Dover and Dwight and Anor
[2014] FamCA 346
FAMILY COURT OF AUSTRALIA
| DOVER & DWIGHT AND ANOR | [2014] FamCA 346 |
| FAMILY LAW – CHILDREN – Best interests – with whom the children shall live and spend time – fresh proceedings initiated only months after final orders were made – both parties sought changes to the existing orders – physical and sexual abuse allegations made against the father – children primarily attached to the paternal grandmother but have meaningful relationships with the father – mother did not participate in proceedings – no unacceptable risk of harm to the children in the father’s care – children to continue living with the paternal grandmother – frequency of time spent with the father limited by geographic separation |
FAMILY LAW – CHILDREN – Parental responsibility – presumption of equal shared parental responsibility rebutted – completely fractured relationship between paternal grandmother and father – paternal grandmother to have sole parental responsibility for the children
| Evidence Act 1995 (Cth) s 140 Aldridge & Keaton (2009) FLC 93-421 Dennett & Norman [2007] FamCA 57 |
| APPLICANT: | Ms Dover |
| 1ST RESPONDENT: | Mr Dwight |
| 2ND RESPONDENT: | Ms Elwyn |
| INDEPENDENT CHILDREN’S LAWYER: | GJ Legal Solicitors |
| FILE NUMBER: | NCC | 1426 | of | 2011 |
| DATE DELIVERED: | 29 May 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Justice Austin |
| HEARING DATE: | 5, 6, 7 & 8 May 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Priestley |
| SOLICITOR FOR THE APPLICANT: | Hynes & McCormack |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr B Kelly |
| SOLICITOR FOR THE 1ST RESPONDENT: | Duncan McLean & Associates |
| COUNSEL FOR THE 2ND RESPONDENT: | No appearance |
| SOLICITOR FOR THE 2ND RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr T Bates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | GJ Legal Solicitors |
Orders
All former orders in respect of the children H Dwight, born … 2008, and R Dwight, born … 2010, (“the children”) are discharged.
The applicant paternal grandmother (“the paternal grandmother”) shall have sole parental responsibility for the children.
The children shall live with the paternal grandmother.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the first respondent father (“the father”) as follows, or as otherwise agreed:
(a)During school terms:
(i)On the third weekend of each term, from 5.00 pm Friday until 5.00 pm Sunday (or Monday if a long weekend), for which purpose the father is restrained from causing or permitting the children to be taken to a place more than 50 kilometres from the McDonalds Restaurant at Town S, NSW; and
(ii)On the seventh weekend of each term, from 5.00 pm Friday until 5.00 pm Sunday (or Monday if a long weekend), for which purpose the father is restrained from causing or permitting the children to be taken to a place more than 50 kilometres from the McDonalds Restaurant at Town B, NSW.
(b)During the Autumn, Winter, and Spring school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year; and
(c)During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
For the purposes of implementing Orders 4(b) and 4(c) hereof, the school holidays are deemed to commence at 9.00 am on the first day following the last day of school term, the holidays are deemed to end at 5.00 pm on the last day preceding the day upon which school resumes, and the mid point is 1.00 pm on the day halfway between those first and last days.
Unless otherwise agreed, for the purposes of implementing the time spent by the child with the father:
(a)Pursuant to Order 4(a)(i) hereof, the paternal grandmother and father (or their nominees) shall exchange the children at the McDonalds Restaurant at Town S, NSW;
(b)Pursuant to Order 4(a)(ii) hereof, the paternal grandmother and father (or their nominees) shall exchange the children at the McDonalds Restaurant at Town B, NSW; and
(c)Pursuant to Orders 4(b) and 4(c) hereof, the paternal grandmother and father (or their nominees) shall exchange the children at the X Hotel Motel, Town X, NSW.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure the children communicate privately by telephone with:
(a)The father each Wednesday at 6.00 pm when the children are living with the paternal grandmother, and for that purpose the father shall telephone the children on the telephone number provided to him by the paternal grandmother, and the paternal grandmother shall ensure that the children are able to receive the father’s calls on that number at that time;
(b)The paternal grandmother each Wednesday at 6.00 pm when the children are spending time with the father, and for that purpose the paternal grandmother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the paternal grandmother’s calls on that number at that time; and
(c)The party with whom they are not then staying, on the children’s birthdays at 6.00 pm, and for that purpose the party with whom the children are not staying shall telephone the children on the telephone number provided by the other party for that purpose, and the party with whom the children are staying shall ensure that the children are able to receive the other party’s calls on that number at that time.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the others in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the others.
The paternal grandmother shall authorise and request the principal of any pre-school or school attended by the children to provide to the father and the mother, at their individual expense, copies of all reports and photograph order forms relating to the children.
Leave is granted to the parties to furnish a sealed copy of these orders to the principal of any pre-school or school attended by the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
In the event of any party notifying either the police or a prescribed child welfare authority that either child has been or is the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
(a)A copy of these orders; and
(b) A copy of these reasons for judgment.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dover & and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1426 of 2011
| Ms Dover |
Applicant
And
| Mr Dwight |
First Respondent
And
| Ms Elwyn |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
In March 2013 final parenting orders were made between the parties in respect of the two children who are the subject of these proceedings. Regrettably, the parties again fell into dispute less than a month afterwards and these fresh proceedings were then commenced in June 2013.
The litigation was only contested between the applicant (“the paternal grandmother”) and the first respondent (“the father”). The second respondent (“the mother”) effectively withdrew from the children’s lives long ago.
The paternal grandmother and father both wanted the children to live with them and they each wanted to have sole parental responsibility for the children. They each sought to restrict the time spent by the children with the other.
Since the paternal grandmother and father both contended the evidence warranted changes to the existing orders, no threshold inquiry was held to determine the existence of changed circumstances. The matter instead proceeded to final hearing so as to enable comprehensive evaluation of the evidence (see Rice v Asplund (1979) FLC 90-725 at 78,905; SPS v PLS (2008) FLC 93-363 at [1]; Miller v Harrington (2008) FLC 93-383 at [80]-[83]; Marsden v Winch (2009) 42 Fam LR 1 at [46]-[48]; Langmeil & Grange [2013] FamCAFC 31 at [43]-[48]).
