Edkins and Felice

[2020] FamCA 659

FAMILY COURT OF AUSTRALIA

EDKINS & FELICE [2020] FamCA 659

FAMILY LAW – CHILDREN – Interim parenting – Where the mother did not press her contentions in relation to the father’s alleged violence towards herself, his mental health difficulties or substance misuse at interim hearing – Where the mother contends that the parties’ son has been sexually abused by two of the father’s step children – Where the mother asserts ongoing risk in the father’s care as he does not believe that the sexual abuse occurred and is failing to act protectively – Where the mother also maintained that the father has been physically aggressive towards the children in the past and poses some risk in this regard – Where the mother seeks the continuation of the short term interim orders made by consent at the interim hearing providing for limited unsupervised time with the father and also seeks a restraint on the father allowing the children to come into contact with his step-children – Where the father seeks a dismissal of the mother’s interim application such that the former interim orders that provide the children live with the mother and spend alternate weekends with him continue and proposes an additional order that he be required to ensure that the son not sleep in the same room as his stepson and that he or his partner “properly supervise” the son to ensure that he not be exposed to any form of abuse – Orders made as sought by the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Edkins

RESPONDENT: Ms Felice

INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

FILE NUMBER: PAC 1627 of 2018

DATE DELIVERED: 11 August 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 29 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Anderson Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Rafton Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Shedden & Associates

Orders

1. The mother’s Application in a Case filed 17 April 2020 is dismissed.

Pending further order

1. The orders of 6 March 2019 are confirmed such that the father’s alternate weekend time with the children is to resume this Friday, 14 August 2020.

2. The father shall ensure that:

   (a)       The child X does not sleep in the same room as Mr B; and

   (b)       X is properly supervised by himself or his partner Ms C so as to ensure that X is not exposed to any form of abuse.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edkins & Felice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1627 of 2018

Mr Edkins

Applicant

And

Ms Felice

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties cannot agree about the future parenting arrangements for their eight year old daughter (“the daughter”) and six year old son (“the son”) (collectively “the children”) following the breakdown of their relationship.

2. In March 2019 interim parenting orders were made which provide for the children who live with the mother to spend alternate weekends with the father.  The children spent time with the father in accordance with these orders until mid-December 2019 when it was unilaterally suspended by the mother.  The parties then returned to the Court for the purpose of seeking orders to re-establish the children’s time with their father.

3. It had been the mother’s contention up until the time of this interim hearing that the father poses an unacceptable risk of harm to the children on the basis that he is unable to regulate his anger. She also has contended since suspending the father’s time that the children are exposed to an unacceptable risk of harm in the his care as a result of his failure to respond properly to allegations of sexual abuse said to have been perpetrated by two of his step-children.

4. The mother had sought in her application that the current interim orders be suspended and the children’s time with the father take place at a contact centre to mitigate the risk that she contended he poses to them. At the interim hearing she changed her position and proposed orders that would see the children spend unsupervised time with the father each alternate Sunday for six hours in an area close to her home. She continues to propose a restraint on the father allowing the children to come into contact with his step-children. A further proposed order requiring the father to complete a program with respect to family violence was  not pressed at hearing.

5. The father had sought interim orders that the children live with him and that their time with the mother be as determined by the Court. He also changed his position at the hearing and now seeks that the mother’s application be dismissed with the result that the current interim orders continue to operate. He also proposes an additional order that he be required to ensure that the son not sleep in the same room as his stepson and that he or his partner “properly supervise” the son to ensure that he not be exposed to any form of abuse. It is his case that the children are not at any risk of harm under the current interim parenting arrangement.

6. As the mother changed her position at the interim hearing and proposed orders that would see the children have some unsupervised time with the father, the parties reached agreement on a short term interim basis pending this judgment that the father’s time be reinstated immediately in accordance with the mother’s proposal. Her application that this arrangement continue pending further order and the father’s application that the current interim orders continue to operate was then reserved.

Background

1. The parties who are now in their early thirties met online and commenced a relationship in May 2011.  The mother became pregnant with the parties’ daughter the following month. 

2. The parties lived for a short time together in the maternal grandparents’ home until they found rental accommodation with another person.

3. The mother contended in the Outline of Case filed on her behalf that the father has engaged in family violence towards her for most of their relationship.  It had also been her case that the father’s conduct is associated with difficulties with his mental health and misuse of alcohol and illicit substances.  The father disputes the mother’s allegations of violence and her claims about his mental health difficulties and drug misuse.

