FALLS & PATSON

[2020] FamCA 907

FAMILY COURT OF AUSTRALIA

FALLS & PATSON [2020] FamCA 907

FAMILY LAW – CHILDREN – Best interests – With whom the children shall live and spend time – Where final parenting orders were previously made by consent providing for the children to live with the mother and spend substantial time with the father – Where the father sought reversal of the children’s residence – Where the mother opposed reversal of the children’s residence and sought orders for the children to spend time with the father in accordance with a similar regime imposed by the previous consent orders – Where the ICL supported the father’s application –- Where it is alleged the mother’s parenting capacity is impaired due to her unwillingness or inability to support the children’s relationships with the father – Where the mother lacks the insight to objectively critique reports made by the children about the father and events in his household – Where allegations that the children were subjected or exposed to the risk of harm by reason of sexual abuse, family violence and neglect were either not supported by the evidence or abandoned – Where the children have meaningful relationships with both parties – Where the children wish to retain their residence with the mother and spend more time with the father – Where considerable weight must be attributed to the children’s views due to their ages – Where the father and his partner are not readily available as primary carers – Where the mother submitted she would comply with orders made by the Court – Ordered the children live with the mother and spend substantial time with the father

FAMILY LAW – CHILDREN – Parental responsibility – Where the parties accept the presumption of equal shared parental responsibility does not apply – Family violence – Where an order for equal shared parental responsibility would not be in the children’s best interests – Where the parties implicitly accept that the residential parent should be vested with sole parental responsibility – Where the children will continue to live with the mother – Ordered the mother shall have sole parental responsibility for the children.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 102NA

Bondelmonte v Bondelmonte (2017) 259 CLR 662
RCB v Forrest (2012) 247 CLR 304
Re David (1997) FLC 92-776

APPLICANT: Ms Falls

RESPONDENT: Mr Patson

INDEPENDENT CHILDREN’S LAWYER: Denise Clark, Solicitor & Advocate

FILE NUMBER: NCC 1436 of 2015

DATE DELIVERED: 30 October 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 12, 13 & 14 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bateman

SOLICITOR FOR THE APPLICANT: Nash Allen Williams & Wotton

COUNSEL FOR THE RESPONDENT: Mr Mooney

SOLICITOR FOR THE RESPONDENT: Catalyst Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Denise Clark Solicitor & Advocate

Orders

1. All former orders in respect of the following children are discharged:

   (a)       X, born … 2007; and

   (b)       Y, born … 2009.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each party shall take all reasonable steps to ensure the children spend time with the father as follows:

   (a)each alternate weekend (including during school holidays) from the conclusion of school (or 4.00 pm) on Friday until the commencement of school (or 9.00 am) on Monday (or Tuesday if Monday is a public holiday), commencing on Friday 6 November 2020;

   (b)from the conclusion of school (or 4.00 pm) until 7.30 pm each Wednesday (but only during school terms);

   (c)from 9.00 am until 5.00 pm each Father’s Day;

   (d)from 3.00 pm on Christmas Day until 3.00 pm on 1 January each year;

   (e)on up to three other occasions each calendar year, upon the following conditions:

   (i)the father shall give the mother no less than 60 days written notice of the occasions he nominates for the children to spend time with him;

   (ii)no one occasion shall exceed 14 consecutive days; and

   (iii)the nominated occasions shall not exceed 21 non-consecutive days in aggregation.

5. Order 4 is suspended between 9.00 am and 5.00 pm each Mother’s Day.

6. For the purposes of implementing Orders 3, 4 and 5, the parties shall respectively ensure the children’s:

   (a)collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)collection from and return to the McDonalds Restaurant at Suburb B, NSW.

7. For a period of 12 months from the date of these orders, the father is restrained from allowing the children to be or remain in the company of Mr C, unless the children are supervised by him or his partner Ms D.

8. The father is restrained from allowing the children to be or remain in the company of Mr F, unless the children are supervised by him or his partner Ms D.

9. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

10. Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

11. Within seven days hereof the mother shall cause the children to be delivered to the Independent Children’s Lawyer to have explained to them the effect of these orders, and if deemed appropriate by the Independent Children’s Lawyer, the reasons for such orders.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.

14. Costs are reserved for 28 days.

15. Any and all other outstanding applications are dismissed.

Notation

(A)These orders are consistent with the apprehended violence order made by the Local Court of NSW on 8 August 2019 to protect the youngest child from Mr C.

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 Falls & Patson 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 NEWCASTLE

FILE NUMBER: NCC 1436 of 2015

Ms Falls

Applicant

And

Mr Patson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting arrangements for the two children of the applicant mother and the respondent father.

