Dover and Rogers
[2016] FamCA 392
•24 May 2016
FAMILY COURT OF AUSTRALIA
| DOVER & ROGERS | [2016] FamCA 392 |
| FAMILY LAW – CHILDREN – With whom a child lives – With whom a child communicates – With whom a child spends time – Allegations of sexual abuse – High level of conflict – Orders that children live with mother and spend time with the father |
Family Law Act 1975 (Cth) ss 60CC(2) and 60CC(3)
Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038
| APPLICANT: | Mr Dover |
| RESPONDENT: | Ms Rogers |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
| FILE NUMBER: | HBC | 1076 | of | 2010 |
| DATE DELIVERED: | 24 May 2016 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Launceston |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 22, 23, 24, 25 & 29 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Grant Tucker |
| SOLICITOR FOR THE APPLICANT: | Grant Tucker |
| COUNSEL FOR THE RESPONDENT: | Ms Kate Mooney |
| SOLICITOR FOR THE RESPONDENT: | Rae & Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Peter Briffa |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of Tasmania |
Orders
Mr Dover (‘the father’) and Ms Rogers (‘the mother’) have equal shared parental responsibility for B born … 2006 and C born … 2008 (together ‘the children’) and in the context of that equal shared parental responsibility each parent is entitled:-
a.to receive any information normally available to and/or provided to parents by the children’s school; and
b.to obtain and have available information normally provided to parents by health care professionals to parents. Nothing is this provision shall impose upon any of the children’s treating counsellors, therapists or psychologists as would undermine or inhibit the professional relationship with and treatment of such child or children.
The children shall live with, spend time with and communicate with the mother and father as set out in these orders or as is otherwise agreed in writing by the parents.
The children shall live with the mother.
The Court makes no orders that the father spend time with the children.
The father shall be entitled to send cards, letters and presents to the children including but not limited to birthdays, Easter and Christmas and the mother shall ensure that any such items are given to the children.
The mother shall encourage the children to send cards, letters and presents to the father and his family including but not limited to birthdays, Easter and Christmas
The mother shall encourage and facilitate reasonable time between the children and their brother D.
The mother shall facilitate reasonable time between the children and their paternal grandmother and aunts and accommodate reasonable request is made by the children and the paternal grandmother and aunts.
The parties shall keep the other informed of his/her residential address, email address and telephone numbers and the like.
The parents will do all acts and things to ensure that:-
a.the children continue to have therapy with Dr E at a frequency determined by that therapist;
b.the mother and the father shall be responsible for payment of Dr E’s fees on an alternating basis commencing with the mother;
c.Dr E is provided copy of these Orders and the reasons upon which the orders were based; and
d.the Court requests of Dr E that any feedback by her be made in writing and sent to both parents, and for that purpose the parties shall each provide Dr E with that party’s email address. Such request should not impose any requirement on Dr E to provided information or reports contrary to the therapeutic needs of the child or the children.
That in the event that either party (including the father if by agreement or order of a court) seeks to take the children on an interstate or overseas holiday the following shall apply:-
a.the travelling parent shall provide the other parent with a minimum of fourteen (14) days’ notice in respect of an interstate holiday and twenty eight (28) days’ notice in respect of an overseas holiday;
b.prior to departure the travelling parent shall provide the other with copies of the return travel itinerary and contact details for the children; and
c.the travelling parent shall ensure that the children have telephone or other electronic communication with the other parent during those times of travel.
Neither parent will denigrate the other parent or members of that parent’s family in the hearing or presence of the children (or any one of them) nor allow any third person to do so.
Each parent shall keep other parent advised of the names of any schools, therapists, doctors, other care providers and extracurricular activities attended by the children, in advance if possible if not within one day of the appointment, treatment or enrolment or commencement of such care or activity.
Each parent must keep the other reasonably informed as to any significant health or welfare issues relating to the children, in advance if feasible or within one day otherwise.
The mother make all reasonable attempts to facilitate reasonable time between D and the children, or either of them, should that request be made by D or by either of the children. Nothing in this order imposes any obligation on D’s mother.
BY CONSENT both the father and mother shall separately do all acts and things necessary to enrol in, attend, participate and complete an Anger Management Course operated by a reputable Government or non-Government Agency (such as Relationships Australia or CatholicCare) within twelve (12) months from the date of these Orders. Each parent shall be responsible for payment of his or her costs for participating in such course and shall provide a certificate to the other parent within six (6) weeks of completing such course. The certificate must contain details of the course, the course provider, the length of the course and that the parent attended regularly and participated.