4. The parties’ daughter was born in 2012. Both parents had some involvement in the care of the child as an infant though the mother was her primary caregiver.

5. In about February 2013 the parties returned to live with the maternal grandparents. 

6. The son was born in 2014 when the parties were still living in the maternal grandparents’ home. Both parents were also significantly involved in the day to day care of this child.

7. As I understand it one of the mother’s contentions in relation to risks to the children in the care of the father also concerned the paternal grandfather who she alleged had also been violent towards herself and the children.  In particular she deposes to an incident of physical abuse of the son as an infant in March 2014.  I also understand this to be disputed by the father. 

8. In February 2015 the parties and the children moved again to rental accommodation and for the first time began living as a family together in their own home.

9. In 2015 the parties married. 

10. By mid-2016 the parties’ relationship had ended and they separated on a final basis with the father moving out of the former family home.  The children remained living with the mother. 

11. It is also the mother’s case that the father was physically abusive towards the children though this is disputed by the father.  It had been her case that the father was violent towards the daughter around the time of separation when that child was four, though this was not pressed at the interim hearing.

12. Notwithstanding the mother’s contentions about the risks posed by the father he returned to the former family home for a few weeks in September 2016 in an attempt for the parties to reconcile which was unsuccessful.

13. The mother alleges that the father broke into her home in December 2016 in an attempt to intimidate her and stole some of her property at the time. Shortly thereafter she began to receive support from a domestic violence advocacy service.

14. The parties appear to have reached some sort of agreement in relation to the father’s time with the children which by December 2016 included overnight stays.  The mother reports some concerns about the father’s unreliability in returning the children and suspicions she had about his alcohol use at the time but from the father’s perspective his time with the children went well. 

15. At the beginning of 2017 the daughter began school.  The father attended at the school on her first day and spent time with both children without incident at the maternal grandparent’s home in February 2017. 

16. In March 2017 the mother had claimed that there was a further incident in which the father was violent towards the daughter which he denies. After this incident the mother insisted that the children’s time with the father be supervised in some way.

17. In April 2017 the father moved to the D Region.

18. By December 2017 the father had formed a relationship with his current partner (“the father’s partner”) who has three children from a former relationship then aged nine, six and five years respectively (“the father’s step children”). Two of the father’s step children had been the victims of sexual abuse perpetrated by the former de-facto partner of the father’s partner.

19. The parties make allegations about each other’s conduct in December 2017 and the early months of 2018.  The mother alleges that the father continued to be verbally abusive and threatening and the father contends that the mother unilaterally imposed conditions on the children spending time with him. 

20. In April 2018 the father commenced proceedings in the Federal Circuit Court of Australia seeking orders in relation to the children’s time with him. 

21. The following month there was an incident at the children’s school to which police were called in relation to complaints made by the mother about the father’s conduct. 

22. Little progress was made in the proceedings throughout 2018 other than the parties attending a Child Inclusive Conference with a family consultant in July 2018 and consenting to interim orders later that month providing for the children to have supervised time with the father and for him to undergo hair and urinalysis testing. At that time it appears that the mother had concerns about the father’s alleged use of illicit drugs though this concern appears to have fallen away.

23. The children spent time with the father supervised by a private agency on 12 fortnightly occasions between September 2018 and late February 2019.

24. In December 2018 the mother consulted her general practitioner who recommended treatment with respect to her mental health.

25. On 6 March 2019, the day the proceedings were listed for a further interim hearing in the Federal Circuit Court, the parties again consented to interim orders for the father’s time with the children which was to increase to each alternate weekend and become unsupervised.

26. The children spent time with the father in accordance with these orders until mid- December 2019. In addition to the weekend time provided for in the orders it appears that the parties had also reached agreement about school holiday time and the children spent time with the father pursuant to this agreement in September/October 2019.

27. On 20 December 2019 the mother advised the father via text message that the children would not be made available to spend time with him as agreed during the Christmas school holiday period. He later became aware from the ICL that the mother had raised concerns about his alleged aggression towards the children and sexual abuse in his household as the basis for refusing to facilitate this contact. He did not find out the details of these alleged events until he made enquires of the police.

28. Although the mother took the son to a police station to report the sexual abuse and also made numerous reports to the Department there has been no investigation by either agency into any complaint and the father has not ever been interviewed about the allegations.