2. The mother started the proceedings wanting the children’s future interaction with the father to be entirely at her discretion because she believes the children, when spending time with him, are exposed to risks of harm, which risks she contended are principally posed by two of the father’s adult step-children.

3. The father denied he or any other person associated with him poses any risk of harm to the children. He believes the mother is either deliberately or wantonly impinging the children’s meaningful relationships with him and the only way for them to retain their healthy filial connection is for the children to live with him instead.

4. The parties’ polarised views are, to some extent or another, creations of their imagination and unlikely to be entirely accurate. The outcome of the dispute is linked to the question of whether the parties can reconcile themselves to the reality of the emotional turmoil that their conflict causes the children and commit to the alleviation of such stress by introducing trust, respect and cooperation into their parental relationship. If they can, the obvious solution is the restitution of the residential regime under which the children live with the mother and spend plenty of time with the father. If they cannot, then reversal of the children’s residence seems the most viable remedy.

Background

1. The parties began cohabitation in 2005 and finally separated in 2012.

2. Their two children were born in 2007 and 2009 and are now 13 and 11 years of age respectively.

3. Proceedings between the parties in respect of the children under Part VII of the Family Law Act 1975 (Cth) (“the Act”) were first commenced in June 2015, but were resolved by consent orders made by the Federal Circuit Court of Australia in April 2018. Those orders essentially provided for the children to live with the mother, for her to have sole parental responsibility for them, and for them to spend substantial time with the father.

4. The father lives in a domestic relationship with Ms D, with whom he began cohabiting before any litigation started between the parties. Ms D has four adult children, two of whom are named Mr F and Mr C. An allegation was made in the former litigation between the parties that Mr F posed some risk of harm to the children. For that reason, one of the final consent orders made in April 2018 was an injunction restraining the father from leaving the children in the unattended company of Mr F.[1]

   [1] Order 1.15(f) made on 26 April 2018

5. The April 2018 orders were implemented unexceptionally until April 2019, when the youngest child divulged to the mother that he had been sexually molested by Mr C while staying at the father’s home. The mother reported the youngest child’s allegations to the authorities for investigation, but the allegations were not substantiated. Nonetheless, the mother refused to re-instate any unsupervised contact between the children and the father.

6. The mother commenced these current proceedings in May 2019, shortly after the allegations were made, seeking to discharge the April 2018 orders and restrict the children’s interaction with the father to only that with which she agreed in the exercise of her sole parental responsibility for them.

7. On 14 June 2019, Cleary J made interim orders suspending the April 2018 orders, directing the children to live with the mother and only spend time with the father as agreed between the parties until the formal investigation of the youngest child’s allegations against Mr C was finalised. The investigation was concluded shortly afterwards in late June 2019, but the children did not resume spending unsupervised time with the father, as was anticipated would or could occur.[2] Instead, the mother insisted on supervising the children when spending time with the father at a park each Sunday for varying amounts of time, to which arrangement the father acquiesced.

   [2] Orders 3 and 5 made on 14 June 2019

8. The proceedings were listed for trial in March 2020, but had to be adjourned. The father was not legally represented and counsel for both the mother and the Independent Children’s Lawyer (“the ICL”) informed the Court that s 102NA of the Act precluded the father from cross-examining the mother. The trial was then pushed back to October 2020 and interim consent orders were made providing for the children to spend unsupervised time with the father all day each Sunday, with the father restrained from allowing the children to be brought into contact with either Mr C or Mr F. The parties complied with those interim orders relatively uneventfully.

9. The trial eventually proceeded in October 2020, this time with the father legally represented.

Proposals

1. To say the various proposals for the children were a moving feast would be a profound understatement.

2. Despite not filing an Amended Application, the mother abandoned the proposed orders set out in her Initiating Application filed on 30 May 2019. She instead began the trial pressing for the orders set out in the Minute of Orders she tendered shortly after the trial commenced.[3] In effect, at that point in time, she wanted the children to remain living with her and for her to retain sole parental responsibility for them. She proposed prescriptive orders requiring the children to spend time with the father each alternate weekend (for two nights) in school terms and on other special occasions, subject to the condition that the children were not brought into contact with either Mr F or Mr C. It was her express proposal for the children not to spend any school holiday time at all with the father.

