Donella and Donella

Case •

[2012] FamCA 159

•

6 January 2012

FAMILY COURT OF AUSTRALIA

DONELLA & DONELLA [2012] FamCA 159
FAMILY LAW - CHILDREN- Competing parenting applications – where sexual abuse allegations made by father against maternal grandfather – where father alleges maternal grandfather also sexually abused the mother and that she acquiesced in the abuse of the children – where allegations are all attributed to disclosures by children – where welfare departmental investigation and police investigation do not substantiate abuse- where father asserts mother also incapable of caring for children due to suffering from MS – where abuse found not to have occurred and father’s conduct is considered to be abusive itself – sole parental responsibility conferred on mother – children to live with mother – suspension of time with father and time thereafter gradually introduced, initially supervised, over time – father to undertake counselling 

Family Law Act 1975 s 60B, s 60CC, s 65DAA(5), s 65L

Evidence Act s 140
Marsden and Winch (No. 3) [2007] FamCA 1364
N and S and the Separate Representative (1996) FLC 92-655 at 82,709
M v M (1988) 166 CLR
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
Briginshaw (1938) 60 CLR 336
Goode v Goode (2006) FLC 93-286 (Full Court FCoA)
MRR v GR [2010] HCA 4, (2010) FLC93-424 (High Court)
Cowley v Mendoza (2010) FamCA 597
Jones v Dunkel (1959) 101 CLR 298
APPLICANT: Ms Donella
RESPONDENT: Mr Donella
INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon
FILE NUMBER: MLC 2881 of 2011
DATE DELIVERED: 6 January 2012
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Forrest J
HEARING DATE: 28, 29 & 30 November and 1 & 2 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Agresta of Counsel
SOLICITOR FOR THE APPLICANT: Altavilla Vessali
Barristers & Solicitors
COUNSEL FOR THE RESPONDENT: Ms Bonney of Counsel
SOLICITOR FOR THE RESPONDENT: C Kyriacou & Associates
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wiener of Counsel
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Cathleen Corridon Solicitor

Orders

IT IS ORDERED

  1. That all previous parenting orders and injunctions are discharged and the mother and maternal grandmother are released from all undertakings previously given to the Court.

Parental Responsibility

  1. That the mother shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) (“the Act”)) in respect of the children, save that the mother shall, prior to making the sole ultimate decision about any such issue:

    (i)Advise the father in writing of the decision intended to be made;

    (ii)Seek the father’s written response in relation thereto;

    (iii)Consider, by reference to the best interests of the children, any such response prior to making any such decision;

    (iv)Advise the father in writing as soon as reasonably practicable of her ultimate decision.

Live With

  1. The children shall live with their mother.

Time with the Father

  1. The father shall spend no time, nor communicate, with the children before Saturday 4 February, 2012.

  2. As and from Saturday 4 February 2012 until Saturday 18 August 2012, time between the children and their father shall be supervised by a person agreed upon in writing by the father, the mother and the Independent Children’s Lawyer and, failing such agreement, at W Contact Centre and shall occur as follows:

    (i)From Saturday 4 February 2012 until and including Saturday 3  March 2012, between 9.00 am and 11.00 am each Saturday (or such other 2 hour period each Saturday as agreed upon in writing by the father, the mother and the Independent Children’s Lawyer);

    (ii)From Saturday 17 March 2012 until and including Saturday 18 August 2012 between 9.00 am and 5.00 pm, or such lesser period of time between those hours as can be accommodated by the agreed supervisor or contact centre as the case may be, on the first, third and fifth Saturdays of each month.

  3. As and from Saturday 1 September 2012, time between the children and their father may be unsupervised and shall occur at all such times as the mother and father may agree in writing and failing any such agreement:

    (i)From 9.00 am on Saturday until 5.00 pm on Sunday the next day on each alternate weekend until the start of the school year in 2013;

    (ii)From 12 noon Christmas Eve until 12 noon Christmas Day in 2012

    (iii)Thereafter:

    i.From after school on the first Friday of the school term until before school the following Monday and then as such on each alternate weekend thereafter during school term with such time extending to before school Tuesday in the event that the Monday of any such weekend is a public holiday;

    ii.For the first half of each period of school  holidays in 2013 and each alternate year thereafter and for the second half of each period of school holidays in 2014 and each alternate year thereafter but with the time the children spend with each parent between 12 noon Christmas Eve and 12 noon Boxing Day each year being determined pursuant to (iii) vi hereof;

    iii.On the children’s birthdays for a period of three hours after school if on a school day and such that the children spend one half of the period between 9.00 am and 5.00 pm with each parent if the child’s birthday falls on a weekend;

    iv.On the father’s birthday for a period of three hours after school if on a school day and from 1.00 pm until 5.00 pm if on a weekend when they are otherwise with the mother pursuant to these orders;

    v.On Father’s Day from 9.00 am until 5.00 pm if on a weekend when they are otherwise with the mother pursuant to these orders;

    vi.From 12 noon Christmas Day until 12 noon Boxing Day in 2013 and between those hours on those days each alternate year thereafter and between 12 noon Christmas Eve and 12 noon Christmas Day in 2014 and each alternate year thereafter;

    (iv)But should the children be with the father pursuant to these orders on the weekend that Mother’s Day falls then they shall return to the mother’s care at 9.00 am on Mother’s Day and remain with her for the rest of that weekend and should the mother’s birthday fall on a weekend when the children are otherwise with the father pursuant to these orders then they shall spend from 1.00 pm until 5.00 pm on that day in the mother’s care.

  4. From Saturday 1 September, 2012, the children’s transition from the care of one parent to the other pursuant to these orders shall take place at a place or places to be agreed in writing between the mother, the father and the Independent Children’s Lawyer before the ICL is discharged from this case or, in default of such agreement, as nominated in writing by the ICL before her discharge.

Therapeutic Assistance

  1. The father shall complete the “Our Kids” Parenting Orders Program run by Centrecare, Melbourne and a Men’s Behaviour Change Program run by the Men’s Referral Service, Victoria by 31 August, 2012 and he shall provide written evidence of the completion of such programs to the mother and the ICL forthwith upon completion and to the extent that the providers of such programs require the input or participation of the mother, then she shall provide such input or participate as required.

Section 65L Supervision

  1. Pursuant to Section 65L of the Family Law Act 1975:

    a.Compliance by the parties with the provisions of these orders, as far as practicable, to be supervised by a Family Consultant of the Family Court of Australia Melbourne Registry as might be nominated by the Manager of Child Dispute Services, Family Court of Australia Melbourne Registry ;

    b.The said Family Consultant shall give any party to these parenting orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting orders;

    c.The parties shall do all such things, sign all such documents, attend all such appointments, and ensure the children attend all such appointments, as are reasonably necessary for the purposes of same.

