DENMAN & CARUSO (No.3)
[2020] FCCA 1126
•14 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DENMAN & CARUSO (No.3) | [2020] FCCA 1126 |
| Catchwords: FAMILY LAW – Final parenting – risk of harm to children – allegations of sexual abuse – allegations of psychological abuse – allegations of physical abuse – order for no time with the mother – costs. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B, 60CC, 61DA, 62G, 65DAA, 69ZX, 117 |
| Cases cited: Blair v Curran (1939) 62 CLR 464 Caruso & Denman (No.2) [2019] FCCA 1175 CDJ v VAJ (1998) 197 CLR 172 CDW v LVE [2015] WASCA 247 Collins & Collins (1985) FLC 91-603 Cochrane & Cochrane [2012] FMCAfam 984 Damiani & Damiani [2010] FamCA 217 F & C & Child Representative [2004] FamCA 568 King & Finneran (2001) FLC 93-079 Latoudis v Casey (1990) 170 CLR 534 Marsden v Winch [2009] FamCAFC 152 Newtober & Newtober [2012] FamCA 939 Penfold & Penfold (1980) 144 CLR 311 Poisat & Poisat [2014] FamCAFC 128 Reid & Lynch [2010] FamCAFC 184 Rice & Asplund (1979) FLC 90-725 Schorel & Schorel (1990) FLC 92-144 SPS & PLS (2008) FLC 93-363 U & U (2002) FLC 93-112 Wrensted & Eades [2016] FamCAFC 46 |
| Applicant: | MR DENMAN |
| Respondent: | MS CARUSO |
| File Number: | PAC 3945 of 2013 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 5, 6, 7 November 2019 |
| Date of Last Submission: | 9 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 14 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mahony |
| Solicitors for the Applicant: | Mahony Family Lawyers |
| Appearing for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Maddox |
| Solicitors for the Independent Children's Lawyer: | Legal Aid of New South Wales |
ORDERS
All prior parenting orders with respect to the children X born in 2008 and Y born in 2012 (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
The children shall spend no time with the mother.
Pursuant to s68B of the Family Law Act 1975 (Cth), the mother is restrained from attending the children’s school and extra-curricular activities for any reason unless agreed between the parents in writing.
X born in 2008 and Y born in 2012 are permitted to travel internationally, without the need for the consent of the mother to be provided to the issue of a passport to X born in 2008 and/or Y born in 2012. The father shall be the only person with ‘parental responsibility’ of the children X born in 2008 and Y born 2012 for the purposes of applying for, and being issued with, an Australian passport for X born in 2008 and/or Y born in 2012.
Within 42 days, the mother shall pay:
(a)The costs of the Independent Children’s Lawyer in the amount of $5000.40; and
(b)The costs of the father in the amount of $17,883.50.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Denman & Caruso (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3945 of 2013
| MR DENMAN |
Applicant
And
| MS CARUSO |
Respondent
REASONS FOR JUDGMENT
Introduction
On 9 May 2019, the Court made final parenting orders and delivered its Reasons for Judgment in respect of the parties’ two children, Y and X (“Final Orders”).
A three day final hearing took place on 12, 13 and 14 November 2018. Judgment was reserved at the conclusion of the hearing.
On 8 May 2019, the mother filed an Application in a Case, together with a Notice of Risk and Affidavit. The relief sought in that Application in a Case was as follows:
a. That the judgement for final orders is reserved.
b. The matter is re-listed post the conclusion of ongoing JIRT, FAC’S and Police Investigations.
-Notice of Risk of Family Violence/Child Abuse relating to above investigation has been filed.
While the documents were sealed and the application appears to have been given a return date of 12 noon on 9 May 2019[1], the documents were not read by the docket Judge at any time prior to delivery of judgment.
[1] Given by the Registry staff
The mother was present when judgment was delivered. She did not attempt at any point in time prior to, or after the delivery of the judgment, to bring to the Court’s attention any additional matters. The mother did not move on any application prior to judgment being delivered, nor did she tell the Court about the application after judgment was delivered. Indeed, the mother remained entirely silent both before and after delivery of judgment as to any concerns she might have had or any applications she wanted to run. This was after the mother had been told, upon taking the documents to the Registry counter that she would need to raise the matter with the Judge herself in Court[2]. All matters were finalised upon delivery of judgment.
[2] T: 185 L: 20
The Final Orders made on 9 May 2019 provided for the children to live with the father, and after a period of one month, to commence spending time with the mother on a graduated basis. As noted in those Reasons for Judgment, as well as the contravention judgment published on 31 October 2018, the mother had not previously been compliant with Court orders. Between the time of the parties’ separation in January 2013 and final judgment in May 2019 there had been significant periods when the children spent no time with the father.
On 10 May 2019, the Court made a recovery order as the mother had failed to make the children available to live with the father in accordance with the Final Orders.
Unfortunately for the children, the Final Orders made on 9 May 2019 and subsequent recovery order did not mean an end to the litigation their parents had been embroiled in for many years, nor did it mean an end to the harmful behaviours the mother had been engaging in.
About the families
The father currently resides with his partner Ms B, their child C, Y and X in a three bedroom home owned by Ms B’s mother, Ms P in Suburb Q. Ms P does not reside in the home on a permanent basis and has allowed the family to reside there rent free due to financial pressures.
The father is employed full time and works for Employer R. He says that his hours are flexible and that his workplace is supportive of his care arrangements for the children.
The father’s partner Ms B works on a fulltime casual basis at Employer S.
The father is currently in receipt of child support from the mother in the amount of $347 per month as assessed by the Child Support Agency.
X and Y continue to attend T School.
The Court understands that the mother remains living in a committed relationship with Mr D and resides with him and his son E.[3]
[3] Paragraph 17 of Reasons for Judgment Caruso & Denman (No.2) [2019] FCCA 1175
Events post final hearing in November 2018
So that the complexity of the parenting dispute can be properly understood, not only is it important to take into account the Court’s previous findings, but it is also important to understand the events before and after judgment was reserved in November 2018 but particularly after final judgment was delivered, in the context of the Court’s overall findings.
Relevant earlier findings
Firstly, the previous findings[4] of this Court are as follows:
[4] See Reasons for Judgment Caruso & Denman (No.2) [2019] FCCA 1175
80. The mother, while acknowledging that the children loved their baby brother C, was dismissive of that relationship as a whole…
84.… it is because of the mother’s inability to provide a safe and stable environment for the children that parenting arrangements, whether it be through agreements reached or orders made, have failed to the date of final hearing.
85. The Court finds that the environment in the mother’s home is not safe for the children as it does not provide them with the emotional freedom to have a relationship with their father, and imposes upon the children the mother’s own anxieties – matters which pose long terms risks to the children as explained by the Family Consultants. It is not a stable environment for the children due to the mother’s many a decision to cease the children’s time with the father over the years.
…
87. … the mother has manipulated the circumstances to suit her own agenda. The Court cannot find any justification for time between the children and the father stopping in the circumstances described by the mother.
88. … the mother’s refusal to participate in the family report interviews with Ms K was due to her desire not to allow a positive impression of the children’s attitudes to the father to be placed before the Court.