   [3] Exhibit M1

3. It took the mother a long time to even formulate that proposal because she could not articulate her proposal to the Family Consultant in March 2020.[4]

   [4] Second Family Report, paras 45, 50, 51, 297, 298

4. However, the mother’s proposal evolved as the trial wore on and she was forced to confront hard realities. By the time the evidence closed and final submissions were made, she proposed that the children spend time with the father each alternate weekend (for three nights) in school terms, for several hours on a mid-week evening in alternate weeks, for half of all school holidays (provided the father or his partner were available to supervise them), and on other special occasions. The mother abandoned her application for an injunction precluding the children’s interaction with Mr C, but maintained her application for an order that the children not be left unattended in Mr F’s company.

5. From that summary it should be understood that the mother’s final application was almost indistinguishable from the regime already imposed by the consent orders made more than two years ago in April 2018, which essentially means she instigated this litigation pointlessly.

6. The father filed a Response on 14 June 2019 seeking only that he be excused from specifying the orders he proposed until after the completion of the formal investigation of the youngest child’s allegations against Mr C. Despite completion of the investigation in late June 2019, the father did not file any Amended Response. At the procedural hearing on 26 February 2020, he was ordered to file an Amended Response by 6 March 2020, but he did not do so until 22 March 2020. Still, that was not the application he made at trial.

7. The father pressed for the orders set out in the Minute of Orders he tendered as the trial commenced.[5] He primarily sought the reversal of the children’s residence but, if that application failed, the imposition of a regime not unlike the one imposed by the consent orders made in April 2018.

   [5] Exhibit F1

8. The broad context of the dispute, therefore, was whether the children’s residence should be reversed. If not, the parties were in agreement that a regime like that imposed by the April 2018 orders would be appropriate.

9. The ICL began the trial foreshadowing support for the restitution of a regime like that imposed by the April 2018 orders, but ended the trial supporting the father’s application for a change of residence. The ICL did not file or tender any proposed Minute of Orders.

The evidence

1. The mother relied upon her two affidavits filed on 18 March 2020 and 4 September 2020.

2. The father relied upon:

   (a)his two affidavits filed on 19 March 2020 and 8 September 2020;

   (b)the affidavit of his partner, Ms D, filed on 10 September 2020; and

   (c)the affidavit of Mr C, filed on 10 September 2020.

3. The parties and the ICL relied upon:

   (a)the Family Report dated 23 March 2016;

   (b)the updated Family Report dated 9 March 2020; and

   (c)a tender bundle of documents.[6]

   [6] Exhibit ICL1

Legal principles

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).

2. When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

3. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

4. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

5. In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Children’s best interests – primary considerations

Section 60CC(2)(a)

1. The father accepts the children each have meaningful relationships with the mother. His case was that the children do not derive the full measure of benefit from their relationships with the mother because they anxiously respond to her emotional need to be the dominant parent and their perceived need to demonstrate allegiance to her wreaks consequential damage upon their relationships with him.

2. There is some support to be found for the father’s theory in the opinion evidence of the Family Consultant,[7] but the entire body of evidence presents a more nuanced picture. The mother does not take every opportunity to impair the children’s filial relationships with the father, as he believes she does. For example, she has offered the father the chance to spend more time with the children than the interim orders require,[8] she has agreed to change visiting times and changeover venues,[9] she has provided him with bicycles and other equipment for the children’s use during their visits with him,[10] she has helped the children to buy a birthday present for the father,[11] and she lets him telephone the children whenever he wants.[12]

   [7] Second Family Report, paras 174, 269, 284, 299, 304

   [8] Mother’s first affidavit, paras 149, 150

   [9] Mother’s second affidavit, paras 20, 22, 23, 24, 27, 28, 29, 30, 32, 33, 34, 35, 40, 41, 42, 83, 84

   [10] Mother’s second affidavit, paras 19, 22, 26, 31, 46, 83

   [11] Mother’s second affidavit, para 21

   [12] Mother’s first affidavit, para 151

1. The evidence leaves an overall impression that the mother is content for the children to derive the benefit of loving interaction with the father, provided it is on her terms. However, her terms tend to vary and they depend upon the current state of harmony or antipathy in the parties’ parental relationship, which is prone to change quickly. The mother is ill-disposed towards Ms D, Mr C and Mr F, which overlays her parental relationship with the father.

2. The mother admitted to the Family Consultant that the children have told her they want to spend time with the father and, furthermore, she knows they love him.[13] She repeated similar sentiments in cross-examination. Notwithstanding the mother’s belief in the risks of harm posed to the children by Mr C and Mr F, she still wants the children to retain their relationships with the father.[14] That is because she realises the children both have meaningful relationships with him, from which they derive benefit. The Family Consultant’s observations of the children in the father’s company confirm those facts.[15]

   [13] Second Family Report, para 173

   [14] Mother’s first affidavit, para 121

   [15] Second Family Report, paras 202, 303

3. The children will retain the benefit of their meaningful relationships with both parties, regardless of the suite of orders made in these proceedings because, at the very least, they must then spend substantial time with the non-residential parent. That was the eventual proposal of both parties and the ICL.

