor attitude toward the responsibilities of parenthood and to B. At that stage the mother was engaging in the changeover of her children in an all but deserted shopping centre at 8pm. She was alone and was not provided with any assistance by the father in either alleviating B’s distress or assisting the child in transferring to the mother’s care. The manner in which the father held B in his lap which required the mother to physically remove the child from the father seemed more designed to increase the child’s distress for the purposes of the recording than to assist the child at a difficult time. The following of the mother and children through the shopping centre while continuing to record the event only added to the child’s confusion and distress, once again for the purposes of obtaining “evidence” to prove that the mother was untruthful.
Family violence
For the reasons previously given, I am satisfied that each of the parties engaged in family violence towards the other in the months immediately prior to separation. Further, for the reasons given I am not satisfied that either of the parties perpetrated family violence against the other following separation though there is evidence of significant conflict to which the children were exposed.
As noted earlier in these Reasons there have been a number of applications for an ADVO relevant to the parental dispute, none of which have resulted in a final order being made.
At the time the evidence closed in July 2016 an ADVO was then in place against the father for the protection of the mother and there was a live issue of whether any inference could be drawn from the existence of that interim order. Subsequently, the proceedings were re–opened in August 2016 to enable evidence to be given that this last remaining ADVO application was determined by the police withdrawing the application.
It has been the father’s case throughout that all of the applications for ADVO for the protection of the mother result from false allegations and it is submitted on the father’s behalf that the court should draw an inference from the fact that none of the applications resulted in a final order being made.
Section 60CC(3)(k) refers to the drawing of relevant inferences as a result of an order being made and “any findings made by the court in proceedings for the order”. In my view, the only relevant inference that can be drawn is that there was insufficient evidence for any such orders to be made. This is consistent with my finding that there is insufficient evidence to satisfy me that the parties have perpetrated violence against one another since separation.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
It is always preferable to make an order that is not likely to result in the institution of further proceedings in relation to children. It is also generally difficult to predict how parties will behave and whether further proceedings will be instituted.
These proceedings were commenced over three years ago and there has undoubtedly been a deleterious impact upon the children through the perpetuation of the parental dispute. The expert identified that the exposure of the children to ongoing parental conflict was one of the most significant matters for these children. The prospect of further proceedings would undoubtedly perpetuate the level of conflict between the parties.
Although the mother had for most of the time since separation conducted her case on the basis that she had concerns about the children in the care of the father she ultimately conceded that she had no such concerns and agreed to orders that would see the father play a considerable role in the care of the children. This would suggest that the mother accepts that it is in the best interests of the children to spend at least substantial and significant time with their father. Even if orders are made as sought by the father (in the event there is no finding of unacceptable harm in her care) she is likely in my view to accept those and settle into a future parenting arrangement where she spends substantial and significant time with the children.
The father continues to maintain in these proceedings that there is an unacceptable risk of harm posed by the mother. His general approach in the proceedings in this regard and the particular concerns referred to in relation to his pursuit of the sexual abuse allegations give rise to a concern that he will institute further proceedings if the children are to live primarily with the mother.
However, the assessment that it is more likely that the father would institute further proceedings if orders are not made as he seeks is of itself not a reason to make those orders. This is especially so if the other best interest considerations indicate that such orders are not in the best interests of the children. For this reason little weight is attached to this consideration alone.
Any other relevant fact or circumstance
There is a particular dispute between the parties concerning the children’s surname and the first name of their daughter. The father’s proposal is for each of the children to have the surname “Parsons” and that the daughter have the name “Y” which is the name used for that child by the paternal family.
The ICL proposes orders which require the parents to take necessary steps for the surname of both children to be changed to “Chou–Parsons” and that the parties be restrained from referring to or calling the daughter any other name other than “C”. The mother agrees with the ICL’s proposal.
Although the father continued to maintain for some time under cross–examination that he would prefer to call his daughter “Y” ultimately he agreed that if it was confusing for the child to have different names in each household that he would be happy to call the child “C”. He then said he was “happy to concede to calling her [C]” and added “I actually have started referring to her as [C]”. However, subsequently under cross–examination the father maintained his position that he wanted the child to be known as “Y”. When asked why he had started to call her C he answered “being flexible”.
By the time the father was cross–examined the mother had agreed to the children’s surname being “Chou–Parsons”. When asked his view about this surname the father simply said “I think it should not be hyphenated [Chou–Parsons]. I think it should be the same as [B].” He confirmed that he believed the children should have the same surname. The father also agreed that if his daughter’s name was changed that it may introduce a potential for confusion and risk in relation to documents about her health and welfare.