29. It is the mother’s case that from about May 2019 the children reported to her that the father was physically abusive towards them and his step children.  The mother also alleges that from as early as July 2019 the son disclosed to her that one of his step sisters “pulls down my pants and puts her finger in my bottom hole”.  She contends that on 15 December 2019 the son disclosed to her that the father’s step son “sucked my doodle and licked my nuts” and for this reason she ceased making the children available to the father.

30. The only contact between the father and the children since mid-December 2019 has been by way of a weekly video call.

31. On 19 February 2020 the proceedings were transferred to this Court and on 30 April 2020 the matter formed part of the Magellan protocol and a Magellan Report was ordered.[1] Although the Magellan Report is to be furnished within six weeks of the request it had not been provided by the Department when the interim application was heard.

    [1] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.  A Magellan report sets out the involvement of the Department of Communities and Justice with the family.

32. The mother did not make application to suspend or discharge the existing orders until 15 April 2020 when she filed this application seeking to suspend the current interim orders for the children’s time and replace them with orders the would see that time reduced and supervised at a contact centre at the father’s expense.

Allegations of Risk

1. Although when considering interim orders, the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the Court may and in some circumstances must have some regard to the matters in dispute. This is such a case as the allegations give rise to serious risks of harm if proven as alleged.

2. In SS & AH[2], the Full Court said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2] [2010] FamCAFC 13.

3. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[3], a decision of the Full Court citing Deiter & Deiter[4]).

   [3] [2013] FamCAFC 182.

   [4] [2011] FamCAFC 82.

4. In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court

5. It had been the mother’s case up until the interim hearing that the children and in particular the son are at an unacceptable risk of harm in the care of the father on two bases.  She first contends that the son has been sexually abused by two of the father’s step children when spending time with the father and as the father does not believe that this has occurred and is failing to act protectively there is an unacceptable risk that sexual abuse will occur in his household again.

6. In other words the mother seems to base her case only on the likelihood of the harmful events occurring. Although in my view the severity of the impact caused by sexual “abuse” perpetrated by a young child may not be as great as if perpetrated by an adult I need not make a finding as to this matter as I consider there is little likelihood of the occurrence of the harmful events under consideration for reasons I will come to.

7. The mother had also contended from an early stage in the proceedings that the father’s mental health difficulties, combined as I understand it with his misuse of alcohol and illicit drugs causes him to behave in such a manner that there is an unacceptable risk that he will physically abuse the children or expose them to  his family violence. On this basis since April 2020 the mother had proposed that the only way to mitigate the risks of harm posed by the father or others in his household was through orders that the children’s time with him be limited and supervised and for restraints to be made upon the father allowing the children to have contact with his step children.

8. At hearing the mother did not press any contentions in relation to the father’s alleged violence towards herself, mental health difficulties or drug or alcohol use. She maintained that the father had been physically aggressive towards the children in the past and appeared to suggest that he currently poses some sort of risk in this regard.  The mother also maintained her position about risks posed in the father’s care on the basis of the conduct of his step children.

9. The father denies all of the mother’s allegations of physical abuse said to have been perpetrated by himself against the children including by way of discipline and in relation to his step children. He also denies that his step children have sexually abused the children as alleged or that they poses any risk to the children on this or any other basis.

Harm arising from sexual abuse

1. It is the mother’s case that in July 2019 the son who was then aged five reported to the maternal grandparents that his step sister had been pulling his pants down.  The mother deposes that when she asked the son about this matter he told her that the step-sister “takes me into the room and pulls down my pants and puts her finger in my bottom hole”.

2. There is no dispute between the parties that the mother raised this matter with the father at the time it had been reported to her. The father deposes that after the mother raised this allegation with him he spoke to his step-daughter who denied it had happened and became very upset. He also says he spoke to the son about the matter and the son admitted to telling his mother a story to get his step-sister into trouble. The father says that there have been no matters of concern raised about his step daughter’s behaviour at school and he has observed nothing untoward in her behaviour towards the children. The father does not believe that his step daughter behaved in this manner towards the son.   

1. According to the mother’s affidavit she took the son to see a general practitioner six days after the child’s disclosure but the doctor found that the child’s perianal area “looks normal”.  The mother also deposes to reporting the incident to the Department but there is no indication that the Department took any further action.

2. According to the mother’s affidavit the son told her that the father had believed the step daughter and chastised the son for making up lies. There is no evidence to suggest that the parties discussed the incident again.

3. The mother deposes that since September 2019 the children have told her that they did not want to go to their father’s house and that the daughter becomes “extremely distressed” about spending time with the father reporting “I don’t want [the son] going there on his own because he won’t be safe”.