Section 60CC(2)(b)

1. Multiple allegations were made by one party against the other of the children’s subjection or exposure to the risk of harm by reason of sexual abuse, family violence, and neglect, from which they need protection.

2. As it transpired, all of the allegations fell away, either because the evidence lacked probative weight or the allegations were not pursued.

   Sexual abuse by Mr C

3. During the trial, despite the mother’s trenchant belief in the youngest child’s sexual abuse by Mr C, the mother’s counsel announced he was not seeking a positive finding to that effect. Rather, he sought a finding only that Mr C posed an unacceptable risk of harm to the children through his subjection of them to sexual abuse.

4. By the time of final submissions, the mother’s counsel commendably conceded the evidence was insufficiently strong to objectively bear out the risk of harm allegedly posed by Mr C to the children. The issue therefore subsided, but it is still worthwhile reviewing and exposing the deficiencies in the evidence because of the mother’s subjective belief in the sexual abuse reported by the youngest child.

5. Evaluation of the allegation of the youngest child’s sexual assault by Mr C is complicated by several layers of complexity.

6. First, the children are acutely aware of the parental conflict. Both parties alleged the children have made statements to them which were either critical of the other parent’s household or laudatory of their own household. Most probably the children realise that criticisms of one party’s household are liable to be eagerly received by the other party so their statements about events in each party’s household need to be carefully evaluated, not impulsively accepted as being literally true.

7. Secondly, the mother is wary of Mr C because he is homosexual and she knows he suffers from some level of mild intellectual delay. She suspected him of “grooming” the children before the youngest child made his allegations.[16] In cross-examination, the mother said her suspicions about Mr C extended back to even the first set of proceedings, which were concluded by the consent orders in April 2018. She could not coherently explain, therefore, why she inconsistently agreed to an order being made at that time which enabled Mr C to supervise the children.[17] 

   [16] Exhibit ICL1, pages 15, 77, 78, 94; Second Family Report, paras 153, 154, 216, 230

   [17] Order 1.15(f) made on 26 April 2018

8. Thirdly, the mother admitted she interrogated the children about the possibility of their sexual molestation by Mr C for several weeks before the youngest child made his allegations,[18] which loaded questions had the obvious potential to induce the youngest child’s allegations. It is easy to imagine how a child who is continually asked questions about the same topic comes to realise the answer being sought by the interrogator.

   [18] Exhibit ICL1, pages 77, 78, 94; Second Family Report, paras 230, 255

9. Lastly, the youngest child can be dishonest and is prone to exaggerate at the best of times. A simple example of it was witnessed by the Family Consultant.[19] The father alleged, without challenge, the youngest child had lied in the past about being hurt by both the eldest child and by a school teacher.[20] The mother admitted during cross-examination that the youngest child’s allegation against the teacher was investigated and rejected, though she asserted her continuing belief in the child’s allegation. The mother admitted “children sometimes do not speak truthfully”, though she maintained the youngest child would not have lied about such an important matter as sexual abuse. The mother’s blind faith in the youngest child’s veracity is unrealistic.

   [19] Second Family Report, paras 203-205, 280-281

   [20] Father’s first affidavit, paras 36-38; Second Family Report, para 280

10. With those caveats in mind, the salient facts are as follows.

11. At 12.30 am on 25 (not 24) April 2019, the youngest child told the mother (albeit in different words) that Mr C had touched him on the penis. The incident allegedly occurred some days before, while the children were spending time with the father in the school holidays, just prior to their return to the mother.

12. The mother made no contemporaneous record of the youngest child’s disclosure, which is unsurprising, but it may be significant because of subsequent concerns expressed by the police about the mother being intoxicated and asking the child leading questions. The first affidavit sworn by the mother in these proceedings in which she deposed to these events was sworn on 27 May 2019, over a month afterwards. When asked by the Family Consultant in March 2020 about the specific details of the youngest child’s disclosure to her in April 2019, the mother “had difficulty” providing it.[21] There could be no doubt about that because the mother deposed she “cannot remember everything” the youngest child told her.[22]

    [21] Second Family Report, para 155

    [22] Mother’s first affidavit, para 12

13. Returning to the chronology, despite it being the middle of the night, the mother summoned the police at 1.30 am and upon their arrival at 2.15 am they took notes of the statements made by both the youngest child and the mother. With some prompting by the mother, the youngest child gave a similar account to the police officers. At the time, the mother was “slurring words”, “appeared to be intoxicated”, “smelt of alcohol” and was insistent about the police taking immediate action.[23] She later denied she had been intoxicated,[24] as she did in cross-examination at trial, but her denial is not easily reconciled with the contemporaneous observations and notes of the police officers, which are more likely correct.