Short history
The Court made final parenting orders in respect of the two children, who are now aged five and three years respectively, in March 2013.
The orders provided for the children to live with the paternal grandmother, in circumstances where they had lived with her since November 2010. Some aspects of parental responsibility were vested solely in the paternal grandmother and the residual parental responsibility was shared by the paternal grandmother and father.
Whether the children spent time or communicated with the mother was left to the discretion of the paternal grandmother.
Provision was made for the children to spend time with the father during school holidays and on two weekends each school term, which regime was commensurate with the considerable distance between the households of the father and paternal grandmother.
The children spent time with the father pursuant to those orders only once before the regime broke down.
The children visited the father for one week during the school holidays in April 2013. Upon their return, the paternal grandmother alleged the children made disclosures of both their physical and sexual abuse by the father. In reliance upon those disclosures, the paternal grandmother suspended her compliance with the orders and made reports of the alleged abuse to the NSW Department of Family and Community Services (“the Department”).
The allegations of abuse were not substantiated by the Department, but the paternal grandmother did not relinquish her belief in the truth of the allegations against the father. She steadfastly refused to resume compliance with the parenting orders and filed an Application to commence these proceedings in June 2013.
Interim parenting orders were made with the consent of the paternal grandmother and father on 23 August 2013 providing for the children to spend every sixth weekend with the father under the supervision of the paternal grandfather. Those orders were successfully implemented until the proceedings reached final trial in May 2014.
Absence of mother
The mother did not participate in the last hearing between the parties which resulted in the final parenting orders made on 19 March 2013.
She did not participate in these proceedings either. She did not attend any interim Court events, did not file any documents, did not attend upon the Family Consultant, and did not attend the final hearing in May 2014.
The Court previously ordered that the mother be served with the process issued in the proceedings.[1] The paternal grandmother complied with that order. Her solicitor confirmed the mother’s knowledge of the proceedings and her receipt of relevant documents. The mother sent back to him an Acknowledgement of Service.[2]
[1] Order 3 made on 23 August 2013
[2] Affidavit of Mr McCormack
The mother’s failure to participate in the proceedings about the children was therefore a voluntary choice. She was not denied procedural fairness. It was proper for the final hearing to proceed in her absence.
Proposal of paternal grandmother
The paternal grandmother started the hearing pressing for the orders set out in her Initiating Application filed on 17 June 2013, but finished the hearing with a completely different proposal.
She acknowledged the Court may not find on the evidence that the children were at unacceptable risk of either sexual or physical abuse in the father’s care. In that event, while she still sought the residence of the children, she proposed the children should spend unsupervised time with the father. In such circumstances she adopted in almost all respects the Independent Children’s Lawyer’s proposal.
Proposal of father
The father maintained his application for the orders set out in his Response filed on 4 July 2013.
His proposal was simply that he have sole parental responsibility for the children, that the children live with him, and that the children spend time with the paternal grandmother at times agreed between them.
The proposed order regulating the children’s interaction with the paternal grandmother was futile, since the father and paternal grandmother have rarely been able to agree on anything.
Proposal of independent children’s lawyer
At the close of the evidence the Independent Children’s Lawyer tendered a minute of the orders she proposed,[3] which orders were revised and amended during final submissions.
[3] Exhibit ICL6
She proposed that the children live with the paternal grandmother.
She initially proposed that the paternal grandmother have sole parental responsibility for the children in relation to matters of education and health, but that the paternal grandmother and father otherwise have equal shared parental responsibility for the children. Although such orders were consistent with the final orders previously made by the Federal Magistrates Court (as the Federal Circuit Court then was) in March 2013, she accepted orders to that effect were contrary to law because, by definition, “equal shared parental responsibility” cannot be anything other than equal in all respects (see Pavli v Beffa (2013) 48 Fam LR 677). She therefore instead proposed that the paternal grandmother have sole parental responsibility for the children.
The Independent Children’s Lawyer proposed that the children spend unsupervised time with the father as frequently and for as long as the distance between the parties’ homes reasonably allowed. In general terms, that amounts to visits on two weekends each school term and for half of school holidays, which reflects the orders previously made in March 2013.
The evidence
The paternal grandmother relied upon:
(a)Her affidavit filed on 11 April 2014;
(b)The affidavit of her friend and work colleague, Ms W, filed on 11 April 2014; and
(c)The affidavit of her solicitor, Mr Peter McCormack, filed on 2 September 2013.
Leave was granted to the paternal grandmother to adduce oral evidence from Ms G. Leave was formerly granted to file and serve an affidavit of that witness,[4] but Ms G did not co-operate in the preparation or filing of an affidavit.
[4] Order 8(c) made on 13 December 2013
The father relied upon:
(a)His affidavit filed on 4 April 2014;
(b)The affidavit of his former partner, Ms Y, filed on 4 April 2014; and
(c)The affidavit of the paternal grandfather, Mr D, filed on 4 April 2014.
Leave was also granted to the father to adduce evidence from his current partner, Ms E, with whom he has been in a relationship since January 2014. Ultimately, she did not give any evidence. She was not called to give evidence in chief and she was not required for cross-examination.
The parties and the Independent Children’s Lawyer also relied upon:
(a)The updated Magellan Report, dated 13 December 2013, furnished to the Court by the Department; and
(b)The Family Report, dated 18 November 2013, prepared by the Family Consultant.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of children – primary considerations
Section 60CC(2)(a)
It was uncontroversial that the children have had no contact with the mother for a long while, either by spending time in her company or by communicating with her. They last spent time with her on two short occasions in early 2013, which visits were many months after they had last seen her before that. Apart from occasional exceptions, the mother has not been part of the children’s lives since they moved to live with the paternal grandmother in late 2010. Although the children may retain pleasurable memories of the mother and their relationships with her may remain meaningful to that extent, it must follow that the children currently derive little, if any, benefit from those relationships.
