Collins and Collins
[2007] FamCA 74
•16 February 2007
FAMILY COURT OF AUSTRALIA
| COLLINS & COLLINS | [2007] FamCA 74 |
| CHILDREN – Magellan – Best interests of children |
| Unacceptable risk-A return to basics (2006) 20 AJFL 249 and include A v A [1976] VR 298; M and M (1987) FLC 91-830; B v B (Access) (1986) FLC 91-758; B and B (1993) FLC 92-357; B and B; Re C and J (1996) FLC 92-697; K v B (1994) FLC 92-478; N and S and the Separate Representative (1996) FLC 92-655; WK v SR (1997) FLC 92-787 and Fitzpatrick and Fitzpatrick (2005) FLC 93-227 |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mrs Collins |
| RESPONDENT: | Mr Collins |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| FILE NUMBER: | SYF | 4687 | of | 2004 |
| DATE DELIVERED: | 16 February 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 26, 27, 28,29 and 30 June 2006, 21 and 22 August 2006, 5, 6, 7 and 8 December 2006 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hausman |
| SOLICITOR FOR THE APPLICANT: | The Argyle Partnership |
| COUNSEL FOR THE RESPONDENT: | Mr Hallen SC and Ms Winfield |
| SOLICITOR FOR THE RESPONDENT: | Morris Corkill |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Mr Sperling of Legal Aid Commission of New South Wales |
Orders
All previous parenting orders in relation to the children R born in January 1999 and H born in April 2002 be discharged.
The children live with their mother.
The Mother have sole parental responsibility for the long term and day to day care, welfare and development of each child.
The Father spend time with the children:
4.1For two hours each three weeks such time to be supervised at a contact centre or service (“the Service”).
4.2The specific times for such period of time be as nominated by the manager/director/coordinator for the time being of the Service or his or her nominee (“the Coordinator”) and the manner of such periods be in accordance with the rules stipulated by the Service.
4.3For the purpose of spending time in accordance with this order, within 14 days of the date of these orders the Mother and Father:
4.3.1complete the client summary sheet and hand it to the Service:
4.3.2attend the Service for intake, assessment and pre-spending time readiness sessions at times and dates nominated by the Coordinator; and,
4.3.3sign all documents and do all things required by the Coordinator to participate in the program.
4.4On being accepted by the Service to participate in the program both the Mother and Father abide by all reasonable directions given by the Coordinator of the Service.
4.5If the Father fails or refuses to:
4.5.1comply with Order 4.1 to 4.4 hereof; or,
4.5.2attend to spend time in accordance with this order on two consecutive occasions (other than for reasons of serious medical illness or injury in which event the Father is to provide a copy of such medical certificates to the Service and the Mother forthwith),
then Order 4.1 be forthwith thereafter discharged.
4.6In the event that either child is unable to attend on the Service due to serious medical illness or injury on any occasion the Mother shall contact the Service as soon as possible to inform them that the said child shall not be attending on the Service on that occasion.
4.7The Father be responsible for all the costs of provision of the Service.
The Father be at liberty to write letters, cards and send presents to the children or either of them and the Mother ensure that the children receive all such communications and presents received by her, unless such material is of a highly damaging or offensive content.
The Mother within 14 days of the date of these orders and within 14 days of either child’s subsequent enrolment at any school do all acts and things and give all irrevocable authorities necessary to ensure that whichever school either child may attend from time to time, that school forward directly to the Father:
6.1Copies of each child’s school reports, progress reports and merit cards; and,
6.2Copies of all order forms for school photographs of the children or either of them.
The Mother advise the Father in writing of any proposed change in the school of either child no later than 21 days prior to their enrolment including the details of the new school.
The Father be restrained from attending any school which the children may attend from time to time otherwise than as requested by such school in writing from time to time.
The Father advise the Mother in writing of any change of his address or postal address no later than 21 days prior to any proposed change, including the full details of the new residential address or new postal address.
The Mother advise the Father in writing of any change of her postal address no later than 21 days prior to any proposed change, including the full details of the new postal address.
In the event of either child being hospitalised or receiving medical attention for serious illness or injury, the Mother shall as soon as practicable:
11.1Notify the Father after her first contact with either the medical practitioner, medical centre or hospital;
11.2Provide to the Father details of the reasons for such attendance;
11.3Provide to the Father details of the proposed treatment and medications if any, for the child;
11.4Make available to the Father copies of any medical reports that may become available.
Pursuant to s 65DA(2) Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications are removed from the list of cases awaiting finalisation.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 4687 of 2004
| Mrs Collins |
Applicant
And
| Mr Collins |
Respondent
REASONS FOR JUDGMENT
introduction
Before me for hearing are applications for parenting orders. The proceedings were commenced by application filed on 20 May 2005 on behalf of the mother. On 25 May 2005 a response was filed on behalf of the father. There were also proceedings for settlement of property however, on 30 June 2006, by consent, I made a final order pursuant to s 79 Family Law Act 1975 (Cth). Thus, the only issues for determination involve competing applications by the Mother and the Father in relation to the parties’ two children.
The evidence before me was very extensive. At the outset it was agreed that the hearing would not conclude in the allocated five days and as it transpired it took 11 days. During the hearing I described this case as one that had caused “emotional and financial devastation” and I remain of that view.
In the property proceedings the Father had contended that the parties had assets of a net value of $70,682. The Mother contended that the parties had assets of a net value of $336,719. I was informed by counsel that as a consequence of the legal costs of the proceedings neither party will have any or negligible net assets at the conclusion of the hearing.
The issues in this case are serious. The Mother contended that during the relationship she was the victim of domestic violence perpetrated by the Father and that he has abused the child R including sexual abuse. The Father contended that he was the victim of domestic violence perpetrated by the Mother and denied that he has in any way abused the child R. He contended that the allegations of abuse of the child were fabricated by the Mother who then manipulated the child to make the complaints. As well, the Mother was in ill health, particularly during 2004 and 2005. The Father also contended that the Mother has abused the children.
The Mother is 45 years of age, having been born in April 1961. The Father is 43 years of age, having been born in July 1963. The parties met in about 1995 and commenced a relationship in about August 1997. They commenced cohabitation, for most days of the week, in early 1998, full-time cohabitation in about April 1999, and were married in April 2000.
There are two children of the marriage, R born in January 1999, and H born in April 2002.
The parties separated for the first time in December 2004. The Father filed an application for parenting orders, which was returnable on 23 December 2004. These proceedings were resolved, initially, on an interim basis, and stood over, until 21 January 2005. In the meantime, the parties reconciled in late December 2005, and, as a result, the parenting proceedings were resolved, by consent, on 21 January 2005.
The parties separated again, this time finally, in May 2005. The Mother filed an application on 20 May 2005, seeking, amongst other things, parenting orders and financial injunctions. Orders were made, on an interim basis, on 25 May 2005. Further orders were made, by consent, on 23 June 2005.
After the parties finally separated, the Father spent time with the children each week, including overnight, and also telephone contact until 31 July 2005. There were some difficulties however, during the period between 25 May and 31 July 2005. The Father spent time with the children overnight on the weekend on three, or perhaps, four weekends Sunday (daytime) on each weekend, and some telephone contact.
On 30 August 2005 the Mother filed an application seeking, amongst other things, supervised contact for the children with the Father. The basis of the application was that on 31 July 2005, the Father had slapped the child R, so hard as to cause bruising on her leg or legs. Certain orders were made on 15 September 2005, including the appointment of a children’s representative. I will refer to the children’s representative as the Independent Child Lawyer.
On or about 30 September 2005 all contact between the children and the Father was suspended, as a result of concerns expressed to a Judicial Registrar by the Independent Child Lawyer, that one, or both of the children "may have been" sexually abused by the Father. The children currently live with the Mother and spend no time with the Father.
On 8 December 2006 I was handed a document titled “Wife’s Proposed Minute Of Parenting Orders”:
1. That the mother have the sole parental responsibility for the children of the marriage [R] born [in] January 1999 and [H] born [in] April 2002 (“the children”).
2. That the children live with the mother.
3. That there be no order providing for the father to spend time with the children.
4. In the event that an order is made providing for the father to spend time with the children then the father shall spend time with the children as follows:
(a)On one occasion per month on a supervised basis to take place at a contact centre;
(b)That the father be responsible for the payment of all costs associated with the compliance of Order 4(a);
(c)The time that the father spends with the child in accordance with Order 4(a) shall commence upon the child [R’s] counsellor with the Child Protection Unit being satisfied that [R] is adequately prepared le to manage supervised time with the father.
5. That the mother attend on [her psychiatrist] or such other person as recommended by [her psychiatrist] for ongoing consultation and such treatment as recommended by [her psychiatrist].
6. The wife will sign all documents and do all things necessary to authorise any school attended by the children within seven (7) days of the commencement of any school year or the children’s attendance at a school to authorise the school to forward to the father all school reports of the children.
The Mother seeks final orders based upon the premise that the Father engaged in the sexual abuse of the child R, or the children. The Mother admitted, in cross examination, that she has not considered any proposal that is based on the premise not being established to the satisfaction of the Court. She has not advanced any orders based upon my not being satisfied that abuse has occurred.