Communication

  1. As and from Saturday 4 February 2012 the father may communicate with the children at such times and via such means as the parties may in writing agree and failing agreement, the father may communicate with the children only by sending to them such cards and/or letters and/or photos as he may choose, but only via Australia Post sent to the residential address of the mother and the children.

  2. As and from Saturday 1 September 2012, the father may communicate with the children at such times and via such means as the parties may in writing agree and failing agreement:

    a.By e-mail, if practicable, but not earlier on any occasion than 8.00 am and not later on any occasion than 8.00 pm and not more than two per day;

    b.By Skype, or other similar computer communication, if practicable, or by telephone twice in any week in which he does not spend time with the children and once in any week in which he spends time with them, but not earlier on any occasion than 8.00 am and not later on any occasion than 8.00 pm.

  3. So as to give effect to paragraph 11 of these Orders, if the mother has a home computer available for use by the children by that time, she shall, by not later than 4.00 pm on 31 August 2012, provide to the father an e-mail address for the children and have installed such software as will allow email and Skype communication between the father and the children;

Specific Issues

  1. The mother shall:

    a.Advise the father and keep him advised of the children’s residential address, school, usual treating general practitioner, any specialist medical practitioner and any counsellor or therapist upon whom they attend;

    b.Do all such things and sign all such documents as might be required so as to advise any and all of the persons or school referred to in paragraph 13a above of these orders and to authorise them so as to facilitate the father receiving any and all such information (including written reports provided in the usual course by any such person) relating to the children’s progress, health, treatment or course of counselling or therapy as the case may be SAVE THAT nothing in this order shall be construed so as to require the mother to authorise the provision of any information which, in the written professional opinion of any doctor, counsellor or therapist is contrary to the best interests of the children or any one of them;

    c.Notify the father as soon as reasonably practicable of any significant injury or serious illness suffered by any of the children and, in any event, any injury or illness which requires specialist medical treatment or admission to hospital.

  2. That both the mother and the father are restrained from discussing, raising or talking to the children in any way about the sexual abuse allegations that were the subject of these proceedings and from allowing the children to be within hearing of any other person who discusses or talks about them.

  3. That both the mother and the father are restrained from denigrating, criticising or belittling in any way the other parent or any member of the other parent’s family to or in within the hearing of any of the children and from allowing the children to be within hearing of any other person who does so.

  4. That the parties use a communication book to inform each other of matters pertaining to the welfare of the children and the communication book shall accompany the children as they transition between the parents, the mother to provide such books as and when one is required, save for if such book is lost or misplaced when the children are in the care of the father, in which case, the father will replace it.

Publication

  1. Pursuant to s 121(9)(g) of the Act, the mother or the Independent Children’s Lawyer is authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment delivered herewith, to:

    a.Mr H;

    b.Mr M;

    c.The father’s mother and father, sisters and brother;

    d.The mother’s mother and father;

    e.The Manager, Child Dispute Services, of the Melbourne Registry of this Court or any family consultant nominated by him;

    f.Any of the persons or school referred to in paragraph 13a of these Orders;

    g.The Victorian Department of Human Services, Victoria Police, the Children’s Protection Society (Victoria) or any person or organisation of a similar type charged with responsibility for the investigation of complaints of child abuse;

    h.Any supervisor or contact centre charged with the responsibility of supervising time pursuant to these Orders;

    i.The providers of the Parenting Orders Program and the Men’s Behavioural Change program that the father participates in pursuant to paragraph 8 of these Orders.

AND IT IS FURTHER ORDERED THAT

  1. The Independent Children’s Lawyer is discharged on 30 September, 2012.

  2. All extant applications are otherwise dismissed and removed from the list of cases awaiting finalisation.

  3. Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

  4. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Costs

  1. The mother and the father shall pay, in equal shares, the independent social worker’s reasonable fees for his attendance at the Court during the course of the hearing of this matter for the purposes of his cross-examination.

  2. The mother and the father shall pay, in equal shares, the professional fees and outlays incurred by the ICL in this matter as paid by Victoria Legal Aid to date and as may be paid by Victoria Legal Aid to the point of discharge of the ICL pursuant to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Donella & Donella is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 2881 of 2011

Ms Donella

Applicant

And

Mr Donella

Respondent

REASONS FOR JUDGMENT

Introduction

  1. Mr Donella and Ms Donella married in early 2005 after forming their relationship the year before. They separated, just six years later, in March, 2011. They have three children, B, who is six years old, J, who is five years old, and N, who is three years old.

  1. The last year or so of their marriage was not a happy time for the couple. Their separation was not an amicable one. In the eight months since then, the couple have remained in high conflict, particularly in their parenting of their three little boys. Their conflict brought them into contact with the courts immediately upon separation. An order was made in the Magistrates’ Court pursuant to the Victorian domestic violence legislation and child-related proceedings were immediately commenced in the Federal Magistrates Court.

  1. After a couple of early hearings in the Federal Magistrates Court, the proceedings were transferred to this Court and managed, thereafter, as a Magellan matter[1]. There has been a lot of external forensic and therapeutic involvement in the lives of the members of this family in the last two years, particularly so in the months since separation. Very few families that come before this Court have as much forensic effort directed at them in such a short space of time as this family has. Sadly, it has not resulted in an abatement of the parental conflict.

[1]Magellan is primarily a case management system, designed to ensure that the cases which are the most resource intensive, involving the most vulnerable children (cases in which allegations of sexual abuse or serious physical abuse are made), are dealt with as effectively and efficiently as possible in this Court.

The Central Issue - Sexual Abuse Allegations

  1. At the heart of the current parenting dispute lie allegations made by the father and other members of his family of origin that B and J and possibly N were sexually and physically abused by their maternal grandfather whilst in the mother’s care and living with her at the home of the maternal grandparents in the week between 13 and 20 April, 2011.  Critically, the father asserts the mother was involved in the alleged sexual abuse. It is said that, at least on one occasion, if not more, she was in bed with B when the maternal grandfather sexually abused him, that she acquiesced in the abuse of her child, B, by her father, and that she engaged in sexual activity with her father at the same time, either as a willing participant or under his coercion, and that, either way, she is now lying when she denies that such abuse occurred.

  1. It is also asserted by the father that the mother and her elder sister were both sexually abused by their father as they were growing up. The father asserts that the mother had told him and his parents of her father’s abuse of her and that her denial of that abuse now is a deliberate lie.