89. The mother was not able, at any point during the final hearing, to make any concession which was favourable to the father. Indeed, her evidence was extraordinary in that she lay blame for all of the children’s negative experiences at the father’s feet…
90. … the mother’s expression of contriteness in respect of the children not spending time with the father between November 2017 and the delivery of the reasons for contravention in October 2018 are not genuine.
91. … the children are at a real and highly probable risk of suffering from pseudo anxiety if they remain living with the mother. This will likely create long term difficulties for the children in being able to differentiate their own views from the mothers (sic), and also it might impair their development to form and maintain relationships, they may be excessively submissive or they may act out, this could have flow on difficulties of poor education and poor work outcomes.
92. For these children, were they to remain living with the mother, would mean a future where their emotional needs are unlikely to be met. The mother has limited capacity to look beyond her own needs or to consider the children’s needs separately to her own. She has been blinded by her own views of the father posing a risk to the children, where such views have not been established by any objective evidence.
93. The mother did not demonstrate appropriate insight into the effect of the children not spending time with the father, or of her own actions in unilaterally suspending time… her evidence was that after time between the children and the father resumed, in the event she determined there were issues for the children she would continue to present them to professionals to make reports.
95. The Court finds that the mother is simply not able to accept that either of the children want to have a relationship with the father.
…
127. There is no doubt that should the children live with the father their lives would be severely disrupted, in the short term at least. The mother has been their primary carer their whole lives. Their time with the father has been limited and interrupted
128. If the children remain living with the mother and their time with the father keeps being disrupted as it has been to date, there is a real and probable risk that their future ability to make decisions will be compromised, that their self-esteem will be affected and that they will become easy targets for manipulation.
…
131. The father’s capacity to meet the children’s needs is untested. He anticipates that the children are likely to be angry, sad, confused and upset, particularly in the short term, were they to live with him.
132. The mother’s capacity, on the other hand, has been tested and found wanting.
133. The father has, throughout these proceedings, adopted a child-focused attitude. He has removed himself from conflict when possible and he has accepted responsibility for his own role in the conflict which had arisen to date. He has actively participated at each opportunity to ensure the children can continue to have a relationship with him. He has attempted to compromise and to hear the mother’s concerns.
…
134. The mother’s demeanour and oral evidence during the entirety of the proceedings was such that the Court assessed her as defensive and unwilling (or perhaps unable) to accept any alternate point of view which did not agree with her own. This is so not only in respect of the allegations of family violence, but also in respect of her assertions as to why the children should or should not be spending time with the father. Her evidence in chief was in direct contradiction to her case at final hearing.
…
136. The Court has little confidence that if an order is made for the children to live with the mother that she will encourage and facilitate a relationship between the children and the father. Indeed, it is the Court’s finding that but for the bond which the mother is presently subject to, it is unlikely that she would otherwise comply with an order for the children to spend time with the father should the children remain living with her. For this reason, the Court finds that an order for the children to live with the father is an order that is least likely to lead to the institution of further proceedings in relation to the children.
…
142. … the Court is concerned that the children would still be exposed to an unacceptable risk of harm if they were to spend five nights each fortnight with the mother. She has a strong ability to influence them, and it is likely that five nights with the mother and nine nights with the father each fortnight, would leave the children too vulnerable. For that reason, the Court finds that slightly less than five nights per fortnight with the mother is in the children’s best interest… Such an order would safeguard the children from an unacceptable risk of harm, while providing for a continuing and meaningful relationship between the children and the mother.
A brief chronology of events
The parenting proceedings have a long and complex history as outlined below.
The following chronology is relevant is respect of what has occurred particularly since the final hearing in November 2018 concluded and judgment was reserved, in the context of the entire history of the parenting proceedings.
DATE
EVENT
13 September 2013
Mother files an Application for Consent Orders with the Family Court of Australia.
3 October 2013
Final parenting orders are made by consent in the Family Court of Australia.
26 August 2016
Mother files Initiating Application in Family Court of Australia seeking parenting orders.
11 October 2016
Matter comes before Family Court of Australia for first return. Independent Children’s Lawyer appointed and parties ordered to attend an intake appointment for the Child Responsive Program.
25 October 2016
Father files Response to the mother’s Initiating Application.
14 December 2016
The matter returns to Court for directions and is adjourned to 1 March 2017.
20 February 2017
The matter was listed for release of the Child Responsive Program memorandum. The Court made interim orders, by consent, vacated the listing of the matter on 1 March 2017, transferred the matter to the Federal Circuit Court of Australia and listed the matter for first return in the Federal Circuit Court of Australia on 4 April 2017.
4 April 2017
The matter was mentioned and it was noted the parties were having discussions regarding the appointment of an expert’s report. The matter was adjourned for directions to 16 June 2017.
16 June 2017
The matter returned for directions and was listed for further directions on 21 July 2017.
21 July 2017
The matter returned for directions. The Court made interim orders by consent that:
· All prior parenting orders be discharged;
· The parents have equal shared parental responsibility for the children;
· The children to live with the mother; and
· The children to spend time with the father.
· The matter was adjourned for directions to 9 October 2017.
9 October 2017
The Court made trial directions and listed the matter for call over and possible allocation of a hearing date on 29 January 2018.
3 November 2017
The listing date of 29 January 2018 was vacated in Chambers due to a change in the Court’s diary. The matter was listed for directions on 5 February 2018.
6 November 2017
The mother filed an Application-Contravention which was returnable on 27 November 2017.
27 November 2017
First return of the mother’s Application-Contravention filed on 27 November 2017. The matter was set down for hearing of this application on 30 April 2018.
12 January 2018
The father filed an Amended Response.
19 January 2018
The father filed an Application-Contravention which was returnable on 15 February 2018.
2 February 2018
The father filed an Application in a Case which was made returnable on 26 March 2018 seeking an order for the appointment of a Chapter 15 Expert Report or in the alternative a s.62G Family Report.
5 February 2018
The matter returned for directions of the substantive proceedings. The Court vacated the first return date of the father’s Application-Contravention filed 19 January 2018, being 15 February 2018 and directed the parties to attend a Legal Aid conference regarding all matters currently before the Court.
23 March 2018
The mother filed an Amended Initiating Application.
26 March 2018
The Court ordered the preparation of an expedited s.62G Family Report. The matter was adjourned for call over and possible allocation of a hearing date on 30 April 2018.
30 April 2018
The Court listed the substantive matter for final hearing on 12, 13 and 14 November 2018, dismissed the mother’s Application-Contravention filed 6 November 2017 and directed the mother to file and serve written submissions with respect to her reasonable excuse argument with respect to the father’s Application-Contravention filed 19 January 2018.
8 May 2018
The mother filed an Affidavit containing her written submissions with respect to her reasonable excuse argument.
22 May 2018
The father filed written submissions in reply with respect to the mother’s reasonable excuse argument.
3 October 2018
The mother filed an Application in a Case seeking to vacate the final hearing dates which was made returnable on 31 October 2018.
31 October 2018
The Court delivered its written reasons for judgment with respect to the Father’s Application-Contravention filed 19 January 2018. Orders were made that a finding be recorded that the mother without reasonable excuse contravened the Court’s orders made 21 July 2017.
The matter was adjourned for sentence to the first day of the final hearing, being 12 November 2018.