The Father seeks alternative parenting orders. I am asked to consider the alternatives based upon no findings of sexual abuse and/or unacceptable risk and the contrary. It was submitted that the latter course was followed to assist me and was done in the context of a denial by the Father of any improper conduct towards the children. The Father seeks the following:
1. The parties have shared responsibility for the long term care, welfare and development of the children of the marriage [R] born [in] January 1999 [H] born [in] April 2002, including, but not limited to, the education of the children.
ALTERNATIVE 1
2. In the event that the Court finds that there is no unacceptable risk to the children of abuse by the Father, the children live with the Father.
3. In the event that the Court finds that there is no unacceptable risk to the children of abuse by the Mother, the children spend time with the Mother, such time to be defined as follows:-
(a)each alternate weekend from 6:00 pm Friday evening until 6:00 pm Sunday evening;
(b)one half of all school holidays being, subject to subparagraphs (c) and (e) below and failing other agreement between the parties, the first half of each school holiday period;
(c)for each Christmas school holiday period commencing 2006/2007, and each alternate year thereafter, the first half of the Christmas school holiday period; and for each Christmas school holiday period commencing 2007/2008, and each alternate year thereafter, the second half of the Christmas school holiday period;
(d)for the Easter school holiday period commencing 2007, and each alternate year thereafter, the first half of the Easter school holiday period; for the Easter school holiday period commencing 2008, and each alternate year thereafter, the second half of the Easter school holiday period;
(e)should Father’s Day fall on a weekend the children would be with the Mother pursuant to these orders, the Mother shall return the children to the Mother at 9am and further contact will be suspended on that day;
(f)should Mother’s Day fall on a weekend the children would otherwise be with the Father, the Father shall return the children to the Mother at 9am and further contact will be suspended on that day;
(g)for two hours on each child’s birthday, 4.00pm to 6.00pm on the birthday unless the parties otherwise agree between themselves;
(h)Telephone contact each Tuesday and Thursday night to commence between 7.00pm and 7.15pm.
(i)such further, or other, times, as may be agreed between the parties.
ALTERNATIVE 2
4. In the event that the Court finds that there is no unacceptable risk to the children of abuse by either parent, the children live with the parents for equal periods of time, such time to be defined as follows:-
(a)each alternate week from 6:00 pm Friday evening until 6.00pm on the following Friday evening during school terms;
(b)one half of all school holidays being, subject to subparagraphs (c) and (e) below and failing other agreement between the parties, the first half of each school holiday period;
(c)for each Christmas school holiday period commencing 2006/2007, and each alternate year thereafter, the first half of the Christmas school holiday period; and for each Christmas school holiday period commencing 2007/2008, and each alternate year thereafter, the second half of the Christmas school holiday period;
(d)for the Easter school holiday period commencing 2007, and each alternate year thereafter, the first half of the Easter school holiday period; for the Easter school holiday period commencing 2008, and each alternate year thereafter, the second half of the Easter school holiday period;
(e)should Father’s Day fall on a weekend the children would be with the Mother pursuant to these orders, the Mother shall return the children to the Mother at 9am and further contact will be suspended on that day;
(f)should Mother’s Day fall on a weekend the children would otherwise be with the Father, the Father shall return the children to the Mother at 9am and further contact will be suspended on that day;
(g)for two hours on each child’s birthday, 4.00pm to 6.00pm on the birthday unless the parties otherwise agree between themselves;
(h)Telephone contact each Tuesday and Thursday night to commence between 7.00pm and 7.15pm.
(i)such further, or other, times, as may be agreed between the parties.
ALTERNATIVE 3
5. In the event that the Court finds there is no unacceptable risk to the children of abuse by the Father, but determines that it is in the best interests of the children that they live with the Mother for a greater period of time than with the Father, the children live with the Father, such time to be defined as follows:-
(a)in each fortnight, each alternate weekend from 6:00 pm Friday evening until 6:00pm Sunday evening;
(b)In each fortnight on the Sunday on which the children are not with the Father pursuant to (a) above, from 9am to 5pm.
(c)one half of all school holidays being, subject to subparagraphs (c) and (e) below and failing other agreement between the parties, the first half of each school holiday period;
(d)for each Christmas school holiday period commencing 2006/2007, and each alternate year thereafter, the first half of the Christmas school holiday period; and for each Christmas school holiday period commencing 2007/2008, and each alternate year thereafter, the second half of the Christmas school holiday period;
(e)for the Easter school holiday period commencing 2007, and each alternate year thereafter, the first half of the Easter school holiday period; for the Easter school holiday period commencing 2008, and each alternate year thereafter, the second half of the Easter school holiday period;
(f)should Father’s Day fall on a weekend the children would be with the Mother pursuant to these orders, the Mother shall return the children to the Mother at 9am and further contact will be suspended on that day;
(g)should Mother’s Day fall on a weekend the children would otherwise be with the Father, the Father shall return the children to the Mother at 9am and further contact will be suspended on that day;
(h)for two hours on each child’s birthday, 4.00pm to 6.00pm on the birthday unless the parties otherwise agree between themselves;
(i)Telephone contact each Tuesday and Thursday night to commence between 7.00pm and 7.15pm.
(j)such further, or other, times, as may be agreed between the parties.
ALTERNATIVE 4
6. In the event that the Court finds that there is no unacceptable risk to the children of abuse by the Father, the children live with the Father.
7. In the event that the Court finds that there is an unacceptable risk to the children of abuse by the Mother, the children spend time with the Mother, such time to be defined as follows:-
(a)for each alternate Saturday from 9am to 5pm, such time to be supervised by a person whose identity is agreed on by both parties; or
(b)in the event that the parties cannot agree on a supervisor pursuant to (a), for two hours, once per fortnight, at [The] Contact Service;
(c)for two hours on each child’s birthday, 4.00pm to 6.00pm on the birthday unless the parties otherwise agree between themselves;
(d)for the purpose of implementing (b) hereof, the parties do all acts and things necessary to undertake all intake assessments procedures of [The] Contact Service and thereafter the parties require with all reasonable requests of [The] Contact Service, and the Mother pay any fees required by the Service;
(d)at such further, or other, times as the Court determines.
ALTERNATIVE 5
8. In the event that the Court finds there is an unacceptable risk to the children of abuse by the Father, and orders that the children live with the Mother, the children spend time with the Father, such time to be defined as follows:-
(a)for a period of three (3) months, contact to be of three (3) hours duration on one Saturday in each month between the hours of 10.00am to 1.00pm, and, thereafter,
(b)for a further period of three (2) months, contact to be of eight (8) hours duration, on one Saturday in each month between the hours of 10.00 am and 6.00 pm, and, thereafter,
(c)for a period of 3 months, one (1) weekend per month from 10.00 am Saturday to 4.00 pm Sunday such access and thereafter,
(d)in each fortnight, each alternate weekend from 6:00 pm Friday evening until 6:00pm Sunday evening;
(e)In each fortnight on the Sunday on which the children are not with the Father pursuant to (d) above, from 9am to 5pm.
(f) one half of all school holidays being, subject to subparagraphs (c) and (e) below and failing other agreement between the parties, the first half of each school holiday period;
(g) for each Christmas school holiday period commencing 2007/2008, and each alternate year thereafter, the first half of the Christmas school holiday period; and for each Christmas school holiday period commencing 200/2009, and each alternate year thereafter, the second half of the Christmas school holiday period;
(h)for the Easter school holiday period commencing 2007, and each alternate year thereafter, the first half of the Easter school holiday period; for the Easter school holiday period commencing 2008, and each alternate year thereafter, the second half of the Easter school holiday period;
(i)for the Easter school holiday period commencing 2007, and each alternate year thereafter, the first half of the Easter school holiday period; for the Easter school holiday period commencing 2008, and each alternate year thereafter, the second half of the Easter school holiday period;
(j)should Father’s Day fall on a weekend the children would be with the Mother pursuant to these orders, the Mother shall return the children to the Mother at 9am and further contact will be suspended on that day;
(k)for two hours on each child’s birthday, 4.00pm to 6.00pm on the birthday unless the parties otherwise agree between themselves;
(l)Telephone contact each Tuesday and Thursday night to commence between 7.00pm and 7.15pm.
(m)such further, or other, times, as may be agreed between the parties,
such contact to be supervised by the father’s sister, Mr H and Mrs H, Mrs NH, Mr NH or any of them, or such other person as the parties agree.
IN RESPECT OF EACH ALTERNATIVE (and so far as is relevant)
9. That when [R] attains the age of 8 years, the parties shall arrange for a report to be obtained from Dr Q or her nominee, after interviewing each of the Father, the Mother, [R] and [H], as to whether there are any changed circumstances such as to warrant a review of the supervised contact, the costs of such report to be met equally by the parties and a copy of the report to be obtained by them both.
10. That during the New South Wales gazetted school holiday periods, the weekend contact provided for in paragraphs 3(a), 5(a) and (b), and 8(d) and (e) above be suspended.
11. That each party shall have sole responsibility for the day to day care, welfare and development of the children during any period that they are living with them.
12. Neither party shall denigrate the other party, nor cause any other person to denigrate, the other party, or members of the other party’s family, to, or in presence, or hearing, each or both, of the children
13. Neither party shall make any audio, or video, recordings of the children for use as evidence, directly or indirectly, for any future Court proceedings.