    [23] Mother’s first affidavit, paras 10-13; Exhibit ICL1, pages 14, 15, 16, 77; Second Family Report, paras 218, 222, 224

    [24] Exhibit ICL1, pages 19, 116

14. The mother’s intoxication does not mean her evidence about the events of that night is unreliable, but it does have a bearing upon the extent to which she may have induced, even inadvertently, the youngest child’s allegation against Mr C. When asked during cross-examination about how she encouraged the youngest child to make the allegations against Mr C, the mother admitted she “guided [him] to help him”.

15. Later that same day, in response to more questions posed by the mother, the youngest child gave her more details of the alleged abuse. He said that Mr C had touched his penis over the top of his pants while they were both watching the eldest child play a computer game and it had happened “a few times” over consecutive days.[25]

    [25] Mother’s first affidavit, paras 16-17, 21; Exhibit ICL1, page 19; Second Family Report, para 156

16. The following day, being 26 April 2019, the youngest child was formally interviewed by the investigating authorities. He gave a similar account during the interview of being touched on the penis over his clothing, but some anomalies were exposed: he said Mr C’s abuse had occurred only once but, when prompted about how he had given a different version, then said it had occurred on several occasions;[26] he could give no contextual detail about how the other two or three alleged incidents occurred;[27] and he said he told the mother about the incident in his bedroom, whereas the mother said their conversation had occurred in her bedroom.[28]

    [26] Exhibit ICL1, pages 50, 52, 53

    [27] Exhibit ICL1, page 80

    [28] Exhibit ICL1, page 47; Mother’s first affidavit, para 10

17. The incident reported by the youngest child to the mother and the police allegedly occurred in Mr C’s room in the presence of the eldest child, who was playing a computer game. The youngest child explained the eldest child did not see the transient touch of his genitals by Mr C,[29] which is plausible if the eldest child was concentrating on the game he was playing, but it does not sit easily with the eldest child’s version. He told the police they were all sitting side by side on the bed and he had a clear view of the youngest child and Mr C just by looking sideways. He saw nothing.[30] It would have been very brazen of Mr C to touch the youngest child on the front of his pants in that situation, which conduct is difficult to reconcile with Mr C’s timidity.

    [29] Mother’s first affidavit, paras 16-17; Exhibit ICL1, pages 32, 41, 43, 48; Second Family Report, para 157

    [30] Exhibit ICL1, pages 67, 74; Second Family Report, paras 219, 220, 232, 256

18. The investigating authorities did not substantiate the youngest child’s allegations and so Mr C was not prosecuted,[31] but the parties have different perceptions as to why that is so. The mother alleged the police told her the youngest child “made clear disclosure”, but elected not to charge Mr C because they did not want the youngest child exposed to the trauma of cross-examination in a criminal trial,[32] whereas the father asserted the police officers concluded the mother had “coached or lead (sic)” the youngest child to make the allegations.[33] Independent records more readily corroborate the father’s perception.

    [31] Second Family Report, paras 26, 270

    [32] Mother’s first affidavit, paras 25, 31

    [33] Father’s first affidavit, para 49

19. The leading police officer stated she terminated the criminal investigation because there was “insufficient evidence”.[34] The police records reveal the mother asked leading questions of the youngest child and made disparaging remarks about Mr C’s sexual orientation.[35] The police noted their concerns that “the mother relied on the children for her own emotional needs” and that she had “led or coached” the youngest child, just as the Family Consultant inferred some years before in the first proceedings, opining that the children were coached by the mother to provide inaccurate information or make reports they thought would win her approval.[36]

    [34] Exhibit ICL1, pages 13, 80

    [35] Exhibit ICL1, pages 78-80; Second Family Report, para 225

    [36] Exhibit ICL1, pages 78-80; First Family Report, para 184; Second Family Report, paras 226, 233, 256

20. While no criminal charges were brought, with Mr C’s consent, an apprehended violence order was made by a State court against him for the protection of the youngest child. The order does not forbid contact between them. It only controls Mr C’s behaviour around the youngest child – restraining assaults, threats, harassment and intimidation.[37]

    [37] Exhibit ICL1, pages 102-104

21. The mother told the police she was dissatisfied that the apprehended violence order did not additionally protect her and the eldest child, but the authorities were not prepared to expand it. They considered the mother made contradictory statements about her receipt of threats.[38] The police were suspicious about the mother’s demands that the apprehended violence order be expanded to cover herself and both children so the children would not then be able to spend any time at all with the father, regardless of whether Mr C was present. The police were also suspicious about the mother’s demand for the youngest child to be medically examined, even though the alleged sexual abuse was confined to him being touched on the genitals over his clothing.[39] Obviously, an invasive medical examination could prove nothing in relation to an allegation of that sort.

