CUBBIN & ALMOND
[2014] FCCA 3200
•10 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUBBIN & ALMOND | [2014] FCCA 3200 |
| Catchwords: FAMILY LAW – Interim parenting – care arrangements – allegations of sexual abuse – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.4, 13C, 60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAA, 65DAA(5), 65DAC, 65F, 69ZW |
| Deacon & Castle [2013] FCCA 691 Other Articles Cited: |
| Applicant: | MR CUBBIN |
| Respondent: | MS ALMOND |
| File Number: | CAC 2061 of 2010 |
| Judgment of: | Judge Harman |
| Hearing date: | 10 December 2014 |
| Date of Last Submission: | 10 December 2014 |
| Delivered at: | Albury |
| Delivered on: | 10 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Naumann of Walsh & Blair |
The Respondent appeared in person
ORDERS
Pursuant to s.248 of the Children and Young Persons (Care and Protection) Act 1998 the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within two (2) hours after receipt by them of this request a Personal History Summary relating to the following children:
(a)X born (omitted) 2009;
(b)Y born (omitted) 2010;
or any of them.
Neither party nor the independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Family and Community Services without the Court’s leave.
Suspend all existing parenting orders with respect to the children X born (omitted) 2009 and Y born (omitted) 2010.
Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X and Y at such times as they are in the care of that parent.
Pending further order, X and Y shall live with their father:
(a)Each alternate weekend from 9am Saturday until 5pm Tuesday, first such period to commence 20 December 2014;
(b)Each intervening week from 9am Monday until 5pm Tuesday, first such period to commence 29 December 2014;
(c)From 5pm Christmas Day until 5pm Boxing Day in 2014; and
(d)Such further and/or other times as agreed from time to time.
Pending further order X and Y shall live with their mother at all times when not living with their father.
The mother shall spend time with X and Y from 12noon until 5pm on her birthday, (omitted) 2014.
For the purpose of changeover between the parents:
(a)Ms Almond shall deliver the children to Mr Cubbin at his home at the commencement of each period that they are to live with him; and
(b)Mr Cubbin shall deliver the children to Ms Almond at her home at the beginning of each period that they are to live with or spend time with her.
Pursuant to s.69ZW(1) I order and direct the NSW Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:
(a)Any notification to the agency of suspected abuse of or by the following:
(i)Mr Cubbin born (omitted) 1958; and
(ii)Ms Almond born (omitted) 1972;
or any of them.
(b)Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;
(c)Any reports commissioned by the agency in the course of investigating a notification;
and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer)and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced
Neither party nor the independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Police Service without the Court’s leave.
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.
Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Family Relationships Centre (omitted) for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
The matter is adjourned for further mention and directions to 23 April 2015 at 9.30am.
Pending further order, X shall attend (omitted) Public School and shall not attend any other school, save with the consent of both parties first had and obtained.
IT IS NOTED that the mother has advised the Court that whilst she had previously advertised her home in (omitted) for sale, the home is withdrawn from sale and she does not propose to leave (omitted) and on that basis the father’s application seeking restraint on relocation has not proceeded.
Grant leave to the parties to relist the proceedings on 7 days’ notice in accordance with usual Federal Circuit Court protocol in the event that it should become necessary to address any issue relating to relocation or suggested relocation.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Exhibit A
Appointment of an Independent Children’s Lawyer
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the children the subject of these proceedings, X born (omitted) 2009 and Y born (omitted) 2010.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall within seven (7) days of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
Each of the parties shall within seven (7) days (or forthwith upon filing) forward to the Legal Aid Commission (Sydney Office) copies of all any documents filed by them in these proceedings together with:
(a)Any medical reports they hold relating to the children;
(b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the children;
(c)Any school reports they hold for the children;
(d)Any other documents they hold and wish the Independent Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the children to such places and at such times and dates as are requested and/or advised by the Independent Children’s Lawyer for the purpose of the Independent Children’s Lawyer meeting with the children.
Leave is granted to the Independent Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
The appointment of the Independent Children’s Lawyer is made on the following bases:
(a)There is manifest continuing hostility between the parties to the proceedings;
(b)There is a history of litigation by either or both parents;
(c)The children are of tender years and require protection from conflict;
(d)There are allegations of Family Violence and/or abuse suggested to impact upon the children’s best interests; and
(e)Suggested allegations of abuse, Departmental involvement, interview of the eldest child by police and ongoing allegations.
IT IS NOTED that publication of this judgment under the pseudonym Cubbin & Almond is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT ALBURY |
CAC 2061 of 2010
| MR CUBBIN |
Applicant
And
| MS ALMOND |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving care arrangements for two young children:
X, born (omitted) 2009, who will, at her next birthday in (omitted) 2015, turn six years of age; and
Y, born (omitted) 2010, who has recently turned four years of age.