Both the father and mother shall separately do all acts and things necessary to enrol in, attend, participate and complete a post separation parenting course operated by a reputable Government or non-Government Agency (such as Relationships Australia or CatholicCare) within twelve (12) months from the date of these Orders. Each parent shall be responsible for payment of his or her costs for participating in such course and shall provide a certificate to the other parent within six (6) weeks of completing such course. The certificate must contain details of the course, the course provider, the length of the course and that the parent attended regularly and participated.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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.
All outstanding parenting applications be dismissed, except as to costs.
Any costs applications to be made in accordance with the Family Law Rules 2004 (Cth).
At the expiry 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.
The Independent Children’s Lawyer is requested to explain these Orders to the children as soon as practicable after the Orders have been made, noting that:-
a.the method and content of that event being in the Independent Children's Lawyer’s discretion;
b.the appointment of the Independent Children's Lawyer is extended for 35 days from the date of these Orders for that purpose; and
c.the parties will do any acts and things reasonably necessary to facilitate the children meeting with the Independent Children's Lawyer.
Leave is given for the father to commence proceedings in a court exercising jurisdiction under the Family Law Act 1975 (Cth) for change of the place of residence for the children, in the event that the mother does not reasonably support or promoting time between the children and the father a recommended by Dr E.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel and counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dover & Rogers 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 LAUNCESTON |
FILE NUMBER: HBC 1076 of 2010
| Mr Dover |
Applicant
And
| Ms Rogers |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Mr Dover (‘the father’) and Ms Rogers (‘the mother’) have been engaged in high level conflict regarding the parenting of their children B aged nine and C aged seven (‘the children’).
This conflict has ebbed and flowed over five years or more and has had a profound adverse impact upon their children and the broader families in which the children participate. In recent times the conflict has become chronic, and each parent must bear the responsibility for this escalation.
It is the father’s case that the mother is unworthy to be a mother. He says that during the relationship, he had undertaken the primary role of parenting of the children from their birth until 2010 and from that time the mother has done all that she can to alienate the children, in a practical sense, from him and his broader family.
He claims that the mother was abusive to his son D, a child from a previous relationship, during the course of the time that that parties lived together. He also claims that the mother has planned and fabricated false allegations that he has sexually abused one of his children.
As to the conflict, the father acknowledges that it is endemic, but contends that all of the blame arises from the mother, whom he perceives as a difficult, confrontational, dishonest and abusive person. He contends that the children are at risk of harm in the care of the mother given his views of her. He seeks orders that the children live with him, he has sole parental responsibility and that the children not spend time with the mother until she has undertaken effective therapy, and then only in a supervised manner. On the evidence, I have determined that the father had not turned his mind to the preservation of the children’s relationships with their elder sibling F, a child of an earlier relationship of the mother. When asked the father said that he wants that relationship to continue, but clearly had not given it any considered thought. At the conclusion of the hearing the father’s counsel tendered a form of order that he sought.[1]
[1]Exhibit F8.
The mother says that the father is an angry and manipulative man. She says he acts out his anger by way of verbal abuse to the children and blames her for causing that verbal abuse. She says that he has physically abused the children and she believes that he has sexually abused their daughter. She contends that the father presents in public as a reasonable and rational man, but in private he is overbearing, abusive and controlling.
The mother’s case is that, if it is determined that the father presents into the future as being an unacceptable risk to the children, particularly their daughter, then she should have sole parental responsibility. The children should not spend time with him and communication should be severely constrained. The mother contends that time and/or communication should not resume without some further therapeutic intervention and further forensic examination.
If on the other hand the Court determines that the father does not constitute an unacceptable risk to the children then there should be orders for equal parental responsibility, that the children live with the mother, spend alternate weekends with the father plus half school holidays and special occasions.
As the mother lives in the Launceston area and the father in the Hobart area, changeovers and time are significantly affected by that geography. At the conclusion of the hearing the mother’s counsel tendered a form of order that she sought.[2]
[2]Exhibit M5.
Given the history of this matter an Independent Children’s Lawyer was appointed and represented the interests of the children.
At the conclusion of the hearing he submitted that if the Court were satisfied that there was no unacceptable risk of harm to the children in the unsupervised care of the father then there ought to be an order for equal shared parental responsibility, that the children should continue to live with the mother and spend time with the father each alternate weekend, but be returned Sunday evening. The evening return, given the conflict surround the changeovers, the geographic circumstance of the parties and the impact on the children of an early morning and long drive at the commencement of the school week, I accept and adopted that approach. He said that there should be limited direct changeover and non-denigration order, including orders not to discuss these proceedings with the children. He recommended that Dr E assist in the restoration of the children’s relationship with the father. I have likewise accepted and adopted these approaches. In general terms he followed the outline of time propounded by the mother.
