Curtis and Harvey
[2012] FamCA 1052
FAMILY COURT OF AUSTRALIA
| CURTIS & HARVEY | [2012] FamCA 1052 |
FAMILY LAW – CHILDREN – final orders – with whom a child lives and spends time – where the applicant great maternal aunt and uncle sought orders for the children to live with them – where the children currently live with the applicants – where there are allegations that the father has sexually abused the children – where the Court was not satisfied on the necessary standard of proof that the father had sexually abused the children or that there was an unacceptable risk of sexual abuse – where there are concerns about the father’s capacity to care for the children – where the Court was of the view that the children would be at significant emotional and psychological risk if moved from their current living arrangements – best interests – orders for the children to live with the applicants and spend no time with the father.
FAMILY LAW – CHILDREN – final orders – parental responsibility – where the possibility of further conflict between the parties would be detrimental to the children’s welfare – best interests – orders for the applicant maternal great aunt and uncle to have sole parental responsibility.
Family Law Act 1975 (Cth) ss 43, 60B, 60CA, 60CC, 60CD, 60CG, 61DA, 62G, 64B, 64C, 65C & 69ZT
| M v M (1998) 166 CLR 69 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 | ||
| APPLICANTS: | Ms and Mr Curtis | |
| RESPONDENT: | Mr Harvey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Orwin |
| FILE NUMBER: | DNC | 236 | of | 2010 |
| DATE DELIVERED: | 14 December 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 13, 15-16, 19-21 & 23 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Giacomo |
| SOLICITOR FOR THE APPLICANT: | Cater & Blumer |
| COUNSEL FOR THE RESPONDENT: | Ms Bowen |
| SOLICITOR FOR THE RESPONDENT: | Bowen Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Orwin |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Margaret Orwin Barrister & Solicitor |
Orders
All previous parenting orders be discharged.
That the applicants Ms and Mr Curtis have sole parental responsibility for the children B born … June 2007 and C born … June 2008.
The children live with the applicants Ms and Mr Curtis.
There be no order for the father to spend time with the children or communicate with the children.
The appointment of the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtis & Harvey 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 DARWIN |
FILE NUMBER: DNC 236 of 2010
| Ms and Mr Curtis |
Applicants
And
| Mr Harvey |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court to determine the competing applications of the maternal great aunt and uncle and the father for parenting orders in relation to the two children B born in June 2007 and C born in June 2008. They are currently aged 5 and 4 years respectively.
The Hearing
The trial of the matter was heard over seven days commencing on 13 March 2012 and continuing from 15 to 16 March 2012 when it was adjourned part heard. It recommenced on the morning of 19 March 2012 when it was adjourned later that afternoon and continued on 20 to 21 March 2012. It concluded on 23 March 2012 when judgment was reserved.
Relevant Background
The respondent father is Mr Harvey born in 1982 (30 years of age).
The biological mother of the children was Ms D. She is now deceased having committed suicide on in 2009.
The joint applicants in these proceedings are maternal great aunt of the children Ms Curtis born in 1967 and her husband Mr Cutis born in 1965. They are aged 45 and 47 years respectively.
They have three adolescent children namely E, F and G. Both E and G currently live at home.
The father has another daughter named H who was born in September 2005 (7 years old). Presently she spends time with the father on alternate weekends and on weekdays in the intervening weeks with such time taking place at the home of the paternal grandmother.
The mother and the father met sometime in 2006. It is the father’s position that the mother’s serious mental health issues became apparent to him soon after they met.
In the early stages of 2007 the mother spent a number of months as a patient of the Psychiatric Ward of the Royal Darwin Hospital receiving treatment for alcohol addiction. The mother had been previously diagnosed as suffering from Schizophrenia.
The mother and father’s relationship was a turbulent one which involved frequent incidents of domestic violence. The maternal great aunt reports that she often saw the mother with injuries such as bruising in addition to cuts and grazes which she attributes to the actions of the father.
The parents’ first daughter B was born in June 2007.
Following her birth the mother and father moved into a housing commission flat in Suburb I.
The father reports that his relationship with the mother was largely a happy one during this time however the mother’s alcohol dependence was the cause of continuing conflict between them.
In the early months following her birth there were numerous concerns raised relating to B’s health including chronic high fevers, eczema, her lack of weight gain and delays in her general development.
From the period spanning July 2007 to October 2009 there were six child protection notifications made to the Department of Children and Families (‘the DCF’) which related to a variety of concerns about the parents’ care of the children including neglect, emotional abuse, domestic violence and substance abuse.
Approximately one year after B’s birth, the parents’ second daughter C was born in June 2008.
The father alleges that the mother suffered from postnatal depression following C’s birth and due to this, he assumed the primary caregiver role for her.
The paternal grandmother says that she provided assistance to the mother in caring for the children particularly on the weekends when the children were frequently left in her care for overnight periods. She also reports attending to domestic duties and providing financial assistance from time to time.
An incident of domestic violence involving the mother and father occurred on 28 July 2009 in which the father alleges that the mother hit him. There are counter allegations of the same nature against the father. It is not disputed that the children were present in the home at the time.
Following this incident and at the request of the DCF the mother and father agreed for the children to be temporarily cared for by the maternal great grandmother, Ms Curtis.
The mother and father separated on a final basis on 9 September 2009. Following separation the father continued to visit the mother and B on a daily basis and stayed overnight frequently. During this time he says that he cooked, fed and bathed the children in addition to attending to the domestic duties.
In early September 2009 arrangements were made for the mother to spend time with the children however at the conclusion of such time, refused to return the children to the maternal great grandmother. The children were permitted to remain in the care of the parents.
By late September 2009 the mother and father had received notification from the Northern Territory Department of Housing that they were facing eviction due to arrears in rental payments.
On 13 October 2009 a Child Protection Order was made. The children were taken into the care of the DCF due to concerns for their welfare relating to the mental health of the mother, the failure to meet the medical needs of the children, domestic violence and alleged drug use by the mother and father.
The children were placed in the care of their maternal great grandmother. This was purported to be a temporary arrangement until the suitability of the maternal great aunt and uncle as permanent carers was assessed.
On 15 October 2009 the mother committed suicide.
On 16 October 2009 a Temporary Protection Order was made. On 17 October 2009 the children were placed with their maternal great aunt and uncle who had since been approved to be the ongoing carers for the children.
It is reported by the maternal great aunt and uncle that the children displayed extremely violent behaviours such as scratching, kicking, punching and spitting. The children also suffered from severe separation anxiety and were generally lagging behind in their development.
Since being in the care of the maternal great aunt and uncle, these behaviours have purportedly subsided or improved.
Whilst the children were in the care of their maternal great aunt and uncle, the father spent time with the children regularly for short periods of time with such time supervised by the paternal grandmother at her residence.
During this time many allegations were made against the father in relation to his parenting capacity and his continued drug use.
From November 2009 the father spent periods of supervised time with the children pursuant to orders of the Local Court.
In November 2009 Mr J released a Psychologist’s Report in relation to the father’s parenting capacity in which he recommended that reunification of the father and the children take place.
This recommendation was implemented shortly thereafter and the father’s time with the children progressed to being unsupervised by January 2010.
On 2 March 2010 the child C returned from the father’s care with a fractured collarbone allegedly sustained when she slipped on spilled water. A notification was made to the DCF that the father had abused or neglected her, an allegation which was subsequently held to be unsubstantiated.
In April 2010 the father underwent drug tests following notifications being made in relation to his alleged drug use, all of which were returned negative.
