Eccles and Garvey

[2012] FamCA 905

FAMILY COURT OF AUSTRALIA

ECCLES & GARVEY [2012] FamCA 905

FAMILY LAW – CHILDREN - Child related proceedings - interim proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Eccles

RESPONDENT: Mr Garvey

FILE NUMBER: SYC 7150 of 2007

DATE DELIVERED: 30 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 4 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom

SOLICITORS FOR THE APPLICANT: Slater & Gordon

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITORS FOR THE RESPONDENT: Hamish Cumming Family Lawyers

Orders

1. The parties have equal shared parental responsibility for the children.

2. The children shall live with the father as follows:

   (a)during the school term, each alternate week from after school Wednesday to before school Thursday

   (b)during the school term, each other week from after school Tuesday until before school Thursday and from after school Friday until before school Monday

   (c)for one half of the April, July and October school holiday periods, being the second half in even-numbered years and the first half in odd-numbered years

   (d)in alternate weeks during the December/January school holiday period

   (e)on Father’s Day from 9.00 am to 5.00 pm and

   (f)on the father’s birthday from 10.00 am to 4.00 pm.

3. The children live with the mother other than as set out in Order 2.

4. The mother be restrained from causing the children to attend upon any counsellor, psychologist, psychiatrist, therapist and/or social worker or doctor without the written consent of the father or Order of the Court except as to doctors only in the case of an emergency.

5. The mother and father be and are hereby restrained from discussing the proceedings and/or questioning the children about any allegation of sexual assault and they shall use their best endeavours to ensure no other party does the same.

It is noted that the Court also made the following Orders on 4 October 2012

BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT:

1. Pursuant to Part 15.5 of the Family Court Rules 2004 Dr E, Children and Family Psychiatrist, be appointed as a Single Expert Witness to enquire into and report upon matters relating to the welfare of the children,

   
   

   C born … January 2004 and B born … January 2005, and that in preparing the report to the Court, Dr E be requested to consider the following matters:

   (a)whether the children, or one of them, are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence

   (b)whether the children, or one of them, are at risk psychologically from past exposure to psychological counselling or therapy

   (c)any views expressed by the children, or one of them, any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views

   (d)the relationship between the children, each of the parents, and any other relevant person, including the maternal grandparents and Carrie

   (e)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either the parents or any other person with whom the children have been living

   (f)the capacity of the parents to provide for the needs of the children, including emotional and intellectual needs

   (g)the effect on the children of any family violence to which they may have been exposed and the need to protect the children from being exposed to family violence in the future

   (h)the mental state of the parties in so far as it relates to parenting issues

   (i)the mental health/special needs of the children, or one of them, and any recommendation for therapeutic counselling if appropriate for the children

   (j)any other matter the Court Expert considers relevant.

2. The parties be equally liable for the cost of Dr E’ report and within 28 days of the making of these Orders the parties shall pay one half of Dr E’ estimate of fees being the sum of $5,500 into the Trust Account of Hamish Cumming Family Lawyers for payment to Dr E upon completion of his expert report.

3. In the event that there remain monies available subsequent to the receipt of the memorandum of fees from Dr E these monies shall remain in the Trust Account of Hamish Cumming Family Lawyers and are to be returned to the parties in equal shares upon the conclusion of the Court proceedings.

4. In the event that there is a shortfall the parties shall pay such additional sum to meet equally the costs of Dr E within 21 days of a request by Hamish Cumming Family Lawyers.

5. In the event the Single Expert Witness is required to appear to give evidence in this matter, the parties shall be equally responsible for the Single Expert costs in respect of such attendance.

6. The parties shall facilitate the preparation of the Report including attending on and arranging for the children to attend upon the Single Expert Witness.

7. The Single Expert Witness shall be authorised and at liberty to speak to the school that the children are currently attending and any of the children’s treating health care professionals.

8. Leave is granted to the legal representatives to photocopy subpoena material for the purpose of providing the documents to Dr E.

9. The mother is restrained from causing the children to attend upon any counsellor, psychologist, psychiatrist, therapist and/or social worker or doctor (save in the case of emergency) without the written consent of the father or Order of the Court

   AND THE COURT NOTES that it is agreed between the father and mother that the father may take the child B to Dr R for consultation concerning her problem of enuresis.

10. Each of the mother and father is restrained from discussing the proceedings and/or questioning the children about any allegation of sexual assault and shall use her best endeavours to ensure no other party does the same.