The Court dismissed the mother’s Application in a Case to vacate the final hearing dates and the mother was directed to attend the office of Legal Aid with the children for preparation of the final hearing.
7 November 2018
The Family Report of Ms K was released to the parties and the Independent Children’s Lawyer.
12 November 2018
The final hearing commenced. The sentencing of the mother was adjourned to the final day of the hearing, being 14 November 2018.
14 November 2018
Mother sentenced to good behaviour bond and makeup time ordered for father at the conclusion of the evidence in the substantive proceedings, and after hearing submissions from the parties. Final hearing judgment is reserved. Orders of “21 July 2018” were suspended.
15 November – 20
November 2018
Children spend time with father.
29 November – 4 December 2018
Children spend time with father.
13 December – 18
December 2018
Children spend time with father.
19 December – 9 January 2019
Children spend block makeup time with father.
27 March - 13 May
2019
Mother withholds children.
27 March 2019
Mother alleges that Y has made a disclosure of the father sexually abusing the child.
29 March 2019
Y required to undergo Sexual Assault Investigation Kit as a result of mother’s allegations. Doctor completes external examination, starts internal examination. Child is distressed. Mother requests DNA swab and STI check.
8 May 2019
Day before Final Judgment to be delivered mother files Application in a Case seeking judgment to be reserved until after an investigation, due to alleged child abuse/family violence, of the father is concluded.
9 May 2019
Judgment delivered. Final Orders made for children to live with father and mother to have no time for approximately one month.
10 May 2019
Despite mother being present at Court 9 May 2019, mother fails to provide children to father in accordance with Court Orders. Father files an Initiating Application seeking an urgent ex parte Recovery order. Recovery Order made.
13 May 2019
Police execute Recovery Order.
6 June 2019
The mother filed a Notice of Appeal seeking that all of the orders made on 9 May 2019 be set aside and seeking costs.
14 June 2019
The mother files an Application in a Case seeking a stay of the Orders made on 9 May 2019. The application is made returnable on 27 August 2019.
23 July 2019
DCJ case workers attend at father’s home and raise concern about mother having overnight time with the children
31 July 2019
The father files an Initiating Application seeking orders that:
· The orders made on 9 May 2019 be discharged
· The father have sole parental responsibility for the children
· The children live with the father
· The children spend no time with the mother and failing this that they spend supervised time with the mother for two hours every three months; and
· A restraint on the mother from attending the children’s school and any extra- curricular activities for any reason
The application is made returnable on 6 August 2019 and a Registrar of the Court makes an order pursuant to s.69ZW to the Department of Communities and Justice.
8 August 2019
Mother’s first alternate weekend visit with the children is due to commence.
6 August 2019
The Court makes orders as to:
· The mother spending supervised time with the children by consent with a supervised contact centre;
· An updated Family Report be prepared by Family Consultant Ms K; and
· The matter being set down for final hearing on 5, 6 and 7 November 2019.
5 November 2019
Final hearing of the father’s Initiating Application filed on 31 July 2019 commences.
7 November 2019
Orders are made for the parties to file and serve written submissions.
15 November 2019
The Court received written submissions from the Independent Children’s Lawyer.
22 November 2019
The Court received written submissions and a summary of argument from the father.
9 December 2019
The Court received written submissions from the mother.
Rice & Asplund
In Rice & Asplund[5] the Full Court said:
The principles which, in my view should apply in such cases are that the court should have regard to any earlier order and to the reasons for the material on which the order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore the court would need to be satisfied that…there is some changed circumstance which will justify such a serious step, some new factor which was not disclosed at the previous hearing which would have been material…It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing…
[5] (1979) FLC 90-725 at p78,905-78,906
The rule in Rice & Asplund is of long-standing, has been consistently recognised and applied both by the Full Court of the Family Court, the Family Court and this Court, and is intended to apply universally in the sense of applying to every case in which final parenting orders are sought to be discharged or varied subsequently[6]. It is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course.[7]
[6] Poisat & Poisat [2014] FamCAFC 128 at [8] and [13]
[7] SPS & PLS (2008) FLC 93-363 at [73]
The purpose of the rule is to protect children from exposure and involvement in further unnecessary litigation.[8]
[8] King & Finneran (2001) FLC 93-079 at [44] and [64]
The words of caution pronounced by the High Court in CDJ v VAJ[9] are respectfully adopted:
The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and uncertainly of prolonged repetitive proceedings.
[9] (1998) 197 CLR 172; [1998] HCA 67 at [118], cited by the Full Court of the Family Court in the context of a Rice & Asplund argument in F & C & Child Representative [2004] FamCA 568 at [44]
It has been held that the assessment of whether the asserted change in circumstance is significant is simply part of a composite multi-faceted approach for assessing whether the re-litigation of parenting arrangements is in the best interests of the child.[10]
[10] CDW v LVE [2015] WASCA 247 at [84]
The Full Court in Marsden v Winch[11] held as follows:
… there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[11] [2009] FamCAFC 152 at [50]
In summary, a Court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment. In dealing with such an application, the Court must be satisfied that there is some changed circumstance which will justify such a serious step or some new factor arising or some factor which was not disclosed at the previous hearing which would have been material.[12]
[12] Reid & Lynch [2010] FamCAFC 184
It is clear that the events and the effect of those events between the time judgment was reserved in November 2018 and following, are such that there are changed circumstances warranting the Court entertaining the applications for different parenting orders to the ones which were made in May 2019. It is clear that both parents and the Independent Children’s Lawyer ask the Court to make orders which are different to the final orders previously made. While it is unfortunate, the Final Orders clearly did not have the desired effect of bringing to an end the parenting litigation. It is hoped that the orders made herein will.
As held by the Full Court in Rice & Asplund[13]:
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.
[13] (1979) FLC 90-726 at p78,906
While there might have been some confusion as to the ambit of the dispute which was before the Court at the final hearing in November 2019, it is clear that:
a.the father’s primary application was for the children to spend no time with the mother;
b.the Independent Children’s Lawyer’s primary application as for the children to spend no time with the mother; and
c.the mother’s application was for there to be an order for equal time.
The mother, who was self-represented, was given wide ambit in the presentation of her evidence and in her cross-examination. The Court however, being careful not to allow a quasi-appeal of its own earlier decision, made it clear to the parties that it would not go behind its own findings of fact.
In Blair v Curran[14] Dixon J held that “A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties”. To attract issue estoppel, the factual findings must be fundamental to the ultimate decision which the Court had determined.[15]
[14] (1939) 62 CLR 464 at 531
[15] Damiani & Damiani [2010] FamCA 217 at 15
However, as the Full Court in Schorel & Schorel has made clear[16]:
“issue estoppel … has a much more limited application in matrimonial causes, and more especially in litigation which involves the welfare of children. That approach is based upon the view that the duty of courts in family law has a wider and more public element and imposes a greater responsibility to elicit the actual facts, but more particularly it is based on the obligation of such courts to have regard to the welfare and protection of children within its jurisdiction.”