Due to their ongoing concerns, the great maternal aunt and uncle instituted proceedings in the Federal Magistrates Court on 19 May 2010.
In early July 2010 there were further notifications made relating to the alleged physical abuse of the children whilst in the care of the maternal great aunt and uncle. The outcome of this investigation was unsubstantiated and no abuse or neglect was found.
Consent orders were made on 9 June 2010 in other proceedings in relation to the father’s daughter, H for her to spend time with the father on alternate weekends and weekdays. Provision was also made in relation to holiday periods.
The father underwent testing in relation to the paternity of B in early September 2010. Results released on 27 September 2010 confirmed that he was her father.
From September 2010 consent orders were made for the children to spend time with the father.
Soon after the children recommenced spending time with the father allegations were made that their behaviour had regressed in that they would engage in violent behaviours towards one another. Further, the children allegedly experienced nightmares, anxiety and were excessively clingy upon their return.
The maternal great aunt also reported that the children were fed inappropriate foods such as lollies, chips and fizzy drinks when in the father’s care.
When the matter was heard by the Court on 20 September 2010 orders for the children to live with the great maternal aunt and uncle were continued and the father’s time with the children was reduced.
Despite the reduction in the children’s time with the father it is alleged that the children’s behaviour continued to be problematic.
In November 2010 it was alleged that the children began to display sexualised behaviours which were the subject of several notifications to the DCF.
Similar allegations of sexual abuse were made against the father in relation to his daughter H. None of the notifications proceeded to investigation by the DCF due to alleged insufficient information or failure to meet the threshold for investigation.
Following these allegations the father agreed to spend supervised time with the children at Catholic Care on one occasion per fortnight.
The father continued to spend supervised time with the children at Catholic Care until 24 June 2011 when interim orders were made by Federal Magistrate Turner for the father to spend unsupervised time with the children.
The father commenced a relationship with his current partner, Ms K in April 2011. They have a child together. She has five children from a previous relationship, three of whom reside with her.
In July 2011 the DCF received notification from the Northern Territory Police Child Abuse Task Force (‘CAT’) relating to sexualised behaviours by B and C. C had been observed in the bathroom by her Ms L behaving in a sexualised manner. When asked why she was behaving in that way it was alleged that she had reported “because Daddy …”. The DCF report (Exhibit 1 which was received by consent) indicated that the Northern Territory Police CAT would be following up these allegations and Sexual Assault Referral Centre referrals would be made for both girls.
On 3 October 2011 the matter was transferred to the Family Court of Australia. Orders were also made for the appointment of an Independent Children’s Lawyer.
Pursuant to the orders of Registrar Brown made on 10 October 2011 the matter was designated Magellan. The Minister for the Department of Health and Families Child Protection Unit was invited to intervene in the proceedings. The Minister has not intervened.
A Notice of Child Abuse was subsequently filed on 26 October 2011.
The father’s time with the children was suspended pending the conclusion of the investigation. The investigation was closed in February 2012. No charges were laid however the father’s time with the children has not been reinstated.
The DCF report dated 28 February 2012 said:
At the time of writing this report, the complete investigation and report from NT Police CAT team has not been received by DCF. However, it is my understanding that this report has been subpoenaed for the Family Court matter in which this report is being prepared.
As DCF has not investigated allegations of sexualised behaviours in regards to [B] and [C] and NT Police CAT investigation is anticipated to be closed without proceeding with charges it is not possible to form an evidence based conclusion in regards to the sexualised behaviours exhibited by the children. Both children have been evaluated by SARC, RDH Medical Staff and been through a CFI without any disclosure or significant medical findings.
The Applications
In the Initiating Application of the applicants (great maternal aunt and uncle) filed 19 May 2010 the following orders are sought:-
1. That [Ms Curtis] and [Mr Cutis] have sole parental responsibility for [B] born …June 2007 and [C] born … June 2008 (“the children) (sic).
2. That the children live with [Ms Curtis] and [Mr Curtis].
3. That the children spend time with [Mr Harvey] as agreed between the parties.
4. That the father is restrained from consuming any illicit substance or alcohol for 12 hours prior to spending time with the children or during spending time with the children.
The father seeks orders as set out in his Case information - Case outline filed 12 March 2012. They are:-
1.That the father have equal shared parental responsibility with the Maternal great aunt and uncle for the children [B] born …/6/2007 and [C] born …/6/2008 (“the children”) until the children commence living with the father.
2.That the judgement (sic) is handed down, the father to spend time with the children as sought in his application in the case filed on 20.2.12, or as otherwise deemed to be in the best interests of the children, but no less than for a period of no less than 2 hours supervised at Catholic Care.
3.That for the purposes of these proceedings, the children spend time with the father as follows:
A.Should the court not find the father to present an unacceptable risk of harm to the children when in the father’s care:
(a)That the children live with the father with the transition into the father’s care as recommended by [Dr M] and the Family Report Writer, with the father to have sole parental responsibility for the children.
(b)That the children are to spend time with the Applicants supervised at Catholic Care Children Centre, or as otherwise recommended by [Dr M] and Family Report Writer.
B.Should the court find an unacceptable risk of harm to the children when in the father’s care:
(a)Until [C] attains the age of 5 years, time supervised by the paternal grandmother or the father’s fiancé/wife on no less than two occasions in each week, to include:
(i)after school on Wednesday until 6 pm;
(ii)overnight time on weekends from after school on Friday until 5 pm the following Saturday for a period of 4 weeks, to be extended thereafter until 5 pm the following Sunday;
(iii)children’s birthdays if they fall on a school day for a period of 3 hours, and if they fall on a non-school day from 10 am to 5 pm;
(iv)Father’s Day from 10 am to 5 pm;
(v)Easter and Christmas Days from 10 am to 5 pm
(vi)Christmas 2012 school holidays first, third and fifth week to commence from 5 pm Friday after school until 5 pm the following Friday;
(vii)in June/July 2013 school holidays first and third week, to commence from 5 pm Friday after school until 5 pm the following Friday;
(c)that the children are to live with the father upon the child [C] attaining the age of 5 years, and to spend time with the Applicants each alternate weekend from 10 am Saturday until 5 pm the following Sunday.
4.That whilst the children are in the applicants’ care, the father shall be at liberty to attend all appointments and to contact and be contacted by all treating practitioners attending to the children.
5.That whilst the children are in the applicants’ care, the father shall be at liberty to attend the children’s school and to receive all information relevant to the children’s schooling, and to attend to all and any school activities and parent-teachers meetings concerning the children.
6.That the applicants to attend and complete parenting orders program within 2 months from the date of the order, and provide the father a copy of the completion of the program.
7.That when the parties have equal shared parental responsibility, the father and the applicants should inform one another as soon as practicable of any emergencies concerning the children, and inform the other of any hospitalisation and provide to the other contact details of any treating practitioners.
8.That when the parties have equal shared parental responsibility, and in the event that the time spent with the children is associated with a travel (sic) away from the children’s usual place of residence, the party with whom the children are to travel shall:
(a)provide to the other party a notice of the intention of such travel no less than 4 weeks before the intended departure
(b)the children’s general travel itinerary to include address at which the children will be staying and telephone number on which the children can be contacted during the absence from their usual place of residence.
9.That when the parties have equal shared parental responsibility, the parties shall communicate with one another about all issues concerning the children by way of communication book, by SMS or email, such issues are to include but not to be limited to:
(a)medical issues, including appointments with treating practitioners, medical if any to be administered to the children and hospitalisation details,
(b)school activities and parents-teachers meetings,
(c)the children’s curricular activities,
(d)details of the children’s after school care
(e)names of persons that are delegated by the applicants and the father to supervise the children.