If on the other hand I find that the children are at unacceptable risk in the care of the father, then time would need to be considered and supervised in that circumstance.
The Independent Children's Lawyer further expressed a concern that if the mother was not able to adequately support any court ordered time for the children to spend with their father, consideration should be given to the possibility that the children live primarily with their father. This is because it would be emotionally detrimental for the children to grow up with a false belief that they were sexually abused by their father. I have considered this submission and I will make a notation so that given the finding set out below, if the mother does not support time then the father will have leave to apply to a court for a change of residence.
ISSUES
The issues are:-
(a)whether the children are at unacceptable risk of abuse in the care of the father, and, if so, whether that can be ameliorated in some form and in those circumstances whether the relationship between the children and the father should continue;
(b)whether the children are at unacceptable risk of emotional abuse in the unsupervised care of the mother given the father’s allegation that the mother has coached the children, and in terms of B whether she has instilled in her a false belief that she was sexually abused by the father;
(c)whether that abuse can be ameliorated by some form of therapy and some form of supervision;
(d)the capacity of the mother to be the children’s primary carer given the father’s view as to her parenting of the children.;
(e)the capacity of the father to be the children’s primary carer given the mother’s view as to his parenting of the children; and
(f)other issues which I have addressed in the body of these reasons.
BACKGROUND
The father is aged 41 and is by occupation and works as a technician. He lives in the Hobart area with his current partner Ms G. He says that he works a 40 hour week for his partner and he is solely dependent upon her for his financial support. He says it is his hope that will lead to financial success in the future. He lives a good lifestyle but pays little meaningful child support.
The mother is aged 38 and has, at present, the full time care of the children. She is in paid employment working full time in the community sector.
Each of the parties is in good physical health and there are no reasons why they cannot meet the physical needs of the children, subject to the various concerns that each of the parties raise about the behaviour of the other.
The father believes that the mother has an undiagnosed mental illness. The mother believes that the father is physically abusive of the children, has sexually abused them or one of them, and that he has a serious anger management problem.
The parties commenced cohabitation in about 2003 and purchased a home in 2004. In that same year the mother fell pregnant with the parties’ first child, Y, who was born in 2005. Tragically, Y passed away some six weeks after his birth as he suffered from a rare disorder known as Congenital Central Hypoventilation Syndrome. The mother says, and I accept, that she suffered depression for a long time after the death of this child.
From the mother’s perspective she said that she received no emotional support from the father. At paragraph 12 of the mother’s affidavit filed 20 January 2016 she provides some examples of that perception, including her belief that the father at some levels blamed her for that loss.
The father’s view of this was somewhat different, and his material appropriately did not revisit this part of their joint history. This loss had a profound impact on both parents and undermined their relationship.
I do not intend to make any findings as to each parent’s perspective of the other following this loss. It serves no forensic purpose; but to consider this background in a general sense better enables the understanding of the parties’ anger, dislike and distrust for each other.
Each of the parties has been in relationships before they commenced their relationship together. The mother had been in a relationship with Mr H and they had a child F who was born in 1999 and is currently aged 17. F lives primarily with the mother.
The father had been in relationship with Ms I and there is one child of that relationship, D who is aged 15. He lives primarily with Ms I and she gave evidence in this hearing.
The parties’ two children are B aged 9 and C aged 7.
The parties separated on 12 June 2010 when the father left the former matrimonial home.
It is the father’s case that one of the major factors in the end of the relationship was the mother’s behaviour, in particular her abusive treatment of D. I will deal with that assertion later in these reasons, and I have rejected his evidence to that effect. Prior to the time of separation the father had commenced a sexual relationship with Ms J, who was then aged 18. As a likely cause for the immediate termination of the parties’ married relationship, albeit in the context of a particularly difficult background, the fact that this then 36 year old man was in a sexual relationship with an 18 year old girl and that there had been intimacy between them prior to separation. This is likely to have been the last straw (or perhaps anvil) that broke the camel’s back, of this relationship.
The cause of the breakup is generally not an issue, however in the context of assessing the veracity of the evidence of the parties it is of some weight. Also, this circumstance has some relevance in the context of considering the parties disputed evidence as to the mother’s claim that the father was domineering, and/or controlling.
At that time of separation B was aged about three and a half years and C was about one and a half years.
The father’s relationship with Ms J came to an end sometime in late 2010 when the father commenced a relationship with Ms K, who was aged about 18 or 19. That relationship with Ms K involved her staying at the father’s home with a very young child. In mid-2011 the father ended the relationship with Ms K and re-started the relationship with Ms J. The relationship with Ms J ended about one year later and in the meantime, in about March 2012, the father commenced a relationship with his present partner, Ms G. The father and Ms G commenced living together in about October/November 2013, after the father moved to Hobart.