[16] (1990) FLC 92-144 at p77,996
The Court can have regard to findings of fact previously made, it can have regard to the reasons for judgment and the orders which have been made.[17]
[17] See Rice & Asplund at p78,906; also see s69ZX(3)(b) Family Law Act 1975 (Cth)
The Court respectfully adopts the comment by Austin J in Newtober & Newtober[18] that “while accepting that the principle of issue estoppel does not necessarily apply in parenting proceedings, such principles need not be completely ignored”. The Act expressly permits the Court to adopt the finding, decision or judgment of any Court, and it is not appropriate nor in the children’s best interests for this Court to ignore its own earlier findings in the context of the present parenting dispute.
Relevant Matters
[18] [2012] FamCA 939 at [123]
Risk of Harm
It is inherent upon the Court to weigh up the benefit to the children of having a meaningful relationship with both of their parents against the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The assessment of the need to protect children from harm is often discussed in terms of risk of harm and unacceptable risk of harm. The risk of harm to be assessed is the risk of harm arising from abuse, neglect or family violence.
The father alleges that the children are being subjected to harm arising from psychological abuse, while the mother makes allegations that the parties’ younger child has been subjected to sexual abuse and that both children have been subjected to physical abuse.
Notwithstanding those allegations, the mother seeks orders for the children to live with each of the parties on an “equal time basis” and for there to be “a staggered return from the father’s care to the mother”.
It was not until 14 June 2019 and after the filing of a Notice of Appeal on 6 June 2019 that the mother applied to the Court for a stay of the final order. Such application was never heard. The mother decided, after obtaining legal advice, not to press the appeal or the stay application. This was in circumstances where the father had filed an Initiating Application on 31 July 2019, seeking both interim and final orders. What occurred instead is that the final orders providing for the children to spend time with the mother were suspended, and the children commenced spending time with the mother on a supervised basis.
Credit of witnesses
The mother and father were both cross-examined at length, as was the Family Consultant, Ms K.
The mother was carefully cross-examined about the events which had occurred after the final hearing in November 2018 concluded, she was carefully cross-examined about the matters which the children had said to the father, the Family Consultant, and during various conversations as recorded in documents produced under subpoena in respect of the allegations made. The mother was also carefully cross-examined about her own evidence, about conversations attributed to her and various events as recorded in documents produced under subpoena and in evidence before the Court.
The Court finds that the mother was evasive and at times untruthful in her evidence, that she changed her evidence when confronted with inconsistencies to suit herself and that she was generally a witness of little to no credit.
In circumstances where the father’s evidence conflicts with that of the mother, the Court prefers the evidence of the father. In circumstances where the mother’s evidence conflicts with other evidence in the proceedings, in particular the events as recorded in documents produced under subpoena which became exhibits in the proceedings, the Court prefers the version contained in the exhibits over that given by the mother.
What happened after the November 2018 hearing
On 14 November 2018, the mother was sentenced in respect of her contravention of the 21 July 2017 interim orders. The mother entered into a two year good behaviour bond and the Court ordered make up time for the children and the father, between 19 December 2018 and 9 January 2019. The children had not spent time with the father for approximately 12 months prior to the final hearing, that is, between mid-November 2017 and mid-November 2018. Time pursuant to the July 2017 interim orders recommenced at the conclusion of the hearing.
During the block make up period of time the children spent with the father between December 2018 and January 2019, X told the father that the mother “always” asks how the time with the father went, and that:
When we say we have fun and love going she says thing like ‘what, its only been a week and you’re already going on about Dad’s house, if you like it so fucking much there’s the door why don’t you go fucking back there?’
X had further said to the father in December 2018:
C keeps saying I’m his brother and he loves me, but mum gets angry when I say he’s my brother, it’s making me feel bad.
My mind is all mixed up, I just don’t want to be taken away again because I did something wrong again.
Referring to his mother “..she told me that’s why she took my dad away from me, for being naughty.”
Also during that period of time, both of the children enquired of their father when they would be going back to the mother’s home, and following such questions expressed their concern about the prospect of not being “allowed” to spend time with the father again thereafter.
Due to a slip error, the Orders made by the Court on 14 November 2018, until corrected by the Court on or about 12 March 2019, did not clearly reflect that the July 2017 orders remained in force pending the making of final orders and delivery of judgment. Following the children’s return to the mother on 9 January 2019, the father encountered further difficulties in negotiating with the mother to spend time with the children. This was due to the mother insisting that the July 2017 orders were suspended, even though this was not so, nor was this reflected in the November 2018 orders.[19] The children spent time with the father on alternate weekends from Friday to Sunday in February 2019 and the second weekend in March 2019, namely from after school on Friday 8 March 2019 to afternoon on Sunday 10 March 2019.
[19] The orders published on 14 November 2018 incorrectly read “The orders of 21 July 2018 are suspended”. There were no orders made on 21 July 2018. The order which the Court suspended on 14 November 2018 was order 4(g) of 21 July 2017, so as to allow the children to spend make up time with the father during that period. The mother was present in Court with her Counsel when the 14 November 2018 orders were pronounced.
On 12 March 2019, the Court, pursuant to the slip rule, amended the published orders of 14 November 2018, so as to correctly reflect the orders as pronounced. The children were due to spend time with the father from after school on Thursday 21 March 2019 to before school on Tuesday 26 March 2019, in accordance with the orders then in force. The mother did not make the children available to spend time with the father on 21 March 2019. She advised the father that the children were due to spend time with him from Friday after school, rather than Thursday.
On Friday 22 March 2019, the father picked the children up from school. The mother had attended school earlier that afternoon, changed the children from their school uniforms and took their school bags. She left X with medication[20] to last only until Sunday night and told the children to tell the father that he needed to return them on Sunday night (instead of Tuesday in accordance with the orders then in force). There were some text and email exchanges between the parents over the course of that weekend, but the father did not receive any response from the mother when he enquired about X’s medication.
[20] X takes regular medication to assist with his Attention Deficit Hyperactivity Disorder
The “Break and Enter”
On Saturday 23 March 2019, the father attended upon a pharmacy to try to get X’s script filled, however, was not able to do so. He was told by the pharmacist that as the mother had filled the script the day before, only particular amounts of medication could be dispensed within a particular time frame, and the pharmacist could not dispense any more medication at that time. X asked the father to drive him to the mother’s home so he could get his medication. He indicated that his mother would not be at home, but that the paternal grandfather would. X was getting unsettled and anxious about not having sufficient medication for the time he was due to spend with the father. The father, who was accompanied by his mother and X, then drove to the mother’s home, and they waited in the car while X went up the drive. After five minutes X had not returned and the father walked down the drive way towards the mother’s home. He got to the gate, noticed that it was locked and as he looked towards the house he saw X pulling a screen off the front window and climbing through. He yelled out to X to stop, but X ignored him and went inside. A little while later, X came back out with his medication, blanket and a juice. He said to the father “It’s OK, Pop was inside, I could hear him snoring.” The father had some reservations about whether what X had told him was the truth or not.