10.That when the parties have equal responsibility, each party shall inform the other of their current residential addresses and telephone numbers and any changes thereto forthwith.
11.That each party shall be at liberty to telephone the children and facilitate a telephone call to the other party, should the children ask to call the other party, at all reasonable times.
On 7 March 2012 the Independent Children’s Lawyer filed a Case Information in which the following orders were sought:-
1.That the children [B] born …/6/2007 and [C] born …/6/2008 live with the (sic) [Ms and Mr Curtis].
2.that [Ms Curtis] and [Mr Harvey] have equal shared parental responsibility for the children in event no unacceptable risk is found, otherwise parental responsibility to go to the applicants solely
3.that the children spend time with the father……the ICL is not in a position to detail proposal for children to spend time with the father until all the evidence is heard and ICL therefore reserves her position.
The father filed an Application in a Case on 20 February 2012 in which he sought orders pending the delivery of judgment as follows:
1.That should the allegations against the respondent father currently investigated by the police be unsubstantiated, or should there be insufficient evidence to substantiate the allegations, the father shall spend time with the children until the judgement (sic) of final orders is handed down, as follows:
(a)In accordance with orders made on 24 June 2011;
(i)each Tuesday and Thursday from 4.30 pm to 6.30 pm
(ii)each Saturday from 10.30 am to 2.30 pm.
(b)That for the purpose of the collection of the children at the commencement of the time to be spent with the father, the changeover is to occur at Catholic Care.
(c)That for the purpose of the delivery of the children at the conclusion of the time spent with the father, the father or his partner shall deliver the children for the applicants’ collection outside of Woolworths at the [Suburb P] Shopping Centre, or alternatively, the applicants collect the children from the paternal grandmother’s residence at [N Street, Suburb O].
(d)Alternatively, the father to spend supervised at Catholic Care times with the children on two occasions in each week, if available, but no less than on one occasion in each week.
2.That the respondent father be at liberty to attend all and any medical appointments and school events and parent-teacher meetings associated with the children’s health and school issues.
On 23 March 2012 the Court dismissed the father’s Application in a Case filed on 20 February 2012.
At the conclusion of the evidence and final submissions, the Independent Children’s Lawyer emphasised the difficulty in ascertaining which orders would be in the best interest of the children and the practical difficulties in making appropriate arrangements to cover the range of possible contingencies.
Counsel for the father also conceded that it was a very difficult matter. Her instructions were to seek an arrangement whereby the father should gradually be permitted to spend unsupervised time with the children and within a short period of, say, two months move towards the father’s proposed orders.
Counsel for the maternal great aunt and uncle submitted they should have sole parental responsibility, that both children should live with them and spend no time with the father. The alternative submission was that “at best” the father should have supervised time with the children, being time which is supervised by a professional supervisor and which would be maintained in the long term.
Summary of main issues
The allegations raised include that the children have made statements and demonstrated sexualised behaviours which may indicate that they have been sexually abused. The maternal family strongly believe that the father has sexually abused the children. The father strenuously denies any inappropriate behaviour towards either of the children.
The father alleges that the children have been inappropriately smacked or hit whilst in the care of the maternal great aunt and uncle.
The children’s developmental needs and the capacity of the parties to attend to their needs are also significant factors.
How the children will cope with a change in their daily living arrangements was also relevant.
Whether the children would benefit from a relationship with the father and how that relationship should be re-established was also significant.
The Law
Section 43 of the Family Law Act 1975 (Cth) (‘the Act’) states:
Section 43
Principles to be applied by courts
(1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c) the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure protection from family violence; and
(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.(2) Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.
The most relevant provisions of Part VII of the Act are set out in the following sections:
Section 60B
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).(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Section 60CC
How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional Considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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 the child;
(m) any other fact or circumstance that the court thinks is relevant.(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.Section 60CA
Child’s best interest paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section60CD
How the views of a child are expressed
(1) Paragraph 60CC(3)(a) requires the court to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child. This section deals with how the court informs itself of views expressed by a child.
(2) The court may inform itself of views expressed by a child:
(a) by having regard to anything contained in a report given to the court under subsection 62G(2); or
(b) by making an order under section 68L for the child's interests in the proceedings to be independently represented by a lawyer; or
(c) subject to the applicable Rules of Court, by such other means as the court thinks appropriate.
Note 1: Paragraph (a)--subsection 62G(3A) generally requires the person giving the report to ascertain the child's views and include those views in the report.
Note 2: Paragraph (b)--paragraph 68LA(5)(b) requires the independent children's lawyer for the child to ensure that the child's views are fully put before the court.Section 60CG
Court to consider risk of family violence
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 62G
Reports by family consultants
(1) This section applies if, in proceedings under this Act, the care, welfare and development of a child who is under 18 is relevant.
(2) The court may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.
(3) If the court makes a direction under subsection (2), it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court.
(3A) A family consultant who is directed to give the court a report on a matter under subsection (2) must:
(a) ascertain the views of the child in relation to that matter; and
(b) include the views of the child on that matter in the report.
Note: A person cannot require a child to express his or her views in relation to any matter (see section 60CE).
(3B) Subsection (3A) does not apply if complying with that subsection would be inappropriate because of:
(a) the child's age or maturity; or
(b) some other special circumstance.(4) The family consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
(5) For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).
Note: Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties' needs (see section 11E).(6) If:
(a) a person fails to comply with an order or direction under subsection (5); or
(b) a child fails to attend an appointment with a family consultant as arranged in compliance with an order or direction under subsection (5);
the family consultant must report the failure to the court.(7) On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate.
(8) A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.
Section 64B
Meaning of parenting order and related terms
(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order .
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
(4) The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:
(a) letter; and
(b) telephone, email or any other electronic means.
(4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:
(a) resolving any dispute about the terms or operation of the order; or
(b) reaching agreement about changes to be made to the order.
(5) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order .
(6) For the purposes of this Act:
(a) a parenting order that provides that a child is to live with a person is made in favour of that person; and
(b) a parenting order that provides that a child is to spend time with a person is made in favour of that person; and
(c) a parenting order that provides that a child is to have communication with a person is made in favour of that person; and
(d) a parenting order that:(i) allocates parental responsibility for a child to a person; or
(ii) provides that a person is to share parental responsibility for a child with another person;
is made in favour of that person.(9) In this section:
"this Act" includes:
(a) the standard Rules of Court; and
(b) the related Federal Magistrates Rules.Section 64C
Parenting orders may be made in favour of parents or other persons
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
Section 65C
Who may apply for a parenting order
A parenting order in relation to a child may be applied for by:
(a) either or both of the child's parents; or
(b) the child; or
(ba) a grandparent of the child; or
(c) any other person concerned with the care, welfare or development of the child.Section 69ZT
Rules of evidence not to apply unless court decides
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
The High Court in M v M (1998) 166 CLR 69 discussed the issue of “unacceptable risk”. At page 77 it is said:
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 assess 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.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “unacceptable risk test”, and said (at 79,910):
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 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.