11. Pursuant to Section 68L of the Act an Independent Children’s Lawyer be appointed for the children, C born … January 2004 and B born … January 2005.

12. Legal Aid New South Wales is requested to make arrangements as soon as possible for appropriate representation for the children.

13. The Court advise the Senior Solicitor, Family Law Litigation Section of Legal Aid NSW of this order forthwith.

14. Each party make available to Legal Aid NSW within 14 days copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.

15. The hearing of these proceedings be expedited.

16. The matter is listed for final hearing before me on 30–31 January 2013 and

    
    

    1, 7 and 8 February 2013.

17. The matter is listed for mention before me at 9.30 am on Tuesday, 4 December 2012.

18. The listing before the Registrar on 29 October 2012 is vacated.

19. The Court reserves its decision in relation to other orders of the competing applications currently before the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garvey and Eccles 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 SYDNEY

FILE NUMBER: SYC7150 of 2007

Ms Eccles

Applicant

And

Mr Garvey

Respondent

REASONS FOR JUDGMENT

Introduction

1. The primary proceedings before the Court are proceedings between the mother and father of two children.

2. The first child, B, was born on … January 2005 and is 8 years old. The second child, C, was born on … January 2004 and is 7 years old.

3. The proximate proceedings are constituted by applications in the case by each of the mother and the father for parenting orders pending a hearing.

4. The hearing of the matter has been expedited and is fixed before this Court in January and February 2013.

5. A number of orders were made as set out above to come into effect forthwith and those orders were largely the product of concession or agreement made or given in the course of the interim hearing.

6. A decision on the parenting orders sought by each of the parties was reserved.

7. The interim proceedings received affidavits from each of the mother and the father, the father’s partner and psychologists who had seen the children or either of them.

8. Also tendered to the Court was a large volume of documents produced on subpoena by the Department of Children’s Services (“the Department”) as it was formerly known (now the Department of Family and Community Services), the Police and, in particular, officers of the Joint Investigation Response Team (“JIRT”). Documents were also placed before the Court in the form of hospital notes, doctors’ notes and information provided by the children’s school.

9. The mother asserts that the children of the parties are at risk of sexual abuse perpetrated by the father and seeks an order that, pending the hearing of the matter, the existing orders for the father to have contact with the children be suspended.

10. She says that she is supported in her view by the observations of psychologists retained by her, who derived their history of the matter from her and who did not have the opportunity to consult with the father or see the documents which the Court has seen produced on subpoena.

11. The father asserts that the children are at risk of psychological harm and sexual abuse by reason of the mother’s false and obsessive allegations that the children have been subject to sexual abuse at his hands.

12. He asserts that he is supported in his view by the decisions of the Department and its view of the matter, which led to a child safety plan being formulated and acceded to by the mother. That plan was specifically to prevent the mother from pursuing claims said by the Department to be unfounded and putting the children at risk by such conduct.

13. Of course in this matter, as in any matter of this kind, the Court is obliged to be cautious. The evidence before it is untested. However in this case unlike most there is a plethora of such evidence from third parties.

14. The parenting arrangements for the children are presently governed by orders of the Federal Magistrate’s Court of Australia made on 2 March 2009 to the following effect:

    a)the parents have equal shared parental responsibility for the children

    b)the children live with the mother

    c)the children spend time with the father on alternate weekends during school term from Friday afternoon until Monday morning, and at other times, including during school holiday periods

    d)the children spend time with the father on Father’s Day and on the father’s birthday

    e)the children spend time with the mother on Mother’s Day and on the mother’s birthday

    f)the children have telephone contact once daily with their mother/father on the days that they are with the other parent and

    g)other orders.

1. The orders sought by the mother on an interim basis are:

   1.That leave be granted to serve this Application on short notice.

   That pending further Order:

   2.That Orders 5, 6 and 9 of the Orders made on 2 March 2009 be suspended.

   3.That the father be restrained from spending any time with, communicating with or approaching C born in January 2004 and B born in June 2005 (‘the children’).

   4.That the father be restrained from collecting the children from their school.

   5.That an Independent Children’s Lawyer be appointed.

   6.That pursuant to Division 15.5.2 of the Family Law Rules 2004, a Single Expert Witness be appointed to inquire into and report upon matters pertaining to the welfare of the children.

2. The orders sought by the father on an interim basis are:

   1.That the Orders of 2 March 2009 be discharged.