14. Each party shall be responsible for maintaining a Communication Book in which is recorded (and the information be confined to) essential information concerning either child’s current, or forthcoming, activities, school events, sporting or social arrangements, and the like, with each party to ensure the Communication Book is included with the children’s effects on contact changeovers.
15. For the purpose of implementing the orders, unless otherwise agreed between the parties, the Father shall collect [R] and [H] from the Mother’s residence at the commencement of any period with him and the Mother shall collect [R] and [H] at the commencement of any period with her, unless otherwise agreed between the parties
In final submissions the Independent Child Lawyer sought the following:
OPTION 1
1. All previous parenting orders in relation to the children of the parties [R] born [in] January 1999 and [H] born 5 April 2002 (“the children”) are discharged.
2. The children live with their Mother [Mrs Collins] (“the Mother”).
3. The Mother have sole parental responsibility for the children.
4. The Father [Mr Collins] (“the Father”) spend time with the children:
4.1For two hours each four weeks such time to be supervised at a contact centre or service (hereafter referred to as “the Service”).
4.2The specific times for such period of spending time be as nominated by the manager/director/coordinator for the time being of the Service or his or her nominee (the Coordinator) and the manner of such periods be in accordance with the rules stipulated by the Service.
4.3For the purpose of spending time in accordance with this order, within 14 days of the date of these orders the Mother and Father:
4.3.1complete the client summary sheet and hand it to the Service:
4.3.2attend the Service for intake, assessment and pre-spending time readiness sessions at times and dates nominated by the Coordinator; and,
4.3.3sign all documents and do all things required by the Coordinator to participate in the program.
4.4On being accepted by the Service to participate in the program both the Mother and Father abide by all reasonable directions given by the Coordinator of the Service.
4.5If the Father fails or refuses to:
4.5.1comply with Order 4.1 to 4.4 hereof; or,
4.5.2attend to spend time in accordance with this order on two consecutive occasions (other than for reasons of serious medical illness or injury in which event the Father is to provide a copy of such medical certificates to the Service and the Mother forthwith),
then Order 4 be forthwith thereafter discharged.
4.6In the event that either child is unable to attend on the Service due to serious medical illness or injury on any occasion the Mother shall contact the Service as soon as possible to inform them that the said child shall not be attending on the Service on that occasion.
4.7That the Father be responsible for all the costs of provision of the Service.
5. That the Father shall be at liberty to write letters, cards and send presents to the children or either of them and the Mother shall ensure that the children receives all such communications and presents received by her, unless such material is of a highly damaging or offensive content.
6. That the Mother within 14 days of the date of these orders and within 14 days of either child’s subsequent enrolment at any school do all acts and things and give all irrevocable authorities necessary to ensure that whichever school either child may attend from time to time, that school forward directly to the Father:
6.1Copies of each child’s school reports, progress reports and merit cards; and,
6.2Copies of all order forms for school photographs of the children or either of them.
7. The Mother advise the Father in writing of any proposed change in the children’s school no later than 21 days prior to their enrolment including the details of the children’s new school.
8. That the Father be restrained from attend any school to which the children may attend from time to time otherwise than as requested by such school in writing from time to time.
9. That the Father advise the Mother in writing of any change of his address or postal address no later than twenty one (21) days prior to any proposed change, including the full details of the new residential address or new postal address.
10. That the Mother advise the Father in writing of any change of her postal address no later than twenty one (21) days prior to any proposed change, including the full details of the new postal address.
11. That in the event of either child being hospitalised or receiving medical attention for serious illness or injury, the Mother shall as soon as practicable:
11.1notify the Father after her first contact with either the medical practitioner, medical centre or hospital;
11.2provide details of the reasons for such attendance;
11.3provide details of the proposed treatment and medications if any, for the child; and,
11.4make available to the Father copies of any medical reports that may become available.
OPTION 2
1. All previous parenting orders in relation to the children of the parties [R] born [in] January 1999 and [H] born [in] April 2002 (“the children”) are discharged.
2. The children live with their Mother [Mrs Collins] (“the Mother”).
3. The Mother have sole parental responsibility for the children.
4. That the Father shall be at liberty to write letters, cards and send presents to the children or either of them and the Mother shall ensure that the children receives all such communications and presents received by her, unless such material is of a highly damaging or offensive content.
5. That the Mother within 14 days of the date of these orders and within 14 days of either child’s subsequent enrolment at any school do all acts and things and give all irrevocable authorities necessary to ensure that whichever school either child may attend from time to time, that school forward directly to the Father:
5.1Copies of each child’s school reports, progress reports and merit cards; and,
5.2Copies of all order forms for school photographs of the children or either of them.
6. The Mother advise the Father in writing of any proposed change in the children’s school no later than 21 days prior to their enrolment including the details of the children’s new school.
7. That the Father be restrained from attend any school to which the children may attend from time to time otherwise than as requested by such school in writing from time to time.
8. That the Father advise the Mother in writing of any change of his address or postal address no later than twenty one (21) days prior to any proposed change, including the full details of the new residential address or new postal address.
9. That the Mother advise the Father in writing of any change of her postal address no later than twenty one (21) days prior to any proposed change, including the full details of the new postal address.
10. That in the event of either child being hospitalised or receiving medical attention for serious illness or injury, the Mother shall as soon as practicable:
10.1notify the Father after her first contact with either the medical practitioner, medical centre or hospital;
10.2provide details of the reasons for such attendance;
10.3provide details of the proposed treatment and medications if any, for the child; and,
10.4make available to the Father copies of any medical reports that may become available.
I had evidence from a Court Expert, Associate Professor Q, who is a Consultant Psychiatrist and she was cross examined. She provided a lengthy report.
I had evidence from the mother’s psychiatrist, who is a Consultant Psychiatrist and she was cross examined. She is the Mother’s treating psychiatrist. She gave evidence in relation to the mental health of the Mother. The mother’s psychiatrist is a Private Practitioner at a Research Institute in Sydney. She is also a Lecturer at the University. She admitted that her role was to act in the best interests of the Mother and provide therapy and monitor the Mother during the proceedings including the Mother’s mood.
I had a “Project Magellan Report” prepared by officers of the New South Wales Department of Community Services in relation to allegations “of serious physical or sexual abuse of a child or young person that have been raised in the proceedings”. For reasons that appear in the transcript I reversed an earlier ruling I had made as to the admissibility of part of the contents of the report. There was also put into evidence a number of documents produced by the Department of Community Services.
The Father swore three affidavits namely on 26 May 2006, 18 June 2006 and 23 June 2006. He also swore a Financial Statement. The Father also relied upon affidavits of Mr A, Ms L, Ms JC, Mr H, Mrs H, Mr PH, Mrs PH, Ms G, Ms P, Mr V, Mr W, Mr NH and Ms BH. As I indicated in discussion, in my opinion, a great deal of the material in the affidavits of the various lay witnesses was inadmissible and that I did not propose to take such material into account.
Mr A is the Father’s best friend and he was cross examined. Ms L, who is the partner of Mr A and also a close friend of the Father, was cross examined. Ms JC is the Father’s sister and she was cross examined. Mr H is the Father’s cousin and he was cross examined. Mrs H is Mr H’s wife and she was cross examined. Ms G resides nearby, approximately 50 metres from the home of the parties, and she was not cross examined. Mr W, who is a carpenter, employs the Father as a subcontractor and he was not cross examined. Ms P resides in the same street, nearby to the former matrimonial home and she was not cross examined. Ms PH lives at C Street next door to the former matrimonial home and she was cross examined by video conference facility. I allowed the affidavit of Mr PH to remain as part of the evidence even though he was unavailable for cross examination, as requested, because of serious ill health.
The Mother swore an affidavit on 23 May 2006 and a Financial Statement on the same day. On behalf of the Mother evidence was given by her mother, Mrs P, who swore an affidavit on 12 May 2005 and was cross examined. Evidence was also given by the mother’s treating psychiatrist, Mr F and Ms JD. Mr F and Ms JD were not cross examined.
The Independent Children’s Lawyer relied upon an affidavit of Ms M who is a Senior Social Worker employed by the Child Protection Unit at Sydney Children’s Hospital. The Child Protection Unit offers counselling to children and their families in cases where allegations of abuse have been investigated and confirmed by a Joint Investigation Response Team or the Department of Community Services. Ms M was cross examined.
Relevant principles
Section 61C(1) in Pt VII of the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for the child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. The parents may exercise the responsibility either independently or jointly.
However, by s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think is proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with and includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act. There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
The 13 additional considerations include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply, or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I was satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent and if both conditions are satisfied then consider making an order for the child to spend equal time with each parent. In determining the first matter namely whether it would be in the best interests of the child to spend equal time with each parent I have to apply s 60C and s 60B. In determining the second matter namely whether it is reasonably practicable I am required to consider the matters in s 65DAA(5).
If I was satisfied that the presumption of equal shared parental responsibility applied but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent and if both conditions are satisfied then consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
For a discussion of the relevant provisions of Pt VII of the Family Law Act see Goode and Goode [2006] FamCA 1346.
Background facts
Mr H was born in September 1970 and he contended that he and the Mother were in a relationship for three years from 1991 to 1994. In cross examination he admitted that what he said in his affidavit was wrong and conceded that the relationship was between 1995 and 1997. Mr H contended that on many occasions the Mother said to him that she was raped by her brother and that it happened more than once when she was very young.