Discussion about evidence and findings
The applicant maternal great aunt and uncle rely on the evidence in chief set out in the affidavits prepared for this trial. They are affidavits of the maternal great aunt Ms Curtis filed on 27 February 2012 and 28 February 2012, the affidavit of the maternal great aunt’s husband (the other applicant) Mr Curtis filed on 27 February 2012, the affidavit of Ms E filed on 27 February 2012, the affidavit of Ms R filed on 27 February 2012 and the affidavit of Ms Q filed on 28 February 2012. These witnesses were cross-examined by counsel for the father and the Independent Children’s Lawyer.
The applicant maternal great aunt Ms Curtis gave her oral evidence first. The affidavit filed on 27 February 2012 sets out the relevant family history and background to the matter.
The applicants, Mr and Ms Curtis have been married for 20 years. They have three children, Ms E (aged 19), F (aged 17) and G (aged 15). (Ms E also filed an affidavit and gave oral evidence).
Significantly the affidavit of the maternal great aunt sets out the developmental issues for both B and C when they first came into the applicants’ care and the development of further concerns following upon the father spending time with the children.
The affidavit sets out her evidence regarding the applicants’ concerns for the children, and in particular, the concerns about the children’s failure to thrive, the delay in their development, the unusual behaviour and the allegations of sexual abuse, and the belief that both children observed domestic violence in the home of the mother and father.
The affidavits specifically deny ever coaching or influencing the children to make any statements and deny taking any steps to alienate the father from the children.
The second affidavit of the applicant maternal great aunt filed on 28 February 2012 annexes the transcript of the maternal great aunt’s interview by the police in September 2011 concerning the children.
When cross-examined by counsel for the father and counsel for the Independent Children’s Lawyer, the maternal great aunt was not challenged in any significant way concerning her evidence about the children’s behaviour, statements made by the children, the children’s health issues or her genuine concerns about the father’s ability to provide safe and appropriate care for the children.
Whilst the maternal great aunt was distressed while being cross-examined, her distress appeared to relate to her concern for the children.
The maternal great aunt was consistent throughout her evidence in opposing any arrangements whereby the father would spend unsupervised time with the children because she believed that they would be at risk. She denied influencing the children or encouraging them to make any false statements about the father.
The applicant Mr Curtis swore an affidavit on 27 February 2012 which was filed on that date. His police interview regarding the investigation about the children’s sexualised behaviour is annexure “A” to that affidavit.
Mr Curtis denied taking any part in the police investigation other than providing his statement. He denied intimidating or threatening the father’s current partner or attempting to alienate the children from their father.
The affidavit clearly states that he is opposed to the father spending any time with the children because he is concerned about their welfare in the father’s care. During cross-examination by the father’s counsel, Mr Curtis admitted that he had called the father an “idiot” but denied that he had sworn at him.
During his cross-examination he maintained his attitude about the father not spending any time with the children. He gave appropriate answers related to his ongoing concerns for the children’s welfare, including a psychological risk if they were left unsupervised. He referred to a combination of reasons, including the sexual behaviour exhibited by the children in the past, the concerns about the domestic violence they had witnessed whilst in the care of the mother and father and their failure to thrive.
The maternal great grandmother, Ms R, swore an affidavit on 27 February 2012 which was filed on that date.
The affidavit sets out the children’s Aboriginal heritage and her own background. She refers to her role in assisting B and C to learn about their Aboriginal heritage.
The evidence in that affidavit also includes observations about the mother’s life and mental health issues. The affidavit refers to in some detail to occasions when the children’s great grandmother witnessed incidents at the home of the mother and father and observations about the household which formed the basis of serious concerns for the welfare of the children in the care of their mother and father before the mother’s death.
When cross-examined by counsel for the father and counsel for the Independent Children’s Lawyer her evidence was not significantly challenged. She maintained that she is afraid the children would be neglected again if in the care of the father. She did not support the children spending time with the father until she could “know that they are protected and safe”.
The applicants’ daughter, Ms E, swore an affidavit on 27 February 2012 which was filed on that date. Ms E was aged 19 when she gave evidence. She resides at home with her mother and father and assists them in the care of B and C. Annexure “A” to her affidavit sets out the transcript of the interview she provided to the police in July 2011.
Paragraph 5 of that affidavit says:
5. On 6 July 2011 I sat with [C] whist (sic) she was being interviewed by the police. [C] was not saying anything. One of the police officers gave me a piece of paper with questions on it to ask [C] and they left the room. The interview was being recorded. I do not recall the questions I was asked to ask [C]. In response to one question [C] pointed to her private part and said “[Mr Harvey] touched me down there”.
The affidavit continues:
6. I have seen [C] open her vagina.
7. I have seen both children poke each other in the bottom when in the bath.
8. When [C] first came to live with us she used to try and put her tongue in my mouth when I would kiss her.
9. Since the girls have stopped seeing [Mr Harvey] they do not display sexualised behaviour very often. Since doing the interview I have observed the girls playing with each other’s private parts. I have said to [C]: “Why are you doing that? Who showed you that?” and she will say [“Mr Harvey”].
During her oral evidence she also confirmed Exhibit 6 which was her further statement to the police dated 8 December 2010.
That statement includes the following:
5. After [B] and [C] initial (sic) moved in with us I noticed both of them displaying sexualised behaviours. These behaviours lasted a couple of weeks; two weeks at the most. When I went to give them kisses on their cheeks, they would try and put their tongue into my mouth. They both would also act out like they were having sex through body movements with no noise. I initial (sic) ignored it as I was not use (sic) to having younger sisters but thought it was very strange behaviour at a young age.
6. Both [B] and [C] always seem to be touching and playing with their private parts. They mostly touch and play with their own private body parts, expect at times I have seen them both try and poke each other in their bottoms. This mainly happens during bath times or changing of their nappies.
7. These sexualised behaviours by both girls have started again in November 2010. A lot of times when I changed their nappies, they both spread their legs and their flappy parts and start playing with themselves. They both think it is funny and laugh about it and I now tell them it’s wrong and rude.
8. Towards the end of November 2010, I was changing [C’s] nappy when she opened her legs and said “I’m horny”. I asked her again what she said and again she said “I’m horny”. I asked her why she would say this but she didn’t answer. This took me by surprise, that she would use a word like this.
9. Earlier this month (December) after [C] and [B] returned from a visit with their father, I noticed that [C] seemed a lot quieter than normal. She also told me that her bottom was sore. I checked her bottom and did not notice anything unusual. I asked her why her bottom was sore and she said “from [Mr Harvey’s]”. [C] was really quiet this day.”
During cross-examination the witness maintained her evidence. She was consistent.
Ms E’s evidence strongly supported the concerns maintained by her family and in particular, her parents.
Ms Q swore an affidavit on 28 February 2012 which was also filed on that date. She is the applicants’ niece. She was 18 years old when she gave her evidence. Annexure “A” to her affidavit is the statement she provided to the police in September 2011 about the children’s sexualised behaviour and statements. When cross-examined by counsel for the father, she was not significantly challenged about any of the relevant evidence.
The father relied upon two affidavits, one sworn on 10 February 2012 and filed on 17 February 2012, the other sworn on 27 February 2012 and filed on 28 February 2012.
He also relied upon the evidence of his mother, Ms S, his fiancé, Ms K, his brother Mr T and the former girlfriend of Mr T, Ms U.
The affidavit of the father filed on 17 February 2012 describes meeting the mother at a Darwin nightclub in 2006. Paragraph 4 continues:
…We meet (sic) twice, and within the first week of meeting Rykezia (the mother) telephoned me from the Royal Darwin Hospital (“RDH”) Mental Ward, as she was trying to take her own life by cutting her wrist. I visited Rykezia twice at the hospital and brought her some food. I continued to see her after she was released from the RDH.