The mother sent the father a further email on Saturday, 23 March 2019, insisting that the children be returned to her on the Sunday. On Saturday, after X had taken his medication from the mother’s home, the father and X went to Town U. On the drive home, X said to the father:
“Dad, I’m sorry I lied, I told Mum that I was lying and she relied to me angrily ‘its too fucking late now I’ve spent too fucking much money you’re going to lie to the courts…
Dad, me and Y aren’t allowed to say anything nice about you, if we do then Mum gets really angry at us…
Whenever we are naught mum says ‘I’ve had a fucking-nough of you children being so fucking naughty, I should just send you to your fucking dad’s…
The following day, X was distressed and worried about entering the mother’s home to obtain his medication. He asked the father repeatedly if he could go to the police and tell them what he had done, as he was very concerned about getting in trouble. After the father spent some time trying to reassure X, he decided given the child’s distress, that he would take him to a police station so that X could be reassured by the police. The father and X attended Suburb V Police Station where they spoke to a police officer.
On 29 March 2019, the police attended the father’s home in order to ask him questions about what occurred on Saturday, 23 March 2019, as the mother had apparently attended a police station, “demanding” that the father “be arrested for break and enter.” The mother learnt from X that he had come into the house to get his medication. Accordingly to the mother X told her that the father had also entered her home.
The mother cross-examined the father at length about the alleged “break and enter”, asking numerous times why the father refused to provide finger prints and putting to him the implausibility of his version of events on the basis of alleged conversations between her and the police and between X and the police. The Court finds that if X did say to the police that the father entered the home with him when he was interviewed after the mother made a complaint to the police, he did so in order to protect himself from the mother.
The mother’s submissions contain the following:
… I contend that Mr Denman took the opportunity of nobody being at home to effect the breakin. I also contend that Mr Denman took X to Suburb V Police Station in order to shift the blame for the breakin from himself to X, and then made X keep this matter a secret from me.
Such submission was made by the mother after the Independent Children’s Lawyer made her position known to the parties, that position being:
… There is something amiss where in the mother’s evidence, her outrage centred on the child entering her home, rather than the fact that the child had run out of his medication and was anxiously trying to remedy his predicament. The mother escalated the matter to the police, risking the possibility that the child’s behaviour become criminalised. The impact of that event on X is a prime example of where the mother seems unable to prioritise the needs of the children over her own entrenched dislike of the father.
The father conceded in cross-examination that perhaps he should have gone about obtaining the medication in a different manner, including attempting to telephone the maternal grandfather. However, given the high conflict between the parents and the almost complete lack of trust between them, it is understandable why the father would choose not to attempt any further communication with the mother (and her family) about X’s lack of medication.
Allegations of Sexual and Physical Abuse
27 March 2019 allegations of sexual abuse
Following the weekend of 23 and 24 March 2019, the children returned to the mother’s care on Tuesday, 26 March 2019. Y was not well that morning, and instead of sending her to school, the father made arrangements with the mother for Y to return to the mother’s care at the commencement of the school day rather than the conclusion of it. As the mother was at work, she then made further arrangements for Y to be picked up by Mr D, the mother’s partner, and taken home for the day.
On Wednesday, 27 March 2019, Y was at home with the mother, on the lounge watching television. She said to the mother “Why does it hurt there?” She was then asked by the mother where it hurt, and whether it’s “like when you go to the toilet?” Y then apparently said to her mother “No. Dad hurt me.” The child then apparently told the mother that she had tried telling her before, and that “He touches me and puts his finger there. It hurts.” [21]
[21] Although the mother was not asked any specific questions about the words the child is alleged to have said, the “disclosure” itself is non-sensical. One might have put to the mother that the child, if she was aware that “dad hurt me” would not have asked the mother “why does it hurt there?”
The child was further questioned by the mother, including being physically examined. She was asked about the detail of where and when the alleged incident occurred, who was present and where X and the father’s partner were. According to the mother, Y said that “over the weekend” she had been on the couch with the father, that the father had “put his fingers there” and that when she asked him to stop he did. There was no detail provided as to what day, the time of day, what the child might have been wearing, where precisely the father put his fingers and so on. The mother then asked the child if it was ok to see the doctor. At that point the mother assumed that Y had disclosed to her that the father had sexually assaulted Y, presumably by digitally penetrating her. This is the worst subjective interpretation of what the child had (apparently) said to the mother. It remains an interpretation which the mother believes, or at least which she says she believes, despite what has subsequently occurred.
The mother telephoned her General Practitioner (“GP”) but was not able to obtain an appointment with the family GP. The mother then had a conversation with the Region W Women’s Domestic Violence Court Advocacy Service where she told the social worker about what Y had apparently said to her. The mother’s affidavit refers to the mother contacting the service. In cross-examination the mother said that the service had contacted her to speak about X. After speaking about X for a little while, the mother then sought their advice about what Y had apparently said. Following this conversation with the service, a report was apparently made by the service to the Suburb Z sexual assault team at Suburb Z Hospital, who then telephoned the mother to make an appointment for the mother to bring Y in for an examination. This was arranged for Thursday afternoon.
The mother asked Y further questions that night, including whether this had happened before. Y apparently put both her hands up and shrugged her shoulders. In cross-examination the mother asserted that this was the child disclosing to her that the father had sexually assaulted the child on 10 previous occasions.
On Thursday, 28 March 2019, the mother took Y to Suburb Z Hospital to be examined at the sexual assault unit. Y became very distressed and the examination could not be completed. The mother was asked to provide a urine sample to the hospital, which she did not obtain from Y until Saturday. The result of the testing of that sample showed that Y had been suffering from a urinary tract infection. The mother was also told, following the examination on 28 March 2019, that Y had poor hygiene.
On the following day, Friday, 29 March 2019, the mother attended the Suburb Z Joint Response Investigation Team (“JIRT”)[22] office where she spoke to a “Constable Ms AA” and a case worker from the Department of Families and Community Services (“FACS’s”)[23]. Y was interviewed. She did not make any disclosures. That same day, the mother telephoned the child’s counsellor and told him about the disclosure the child had apparently made to her on 27 March 2019. This was ahead of an appointment previously booked.
[22] From 1 July 2019 became known as Joint Child Protection Responsive Program
[23] From 1 July 2019 became known as Department of Communities and Justice
Also on 29 March 2019, the mother took Y to see her counsellor, Mr BB. The counsellor’s notes, which formed part of Exhibit 9, read as follows:
As soon as Y entered into the play therapy room she stated to me that she has to say something important. This was even before I closed the door. I then told her that shall we close the door so that others cannot hear our conversation and Y agreed. Y then stated that her father has ‘pinched’ her hard and it was hurting, therefore Mum had to take her to the doctor as well as to see a lady at the police station. When I asked her where dad had ‘pinched’ her she started pointing towards her private part in between her legs. I then asked her to show it on the soft toy, then she made the legs of the soft toy apart and pointed towards the private part. I then asked her where did dad ‘pinched’ her. She then said it was near where she pees. When asked was this the first time Dad ‘pinched’ her in the same area Y stated that Dad has been doing that for some times now…..
Following this dialogue Mr BB noted the following as stated by Y in his notes:
…She stated that now mum will let her play with her dolls at home. When asked why now, she stated that ‘mum said if you do not talk to Mr BB about what dad did then you do not get to play with the dolls’.
In tendered material from FACS it states that:
… Mr BB advised that at the time of disclosure Y could not recall all the details other than dad pinching her private part and wanted to make the disclosure immediately which was unusual for Y to want to talk so quickly. Following the disclosure Y just wanted to make sure that Mr BB told her mother that she spoke about it so she would be allowed to play with her new dolls.