After separation the father spent time with the children by way of day visits until November 2010. Initially F, then aged about 11, spent time with the father, but then this stopped in about December 2010.
The parties have agreed to the post-separation time,[3] that is, that initially after separation the father had day visits with the children at home or in a city park. In November 2010 this changed to one night per week, usually Friday or Saturday. There was an issue as to the extent of night visits, however, it seems that primarily day visits continued until February 2012.
[3] Exhibit ICL6.
From that date until July 2013 there was one night per week and from July 2013 to November 2013 there were two nights per week. From November 2013 the visits were each second weekend from after school Friday until 7.30am Monday, extending to the occasional long weekend.
In January 2014 there were school holiday visits: four nights in the second week in January 2014, four nights in April 2013, four nights in June 2013 and after the heads of agreement settlement in 2014 the children spent seven nights over two weeks with the father and a few days before Christmas to 2.00pm Christmas Day.
Christmas Day has been the source of unhappiness between the parties as set out in exhibit ICL6.
The parties had engaged in negotiation with respect to the children and reached an ‘in principal’ agreement that the children live primarily with the mother and spend time with the father during school term and school holidays. The children had their first block time with the father over the December 2014 and January 2015 school holiday period. This was the subject of some controversy.
The mother arranged for B to see a social worker, Ms L, on 28 January 2015 to assist in the movement of this child between the parties, which the mother believed was fraught with difficulties.
In her second visit to Ms L, the child made disclosures and then again on the third visit on 9 February 2015. Appropriately, Ms L reported the matter to child protection. Since that time, neither child has spent any time with the father.
After the reporting of the disclosure by Ms L to child protection authorities, there was a referral to Tasmania Police. The police file was tendered in evidence.[4] B was not interviewed until 16 March 2015, some four to five weeks after the disclosure to child protection authorities.
[4] Exhibit ICL5.
An audio recording of the interview between the police officer and B was played and a summary of her statements was contained in the exhibit. There was no recording of the interview with C, however the police report observed:-[5]
Complainant 2 [C] attended Launceston Police Station on Tuesday 17 March 2015 to participate in an interview with an investigating officer. He was confident and chatty. During the interview [C] disclosed:
He puts his thumb on my private parts.
He watches me when I wet myself in the bathroom, in his house in Hobart.
[B] gets scared because dad gets really scary.
He takes his thumb off the facewasher
[5] Ibid page 6.
The mother was concerned[6] that someone the father knew may have been involved in the police investigation. There was no objective evidence of that involvement. Tasmania Police arranged to interview the father on 24 June 2015. The father denied any involvement or abuse and he asserted that the mother had coached the children to make false accusations. The father told the police that he and his current partner have taken extensive notes since he began ‘legal process for obtaining full custody’.
[6] Family Report paragraph 40 or mother’s affidavit paragraph 40.
The police recommended that no criminal proceedings ought to proceed as the disclosures made by both children, lack detail and the words used are not likely to be words of children of their ages would use to describe the events alleged to have occurred. The Family Consultant observed:-[7]
It is documented that the investigating officer, [Detective Constable M] recommended that the matter not proceed because the disclosures made by the children lacked details and the words used are not the likely words children of their ages would use. It was concluded that it is likely that this disclosure has been made in an effort to stall the Family Law Court proceedings and for the complainant’s mother to gain full custody.
[7] Ibid paragraph 12.
The police concluded that it was likely the disclosure had been made in an effort to stall family law proceedings and for the complainant mother to gain full custody. The investigating officer was of this belief prior to even interviewing the accused, and after having now interviewed him:-[8]
… ‘is of the belief that he is genuine in what he is saying. I am more than happy to speak to the other parties you mentioned if you require further though’.
[8] Exhibit ICL5.
That was something of an odd comment given that he formed a view without hearing all of the evidence. In any event the assessment in this matter is a matter for me in the context of a parenting proceeding, not a police officer in the context of recommendation for a criminal prosecution.
Ms L has seen B about 17 times. In the preceding year Ms L had seen the mother in the context of a referral for personal counselling or therapy for her.
On 13 March 2015 B saw the father from a distance at a school sports carnival.
The father attended the school on 27 March 2015 to take the children to lunch and again on 1 April 2015 to attend a function.
In the lead up to Father’s Day, B’s teacher invited her to engage in some work towards a present for her father. She objected and sought to do the work for her mother’s partner.
In October 2015 the children commenced therapeutic counselling with Dr E.
On 10 and 11 November 2015 the children attended interviews for the preparation of the family report by the Family Consultant.