  1. Further, it is said that the mother and the maternal grandparents are all conspiratorially covering up the abuse of the mother by her father and the abuse of the boys by their grandfather. It is said that they are coaching and coaxing the boys to falsely deny to investigators that abuse occurred. At the same time, the mother is said to be deliberately involving B in behaviour intended to taunt and emotionally torment the father by having him believe that sexual abuse is still occurring to the boys when in her care.

  1. The father and the other members of his family of origin assert that the mother has a history of mental health problems. It is alleged these problems manifested themselves in chronic compulsive lying, depressed mood and suicidal ideation. There is no dispute that the mother began to receive psychotherapy in mid-2010. The father asserts that the mother’s involvement in the sexual abuse of the boys, her current denials of the sexual abuse and her conspiratorial conduct in covering up the abuse are symptoms of her serious mental health problems.

  1. It is difficult to imagine any more serious allegations being made against the mother and her parents, yet the proceedings involve additional complexity. The mother suffers from Multiple Sclerosis and has suffered it since 2004, shortly after she commenced the relationship with the father. The father alleges that prior to separation the mother could not care for herself because of the MS. He asserts that he cared for her throughout the marriage. He asserts, as a consequence of the effects of the mother’s illness, that he principally cared for the three little boys during the marriage, right up to the point of separation.

The Mother’s Response

  1. The mother denies that she was ever sexually abused by her father. She denies that the boys were sexually abused by her father. Her father denies ever sexually abusing her or his eldest daughter. He denies sexually abusing his grandsons. The mother and both her parents deny they are now conspiratorially covering up sexual abuse. The mother also denies that her illness, MS, currently prevents, or ever prevented, her from providing primary parental care to the boys. She asserts, despite having the illness, she was, during the marriage, the parent who provided the principal amount of day to day care for the three boys.

  1. The mother asserts that the father was a controlling, domineering, possessive, verbally abusive husband, particularly during the latter years of their marriage. She asserts that the allegations he makes of sexual abuse and conspiratorial cover-up are symptomatic of his poor attitude to her and her parents and their roles in the lives of the three boys. She asserts that they are made, simply to achieve an outcome in the parenting dispute, without any regard for reality. She asserts that, similarly, the father’s allegations about the impact of her MS upon her parenting capacities are made up by him, taking advantage of the fact that she does have MS, to assist his case for orders that the boys live with him. 

The Parties’ Proposals at the Start of the Hearing

  1. Before the case commenced, the mother asked the Court to make orders conferring sole parental responsibility on her, and providing for the three boys to live with her and to spend time with their father from 9:00 am Saturday until 5:00 pm Sunday on alternate weekends until the youngest boy started school and for longer periods during school holidays.

  1. That position, in respect of the division of care of the children between the parents, was not very different to that adopted by the Independent Children’s Lawyer at the start of the hearing. However, the ICL was, at that time, indicating a preliminary preference for an order for “joint parental responsibility”.

  1. The father’s position, at the commencement of the hearing, was that the Court should make orders conferring “joint parental responsibility” on both the parents but providing for the boys to live with him and to spend time with their mother each alternate week from after school on Friday to before school the following Wednesday. He also proposed the children spending time with the mother for half of the school holidays, including for periods of two weeks at a time during the long Summer holidays. He sought an order restraining the maternal grandfather from being present with the children when they were spending time with the mother. He also sought an order that the mother get therapeutic assistance for her “compulsive lying”.

Concerns about the Father’s Position at the Start of the Hearing

  1. The father’s position at the start of the hearing, in respect of the orders he was asking the Court to make, seemed, at least in my view, having regard to the best interests of the children being the paramount consideration, to be rather incongruent with him believing in the two central features of his case, namely the sexual abuse allegations and the allegations as to the mother’s incapacity to care for herself and the children due to her MS.

  1. Part way through the hearing, I raised this observation with counsel for the father. I also raised it directly with the father whilst he was in the witness box during his two days of cross-examination. He said to me, at that point, that if I accepted all of the allegations he was making against the mother, as he was asking me to do, the boys should only spend supervised time with her, if any at all.

  1. Relevant to that, the independent social worker who prepared a family report in the matter as recently as 10 November, 2011, reported[2] that at the time he interviewed him[3] the father was proposing that the mother spend supervised time with the children for four hours each alternate Saturday at a centre that facilitates such visits. He went on to report[4] that the father said he would be willing to consider the children spending each alternate weekend with the mother if she received “help” but that the father was “unable to specify what this would require. When asked about that in the witness box, the father said the “help” he meant was “psychological help”.

[2]          Family Report dated 10 November 2011 paragraph 4

[3]          7 November, 2011

[4]          Supra, paragraph 18

  1. During the hearing, I also raised with the independent social worker, when he was in the witness box, the issue of whether the best interests of the children would be met by them spending any time at all with the mother if the allegations made by the father and his family of origin were accepted as true. He quickly proffered the opinion that it would not be in the children’s best interests for them to spend any time with the mother in those circumstances. He also accepted the proposition that for anyone to consider otherwise would be rather strange.

The Parties’ Positions at the End of the Hearing

  1. Remarkably, having regard to the matters just referred to, at the end of the hearing, I was informed by counsel for the father that the orders proposed by the father were still those set out in the Outline of Case document filed on his behalf on 25 November, 2011. As already pointed out, those provided for the children to spend each alternate weekend from after school Friday to before school Wednesday with the mother, completely unsupervised. They provided for an order restraining the maternal grandfather from being present with the children during that time and orders that the mother continue to have personal counselling and also have “psychiatric or other counselling to treat her  compulsive lying”.

  1. At that same time though, for both the ICL and the mother, it was submitted that sole parental responsibility should be conferred upon the mother, and that orders should be made providing for the children to live with the mother and to spend only supervised time with the father at a centre facilitating same, with there to be no restriction on the maternal grandfather spending time in the company of the children.

  1. Counsel for the ICL and the mother both effectively submitted that I would be satisfied, considering all of the evidence in the case, that the maternal grandfather has not sexually abused the children, that the mother was not involved in any sexual abuse of the children, that there was no conspiratorial cover-up of sexual abuse by the mother and the maternal grandparents, that the mother does not have any mental health disorder, that the mother’s MS has not prevented her from being the principal carer for the three boys since they were born and that it does not impede her current capacity to properly care for the boys. I accept all of those submissions. I am satisfied of each of those things.

  1. The submissions of counsel for the ICL and the mother that the boys’ time with their father should be supervised at a Centre facilitating same, were based on submissions by both of them, as I understood them,  that I would be satisfied that if the children were to spend unsupervised time with him they would be subject to emotional abuse because of his inability to shield them from his belief, and the beliefs of other members of his family, that they had been sexually abused and continued to be at high risk of ongoing sexual abuse. I am satisfied that is correct, at least in the short term.