The affidavit continues to refer to the father being informed by the mother that she was pregnant in September 2006. It refers to the ongoing difficulties that he observed in the mother’s mental health and her alcohol addiction.
The affidavit also details the birth of both B and C.
Paragraph 24 and 25 of the father’s affidavit states:
My relationship with the children before the mother’s passing away
24.Before the mother’s passing away, we lived together with the children most of the times. We often visited my mother at her house at [V Street, Suburb W]. I was present at the children’s birth. I was involved with the parenting of [B] and [C], feeding the children, preparing their formula, changing their nappies, bathing them, cooking for them, washing their clothes and nappies, and putting them to sleep, I also attended to most of the house chores.
25.The mother left the children in my sole care on many occasions, when she wanted to go out with her friends to socialise. I had regularly taken the children to my mother’s house to spend time with my family members, including my step father, my mother, my brother and his girlfriend who all lived together. I went to the clinic with the mother to take the children for periodic checkups and weigh-ins. I took the mother and the children to the paediatrician to treat [B’s] low weight and to treat her eczema.
Events prior to the mother’s passing away
26.During the period 22 July 2007 and 1 October 2009 six child protection notifications were made to the Department of Children and Families. Two of these notifications were substantiated for neglect and emotional abuse. The mother was found to be the person responsible for the neglect which was assessed by the Department as being due to failure to thrive, specifically in relation to [B].
27.The Department also assessed that I and the mother were responsible for emotional abuse upon the children due to domestic violence that was alleged to be between us.
28.I say that I have, at every opportunity, had tried to avoid arguments with the mother, which I say, the mother initiated. When the mother initiated an argument, I either walked away to avoid getting into an argument, or I tried to minimise the conflict. I believe that the mother had mental issues. She attended [X Centre] for treatment. The mother also drank alcohol to excess, and often initiated verbal fights, and sometimes would physically hit me, when she was intoxicated. The mother drank alcohol heavily when she was pregnant with the children.
29.The children’s maternal great Grandmother, [Ms R] has provided a lot of support for our family, which I always accepted and was grateful for. [Ms R] became concerned at times about the mother’s mental health, or about our relationship, when we had had disagreements. When we experienced disagreements, I was very concerned for the mother’s well being, as she would become sad and depressed.
The father’s affidavit refers to his concern about the mother’s parenting of the children and her mental health issues. He sets out in the affidavit particular events when he alleges the mother was violent towards him. He acknowledges that arguments and some of the violence took place either in the children’s presence or when they were in the household.
His affidavit sets out the efforts he has made to be reunited with the children. This has included drug screen testing (results being negative) during the period from October 2009 until February 2012.
Included in the history of the litigation set out in the father’s affidavit is the father’s version of the supervised and unsupervised time he has spent with the children since they were placed in the maternal great aunt and uncle’s care.
The father also refers to, and relies on, annexures to his affidavit setting out the parenting courses and counselling courses he has attended, including the Positive Parenting Program (Triple P) and Mental Health First Aid Aboriginal and Torres Strait Islander (Annexures “Y” and “W” respectively).
The affidavit also refers to his “loving relationship” with Ms K, whom he is planning to marry in June 2013. Their child was expected on or about 16 June 2012.
The affidavit said that the father currently resides with his mother, step father and brother and that he was working full time, 7.30 am to 4.30 pm Monday to Thursday and 7.00 am to 2.15 pm on Friday.
His affidavit strenuously denies any allegation of sexual abuse of the children.
The affidavit filed on 28 February 2012 refers to the father’s ongoing voluntary drug screen testing. The father’s affidavit is that:
2.I have not used drugs since I was 22 years of age which was before my eldest daughter [H] was born. I am 29 years of age. Prior to [H’s] birth I had an occasional joint of marijuana when socialising with my friends, once every few months.
The affidavit annexes the drug screen test results. Each of those show “Not Detected”.
During cross-examination by counsel for the maternal great aunt and uncle, Exhibit 5 was received by the Court. It was the father’s proposal at that time for his re-introduction to the children.
During his cross-examination he gave evidence that he thought that the mother had taken reasonable care of his daughters while she was alive. He confirmed that although they had separated in September 2009, he had stayed at the flat regularly until the day before the mother died.
The father denied that the children had received little food. During cross-examination he admitted that on occasions he had not heeded medical advice, nor did he ensure that the children attended upon all of the arranged medical appointments which had been arranged for them whilst he was residing with the mother or regularly visiting the mother and the children.
He maintained he had not done anything wrong at all to the children and that the allegations made by the maternal great aunt and uncle were “concocted”.
The father was unwilling to take any responsibility for any of the children’s developmental difficulties or any harm that might have occurred whilst the children were living in the household, prior to the mother’s death.
Whilst he admitted that there was violence in the household, he maintained that any violence was caused by the mother. He was unable to take any responsibility for the fact that he knew the mother was abusing alcohol and drugs whilst the children were in the household, but he took no action to change their living arrangements.
In his cross-examination the father confirmed that if the Court allowed him to care for the two children they would share one bedroom with three other children until the renovations which were being planned for the home could be completed.
The Independent Children’s Lawyer called Dr M who had been B’s paediatrician since September 2009. Her evidence was heard immediately after the father’s evidence concluded.
Exhibit 9 contains the letter and notes concerning B beginning in September 2009 and running through to the attendance on 13 April 2011 as set out in the letter of 14 April 2011.
When being questioned by counsel for the Independent Children’s Lawyer, Dr M noted that she had been informed about B’s separation anxiety in early 2010. There had been a significant improvement since then, although some separation anxiety still existed in September 2010.
Dr M’s evidence included the observation that the bruising which had been observed was typical of accidents experienced by children of that age.
Dr M also confirmed that there was still significant weight gain issues for B and in particular, that she needed ongoing treatment. Dr M’s evidence was that she was however satisfied with the care being provided by the applicant maternal great aunt and uncle and had no concerns about the children in the care of the applicants.
When being cross-examined by counsel for the maternal great aunt and uncle, Dr M confirmed that there had been significant improvement in B’s care over the time that she was treating the child.
Dr M expressed the opinion that a removal from the applicants’ care would be likely to cause very significant trauma to the children. She said that unsupervised visits with the father appeared to have distressed the children.
When cross-examined by counsel for the father she conceded that the mother’s alcohol abuse when pregnant could have been a contributing factor to B’s delayed development. She confirmed that B’s weight remained around three percentile for children of that age.
Dr M maintained that, based upon what she had been told by the applicants’ family, she remained concerned about unsupervised time between the father and the children.
At the conclusion of the evidence of Dr M, the Court received the evidence of the paternal grandmother for the children. Her affidavit was sworn on 11 February 2012 and filed on 17 February 2012.
The affidavit sets out the short history of the paternal grandmother’s background and residence in Australia. The affidavit says at paragraph 6 that the father has lived with her since his birth, “… except for the times that he spent with the children’s late mother, [Ms D], who passed away on … October 2009, taking her own life”.
The affidavit also refers to the assistance the paternal grandmother gave to the mother and the children, including assisting them financially and visiting them “almost every day”. The affidavit describes the assistance she gave caring for the children, both at her home and at the home of the mother.
In one section of the affidavit, the paternal grandmother describes her son as “a very good father to [B] and [C]” and sets out the role she maintained he played in the care and upbringing of the children.