Statutory Framework
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sets out the framework in which the Court exercises its power to make parenting orders in ss 60A to 70Q.
Section 60B of the Act sets out that the objects and principles in parenting determinations. As to the objects, section 60B(1) of the Act provides:-
(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.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out a series of factors in determining how a Court determines what is in a child’s best interest. These include the “primary considerations” (s 60CC(2) and (2A)) and the “additional considerations” (s 60CC(3)).
Section 65D of the Act empowers a Court to make a “parenting order”. This power is subject to s 61DA of the Act which in turn requires the Court to apply a (rebuttable) presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This statutory presumption does not apply in circumstances there being reasonable grounds to believe that a parent of a child or a person who lives with a parent of a child has engaged in abuse or family violence of the kind referred to in subsection (2). The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility (s 61DA(4)).
If the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents (s 65DAA).
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC of the Act.
Unacceptable Risk
Where the alleged facts in a particular case may enable a finding that children are at risk of violence, abuse or neglect, the Court in determining what orders should be made needs to balance the risk to the child or children against the importance of retaining parental ties. What is an unacceptable risk?
In Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 his Honour Justice Tree gave consideration to the notion of unacceptable risk and said:-
51.It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
52.In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke[1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
At paragraph 46 of his reasons Justice Tree considered the standard of satisfaction required and said:-
46.Section 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
47.In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:-
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
48.Conduct intended to, or with a risk of, either emotionally or psychologically harming a child, or destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s 140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities. In my view, the allegations made by the father that the mother presents a risk of sexual, physical and emotional harm to the child are of real gravity.
49.Further, the consequences attaching to a finding of the kind sought by the father could potentially be grave. As is demonstrated by this case itself, based upon such a fact being established, a parent could seek to use it to found an argument that the other parent’s time with the child should either be supervised for some period of time, or even permanently. Whilst on one view such a consequence may not be as grave as the consequences that flow from the proof of, for instance, criminal sexual abuse, it is nonetheless clear that the consequence of a finding that the mother presents as an unacceptable risk could be significant and have a grave aspect to it.
50.Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[9]
[9] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
WITNESSES & EVIDENCE
Evidence provided by the Independent Children’s Lawyer
The Independent Children’s Lawyer tendered a number of documents including the following:-
·Family Report of Ms M dated 18 November 2016;[10]
·Dr E’s 2 February 2016 report;[11]
·Ms L’s notes;[12]
·Police audio and police records;[13] and
·A signed record of times between the children and father post separation. [14]
[10] Exhibit ICL2.
[11] Exhibit ICL3.
[12] Exhibit ICL4.
[13] Exhibit ICL5.
[14] Exhibit ICL6.
The Independent Children’s Lawyer tendered his case summary as Exhibit ICL1. He also relied the affidavit of Ms L filed and sworn 11 September 2015 as well as her notes, although she was not his witness.
The Independent Children’s Lawyer relied upon material, namely:-
(a)statement of Ms N the principal of O Town Primary School, filed 2 February 2016;
(b)statement of Ms P, B’s teacher in 2015, filed 2 February 2016; and
(c)statement of and Ms Q, C’s teacher in 2015, filed 2 February 2016.
Rather that require affidavits from teachers, I directed that statements be obtained. These documents are less confrontational than are affidavits and if there was an issue as to their contents the witness could be sworn then affirm the contents of the statement (as occurred in this proceeding) and be available for cross examination. Generally, this was done by telephone at an appointed time outside school hours.
Ms Q
Ms Q provided evidence contained in her statement filed 2 February 2016. That material was read into evidence without objection. Ms Q is an experienced teacher who taught C in 2015 and taught his sister some years before.
She noted that C does not comment upon his father. She provided evidence of a child who was coping well with school. I accept that evidence.
Ms P
Ms P’s statement was read into evidence and she was made available for and was cross examined. She is an experience teacher who taught B’s in 2015 as the child worked her way through grade 3. Ms P said that B struggled and failed to thrive through that year, although the child seemed better in term four.
In July 2015 Ms P endeavoured to arrange a meeting with the mother but the meeting was cancelled and was not rescheduled.
Ms P said that B refused to make a present for her father on Father’s Day 2015, but did make one for the mother’s partner.
Ms P gave evidence of the mother remaining at school in February 2015. It is clear that the mother and Ms P had a strained relationship particularly in the middle and end of 2015.
The events described elsewhere in these reasons include the father attending the school, the mother’s removal of the child from school and the failure of both parties to put in sensible arrangements through the Court that year. This had a clear impact on the child.
I generally accept the evidence of Ms P, which was objective and child focused.
Ms N
Ms N is the principal of O Town Primary School and commenced in that role at the beginning of 2015. She is a highly experienced teacher of approximately 34 years, and has been a school principal for approximately 13 years.