4. Records of the Department indicate that there was a complaint made in November 2019 concerning the father’s alleged violent behaviour in the presence of and towards the children but concerns about sexual abuse were not raised again at this time.

5. The mother ceased making the children available to the father after reports were made on 15 December 2019 when the children returned from their weekend time with the father about a further incident of sexual abuse by another of the father’s  step children.  Once again the mother deposes to the son reporting his concerns to the maternal grandmother first and when the mother came into the room at the maternal grandmother’s request she asked the son what had happened. According to the mother’s affidavit the son said words to the effect of “[the father’s step son] sucked my doodle and licked my nuts”.  The mother deposes to being shocked and taking the child to the police station to report the matter and also reporting it to the Department. 

6. According to the mother’s affidavit later that night after the police report was made the son also told her that his step brother had asked the son to “smell his bum”. 

7. The mother deposes that she did not raise the matter with the father immediately as she feared his reaction would be the same as when she made complaint about the last incident of sexual abuse. 

8. According to the affidavits of the father and his partner there was no opportunity for the father’s step son who was aged seven in 2019 to have sexually abused the child as alleged.  Each of them deposes in significant detail about the events of that weekend which included a day out with another family in which the adults and nine children all played happily together. Both depose that they did not observe any inappropriate behaviour involving the seven year old step son and/or any of the other children.  The father also deposes that he has not ever heard the son use the words “doodle” or “nuts”. 

9. Due to the nature of the incident, the lack of opportunity and his observations of the children, lack of complaint and the language said to have been used by the child the father does not believe that his step son has sexually abused his son. 

10. Although the incident was reported to police and the Department soon after it was said to have been reported by the son to the mother, the father has not ever been interviewed by either agency in relation to the matter.

Harm arising from the father’s violence towards the children

1. As noted earlier in these Reasons it is a matter of significant dispute between the parties that the father was a perpetrator of family violence towards both the mother and children when the relationship was intact.  It appears that it had been the mother’s contention up until the time of the interim hearing that there is an unacceptable risk that the children will be harmed by being exposed to future family violence.  

2. The mother did not press this contention at the interim hearing and relied on an affidavit that did not contain evidence of these matters. Her proposal that the father spend unsupervised, albeit more limited time with the children than under earlier arrangements is consistent with her consenting to previous parenting arrangements whereby the father’s time with the children was unsupervised. She must be taken in these circumstances to have abandoned any previous claim that the father was violent towards her when the relationship was intact and poses a risk of harm to the children in the future on this basis.

3. The mother did not however resile from her allegations that the father had been violent and physically abusive towards the children and on this basis may be seen to pose a risk to the children in the future. She cannot however maintain that any risk posed by the father in this regard is unacceptable as she proposes orders that the children spend unsupervised time with him.

4. According to the mother’s affidavit on around 18 to 19 May 2019 when the son returned from a visit with his father he had a bruise on his arm.  When the mother asked this child where this bruise had come from she says that the child who was four reported “dad grabbed me and took me to my room”.  The mother says that she took the son to the doctor the following day to have the bruise checked but the doctor noted that the bruising was minor and not tender or sensitive to touch. 

5. It appears to be the mother’s case that her concerns about the father’s physical abuse of the children are also founded upon the children’s complaints about the father’s conduct towards his step children or at least one of them.  According to the mother’s affidavit in November 2019 the children returned from the father’s home and told her that he had grabbed the youngest of his step children (who she believed to be around six) by the hair and dragged her to the room when the father’s partner was at work.  The children were concerned that the father’s step daughter would not report this matter to her mother out of fear that the father would become angry.  The mother deposes to reporting this incident herself to the Department due to her concerns about the father’s step children. 

6. The mother also deposes that following their time with the father in early December 2019 the children reported that they had to lock themselves in the shed in the backyard as the father had become angry and was “smashing his hands into things”.  The mother says that the son later told her the father had smashed his head into the kitchen table on this occasion and the father’s partner had sent the father out of the room to settle down and the children then returned from hiding in the shed.  The mother claims that the daughter reported to her that the father’s step children hide in the shed when the father is angry.  The mother also reported these matters to the Department.

7. As previously noted the father denies all of the mother’s allegations of physical abuse said to have been perpetrated by himself against the children including by way of discipline and in relation to his step children. According to his partner’s affidavit she has never had to shield the children from the father’s anger and the children have not ever been locked in a shed or room at their home.