   2.The Father have sole parental responsibility for C, born in January 2004 and B, born in January 2005 (“the children”).

   3.In the exercise of parental responsibility, the Father shall advise the Mother of any decision he makes in respect to the long term care, welfare and development of the children.

   4.The children live with the Father.

   5.The Mother spend time with the children supervised by D Services or such other service as agreed to by the parties.

   6.In the alternative to Orders 2 – 4 above:

   6.1The parties have equal shared responsibility for the children.

   6.2The children shall live with the Father as follows:

   i.During the school term, each alternate week from after school Wednesday to before school Thursday;

   ii.During the school term, each other week from after school Tuesday until before school Thursday and from after school Friday until before school Monday;

   iii.For one half of the April, July and October school holidays periods, being the second half in even numbered years and the first half in odd numbered years;

   iv.In alternate weeks during the December/January school holiday period;

   v.On Father’s Day from 9.00 am to 5.00 pm; and

   vi.On the Father’s birthday from 10.00 am to 4.00 pm.

   6.3The children live with the Mother other than as set out in 6.2.

   6.4The Mother be restrained from causing the children to attend upon any counsellor, psychologist, psychiatrist, therapist and/or social worker or doctor without the written consent of the Father or Order of the Court.

   6.5The Mother be restrained from discussing the proceedings and/or questioning the children about any allegation of sexual assault and shall use her best endeavours to ensure no other party does the same.

   6.6That if the Mother does not comply with and facilitate the father having time with the children pursuant to Order 6.2 or comply with Orders 6.4 and 6.5, the Orders 2 – 5 shall apply.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. The mother was born in 1974 and is currently 37 years old. The father was in 1968 and is currently 43 years old.

3. The parties commenced cohabitation in 1996 and were married in 2003.

4. The parties’ first child, C, was born in January 2004 and is 8 years old. The parties’ second child, B, was born in 2005 and is 7 years old.

5. The parties separated in December 2006 and a divorce order was made on

   
   

   25 May 2008. Final parenting orders were made on 2 March 2009.

6. From March 2009, the mother began alleging that the children became distressed before spending time with the father. She also began alleging that the children seemed disturbed and upset after spending time with the father.

7. The mother asserts that she began taking the children to see a child psychologist, Ms F, in February 2010. However, the father asserts that the children first saw Ms F in December 2009.

8. On 28 November 2010, the mother reported allegations of sexual abuse by the father to the New South Wales Police. The mother presented a videotape to the Police in which she had recorded the children touching their genitals and conversing about the alleged sexual abuse by the father. The children were subsequently interviewed by JIRT and the father was called to G Town Police Station to be interviewed.

9. On 18 February 2011, the father received a letter from JIRT advising him that the mother’s report of sexual abuse in relation to the father had not been confirmed and that the case was closed.

10. In February or March 2011, the children began consulting with Ms H at the suggestion of Ms F.

11. On 16 March 2011, the children attended Child and Adolescent Sexual Assault Counselling at J Centre. On 27 April 2011, a notification was made by J Centre regarding a disclosure by B. This was rejected as a referral to JIRT.

12. On 6 June 2011, the mother took the children to the Suburb K Hospital. The hospital refused to examine the children as no disclosures had been made.

13. The father asserts that on 16 June 2011, the mother took B to Dr L, who conducted a physical examination.

14. The mother asserts that on 18 August 2011, she took C to Dr L after an alleged disclosure was made.

15. The father asserts that on 4 October 2011, the children were interviewed by JIRT.

16. The father asserts that on 28 March 2012, the mother made a report to the Department regarding allegations of sexual assault.

17. The father’s evidence is that on 28 March 2012, the children were again interviewed by JIRT.

18. The father’s evidence is that on 7 May 2012, the mother reported an alleged disclosure of sexual assault made by C to Suburb M Police Station.

19. In July and August 2012, B attended sessions with psychologist Ms N of P Psychotherapy. A notification was made to the Department by Ms N in late August 2012.

20. In August and September 2012, C attended sessions with psychologist Ms O of P Psychotherapy. The mother asserts that she made a notification to the department.

21. On 4 September 2012, B was interviewed by JIRT.

22. On 10 September 2012, the children spent time with the father. This was the last occasion on which the children spent time with the father.

23. On 19 September 2012, the mother filed an Initiating Application and the father filed a Response to Initiating Application in Court.