    [38] Second Family Report, para 228

    [39] Exhibit ICL1, pages 78, 92, 95

22. In March 2020, the youngest child confidently repeated the allegation of his sexual abuse by Mr C to the Family Consultant, along with other allegations of violence in the father’s household,[40] though the Family Consultant interpreted his presentation as false “bravado”.[41]

    [40] Second Family Report, paras 199-200

    [41] Second Family Report, para 283

23. Mr C repeatedly denied the youngest child’s allegation – to the child welfare authority in June 2019,[42] to the Family Consultant in March 2020,[43] in his affidavit affirmed in September 2020,[44] and in cross-examination at trial. His conduct has been consistent with his denial. He was devastated when he first learned of the allegation.[45] When discussing it with the Family Consultant he was “openly distressed”. He spoke of his “brotherly affection” for the youngest child and wondered why the allegation was made. Showing remarkable empathy for a man with developmental delay, he did not express any resentment towards the youngest child.[46] Mr C’s presentation at the trial was similar. He is a man who seemingly lacks the guile and confidence to convincingly fabricate his denial of the sexual abuse allegation.

    [42] Second Family Report, para 245

    [43] Second Family Report, para 143

    [44] Affidavit of Mr C, para 5

    [45] Second Family Report, para 130

    [46] Second Family Report, paras 143, 145

24. The mother certainly believes in the truth of the youngest child’s allegation against Mr C, of which belief the youngest child is presumably aware. He is conscious of the need for him to maintain an allegiance with the mother in the midst of the parental conflict,[47] which allegiance he probably realises might be compromised if he now recanted the allegation. At least until late 2019, the youngest child still lapsed into “baby talk”, was still bed wetting, and still slept with the mother,[48] which offers an insight into his level of anxiety. But the cause of his anxiety is a moot point.

    [47] Second Family Report, paras 269, 284, 299, 304

    [48] Second Family Report, paras 265, 282; Exhibit ICL1, pages 109, 112; Mother’s first affidavit, para 7

25. While the mother believes the nature of the youngest child’s behaviour throughout 2019 tends to corroborate his sexual abuse by Mr C, objectively, the evidence does not do so.

26. In April 2019, the mother provided the police with a urology report about the child which she alleged confirmed the child “likely urinates due to being sexually assaulted”, but that is hardly likely. The police sensibly pointed out to her that the medical report pre-dates the youngest child’s allegations against Mr C by some 18 months,[49] but he alleged Mr C had sexually abused him only days beforehand.

    [49] Exhibit ICL1, page 78

27. The mother adduced a urology report dated December 2018 in evidence.[50] If that is the same report the mother showed the police (which she did not confirm one way or the other), it does not verify her belief in the sexual abuse. The mother told the urologist she thought the youngest child’s “urinary symptoms” related in some way to his foreskin; not to his sexual abuse. Irrespective, both theories were debunked by the urologist, who reported his belief that the child just urinated frequently because he drank a lot of water.

    [50] Mother’s first affidavit, Annexure A

28. The mother gave evidence of the child’s aberrant behaviour during the remainder of 2019, which included fits of rage, curling up in a foetal position, and making threats while armed with knives.[51] It is possible, as the mother believes, that such behaviour was an adverse reaction to his sexual abuse by Mr C. But there could be other alternatives too. It is just as plausible it was an adverse reaction to him maintaining a false allegation, particularly when he was aware of the schism the allegation caused within the family and how it instigated the restriction of his time with the father. The youngest child told his counsellor he was not seeing the father, he felt “sad”, “confused” and “mad”, and his main stressors were his older brother and his school homework.[52] The youngest child also told a child welfare caseworker he wanted to see the father, he missed him, and he felt bad about not seeing him.[53] The topic of sexual abuse barely rated a mention in the clinical notes of the youngest child’s counsellor.[54]

    [51] Mother’s first affidavit, paras 92-109

    [52] Exhibit ICL1, pages 105, 107

    [53] Exhibit ICL1, page 114

    [54] Exhibit ICL1, page 108; Second Family Report, para 266

29. Consequently, on the available evidence, it would be entirely speculative to attribute a probable cause for the youngest child’s misbehaviour or anxiety during 2019. In any event, according to the mother, such behaviour has not been repeated during 2020,[55] which coincides with the child’s resumption of spending unsupervised time with the father from about March 2020. The mother terminated the youngest child’s counselling, presumably because she believed he no longer required it.