The parties met in 1997 and in August 1997 they commenced a relationship. At the time the Mother was employed as a bar assistant and the Father was employed as a carpenter.
In about April 1998 the parties commenced to reside permanently in a home at P. The Mother described the home as a run down two bedroom fibro house that needed a lot of repair. The parties remained living in this property until early 2003.
The Father contended that in July 1998 he was assaulted by the Mother.
The child R was born in January 1999. The Mother breastfed the child for four months.
The parties were married in April 2000. The maternal grandmother paid for the wedding and honeymoon.
The Father contended that from the time of marriage the Mother hit him and clawed his face with her hands on average not less than once per month. The Father gave evidence about an incident in 2001.
The Father told Associate Professor Q that the parties have not slept together since the child R was about 14-15 months old. Thus, according to the Father, from about 2000-2001 the parties ceased sleeping together. The child R slept with the Father. The child H slept with the Mother. The Mother slept on a mattress in the lounge room of the home.
In early 2002 the child R commenced to attend pre-school at P.
The child H was born in April 2002. The Mother breastfed the child for about a year.
The Father’s mother died in June 2002 and his father died in November 2002.
In early January 2003 the parties commenced to live at the matrimonial home. The home had been built by the Father’s late father but was unfinished. It was the Father’s parents’ home.
The maternal grandmother described the matrimonial home at … as unfinished. She said there was only one finished bedroom. It is a two storey building and there are four unfinished bedrooms downstairs. The front area is concreted and close to the street. The small strip of backyard is fenced. To access the backyard steep steps with and without railings have to be negotiated. The children usually played on the upstairs large balcony. The home is built on a cliff-like terrain and the home is very high. The Father said that the renovation of the home is not finished. He also said “While I am renovating the house, I am unable to earn income to fund the purchases of materials for the renovation. Because of Council restrictions the hours on which I can work on the house coincide with the hours I work to earn an income”. There was put in evidence photographs of the exterior of the home but no photographs of the interior.
The Father contended that in 2002 and 2003 he was renovating the matrimonial home.
In February 2003 the Father purchased the matrimonial home from the estate of his late father.
In May 2003 the Mother had a miscarriage.
On 31 October 2003 the maternal grandmother gave $66,125 to the Mother which was deposited to the credit of the Father’s mortgage account with the St George Bank.
In early 2004 the child R commenced to attend the local Public School.
In April/May 2004 the Father advised the Mother that the School Counsellor had telephoned the Father and complained that the child R had not been attending school.
The Father contended that on about five occasions between August 2004 and October 2004 he asked the Mother to attend marriage counselling.
The Father contended that in about August or September 2004, on an occasion when a person from an organisation called GROW was at the home, the Mother said that she was really worried because she thought the lady next door was trying to poison her.
Mrs PH gave evidence that the Mother said to her that a neighbour identified as O was trying to poison the Mother and she also heard the Mother have a conversation with the neighbour O during which the Mother stated that she was going to get the authorities to check out the neighbour’s place for poison because the neighbour was trying to poison the Mother. This may have been a psychotic delusion of the Mother.
Mrs PH also said “The wife often locked the child [R] on the front deck. I was very concerned because it is nearly three stories high and is dangerous for a child who is unsupervised and open to all weathers” and further she said, “I would often see the child [R] locked out on that deck. She would scream and cry and appeared to be very distressed and would cry out for he [sic] Daddy. She would say words to the effect ‘Daddy, Daddy, […], Daddy, Daddy, […]’, which I found strange”. However, in cross examination, in relation to the occasions when the child was supposedly “locked” out on the deck, Mrs PH said “A few times when she was playing up”. Mrs PH went on to recount that the child R use to “play up a fair bit”. She then conceded that what she said in her affidavit was not “quite true” and that the door was not “locked” and may have simply been closed and that she heard the door “slam”. Further, she said that it mostly occurred of a morning as the child R did not want to go to school and that the Mother “had a lot of trouble with her”. She also said that she did not “really see a lot” of the Father “because he was at work”. As well, when she did observe the Father with the children it was when he took them “to a little bit of yard” at the back. In summary, I have some difficulty in reconciling what Mrs PH said in her affidavit and what she said during cross examination. I accept that she probably did hear the Mother having a confrontation with the child R but I do not accept that it was as severe or as frequent as could be inferred from reading Mrs PH’s affidavit.
There is then the evidence of Mr PH and an examination of what he said in his affidavit reveals that it is largely a mirror image of what was said by Mrs PH. Given what I have found in relation to the evidence of Mrs PH, and because Mr PH was not available for cross examination, I propose to place little weight on what Mr PH said.
Reports were made to the Department of Community Services on 8 and 19 September 2004. During 2004 there were a number of aspects of the behaviour of the Mother that caused the Father concern.
The Father contended that on 14 September 2004 the Mother punched him in the head with a closed fist and ground her knuckles into his head and it “really hurt”.
The Mother contended that in about September 2004 the parties had an argument and she told the Father that she had enough and wanted a divorce. The Mother also told the Father that she proposed to take the children and go to her mother’s place. The Mother contended that the following day the Father, when he returned to the home, told the Mother he had been to the Police and sought an Apprehended Violence Order against the Mother and that the Police were going to arrest the Mother.
On 18 September 2004 some social workers from G Hospital visited the Mother at the matrimonial home. The Mother said she later made enquiries at Legal Aid, Women’s Refuges and the local hospital. The Father had spoken to the local Health Area on 16 September 2004.
Referring to the records from the local Mental Health Team of 18 September 2004 the mother’s psychiatrist said that in the assessment of the Mother at this time she was noted to be fearful, irritable and concerned about the activities of her neighbours. Further, that the possibility of “persecutory delusions” was raised, a “DOCS notification” was made and involuntary detention was arranged.
According to the Project Magellan Report a total of 26 reports were received by the Department of Community Services after 8 September 2004. The first notification appears to have occurred on 8 September 2004 and the recorded risk of harm is “risk of psychological harm due to domestic violence”. However, a notification did not proceed to “secondary assessment” or risk of harm assessment.
On 22 September 2004 the Mother was at the home caring for the child H as the child R was at school and the Father unexpectedly returned to the home. The Mother said that two people also arrived at the home and were invited in by the Father. The Mother said that there was a male and female person and the male person introduced himself as Dr X. They had a conversation and subsequently left. The parties then had an argument. The Mother gave detailed evidence about what happened on this occasion and what was said.
The Mother said that on the afternoon of 22 September 2004, and before she was due to collect the child R from school, two Police Officers arrived at the home. The Father was also present. The Mother contended that one of the Police Officers took a telephone off her and said “Grab a change of clothes. You’ve been scheduled and we’re here to take you to [G] Hospital. You can only get some clothes but you have to come straight away”. The Mother was then taken to G Hospital where she was involuntarily admitted to the psychiatric ward.
On Thursday 23 September 2004 the Mother was transferred to W Hospital. The Mother contended that on two occasions the Father visited her at W Hospital, once with the children and once by himself. On one occasion he gave the Mother twenty dollars and said “Have a holiday”. The Father contended that he gave the Mother twenty dollars and said “Relax and try and have a rest” and that he did not throw the money at the Mother. The Mother was discharged from W Hospital in September 2004 and she returned to the home at C Street.
In summary, in September 2004 the Mother was involuntarily admitted to psychiatric wards of G and W hospitals because of information provided to hospital authorities by the Father and the Police. The Mother remained in hospital for five days and was discharged without medication or referral to a doctor. The mother’s psychiatrist said that the Mother was not given a diagnosis and was not discharged on any treatment. The Department of Community Services documents record that the Mother was assessed by Dr F that she had no mental health issues.
At this point of the history I note that in her report of 9 May 2006 the mother’s psychiatrist said that from her history it would appear that the Mother had significant symptoms of illness in mid 2004 that were affecting her mood, energy level and mental state. The Mother was ultimately diagnosed as having developed auto immune hypothyroidism and the mother’s psychiatrist said that patients with this condition are likely to experience a wide range of neurological, somatic, metabolic and psychiatric symptoms. It is likely to precipitate a psychiatric condition. The psychotic symptoms include paranoid ideation which can occur as a complication of hypothyroidism and that even in a relatively mild to moderate disease, psychotic symptoms may be precipitated in an individual with an underlying genetic vulnerability alone or in combination with significant stress. Further, the mother’s psychiatrist said that it appears that the Mother experienced symptoms of labile mood, irritability, anxiety and significant psychological distress between at least mid 2004 and early 2005. The mother’s psychiatrist also said that hypothyroidism has a major effect on mental state and it is like an organic brain syndrome. She said that people’s memory, their attention and their concentration is impaired and that it is highly likely that the Mother’s memory of events at the time was considerably influenced by her hypothyroidism. These symptoms occurred in the context of significant marital conflict and underlying thyroid disease. Associate Professor Q corroborated what the mother’s psychiatrist said and also said that hypothyroidism is well known for causing a mental disorder. She said that it can mimic schizoid behaviour of the type she described on p 49 of her report. The mother’s psychiatrist said, which I accept, that in 2004 the abnormalities in the Mother’s thyroid would probably “go a long way” to explaining the Mother’s changes in mood that were described and behaviour and “some of the possible psychotic symptoms that have arisen.”
