Costello and Costello

[2015] FamCA 1114

FAMILY COURT OF AUSTRALIA

COSTELLO & COSTELLO [2015] FamCA 1114

FAMILY LAW – PARENTING – INTERIM ORDERS – the Father to spend Christmas holiday time with the children – where allegations of sexual impropriety by the Father – where it is alleged the Father lacks self-regulation – where risk factors can be mitigated by supervision – where the children clearly enjoy a benefit from the Father

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Costello

RESPONDENT: Ms Costello

INDEPENDENT CHILDREN’S LAWYER: Ms Gray

FILE NUMBER: CSC 787 of 2014

DATE DELIVERED: 9 December 2015

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 9 December 2015

REPRESENTATION

THE APPLICANT: In person

SOLICITORS FOR THE RESPONDENT: O’Reilly Stevens Lawyers

SOLICITORS FOR THE
INDEPENDENT CHILDREN’S LAWYER Susan Gray

Orders

1. The father is to spend time withB born … 2003; C born … 2006 and D born … 2009 (“the children”) from 11:00am until 4:00pm on each Monday, Tuesday and Wednesday of the first three weeks of the 2015/2016 gazetted Christmas School holidays, save that for the Christmas week it will be Monday, Tuesday and Friday (Friday being Christmas Day) with such time to be supervised by one or more of the paternal grandparents at E Street, F Town in Queensland.

2. Changeovers for the purposes of Order 1 are to occur as follows:

   (a)On Mondays at the McDonalds Restaurant in F Town with the mother to deliver the children at 11:00am and collect them at 4:00pm;

   (b)On Tuesdays at the G Town Bakery with the father to collect the children at 11:00am and return them at 4:00pm;

   (c)On Wednesdays and Christmas Day (being the Friday referred to in Order 1 above) with the mother to deliver the children at the McDonalds Restaurant in F Town at 11:00am and the father to return the children at the G Town Bakery at 4:00pm.

3. The father is to spend time with the children during each of the last three weeks of the Christmas holidays from 11:00am on Monday until 4:00pm on Tuesday with such time to be supervised by one or more of the paternal grandparents at E Street, F Town in Queensland.

4. Changeovers for the purposes of Order 3 are to occur as follows:

   (a)On Mondays at the McDonalds Restaurant in F Town with the mother to deliver the children at 11:00am;

   (b)On Tuesdays at the G Town Bakery with the father to return the children at 4:00pm.

5. The youngest two children, being C and D, are to attend H School in G Town commencing 2016.

AND IT IS ORDERED BY CONSENT THAT:

1. Both parties are to comply with the reasonable recommendations from time to time of Dr I as to the appropriate treatment for D.

AND IT IS FURTHER ORDERED THAT:

1. The further hearing of interim orders of this matter is adjourned to 2:15pm, Tuesday 2 February 2016 in Cairns.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Costello & Costello has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT TOWNSVILLE

FILE NUMBER:

Mr Costello

Applicant

And

Ms Costello

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Mr Costello (“the father”) and Ms Costello (“the mother”) are in dispute as to what time their three children should spend with the father between now and the end of the Christmas school holidays.  The father proposes that for the first three weeks of the school holidays, which are shortly to commence, the children should spend two or three consecutive daytimes with him for about five hours each day, and thereafter move to, in the last three weeks, spending overnight time with him between 11 am on Monday until 4 pm on Tuesday afternoon.

2. In each event, he proposes that that time be spent with him at 41 Neal Street, his new residential address in F Town, and ultimately, he did not seek to cavil with the proposal that that time should spent supervised, albeit not in a vigilant sense but, rather monitored by one or both of his parents.  He also sought time on Christmas Day from 11 am until 11 am on Boxing Day.

3. For her part, the mother proposes that for all of the six weeks duration of the holidays, the father should spend five hours with the children each Saturday, and between 11 am and 4 pm on Christmas Day, as well.  She proposes that the changeovers be at the G Town bakery and the F Town McDonald’s.  The independent children’s law does not buy into the extent of the time which the children spend with the father, but does not oppose the notion of overnight time being spent so long as the risks which are associated with the father are mitigated by the presence of his parents.    