… Mr BB advised in his professional opinion there are concerns that mother has bribed Y into making a disclosure and that over the period when Y and X have talked during sessions they tend to use mother’s words that Mr BB has witnessed with conversation with mother away from the children.
On Saturday, 30 March 2019, Y was spoken to by her maternal aunt, who was not a witness in these proceedings. According to the mother, the aunt told the mother that Y had “told her about her new doll, going to the hospital and what her dad had done to her.”
On 1 April 2019, after the above noted counselling session with Y, Mr BB telephoned the mother and told her that, as he was a mandatory reporter, and following what Y had told him, he made a report of risk to the department.
The following day, on Tuesday 2 April 2019, the mother attended upon Suburb Z Police Station to provide a statement. She was told that the police wanted to interview X, an interview which occurred on 11 April 2019[24].
[24] Arising from a report made to the department
The mother attended upon a duty solicitor on 2 April 2019, following the provision of her statement to the police and following Y’s interview with JIRT. The mother did not file any application with the Court, until the day before delivery of judgment, more than a month later.
The father received a call from the police on 3 April 2019, asking him to come in the following day for questioning in respect of an allegation that he had “interfered with Y”. The father attended Suburb Z Police Station on 4 April 2019. He did not agree to participate in a formal video interview, and said that he wanted the opportunity of obtaining further legal advice. The father was told by the Police that he was free to leave, that he was not required to participate in a formal interview and that he was not being charged with any offences.
The children were due to spend time with the father from Thursday, 4 April 2019. The mother withheld the children, she says on the basis of advice she had received. The children did not spend time with the father again until the day they were recovered by the Police on 13 May 2019.
In the meantime, on 18 April 2019, the police asked the father again whether he would participate in a formal interview, which the father declined. The father did not receive any further communication from the police until 9 May 2019, when he received an email from Detective Senior Constable Ms AA, that “The case is closed.” Such an email was a response to the father’s request for information, sent earlier the same day.
The children were on school holidays from 15 to 26 April 2019. They did not spend time with the father during the school holidays. They returned to school the week of Monday, 29 April 2019. They attended school that week. On Friday, 3 May 2019, the Court advised the parties that it was delivering its judgment on Thursday, 9 May 2019. The children did not attend school between Monday 6 May 2019 and the delivery of the Court’s judgment later that week. They had been sent to their maternal grandmother, in Town CC, instead. The mother knew that one of the orders the Court could make upon delivery of judgment was for the children to live with the father.
The children were returned to Sydney on Friday, 10 May 2019. The mother understood that the orders for the children to live with the father had effect from 9 May 2019. The mother had messaged the father early on 10 May 2019 that the children would be handed over to him later that morning of 10 May 2019, but they were not.
On 10 May 2019, the father made a recovery application to this Court, with orders subsequently being made for the recovery of the children. The mother did not make any arrangements to hand the children over to the father on 10 May, 11 May or 12 May 2019. Instead the police attended the mother’s home on 13 May 2019 where they recovered the children.
Upon being placed into the father’s care, X stated to the father “when the Police knocked on the door mum told us to “go hide in the back room and keep quiet.”
On or about 14 June 2019, the father had further communications with FACS. He was told that the mother had requested that the department remove the children from the father’s care and place them into foster care. He was also told that the case worker believed the mother would continue to make allegations, and that when she was challenged by the caseworkers about making allegations she became agitated and walked out of the meeting. In cross-examination the mother agreed that she had been told by the department that the investigation had closed, and that she walked out of the meeting. She agreed she had enquired about the children being placed into foster care rather than remaining with the father. The mother agreed that she did not accept the department’s findings about the allegations being unsubstantiated. It was on this day hat the mother filed an Application in a Case seeking a stay of the Final Orders.
The father was not cross-examined about the allegation(s) of sexual abuse at all. Not a single question was put to him by the mother[25] about the detail of what the child apparently alleged had occurred on the weekend prior to 27 March 2019. The father, in his evidence in chief, denied any sexual or physical abuse of either of the children.
[25] Or the Independent Children’s Lawyer
Pursuant to the Final Orders, the children did not again spend time with the mother until 8 June 2019, when time was re-introduced.
6 July 2019 allegations of sexual abuse
On Saturday, 6 July 2019, the children were spending time with the mother. That afternoon, the mother’s partner apparently said to her “Y has just told me that her father is still hurting her… Y just told me that her dad is still touching her there and it hurts”. The mother then made a complaint to the police. The police attended the mother’s home where they spoke to Mr D, and interviewed Y.
Mr D was not a witness in the mother’s case. Even though she had served an affidavit which Mr D had sworn, he was not available for cross-examination, for reasons which were not explained. Upon hearing that the affidavit was objected to on the basis that Mr D was not available to be cross-examined, the mother withdrew her application to rely on his affidavit.
The police issued a provisional Apprehended Domestic Violence Order (“ADVO”) on 6 July 2019, which was served on the father that night. The father was advised by the police that he needed to attend Suburb V Local Court on 9 July 2019. The grounds of the application were that “an allegation of child sexual assault has been made and is under investigation.” The father was not told about any detail of what the allegation was, nor was he invited to attend any interview.
Y was interviewed by the police again on 9 July 2019. It was a long interview, according to the mother, it took two hours. The mother was not present. She was advised following the interview that the police could not substantiate what the child had said, and that the mother should return the child to the father’s care.[26]
[26] The mother says that the police also told her that if they took the matter further, the child would have to give evidence in Court and be cross-examined. They asked the mother whether she really wanted the child to go through that, to which the mother replied “absolutely not.”
The father subsequently found out from reading various documents produced to the Court pursuant to subpoena, the mother’s affidavit and his conversations with case workers from FACS that the allegations which were the subject of the interview between Y and the police on 9 July 2019 were that:
a.The father had hit the child on the head;
b.The father had punched the child;
c.The father had thrown the child down the hallway;
d.The father had touched the child on her private parts; and
e.The father’s partner had touched the child with a wooden spoon on her private parts.
Some of these allegations are similar, if not the same, as the allegations made by the mother prior to the final hearing in November 2018.
The ADVO proceedings were adjourned on 9 July 2019. That afternoon the father was told by a case worker that “We have just interviewed Y and we have found that there is nothing to investigate. We are going to close the case. We have informed Ms Caruso that the case is closed and she needs to be following the Court orders and return the children to you.” However, the father was not able to clarify whether the provisional ADVO remained.
The father organised for his mother to collect the children and they remained with her until the ADVO was withdrawn. On 9 July 2019, X said to the paternal grandmother:
Mum asked me to tell her the reasons why I did not want to be with Dad. I didn’t say anything to her and I just sat there and then Mum got very angry with me. I got up and walked outside and Mum came out after me and Poppy Mr D said to Mum “you’re not going to get anything from him, try the other one.”
Mum gets very emotional and angry and she keeps asking me until I say yes and say what she wants. I just say yes, so that she will stop. If I say nothing then she doesn’t keep asking.”
It was not until 11 July 2019 that the father received confirmation from the police that the ADVO was withdrawn.