The parties to the proceedings are the children’s parents, Mr Cubbin, who is the Applicant and the children’s father, and Ms Almond, who is the Respondent and their mother.
There are a number of other children relevant to these children’s lives. The mother’s material discloses that she has seven children of prior relationships, aged between 22 years and 9 years, the majority of whom live within her household.
Material considered
In dealing with the proceedings today I have read and considered each of the following:
a)The father’s Initiating Application filed 23 September 2014;
b)The father’s Affidavit of evidence-in-chief filed with the Initiating Application;
c)The mother’s Response filed 10 December 2014;
d)The mother’s Affidavit filed the same date; and
e)Exhibit A, being a Person History Document provided by the Department of Family and Community Services NSW today, and on short notice, with respect to past notifications with respect to these children.
Departmental involvement
Notifications to the Department are matters of some significance in the proceedings as the mother’s material suggests that there has been a significant history of family violence and suspected sexual abuse of the child X.
The last report that is noted is made on 10 September 2013. It is shown as closed on 19 September 2013, albeit on the basis of “competing priorities”. The father’s Counsel suggests that the matters then the subject of complaint were fully investigated by the Joint Investigation Response Team and no further action taken.
Proposals and issues in dispute
The issues that the Court must determine today are, on the face of the documents, limited.
The father, by his Application, seeks an Order restraining the mother from relocating the children from (omitted) .
The mother concedes that a for-sale sign had been placed at the front of her home but had indicated to the Court that she wishes to retain the home and does not intend to move anywhere. She concedes that a for-sale sign had been placed at the home for some short time and that this might be interpreted by a reasonable mind as suggesting an intention to move from that home. The mother asserts that she is under significant financial pressure as a consequence of legal costs in excess of $200,000 incurred in past proceedings. I will return to those past proceedings shortly.
The father otherwise seeks an Order as to the school that X will attend in 2015, being the year when she commences primary school.
Each of the parties seeks Orders regarding the time that the father will spend with the children. There is no issue that the children will spend a primacy of time in their mother’s care.
The father proposes that time would occur between him and the children each alternate weekend from Saturday extending to Tuesday provided the father gives the mother three weeks notice of this. The father otherwise seeks that he would spend a period of two consecutive weekdays overnight in each week, the father to give three weeks notice of when those periods would be. The father seeks that time be of fixed quantum but determined by the father’s notice from time to time to accommodate his work.
The mother opposes both the quantum of time and the condition precedent, namely, the father nominating the dates that will occur. That has been a feature of the Orders that have been in force to date.
The Order under which the parties presently operate would appear to be an Order made by consent on 20 October 2011. It provided for an increasing regime of time between the children and their father and provides, relevantly, at Order 3(c), that from X turning three and a half years of age, an event which occurred some little time ago, that the children would spend time with their father for either an overnight period, two days joined by the night, or for two separate days without the overnight connection. Provision was also made for time to occur on special occasions.
The occurrence of time spent by the children with their father was determined, it would seem, (or at least it is inferred), by reference to the father’s master roster, that which dictates the days that he works. The mother objects to a continuation of that arrangement. The mother complains, with some validity that she also has commitments in her life and no longer wishes to be dictated to by the father’s availability. That is potentially somewhat ironic in light of the mother’s complaint, as to which she seeks an Order, that the father must be absent from work whenever the children are in his care lest he might “leave the children with strangers” whilst he is working.
The difficulty with the Orders as they are presently drafted is that they do not expressly connect the days that the father will spend with the children with his roster. Clearly, it is inferred, but it is not expressed and it is a shortfall in the drafting of Order.
The father now seeks an increase in his time and an arrangement that would see something like substantial and significant time as defined in section 65DAA(3) of the Family Law Act 1975.
The mother, for her part, proposes on an interim basis that the children would spend supervised time with their father, occurring through the (omitted) supervised contact service. The mother alleges that the father has sexually abused the child.
The mother seeks an Order to enable her to enrol the child X at (omitted) Public School, a school apparently attended by the two elder siblings of X closest to her in age. The mother seeks the appointment of an Independent Children’s Lawyer. The matter calls out for that intervention.
On a final basis, the mother proposes that the children would spend time with their father each alternate weekend from Saturday to Sunday and for other periods of time. It is not suggested that there would be any particular condition to be met by the father before moving to that arrangement on a final basis and notwithstanding the suggested concerns with respect to abuse.