  1. Having accepted those submissions and arrived at those conclusions, I determined to make orders to give the boys some respite from the spectre of sexual abuse continuing to pervade their lives, some immediate respite from the turmoil that they have been experiencing in the last few years, more particularly the last eight months, some stability in their day to day lives, including as to their living and care arrangements, and some opportunity for them to continue meaningful relationships with their father and their extended paternal family once their father has had appropriate therapeutic assistance so that he can again spend time with his three boys in a manner that advances their safe and secure emotional development.

  1. I determined that is was necessary to make those orders straight away and I did that on Wednesday 7 December, 2011. I made all of the orders set out at the commencement of this judgment on that day and I informed all of the parties that my reasons would follow in due course. These are my reasons for those orders I made.

The Legal Principles to be Applied in the Determination of this Case

  1. As already mentioned, when the Court is determining the parenting orders to make in this case the best interests of the three children must be regarded as the paramount consideration.[5]

    [5]          S. 60CA of the FLA

  2. In determining what orders will meet the best interests of the children, consideration must be given to expressly listed “primary” and “additional” considerations, in addition to some other matters expressly set out in the legislation.[6] The process of determination is wide-ranging. That is made clear by inclusion in the list of “additional” matters to be considered “any other fact or circumstance that the Court thinks is relevant”.[7]

    [6] S. 60CC of the FLA

    [7] S.60CC(3)(m)

  3. Wide-ranging though it is, the process of determination must nevertheless be performed within the constraints of the statutory framework of Part VII of the Family Law Act. That Part begins with a statement of the objects of the Part and the principles underlying those objects. I have said before that I consider it important to set those out in a case where allegations of sexual abuse of a child by a parent are the central focus of the factual enquiry at the heart of the overall determination of what parenting orders are in the best interests of the child. I set them out now. They are to be kept in mind throughout the process of determination.

    S 60B (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).

  4. Expressly referred to as ‘primary’ amongst the considerations the Court must consider in determining what is in a child’s best interests are two matters.[8] They 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.

    In the FLA, it is said that making these considerations the primary ones is consistent with the objects of Part VII listed above – that is, at least those two objects set out in s.60B(1)(a) and (b).[9]

    [8] S.60CC(2)

    [9] See the Note to s.60CC(2)

  5. In any parenting case, the two “primary” considerations are to “be accorded particular importance in determining what order will best promote the interests of the child”[10]. I consider that is the legislative demand as they are separately listed and described as “primary considerations” in the FLA. In a parenting case where allegations of abuse, sexual or otherwise, of a child or children by a parent, or someone associated with a parent, are made, the two “primary” considerations and their interplay take on critical importance. 

    [10]         Marsden and Winch (No 3)[2007] FamCA 1364 per Warnick and Thackray JJ at par 77

  6. On the one hand, consideration of the benefit to the child of having a meaningful relationship with both parents is given particular importance. On the other hand, consideration of the need to protect the child from being subjected to, or exposed to, abuse is, clearly, given equal importance.

  7. There is no doubt that sexual abuse of children is abhorrent.  As Fogarty J, sitting in the Full Court, in 1996 said:

    It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.[11]

    [11]N and S and the Separate Representative (1996) FLC 92-655 at 82,709

  8. That statement remains true. Abuse of children of any kind is abhorrent. Physical abuse and psychological abuse of children is equally intolerable. Where any form of abuse, be it sexual, physical or psychological, is found to have occurred or to be occurring, then the weight to be given to the need to protect a child or children from that abuse must, necessarily, be greater than the weight given to the benefit to the child or children of having a meaningful relationship with the parent who is the abuser or who is allowing such abuse. 

  9. Of course, not all allegations of sexual abuse are well-founded. In the same decision cited above,  Fogarty J went on to say:

    [C]ourts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.[12]

    [12]N and S and the Separate Representative (supra) at 82,711

  10. False allegations once made can, depending upon the extent to which the child or children become embroiled in the making of them, lead to ongoing psychological abuse of the child or children. If a parent believes, wrongly, that their child has been sexually abused by the other parent or that the other parent has acquiesced in such sexual abuse, that parent’s parenting of the child can become psychologically abusive. Children must be protected against the harm they suffer from such psychological abuse in the same way that they must be protected against the harm they suffer from sexual and physical abuse.

  11. Guidance as to how allegations of sexual abuse are to be considered and resolved in parenting cases, where the best interests of the child is the paramount consideration, was given by the High Court in M v M[13] in 1988 and by the Full Court of this Court in a number of subsequent cases.[14] Section 140 of the Evidence Act 1995 is also directly applicable, as are the matters mentioned in the very old High Court decision of Briginshaw.[15]

    [13](1988) 166 CLR

    [14]See, for example, N and S and the Separate Representative (supra), W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

    [15](1938) 60 CLR 336, particularly at page 362 per Dixon J (as he then was)

  12. The Court should not make a positive finding that an allegation of sexual abuse is true unless it is satisfied on the balance of probabilities that the allegation has been proved, regard being had at the same time to the seriousness of the allegations, the inherent likelihood of that which has been alleged actually occurring, and the gravity of the consequences flowing from a particular finding.

  13. The inability to make a positive finding that an allegation of sexual abuse is true is not the end of the process of determination. Should the Court be unable to make a positive finding that an allegation of sexual abuse is true, but nevertheless at the same time be satisfied that parenting orders for a child or children to live with a particular parent, or to spend time with a particular parent, would expose the child to an unacceptable risk of sexual abuse, such parenting orders should not be made.

  14. Of course, as the High Court recognised in M v M[16], just as there will be some cases in which the Court is able to come to a positive finding that the allegations of sexual abuse are well-founded, so, too, will there be cases in which the Court has no hesitation in rejecting the allegations as groundless. What must then follow, of course, in such cases, will be consideration of the matters and issues raised by such rejection of the allegations, particularly as to whether any psychological abuse of the children is occurring, or could occur, as a consequence. Clearly, if the Court is then satisfied that there is an unacceptable risk of psychological harm to the child or children if particular parenting orders are made in favour of the parent who has made the allegations that have been rejected, those particular orders must not be made, but rather orders made that will balance the need for protecting the child or children from such harm with the need for them to have a meaningful relationship with that parent.

    [16](supra)

  15. Although generally in cases where sexual abuse allegations are made, the consideration and determination of the allegations of sexual abuse will be at the heart of the process of determining parenting orders that will best protect and promote the interests of the child or children, all of the considerations listed in s.60CC must nevertheless still be considered by the Court as part of the process.