If the mother could not muster the enthusiasm or interest to participate in either these or the former parenting proceedings it is highly unlikely she will take any greater interest in the children’s lives in the future. The Family Consultant’s conclusion to that effect is well founded.[5] The orders need not make specific provision in respect of future interaction between the children and the mother.
[5] Family Report, para 83
In light of the evidence adduced, there was inferentially some disparity between the parties’ views about the nature of the children’s relationships with the father. While the father contended he had a meaningful relationship with both children from which they each derived, and should continue to derive, substantial benefit, the paternal grandmother seemed circumspect.
The paternal grandmother deposed to her “wish [for] the children to have a meaningful relationship” with the father,[6] but she curiously did not depose to her belief in the children’s current enjoyment of meaningful relationships with the father. The paternal grandmother adduced evidence of the children’s anxiety about, and resistance to, their visits with the father, from which it could be reasonably implied she did not believe the children derive benefit from such relationships. It was left to her counsel to expressly concede for her that the children do indeed have meaningful relationships with the father. That concession is correct for several objective reasons.
[6] Paternal grandmother’s affidavit, para 32
It was uncontroversial the children spent unsupervised time with the father reasonably regularly after they moved to live with the paternal grandmother in November 2010. The frequency of their visits to the father was apparently influenced more by the geographical distance between the households of the paternal grandmother and father than by any other factor. The paternal grandmother was content with the final parenting orders made in March 2013,[7] which provided for the children to spend unsupervised time with the father on some weekends during each school term and for periods of every school holidays. She conceded the orders really only replicated the parenting regime already then in existence and were largely in accordance with her proposal. Logically, that would not have been her proposal if she then genuinely believed the children did not have meaningful relationships with the father.
[7] Paternal grandmother’s affidavit, para 65; Family Report, para 7
The Family Consultant’s evidence was also significant. The eldest child described both households in positive terms to the Family Consultant and did not identify anything she did not like about, or that upset or worried her in, the father’s household.[8] The youngest child told the Family Consultant she liked spending time with the father.[9] In the presence of the Family Consultant, the children greeted the father with differential levels of excitement, but they were uniformly relaxed and content in his company.[10] Nothing about the comments or demeanour of either child alerted the Family Consultant to any sense of anxiety that either of them felt about or towards the father.[11]
[8] Family Report, para 71
[9] Family Report, para 77
[10] Family Report, para 78
[11] Family Report, para 85
The weight of the evidence dictates a conclusion that both children enjoy meaningful relationships with the father from which they derive substantial benefit. The orders must therefore ensure that, provided any risks to their physical and psychological safety are eradicated or satisfactorily attenuated, the children’s continuing derivation of benefit from their relationships with the father is not thwarted.
The nature of the children’s relationships with the paternal grandmother is not a primary consideration influencing conclusions about the children’s best interests within the ambit of s 60CC(2)(b) of the Act. That is because the paternal grandmother is not a “parent” of either child. The nature of her relationships with the children is instead an additional consideration under s 60CC(3) of the Act. Nonetheless, it is an important consideration, since she has been their primary carer for more than the last three years. Despite the reticence of the father to admit it, I accept the Family Consultant’s evidence that both children are primarily attached to the paternal grandmother.
Section 60CC(2)(b)
Prior to the commencement of the final hearing, the paternal grandmother expressly eschewed any positive assertion that the father had sexually abused either child in the past. She disavowed any intention to solicit such a finding from the Court as she acknowledged the evidence “quite clearly” would not support it. However, she did envisage the evidence was capable of proving, on the balance of probabilities, the father’s physical abuse of the children.
At the very least, the paternal grandmother set out to demonstrate that the children remained at unacceptable risk of both sexual and physical abuse by the father (see M v M (1988) 166 CLR 69). The evidence pertaining to those two alleged risks was inextricably mixed, so there is little alternative but to deal with the evidence and the issues collectively.
Following the children’s return to the paternal grandmother from a week’s visit with the father in April 2013, both children reported that the father had “smacked” the youngest child.[12]
[12] Paternal grandmother’s affidavit, paras 50-55, 62, 86
The youngest child had bruises and abrasions on her body, but the father told the paternal grandmother at the changeover the youngest child’s minor injuries were due to two accidents – one involving her fall after jumping from a parked car and the other from falling on or from a trampoline. Significantly, neither child said any of the youngest child’s injuries were caused by being smacked, but that is what the paternal grandmother presumed.
Coincidentally, the youngest child was due to attend a paediatrician’s appointment two days later on 22 April 2013. The paediatrician examined the youngest child and subsequently reported:[13]
There were no features of the bruises that are pathognomonic of inflicted injury, but many of the bruises were over soft tissues, which occur relatively uncommonly in accidental injury.
[13] Paternal grandmother’s affidavit, paras 56-57, Annexure D (page 107)
It appears as though the paediatrician was not told of the youngest child’s alleged accident on the trampoline, because the doctor only mentioned in his report the child’s fall after jumping from the car.
In any event, it seems clear enough the paediatrician did not conclude the child had been physically abused. Rather, he only countenanced that as a possibility and so he reported the matter to the Department.[14]
[14] Paternal grandmother’s affidavit, Annexure D (page 107); Magellan Report, page 4
The paternal grandmother admitted that, in her view, all but two bruises on the youngest child’s body were consistent with the father’s explanation of the child’s involvement in the two accidents described. She exempted the bruise on the child’s cheek and the bruising on the back of the child’s legs from that admission, which bruising she believed was caused by the father smacking the child on those parts of her body.
The mere fact the father and Ms Y admitted to occasionally smacking the children does not mean such discipline caused any of the youngest child’s bruising. There is no evidence that it did. That causal connection was the subject of only the paternal grandmother’s suspicion and conjecture.
The father calmly and credibly denied in cross-examination causing the bruises to the youngest child’s body by smacking her. The father presented as relatively guileless, so his open and measured rejection of the abuse allegations seemed quite genuine. All of the youngest child’s bruises and abrasions were consistent with the misadventure of the two accidents described by the father. The asserted discrepancies between the evidence given by the father and Ms Y on the topic were quite inconsequential.