13 July 2019 allegations of assault
The next time the children spent time with the mother pursuant to the final orders was on 13 July 2019. That evening, the police attended the father’s home, regarding a complaint that had been made. They requested to speak to X alone. The father was told that the mother had made a complaint that the father’s partner had thrown X into a cardboard box causing injuries. After speaking to the children the police told the father that they would be closing the complaint. X said to the father that he had told the mother that he had lost his balance while the father’s partner was helping him get out of bed, and that he had fallen over and scratched himself.
DCJ interview on 23 July 2019
On 23 July 2019, two case workers from Communities and Justice attended the father’s home for a pre-arranged interview. They had phoned earlier that day and advised that they wanted to speak to the father about concerns they had in respect of the children in the mother’s care. This was the first time that the father learnt about Y being subjected to a ‘rape kit’ and that the mother had demanded that the child undergo a DNA swab and a test for sexually transmitted diseases.
The father was told that the statements about the alleged sexual abuse made became more and more inconsistent and fanciful. The father was also told that the caseworkers could see a history of allegations starting in 2013, which gradually became more and more serious. The first complaints related to an alleged assault of the mother by the father, then the children being assaulted, then the children being sexually abused and then the father’s partner apparently abusing the children sexually. The father was told that Communities and Justice was concerned about a pattern of complaints which was emerging and the impact that this would have on the children.
Following the interview and discussions with the case workers, the father received a letter dated 31 July 2019 from Communities and Justice. The letter read:
“… JCPRP[27]… have responded to three separate matters:
28/03/2019 – JCPR – …
01/04/2019 – JCPR – …
08/07/2019 – JCPR – …
The outcome of the above matters is that the allegations are not substantiated and there is a finding of no risk to the children whilst they are in your custody and residing with you.
JCPRP has assessed that the recent reports made to the Department of Communities and Justice Helpline have not been made in good faith and it would be detrimental to the safety, welfare and wellbeing of Y and X should the reports and allegations continue.
I am obtaining further advice regarding the ongoing psychological impact this may have on the children, should they be exposed to JCPRP investigations. Y has been subject to an invasive Sexual Assault Investigation Kit (SAIK) with no finding a number of interviews with NSW Police and DCJ caseworkers; and it is the assessment of JCPRP that the children are being directed to state certain information to certain people resulting in Risk of Significant Harm reports being made. It is deemed that there is a risk of psychological harm to the children due to this…”
[27] Joint child protection response program, NSW Health, NSW Police and Department of Communities and Justice
How the children have been coping since May 2019 Orders
The children initially settled well into the father’s care after Final Orders were made. Both the father and his wife expected there to be some acting out or upset from the children after they were placed into his care. However, this did not occur. It was not until after the children started spending time with the mother again that their behaviour became problematic. Both parents reported that the children were unsettled when time with the mother recommenced in June 2019.
The children did however express various concerns about not being returned to the father once they started spending time with the mother again. For example, the father became concerned that Y was becoming anxious as she said to him:
What will happen if I go to mum and she doesn’t let me come back and live with you? I am scared mum will be angry that I am living with you. what will happen if mum doesn’t let me come back and live with you?
Y had also said to the father at various times:
“When will we come back to daddy’s?”
“What will happen if mum keeps us?”
“Please promise you will make her return us”
“But what do we do if she doesn’t let us come back like before” “I don’t want to not see Daddy again.”
“I am sorry I can’t hug you at changeover or mummy will get upset.”
On 29 July 2019, X said to the father:
“Mum said she will be getting us back that the Courts made a mistake and I don’t want to go back dad.”
The children had their first weekend with the mother on 8 June 2019 following the making of the final orders in May. In early August the father observed Y to be suffering from on-going nightmares and he observed a deterioration in X’s behaviour. On 29 August 2019, the father met with X’s teacher who also reported concerns about X’s behaviour at school.
Following the father’s application for final orders to be varied, the Court made interim orders on 6 August 2019. The parties were ad idem that time between the children and the mother ought to be supervised, it was the frequency of such time that was in dispute. Ultimately, the Court made an order for the children to spend time with the mother for two hours supervised each week. Such time had been occurring since 14 August 2019 and throughout the latter part of 2019. Before the Court were the supervisor’s contact reports, which indicate that the children enjoy spending time with the mother.
The children have had a significant upheaval to their lives as a result of the final orders. They have had to adjust to a change of their primary residence. They have had to adjust to a change in their daily routines, including their extra-curricular activities. They have had to adjust to living with a little brother and a step-mother, they have had to adjust to living with the father. They have had to adjust to living away from the mother and their maternal family, who had all been very involved with their lives. The children have also been subjected, particularly Y, to a number of interviews and interventions, which must have been traumatic for them. The children have also had to go through the upheaval of their time with the father again being disrupted by the mother’s decisions not to abide by interim nor final orders.
X’s concerns about his medication
Between May and June 2019, X had raised with the father a number of concerns about the father not administering him with appropriate or proper medication. X said to the father: “Mum said you are using old medicine bottles and filling them up with other medications.”
The family report writer also reported as follows:
X stated, in a mildly frustrated tone, that Ms Caruso has expressed to him her concerns that Mr Denman is not giving him his medication correctly. When asked how she has had the opportunity to do this, X stated this had occurred in the past, when there was no supervision in place. X stated there had been other times when he felt Ms Caruso was forcing him to say things that Mr Denman had done to him that had no happened and he stated that he feels “really sad” that Ms Caruso places this pressure on him. X said that Ms Caruso sometimes makes him feel like he should not like Mr Denman but this does not occur all the time and she rarely openly speaks negatively about him. X reported that he sometimes voluntarily reports exaggerated incidents he has had with Mr Denman to Ms Caruso so as to “get her questions over and done with” after returning to her care, in an effort to please her. X denied that Mr Denman speaks negatively about Ms Caruso.
The mother denied in cross-examination that she had ever suggested to X these things.
Court’s Determination
Having considered all of the evidence in these proceedings, including the evidence which has been referred to above, the Court finds that the father has not sexually abused Y in the manner alleged by the mother. The Court also finds that neither the father nor his partner pose a risk of harm to the children in the manner alleged by the mother, or indeed, in any manner. There is no unacceptable risk of harm to the children in the father’s household or as a result of the children living with the father.
The mother has not been able to accept the findings of DCJ that the allegations of sexual abuse have not been substantiated. She insists that Y has been sexually abused by the father or why else would she have said those things to her? If the children were to spend time with the mother in an unsupervised setting, the mother would likely continue to imply to the children that Y had been sexually abused and this would likely cause Y lifelong psychological harm. It would also lead to a further risk that the children would again be withheld by the mother, thus causing them significant further disruption.
The mother is a parent who cannot tolerate the children viewing the father in a positive manner. The mother has difficulties in permitting the children to develop and hold their own views about the father. This indicates that she is likely to have significant difficulty in supporting the children in the psychological process of differentiation as they move into adolescence. The consequences for the children of such intolerance and failure to differentiate are grave. They include the risk that the children may develop poor self-esteem and an inability to trust their own capacity to make sense of the environment in which they live.
The mother is of the view that the father is not able to meet the children’s physical needs. She told the Family Consultant that the children lived in a tiny, cramped three bedroom house, that the children were not being properly cared for, that X’s teeth were yellow and that Y’s hair was not brushed and the children were badly dressed. The mother told the Family Consultant that she believed the driving force behind the father’s actions is “money”, and that he continued to want to control her. Such views of the mother have not been made out on the evidence.