  16. There are still a number of steps that are actually required by the FLA to be undertaken in the process[17]. The Court must:

    [17]See Goode v Goode (2006) FLC 93-286 (Full Court FCoA), MRR v GR [2010] HCA 4, (2010) FLC 93-424 (High Court), Cowley v Mendoza (2010) FamCA 597 (Murphy J at first instance)

    ·apply the presumption of equal shared parental responsibility

    ·determine whether there is abuse of a child or family violence, which means that the presumption does not apply

    ·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility

    ·if the presumption applies:

    ·    determine whether it is in the child’s best interests for there to be an order for equal time with each parent

    · make findings as to the matters set out in section 65DAA(5) going to the reasonable practicability of a child spending equal time, or substantial and significant time, with each of the child’s parents, having regard to:

    (a)how far apart the parents live from each other; and

    (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

    (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

    (d)the impact that an arrangement of that kind would have on the child; and

    (e)such other matters as the court considers relevant.

    ·    as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable

    ·    if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order

    ·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests.

  17. The matters that must be considered pursuant to s.60CC in determining what is in a child’s best interests must be considered all along that statutory path.

Some Further Relevant Background

  1. The father asserted in his evidence that the mother was estranged from her parents when he started going out with her in 2004. He made this assertion in conjunction with the assertions that the mother generally had a poor relationship with her parents throughout the period of the marriage and that she had been sexually abused by her father as a child. The inference I consider he was wanting the Court to draw from his evidence was that there was a direct causal link between the mother’s alleged poor relationship with her parents and the alleged fact that she had been sexually abused by her father as she was growing up. 

  1. The mother denied that she was estranged from her parents when she started going out with the husband. She said she was still living at home with her parents at that time, evidencing a good relationship with them. Her parents said the same thing. The father gave no evidence as to where the mother was otherwise living, if she was not living at home. The evidence fell short of convincing me that the mother was estranged from her parents when she and the father started going out and I do not accept that she was.

  1. However, the evidence does establish that the relationship between the mother and the father, as a couple, and the maternal grandparents, as a couple, certainly deteriorated over the years of the marriage, most particularly, I accept, from 2009 on.  The father would have me accept that it deteriorated particularly from that time because it was sometime in that year that the mother told him that her father had sexually abused her as a little girl. He wants me to accept, I find, that this particularly turned him against his father-in-law, as it naturally might, if it were true.  

  1. The mother’s case was that the father’s controlling and abusive personality and the way that he treated her and their boys was what brought him into conflict with her parents as time went on. I accept that the mother’s own relationship with her parents began to suffer as a consequence of that conflict. She maintained that she was not permitted to pursue an ongoing relationship with them in any meaningful way and that she had to resort to calling her parents at times so that the father did not know that she was doing it. She asserted that she had to keep such contact with them secret from the father and, on occasions, she had to lie to him about that to protect herself from the anger he would subject her to if he found out.

  1. Early in the marriage, at around the time that the mother and father were first living together, the father and the mother’s sister, Ms L, argued fiercely. The father told Ms L that he did not accept anyone talking to him like that in his home. It was shortly after this argument that Ms L first experienced a psychotic episode, said by the mother and maternal grandparents to have been related to her long-term use of illicit drugs, particularly marijuana, as a teenager and young adult. It was shortly after this argument, whilst arguing further with her mother, that Ms L is said to have first disclosed to her mother that her father had done something sexually inappropriate to her when she was a child. Ms L, soon thereafter, saw a family therapist with whom her parents had been having family therapy. They had been having therapy as a result of the revelation of the maternal grandfather having an extra-marital relationship with a female work colleague over four years in the late 1990’s.

  1. In a session of family therapy involving Ms L and the maternal grandfather, Ms L is said by the maternal grandparents to have disclosed that when she was six years of age, she was travelling in the family car with her father, when her father, at some traffic lights, touched himself on the penis in a way that Ms L considered inappropriate. Shortly after that disclosure, Ms L is said to have lapsed into psychosis for which she was treated at home for a while by a community based psychiatric service before being admitted to hospital. She is said to have had several psychotic episodes requiring hospitalisation over the years since then.

  1. The father was aware of Ms L’s psychosis and was involved in the decision to call in a psychiatric response team for her. He asserted in his affidavit that Ms L had herself told him that she had been sexually abused by her father as a teenager. In his affidavit, he put the timing of that disclosure to him as sometime around the middle of 2009. In the witness box though, he asserted that Ms L had informed him, on several occasions subsequent to that first episode of psychosis, that her father had masturbated in front of her in the car when she was young. He asserted that she told him it was when she was 13 years of age and that she told him that the maternal grandfather had done other things to her but that she would never tell him what they were.

  1. I accept that the father learned of Ms L’s disclosure about her father. He could have learned that either from Ms L directly or as a result of the manner in which Ms L’s disclosure was first made and his involvement in the response to her subsequent psychotic episode.  I do not accept that Ms L told the father that her father had abused her in other ways. I consider that if Ms L had been prepared to tell the father, several times over the years, that her father had masturbated in front of her as a 13 year old that she probably would have disclosed the particular detail of other abuse if it had happened. I reject the father’s evidence that she told him repeatedly that there was other abuse and that she simply refused, always, to disclose any further detail about it.

  1. Ms L is now in her mid 30’s, is married and apparently continues to struggle with mental illness. The mother and her parents asserted that Ms L is currently stable on medication and they do have continuing relationships with her. The maternal grandfather, credibly in my view, maintained no knowledge of ever having done anything like Ms L alleged, and denied any sexual abuse of her. He frankly acknowledged that his relationship with her had been fairly volatile since she was a rebellious teenager in her late teens. He said that he and Ms L do still see each other and recently had coffee together.  I got the impression that the grandfather was seriously intent on having a good relationship with Ms L. The maternal grandmother, who had clearly given Ms L’s disclosure a lot of consideration over the years, did not believe that her husband had done anything sexually inappropriate to Ms L or in Ms L’s presence.

  1. I found no reason to reject the grandfather’s evidence or the evidence of the grandmother. I find that they honestly considered that Ms L’s disclosure was somehow linked with her psychosis.

  1. I accept that the relationship between the father and the maternal grandparents was never a very good one. I accept that they clashed increasingly over the years and, consequently, it became more and more difficult for the mother, whilst remaining married to the father, to maintain good relations with her parents. I conclude that as relations deteriorated, the father has attributed credibility to Ms L’s disclosure, more than he did when he first learned of it. There is no evidence that persuades me that the father acted consistently with belief in the truth of Ms L’s disclosure from the moment he first learned of it.