8. I accept the submission made on behalf of the father that the entire case concerning any risk posed by the father’s step children as alleged by the mother rests upon complaints said to have been made by the children to the mother.  Although the second of the alleged incidents said to have occurred in December was reported to police the police record contains only a summary of what was reported by the child to them and the child was not ever interviewed by JIRT[5] or any similar agency. 

   [5] The Joint Investigation and Response Team, made up of officers from police and Communities and Justice who investigates allegations of serious child abuse.

9. Even the report to police is problematic as there are inconsistencies between reports of the language said to have been used by the child. The allegation made to police was that the offending child “sucks my balls” which differs from the complaint said to have been reported to the mother that the offending child “licked my nuts”.  Further, although both complaints about the allegedly sexually abusive conduct were said to have first been made to the maternal grandmother, the mother did not rely upon any affidavit filed by the maternal grandmother to this effect.

10. As the entirety of the complaint said to have been made by the son on both occasions depends upon the reliability and accuracy of the mother’s evidence this will require careful scrutiny at final hearing.  Although I do not make any findings at this interim stage for the reasons previously given in accordance with the authorities I am required to assess the probability of the mother’s claim that the sexual abuse occurred as alleged. 

11. So far as the first reported allegation is concerned, not only does it depend entirely on the mother’s evidence of having heard the child’s complaint, there are also discrepancies in relation to the terms of that complaint. It appears to have been first reported that the father’s step daughter then aged nine “poked the child in the bottom” which later is recorded as an allegation that the step daughter “puts her finger in my bottom hole”.  It appears that the context of this allegation was that the son himself had been poking people in the bottom and the mother and maternal grandmother questioned him about why he was doing this.  In my view it seems more likely that a court would find that the child was reporting quite benign contact between himself and his step sister which may have become embellished over time.  A doctor to whom the child was taken found no matters of concern and the Department did not investigate the complaint any further.

12. So far as the second complaint is concerned it is likely in my view that weight will be attached at final hearing to the father’s evidence about a lack of opportunity for the particular incident to have occurred. I agree that consideration will be given to the likelihood that such behaviour if it had occurred would have been observed by one of the nine children present together on that day as well as the inherent unlikelihood of the act concerned having been perpetrated by a six or seven year old child.  There are also discrepancies in the language used by the child as previously noted and there is no context provided for the disclosure. 

13. Further, according to the police record, when the mother took the child to the police station to repeat his claim the mother herself is recorded as saying that she did not believe the son was aware of what the words used actually mean which casts doubt on this being an accurate description of the events.

14. Further, the father contends that documents produced on subpoena from a psychologist with whom the mother is engaged indicate that the mother has current and ongoing issues with anxiety and depression. He contends that this reduces the likelihood that her evidence concerning the child’s disclosure is accurate.  I am unable to make any assessment about the impact of these matters upon the likely accuracy or reliability of the mother’s evidence. 

15. In my view there are sufficient features relating to the mother’s account of the child’s disclosures to her on each occasion (which is the only evidence supporting the contentions that the step children have sexually abused the son) which cause me to consider it unlikely that a court will find that such events occurred or give rise to an unacceptable risk of harm in the father’s care at final hearing. 

16. In relation to the allegations about the father’s aggressive conduct I attach weight to the inconsistency between this evidence and the mother’s position proposing orders that the father have unsupervised time with the children.  While I also do not make a finding as to these allegations I also consider that a court at final hearing will attach weight to the fact that once again they rely upon uncorroborated complaints said to have been made by the children to the mother and no other person. 

17. In these circumstances I consider it unlikely that a court will find that the matters complained of will be found proved or give rise to a finding of unacceptable risk of harm.

The law & discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[6].

   [6] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. As discussed an assessment of disputed matters relating to risk must also be considered.

3. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

4. Pursuant to s 65D(1), subject to certain sections a court may make such parenting order as it thinks proper. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.  

5. In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim orders under consideration involves some disadvantages which may need to be endured by the children. These proceedings have progressed very slowly to date and agreement has only just been reached about the appointment of an expert. In these circumstances it is likely that the interim parenting arrangement under consideration will be in place for at least many months. If orders are made as sought by the mother the children will be spending very limited time with their father for a likely lengthy period of time.

6. The Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.

The primary considerations: s 60CC(2)

1. The primary considerations, which are contained in s 60CC(2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

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

2. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

3. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7] 

   [7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

4. Each of the proposals will foster the children’s meaningful relationships with both parents. However the mother’s proposal provides for the children’s time with the father to be limited to six hours per fortnight.  In circumstances where she must clearly accept that the children do receive a benefit from having a meaningful relationship with the father she has not explained why it would be to the children’s benefit to spend less time with the father than under the previous interim orders.  