    [55] Mother’s first affidavit, para 110

30. As was eventually conceded by the mother, the evidence does not demonstrate that Mr C poses any risk of harm to the children.

    Exposure to family violence in the father’s household

31. The mother adduced evidence of arguments and altercations between the father, Ms D, and Mr F, which she initially contended made the father’s household an “unsafe environment” for the children.

32. It is unnecessary to traverse such evidence because, despite it, the mother eventually contended the children should spend substantial and significant time with the father anyway. The only caveat to her proposal was that the children not be left alone with Mr F. The mother’s insistence that either the father or Ms D should be physically present when the children and Mr F are together must mean she trusts them not to engage in family violence in the children’s presence. No other logical inference is open.

33. The evidence did demonstrate the father, Ms D, and Mr F have occasionally been argumentative with one another, but such evidence fell considerably short of proving the children were at unacceptable risk of sustaining psychological harm by their exposure to such conflict. Family violence in all its variant forms should be deprecated, not trivialised, but in this instance there was a very large disparity between the actuality of the evidence and the theorised risk of harm.

34. Mr F did once threaten to “put a boot up [the] arses” of the children, but Ms D said the eldest child laughed at the threat. It is impossible to discern from the available evidence whether the threat was malevolent or a coarse attempt at humour but, even if the children were frightened by the remark, such an isolated incident does not prove the children’s exposure to the risk of harm by Mr F’s physical abuse is unacceptably high. Any such risk is satisfactorily contained by an order in the form proposed by the mother, requiring the father to ensure the children are not left alone with Mr F. Both the father and Ms D said in cross-examination they were willing to abide by an order in those terms. It will be easy for them to comply because Mr F lives elsewhere, albeit nearby.

Exposure to family violence in the mother’s household

1. The father deposed he was concerned for the safety and welfare of the children as he understands they are being hit by the mother and her new partner.[56] Neither party was challenged about such evidence, but it is rejected as being immaterial. No submission was eventually made about it. Even if the children instead live with the father, he proposed the children should spend substantial amounts of unsupervised time with the mother.

   [56] Father’s first affidavit, para 31

   Neglect

2. The father deposed he was concerned the mother was neglecting the children by leaving them alone at home unsupervised.[57] Neither party was challenged about that evidence either but, similarly, it is rejected as immaterial. No submission was made about it. The father did not contend the reversal of the children’s residence depended upon any finding of neglect by the mother.

   [57] Father’s first affidavit, para 32

Children’s best interests – additional considerations

1. Very few additional considerations prescribed by s 60CC(3) of the Act were the subject of any submission by the parties or the ICL.

2. For the mother’s part, she was almost exclusively fixated on the identified risks of harm, which concern was largely abandoned. The only relevant submission made by the mother related to the children’s views (s 60CC(3)(a)), emphasising how their views, either expressly or inferentially, were uniformly for the retention of their residence with her and to spend more time with the father. There could be no real doubt that was the overall thrust of their views. They said as much to the Family Consultant[58] and, with the parties’ permission, the ICL reported at the trial it was also the gist of the views they expressed more recently to the ICL during their conference.

   [58] Second Family Report, paras 180-201

3. Both children are now verging on adolescence, so considerable weight must be attributed to their views. They are nearly, but not yet, at an age where their wishes are virtually dispositive. However, the likelihood that their expressed views are moulded to accommodate the mother’s expectations cannot be discounted. Children’s views are invariably vulnerable to the influence of adults who have control of them (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]-[41]; RCB v Forrest (2012) 247 CLR 304 at [52]).

4. The only additional feature of the evidence overtly addressed by the father was the mother’s parenting capacity (ss 60CC(3)(f), 60CC(3)(i)), which he contended was impaired on account of either her unwillingness or inability to support the children’s relationships with him. As already noted in the discussion under s 60CC(2)(a) of the Act, the evidence is not all one way on that topic. On occasions the mother has obstructed the children’s relationships with the father but, on other occasions, she has been quite conciliatory. The mother lacks the insight to objectively critique reports made to her by the children about the father and the events in his household but she gave sworn evidence she would, henceforth, faithfully comply with any orders made by the Court. Not without some trepidation, I am inclined to accept that evidence.