Allegations of abuse
The mother’s allegations of abuse must be dealt with and addressed as the mother asserts that there is an unacceptable risk to the children and, in particular, to the child X.
A discussion of the unacceptable risk test is set out at some length, commencing at paragraph 454 of my decision in Deacon & Castle [2013] FCCA 691. I incorporate herewith the relevant portions of that decision to provide consistency between Judgments:
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. [1976] VicRp 24; (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn [2006] FamCA 1316; (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter [2007] FamCA 350 His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
There must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture
The mother asserts that she has significant concerns that the child has been sexually abused by the father “in the past”. She prefaces the allegation as being her belief. A number of specific events are related by the mother, suggested to support that belief. Many of them are historical and, as has been submitted by Counsel for the father, predate not only these proceedings but the last determination of proceedings between the parties, which had occurred in 2013.
The mother suggests that, on three occasions, X has returned to her care without her underwear on (see paragraph 17). It appears that those concerns predated October 2011 when the present Order was made.
It is suggested that there are recent changes in X’s behaviour and attitude, although the suggested changes are not particularised, other than to suggest that X becomes defiant and refuses to follow requests and that the mother has never experienced this with her other children.
It is suggested that X experiences nightly night terrors and will scream in her sleep and sleepwalk after having them. That is not directly related to any suggested allegation of abuse, although it may well be inferred to be so.
The mother suggests that between October and November 2012, X returned from spending time with her father and said, “Mum, my bum is sore. My wee is sore”. It is suggested in reference to this event that a handwritten note was received by the mother from the father upon the child’s return, in which the father suggested that he had taken the child to the doctor, as she was scratching her vagina, and the father had noticed that she was red in that area.
On 11 November 2012, the mother complains that her then not yet adult child Z was dressing X and that X had said to Z, “Can you put cream on my wee? Mr Cubbin [the father] makes my wee better by putting cream on it”. Z related this to her mother. The mother suggests she does not undertake such behaviours and was mystified why the father would.
On 14 November 2012, it is suggested that the child, having been bathed by Z, had laid on her bed, spread her legs and exposed her vulva, as the mother has described, pulling her labia open. The mother suggests that she is concerned by the child’s “pose”, as she describes it, suggesting that she believes that the child was acting as though posing for a photograph. The basis upon which that is suggested is unclear. It is suggested that on at least three other occasions similar behaviours have occurred.
It is suggested that in December 2012 the child has complained that her bottom hurt and had said, presumably to the mother, “Dad pulls poo out of my bum with his finger”. The mother suggests that she was “shocked” by this comment. Why she was shocked is not further articulated. The child was, at that point in time, about three years of age. A parent assisting a child of that age with toileting is far from extraordinary however it may be done.
Similar complaints are made on a relatively unending basis from that time onwards.
What typifies many of the complaints which the mother raises – and I make clear that the mother’s complaints are not dismissed out of hand nor dismissed at all – is that events which might have a number of possible plausible explanations are narrowed down by the mother as having only one explanation and it is sinister. Whether non-sinister interpretations are considered at all is not clear. What I can take from the mother’s evidence is that if it is possible for her to jump to a conclusion which suggests aberrant behaviour by the father it is the conclusion that will be jumped to.
The mother complains that during 2012 and 2013 the child, on an unspecified number of occasions, inserted objects into her vagina. The mother leads nothing to suggest why she believes that to be extraordinary behaviour for a child of that age. However, the mother has viewed that behaviour as extraordinary and she has concluded it to be demonstrative of sexual abuse of the child and by the father and no other person.
The mother particularises reports that she has made with respect to the child’s behaviours, commencing at paragraph 43 of the Affidavit. The mother makes clear that she has repeated the above matter and her concerns to her own counsellor who, in turn, suggested that she speak to a sexual assault service.
The mother spoke to a sexual assault service. It is suggested that reports were then made by that service to the Department of Family and Community services NSW. The mother complains that the Department did not investigate the matter, “due to X’s age”. I simply do not accept that the Department would fail to investigate a concern raised by a sexual assault service of sexual abuse of a 3 year old child purely because she was 3.
At the mother’s instigation appointments were made and the child attended upon (omitted), a service providing counselling to children who have been sexually abused. There is no evidence that the child has been sexually abused. Why that step was taken by the mother is entirely unclear and unexplained. The mother suggests that the attendances related to training around protective behaviours and one would hope that was all.
Thereafter the mother has raised complaints with a variety of people and services.
Complaints were then made to Relationships Australia during a process there.
Complaints were made through a Family Relationship Centre.
Complaints were made to two of the mother’s doctors.