5. Although the mother had previously raised a range of risk factors associated with the father spending time with the children many of these were not pressed at the hearing.  While I do not consider there to be an appropriate foundation relating to the alleged risk of harm posed by the step children to restrain the father from bringing the children into contact with them as the mother seeks, I do consider it appropriate for an order to be made as proposed by the father for the supervision of his step children when the children spend time with him. 

6. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

Additional matters to consider- 60CC(3)

1. The children have not yet been assessed by the expert and expressed their views.  When interviewed by the family consultant in a Child Inclusive Conference the daughter spoke positively about the mother and her maternal grandparents and spoke positively about recently seeing the father and then said that she missed all of her family.  Both children were briefly observed with the mother and the daughter asked if she was going to see the father in an enthusiastic tone.

2. Given the involvement of both parents in the care of the children in the past it can be assumed that they both have attachment relationships with both parents.  It also appears likely that they have established relationships with each of the paternal and maternal grandparents and with the father’s partner and her children. 

3. The mother appears to have generally unilaterally taken on the role of decision maker in relation to the children and imposed conditions on the time that the father spends with the children which have not necessarily been required or in the children’s best interests.  She also unilaterally ceased making the children available to the father in accordance with court orders or their agreement and did not make application to suspend the orders for some months after making this decision. The mother did however continue to facilitate the father communicating with the children after ceasing their time with him.

4. The father appears to have been diligent in seeking to participate in decision making, spending time and communicating with the children.

5. In circumstances where the mother no longer maintains various contentions in relation to risks posed by the children and I consider it unlikely that findings will be made that the father or his step children pose any unacceptable risk of harm to the children reinstatement of the children’s time with the father is likely to be beneficial to them.

6. In the context of an interim application I am unable to make any assessment of each parent’s capacity to provide for the children’s needs or relevant matters relating to their lifestyle, background and culture. 

7. Although the parties live some distance from one another neither contended that any practical difficulty arises in relation to the children spending time with the father.  Although the mother proposed that the father’s time with the children be limited to six hours per fortnight she did not explain the basis upon which she submits that this is in the best interests of the children. 

8. Although each of the parents raised the issue of family violence with the family consultant when interviewed in the course of a Child Inclusive Conference in July 2018 family violence perpetrated by the parties against one another was not raised in this interim hearing. 

9. Although the mother raised the issue of the father’s alleged aggressive conduct towards the children (which may also fall within the definition of family violence) she did not contend that the father posed an unacceptable risk on this basis. 

10. In her Memorandum to Court the daughter raised concerns about physical discipline of the children from which the family consultant concluded that it appeared both parents and members of the extended family have physically disciplined the children.  The family consultant had recommended that both parents and extended family members may benefit from learning alternate methods of discipline through nominated programs.  I am unable to make any further findings in relation to this matter at this interim stage but note that it has not been raised as a matter of unacceptable risk by either party.

Conclusion

1. The only matter in dispute between the parties relates to the father’s time with the children and the need if any for restraints to be made in relation to the children coming into contact with the father’s step children.

2. The mother seeks that the previous orders in relation to the father’s time be suspended and in lieu that they spend time with him each alternate Sunday for six hours and that such time be exercised near her home.  The father seeks that this application be dismissed so that the previous interim orders will govern the arrangements in relation to the children’s time with him. 

1. Having withdrawn all of her contentions in relation to the risk posed by the father other than those concerning the allegations of sexual abuse and the father’s aggression the mother has not explained why she contends that it is now in the children’s best interest to spend such limited time with the father.  In my view having regard to each of the best interest considerations and assessing the risk contended for by the mother in light of the evidence I do not consider that it would be in the children’s best interest for their time with the father to be limited or for there to be a requirement that it occur near the mother’s home.

2. For the reasons given I consider that it is not likely the mother’s allegations of sexual abuse said to have been perpetrated by the father’s step children will be found proved at final hearing or will give rise to an unacceptable risk of harm. However, given the mother’s anxiety and the impact upon the children of the previous allegations (in that their time with the father ceased) I consider it proper and in the children’s best interest for the additional interim order to be made as proposed by the father that he supervise the contact between the children and his step children.

3. For the foregoing reasons I make the orders as set out at the forefront of this judgment.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 11 August 2020.

Associate: 

Date: 11 August 2020