24. On 24 September 2012, a JIRT assessment found that the children were safe, provided that the mother complied with the Safety Plan. The JIRT assessment found that sexual harm was not substantiated but that psychological harm to B was.

25. On 25 September 2012, a JIRT Safety Assessment Decisions Report on the mother found that there was an indication of danger to the children in her household.

26. On 26 September 2012, a JIRT Safety Assessment Decisions Report on the father found that there was no danger to the children in his household.

The Issues

1. What, if anything, is the source, nature and extent of risk to the children’s welfare pending hearing which would require a variation of the existing orders?

2. What is the arrangement for change, if any, which will lead to a mitigation of the risk of harm to the children from whatever source?

3. Should other orders be made in addition to such variation of parenting orders as the Court considers appropriate?

Relevant Law

Legal principles

1. The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see section 60CA). In determining what is in the children’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.

2. I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children’s best interests being treated as paramount (see section 60CG).

3. I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.

4. I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

5. Section 61DA(1) requires that:

   …  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Subsection (4) provides as follows:

   …  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the children’s parents are to have equal shared parental responsibility.

Section 60CC Considerations

Primary considerations

1. The proceedings are interim proceedings but the Court must have regard to those parts of Section 60CC which are relevant to its determination of this matter on an interim basis, given that there are presently parenting orders in place with respect to these children. In particular, the Court must have regard to:

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

1. Ideally children should have a meaningful relationship with each of their parents providing that the pursuit of such relationship does not pose an unacceptable risk of harm to them. In circumstances where it does not and where there is no reason otherwise inimical to the children’s welfare by reason of which it should not be promoted, a Court will support the maintenance and retention of such a relationship.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. This is the nub of this case and the issue for final trial. To make a decision on the untested evidence before the Court is not without attendant difficulties, however, the Court has made arrangements which mean that in the ordinary course such testing may occur in the early part of next year having already fixed dates for trial. Any order it makes now will not bind it on the hearing of the matter.

2. The Court has considered the affidavit material produced and part of the significant documents produced on subpoena, which were tendered before the Court.

3. The mother asserts that the children are at a risk of harm in the care of the father. The children have made disclosures on the mother’s evidence and on the evidence of the psychologists, which gave them sufficient concern to report the statements made by the children to the Department.

4. There have been four investigations by the Department. In addition, the children have been referred by the mother to the Child Protection Unit of a Sydney Hospital. There has not been found any risk of harm to the children by either of those entities as has been asserted.

5. There is, however, a concern that the reports of the psychologists before the Court are based on interviews conducted with the children in circumstances where the children might have been of the view that their mother could overhear them conversing. The psychologists’ conclusions are ones which are made without the benefit of any conversation with the father, nor with the benefit of reading the extensive material which has been subpoenaed from the various bodies set out above.

6. The Department has, in relation to its conclusions that no abuse as is alleged exists, produced documentary records of the process it applied to the investigation including transcripts of interviews with the children. Reading those transcripts it seems that the Department’s conclusions are justifiable on the evidence that was before them.

7. Indeed, the Department’s conclusions that the child was at risk from the mother’s continuing hostility towards the father, and her pursuit of allegations which they at least found unsubstantiated, led them to conclude that the real danger to these children emanated from the mother.

8. Following that conclusion, the Department sought consent to a Safety Plan and the mother executed such a plan. The Court is informed that the nature of these safety plans is to provide a last opportunity for someone about whom concerns have been held as an abusive person to mend their ways and avoid the Department taking more drastic action. The Safety Plan in this instance was directed to the mother as a source of concern.

9. The mother refers to physical indicia of sexual assault such as abrasion and the like. The children consulted a general practitioner and were seen by a hospital Child Protection Unit. The children were not the subject of physical examination by reason of the fact that no disclosure which would justify that process had been made by the children and, in those circumstances, the hospital declined to subject the children to that procedure.

10. The mother asserts that her conduct in taking the children to professionals has been a responsible reaction to her concerns arising out of what she reports the children have said to her.

11. The father points out that the children have been the subject of references to psychologists (for sexual assault counselling), general practitioners, child protection units and the Department on four occasions since December 2009 (B was also the subject of a physical examination on 16 June 2011). The children have also been assessed by JIRT on more than one occasion. B was most recently seen by the Department in September 2012.

12. The father asserts that the above references have produced no conclusion which provides support for the mother’s concerns. Indeed, the father asserts that those references support the Department’s view that whilst in the father’s house the children are not the subject of concern of being harmed, but that such concern exists in relation to their presence in the mother’s house.