Ms N provided evidence in accordance with her statement and attached documents filed 2 February 2016. She was cross-examined.
In many ways each of the parties endeavoured to enmesh the school in the conflict between them. Some examples are the email from the father to Ms N of 15 September 2015, which contained the father’s request to take the children out to lunch on 19 February 2015 and again on 27 February 2015. This email was self-serving and imported the conflict into the school.
Similarly the mother’s approach on 13 February 2015 which is reflected in the principal’s statement of 13 February 2015 where she described B as an ‘emotional wreck’. It is not clear whether this was what she saw or what she was told by the mother.
The father’s behaviour in this regard was that in February 2015 the father telephoned the school and asked if he could take the children out to lunch. He asserted that he had not seen the children for two months, this was factually incorrect as he had last seen the children in late January 2015.[15] The father was informed by the Principal that after obtaining legal advice the answer was no.
[15] Ms N’s affidavit page 4.
On 1 April the father returned to the school with his partner wanting to exercise his ‘right’ to spend time with the children where he was encouraged not to do so. It is clear the B was distressed by this intervention.[16]
[16] Ms N’s affidavit page 19.
The Principal provided evidence that the children have protective behaviour programs given each year via Bravehearts and said that B and C would have attended those in 2015. This included information about feeling safe and private parts.
Ms N’s evidence, consistent with that of Ms P, is that B failed to thrive in 2015.
In relation to the ‘Taste of O Town’ the Principal at some levels confirmed the evidence of the father although not to the same degree as asserted by the father.
The principal made it clear that she would not have sided with either the father or the mother nor would she have supported their views, particularly given that she knew it would cause conflict for this particular family.
I accept her evidence and observe that she is a reliable witness and is child focused.
Family Consultant
Ms M is a family consultant (‘the Family Consultant’) employed by the Family Court. She prepared a report (‘the Family Report’) in relation to this family.[17] The report was read into evidence.
[17] Family Report dated 18 November 2015 – Exhibit ICL2.
Ms M is an experienced family consultant whose qualifications were not challenged. Amongst other things she is a qualified psychologist.
Ms M set out her recommendations in paragraph 98 and 99 of the Family Report, which provided:-
98.If the court finds that [B] and [C] are at risk of sexual abuse or physical abuse in their father’s care, it is recommended that;
a.The children live with their mother and consideration is given to the possibility that they do not have future time or communication with their father.
b.The court findings are released to [Dr E], or to an alternative psychologist, so that therapy can continue to help the children form a more realistic belief about the current and future risk that their father poses to them.
99.If the court finds that it is unlikely that [the father] has sexually or physically abused the children, it is recommended that;
a.The court findings are released to [Dr E], or to an alternative psychologist, so that therapy to help restore the children’s relationship with their father can commence,
b.On an interim basis the children’s time with their father is restored as soon as practicable. To assist the children to settle in their father’s care, preferably this would be for block periods of time,
c.On a final basis, [the mother] is not able to adequately support any court ordered interim time for the children with their father, consideration should be given to the possibility that the children live primarily with their father. This is because it would be emotionally detrimental for the children to grow up with a false belief that they were sexually abused by their father.
Clearly this was dependent upon whether there was a finding of unacceptable risk in terms of the father.
In early November the Family Consultant interviewed the father, Ms G, D and Ms I, D’s mother. In addition she interviewed the mother, observed the children with the mother, her elder daughter, F, Mr S and his children T and U.
She interviewed C and had a brief interview with B with C present, and then a further interview with C, and then an interview with C and D together. She interviewed F and others as set out in the Family Report.
F made no complaints about sexual abuse by the father, and the mother subsequently gave evidence that no such allegation has been made by F.
There was some query as to whether the disclosures reported by Ms L were disclosed to the mother before or after that disclosure. She could not say one way or the other.
The Family Consultant was somewhat surprised that in terms of the mother, she and both children came to the interviews.
With regard to B, the Family Consultant said that the child had very high levels of distress, much higher than she would have regarded as ‘at a disproportionally high level of anxiety in the child’.
The Family Report is replete with examples of that distress, including paragraph 34 and paragraphs 67 to 73.
The Family Consultant said:-[18]
This report is limited given that [B] was too distressed to engage in a standard interview that would normally be undertaken with a child of her age. [C] is only 7 years so his developmental capacity to accurately report information is limited. Both children’s memories about their father may have become distorted over the ten months since they have seen their father.
[18] Paragraph 84 of the Family Report.
The Family Consultant then went on to say the children are aligned with their mother and opined that B has developed a genuine, but perhaps false, belief that she was sexually abused.