A complaint was made to a Police Officer at (omitted) and, as a consequence of that complaint, the mother indicates that the child was interviewed by “Child Protective Services”, (i.e., JIRT). As indicated by the father’s Counsel, the JIRT investigation resulted in no action and, it would seem, no disclosure.
Certainly, the Person History Document, whilst not a complete record of that held by the Department, would suggest that no sufficient concern arose for the Department to act in any fashion and one can thus infer no disclosure was made by the child.
The mother’s complaints are now made to the Court. There have been 10 agencies involved in receiving complaints by the mother relating to her “belief” that the father has sexually abused the child or is a risk of doing so, all of which complaints, based upon that which is contained within the Affidavit, would appear to be based upon not a shred of plausible or probative evidence relating to anything which would cause such a conclusion to be drawn or, in some circumstances, even a suspicion to warrant investigation.
The complaints have been investigated, including the child’s interview by Police and JIRT Officers, and notwithstanding the absence of disclosure has led to an entrenching of views in the mother’s mind that the father is a danger to the child. That, no doubt, is part of the basis upon which the father’s Application, on a final basis, seeks Orders with respect to these children and which significantly change that which has previously applied for their care. On a final basis, the father seeks that the children change to live with him and spend time with their mother.
The younger child Y is not significantly mentioned in the mother’s Affidavit. The focus of the mother’s Affidavit, some 23 pages of text and annexures, is upon the concerns and allegations with respect to abuse. That is so notwithstanding the above comments and the reality that the majority of those complaints were dealt with by Judge Neville when the proceedings were last before the Court for final hearing.
I do not propose to consider and discuss the evidence in greater detail. The matter is dealt with in a busy duty list and it is now past 6:00pm. The parties have been at Court all day. The list has been conducted since 9:30am without break.
Whilst I do not propose to further discuss the evidence, I make clear that all that has been filed and relied upon and identified above has been read and considered and I will refer to portions of that evidence in dealing with the matter via the legislative pathway to which I now turn.
Legislative Pathway
I must commence with section 60CA of the Act, which reminds the Court that in all that is done, the child’s best interests are the paramount consideration.
I must then turn to the objects and principles in section 60B of the Act and which I incorporate herein:
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles do not form part of the substantive law but rather guide the application and interpretation of the substantive provisions. They also direct the Court’s attention to the outcome that should be achieved in proceedings (if possible) and thus warrants some scrutiny independent of the substantive provisions.
The Court must ensure that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests. The Court must also ensure that children are protected from physical or psychological harm through exposure to abuse, neglect or family violence.
The mother raises allegations of family violence but no evidence is led to support the bald allegation and thus the Court is left with mere assertion.
The evidence which is identified as supporting the mother’s belief that the child has been or is at risk of being abused is problematic. It is problematic on a number of levels.
Firstly, the majority of the concerns have been raised with the appropriate State Child Welfare Agency, have been investigated, found to be unsupported by evidence and no action taken.
Secondly, the allegations have been raised with the Court previously and they have been dealt with by Judge Neville, who did not make any finding in acceptance of those allegations.
The third difficulty arises from that which is referred to above. A number of the events if not all of them have a number of perfectly innocent explanations and one nefarious explanation. The mother has not turned her mind to consider or has discounted all but the nefarious explanation it would seem. That is curious in circumstances whereby the behaviours complained of by the mother are not the subject of complaint by the child.
The child has simply made statements to the effect that her father removed faeces from her bottom (as to which the mother suggests she was “shocked”) or that her father applied cream to her vagina when she complained of soreness and, indeed, asked that the mother or her near adult child Z do so to alleviate soreness and itching. The mother suggests that this statement caused her concern that the child had been abused and especially as she has never touched or applied cream to the child’s vagina (the child then being 2 or 3 years of age).
The mother does not explain why she found these behaviours, what would appear to otherwise be perfectly unremarkable day to day aspects of parenting a toddler, to be shocking or extraordinary. Nor does the mother lead evidence that might contextualise or explain her “belief” that abuse has occurred. The fact that a parent touches their child as the child has described (to, in all probability, assist in toileting or to treat soreness and inflammation) is not abuse. It is parenting. If the touching is without purpose save sexual gratification, intention to harm and injure or some other gratuitously inappropriate motive then the touching might become abusive. In this case there is no such evidence.
There is no evidence led by the mother of any past experience of the father that would cause her to connect the child’s statement of application of cream to her red and irritated vagina with abuse. Such evidence might have included evidence of a past predilection to child pornography, particular arousal by digital penetration or past paedophilic behaviour such as would explain why the mother, upon the child stating that her father applied cream to her sore and itchy vaginal area, immediately “believed” that there had been abuse rather than simply accepting that the father was appropriately parenting the child and meeting the child’s needs. There was no attempt to corroborate the child’s statement, on its face, perfectly innocent, by enquiry of the father. Instead the child is counselled, interviewed and examined and 10 different persons or agencies engaged.