The Father said that while the Mother was in hospital “… my sister and I did a lot of cleaning and washing of children’s clothing, as it had built up before the Mother went to hospital. For example, we did about 20 loads of washing”. The inference I draw is that ordinarily this was the responsibility of the Mother however, for a period of time in 2004 she had fallen behind.
Mr A gave evidence that the Mother often said “the house is very messy please don’t come” and “the carpets are being cleaned”. Mr A gave no explanation as to why the Mother said what she did or why this evidence was put before me. His partner Ms L also gave evidence that a couple of years ago on an occasion when she visited the home at C Street it was in an absolutely filthy condition and there was a mess “everywhere”. Ms L gave no evidence explaining what she meant and thus, I propose to place little, if any, weight on what she said given her failure to explain exactly what she observed or why she gave the evidence which she gave. In cross examination Ms L said she did not know why this material was included in her affidavit or which parent was responsible. She never described what she saw. I indicated in discussion that I was of the view that what she said was irrelevant and I maintain that view given, amongst other things, that the Father gave no evidence about the matter and frankly I can understand why.
I also note that Associate Professor Q recorded that the Father told her that before the Mother went to hospital “the house was in a putrid state”. In my view, what the Father said was somewhat gratuitous because I have no doubt that during 2004 the Mother was in ill health and the Father did not suggest that he or members of his family or his friends did anything to avoid the home reaching such a state or undertake any domestic tasks.
The Mother contended that in late September 2004 the Father assaulted her by hitting her in the right temple. The Mother became giddy, developed headaches and tingling and numbness in hands and feet. In late October 2004 the Mother consulted a general practitioner about continuing symptoms from the assault.
The mother’s psychiatrist said that by October 2004 the Mother reported that she was experiencing significant problems with low energy, slowed movement and cognition, sensory changes in her limbs, and cold intolerance. She described her mood as flat and was distressed about the events surrounding her marital relationship and the involvement of the Mental Health Team. The Mother recalled that she was referred to a Neurologist for investigations. The mother’s psychiatrist also noted the Mother’s history that in October 2004 she was diagnosed with hypothyroidism.
In November 2004 the Mother saw a Consultant Neurologist, Dr R. The Mother did not disclose the assault by the Father. The mother’s psychiatrist considered correspondence from Dr R dated 10 November 2004 and 2 December 2004. Dr R noted that the Mother was experiencing sensory symptoms affecting her arms and legs over the preceding month. She also noted some possible paranoid ideas regarding her neighbour. Dr R organised investigations including blood tests, nerve conduction studies and a cerebral MRI scan. No abnormalities were detected. In a letter of 2 December 2004 Dr R concluded that the Mother’s recently discovered thyroid disease was likely to be responsible for her symptoms. In summary, in November 2004 the Mother was diagnosed with inflammation of the thyroid and hypothyroidism. The Mother was prescribed medication. Hypothyroidism is a condition resulting from a deficiency in the activity of the thyroid gland. The condition can be successfully treated by the administration of powdered thyroid gland or a hormone called Thyroxine.
In the Department of Community Services records there are a number of documents titled “contact record” in which there is recorded information that was received from an unidentified source. Having read these documents I am quite satisfied that the source of the information was by or on behalf of the Father and not by or on behalf of the Mother. On more than one occasion the informant advised that the Mother has mental health issues and that she “has been diagnosed with either schizophrenia or bipolar disorder”. In one contact record it is recorded there was concern that the Mother was sexually assaulted by her brother when she was 11 years old and that the Mother’s brother frequents the Mother’s house and the children are there and that the solicitor tried to get the Mother’s brother to stop going there but he would not comply with this request and that the solicitor “is getting affidavits today stipulating this”. Again, I have no doubt that the source of this information was by or on behalf of the Father and this is corroborated by a document titled “assessment record” in which the same complaint is recorded and further it is stated “caller said his solicitor is getting affidavits today stipulating this”. In one “contact record” it is contended that at Christmas time 2004 the child R was locked out on the front verandah and there was swearing coming from the child and the Mother and the child was yelling out “Daddy, Daddy, Daddy, where are you […]”. I have no doubt that the Father has made a number of notifications to the Department of Community Services about the Mother’s care of the children.
In early November 2004 the maternal grandmother had a conversation with the Mother and then went to stay with the parties. She stayed with the parties for about six weeks in November/December 2004. At the time the Mother looked and seemed to be very tired and had to rest. The maternal grandmother said the housework was often not done and she observed that the Father was absent at work most week days and she did not see him perform any home duties over that period. The maternal grandmother also said that she heard the Father criticise the children and in particular the child R and on a number of occasions the child said “I’m scared of Daddy”.
The maternal grandmother assisted the Mother with all household work, shopping and caring for the children. The maternal grandmother did not observe the Father interact very much with the children. She did however, observe that the Mother was the main carer of the children and they would go to her for attention and all requests for help. The Mother prepared meals for the children, took them to all appointments and activities and generally cared for them. Associate Professor Q and the father’s sister said that the Mother is the primary attachment figure for the children. I have no doubt that the Mother was the primary carer of the children. However, I also accept that in the second half of 2004 given her health the Mother had difficulties with domestic tasks.
In the period November/December 2004 the maternal grandmother purchased and paid for a number of items for the parties including clothing. As well, she provided the Mother with cash. The maternal grandmother gave evidence that during the relationship of the parties she provided the parties with considerable financial assistance both directly and indirectly.
The maternal grandmother also paid for the Mother to sleep at a motel for some nights over this period in late 2004 as it was difficult to wean the child R when the Mother was present at night at the home.
The maternal grandmother gave evidence that she never saw the Mother remove cooking utensils from the kitchen nor did she see her throw out any household items or furniture other than items which were old or broken or required replacement. As well, she never saw the Mother become violent and, apart from her tiredness, she described the Mother’s behaviour as ordinary and nothing was unusual about her mood or manner. She denied that she had an argument with the Mother about a white sheet. She did however observe the parties frequently argue over every day matters and as well, heard the Father verbally abuse the Mother. She contended that she observed that the Father constantly found fault with everything the Mother did and he never lost the opportunity to criticise her. The father’s sister said that the parents would conflict over routine issues.
During the relationship of the parties the Mother frequently asked her mother for money or financial assistance with household and other expenses. The maternal grandmother gave evidence about bank accounts she held for many years with the Commonwealth Bank. She examined her books and bank statements for the period March 1999 to May 2005, and other records of her late husband, and ascertained that the amount of direct financial assistance given to the parties was in excess of $170,000. She annexed to her affidavit a schedule of the amounts. As well, when the parties lived at P it was her habit to buy groceries for the Mother as well as nappies and formula for the children and pharmaceutical items. As well, she purchased household goods, toys, clothing and small electrical goods as well as nursery furniture, linen, beds, cots and blankets. After the parties commenced to reside at the matrimonial home the maternal grandmother bought non perishable grocery items as well as clothing and other things for the children. The maternal grandmother mailed items to the Mother in boxes. I am not going to repeat all of the evidence of the maternal grandmother about the extent of financial and non-financial assistance she gave to the parties. However, it is obvious to me, and I accept her evidence, that she provided very significant direct and indirect financial and non-financial assistance and support for the parents during their relationship and in particular during 2004.
The Father contended that on 15 December 2005 the parties were at a social event and the Mother complained that she had heart pains. When the parties returned home the Mother said that she was going to see a Doctor and she returned home at about 11.00 pm and again left the home without saying where she was going.
The Father contended that on 16 December 2004 he observed a yellow/orange substance in the kettle in the kitchen and later he had a telephone conversation with the Mother during which she said that she had put vinegar in the kettle. The Father contended the parties had a further conversation on 17 December 2004 during which he again asked the Mother what she had put in the kettle and she said what would he do if it was arsenic. He then telephoned The Health Assessment Team and later that day they attended the home. The maternal grandmother said that at no time over the period did she see any thing else in the kettle but water and did not see any coloured substance in the kettle.
On 17 December 2004 personnel from G Psychiatric Unit visited the Mother at the matrimonial home. The Mother gave extensive evidence about what happened. One of the psychiatrists said to the Mother “Why do you think your husband keeps claiming something is wrong with you? Why do you think he keeps calling the hospital?”. The Mother said “I’m not sure why, but when I said I wanted to get a divorce, he said he was worried that he would lose the children”. The Father then said “I’ve heard her say that the neighbour is trying to poison her”. One of the persons from the hospital said “Is this true?” and the Mother said “No. I wouldn’t be here with my two children if I thought it was not safe”. The Father then brought out what seemed to be a two litre cordial bottle. The Mother had not seen it before. It had orange liquid in it and was quite full. The Father said “This is what I found in the kettle. It is poison. I think she is trying to poison me”. There was further discussion and the Doctors then left.
The Mother contended that on 17 December 2004 she formed the view that the marriage could not continue. She was concerned that she might again be involuntarily scheduled as a result of complaints or actions of the Father. On 17 December 2004 the Mother left the matrimonial home with the children and her mother and went to her mother’s home in Sydney. The Father observed the Mother put clothes for herself and the children in a motor vehicle. The Mother left a message on the mobile telephone of the Father “We are going down to Sydney as Mum’s car is fixed and ready to pick up from the garage”. The Mother subsequently had a telephone conversation with the Father. The Mother contended that the Father was at all times aware that she was leaving to go down to Sydney with the children and that he observed her take the children’s clothing and various belongings. The maternal grandmother was present and she left with the Mother. The Father admitted the Mother telephoned him and said that she was going to her mother’s place.