In Reynolds and Sherman[14] the Full Court confirmed the position that an order as to a child’s name is a parenting order pursuant to s 64B(2)(i) and that the paramount consideration in making such an order is the bests interests of the child. In determining whether a change of name is in the bests interests of a child the Court may have regard to a number of factors including but not limited to the comparative short and long term effects of a change of name, whether the child has a meaningful relationship and identifies with each parent and the name they bear and whether the child would be unnecessarily subjected to confusion of identity following any change of name.[15]
[14] [2016] FamCAFC 240.
[15] See also In the Marriage of George and Radford (1976) FLC 90-060; In the Marriage of Chapman and Palmer (1978) FLC 90-510; In the Marriage of Beach and Stemmler (1979) FLC 90-692.
There is no dispute that the parties’ daughter has always been known as C or by a Chinese nickname meaning a “little sister” in the maternal home and that for at least a year this name has also been used at times by the father. The child has also lived throughout her life predominantly in the home where the name C is used. In my view, she has an established identity connected to that name and would experience confusion if her name were to be changed at this stage of her life. The father’s main sense of grievance in relation to his daughter’s first name relates to him not being consulted at the time of her birth about it. While this justifiably may leave him feeling upset this is not a matter to which I can attach any weight in determining whether it is in the child’s best interests to be known as “C” or “Y”.
There is no dispute between the parties that the children should have the same surname. In circumstances where parents have separated when children are very young the advantage of a hyphenated or combined surname is that it combines elements of each part of the children’s heritage. The father submits that as the parents both agreed on the surname “Parsons” when B was born that his name should not be changed and that as the father was not consulted about C’s surname that her surname should be changed to be the same as her brother. In my view, separated parents should not necessarily be bound to agreements they made prior to separation, especially where for other reasons relating to the child’s best interest it is appropriate for the child’s name to be changed.
It is clear that the children have a meaningful relationship with each parent and identify as being part of both the paternal and maternal families. A change to a hyphenated surname would enable each of the children to have their paternal and maternal identity recognised in their name which is in the best interests of both children.
Another matter I regard as relevant to this parenting application is each parent’s capacity to promote a relationship between the children and the other parent. This is particularly the case given the protracted and conflictual nature of this matter in which each parent has unilaterally kept the children from the other parent on more than one occasion and changeovers have been historically problematic.
The father has been and continues to be consistently and overwhelmingly negative about the mother and the mother’s parenting skills. As detailed earlier in these reasons, the father and the paternal grandmother have often made what can be characterised as “trivial” complaints about the mother’s inability to look after the children including that the mother would offer the children chips and biscuits instead of fruit as a snack and that the children sometimes wore shoes that were too tight. Under cross examination Mr L did not think that the father had said anything positive about the mother when interviewed.
In contrast to the father, Mr L said in conducting interviews for the last report the mother “appeared to be more confident, more flexible in her thinking, less defensive”. Further, Mr L said the following about the mother:
I’m pretty certain that for the first time she felt able to say something positive about [B’s] relationship with the dad. I – I remember feeling, “Ah, there’s a breakthrough” – you know, that – that – like it’s okay to say something positive about the other parent, which I don’t think she felt able to … there’s like a beginning of reflective parenting. It’s okay to allow him another thought other than the negative thought.
In my view the father is unable to see anything positive about the mother’s parenting and this consistently negative attitude limits his capacity to facilitate the children’s relationship with their mother. It reflects well on the mother that she is now able to reflect positively on the father’s parenting of the children and this indicates a greater capacity to facilitate the children’s relationship with their father.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[16] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[16] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, 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. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
For the reasons given, I am satisfied that both of the parents engaged in family violence at around the time of separation so the presumption does not apply. In any event neither party nor the ICL submits that it is in the best interests of the children for the parents to share parental responsibility. It is common ground between the parents that they have no capacity to communicate with one another and there is no prospect of them being able to make major decisions for the long–term care and welfare of the children jointly. The family consultant was not challenged on about his opinion that it is highly unlikely that the parents have the prospect of being able to communicate with one another in the future or his opinion that “this conflicted parental context would be highly likely to predispose the children to unacceptable levels of anxiety – including, possibly, to clinical levels.”
Each of the proposals in this matter would see parental responsibility allocated to one parent alone, being the parent with whom it is proposed that the children will primarily live.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by each of the parents must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
I am of the view that given the complete lack of communication and capacity for cooperative decision making and the extremely high levels of conflict between the parents that it is in the best interests of the children for the parents to have the least amount of contact possible. In these circumstances, and having regard to the proposals of each of the parents and the ICL, I am of the view it is in the best interests of the children for parental responsibility to be allocated to the parent with whom the children will primarily live.