  1. Ms L was not a witness in the proceedings before me. She provided no affidavit nor was she called by either the mother or the father. I draw no inferences adverse to either party’s case because of that. I make no finding that the maternal grandfather sexually abused his daughter, Ms L, as a child or as a young teenager or at any time.

  1. The father’s evidence was that sometime in 2009 the mother had disclosed to him that the maternal grandfather had sexually abused her as a child. He was not more specific about the timing of that first alleged disclosure, save for thinking it might have been “late 2009”. He gave no specific detail of the alleged disclosure by the mother in his affidavit evidence. In the witness box, during the hearing, he said that the mother had told him that she remembered her father coming into her bedroom when she was six years old and that he had been naked and had “touched her all over”.  He said that she told him she could not remember any more than that. He said that he considered she was conveying to him the message that the maternal grandfather had touched her in a sexual manner, including touching her genitals.

  1. It is common ground that in or around September, 2009, the maternal grandfather was at the home of the mother and the father and that the father and the maternal grandfather had a serious argument. In his affidavit evidence, the grandfather asserted that the father had become extremely angry and had begun to use abusive and vulgar language in the presence of the children. The grandfather asserted that when he asked him to stop using such bad language in front of the children that the father became angrier and more aggressive towards him. The grandfather said he walked out of the home and, that as he did, the father said to him that he would never see his grandchildren again and that the only way he would come back into the house was if he crawled on his knees.

  1. In his affidavit, in response to that evidence, the father said that the mother had threatened to kill herself at this time and that he was talking with the maternal grandfather about this, seeking to enlist his assistance in getting help for the mother. He said the argument began because the maternal grandfather refused to believe that the mother needed any such help. He asserts that the boys were not present as he had previously deliberately taken them to his parents’ home so that they would not be around when the matter was discussed. He would, as I understand his evidence, also have me accept that it was probably before this argument that the mother had told him that she had been sexually abused by her own father as a child and that his feelings of revulsion about this had also fuelled the argument with the grandfather.

  1. I do not accept all of the father’s evidence on this matter. Other evidence supports findings that the mother began to obtain treatment for depression in and around June of 2010. In the evidence about that mid-2010 treatment, there are references to her alleged suicidal ideation at that time but no other evidence corroborative of the father’s assertion that she had been expressing any such suicidal thoughts as far back as September 2009. The father gave no evidence that he had tried to get the mother into treatment, concerned about her mental health, in September, 2009. If the evidence he gave was true, I consider that he probably would have made some effort to get her into treatment then, in September, 2009, particularly if, as he says, he was getting no support from the mother’s parents and having regard to the evidence about his previous involvement in Ms L’s psychiatric care several years before. Furthermore, if the father believed in September, 2009, that the mother had been sexually abused by her own father as a child he would probably not have sought to enlist her father’s support in getting help for the mother at that time. In addition, there is no evidence that when the argument escalated the father confronted the maternal grandfather with an allegation that he had sexually abused both of his daughters as he probably would have done, if aware of it at that time, given the level of his anger that the evidence establishes.

  1. The father says that as the argument ended and the grandfather left the home the grandfather said to the father, referring to the mother, “she is your fucking problem now”. The maternal grandfather quite candidly accepted that he had said something like that and expressed his sorrow and remorse for having said that at that time. It appears common ground that the maternal grandparents only went to the home of the father and the mother again on three or four occasions after that prior to their separation. The maternal grandfather gave evidence that he did send text messages to the father on two occasions subsequent to the argument, seeking to meet with him to try to resolve their conflict, but that his overtures were refused.

  1. The evidence establishes that soon after that argument between the father and the maternal grandfather an extraordinarily troubling thing happened. The maternal grandmother has, for many years, owned and operated, a dress making business. That business had made the mother’s bridal gown that she wore at her wedding to the father. The gown was apparently in storage at the business premises. The mother’s evidence, which went unchallenged, was that the father arranged for the dress to be couriered to their home for the express purpose of destroying it. She said that prior to its arrival at their home, the paternal grandfather told her that if the father wanted to cut up the dress then she should let him as it would make the father feel better. The mother’s unchallenged evidence was that once it arrived, the father and his parents all took part in cutting the gown up into small pieces. The mother said they forced her to participate in that.  The pieces were then packaged up and sent back to the maternal grandmother at her business premises. I accept the tenor of that evidence. It is very disturbing evidence. I consider that it tends to support the mother’s evidence that the father had a personality that was controlling and abusive of her. It supports a view of the father and his parents that they lack a good degree of self control and it calls into serious question important aspects of their judgment. 

  1. The evidence supports a finding that the mother then had only limited communication with her parents, much of which was apparently kept secret by her, she thought, from the father. The maternal grandparents then got to see the mother, the father and the grandchildren briefly at Christmas 2009 and again on the youngest boy’s second birthday in July, 2010. That was the last time they saw them prior to the separation of the mother and the father some nine months later.

  1. In or around February, 2010, it is said by the father and the paternal grandfather that the paternal grandparents had become aware of the allegation that the maternal grandfather had sexually abused the mother. Indeed, the paternal grandfather’s affidavit evidence is that the mother told him and his wife that both she and her sister had been sexually abused by their father and that she herself had actually fallen pregnant to her own father and had the pregnancy terminated. The paternal grandfather said the mother told them “in confidence” and that they had not even reported that to the father until recently. The grandfather does not say when that was told to him and his wife by the mother or why, particularly, he felt bound to respect the mother’s ‘confidence’ in all the circumstances, including the mother’s perceived mental health problems, until only recently. Interestingly, the paternal grandmother did not give evidence in the case.

  1. The mother denied ever having told the paternal grandparents that she and her sister had been sexually abused by their father and that she had fallen pregnant to her father. She appeared quite credibly shocked and distressed by that allegation. She said, without reference to timing, that the paternal grandfather told her that he was going to take her confession so that her spirit would be cleansed. She said he told her something private and personal about himself and encouraged her to do the same.  She said he would not let her go unless she told him something, so she told him that she had fallen pregnant to the father, his son, before they married and had that pregnancy terminated. I accept her evidence on that matter. In cross-examination the paternal grandfather denied the mother’s assertions in that regard. I do not accept his denial.