On 23 April 2013 the youngest child complained to the paternal grandmother that Ms Y had intentionally held her head under the water whilst she was in the bath, which complaint she and the eldest child later repeated.[15] That allegation was reported by the paternal grandmother to the Department on 24 April 2013.[16]
[15] Paternal grandmother’s affidavit, paras 59, 61-62; Family Report, para 16
[16] Magellan Report, page 4; Exhibit F2 (page 6); Family Report, para 13
Ms Y flatly denied treating the youngest child in that manner and it seems quite clear the paternal grandmother does not believe the children’s complaints about such misconduct by Ms Y. The paternal grandmother gave evidence, both in her affidavit[17] and during cross-examination, that she was content for Ms Y to have the children for visits “any time she wants”. It is trite to observe that the paternal grandmother would not be willing to allow the children to spend unsupervised time in the care of Ms Y at any time desired by Ms Y if she genuinely believed Ms Y had cruelly mistreated the youngest child in the bath in the manner alleged. Curiously, the paternal grandmother offered no explanation for why she would disbelieve those allegations made by the children, but believe other allegations they made against the father.
[17] Paternal grandmother’s affidavit, para 106
About a week later, on 29 April 2013, the eldest child reported to the paternal grandmother that the father had painfully inserted his finger into her anus causing her anus to bleed. She alleged the father did the same thing to the youngest child.[18] The eldest child later repeated that allegation to the mother’s friend, Ms W,[19] and to her pre-school co-ordinator, Ms G,[20] over ensuing weeks.
[18] Paternal grandmother’s affidavit, paras 61, 83
[19] Affidavit of Ms W, para 7; Family Report, paras 28-29
[20] Exhibit PGM1; Paternal grandmother’s affidavit, para 68
There are, however, several aspects of the evidence that invite, if not demand, an inference of unreliability about the allegation of sexual abuse.
Firstly, when the eldest child made the allegation to the paternal grandmother, the youngest child apparently denied it had happened to her, even though the eldest child alleged it did. The paternal grandmother recorded in her diary that the youngest child immediately responded to the eldest child’s allegation by saying “not me”.[21] For reasons which remain unexplained, that important piece of evidence was omitted from the paternal grandmother’s affidavit. It is clearly important because it tends to suggest the youngest child was expressly denying the truth of the allegation made by the eldest child in her presence.
[21] Exhibit F5
Secondly, the paternal grandmother’s report to the Department of the eldest child’s complaint of sexual abuse was recorded differently in the Department’s file. The Department recorded the report made to it included allegations of penetration of the eldest child’s vagina,[22] but the paternal grandmother was adamant the eldest child made no complaint to her about her vagina being penetrated – only the penetration of her anus. Disturbingly, there is no explanation for the discrepancy.
[22] Magellan Report, page 4; Exhibit F2 (page 3); Exhibit F4 (page 3)
Thirdly, shortly following the paternal grandmother’s report of that allegation to the Department, the eldest child was interviewed by officers of the NSW Joint Investigation Response Team (“JIRT”) on 2 May 2013. The eldest child made no disclosures in her interview which in any way implicated the father in impropriety, despite being asked direct questions about it.[23] The paternal grandmother said in cross-examination she was relieved and was then satisfied “nothing had probably happened”.
[23] Magellan Report, page 5; Family Report, para 21; Exhibit PGM5
If that truly was her attitude, it soon changed. Until then it was perfectly reasonable for the paternal grandmother to have the children’s allegations of abuse properly investigated, but from that point her conduct was not so reasonable. She belatedly refused to allow the children to spend time with the father on the weekend of 17 May 2013.[24] She said she made that decision following her receipt of supplementary legal advice.[25] She said her fear of the children’s abuse, based on her “gut instinct”, could not be suppressed.
[24] Family Report, para 23
[25] Paternal grandmother’s affidavit, para 114
The paternal grandmother’s nagging doubts caused her to interrogate the eldest child some days later on 24 May 2013, even though the children by then had had no personal or verbal contact with the father for over a month. Officers of the Department interviewed both children only days before on 21 May 2013. The officers also visited the father’s home and spoke with him on 22 May 2013, following which the Department assessed the children were safe within the father’s home.[26] The paternal grandmother apparently knew that when she interrogated the eldest child on 24 May 2013.
[26] Magellan Report, page 5
The paternal grandmother commenced the conversation with the question “can you tell me what you were doing at daddy’s house?”. The eldest child then immediately launched into an explanation about sitting on the floor with the father when he penetrated her anus with his finger, causing her anus to bleed and the blood to be deposited onto her underwear. Her story enlarged to include Ms Y entering the room, berating the father, and then washing the blood from her underwear.[27] There are several aspects of that story which suggest its fabrication by the eldest child.
[27] Exhibit F1
Firstly, it was initiated by a loaded question from the paternal grandmother. Even if the question was not deliberately intended in invoke a disclosure, it was the paternal grandmother’s intention to investigate more thoroughly because she believed JIRT wrongly disbelieved the child’s allegations.[28] She reported to the eldest child’s counsellor her concern that the child had not reported sexual abuse to anyone other than her.[29]
[28] Family Report, paras 27, 41
[29] Family Report, para 26; Exhibit ICL4
Secondly, the eldest child alleged the incident occurred while she and the father were sitting on the floor. However, when the allegation was first reported to the Department a month before, it was then reported the eldest child alleged the incident had occurred “in [Ms [Y’s]] bed”.[30]
[30] Exhibit F2 (page 3); Exhibit F4 (page 3)
Thirdly, it was the first time the eldest child reported that the blood from her anus was deposited onto her underwear. That had never previously been part of the story.
Fourthly, it was the first time the eldest child had reported Ms Y was complicit in the abuse by witnessing the event, castigating the father for it, and covering for the father by laundering her underwear. Ms Y gave emphatic and credible evidence refuting the child’s story. I accept she did not witness the child’s sexual abuse by the father, she did not berate the father, and she did not wash blood from the child’s underwear to protect the father. Even the paternal grandmother admitted that she did not believe Ms Y was an eye witness to the father’s sexual abuse of the eldest child.
Clearly, the child’s story on that occasion amounted to a gross embellishment of the original core allegation of digital penetration of her anus.