In terms of C, she said that the words he used at paragraph 71 were the type of words children in those circumstances may have used. She went on to say that she tried to encourage C to see his father, but he was resistant to that course. C expressed that his mother does not seem to listen to his concerns.
C would not acknowledge to her of any happy times with the father. B was very upset and did not assert that she had any good times with the father. Her anxiety has not reduced since January 2015 but had, in many respects, increased. It was the view of the Family Consultant’s that the children’s fears of the father were real.
C and D interacted well together despite the time that they had not seen each other.
B asserted to the Family Consultant that she had not had any happy times with the father and that she just pretended to be happy. The father adduced evidence of photographs taken of recent trips.[19]
[19] Exhibit F2 - photograph album.
The Family Consultant interviewed F, who provided evidence consistent with the assertions of her mother, and she also interviewed D, who gave statements in accordance with the evidence of his father.
F, B and C all described the father as being, at times, ‘a scary man’.
The Family Consultant had no issue that the language of the children was age appropriate in terms of the disclosures, although they lacked detail.
In paragraph 42 of her report the Family Consultant observed:-
[The mother] acknowledged that the information provided by [C] could be consistent with attending to his hygiene needs, rather than an indicator of abuse. She said that it is possible that [B] had been influenced by protective behaviour information provided at school to inaccurately report sexual touching so she would not have to see her father again, but she doubted this would be the case.
This is somewhat inconsistent with the strong view of the father and his partner that the mother will do whatever it takes to create a false illusion that the children are sexually abused by the father.
The Family Consultant observed, and I accept, that there was no history of alienation and the mother was looking for benign explanation.
The Family Consultant was questioned about the use of Dr E, particularly when the father apparently had passed her report to other psychologists. The Family Consultant recommended that the Court be careful about damaging the children’s relationship with Dr E. The Family Consultant said changing to a third therapist would not be in the children’s best interests. I accept that evidence.
I note the evidence of the Family Consultant that the children have disclosed to Ms L, the mother, police and Dr E. There was some cross-examination in relation to the veracity of B’s fears of being taken as there had been no attempt to take her. That is perhaps not accurate given the father’s endeavours to see her on a number of occasions early in the year and the impact of B of seeing Dr E in around September, Father’s Day, and the pre cursor to the Family Report.
There was some evidence that the children reported to the mother negative things in the father’s home.
In terms of her evaluation the Family Consultant observed that the mother had been making the children reasonably available to spend time with the father including; having the children return on Monday morning from Hobart to Launceston although she was not in favour of that.
The Family Consultant said it was clear, and I find it was the case, that there had been a high level of parental conflict over many years and that each parent blamed the other for the conflict. She said that it is likely that the children would have positive experiences with the father and Ms G when they spend time with them.
The Family Consultant observed:-[20]
95.… Unfortunately the fearful and anxious reaction of [B] on the assessment day suggests that attempts to positively restore a positive relationship with her father would be emotionally traumatic for her, at least initially. Skilful therapeutic intervention would be required to help overcome her anxiety and fear that her father may harm her.
[20] Family Report paragraph 95.
The Family Consultant went on to say that it would be important for the children to spend time with their older brother D in Launceston.
The Family Consultant gave examples of both parents engaging with the children in terms of the conflict. The Family Consultant gave evidence about the father’s concerns that the children did not ‘open up’. This is of course dual pressure.
The Family Consultant was cross-examined about the father wanting to go into the mother’s home and his response. The father initially wanted to have the children show him the inside of the mother’s home and the mother objected to it. The father’s response was, in many ways, to involve the children in the adult issues. There were better ways to deal with it rather than, as happened, to simply blame the mother.
The father was upset that he was not invited to the children’s birthday parties. Given the acrimony between the parties that was not a realistic approach. From the evidence of the Family Consultant it is clear that prior to the allegations each added to the conflict between the parties.
I accept the evidence of the Family Consultant, including the genuineness of the children’s fears as to the conflict between these parties.
Dr E
Dr E provided a report dated 2 February 2016.[21] Dr E gave evidence and confirmed the accuracy of her report. Dr E reported that the children made a number of disclosures, consistent with those made to the mother and to Ms L.
[21] Exhibit ICL3.
She set out in her report the following:-[22]
During the time I spend (sic) with the children, both children expressed the view that they do not wish to spend any further time with their father. Both children have remained unwavering in regard to this view. This topic was again broached during the most recent session and both children again indicated they were certainly opposed to the idea of spending time with their father (even in the event that the contact was supervised by someone else they felt comfortable with).
[22] Ibid.
I accept the evidence of Dr E that those were the views expressed by these children. Dr E explored the possibility of the children being deliberately alienated against their father, but has formed no view one way or the other.