With regard to what the child has stated the father’s gender is irrelevant. The Court does not assume, as the mother may have or as the mother may suggest that the Court should, that a male touching a child of either gender is by and of itself abuse. As the child’s male parent with care and responsibility of the child for overnight periods one might expect that he would, as a caring and competent parent, address the child’s needs, including toileting and first aid. The father applying cream to the concededly red vagina of his 3 year old daughter is no more abusive than a mother applying cream to the infected foreskin of her 3 year old son absent some other context or nexus than the administration of first aid.
I do not dismiss the mother’s allegations. They may, if maintained as allegations of abuse, require and warrant proper investigation in due course. However, I cannot be satisfied on that which is led that there is an unacceptable risk against which I must protect these children. That arises not only from the evidence led but the mother’s position on a final basis, reliant upon exactly the same evidence, that these children would spend unsupervised, overnight time with their father without anything suggested to be required of the father before it be so.
There would appear to be some absence of concern expressed by the mother as regards final relief. The final hearing of the matter will be some little time away. The mother’s position on an interim and final perspective respectively will achieve anything other than a delay in the children’s relationship with the father and the imposition of supervision, a case for which is simply not made out on the evidence.
Nothing has changed since Orders were made by consent which provided for overnight unsupervised time. Those Orders were made with the mother’s consent. The majority of allegations referred to above had already been raised and had already been investigated by State Child Welfare Agencies and considered by a Judge of this Court who was satisfied unsupervised time was appropriate. The majority of the mother’s allegations were already known to and thus considered by the mother when she provided her consent to those Orders.
I must ensure the children receive adequate and proper parenting. Each alleges that the other is deficient as a parent. There is no means of ascertaining which parent, if either, is correct or more correct in their criticism.
I must ensure the parents fulfil their duties and meet their responsibilities concerning the care of their children. Again, there is nothing to differentiate at this time.
The principles create a number of rights for these children. Children have rights notwithstanding that they cannot offer any address of duty or responsibility in reply. Their rights devolve to their parents for enlivenment, practice and address. That is one of the difficulties of the rights based agenda in relation to parenting proceedings - the very people seized with the responsibility of ensuring the child’s rights are the people in conflict with each other and, in so many cases, including this, conflating their own interests with those of the children.
These two children have a right to know and be cared for by both of their parents and to spend time on a regular basis with both of their parents, save and except when it is considered contrary to their best interests. As would be clear from the above, I am not satisfied that the evidence establishes any change since the last Order was made which would cause the Court to have concern or even reticence as to the children’s safety in their father’s care.
The children’s right to spend time with their father is interfered with not only by the circumstances of the parties, their dysfunctional relationship with each other typified by mistrust and no communication, but also the parent-unfriendly work arrangements in which they each operate, particularly the father, his life governed by a roster which bears no relationship to the seven day week by reference to which the majority of the population order their affairs.
I must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies, and if it does apply, determine whether it is rebutted.
The parents presently operate under an Order for equal shared parental responsibility, an Order made by consent between the parents. What is clear is that the parents do not communicate. They do not cooperate. They do not trust each other on any level. That creates some difficulty in apprehending how equal and shared parental responsibility can effectively operate.
Section 65DAC of the Act imposes obligations upon parents who have Orders for equal shared parental responsibility including a requirement to cooperate with each other, to consult with each other and make genuine effort to arrive at consensual decisions with each other about major issues. That includes, for example, defined as a “major issue” (section 4 of the Act), the school the child will attend. The mother has made arrangements for this child to be enrolled at a school, the school that her two elder siblings attend, but without any consultation whatsoever with the father. Thus, the mother would appear to have ignored any obligation that section 65DAC of the Act imposes upon her. That is not to suggest that her choice is inappropriate. Far from it. But she rather than the parents (plural) has made the decision.
That is not to suggest that the father has performed any better as regards the exercise of equal shared parental responsibility.
What the evidence demonstrates is that joint decision making is simply not working.
I am not satisfied that any Order for sole parental responsibility can or should be made and that decision, indeed, all decisions with respect to these children will be made by reference to section 60CC of the Act and incorporating therein section 65DAA(5) of the Act.