The mother’s focus on the “break and enter” is a shining example of her lack of capacity to see beyond her own needs and lack of insight into how her actions and reactions affect, or could potentially affect, the children.
Having considered all of the evidence, the Court finds that the mother poses an unacceptable risk of harm to the children. While the risk may be capable of being mitigated by an order for supervised time, on balance, an order for supervised time is not in the children’s best interest.
In these circumstances, while the children have to date had the benefit of a relationship with the mother, the risk to them in continuing to have that relationship outweighs the benefit of that relationship.
To Ms K, the children presented as distressed and significantly negatively impacted by the parental conflict.
During the Family Report interview, Y indicated that she felt anxious about being interviewed and that she was worried that one or both of her parents would be disappointed with her statements. Ms K noted that “Y said she wants to see both parents and she declared tearfully ‘I just wish they would just get along with each other…’.” Y expressed a wish to sleep alternate nights with each parent because she wanted it to be fair and because she loves both her parents. Y also stated that her mother did not want her to see her father but she did not know why. X said that his preferred living arrangements would be to live “half and half” with each parent because he wants to see everyone in his family. Given the children’s young ages and the high degree of parental conflict, Ms K did not recommended that the Court place weight on the children’s stated wishes and views. The Court accepts this recommendation. The Court places no weight on the children’s stated views, not only because of the evidence of Ms K, but also because of the findings about the risks which the mother poses.
While the Court accepts that the children will suffer the loss of relationships with the maternal family if there was an order for them to spend no time with the mother, such a loss needs to be weighed up against the significant and real risk of harm which have been identified. The mother does not genuinely support the children having a relationship with the father. Her actions to date in disrupting the children’s relationship with the father in the manner which has occurred, while on the face of it having a sheen of protectiveness, are in fact malicious.
Despite any positive aspects of her parenting, the mother’s actions and stated beliefs, if they were to continue and were the children to be faced with them, would cause the children long term and potentially irreparable harm. It is likely, given what has happened in the children’s lives, that the mother would take every opportunity of continuing her crusade against the father if the children were to continue spending time with both of them.
No doubt the children will suffer from losing the relationship with the mother. The father has shown that he has the capacity and the willingness to meet their emotional needs and any fallout from the loss of that relationship. He understands how difficult this will be for them.
An order for no time is usually an order of last resort. The best interests of Y and X warrant such an order.
Parental Responsibility
In light of the findings noted earlier in these reasons for judgment, the presumption of equal shared parental responsibility has been rebutted. There is no evidence which would suggest that the parents are capable of making joint decisions. Furthermore, the evidence is such that it is not in the children’s best interest for the parents to share parental responsibility for the children.
It is in the children’s best interest for there to be an order that the father have sole parental responsibility for the children.
Costs
Both the Independent Children’s Lawyer and the father seek an order that the mother pay costs.
Costs Sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks costs in the amount of $5000.40 being the amount sought in relation to the mother’s share of the Independent Children’s Lawyer costs. The Independent Children’s Lawyer does not seek costs against the father.
It was, inter alia, submitted on behalf of the Independent Children’s Lawyer that:
a.If the Court finds that the mother has been wholly unsuccessful in these proceedings, then her unmeritorious case should be taken into account;
b.The mother will no longer have the care of the children as a burden and a payment plan can be entered into to make the costs sought within her capacity to pay; and
c.That the Court would that the father’s application was made as a result of the mother’s behaviour which made the Final Orders unworkable and unsafe for the psychological well-being of the children.
Costs Sought by the Father
The father seeks costs as sought in his Application in a Case filed 5 June 2019 being that “Within 28 days Ms Caruso pay to Mr Denman $17,883.50 being the calculation of final hearing costs pursuant to Schedule 1 of the Federal Circuit Court Rules 2001”.
On 22 November 2019 the father filed written submissions in support of his application for costs. The father submits that:
a.The necessity of ongoing litigation has contributed significantly to his current financial difficulties;
b.Neither party is in receipt of a grant of legal aid;
c.The father was not provided with due process or procedural fairness as required by U & U[28] in that the mother changed her case throughout the final hearing and the father was required to continually meet the mother’s changing case. Further, it is submitted on behalf of the father that the mother’s conduct during the proceedings would justify the making of a costs order against the mother, in particular that the “mother’s conduct in litigation was inappropriate and against the interests of the children and an inappropriate use of Court resources”.
d.The proceedings were necessitated by the mother’s ongoing non-compliance with prior orders; and
e.The mother’s application is rejected by the father as being in the best interests of the children and therefore it is submitted that the Court may find that the mother has been wholly unsuccessful in her application.
[28] [2002] FLC 93-112
Determination as to Costs
The principles in respect of costs orders in family law proceedings are well known. The starting position with respect to costs, as set out in s117 of the Act is that, subject to subsection 117(2), each party to proceedings under the Act shall bear his or her own costs.
The discretion to award costs is a broad discretion.[29]
[29] see for example Collins & Collins (1985) FLC 91-603.
The High Court held in Penfold & Penfold[30] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.
[30] (1980) 144 CLR 311
As long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the Applicant needs to establish for an order for costs. It is not the law that a costs order can only be made in what has been described as a ‘clear case’. [31]
[31] See in general the comments made by the Full Court in Wrensted & Eades [2016] FamCAFC 46 and in particular where the Full Court approved the comments of the judge below at [103]
In Latoudis v Casey[32] the High Court stated as follows:
… in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of an unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”[33]
[32] (1990) 170 CLR 534
[33] Referred to in the context of family law proceedings by Judge Kemp in Cochrane & Cochrane [2012] FMCAfam 984 at [17]
In determining what order, if any, should be made under s117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A).
Rule 21.02(2) Federal Circuit Court Rules2001 provides that in making an order for costs the Court may set the amount of costs; or set the method by which the costs are to be calculated; or refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules.
The Court finds that there are exceptional circumstances warranting a costs order.
The financial circumstances of the parents were the subject of limited evidence. Both parties had incurred legal costs as a result of these ongoing proceedings. The mother was until recently employed. She pays child support. The father remains employed, but his family circumstances are such that he has very limited financial means, particularly when taking into consideration the legal costs he has incurred and paid to date.
The mother has not complied with orders for the preparation of the matter for trial and had sought an adjournment of the final hearing, which was not granted. The father had prepared his case in a timely and efficient manner.
The mother’s actions, which the Court has been found to be malicious, were so lacking in child focus that the proceedings were unnecessarily brought on by the mother’s unilateral actions. This has resulted in unnecessary costs being incurred. Indeed, the proceedings were necessitated by the mother’s failure to comply with Final Orders.
The mother has been wholly unsuccessful in the proceedings.
To date, the mother has not met her legal obligation to comply with parenting and costs orders previously made.
In all of the circumstances, it is appropriate that the mother pay costs in the amounts sought by both the Independent Children’s Lawyer and the father.
Conclusion
For all of these reasons orders as set out at the forefront of these Reasons for Judgment are in the children’s best interests.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 14 May 2020
Key Legal Topics
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Family Law
Legal Concepts
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Costs
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