The eldest child’s report of such sexual abuse to Ms W occurred only days afterwards on 29 May 2013. The eldest child was primed to discuss the matter with Ms W that night because, before Ms W’s arrival, the eldest child told the paternal great grandmother “I want [Ms [W]] to ring daddy and tell him that I don’t want to go over there any more because he put his finger in my bum”.[31] While there is little doubt the eldest child later that evening reported to Ms W the father’s alleged digital penetration of her anus, that story had obviously been at the forefront of her mind over preceding days.
[31] Exhibit F6 (page 3)
Ms W’s fresh report of the allegation to the Department resulted in the eldest child again being interviewed by JIRT the following day, being 30 May 2013. Again, the child made no disclosure that implicated the father in any misconduct, despite “specific questions” being posed to her.[32]
[32] Magellan Report, page 5; Family Report, para 30; Exhibit F9
However, later that same day, the eldest child repeated the allegation of her sexual abuse to her pre-school co-ordinator.[33] Notably, that disclosure followed the pre-school co-ordinator asking the child if she “wanted [her] to pass on any messages to [the JIRT officers] about what [she] and [Ms [W]] spoke about”.[34] In response to that question the child would likely have remembered what she had discussed with Ms W the night before and the JIRT officers only hours before. It was an express invitation, even if not intended, for the child to repeat the allegation she had made to the paternal grandmother and Ms W in preceding days.
[33] Family Report, paras 31-32
[34] Exhibit PGM1
When questioned by the Family Consultant in October 2013, as was the case with JIRT officers on two prior occasions, the eldest child denied being hurt or smacked by anyone. She also said the youngest child was never smacked.[35]
[35] Family Report, para 74
There is no doubt the eldest child made allegations of sexual abuse against the father to the paternal grandmother, Ms W, and Ms G, and furthermore, that both children made allegations of physical abuse against the father to the paternal grandmother over the period of about a month. Equally, there is no doubt the children did not make any allegation of either physical or sexual abuse when interviewed independently by trained officers of the Department and JIRT on numerous occasions during the same space of time.
Those uncontroversial facts raise two questions – firstly, why would the children make the allegations of abuse to some people but not others, and secondly, why would the allegations be made if they were untrue. Both questions are capable of rational and benign answers.
The paternal grandmother thought the inconsistency between the children’s positive allegations of abuse to some adults and their failure to make any allegations to others was explained by the children only feeling comfortable enough to report truthful allegations to persons with whom they are familiar.[36] She therefore believed the allegations made to her, Ms W, and Ms G are more probably reliable than the children’s failure to repeat any allegations to the Family Consultant or officers of the Department or JIRT. However, the paternal grandmother’s honest belief in that explanation does not necessarily mean it is a correct explanation.
[36] Family Report, para 52
It is abundantly clear that the children were repetitively questioned about the issue of abuse in the period between April and May 2013. They must have known it was an issue of some significance within the paternal grandmother’s household and within her sphere of influence. They also must have known the paternal grandmother and any other adults associated with her were anxious about their interaction with the father. It would be unsurprising for the children to be attuned to the anxiety of their primary attachment figure.
The paternal grandmother made a number of significant concessions during her cross-examination of relevance to that issue, which included:
(a)Her admission that she is probably hyper-vigilant about the prospect of the children’s abuse by the father;
(b)Her admission that, even though she said nothing directly about it to the children, it was possible her demeanour had signalled to them her concern or anxiety about their safety in the father’s care;
(c)Her admission that “kids are really intuitive and they pick up on what might be happening”; and
(d)Her agreement with the opinion held by the eldest child’s psychologist that the eldest child was “sensitive, smart, and picks up on things”.[37]
[37] Exhibit ICL3
In that context, the Family Consultant gave persuasive evidence that explained why the children’s reports of abuse to the paternal grandmother, Ms W, and Ms G may well be false. He explained that children make untruthful statements for many different reasons. They may merely be engaging in “innocent story telling”; they might be being deliberately manipulative to cause trouble, receive a benefit, or to please someone they perceive wishes to hear that story; or they may simply be reciting a story they have been induced, either intentionally or accidentally, to believe.
The Family Consultant said that, given the circumstances evident in these proceedings, he considered it likely the eldest child made statements about her sexual abuse because she perceived the persons to whom she made such reports wanted to hear reports that implicated the father in misbehaviour. Even though the paternal grandmother was resistant to such an explanation, I accept the Family Consultant’s evidence as probably correct. The paternal grandmother admitted to the Department that “she talks with the children a lot about their private bits and how there is good touching and bad touching”.[38] It is therefore a topic of repetitive conversation with the children.
[38] Exhibit F4 (page 4)
It is relatively easy to see why the children would be willing to report misconduct by the father to the paternal grandmother and her associates. Prior to the last orders being made in March 2013, the paternal grandmother regularly took the children to a doctor to have their bodies examined for injuries both before and after their visits to the father. The paternal grandmother gave inconsistent evidence about whether she harboured concerns regarding the children’s welfare whilst with the father leading up to the orders being made in March 2013.
In the past, the children have been acutely stressed. The eldest child was referred to a paediatrician over two years ago because the paternal grandmother believed she was “getting mentally disturbed (regressive)” at times proximate to her visits with the father. Her regression even manifested itself in “urinary and faecal incontinence”.[39] It is almost impossible to exaggerate the seriousness of a predicament in which a toilet-trained child such as the eldest child regresses by either voluntarily or involuntarily losing control of her bowel and bladder. In the absence of any satisfactory physiological reason, the only explanation could be severe and unremitting anxiety. The paternal grandmother suggested such behaviour continued largely unabated throughout 2012 and 2013, despite intervention by the paediatrician.[40] She explained the eldest child also sucked her thumb, chewed clothes, hid under the bed, and became highly distressed. The eldest child’s stress has also manifested itself in her “meltdowns” at school.[41] The paternal grandmother also described the youngest child being “very anxious” and being “very clingy”.[42] The children are alive to the prospect of danger in the father’s care, since they talk about it with, and in the presence of, the paternal grandmother.[43]
[39] Paternal grandmother’s affidavit, Annexure B (page 93)
[40] Paternal grandmother’s affidavit, paras 84, 85
[41] Paternal grandmother’s affidavit, para 87, Annexure H
[42] Paternal grandmother’s affidavit, paras 86, 92, 99
[43] Paternal grandmother’s affidavit, paras 88-90, Annexures I and J
It is impossible to ignore that the children have continued to suffer from those symptoms over a long period, even when in the father’s care.[44] The paternal grandmother believed the symptoms were attributable to the children’s worry about passing into the care of the father, but they might just as readily be attributable to her own conduct. The children may be stressed about her adverse reaction to their visits with the father and it may be that she does not have sufficient capacity to calm the children and provide them with emotional succour.