During her oral evidence the paternal grandmother maintains that the children were being looked after “very good” by the mother and father and that she was not worried about their care of the children. She agreed that although the children had been placed with her by the Welfare Department who were saying that the children were not safe in the care of the mother and father, she had returned the children to the mother.
The paternal grandmother appeared to be giving her evidence primarily to support her son. She did not appear to have any insight into the risks the children had faced in the care of the mother and father before the mother’s death.
The paternal grandmother’s evidence was interrupted by the first part of the evidence of the Family Consultant, Ms Y. When she resumed cross-examination the paternal grandmother continued to be supportive of her son, however she appeared unsure when giving her answers to many questions. Her evidence should be assessed as a mother supporting her son.
The father relied on the evidence of Ms U. Ms U’s affidavit was filed on 16 September 2010, having been sworn on 15 September 2010. That affidavit describes Ms U as “the partner of the applicant’s brother [Mr T]”. When Ms U gave evidence in March 2012, she was no longer the partner of the father’s brother. She had separated from him.
The affidavit describes the relationship Ms U had with Mr T between 2005 and the 2010. The affidavit refers to Mr T and Ms U moving to a property with the father’s mother “because we wanted to support [Mr Harvey] for caring for [B] and [C]”. Ms U, Mr T and Mr Harvey thereafter rented a property in Suburb O and were all living together in 2010.
The affidavit describes the father’s parenting of B and C. It refers to the mother and father “continued with their routine in caring for [B] and [C] together”. (Paragraph 14).
The affidavit of Ms U refers to the strong relationship observed between the children and the father and his appropriate care of the children.
In cross-examination by counsel for the maternal great aunt and uncle, Ms U said that she was not at any stage worried about B’s weight. She referred to the maternal great aunt and uncle as “persons not fit to have children in their care”. She said that it was the mother who was violent towards the father during their relationship.
The father’s partner, Ms K, also gave evidence. Her affidavit was sworn on 12 February 2012 and was filed on 17 February 2012.
The father and Ms K met while at high school. They commenced a relationship “around April 2011”. At the time of the swearing of the affidavit, and when she gave her oral evidence, Ms K was living with her three younger children who are aged 3, 8 and 9. Her two older children, aged 10 and 12, live with her mother in the same street in a house “a couple of minutes walk away”.
Ms K was expecting a child by the father in June 2012.
The affidavit refers to the plan for the father to move into the house when the baby is born. It is currently a three-bedroom house. They plan to have extensions completed by the end of the year.
Ms K works in a full time position from 8.00 am until 4.36 pm from Monday to Friday.
The affidavit sets out her relationship with the father and the children and her plans to assist the father in caring for the children.
During cross-examination, Ms K’s explanation for her older children living with her mother was that her mother has a larger house and her daughters wanted their own rooms. Her evidence was that her daughters visited her home often, usually every day. She confirmed that if B and C lived with the father and herself, they would sleep in bunk beds in the same room as her three children. When the older daughters visited they would sleep in the pull out beds in the lounge.
During cross-examination, Ms K did not know the details of plans for the children to be reunited and to live with her and the father. She referred to the fact that she was seeking “orders that he’s seeking” referring to the father.
When asked during cross-examination about who would pay for the proposal that the children attend boarding school, Ms K referred to having the “support” of her family.
During cross-examination the possibility was discussed that the father might be the father of Z, one of Ms K’s children.
During this cross-examination it became apparent that Mr AA (Ms K’s former partner) had been told that Z was possibly not his child but the child of the father in these proceedings. As a result Mr AA had told Z of that possibility. The paternity of Z has not been determined.
Ms K supported the father’s proposal to change schools for the children.
Ms K was generally supportive of the father. Her evidence was however in general terms. She had given little consideration to the detail of the proposed future care of the children including possible difficulties surrounding the children’s change of circumstances, particularly moving into a household with the other children and a young baby.
The father’s brother Mr T also gave evidence. His affidavit was sworn on 11 February 2012 and filed on 17 February 2012. His affidavit referred to his regular visits to the household of the mother and father before the mother’s death and his interaction with the children both before the mother’s death and since. His affidavit referred to the father “always taking very good care of the children”. He gave evidence that he was prepared to assist the father and support him in relation to his care of the children.
In his oral evidence he confirmed that he and his former girlfriend were no longer together and that he had moved back to his mother’s house. He confirmed that he had observed the mother use marijuana and consume excessive alcohol and that he had been concerned for the welfare of the children.
Ms Y, Family Consultant, gave evidence. The Court received both Family Reports prepared by her being the 21 January 2011 and 19 September 2011.
The Court takes into account all of the material in both reports and the oral evidence of Ms Y.
Significant portions of the first report are paragraphs 51 to 58 inclusive.
51.For their part, it appears that in the 15 months since the Department of Health & Families removed [C] and [B] from their parents’ care, [Mr and Ms Curtis] have provided the children with a high level of consistent, responsive care. They are evidently cognisant of the children’s complex needs and appear well-equipped to continue assisting the children in their recovery from their early life experiences. [Ms Curtis] and the maternal family are also well-placed to further develop and maintain the children’s connection to their Aboriginal culture. [Mr and Ms Curtis] presented as child-focussed and protective of [B] and [C], and during observation period, the children displayed behaviours that indicated they had formed attachment relationships with their carers. The children also appeared to share warm, positive interactions with [Mr Harvey], who ably met their needs during the observation period.
52.In the days following this assessment, concerns were raised by [Mr and Ms Curtis] regarding sexualised behaviour that had been displayed by [C] in recent times. [Ms Curtis] also made retrospective reports regarding both children having displayed sexualised behaviour soon after coming into her care, within the context of their demonstration of a number of concerning (non-sexual) behaviours. It is difficult to know what to make of this information, but there is no evidence to suggest that [C’s] recent sexualised behaviour is linked to [Mr Harvey’s] conduct during visits. One possible explanation is that [C] and [B] were exposed to sexual activity during the chaos of their early life, and these memories may be triggered by their visits. An alternative, more concerning explanation, which was identified and labelled by [Mr Curtis] as “tit for tat”, is that this information has been fabricated.
53.Whilst the allegations that have been made are a matter for evidence, the primary consideration in determining the children’s care arrangements is ensuring that they are afforded a safe, stable and responsive care environment. It is essential to balance the need for [B] and [C] to consolidate their developmental gains and improvements in emotional wellbeing, with their need to maintain a meaningful relationship with both their maternal and paternal family, and most significantly, their father.
54.Although it appears that much of the neglect and abuse experienced by the children was a consequence of [Ms D’s] mental health issues and associated drug use, [Mr Harvey] continues to minimise the significance of these issues. Further to this, there is evidence to suggest that [Mr Harvey] was complicit in prematurely discharging [B] from hospital against medical advice, and was resistant to [Ms D] accessing mental health and generic support services. Thus, whilst it may be argued that as a sole parent without [Ms D], Mr Harvey represents less of a risk to the children, the writer holds concerns regarding his ability to recognise and appropriately meet his children’s inherent needs for safety, stability, and responsive care as their primary carer.
55.Given the children’s early experiences and current psychological functioning, notwithstanding the progress they have made since being placed in [Mr and Ms Curtis’] care, it is considered that effecting another disruption to their care arrangements would place them at risk of further psychological harm. These children, in particular [B], who manifests behavioural indicators of separation anxiety from [Ms Curtis], will require better than ‘good enough’ parenting in order to reach their full potential. It is the writer’s opinion that [Mr and Ms Curtis] are best placed to provide this care.