4. The agreed or non-controversial facts which underpin the controversy between the parties are, firstly, that there are allegations that the father has inappropriately acted or engaged with two patients in the course of his medical practice in, it is alleged, a flirtatious way with some species of sexual overtone.  Secondly, that one or more of the children have, on occasion, touched the father’s genitals through his clothing.  Thirdly, that the father has been an inpatient in a mental health facility on two occasions in 2013, totalling nine weeks in all.  Fourthly, that the father has had conflicting diagnoses as to the cause of his mental health issues which led to his hospitalisation.

5. Fifthly, that the father has now, pursuant to orders made by me on 2 November 2015, successfully spent monitored time with the children without any issue of sexual impropriety or crossing of boundaries being raised.  Sixthly, that there are divergent professional opinions as to the level of risk of sexual harm posed by the father to the children, most notably a conflict between a psychologist, Dr J and a psychiatrist, Dr K.  Seventhly, that the father has never been charged with any offence against children of any kind.  And, eighthly, that the father has never been found to represent a risk of any harm to children by the Department of Communities, Disabilities and Child Safety.

6. However, there are three major issues in dispute between the parties.  The first is whether, in fact the father has behaved in a sexually inappropriate manner with the girls the subject of the proceedings.  Secondly, that there was domestic violence in the relationship and that the father perpetrated it.  And, thirdly, that the father has allegedly inappropriately role-modelled for the children by inappropriately discussing adult concepts with them.  Of course, as is the case in all interim applications, it is not possible to resolve the contested matters, but inevitably, the Court acts protectively.

7. It will be appreciated that this application and, likely the trial in due course, raises the traditional competition or tension between the two primary s 60CC considerations, namely, the benefits to the children of having a meaningful relationship with each of their parents on the one hand, and, secondly, the need to protect children from the risk of harm on the other. There seems little doubt that here the children do indeed have a good relationship with the father, although, that said, it is not altogether beyond criticism. But, nonetheless, it appears as though the girls enjoy spending time with him and vice versa and that they derive benefit from doing so. I did not understand it to be seriously contested by the mother that in the event that the children are safe when experiencing their time with the father, that they would, indeed benefit from a relationship with him.

8. I turn then to the second primary consideration, namely, the need to protect the children from risk.  The risk which is identified specifically by Dr K in relation to the father isn’t that he is a sexual predator of children or, indeed, a sexual predator generally, but rather that he has poor regulation of his boundaries, particularly in relation to sexual behaviour.  Dr K’s report gives a number of examples of that behaviour, but of course, insofar as they are controversial, I cannot determine them on an interim basis.

9. However, taking the risk identified by Dr K at its highest, namely, that the father may, when spending time with the children, cross appropriate sexual boundaries in behaving with them, it is immediately apparent that that risk can be substantially and perhaps wholly mitigated by the father having the time which he spends with the children monitored by another responsible adult, in this case, one or both of his parents.  There is no reason to think that his parents would not be highly alert to the concerns which Dr K and, indeed, the mother, has in relation to the father, and given that they have both attended Court today and on other occasions, there is no reason to think that they are not aware of the nature of the concerns that those people have identified.

10. Ms Reaston who appeared for the mother, sought to justify the limited times which her client proposed on the basis that the grandparents might prove to be inadequate supervisors.  However, there is nothing in the material beyond that assertion which would really base any suspicion as to that.  It appears as though since the orders of 2 November, they have been considerably involved in assisting the father in the supervision that I ordered, and they remain willing to do so.  I am not satisfied that the grandparents are lax or lack vigilance or interest, or unduly have a faith and trust in their son such that they will not adequately supervise him.

11. That then comes to the question of whether they can do so on consecutive days.  In my view, there is no reason as to why they could not do so on consecutive days.  It is not suggested that they are so old as to be infirm, or that they have some disability which would affect their mobility, and in any event, if it be that they are suffering from any such malady, there are indeed, two of them, and so they could roster on, or do it jointly, or have some other means of meeting any concerns that might be raised in those circumstances.