[44] Father’s affidavit, para 168
Ultimately, the evidence does not recommend any particular inference more strongly than any other. The children’s stress may be caused principally by the paternal grandmother, principally by the father, or by both of them. Regardless, the children are seriously stressed and it behoves both parties to review their behaviour and attitudes in a concerted effort to relieve the children of such stress. If they do not, there is little doubt the children will suffer serious psychological damage.
In any event, in the knowledge of the conflicted relationship between the paternal grandmother and the father, it is little wonder the children are prone to report stories of the father’s misconduct to the paternal grandmother. They probably perceive the paternal grandmother is interested to hear such reports and it may be a method by which they demonstrate loyalty to the paternal grandmother. The eldest child whispered to the father in a telephone conversation that she loved him, presumably also to demonstrate her loyalty to him.[45] The only reason she would have whispered is for fear the paternal grandmother might have over-heard and admonished her. Even if the paternal grandmother would not have done so, the child’s perception of that repercussion is illuminating.
[45] Father’s affidavit, paras 105-109
The children’s reports about the father’s abuse of them are objectively unreliable because aspects of the reports were demonstrably false. In addition, the father consistently and credibly denied any abuse of the children. His denials were made to the Family Consultant,[46] in his affidavit,[47] and during cross-examination.
[46] Family Report, para 82
[47] Father’s affidavit, paras 65-66
During her cross-examination the paternal grandmother made several significant concessions: her belief that the father’s alleged sexual abuse of the children was only “possibly” true, not “probably” or “certainly” true; her willingness to accept that the father’s alleged sexual abuse of the children may not have happened at all; and her willingness to accept an assessment by the Court that the children are not at unacceptable risk of harm with the father.
The paternal grandmother conceded through her counsel that “huge doubt” fell over the sexual abuse allegations and, in final submissions, the paternal grandmother desisted from expressly inviting the Court to make a finding about the existence of unacceptable risk of sexual abuse.
Rather, the paternal grandmother only ultimately pressed in final submissions for findings about the father’s past and prospective physical abuse of the children. However, such a position did not correlate easily with her evidence, which really only evinced her worry about sexual abuse. When she was asked directly about the nature of the risk she perceived for the children in the father’s household she confined her answer to the risk of only sexual abuse. At a later point in her cross-examination the paternal grandmother said “it’s about sexual abuse. I only brought this case because of the disclosure [the eldest child] made”.
Her answers were therefore consistent with the orders proposed in her Case Outline filed on 1 May 2014, in which she proposed supervision of the children with the father until they are aged 12 years. Inferentially, she considered by that age the children would be able to resist any sexual advances by the father. They would be unable to resist the father’s physical assaults at any age, so capping the age at which they should be supervised would not abate that type of risk.
The paternal grandmother’s concerns about either sexual or physical abuse of the children by the father are not vindicated. Having regard to the binding authorities (see M v M (1988) 166 CLR 69; Napier & Hepburn (2006) FLC 93-303; Potter & Potter (2007) FLC 93-326; Johnson v Page (2007) FLC 93-344) and the burden of proof which governs evidence touching upon allegations of serious misconduct (s 140 Evidence Act (Cth)), the evidence does not support any finding that the father probably perpetrated either sexual or physical abuse upon either child. Nor does the evidence support any finding that the father poses an unacceptable risk of physical or psychological harm to either child through his subjection of them to either sexual or physical abuse. Such conclusions correlate with the submissions made by the father and Independent Children’s Lawyer.
Best interests of children – additional considerations
Given the paternal grandmother’s motivation for the commencement of these proceedings was really only her concern about the prospect of the children’s subjection to abuse by the father, she had very little of relevance to say about the factors prescribed by s 60CC(3) of the Act. She was reasonably satisfied with the father’s parenting capacity, for otherwise she would not have been content with the orders previously made in March 2013 providing for the children to spend periods of unsupervised time in his care.
The paternal grandmother’s concerns about the children, within the realms of s 60CC(3) of the Act, related only to the father’s capacity to provide the primary residential care for the children, as opposed to only their care during occasional visits on weekends and during school holidays.
There is no doubt the father is largely untested as a primary caregiver. He and the mother relinquished the children to the care of the paternal grandmother in late 2010. Even though he envisaged that would only be for temporary respite, the children never returned to his primary care. Before 2010 his parenting capacity was gravely diminished by his illicit drug use. That remained the case after he began his relationship with Ms Y, but even when he later abstained from illicit drug use and was not intoxicated, she took principal responsibility for the care of their two children. He was only able to assist her when he was not working.
The father has undoubtedly improved his parenting capacity in the last two years. The paternal grandmother admitted he was now abstinent from illicit drug use. He undertook a parenting course and accepted advice from the Department not to administer corporal punishment to children. He is in regular employment and has reliable accommodation, both of which are furnished to him by the paternal grandfather. Ms Y also now relies upon him to help with the parenting load in respect of their two children. Nevertheless, despite the father’s optimistic belief,[48] his only likely assistance with primary care of the children would come from the paternal grandfather (who apparently also works full-time), Ms Y (who has her own four children to care for), and his current partner (who did not give evidence).