It would certainly appear, on the basis of the allegations that these parents raise, (the mother’s allegations of abuse and the father’s allegations that the mother is incapable of responding appropriately to the children’s care and relationship with each parent), that equal shared parental responsibility is a flawed concept for these parents. It cannot operate because the parents do not communicate or trust each other. However, as indicated, sole parental responsibility is not indicated. It is a serious step to strip a parent of their right to be involved in decision-making for their child and I do not propose to do so, particularly not on an interim basis.
I am satisfied that an Order pursuant to section 61C of the Act should be made and such that the parents will have joint and several parental responsibility, meaning that each will make decisions for the child whilst in their care.
As regards the presumption, I am satisfied that subsection (3) should apply. These are interim proceedings and whilst there is an existing Order I must have regard to the evidence and the allegations that each parent raises. I am satisfied that it would be inappropriate for the presumption to apply. That is so notwithstanding that there is an existing Order on a final basis and made by consent for equal shared parental responsibility. The evidence of the parties makes clear it simply does not and has not ever effectively operated. It is a fiction and it need not continue.
As the presumption will not apply I am not obliged to consider equal or substantial and significant time before any other time arrangement. Nor am I precluded from considering such time arrangements. I propose to consider all time arrangements at large by reference to section 60CC of the Act to which I now turn.
I must commence with the primary considerations being:
a)The benefit of the child in having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm.
The latter is prioritised over the former by subsection (2A).
There is a risk of physical or psychological harm to these children in each household based on the allegations that each parent leads, although not supported by probative evidence. If the mother is correct – although the majority of her allegations have already been dealt with by the Court and thus I need not revisit as I do not sit in Appeal from the decisions of other Federal Circuit Court of Australia Judges – then the child is potentially at risk of neglect or some form of abuse, particular X.
If the father’s allegations are correct, that the mother is singularly focused upon finding evidence that would support her erroneous belief that the father is a danger to the child however that risk might be manifested, then there is emotional abuse of these children. To the extent that the child has already been presented and interviewed by Police and JIRT, has already attended upon sexual assault services when there is absolutely nothing to suggest that the child has ever been sexually assaulted, nor anything to suggest that the majority of the behaviours complained of with respect to the father or the child are out of the ordinary for a child the age she then was, it would be extraordinarily abusive.
No findings are made with respect to the allegations of either parent, save that I am not satisfied on the evidence presented that there is an unacceptable risk made out in either household to which I must, at this point, respond. However, the balance is equal and thus I am left to focus, as best I can, upon Orders that will ensure that the children have a meaningful relationship with each parent, as I am satisfied that there is nothing further that can be done to obviate against the risks that each suggests of the other.
These children and their relationship with each parent are not the subject of any significant discussion in the evidence and certainly not the mother’s. The mother’s Affidavit - and I accept and appreciate that she is self-represented and, as she has indicated, this is not the type of work she is used to doing - is extensive. It contains significant transcription of conversations in the first person. It contains significant detail. It is all focused upon persuading the Court that the father is a risk to X. It fails in that regard. It also then fails to relate anything regarding the child or children’s relationships with either parent.
The mother suggests that the children are returned by the father “unsettled”. There is nothing beyond the mere assertion. In light of the dysfunction in the relationship between these parents one could expect nothing else. Passing between their parents must, for these children, be like crossing Glienicke Bridge in the dead of night with weapons all about glistening in the moonlight. It would be stressful and made so by the people who profess to love and want what is best for them – their parents.
The father suggests that his relationship with the children is developing quite nicely. Whether that is so or not cannot be found but, curiously, nor is it contested on the mother’s case.
I am satisfied that the children have a right to a relationship with each parent, are developing a relationship with each parent and would benefit from a continuation of a relationship with each parent. What they would benefit most from is a change in their parents so that they may practice those relationships with support and without stress.
The time that a parent spends with a child is not, by and of itself, the determinant of the relationship. It is simply the vehicle by which the relationship is envisaged and ultimately practiced. These children have been spending overnight time with their father for some little time, since X was three and a half. She will shortly turn six. Accordingly, she has had over two years of overnight visits, whether they have been each week or whether they have been, consistent with the father’s right to elect, less frequent. But they have occurred and there is no complaint raised of substance that they are not doing well as a consequence. That gives me some comfort and confidence that the children’s relationship with their father is developing.
It may well be that the children’s relationship with their mother is more substantial and significant to them. However, there is nothing to be gained from mathematising relationships. The Court is not required by the legislation to seek to achieve equal relationships (and the Court cannot), simply to afford to the children the benefit of having a meaningful relationship with each, which is not time based.
It is entirely possible that a parent can spend significant periods with a child and have an appalling relationship. It is equally possible that a parent might spend limited periods with the child and have an excellent relationship. That is because time alone does not determine relationships. Many other things contribute such as the emotional and physical availability of a parent and the ability of the parent to provide a stress free and supportive environment for a child, something that would be absent, for example, through the unnecessary and unwarranted continuous search for symptoms or signs of abuse.