12. The next issue raised by Ms Reaston related to the adequacy of the supervision which they could afford on overnight time.  However, again here it is important to evaluate the nature of the risk which the father is said to pose.  It is not said that he sneaks into the girls’ bedroom and molests them, or anything of the kind.  It is not said that he is an opportunist who waits for the children to go to the bathroom in the middle of the night or anything like that.  The risk which he is said to pose arises from his poor, or alleged poor, regulation of sexual boundaries and, perhaps, also equally significantly, his alleged insight into that lack of proper regulation.

13. In my view, there is no reason to think that the presence of one or both of his parents in the home during the course of the evening would in some way not adequately address the risk of poor boundary regulation.  So I am not persuaded of the arguments advanced by the mother in support of her contention that the father’s time should be restricted only to daytime and, moreover, only restricted to relatively meagre amounts of time once a week.  The risk which the father poses can be sufficiently mitigated by the supervision which the grandparents can afford, and in my view, the benefits of the children having extensive time with the father during the school holidays is likely to assist them in maintaining the meaningful relationship which they have had with the father to date and deriving benefits from it.

14. That then brings me to a question as to how much time the children should spend with the father, and particularly how it should be staged.  In my view, it is appropriate, given the fact that the school holidays are now shortly to be upon us, and further, that the father is not presently working, that the opportunity for him to spend daytime with them should be utilised so long as it does not imperil the children’s safety.  In my view, it is appropriate that the father should spend consecutive days, with the children rather than just one day as proposed by the mother.  And, further, I am satisfied that the appropriate regime would be three consecutive days in the first three weeks, save that in the week of Christmas, one of those days should be Christmas Day. 

15. It follows from that that, I am not presently persuaded that the father should then move to overnight time on Christmas night as he proposes but that rather, there should be a period of daytime on Christmas Day, such time to include one of the major meals of Christmas.  Further, I am satisfied that the father’s time with the children for the balance of the school holidays can safely move to overnight time, and particularly I propose to order that it be a Monday night and that it be, after the first three weeks of the school holidays, from 11 am on Monday morning until 4 pm on Tuesday afternoon.  However, that time must be spent with the children at E Street and must be always in the presence and reasonable vicinity of one or both of his parents.

16. I will hear the parties further as to what days of the week on the first three weeks of the school holidays the father should spend time with the children. 

17. I am satisfied – I won’t say that this is by consent but I am satisfied that the mother’s proposal articulated after I delivered the reasons in relation to the time or the extent of time are appropriate, namely that it should be 11 am to 4 pm on each of Monday, Tuesday and Wednesday of the first three weeks, save that for the Christmas week it will be Monday, Tuesday and Friday but the times will remain the same, namely, 11 am to 4 pm.

18. I am satisfied that the parties’ agreement in relation to the changeovers for the last three weeks of the school holidays, which see the mother dropping the children to McDonald’s F Town in the morning and being picked up by the father there and the father then dropping them – via his father, of course – back to the G Town bakery in the afternoon, are appropriate, and will make them.

RECORDED : NOT TRANSCRIBED

1. I am satisfied that it would be in the best interests of the 2 younger children to attend the school which the mother proposes, namely, H School at G Town.  The overwhelming matter that informs my decision in relation to that is that if the children were to continue at the school which they presently are at, namely L School in F Town, it would require them to travel 45 minutes each way to and from school.  In the case of D, who is grade 1, that in my view, is a completely unreasonable impost upon her, and even in relation to C, who is in grade 5, again it is a substantial impost, and, frankly would be a stressful waste of their time.  I am satisfied that the school should be the H School.

2. The only other order I need to make is as to when this comes back before me in February.  I direct that the further hearing of interim orders after the Christmas school holidays be listed before me in Cairns in the week commencing 1 February 2015 at a time and date to be advised to the parties.  It will likely be a 2 or 2.15 appointment.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 9 December 2015.

Associate: 

Date:  9 December 2015