[48] Father’s affidavit, para 211
Despite many gains, the father’s rehabilitation is not complete. The father acknowledged he had difficulty managing his anger in the past. It was a problem in his relationships with both the mother and Ms Y. He sought out counselling in 2013, but the counselling ceased after only a few visits in September 2013.[49] He admitted to the counsellor he was experiencing difficulty coping. Although Ms Y said he had made progress, as she has noticed “a really big change in him”, the father conceded his counselling had terminated too soon. He knows he needs more counselling and, even though he had already scheduled another appointment, he admitted he should have resumed the counselling more promptly.
[49] Exhibit ICL2
Although the Family Consultant referred to the possibility of the father suffering from some undefined psychiatric condition or personality disorder, I pay that evidence little heed. The Family Consultant did not offer a diagnosis and professed no qualification to offer an expert opinion on the matter. He conceded “very little is known about [the father’s] current psychological functioning”.[50] It is enough to recognise the father’s past inability to control his temper, which problem is apparently not yet entirely under control.
[50] Family Report, para 88
The father candidly admitted that his application for the children to live with him may be premature. Although such an admission was ostensibly against his interests, paradoxically, it demonstrated a level of insight he has not previously shown and in that respect bolstered his case.
Unfortunately, his level of insight is not uniformly developed. The father has never contributed to the cost of maintaining the children while they have been in the paternal grandmother’s primary care and he belligerently said he never would. That attitude shows that his disdain for the paternal grandmother outflanks his concern for the children, because he chooses not to pay child support despite his financial capacity to make some contribution. He happily pays child support to Ms Y for the maintenance of their two children.
The disadvantage in reversing the children’s residence is the enormous emotional wrench they will experience by being removed from the care of their primary attachment figure in the paternal grandmother. The difficulty of that transition would be accentuated if the father is not up to the task of their full-time care. The Family Consultant said the transition would be “very difficult”. Significantly, he did not necessarily recommend the father as an alternate carer to the paternal grandmother, even though he realised the Court’s choice of residence for the children was only one of two.
Despite the legislative exhortation about the importance of “parents” in a child’s life (s 60B), the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Valentine & Lacerra (2013) 49 Fam LR 255 at [42]-[43]; Aldridge & Keaton (2009) FLC 93-421 at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53]-[60]).
Of course, it is not always the case that a child derives benefit from a relationship with a primary attachment figure. Sometimes circumstances warrant a child’s removal from the care of a primary attachment figure. The disadvantage for the children remaining in the paternal grandmother’s care is their potential inculcation with a false belief that they have been abused, either sexually or physically, by the father. Ultimately that would impinge upon their relationships with him and cause them psychological harm. As the Family Consultant said, their false belief in their past abuse would be just as harmful to them as their actual sufferance of such abuse.
During cross-examination, in relation to her willingness to accept the veracity of the Court’s finding about the absence of any unacceptable risk to the children’s safety in the father’s care, the paternal grandmother plainly said “I will go with what the Court says”. If her evidence was honest then the worry about the children’s development of a false belief in their past abuse abates because she will accept the Court’s decision and get on with life. I am not inclined to find the paternal grandmother’s evidence in that respect was false, although of course it remains a possibility.
Concern was expressed by the father about the paternal grandmother either deliberately or inadvertently alienating the children from him, but the evidence did not bear out that concern. There were several examples of the paternal grandmother acting to preserve the links between the children and the father. For example: she and the children relocated from Town M to Town B for the express purpose of being closer to the father when he and Ms Y elected to relocate from Town M to the Gold Coast; she helped the children send loving text messages and photographs to the father in June 2013, even when the dispute over the abuse allegations was at its most fierce;[51] she provided the father with a package of photographs of the children to mark Father’s Day in 2013; she proposed mediation to the father in December 2013 in the hope of averting this litigation;[52] and she accommodated the father’s request to change the children’s visiting arrangements on at least one past occasion.
[51] Exhibit PGM3
[52] Exhibit PGM4
I accept both parties identify themselves and the children as Indigenous Australians. The Family Consultant was mistaken about the father’s failure to identify as Aboriginal,[53] for which he apologised to the father. The paternal grandmother began the trial contending that the issue of Aboriginality was “not an issue in this case”.[54] I reject any opportunistic attempt to belatedly elevate it to an issue of prominence. It is an issue, because it is designated as such by the Act (s 60CC(3)(h)), but not an influential issue, since I accept the children will enjoy their Aboriginal culture in both households.
[53] Family Report, para 54
[54] Applicant’s Case Outline filed 1/5/14, page 12
The expressed views of the children are of no moment. They are too young and immature for their views to carry any weight. In any event, as the High Court recognised, children’s views are invariably vulnerable to the influence of adults who have control of them (RCB v Forrest & Ors (2012) 247 CLR 304 at [52]). In this instance it would be unsurprising for the children to offer views that are consistent with the paternal grandmother’s case.
Conclusions and orders
The paternal grandmother does not have any parental responsibility for the children at law (s 61C). Her current parental responsibility for the children only arises through orders made in March 2013,[55] which orders were not discharged or suspended by the interim orders made in August 2013. However, since fresh parenting orders are now sought, the Court is obliged to apply the presumption of equal shared parental responsibility, which presumption only applies in respect of the children’s parents (s 61DA(1)).
[55] Orders 2-3 made on 19 March 2013
Although the parties and Independent Children’s Lawyer uniformly proposed the allocation of sole parental responsibility to one party or the other, none of them addressed either the inapplicability (s 61DA(2)) or rebuttal (s 61DA(4)) of the presumption of equal shared parental responsibility.
For reasons already discussed, there are no reasonable grounds to believe the father engaged in abuse of the children, or the abuse of any other relevant child (s 61DA(2)(a)).
Throughout the hearing it was frequently suggested the father had “anger management issues”, but that was generically in the context of criticism of his parenting capacity rather than pertinent to the commission of family violence. The question of whether the father’s behaviour ever amounted to “family violence”, as defined (s 4AB), was never squarely addressed. The evidence fell short of proving, on reasonable grounds, that the father engaged in family violence (s 61DA(2)(b)).