I am satisfied that the evidence supports Orders which would allow the children to continue to have regular weekly time with their father and more extensive time than at present.
I must then also deal with the additional considerations.
Views
Neither party has seen fit to present evidence of the children’s views.
Nature of the children’s relationship with each parent and other persons
These children have a number of important relationships - their parents, including with their seven siblings who live in the household with them full-time or part-time and the mother’s new partner.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the children
The father is not criticised in this regard, nor is the mother. The criticism of each parent is the extent to which they have failed to involve the other parent in decision making. That remains relevant and was previously contained, prior to the June 2012 amendments, in subsection (4). There is simply no basis, save an absence of child focus and insight on the part of each parent, for the absence of any communication between these parties regarding something as simple yet fundamental as the school the child will attend.
I am conscious that the mother raises “beliefs” that would give valid basis for her to not desire communication with the father. The mother, if she genuinely believes that the father is abusive of the children (although, there is no evidence to make that belief valid), would find the father repugnant and communication with him, at the very least, unpleasant. Similarly, the father, being aware of the mother’s beliefs, would have a similar repugnance. Notwithstanding those realities, which significantly predated the consent Orders which are the present primary Order, both parents consented to Orders which compelled that they consult with each other. Clearly, that was misguided consent.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
There is no evidence to suggest either has.
Likely effect of change, including separation from either parent, any other child or any other person
The father seeks a relatively modest increase in the time that he will spend with the children. He is presently spending two days per week with these children whether overnight or otherwise. The effect of his Application is that he will spend four days a fortnight and four nights a fortnight with the children. It is not a dramatic increase. It is a joining together of that which has previously occurred. These children are of an age and the evidence as to the development of their relationship with their father is such that I am satisfied they would cope with that.
Any separation of these children from their mother’s household will involve the separation of these children from not only their mother but their siblings. I accept that they are all very important relationships. However, these parents were determined to be involved in a relationship with each other knowing full well that the mother had seven children. Thus, the father must acknowledge and accept the importance of the relationships between these two and those seven. The mother must also have been aware that if their relationship failed that these children would leave her care for periods of time to practice a relationship with their father.
The legislation that I must apply and as interpreted by the Full Court in Burton & Churchin and Anor [2013] FamCAFC 180 requires that I consider, as the primary consideration, the relationship between the children and their parents. Whilst the additional considerations require that I have regard to the relationship between the children and others, they are additional rather than primary considerations. That does not necessarily make them subservient.
I am satisfied the relationship between these children and their mother and siblings will not be substantially interfered with and not diminished through the separations that are proposed by the father, being four days and nights per fortnight.
The children have relationships of strength with the mother and their siblings. They are not relationships that will whither on the vine simply by not seeing those people for two days at a time. Accordingly, I am satisfied that the effect of change is beneficial and not attenuated with disadvantage.
Practical difficulty and expense
Practical difficulty and expense incorporates each of the considerations in section 65DAA(5).
The parents live relatively close to each other in or about the same township.
The parents’ current capacity to implement an arrangement is demonstrated by their past practice. The arrangements I propose to Order will be more certain, more clear cut and, I would hope, easier for them to understand and follow than the ever changing arrangements based on a roster.
The parents’ capacity to communicate and resolve difficulties is highly problematic. I propose to make Orders pursuant to section 13C of the Act requiring that the parties attend upon the (omitted) Family Relationship Centre to attend intake and, subject to assessment of suitability for services, to receive and participate with family counselling services. That fulfils a dual purpose, one of which is far more important than the other. The Court is precluded from hearing proceedings on a final basis, subject to certain exceptions, unless the parties have attended family counselling. See section 65F of the Act.
More importantly, these parents need to develop some strategy to be able to communicate and co-parent. I accept that the mother raises matters that give clear and cogent reason why she may not wish to have any cordial relationship or co-parenting relationship with the father. However, the evidential support for those views is unclear if not illusory. Further, there are consequences for that attitude one of which is an immediate impact upon these children and that which they lose through an absence of parental alliance. A second consequence is a potential long-term consequence for these children in having to negotiate those circumstances if those attitudes persist.
The children have a right to a relationship with both parents and as difficult or as onerous as it may be, both parents must engage in services that will make that work as best it can in any given circumstance.
The impact of the changed arrangement, as I have already addressed, is positive.