The Mother arrived at her mother’s home on 19 December 2004. She telephoned the Father on 19 December 2004 and had a conversation with him during which she said “Where are you?” and he said “I’m at the Police Station”. The Mother then had a conversation with a Police Officer. There was put into evidence a “COPS” report (Exhibit H) from the Police Service dated 19 December 2004.
On 20 December 2004 the Mother attended a Sydney Police Station with the two children as she was required to do so given the information provided by the Father to the Police. The Father lodged a missing persons report.
The Police attended the maternal grandmother’s home on 21 December 2004. As well, on 21 December 2004 the Mother received a telephone call from an employee of G Hospital. She had a further telephone conversation that day with someone from G Hospital Home Base Team. The Mother then consulted with Dr GH at a Sydney suburban clinic and he provided the Mother with a letter which he then sent by facsimile transmission to G Hospital Home Base Team.
On 22 December 2004 the Father filed an application seeking the return of the children and alleging the Mother required urgent psychiatric assistance.
On 23 December 2004 the following orders were made:
1. That the proceedings be adjourned to the Registrar's Duty List at 9:45 am on 21 January 2005.
2. That any documents on which the father seeks to rely in relation to the question of parenting arrangements or in relation to an application for maintenance including a financial statement, Response and affidavit be filed and served not later than 12:00 noon on 19 January 2005.
3. That until 6:00 pm on 21 January 2005 unless the parties otherwise agree the children [R] born [in] January 1999 and [H] born [in] April 2002 reside with the father from:
a.1:00 pm on 25 December 2004 until 1:00 pm on 27 December 2004;
b.1:00 pm on 1 January 2005 until 1:00 pm on 3 January 2005;
c.1:00 pm on 8 January 2005 until 1:00 pm on 10 January 2005;
d.1:00 pm on 15 January 2005 until 1:00 pm on 17 January 2005.
4. That at all other times unless the parties otherwise agree they are to reside with the mother.
5. That it be a condition of their residence with their mother that she reside at all times and only house the children overnight at the address of her mother […], […].
6. That for the purpose of giving effect to these living arrangements the father collect the children from the mother at the commencement of each residence period with him and that the mother collect the children from the father at his residence at the commencement of each residence period with her.
7. That pursuant to Section 62F the parties attend confidential counselling at times and dates appointed by the Manager Mediation AND the Court noted that the parties are to have separate appointments at least in the first instance.
8. That leave be granted to either party to attend that counselling by telephone.
9. That any further material on which the mother seeks to rely be filed and served by 12:00 noon on 19 January 2005.
10. That leave be granted to the parties to the extent that it is necessary for them to issue such subpoena in relation to parenting issues as they may be advised without limit as to number.
11. That if practicable any subpoena issued within time be made returnable at 10:00 am on 21 January 2005.
12. That the costs of the parties of and incidental to these proceedings be reserved.
The Mother arranged for the children to telephone the Father every day until he went to the maternal grandmother’s home to collect the children for contact pursuant to the orders of 23 December 2004.
The maternal grandmother recalled that in 2004 the Father came to her home to collect the children and she heard the Father say to the child [H] in a loud voice “Stop it, or I’ll smack ya bum”. As well, she heard the parties have an argument and the Father was shouting at the Mother in a loud voice. The maternal grandmother said to the Father “For goodness sake, keep your voice down, the whole neighbourhood will hear you”. As well she heard the Mother say “There’s nothing wrong with me” and the Father say, “I’m going to report that you locked your mother out of the house”.
The children resided with the Father between 25 and 27 December 2004. The Mother telephoned the home at C Street to speak to the children to ensure that they had arrived safely. The Mother contended that apart from this call and her further calls to the children she did not receive any telephone calls from the children while they were in the Father’s care.
The Mother gave evidence of discussions the parties had subsequent to 23 December 2004. The Mother contended the parties had a conversation during which the Father said “I miss you”. The Mother said “I miss you to. What do you want from all of this? Do you want to be together or not?”. The Father said “There are only two outcomes. One is we get back together, but that will happen only under certain circumstances, or, we go our separate ways. Either way, I am happy.” The Mother then said “Under what circumstances will the two of us stay together?”. The Father said “You have to give me custody of the kids and for you have to say that you’ve got a problem.”
The Mother gave evidence about a telephone conversation she had with the father’s sister on 24 December 2004.
The Father contended that after December 2004 he did not allow the children to shower with him. As well, on advice, he ceased sharing a bed with the child A. The child had slept in the Father’s bed for a number of years. In his affidavit of 26 May 2006 the Father said that prior to separation in December 2004 the child R “shared a bed with the wife and me” and that after December 2004 the child “stopped sharing a bed with us”. He also said that on many occasions when he was in the shower the Mother brought the children in to shower with him but after December 2004 he did not allow this to happen. Elsewhere in this affidavit he said that the child R had her own bed “at all times during the residence periods” and the child H “shared a double bed with me”. When the Father was interviewed on 4 November 2005 at The Police Station he said that the Mother and the child R would always sleep in the lounge room and that he had been told that he was not allowed to bathe with the children or sleep with them which he had done all of his life. He also said that the child R would want to “hop in that bed” and he would let her but he would then tell her to go back to the single bed and that she obviously felt left out with he and the child H in bed together.
On 27 December 2004 the Mother travelled to the matrimonial home by train to collect the children. The parties had agreed that the Mother would thereafter stay at the matrimonial home and the parties would reconcile. When the Mother was at the home the Father said “For us to get back together you must write out a statement that I have custody of the kids and you’ll take medication and see a doctor”. The Mother contended she wrote on a piece of paper what she thought the Father wanted and he then changed it and said “I won’t sign the statement and we won’t get back together unless it’s worded the way I want”. The document was put into evidence by the Mother and it records:
I [Ms Collins] of […], do state that [Mr Collins] and myself have decided to reconcile our difference. I would like to remain with [Mr Collins] at […]. [Mr Collins] agrees I am a caring and loving mother and the carer of the children. But he would like to care for our children during this reconciliation period. Also that I see doctors with [Mr Collins] to get on top of stress. We would both like to go to relationship counselling. Thank you to everyone for their help in this process.
The document is dated 11 January 2005 and was signed by both parties.
The Mother contended that after the parties reconciled she tried hard to carry out the agreement with the Father. She took extra care with the home. She took the children of the Father’s sister to the beach with the children of the marriage. At the request of the Father she also commenced taking some natural herbal stress relief tablets. The Mother also contended that she said to the Father that the parties must see a Marriage Counsellor at Relationships Australia and the Father said to make an appointment but the Mother did not make the appointment as the Father appeared to have lost interest.
The Father contended that the Mother was absent from the home between 14 and 31 January 2005 and the children resided with him. However, elsewhere in his affidavit he contended the Mother returned to the home on 21 January 2005 and also the parties and the children went camping between 21 and 23 January 2005. The Mother admitted that the parties went camping between 21 and 23 January 2005.
On 21 January 2005, by consent, orders were made:
1.That the orders made on 23 December 2004 be vacated.
2.That the applications of the parties before the Court be dismissed.
3.That there be no order as to costs.
The Father contended that when the parties returned home at about 5.00 pm on 23 January 2005 the Mother said that she was going to get some bread or milk and at approximately 9.00 pm he received a telephone call from the Mother and she said that she was at her mother’s home.
The Father contended that on 26 January 2005 the Mother had still not returned to the home. The Father was concerned that the vehicle he was driving could only carry one child so he resolved to go to Sydney to look for a vehicle. He left the child R with his sister and took the child H. While he was in Sydney he arranged to meet the Mother for lunch. The parents, with the child, then “looked at cars”.
The Father contended that on 30 January 2005 he telephoned the Mother and requested that she return home and also bring the children’s clothing. The Father contended that the Mother returned to the home on 31 January 2005. The Mother took the child R to school.
The Father contended that on 31 January 2005 the Mother telephoned him and said that he had to collect the child R from school because she was in Sydney. The Father contended that between 31 January 2005 and 19 February 2005 he was the sole carer of the child R at the home at C Street and the Mother had no contact with the child. The Mother had returned to Sydney with the child H.
On 7 February 2005 the child H commenced to attend Kindergarten at P.
The Father contended that on 18 February 2005 he went to Sydney to collect the child H and bring her home. On 18 February 2005 the Father returned to the Central Coast with the child H as did the Mother. Then on Saturday 19 February 2005 the Mother left the home with the child R and said to the Father that she was going to Sydney with the child for the night. On 20 February 2005 the Mother telephoned the Father and informed him that the child R was sick and that they would return the following day. The Mother returned to the home with the child R on 21 February 2005.
In February 2005 the Mother stayed with her mother for a period. She telephoned the Father every night. On one occasion she took the child H to a local indoor pool for a swim. She arrived home before the pool had closed and the child had fallen asleep in the car. The Mother was woken at about 1.00 am by two Police Constables from the Police Station who were at the home.