56.The conflicted relationship between [Mr Harvey] and [Mr and Ms Curtis] predates the children coming into their care and has undoubtedly been complicated further by Ms D’s death, the tragic nature of which appears to have been linked to the Department of Health & Families’ intervention. The current court action is likely to have compounded this fracture, and thus it is hoped that repeated court action will not occur over the course of [B] and [C’s] childhood. To their credit, [Mr and Ms Curtis] and [Mr Harvey] are child-focussed to the extent that they appear able to effect transitions, and communicate courteously to one another.
57.Given the loss of their mother, it is important that [C] and [B] have regular contact with [Mr Harvey], and he remains a meaningful figure in their lives. Whilst the children are younger, this will mean more frequent visits of a shorter duration with [Mr Harvey], so that the children’s relationship with [Mr Harvey] is not undermined by their experiences of separation anxiety. Such an arrangement would then be amended as the children grow older and their relationship with [Mr Harvey] is consolidated. As the children age, their visits will enable them to experience stable and secure care, as well as maintaining their familial and cultural connections.
Recommendations
58.It is recommended that:
·[B] and [C] continue to live with [Ms and Mr Curtis], and spend time with [Mr Harvey] and their paternal family.
·[Ms and Mr Curtis], and [Mr Harvey], bear equal shared parental responsibility for [B] and [C].
·[B] and [C] spend time with [Mr Harvey] as follows:
-Prior to both children commencing primary school;
·Twice weekly, from 10am until 1pm.
·Every alternate weekend from 9am until 2pm on a Saturday or Sunday.
-When [C] commences primary school;
·Once weekly, from close of school until 6pm.
·Every alternate weekend from 9am Saturday until 9am Sunday.
-When [C] attains the age of seven years (and [B] is aged eight years);
·Once weekly, from close of school until the commencement of school the following day.
·Every alternate weekend from close of school on Friday until 5pm Sunday.
·When [B] and [C] reach the age of approximately four and a half years, and thus possess reasonable verbal abilities, they are referred for therapeutic intervention regarding protective behaviours.
·Should it be considered necessary in future, the children access therapeutic services in order to address issues relating to their early experiences of trauma, grief and loss.
·[Mr Harvey] is invited to attend all medical, speech pathology and occupational therapy appointments for [B] and [C] and/or receives all information pertaining to their developmental progress.
·Notwithstanding his prior attendance at a parenting course, [Mr Harvey] participates in a program aimed to enhance parental understanding of the early developmental needs of children, should such a service be available to him.
In the updated report, Ms Y reports upon interviews with each of the parties and observations of the children with Mr and Ms Curtis and interviews with each of the children.
Observations were scheduled to take place with the father and the children, but due to the ongoing police investigation, which was current at the time, Ms Y was advised by the NT Child Abuse Task Force of the Northern Territory Police the children should not have contact with the father until the investigation was concluded.
Under the heading “Evaluation” Ms Y refers to the deterioration in the relationship between the parties. Ms Y referred to the limitations of the current assessment due to the inability to observe the children with the father. Taking that into account however, Ms Y refers to the destruction to the children’s care arrangements if they were to be separated from Ms Curtis, indicating that she was of the opinion that this would cause the children significant psychological harm.
The recommendations of the second report are:
Recommendations
50.It is recommended that:
·B and C continue to live with Ms and Mr Curtis, and spend time with Mr Harvey and their paternal family.
·Ms and Mr Curtis, and Mr Harvey, bear equal shared parental responsibility for major long term decisions affecting B’s and C’s education, health and welfare. They may require periodic assistance from a community mediation service in order to discuss relevant issues.
·Should the Court find that the current allegations are without basis, B and C spend time with Mr Harvey as follows:
-Prior to both children commencing primary school;
·Twice weekly, from 10am until 1pm.
·Every alternate weekend from 9am until 2pm on a Saturday or Sunday.
-When C commences primary school;
·Once weekly, from close of school until 6pm.
·Every alternate weekend from 9am Saturday until 9am Sunday.
-When C attains the age of seven years (and B is aged eight years);
·Once weekly, from close of school until the commencement of school the following day.
·Every alternate weekend from close of school on Friday until 5pm Sunday
·Should the Court hold concerns regarding the current allegations, B and C’s time with Mr Harvey should be supervised, pending further recommendations from an appropriate forensic/therapeutic service.
·B and C are referred for therapeutic services regarding protective behaviours and their experiences of trauma, grief and loss when they attain the verbal skills necessary to participate in such intervention (this is likely to be sooner for C than for B, whose language development remains delayed).
·Mr Harvey is invited to attend all medical, speech pathology and occupational therapy appointments for B and C and/or receives all information pertaining to their developmental progress.
·Handovers between the parties occur at Catholic Care.
·The Court consider appointing an Independent Children’s Lawyer in this matter.
An Independent Children’s Lawyer was appointed.
During the oral evidence, when being questioned by counsel for the Independent Children’s Lawyer, the Family Consultant confirmed that the father had poor insight into the needs of the children. She repeated the opinion that any change in the children’s living arrangements would be a very significant threat to B’s wellbeing.
When referred to the anxiety and fear of the “Curtis” family which would arise if the children spent any time with the father, she stressed that if the children were safe in his care then it would be possible to consider a gradual increase in time from supervised time to unsupervised time. She was however cautious in making any recommendations, other than for supervised time until the children were either seven or eight years of age.
When questioned by counsel for the father about the children appearing to enjoy the time with the father, Ms Y said that the children may look outwardly positive, but that this could later trigger anxiety. She was concerned about the pressure of divided loyalties which might be placed upon the children.
During her oral evidence, Ms Y expressed considerable concern about the removal of the children from their primary attachment figure, the maternal great aunt. She was not confident that any therapeutic intervention would necessarily overcome the difficulty.
When questioned about the possibility of joint or shared parental responsibility, Ms Y expressed concern about the practicality of expecting the parties to make joint decisions and the effect this might have upon the children’s welfare.
Her evidence confirmed that she considered that both children should remain with the applicant maternal great aunt and uncle until they reach the age of 18 years.
Final Submissions
During final submissions, counsel for the father submitted that the evidence indicated that the father had done “the best he could” and that issues of domestic violence were no longer relevant.
The father sought the order that the children live with him and that he have sole parental responsibility if the Court found that there is no unacceptable risk of harm to the children when in the father’s care. The proposal of the father was that if there was a finding of unacceptable risk then the father should have supervised time with the children until C attained the age of five years, this supervision to be by the paternal grandmother or the father’s “fiancé/wife” twice a week after school on Wednesdays until 6.00 pm and overnight on weekends from after school on Friday until 5.00 pm the following Saturday for a period of four weeks, to be extended thereafter until 5.00 pm the following Sunday. He also sought time on special occasions and for school holidays. It was then proposed that when C attained the age of five years, the children should live with him and spend alternate weekends with the applicant maternal great aunt and uncle.
The submissions on behalf of the applicant maternal great aunt and uncle were that the Court should find that there was an unacceptable risk in the father’s care. Counsel emphasised the fact that the applicants’ evidence and those of the witnesses called by the applicants, about the children’s statements and unusual behaviour had not been challenged. Emphasis was placed upon the emotional and psychological impact upon the applicants if they were required to deliver the children up to the father and the risk to the children of emotional or psychological abuse of the children.
In final submissions counsel for the applicants submitted that the risk of trauma to the family and the children was at such a level that there should be no order for the father to spend time with the children. In the alternative, it was suggested that the father spend time with the children supervised in the long term.