Conclusion
For the reasons given, I am not of the view that there is an unacceptable risk of harm to the children in the care of either parent. Accordingly, the competing proposals are for the children to live primarily in the care of one parent and spend time with the other parent such that the children would have the benefit of a meaningful relationship with both parents. There is no proposal to separate the children and I accept the opinion of the expert that it is in their best interest to continue to live together.
Each of the competing proposals involves one child being separated from the parent with whom he or she has a primary attachment relationship. This is a significant factor in this matter where there are concerns about the nature of the children’s attachment to their parents as a result of the circumstances of their early lives. Under both proposals one child will be detrimentally affected as a result of the separation. In these circumstances each of the parents’ capacity to manage the children’s distress at separation from the other parent and capacity otherwise to be attuned to the needs of the children assumes great importance.
The expert’s recommendation that it would be in the best interests of the children to live primarily with the father is based to a very large extent upon the expert’s opinion of the father’s parenting capacity and in particular his attunement to the needs of the children.
For the reasons given, and based upon the expert’s other evidence concerning attunement, I am of the view, that the father is not as well attuned to the children’s needs as had been assessed by the expert.
In circumstances where it is not challenged that the mother’s parenting capacity has improved over time, I am of the view, that there is no clear difference between the capacity of each of the parents to be attuned to the children’s needs.
The ICL’s proposal involves less disruption to the children from their current circumstances than the proposal of the father. Other matters of importance are the father’s very negative attitude towards the mother, her capacity and importance of her culture to the children. Having regard to these matters and the other considerations to which I have referred, I am of the view that it is in the best interests of the children to live primarily with the mother and for her to hold parental responsibility for them.
I am also of the view that some of the additional orders such as those requiring the mother to consult with the father and provide certain information to him (even though she holds sole parental responsibility) will benefit the children. It is also noted that some of the orders proposed by the ICL (orders 1, 6, 7 in part and 15 – 19) are agreed to by the father.
While in general I propose making orders as proposed by the ICL in the Minute of Proposed Orders (Exhibit 26) I am of the view that some aspects of the proposal in relation to the father’s time with the children is not in their best interests. In particular I propose making orders in accordance with the recommendations of the expert as to the pattern of the non-primary carer’s time. Although the expert recommended that the children live primarily with the father and spend significant time with the mother, when asked about the pattern of time if the court were to find that it was in the best interests of the children to live primarily with the mother, he remained of the view that the children should spend time with each parent in blocks of nine days with one parent followed by five days with the other. The expert was particularly concerned about the impact upon these children of more frequent changes in patterns of care and about the impact of exposure to conflict upon the children which could be alleviated by less frequent changes in care. He was not challenged about his opinion concerning each of these matters.
The proposal of the ICL is for the children to spend initially one mid–week night each alternate week and three nights over a weekend each alternate week per fortnight with the father. This is slightly less than had been recommended by the expert and also is not in the block pattern format that was in his view the best arrangement for the children. It is noted however that the ICL’s proposal does allow for an increase in the father’s time after C commences school though the proposal of a pattern of splitting the time over the fortnight continues.
In my view the recommendation of the expert concerning block periods and concerning the pattern of care and length of time in each household should be followed and accordingly orders in those terms are made. Otherwise, in my view, the orders with respect to the father’s time which include a graduated introduction to weekly block periods in the school holidays are in the children’s best interests.
The father also opposes some other specific orders including the time at which school holiday time is to conclude and time with each of the parents on special days. I am of the view that the ICL’s proposal that the school holiday period conclude at 3 pm on the day prior to the children returning to school for the next term is in the children’s best interests as it will enable them to settle back into the mother’s care the day prior to school commencing.
In my view, the father’s proposal with respect to time on Mother’s Day and Father’s Day, that the time with each parent respectively extending to 9 am the following day is to be preferred as it allows the children to spend the entire day of significance, including an evening meal with the relevant parent.
In my view, the ICL’s proposal with respect to the children’s birthdays appropriately allow for the children to spend time with each parent on these special days and does not introduce the added disruption and change to patterns of care as proposed by the father.
In my view, the ICL’s proposal with respect to the children’s surname and the daughter’s name is in the children’s best interests for the reasons given. In the course of submissions the ICL proposed a further order that in the event that such proposed orders were made that there be a restraint upon the mother (who otherwise is to hold parental responsibility) changing the child’s name.
For these reasons I make the orders set out at the forefront.
I certify that the preceding three hundred and forty nine (349) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 February 2017.
Legal Associate:
Date: 10 February 2017
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