  1. The evidence establishes that in or around February, 2010, the mother in the presence of the father and the paternal grandfather, telephoned her own mother and spoke to her in such a way that the maternal grandmother could be heard on a loudspeaker at the mother’s end by the father and the paternal grandfather. The mother’s evidence is that, under pressure from her husband and father-in-law, she asked the maternal grandmother to come around to speak to them so that the paternal grandfather could apologise to her for something rude he had said about her and the other women in the mother’s family. That was said by the mother just to be a pretext to get her mother there so that the mother could, on the insistence of the father and her father-in-law, disclose to her own mother that the maternal grandfather had sexually abused her as a child. The mother says she was distressed and crying during this call because she was being forced by her husband and father-in-law to say that she had been sexually abused by her father. When the maternal grandmother refused to come over, the mother concedes she said to her “what if I said dad did something to me?” She said when her mother asked her what it was that he had done she simply said “I don’t really remember” to which her mother said “in that case there is nothing to say.”

  1. The father’s evidence is simply that the mother told her mother during that phone call that the maternal grandfather “had abused her”. The paternal grandfather makes no reference to the call at all in his affidavit. The maternal grandmother’s evidence was corroborative of the mother’s evidence. The mother actually did not accept at any point in her evidence that she had ever told her husband that her father had sexually abused her. There is evidence (which I shall return to) that establishes though that she did, at some point during the latter years of the marriage, seemingly affirm the father’s assertion, put to her, that her father must have sexually abused her. However, I am not satisfied that the wife ever positively told the father that her father had sexually abused her and I am satisfied that her father had not sexually abused her.

  1. I consider that if the paternal grandfather was aware at the time of the pretext call to the maternal grandmother that the mother had fallen pregnant to the maternal grandfather as a young woman as a consequence of his sexual abuse of her, he would probably have conveyed that to his son and to the maternal grandmother at that point in time. I do not accept the paternal grandfather’s evidence that the mother told him and the paternal grandmother that she had fallen pregnant to her own father. I do not accept that if she had told them that that they would have kept it to themselves for a long time, not revealing it to their son until only very recently.

  1. The paternal grandmother sat in the back of the Court during the first day of the hearing. She was clearly available to give evidence for the father. The absence of evidence from her, particularly as to the alleged disclosure to her by the mother of having fallen pregnant to her father, was not explained. I infer from the absence of evidence from her, without any explanation for such absence, that evidence from her would not have assisted the father’s case.[18] If she had been told by the mother that the mother had fallen pregnant to her own father and terminated that pregnancy, I would expect evidence as significant as that to have been put before the Court by her.

    [18]         Jones v Dunkel (1959) 101 CLR 298

  1. I do not accept the father’s evidence that the mother told her own mother on that pretext phone call that her father had abused her. I do not accept that the mother had actually disclosed to the father in 2009 that her father had sexually abused her. As I have already said, I do not consider that he would have had the maternal grandfather to his home in September, 2009 or that he would have spent any part of Christmas Day, 2009, with the maternal grandparents if he had by then been told by the mother that her father had sexually abused her as a child.

  1. There was evidence before me, tendered on behalf of the ICL (exhibit 9), that included notes of Dr A, who was the General Practitioner who treated the mother and the father over the years leading up to separation.  Specifically, his notes record that he was attended upon by the mother on the morning of 4 March, 2010. He records the reason for her visit as “insomnia”. His notes for that visit also exactly record the following:

    There has been stress at home, family politics
    Her whole body shaking inside
    Tremor
    Really stress
    [The father] is very controlling, control her financial
    He know everything about her
    She wants to talk to someone is worried that [the father] may find out
    She’s not talking to her family now
    Ever since she has been married, [the father] doesn’t get along well with her family, esp with her mother
    Because of this he tells his parents everything about their relationship
    She’s embarrassed because there’s nothing private between her and his family
    Her father inlaw went to her and asked her inappropriate sexual intimate questions and tried to kiss

    o/e (which I understand means “on examination”)
    teary looks depressed
    flat
    anxious
    hands trembling

  1. I am not convinced that the mother does have a compulsive lying problem. The evidence satisfied me that the mother probably did lie to the husband during their relationship about some things so as to diffuse or avoid conflict with him in a relationship where she felt disempowered, but it did not satisfy me that she actually had a chronic, compulsive lying problem. The father clearly was troubled by lies the mother had told him during their relationship that he subsequently discovered were untrue. I find that he was able to convince the mother to believe herself that she had a problem with lying when she was in her depressed state in 2010, such that she reported to that effect to doctors she then saw. However, I was not left considering the mother to have a problem with lying that she could not control, particularly after Dr R’s evidence.  Indeed, at the end of the case, I was satisfied that the father was far less truthful than the mother in respect of all of the evidence each of them gave in this case.

The Mother’s Multiple Sclerosis

  1. One of the important issues in the case upon which the father gave evidence that I do not accept was the effect on the mother of her MS. As I have already observed, the father said that the mother could not care for herself or the children because of the impact upon her of the MS. The preponderance of the evidence simply did not support the father’s evidence on this. The ‘nannycam’ video surveillance I saw of the mother in the time just after separation was enough, of itself, to satisfy me that she could care for herself and the children.

  1. The collateral evidence established that the mother was the parent who was principally involved in the school and pre-school lives of the boys, not the father.  The father did not take real issue with that during the trial.

  1. The independent social worker reported that B told him when he interviewed him that if the living arrangement were to change he would choose to live with his mother the majority of the time “explaining that he was more used to his mother’s care because, “I’m used to mum she would do the bath times, bed times, cooking and the cleaning.””  Certainly, B appeared to accept that his mother was capable of doing all those things. The same social worker also reported that N exhibited observable distress around separation from his mother. The social worker opined these matters as consistent with the mother being the primary attachment figure for the children.  I accept that opinion.

  1. I am satisfied that the mother was the parent who was the principal provider of care to the three children throughout the marriage. The evidence established that after the mother was diagnosed with MS the couple were able to satisfy  Centrelink that their circumstances qualified the father to receive a Carer’s Pension in respect of caring for the mother because of her MS. There was no evidence before me as to what that required or what they told Centrelink. Those circumstances do not dissuade me from the finding I have reached in respect of the mother’s care for the children during the relationship.

  1. Also in evidence before me was a report from Professor Z, Consultant Neurologist, of the Faculty of Medicine at the University of Melbourne. As I have said earlier, the Professor is the mother’s treating neurologist. His report is dated 5 May, 2011. He reported that the mother suffered her first attack of MS in 2004 and has recurrent attacks since then but “fortunately she has not sustained a great deal of permanent disability as a result.” He reported her prognosis is really good.  He reported that when he saw the mother on 21 April, 2011, her gait and walking had “almost returned to normal.” He reported that his physical findings equate to her having a mild disability from the disease. A recent MRI scan was unchanged from a previous one, showing no new MS activity over an 18 month time span, portending for a good prognosis.  He reported that the mother’s MS does not impact upon her day to day life to a significant degree or in her abilities to care for herself or to maintain day to day care for her children.