Capacity
I am satisfied that both parents are, in the language of social science, “good enough parents”. That is not intended to be pejorative of either of them, simply to acknowledge that they both are able to meet the needs of these children irrespective of the criticisms each raise. Whilst there may be concerns raised by one or other with respect to the other’s capacity, those concerns are not, after considering the evidence, shared by the Court.
Maturity, sex, lifestyle and background
These are relatively young children. The eldest will soon turn six and the youngest has just turned four. These children have been practicing time with their father for some years, including overnight time. I am satisfied that their maturity would not obviate against Orders for overnight time for one or two nights at a time and their lived experience supports and informs that confidence.
Aboriginality
Neither party identifies as Aboriginal or Torres Strait Islander thus nor do the children.
Attitude to the children and duties and responsibilities of parenthood
I am satisfied that is addressed above.
Family violence
Allegations are raised. I am satisfied they are addressed above.
Family violence orders
There are none at present.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
I am satisfied that the best I can do is to make Orders that will assist in the forensic preparation of this matter and the counselling support of these parents.
I propose to make an Order pursuant to section 69ZW of the Act to obtain material from the New South Wales Police Service to find out what has happened in the past complaints and investigations.
I propose to appoint an Independent Children's Lawyer.
Most importantly, I propose to make Orders under Part II of the legislation to provide assistance to the parties individually by way of family counselling services aimed towards both supporting them and assisting them in improving their parental alliance with each other.
It is important to note that family counselling services are defined in the legislation as services to assist parties deal with personal or interpersonal issues or to deal with issues arising from separation or in relation to the care of children. It is fundamentally important for these parents that services are engaged with.
As regards time between the children and their father, I propose to make Orders that will see the children spending regular weekly time. The Orders will no longer be connected with the father’s roster or anyone else’s.
I propose to make Orders that will see the children spending each alternate weekend with their father from Saturday through to Tuesday. That will provide a three night block of time with him per fortnight. I propose to make an Order in the alternate week that a period be spent from Monday to Tuesday. That will provide regularity, certainty and symmetry to the arrangements. It will be readily predictable. The children will know which days of the week and nights of the week they spend with their father.
It will achieve the purpose of section 65DAA(3), that which defines substantial and significant time, by allowing the children to spend time with each of their parents on weekdays, weekends, during holidays, occasions that will permit the parent to be part of the child’s daily routine, occasions that are significant to the child and occasions that allow the child to be involved in their parents’ routine and significant events. If the father is working, so be it. He will have parental responsibility when they are in his care, and it is a matter for him to make arrangements for their care, whether that is through his extended family, through vacation care, before and after school care or otherwise.
He will need to be responsible for assisting in getting X to school, and, if this young lad is attending pre-school or day care, he also. That is not a disadvantage. It will enable these children to be part of their father’s household. He is their father. He provides for them. He has a relationship with them. It is not a relationship that exists on weekends. It is not a relationship that exists without the realities of his life. He works. His children should be aware of that. Parents in intact families care for their children together and make arrangements for the children’s care when they are both working.
That is expected of parents, and it is what parents do. It is simply part of life. When parents separate there is no reason why the standard should be different. There is nothing to suggest that the father has ever made arrangements for these children that are other than in their best interests. It is suggested that he has had them cared for by “strangers”, but that is not significantly addressed in the Affidavit material, simply alleged. One would hope the father’s arrangements would be regular and consistent such that there would be one or a small pool of people that provide for the children’s’ care when he cannot do so himself due to work.
To make Orders which require that a parent be absent from work on each occasion the children are in their care is contrary to and interferes with their exercise of parental responsibility and is something which if imposed mutually upon parents would render the entire workforce of separated parents unemployed. There is nothing wrong with a child seeing a parent get up to go to work to earn the money that feeds them, clothes them and pays for their education. That is what the Orders will provide. It is what happens in the mother’s household.
In relation to the school that young X will attend, I am satisfied that on an interim basis she should attend the school that her brothers attend. Whilst it is certainly more convenient and probably much closer to her home for X to attend the local (omitted) Public School, there is no reason why she should not have the benefit of attending the same school as her siblings. She has a close relationship with them. They will make the transition to school easier for X. She will no doubt enjoy the time with her siblings at school, albeit that they are in primary rather than infants. They can all spend time together as part of that experience and share it with each other.
It is also somewhat impracticable to have the mother transporting different children within her household to different schools.
I otherwise do not propose to make any of the restraints the parties seek other than to note the mother’s indication to the Court that she has no intention of relocating from the (omitted) area. The parties will have a liberty to apply on seven days notice should it transpire that plans change or that which is indicated to the Court has either changed or been disingenuous.
For the above reasons I make Orders as follows (see Orders).
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 2 December 2015
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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Costs
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