13. The subjection of these children to counselling, based on the acceptance of untested evidence as to the reason for such counselling, is concerning.

14. In a sense, the process of constant investigation, interrogation and suggestions to which these children have been subjected apparently more than once, a process which has emanated from the mother in her questions of them inferring that the father has perpetrated sexual abuse upon them, has of itself been a form of abuse of these children and one that, it is submitted by the father, is properly to be regarded as sexualising the children.

15. In the process which has been the sad history of these children, a psychologist employed by the Department suggests that the children are in danger of systems abuse.

16. The mother has filmed and recorded the children, including making what is described as an explicit visual recording of them, which in its nature is said to be abusive of the children.

17. The mother made no mention in her affidavits of the most recent interview of B, a matter which the Court finds strange. The mother makes no allegations of disclosures from the children in the second part of this year. The children have had discussions with a number of psychologists.

18. It should be noted that the father has and continues to deny any abuse. He has co-operated fully and in a timely fashion with all the investigations launched by either the Police or the Department.

19. It is suggested by the mother that the spotlight and glare of publicity now attendant to her interaction with the children is such that it would in itself have a restraining effect upon her conduct. She asserts that injunctions of the type sought by the father would therefore not need to be made.

20. True it is that the conduct of the parties from this time forward will be vital and, one would hope, restrained and appropriate. Certainly what they do and say will undoubtedly be the subject of reportage in the proceedings.

21. However, in order to reinforce the desirability of the result sought to be achieved and to encourage a desirable climate for these children in the interim, the Court will make the injunctive orders referred to above.

22. The mother submitted through her Counsel that the father’s views of her border on paranoia. If the father’s assertions were proved to be correct, there would be little difficulty in accepting that that assertion was clearly untrue. The mother’s Counsel conceded that the relationship between the mother and the father was toxic. There is a suggestion in the documents that the mother hates the father.

23. It appears that there were defended proceedings in which the mother sought to relocate with the children to Q Town. Those proceedings were dismissed.

24. The child B is reported as saying that she had been told that if she saw one of the psychologists called by the mother they would be able to go to Q Town.

25. The mother said through her Counsel that it was never her wish to go to Q Town and that the statement did not come from her.

26. It was subsequently revealed that there were defended proceedings which were dismissed as pointed out above. It is not suggested that the Court was in any way deliberately misled by Counsel for the mother, but the state of his instructions seems to have been clearly less than complete.

27. The “disclosures” which have been made by the children to the Department were delivered, it is reported, in a wooden manner and the Department came to the conclusion that they were the product of coaching.

28. The mother sought to suggest that the Department’s qualifications were not such as would give this conclusion great force, but the reality is that this function is a core activity of the Department and a continuing area of its practice and expertise. The Department functions independently of the parties and the Court would not without clear reason simply discard and ignore the conclusions it has come to.

29. The mother asserts that, issues of safety aside, changes to the current parenting arrangements would be disturbing to the children. The children have lived variously with each of the mother and father for some time and it is not accepted that there is real concern that a change of itself would be a problem for them.

30. The Court is faced with allegations that these children are at risk of harm in the care of each of their parents. In the Court’s view there is evidence provided, particularly by the Department and the Hospital, which gives cause for concern that the abuse being perpetrated on these children does have its origins in the mother’s continuing and constant assertions.

31. On the material, in particular the reports of the Department and its failure to find substance in those reports, the Court is of the view that abuse in the father’s household is less likely than in the mother’s household.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children are 7 and 8 years old and therefore of an age where their views would carry but small weight. This is not to say that their views should not be considered, but rather that the children’s maturity levels would make it difficult for the Court to draw strong inferences from the views expressed by them.

2. Further, in evidence before the Court are counter-allegations that the children have been “coached” by the mother to disclose incidences of sexual abuse allegedly perpetrated by the father prior to being tested, such evidence limits the weight that can at this time be given to the views expressed by the children.

(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

1. Since parenting orders were made on 9 March 2009, the children have spent time with both the mother and the father. The children have spent more time with the mother than with the father, however, the amount of time spent with the father has been roughly six nights in every fortnight and therefore sufficient to ensure that a relationship has been maintained with each parent.

2. Each parent asserts that they have maintained a close loving relationship with the children since separation. However, each parent asserts a grave concern for the wellbeing of the children when in the care of the other parent.