The maternal grandmother contended that on 19 March 2005 the Father arrived at her home at about 9.00 am and she observed that he was angry and shouting loudly.
In her report the mother’s psychiatrist referred to a letter dated 11 April 2005 from Dr D, Consultant Physician and Endocrinologist in which he noted that the Mother’s symptoms of peripheral paraesthesia, coldness and tiredness with which she presented in October 2004 were consistent with hypothyroidism. The mother’s psychiatrist said that Dr D stated that certain matters were consistent with a diagnosis of autoimmune thyroid disease and he recommended life long thyroxine replacement.
The Father contended that during Easter 2005 the parties attended a barbeque at N and an incident occurred when the Mother was screaming and swearing and that she “threw” the child H at him and “I caught her”.
In April 2005 the Father purchased a “dual cab ute” and to pay the cost he borrowed $22,800.
The Father contended that on 8 May 2005, when the parties were travelling back from D, they had an argument and the Mother was swearing and tried to hit him.
The Mother contended that on 9 May 2005 the Father assaulted her. The Father grabbed the Mother by the left shoulder and pushed her against a wall corner causing bruising and pain to her left shoulder and right thigh.
The Father contended that an incident occurred on 16 May 2005 when the Mother returned from Sydney and he heard the Mother say to the child R “Shut the fuck up and get to bed”.
The Father contended that on 17 May 2005 the Mother returned with the child R and said that she had come to collect the child H and was taking the children to see a doctor. He contended that the child H said she did not want to go and was crying as the Mother “dragged her” by the shoulder and took her out of the house. Mr H gave evidence that this incident occurred at his home.
The Mother contended that on 17 May 2005 the Father assaulted her by hitting her with his right closed fist against her left cheek and nose, whilst the parties were travelling by car to E. The Mother gave evidence about what happened. The Mother went to the Centrelink office at E and also spoke to Police Officers. She then went to a Medical Centre and saw Dr K who is General Practitioner. She was referred for an x-ray.
The Father contended that on 17 May 2005 the Mother asked him if he would accompany her to Centrelink which he did and on the way they had an argument and the Mother hit him with a closed fist on the side of the head. He admitted that he retaliated “almost by instinct, by throwing my left hand out towards the Mother and this connected with her head. I slapped her back to try and stop her from causing an accident in the motor vehicle.” He contended that in the afternoon he collected the child H from preschool and the Mother later contacted him and said that she was taking the child to see a Doctor. There was put in evidence a COPS report from the New South Wales Police Service dated 17 May 2005 (Exhibit K).
The maternal grandmother gave evidence that on the morning of 17 May 2005 she received a telephone call from the Father and he said “[The mother] hit me. We were in the car and she was going on about my family. I was driving. She hit me, so I hit her back. I thought I’d tell you. I’ve already called the police and told them everything”. The maternal grandmother later had a conversation with the Mother.
There was tendered in evidence reports of Dr K (Exhibit D), dated 17 May 2005 and 18 May 2005. In the report of 17 May 2005 Dr K recorded that bruising was evident over arch zygoma, redness of the left inner eye and swelling of the left nasal bridge.
On 17 May 2005 the Mother telephoned a Women’s Refuge.
An incident occurred on the morning of 18 May 2005. The Mother contended that she was assaulted by the Father when he hit her hard with his open left hand twice on the right side of her head above her ear. She fell back and immediately felt pain in her head and ear. Both children were present and the child H was crying and upset. The Mother told the Father she was going to call the Police. The Father then pulled the telephone socket out of the wall. The Mother went into the garage where there was another phone and took the child R with her. The Mother went to Z Police Station and reported the assault.
The Father contended that on 18 May 2005 an incident occurred at the home at about 8.00 am when the Mother tried to grab the child H and he would not let her go. He said the Mother pushed her fist into his head and began twisting her wrist and he tried to grab the phone at which point the Mother pulled the phone out of the wall rendering it unusable. He then used his mobile phone and telephoned his brother in law and requested that the Police attend. He later went to the Police Station to take out an Apprehended Violence Order against the Mother. When he arrived at the Police Station the Mother was already there. There was put in evidence a report from the New South Wales Police Service dated 18 May 2005 (Exhibit L).
On 18 May 2005 the Mother again consulted Dr K. In his report of 18 May 2005 Dr K recorded bruising of the right thigh and left shoulder from previous assaults and “Orientated in time place person. Appears to have no major psychiatric issues. Speech normal. Rational train of thought. Able to recall incident clearly”. There is also a report dated 18 May 2005 from a Radiologist in which it is recorded “There may be ? minimal cortical crack at the tip of the nasal bone which does not appear to be significant. No other fracture is seen in the nasal bones. There may be slight laceration in the nasal septum”.
The Mother then returned to the home and observed that the Father was not there. The Mother also went to the home of the Father’s sister and his brother. The Mother had a conversation with the Father’s sister who said “He’s gone for a drive. He’s staying at a motel for the night with H. He’s not going home. I don’t know where he is, he said he’s gone away to think”. The Mother attempted to telephone the Father on at least seven occasions between 3.00 pm and 8.30 pm in an attempt to locate the child
At about 9.30 pm on 18 May 2005 the Mother telephoned the Father and had a conversation with him. The Father said that he was at the farm of his brother who lives at D near F. The Mother said “I’ve only got 80 cents and I am on a pay phone. Is [H] okay? Where are you?”. The Father said “I’m at [the brother’s] farm”. The Mother said “You disappeared and didn’t say where you were going. I’ve rung all afternoon to find were [sic] [H] was. Is [H] alright?”. The Father said “She’s fine”. The Father contended that he took the child H and travelled to N to stay with his brother. The child R was at school.
I am satisfied that both children have a close attachment to the Mother. She has been the primary carer. I repeat that the father’s sister said that the Mother is a loving mother and agreed that the children are primarily attached to the Mother.
I am also satisfied that the child H has a close attachment to the Father. I am satisfied that the child R has an ambivalent relationship with the Father.
I am satisfied that the children have a close and loving relationship with the maternal grandmother. Associate Professor Q said that the children are fond of their grandmother.
I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between each child and the other parent. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated. This is an important matter.
On behalf of the Father it was submitted, and I accept, that the Mother firmly believes that abuse of the child R occurred and she has not considered the possibility that the abuse did not occur. The Mother believes the child. The mother’s psychiatrist was of the opinion that the Mother’s distress and belief in the abuse was genuine. However, I am satisfied that the Mother has in the past demonstrated a willingness and ability to facilitate, and encourage, a close and continuing relationship between the children and the Father. An example is the gifts arranged by the Mother for the Father after the parties separated. As well, Associate Professor Q reported that the Mother wants the Father to see the children and that the Mother said she is supportive of the relationship between the Father and the children. I am also satisfied that the Mother would comply with any orders I may make.
I am required to consider the likely effect of any changes in the circumstances of each child including the likely effect on each child of any separation from either of the parents or any other child or other person including any grandparent or other relative of each child, with whom each child has been living.
This is an important matter. Associate Professor Q said, and I agree, that if the children resided with the Father and spent time with the Mother on either an equal or limited basis that this would be very traumatising for the children given that the Mother has been the primary carer and they have been in her care for some time. She said that it would be a very disruptive and potentially traumatic experience for the children. She went on to say that even in the absence of the allegations of sexual abuse it would be a very disturbing experience for the children to have a change of residence, it would be very traumatising. I accept the opinions of Associate Professor Q. I also take into account that the mother’s psychiatrist said that if the Father had “unsupervised contact” the Mother would find it extremely distressing and would require ongoing psychological support. This would probably impact on her ability to care for the children.
The children have not seen the Father for some time and although I am concerned about the separation of the children, and in particular the child H, from the Father it is clearly not as important as any separation from the Mother.
I am required to consider the practical difficulty and expense of each child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the right of each child to maintain personal relations and direct contact with both parents on a regular basis.
I do not see this matter as particularly important. The Mother will continue to live in Sydney and the Father will either live in Sydney or the Central Coast. However, I do accept that if I made the orders proposed by the Independent Child Lawyer then there may be difficulty and expense involved in the children spending time with the Father.
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of each child, including emotional and intellectual needs.
In her report Dr Q said:
[The father] seemed very responsible and committed to the children and was strongly child focussed. While he appeared to have the capacity to provide adequately for all their needs, the nature of the disclosure made by [R] suggests that there are other issues to be considered.
The mother showed somewhat less child focus than did the father and she was notably vague on important issues such as contact and plans for the future. For example, she had very little idea about where she would reside or how contact might be facilitated.
[The father] is very sad and dejected and obviously deeply concerned about the loss of the children and the break up of the family. Apart from this reactive and largely appropriate level of depression he did not endorse any symptoms of psychiatric disturbance. However, Police records suggest he may have a degree of antisocial behaviour. Certainly, his brother, […], has a significant history in this regard and [the mother’s] comments about the family may be relevant, at least with regard to [his brother]. Also, in apparently notifying the mental health team and then seeming to deny knowledge of what was happening, it appears that [the father] may be rather manipulative.