Findings
Overall the evidence of the applicants and their witnesses was not significantly challenged.
Whilst the evidence of the maternal great aunt and uncle clearly indicated that they did not have a positive view of the father and his family, the attitude displayed by them is readily explained by their strong belief that the children have been abused in the care of the father and would be at risk in his care.
The evidence of the maternal great aunt and uncle and their family members indicated a strong detailed knowledge of the children’s development needs and psychological and emotional welfare.
In contrast the evidence of the father and witnesses called to his support his claims, were not as reliable. The father’s evidence was inconsistent particularly in relation to the developmental needs of the children. Although the father and his witnesses claimed that the father had participated extensively in the care and upbringing of the children prior to the mother’s death, they were unable to explain why the children were left at risk in the mother’s care and what caused the developmental difficulties of B in particular, other than to retrospectively blame the mother’s consumption of alcohol when pregnant.
In these proceedings the Court needs to balance the numerous factors referred to in the Act. Section 43 (1) emphasises:
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c)the need to protect the rights of children and to promote their welfare;
The Court is required to consider the best interests of the children as the paramount consideration (section 60CA). When considering the best interests of the children the Court takes into account the objects of the part as set out in section 60B which include 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 children.
The provisions of section 60B also refers to the children having the right to know and be cared for by both their parents, to spend time and communicate with their parents and other people significant to their care.
The Court is required to consider the matters set out in sections 60CC(2) and (3). The primary considerations are significant. The need to protect the children from harm is claimed to conflict with the benefit to the children of having a meaningful relationship with the father.
The maternal great aunt and uncle’s evidence, together with their witnesses’ evidence, establishes that the children have exhibited sexualised behaviour and have made comments to the family which suggest that the father has involved the children in sexually inappropriate behaviour. The father denied any inappropriate behaviour.
I accept the evidence of the applicants and their witnesses. Their evidence was more reliable, in the general sense, than the evidence of the father and his witnesses. However because of the ages of the children and their disrupted early childhood, the Court is not able to find, on the necessary standard of proof, that the father has sexually abused the children, nor that there is an unacceptable risk that he has sexually abused the children.
The father does not acknowledge the concerns of the maternal great aunt and her family about the sexualised behaviour of the children and the comments of the children. He rejects their concerns and blames them for raising the allegations.
The children’s special developmental needs and the history of their disruptive life whilst in the care of the mother and the father is appropriately acknowledged by the maternal great aunt and her family, but minimised by the father and his witnesses.
The evidence of the applicants, their witnesses and the evidence of the experts Dr M and Ms Y, support a finding that the children would be at significant, emotional and psychological risk if they were to be moved from the care of the maternal great aunt and uncle to the care of the father. The maternal great aunt and uncle and their family have serious strong beliefs that the father’s behaviour towards the children has been abusive. Their belief is based upon what they have observed the children do and say.
The evidence of the experts, Dr M and Ms Y, raise serious concerns about the emotional and psychological wellbeing of the children (particularly B) if the children’s routine and care arrangements were disrupted even by supervised time with the father and his family.
The father denies that there would be any risk for the children in his care. However, the father and his fiancé have not given sufficient consideration to the children’s special needs.
The additional considerations required to be considered under section 60CC are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The children are not old enough for significant weight to be given to their views. This is so particularly taking into account the background of this matter and the children’s developmental needs.
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
The father has had limited time with the children since July 2011. Prior to that the father had enjoyed supervised time with the children and some unsupervised time with the children. In most cases the Court would place considerable emphasis upon the desire to improve and maintain the relationship between the children and the father. This matter however needs to be considered in light of the history of the children’s care and their special needs.
Subsection (3)(b)(ii) requires the Court to consider the nature of the relationship with other persons, including any grandparent or relative of the children. In this case the maternal great aunt and uncle have established relationships with both of the children which are significant. Ms Y and Dr M acknowledged the maternal great aunt as the primary care giver for the children and that her care has been nurturing, supportive and beneficial to the children.
One of the other significant factors under section 60CC is subsection (3)(d).
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is a factor which both Ms Y and Dr M considered very important. I accept the evidence of the experts which raises significant concern about serious disruption to the children’s development should they be removed from the care of the maternal great aunt.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The only practical difficulty to be considered in this case is the highly conflicted relationship between the father and the maternal family. This level of conflict will make it very difficult for the children to maintain a personal relationship with the father.
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The father maintains that he provided care for the children prior to the mother’s death on a regular basis. He did not have the capacity to recognise their special needs nor make appropriate provision for them. He blamed the late mother for the violence and her neglect of the children but did not take steps to protect the children. He seemed unconcerned about missing medical appointments arranged for the children.
In contrast the maternal great aunt and uncle have a high level of understanding and ability to provide for the needs of the children, both physically, emotionally and intellectually.
The capacity of the maternal great aunt and uncle to continue to provide the high level of care and attention for the children would be placed at risk if they were required to set aside their strong beliefs about the risks for the children in the father’s care.
Whilst the Court does not find that there is an unacceptable risk of sexual abuse in the father’s care the Court is satisfied that there is an unacceptable risk of emotional and psychological harm to the children if they are required to spend time with the father, supervised or unsupervised.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
and
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
The father and the maternal great aunt and uncle recognise the importance of the children understanding and enjoying their Aboriginal culture and Filipino culture. I am satisfied that the maternal great aunt and uncle will continue to ensure that the children have the benefit of understanding and enjoying their diverse culture background.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
This subsection applies directly only to the parents. The Court is concerned about the father’s attitude towards his responsibilities as a parent prior to the death of the mother, when it appears he was aware of the risk to the children in the mother’s care whilst she was consuming drugs and alcohol, but took no definite steps to prevent any risk to the children. He was also aware of the risk to the children brought about by the domestic violence in the household (which he says was caused by mother alone), but continued to allow the children to observe this behaviour.
(j)any family violence involving the child or a member of the child's family;
The father admits that the children were present and witnessed some extreme family violence between himself and the mother which he says was caused entirely by the mother prior to her death.
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
The father admits that there was a family violence order made against him, but said that he consented to that order to avoid further trouble.
(l)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 the child;
In this matter, as in many matters, it is preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children. The reduction of stress for the adults should increase their capacity to provide for stable, ongoing appropriate care for the children.
Subsection (6) provides:
Right to enjoy Aboriginal or Torres Strait Island culture
For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Island child’s right to enjoy his or her Aboriginal or Torres Strait Island culture includes the right:
(a)to maintain a connection with that culture, and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
As indicated above the Court is satisfied that the maternal great aunt and uncle and extended family will take appropriate steps to ensure that the children enjoy their Aboriginal culture.
Conclusion
The special needs of the children, the understandable concerns that the primary caregivers, Mr and Ms Curtis (maternal great aunt and uncle) have for the children if placed in the father’s care, the strength of the bond between the children and the primary caregivers and the likelihood that the relationship between the maternal great aunt’s family and the father’s family will continue to be conflicted and bitter are significant concerns when balancing the primary and additional considerations concerning the best interests of the children.
Taking into account all of the factors and in particular the experts’ evidence as supported by the preferred evidence of the maternal great aunt, uncle and their family, it is established that the best interests of the children require that the ongoing conflict and disruption between the families cease. These factors also support the orders sought by the maternal great aunt and uncle that the children reside with them, that they have sole parental responsibility for the children and that there be no time spent with the father or his family.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 December 2012.
Associate:
Date: 14 December 2012
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Remedies
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Jurisdiction
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