The presumption of equal shared parental responsibility therefore applies, but the presumption is rebutted because the allocation of equal shared parental responsibility would not be in the children’s best interests (s 61DA(4)). The mother’s whereabouts are unknown and she evinces no interest in participating in the children’s lives or in significant decisions affecting their lives. However, parental responsibility for the children does not therefore default exclusively to the father. He too left decisions about the children’s lives to the paternal grandmother when she assumed their residential care in late 2010. The only rational outcomes are for either the paternal grandmother or father to have sole parental responsibility for the children or for them both to share parental responsibility.
Unfortunately, the relationship between the father and paternal grandmother is too conflicted to enable them to exercise equal shared parental responsibility in the manner required by law (s 65DAC). The Family Consultant opined, without challenge, that their relationship is “completely fractured”.[56] Their enmity is indeed deeply entrenched. The paternal grandmother’s distrust of the father is so pronounced that she continues to harbour a belief in the possibility he sexually and physically abused the children. The father is so hateful towards the paternal grandmother that he could not bear for her to be described as his mother or for him to be described as her son. He foolishly believed the paternal grandmother was maliciously motivated to pursue the allegations against him for financial advantage. He said he would not know where to start to repair his relationship with the paternal grandmother. The only tenable outcome is for the party with whom the children live to have sole parental responsibility for them.
[56] Family Report, para 87
The children should live with the paternal grandmother. The certainty of the emotional harm the children would suffer through reversal of their residence is a more compelling consideration than the risk of emotional harm they may suffer by continuing to live with the paternal grandmother. The reasons for that imbalance are explained in the discussion under s 60CC(3) of the Act and need not be repeated. That outcome is consistent with one of the conditional alternative recommendations of the Family Consultant.[57]
[57] Family Report, para 93
Attention must then turn to the manner in which the children should spend time and communicate with the father.
The Court is relieved of the obligation to consider certain types of residential arrangements for the children because “equal shared parental responsibility” is not allocated to their parents (s 65DAA).
The children should spend time with the father principally in accordance with the regime that existed before the abuse allegations were raised in April 2013. That outcome reflects the previous orders made in March 2013, the proposal of the Independent Children’s Lawyer, and the proposal of the paternal grandmother (which proposal was conditional upon a finding that the father poses no unacceptable risk of abuse to the children). The father did not engage that debate because he was intent on pressing his claim for the children to live with him.
A regime under which the children spend two weekends each school term and part of the school holidays with the father is pragmatic. It reflects the great distance between the homes of the paternal grandmother and father. The driving time between their homes approximates six hours.[58] The children will spend one weekend each term with the father in the locality of the father’s home and one weekend each term with the father in the locality of the paternal grandmother’s home, which will mollify any travel burden for the children. No specific provision is made for other special events, such as Christmas Day, because of the geographical separation of the households.
[58] Paternal grandmother’s affidavit, para 31
The parties have used the township of Tenterfield as a venue to exchange the children,[59] but since the interim orders made in August 2013 the paternal grandmother has driven to Town S,[60] close to where the father lives,[61] to exchange the children.
[59] Order 8 made on 19 March 2013
[60] Order 4.3 made on 23 August 2013; Paternal grandmother’s affidavit, para 91
[61] Father’s affidavit, paras 179-180
The father said he would prefer to exchange the children with the paternal grandmother at Town X instead of Town T. He alleged, without contradiction, that X was closer to equidistant between the parties’ homes and was on a route that could be and has been used by both parties.
For the following reasons I adopt the father’s proposal for exchanges to occur at X in respect of school holiday periods, but the orders require the parties to individually bear the travel burden on the weekends during school terms when the children’s visits with the father are confined to areas in the locality of either the father’s or paternal grandmother’s homes.
It is fair to the parties if they share the burden of travel. It would be too onerous to expect one party to travel the whole return journey to the township in which the other lives on too frequent a basis. A better option is for them to meet at a half-way point whenever feasible. It is feasible to do that during longer school holiday visits, but not on visits confined to weekends.
The Independent Children’s Lawyer acknowledged the children’s exchange at some point on the route between the parties’ homes was usually advisable, but her proposal about the actual venue was left blank in her minute of orders.[62]
[62] Exhibit ICL6, Order 8
I reject the paternal grandmother’s proposal for all of the exchanges to occur in Town B, where she lives. Her motivation was to reduce her expenses, since the father pays no child support to her. The easy way to overcome that problem is for her to make an application to the Child Support Agency for an assessment of child support against the father. It is in the children’s best interests if they witness the paternal grandmother participating in the travel by taking them to spend time with the father, which will probably signal to them that she consents to their visits with him and thereby give them the freedom to enjoy the visits.
As for the father’s communication with the children, regrettably that has not occurred regularly. His reasonably regular communication with them by telephone is likely to help enhance his relationships with them. The Independent Children’s Lawyer proposed three telephone calls each week,[63] to which the paternal grandmother agreed in final submissions, but the father did not engage that debate either. The orders make provision for one telephone call each week, so the arrangement is not too onerous or bothersome. The parties may consensually make it more regular if they desire.
[63] Exhibit ICL6, Order 10
The Independent Children’s Lawyer abandoned some proposed orders which were not the subject of any evidence or submissions.[64]
[64] Exhibit ICL6, Orders 11-12
The order proposed by the Independent Children’s Lawyer to restrain the parties from “discussing personal issues” at any school function they may attend[65] is not made, since it is entirely aspirational and unenforceable. It is impossible for any order to be sufficiently prescriptive about what constitutes a “personal issue”. Such an order may well engender rather than stifle dispute.
[65] Exhibit ICL6, Order 15
The injunction restraining the use of corporal punishment on the children is made at the paternal grandmother’s request, without objection. It is sensible, given the debate in this litigation about the children’s physical abuse.
An order is made requiring the orders and these reasons to be provided to the police or the Department if any fresh allegation is made about the children’s abuse. At least then any such fresh allegations may be investigated in proper context.
The other orders are sensible and could not be the subject of reasonable opposition.
No orders are made prescribing the nature of the children’s future interaction with the mother. Whether that occurs and, if so, the conditions upon which it occurs, will be determined by the paternal grandmother as an incident of her sole parental responsibility for the children.
I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 29 May 2014.
Associate:
Date: 29 May 2014
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