The mother’s mental status did not appear normal. Her manner was uninhibited and over familiar. Her affect was not appropriate to the content of her history. She showed a remarkable vagueness about quite serious issues. Her demeanour when she brought the children into the room and greeted [the father] and his sister was extremely inappropriate to the circumstances. She denied any obsessive rituals but some of the behaviour reported by [the father] (such as wiping boots or using tissues on the steering wheel) would suggest either obsessive compulsive behaviour (a preoccupation with germs and cleanliness) or perhaps paranoid thinking (paranoid ideas about being contaminated or poisoned).
It is evident from the mental health records that an accurate assessment of [the mother’s] mental status has been difficult. Dr X’s initial impression was of a psychotic disorder – to the extent that he arranged an involuntary admission to hospital. However, she appeared to settle very easily in hospital and when reviewed by another Psychiatrist, she was discharged with no diagnosis of major mental illness. Since this issue could not be resolved in spite of observation over a period of days in a mental health unit, it is not surprising that it was difficult to determine in the context of this present assessment.
Whilst it is impossible on the basis of my clinical examination to be confident of the diagnosis, the impression was definitely of some psychiatric abnormality. The mother’s presentation, together with subpoenaed notes, suggest a psychiatric disturbance of a chronic nature, possibly fluctuating in intensity. Her symptoms of disorganised speech, agitation and elevated but blunted affect, with past evidence apparently of paranoid thinking, appear to be both psychotic and manic in nature. It is possible that she suffers from a Schizoaffective or Bipolar I Disorder – more likely the former. Sometimes transient psychotic disturbances are seen in Borderline Personality Disorder but the mother has no other features of that condition.
If the father’s report of the mother’s behaviour can be relied upon (and this is a complex issue in itself) this too suggests that she has a significant psychiatric disturbance. She denied all of the matters that [the father] has raised about her behaviour. His reports suggest that she has expressed paranoid ideas and these may well include ideas that her husband was conspiring to have her committed to a mental institution. However, there appears to be some basis to this in that [the father] did appear somewhat disingenuous about the involvement of the mental health team, given that he had notified them. It may be that both accounts have some validity – that [the mother] does have some mental illness and that [the father] was invested in dealing with this in a way that would advantage his position.
The mother did not report issues relating to the father’s mental capacity but reports that he has been verbally and physically abusive towards herself and [R] and denigrating of both of them. [R’s] history tended to confirm this.
The history of the maternal grandmother was rambling and circumstantial. She appeared to be quite frail physically and the impression was that, while sincere and well meaning, her mental processes are perhaps a little frail as well.
Associate Professor Q also said:
If [R’s] disclosure is accurate, there would appear to be a risk of harm sexually to both children in circumstances of unsupervised contact with him.
There are also issues relating to the mother’s mental state. [The mother] should have ongoing psychiatric assessment. It may be that she needs to be seen over a period of time by one Psychiatrist in order for her mental state to become more clearly defined. However this would need to be a voluntary arrangement as there are insufficient grounds to require her to participate on an involuntary basis. It would best be done privately since the public sector is likely to cease follow up unless there is clear evidence of serious mental illness. Considerations of risk to children are not generally taken into account in the adult mental health services. A private Psychiatrist monitoring [the mother] regularly (at least fortnightly) over a period of twelve months would be able to formulate her mental status more precisely.
The mother’s mental health problems do not appear to pose a risk to the children in terms of their basic care and physical safety and their educational needs, but there may be some risk to the children psychologically if she has ongoing paranoid ideation and/or marked affective instability. It should be possible to contain this risk adequately by her remaining in continuing psychiatric care with adequate support and follow up via a mental health unit and/or DOCS.
In my view the maternal grandmother would not be able to contribute other than by providing a home and financial support and some assistance with the care of the children. She is elderly and frail and would not be able to cope emotionally with a psychologically demanding situation. Otherwise, [the mother] is in a vulnerable position and needs support as referred to above. In my view, because of this vulnerability, it would be preferable for DOCS to maintain some level of monitoring of the children since in my experience adult mental health services seldom can provide care that is optimal for the children of adults who are mentally ill.
As to the Mother the evidence of her psychiatrist was important and helpful. She said that in terms of the Mother’s blood results her thyroid function is now normal. The Mother has been reviewed by an endocrinologist who confirmed that. The Mother reported that her compliance is very precise and her psychiatrist was of the opinion that the Mother is now absolutely aware of the need to take thyroxine regularly and continuously. The mother’s psychiatrist said that in terms of the Mother’s compliance with her the Mother has attended regularly on time and has done all of the things that she was asked to do in terms of monitoring of her mental state. As well, the mother’s psychiatrist said that it was her view that once the issues before this Court were resolved, particularly if the Mother felt secure in terms of her relationship with the children that her level of anxiety would significantly improve. The mother’s psychiatrist was of the opinion that over the course of the last 12 months the Mother’s level of function and her ability to organise her affairs has significantly improved and her psychiatrist would expect that to continue. The mother’s psychiatrist intends to be available to continue to deal with the Mother as a patient on an ongoing basis.
I am satisfied that the Mother is and will continue to be able to adequately provide for the needs of each child, including emotional and intellectual needs. She will also have the assistance of her own mother and will continue to have medical treatment.
As to the Father I am not satisfied that he would be able to provide for the needs of the children as well as the Mother can. He has not been as involved as the Mother in the daily care and support of the children. His financial circumstances are uncertain and he obviously had difficulties in the past. He is also reliant on the assistance of others.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant. There is nothing I need to say in relation to this matter.
I am required to consider the attitude to each child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
I am satisfied that the Mother has an appropriate attitude to each child and to the responsibilities of parenthood. Subject to the findings in relation to abuse I am satisfied that the Father otherwise has an appropriate attitude to each child and to the responsibilities of parenthood
I am required to consider any family violence involving each child or a member of the family of each child. I have already dealt with the issues of violence.
I am required to consider any family violence order that applies to each child or a member of the family of each child if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to the child or a member of the child's family. In considering what order to make I must, to the extent that it is possible to do so consistently with the best interests of each child being the paramount consideration, ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order. There are no current family violence orders.
I am required to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to each child.
This is a difficult matter and consideration of it depends on the findings in relation to abuse including sexual abuse or risk of such abuse. One matter, I am confident about is that at the present time if the Father were to spend unsupervised time with the children then, given what has been said as to the effect on the Mother there may be further proceedings.
I am required to consider any other fact or circumstance that I think is relevant.
The mother’s psychiatrist said, and I accept, that if any time the children were with the Father was unsupervised then the Mother would be extremely distressed and she would require ongoing psychological support. This would impact on the Mother’s ability to appropriately parent the children.
Conclusion
When making a parenting order I must apply the presumption that it is in the best interests of each child for the parents to have equal shared parental responsibility for each child. However, the presumption does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
In this case I am satisfied that the presumption does not apply because there has been child abuse. I have found that the Father did physically hit the child R. Interestingly, having regard to the wording of s 61DA(2) my finding that there is an unacceptable risk of sexual abuse may not by itself prevent the presumption from applying. However, in any event, having regard to my finding that there is an unacceptable risk of sexual abuse and my findings in relation to the other statutory considerations I am of the opinion that it would not be in the best interests of each child for the parents to have equal shared parental responsibility and thus even if the presumption did apply it has been rebutted.
I am satisfied that it is in the best interests of the children that they continue to live with the Mother who is and has been their primary carer and to whom they are closely attached.
The next matter to consider is whether having regard to my finding as to an unacceptable risk of harm the children should spend any time with the Father and if so whether it should be supervised.
In cross examination Associate Professor Q said that having seen the video recordings of the interviews of the child R she would “much strongly recommend supervised contact” perhaps once or twice a month to sustain a relationship between the Father and the children. After having seen the video recordings Associate Professor Q felt much more strongly that there was a risk of harm to the children and in particular the child R.
Associate Professor Q was of the opinion that if there is an unacceptable risk of harm to the children then contact needs to continue on a supervised basis until the children are at an age when they can exercise protective behaviours which is generally when a child is around about 11 years of age. She said that most children by the age of 11 are reaching very close to being able to reason in adult ways and although they are not necessarily as sophisticated a lot of capacity for reasoning and judging and understanding of moral principles are present in most children by about that age. As well, it is an age when children are able to assert their ability to be able to say something in relation to something that occurs to them.
Associate Professor Q said she would recommend that supervised contact might be something like a day once or twice a month which would be a level of contact for the children to sustain some relationship with the Father.
I have come to the conclusion that the children should maintain a relationship with the Father and to enable this to happen they should see him from time to time in a supervised environment. This will continue until the children are able to understand and exercise protective behaviours. In summary, I accept the opinions and recommendations of Associate Professor Q.
In the circumstances, I will make the orders sought by the Independent Child Lawyer. However, I am going to provide that in take place every three weeks. This is slightly more than was sought by the Independent Child Lawyer.
I am not prepared to make the orders on an interim basis as the proceedings must be concluded and I see no reason why this should not happen. I also propose that the supervision be by a service as proposed by the Independent Child Lawyer. If either party seek a different arrangement then that will have to be the subject of an application.
The Independent Child Lawyer proposes and I agree that the children have counselling before the time spent with the Father commences.
I am satisfied that the orders I propose to make are in the best interests of each child.
I certify that the preceding 333 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan
………………………………………………………..
Associate:
Date: 16 February 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as COLLINS & COLLINS
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Jurisdiction
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Procedural Fairness