3. Counsel for the father asserted that there is objective evidence from school reports to support the view that there is a good relationship between the father and children.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. Each parent has expressed grave concerns for the wellbeing of the children when in the care of the other parent and therefore neither has shown a particular willingness to facilitate or encourage a close and continuing relationship between the children and the other parent at this time.

2. The mother has proposed orders to the effect that the father has no contact with the children, whereas the father has proposed orders to the effect that the mother have limited supervised contact with the children. As such, the father has showed a greater willingness than the mother to encourage and facilitate a close and continuing relationship between the children and the other parent.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Counsel for the mother asserted that it would likely damage the children’s relationship with the mother if the orders sought by the father were made and they were deprived of all but limited hours of contact with her under supervision. The mother points to reports of the closeness of her relationship with the children and asserts that the father’s proposed orders would introduce a different set of dynamics, causing the children distress and confusion. She also asserts that this would make Order 30A expert report difficult. The Court observes that, if that were a valid observation, the same would be true in the event that the orders sought by the mother were made.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. The parenting arrangement since separation has been such that the children have spent time with both the mother and the father. Seemingly this arrangement has not caused any practical difficulty or special expense for either parent, as neither the mother nor the father has raised this as a concern.

(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. On the evidence before the Court at present there is nothing to suggest that either parent lacks the capacity or means to provide for the physical, material and intellectual needs of the children.

2. The father is engaged in full-time employment but evidence was given that his working arrangements are somewhat flexible, such that he would be able to care for the children on a full-time basis.

3. The mother is engaged in home duties and there is nothing to suggest that her current ability to care for the children will change in the foreseeable future.

4. The nature of the allegations made by the mother and the counter-allegations made by the father are such that one or other of the parents’ capacity to provide an emotionally and physically safe environment for the children could be called into serious question once the evidence has been fully tested. This is again the nub of the matter and the issue for final trial.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. On the evidence before the Court, no such factors appear to be relevant to the proceedings at this stage.

(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

1. This is not applicable in this matter.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The allegations of the mother and the counter-allegations of the father have not been fully tested but, if found to be true, may bear considerable weight upon either of the parents’ attitude towards the children and capacity to parent in a responsible manner.

2. Both the mother and father have shown a desire to maintain strong relationships with the children and, on the evidence before the Court, both have been largely compliant with and accommodating towards the shared parenting orders that were made in March 2009.

(j)any family violence involving the child or a member of the child’s family

1. The mother asserts that during the marriage the father showed aggressive and controlling tendencies. This issue was raised by Counsel for the mother at hearing, however it was not a focal point given the primary allegations of sexual abuse that are to be tested.

2. The allegations of sexual abuse against the children by the father and any associated allegations of violence have been considered above and do not need to be dealt with again here.

(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person

1. There is no evidence of any such order currently before the Court.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. It is always undesirable for children to be the subject of litigation between their parents. As this is an interim application, however, there will be further proceedings and final orders will not be made until early next year pursuant to the dates that have been fixed for final hearing.

Section 60CC(4) & (4A)

1. I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

1. Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children at this time for the reasons specified above.

Section 61DA

1. This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.

2. The presumption does not apply where there has been family violence. In this case there are issues of family violence to be determined.

3. Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.

4. The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.

5. In this case, since the evidence of the parents and other witnesses is untested, it is not proposed other than that the shared parental responsibility continue.

Section 65DAA

1. This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.

2. The order I propose to make will afford each of the parties substantial time with the children and I find that to be in their interests.

The Orders to be made

1. I therefore propose to make the orders in relation to parenting as set forth above.

2. The Court has appointed an Independent Children’s Lawyer and an expert to prepare yet another assessment of these children. It has made injunctions restraining conduct that it considers inappropriate if inaugurated or continued.

3. The Court declines to make the orders sought by the mother. The basis for the formation of a view that the children are the subject of unacceptable risk in the father’s care is not accepted as at this time having been made out. The Court is concerned at the risk to the children that was demonstrated by the independent material before it in relation to the children in the mother’s care. The Court has fixed hearing dates in January and February of 2013.

1. In the circumstances, the Court will make orders in accordance with the provisions of orders 6.1 to 6.3 of the orders sought by the father.

2. The Court has come to the conclusion that such Orders will best serve the interests of the children on an interim basis until the hearing when all the evidence can be tested.

I certify that the preceding one-hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 30 October 2012.

Associate:

Date:  30 October 2012