She said that:-[23]
…At this point in time, I believe any attempt to do so [forcing them to spend time with their father] would be futile and likely to exacerbate the children’s current level of anxiety.
[23] Ibid.
In obtaining the report from Dr E I was concerned that it may impact upon the children’s therapeutic relationship with her. It is instructive that Dr E observed:-[24]
…[B] has asked me on more than one occasion whether I have met her Dad and I believe that it is likely that our rapport would be damaged in the event that she knew I had.
[24] Ibid.
Given that evidence and given that there were no serious issues as to Dr E’s qualifications I declined the request that the parties cross-examine Dr E, particularly given the evidence of the Family Consultant that this may mean there needs to be a third therapist then put in place and given the conflict between these parties and feelings expressed by the children to Ms L, the Family Consultant and Dr E, it may have been that such course would have further damaged the children and exposed them to further conflict and having a need to further disclose.
Given those circumstances I will treat her report on the basis that she was not cross-examined and that the father does not accept some of the conclusions made by Dr E.
The father’s case
The father relied upon:-
(a)His amended Initiating Application filed 5th August 2015;
(b)His affidavits filed 1st August 2014, 5th August 2015 and 27th January 2016 (his trial affidavit);
(c)Affidavit Ms G filed 27th January 2016;
(d)Affidavit of Ms I filed 22nd January 2016;
(e)Affidavit of Mr R filed 27th January 2016;
(f)Affidavit of Ms V filed 22nd January 2016;
(g)Affidavit of Ms W filed 22nd January 2016; and
(h)Family Report dated 18th November 2015 (referred to earlier).
The father
The father relied upon his evidence contained in his affidavits sworn 1 August 2014 and filed 8 September 2014, sworn 31 July 2015 and filed 5 August 2015 and sworn 25 January 2016 and filed 27 January 2016.
The three affidavits were read into evidence. In addition the father tendered the photograph album he had shown the Family Consultant[25] and a ‘show and tell’ book apparently from April 2014.
[25] Exhibit F2.
At the time of separation B was aged about three and a half and C was aged about one and a half. The father conceded there was a typographical error in his affidavit and that he and the mother commenced living together at the times suggested by the mother which was 2003/2004.
The father said that he did all of the work with regard to the care of the children. I do not regard that evidence as reliable.I accept the father’s evidence that the children have a good relationship with D.
The father has a tendency to exaggerate. An example of this is when the father asserted that B spent time with Mr R learning art. This experience was one day. Another example was in terms of the father’s assertions that he was the primary carer of the children and that the mother did very little.
The father said that the mother’s attitude to sexual abuse was almost at a level of ‘paranoia’, and that he and his present partner needed to put in place protective barriers in anticipation of such an allegation.
Yet the evidence is that whilst the parties were in high conflict the mother had no suspicion or concerns about sexual impropriety by the father with the children and allowed there to be a sensible build-up of time given the age and maturity of the children at the time of separation. The parties had difficulty agreeing, but it continued none the less.
The father’s position is very much set out in paragraph 23 of his affidavit filed 27 January 2016 where he says:-
As the time passed and the number of delays and diversions increased, it became clear that [the mother] had no intention of providing me with equal access to the children and promoting a healthy relationship between us.
The father insisted and the mother acquiesced. This has to be seen in the circumstances where the children were living primarily with the mother since separation, in the Launceston area. The father had chosen to move to the Hobart area at the end of 2013.
The distance between these two places is a good two and half to three and a half hours by car depending on traffic and the need for rest and comfort stops. The children would need to attend a school in one place or the other. They could not attend different schools in different places, not that this was suggested.
The process I will put in place is to direct Dr E and the parties to move towards this end and to restore communication at the same time.
Also, given the fluidity of the situation at present and the need for there to be some mechanism if the mother chooses to obstruct or delay resumption of time, I propose to make an order enabling the question of time to be returned to court without impediment.
Parental Responsibility
Given all of the above I was considering making an order that the mother have sole parental responsibility. However, my concern was that such an order would entrench the status quo.
As such I intend to make an order for equal shared parental responsibility. I acknowledge that in the circumstances of these parents that may prove difficult, however, reelecting on the greater needs of these children and the risks they face in the future, I conclude that this approach better meets their needs.
I am conscious that the provisions of the Act now require me to consider equal time, then significant and substantial time; independently in turn. I have done so and having regard to the discussions earlier, I have determined not to provide time at this juncture. I make it clear that these parents are able to make their own arrangements and the orders that come from this will so reflect.
I certify that the preceding three hundred and eighty seven (387) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 May 2016.
Associate:
Date: 24 May 2016
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