  1. The Professor concluded by acknowledging that the disease is difficult to predict with accuracy, that there is a possibility that she may have further attacks which might lead to a worsening of her disability but that at the time of his report he could not see it evolving in the near term to a level which would impact on her ability to care for her children without assistance.

  1. I accept the evidence of the Professor.

  1. At the trial, the father’s case was presented as if he accepted that evidence too.  He gave evidence that notwithstanding that evidence, the mother used to represent to him and his family that she could not properly care for herself and the children. He effectively said that if that was not true then it was another example of her compulsive lying. I do not accept his evidence that she represented to him that she could not care for herself and the children. I find that the father knew that the mother’s capacity might be affected from time to time, as it probably was, but that for most of the time her capacity to care for herself and the children was not so impaired that she could not do it. I find that the father was misrepresenting the true position to the Court when he said that the mother could not care for herself or the children. That was yet another matter that gave rise to my determination that the father’s evidence was not all reliable.  

The Statutory Pathway and other Matters of Relevance

  1. As I have made parenting orders in this case, I was required to apply a presumption that it is in the best interests of the boys for their parents to have equal shared parental responsibility unless satisfied that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence as that term is defined in the Act.[24]   Clearly, from what I have already said, it is clear that I am satisfied that the presumption in this case was rebutted by the fact that the father has engaged in conduct that I have concluded is psychologically abusive of the children.

    [24]         S.61DA(2)

  1. I am satisfied that at least for the foreseeable future it is not in the best interests of the three children in this case for their parents to have equal shared parental responsibility. I consider that the best interests of these children, given the acute level of conflict that currently exists between the parents in this case and the level of mistrust the father has in the mother, unfounded as I have determined it to be, require parental responsibility to be vested solely in the mother, subject to her being obliged to consult with the father in writing about any decisions she is going to take in respect of any major long term issue.

  1. As I determined not to make an equal shared parental responsibility order, I was not required to consider whether an order for the children to spend equal time with each parent was in the children’s best interests and whether it was reasonably practicable for them to spend equal time with each of their parents. Similarly, I was not required to consider whether an order for the children to spend substantial and significant time with each parent was in their best interests and reasonably practicable.

  1. That left me having to determine parenting orders that I considered in the best interests of the children.

  1. I accept that the father has strong and loving relationships with the children. I accept that he has played a significant role in their early development and care. I accept that the children also have significant relationships with other members of the father’s extended family of origin. The boys will, no doubt, miss their father and his family during the time that they do not get to see or communicate with him and them, having regard to the orders I have made in this matter. I was mindful of that in making the orders and conscious of making orders that limited that time to as long as I considered in their best interests.

  1. What most influenced my decision to make the orders that I did was my view that the boys need to be protected from being exposed to the continued psychological abuse that is inflicted upon them through the father’s apparent fixation upon the notion of sexual abuse of them at the hands of the mother and her family when I am satisfied that it did not happen and that there is no unacceptable risk of sexual abuse happening in the mother’s care.

  1. As the independent social worker asserted during the trial, findings that sexual abuse as alleged by the father did not happen, bring sharply into focus the issue of the father’s capacity to support the mother’s primary caring role in the children’s lives. I considered that currently his capacity for that is indeed so limited that respite for the boys from that incapacity was necessary. I also accept the social worker’s opinion that such a finding establishes a need for supervision of the father’s time with the children whilst he is counselled around the holding of the beliefs that I have found are unsoundly based. I accept the social worker’s opinion that it would be very difficult for the three children to move backwards and forwards between the father and the mother where the father and his family have such firm, negative views against the mother and her family.

  1. Nevertheless, I considered that the relationship between the boys and their father is one that is clearly a meaningful one for them and must be maintained. The orders I made provide for them to begin seeing the father and communicating with him again from the beginning of February this year. Their time with him is to be regular and increasing in duration, though supervised, as can be appropriately facilitated, until September this year. I determined that sufficient time within which the father shall obtain the counselling that was recommended by the social worker that I accept is appropriate. From then, I have determined that a gradual increase in regular unsupervised time with the father is in the boys’ best interests. I expect the father will have, with the therapeutic assistance I ordered him to receive, by then have come to terms with the effect of my decision and findings, as well as the break-down of the marriage with the mother and will be able to move forward with appropriate child-focus.

  1. I made an order pursuant to s65L of the FLA for compliance by the parties with the provisions of these orders to be supervised, as far as practicable by a Family Consultant from this Court. By that order, I simply intend for the parties to have access to a Family Consultant to assist them deal with any issues arising in respect of compliance with the orders and for a family consultant to have some contact with them over the course of this year to offer any assistance that might be necessary in ensuring compliance is occurring.

  1. I made a miscellany of orders under the heading ‘Specific Issues’. I was satisfied that it is in the best interests of the children for all of those orders to be made. They include, importantly, orders restraining both parties from raising the sexual abuse allegations with the children or in the hearing of the children. They include provision for communication between the parents and for sharing of information in respect of the important aspects of the day to day lives of the children.

  1. I made publication orders so that persons relevant to the conduct of this case and the immediate future implementation of the orders can be shown my orders and these reasons without breach of the non-publication provisions of the FLA.

  1. I considered it appropriate to order that the mother and the father pay the independent social worker’s reasonable fees for attending the Court to give evidence and also for them to share equally the costs of the ICL in the matter. Neither the mother nor the father was in receipt of a grant of legal aid. Both were privately funding their legal representation. They have a property that is likely to be sold as part of the division of their property and resolution of the separation of their financial affairs. I considered it reasonable in the circumstances to have them share the ICL’s costs equally.

  1. The father and the other members said during the course of the trial that they would accept the Court’s finding if it was that sexual abuse of the children as alleged did not happen. It is hoped that they are indeed true to their word. Only if they are, will these three children have the opportunity to grow, having meaningful relationships with both of their parents and each parent’s extended families, into happy, healthy, well-balanced individuals.

  1. The orders set out at the commencement of this judgment are the orders I made in the matter.

I certify that the preceding two hundred and eighty one (281) are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 January, 2012 in respect of orders made on 7 December 2011.

Associate: 

Date:  6 January 2012


Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Injunction

  • Costs

  • Procedural Fairness

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Cases Citing This Decision

0

Cases Cited

6

Statutory Material Cited

2

Marsden & Winch (No. 3) [2007] FamCA 1364
Briginshaw v Briginshaw [1938] HCA 34
MRR v GR [2010] HCA 4