5. There are three further relevant considerations. One is the likely effect upon the children of the proposed reversal of their residence (s 60CC(3)(d)), the second is the father’s physical capacity to provide primary residential care for the children (s 60CC(3)(f)), and the last is the ease with which the children can be exchanged between the parties (s 60CC(3)(e)).

6. The children have expressed some concern to the mother, the Family Consultant, and the ICL about their re-introduction to Mr C and Mr F, particularly after the furore created by the allegations of Mr C’s sexual abuse of the youngest child and Mr F’s violent conduct towards members of the family more generally.

7. The Family Consultant was asked about that issue in cross-examination and she said neither party had experienced any “productive adjustment” as to just how the children might be re-integrated with the father and the members of his family. The parties must face it because, on any view of it, the children will at least begin spending substantial time with the father. The Family Consultant said the children will be anxious, but she could not give a “definitive answer” about whether their anxiety would be ephemeral or long-lasting. She said there was a range of potential outcomes. She considered “substantial counselling” in the form of family therapy would help, but she was concerned the mother would not support such counselling, which may hinder rather than help the process.

8. Counselling might help, but it is not a panacea. No decision can presently be made about the preferred regime for the children’s primary residence in reliance upon some idealised notion that counselling will eventually repair any deficits in the ordered regime. Of course, counselling might not help at all. If parents want to voluntarily submit themselves and their children to counselling, then there is no need to compel them by order to do so. On the other hand, if they see no benefit in the counselling then they will derive no benefit from it if they attend under compulsion.

9. The father conceded in cross-examination that at least the youngest child “might be worried” about his re-introduction to Mr C, as he similarly admitted to the Family Consultant.[59] Most probably, the youngest child’s worry will dissipate reasonably quickly once he realises neither the father nor Mr C are resentful towards him.[60]

   [59] Second Family Report, para 94

   [60] Second Family Report, paras 145, 291

10. Nonetheless, the children’s apprehension about Mr F’s propensity for violence is likely to persist. Even though Mr F does not live in the father’s home, he is a reasonably frequent visitor.

11. Most likely, the children will adjust without undue worry to the idea of spending substantial time with the father but, at their present ages, reconciling themselves to primary residence with him would cause them greater and more persistent anxiety.

12. Currently, given the children’s ages, the father is unable to provide them with the level of supervision required of a residential parent. He works long hours on a full-time basis, which includes some weekend work. While Ms D can and will assist him, she also works full-time, which usually entails work which is concentrated on weekends and during school holidays.[61] Conversely, the mother is not presently gainfully employed. If she acquires employment, presumably it will be work which is compatible with her continuing role as the primary residential parent.

    [61] Father’s first affidavit, paras 123-124; Second Family Report, paras 5, 6

13. The parties both live in NSW. Their homes are in reasonable proximity so there is no practical difficulty or expense involved in the children being conveyed between the parties.

Conclusions and orders

1. The parties accept that the presumption of equal shared parental responsibility does not apply (s 61DA).

2. The mother asserted the father had, in the past, perpetrated family violence upon her. While she was not challenged on such allegations, it was implicit the father did not unconditionally admit them. Commendably, neither party made the past family violence between them a controversial issue in the proceedings because it was many years ago and each accepted it had no current bearing upon the amount of time the children should spend with the non-residential parent. Regardless, in 2012, an apprehended violence order was made against the father for the mother’s protection,[62] so there are reasonable grounds to believe the father engaged in some form of “family violence” (s 61DA(2)).

   [62] Mother’s first affidavit, paras 32-39

3. That the presumption does not apply does not mean an order for equal shared parental responsibility cannot be made, but before such an order could be made the evidence must demonstrate it would be in the children’s best interests. The evidence does not do so. Although the parties’ cooperation has shown some signs of improvement in 2020, for the most part, they each believe their conflict has precluded courteous, respectful and productive consultation.[63]

   [63] Second Family Report, paras 14, 49, 64, 73, 175, 176, 177, 295

4. The father sought equal shared parental responsibility if the children remain living with the mother, but sole parental responsibility if the children live with him.[64] He did not attempt to explain the apparent inconsistency of how he could confer productively with the mother if the children live with her, but not if they live with him. The parties implicitly accepted that sole parental responsibility for the children should run with the role of residential parent.

   [64] Exhibit F1

5. The question of with whom the children should primarily live is vexed but the scales tip marginally in favour of the mother. The factors which collectively dictate that result are: the children are familiar with the mother’s primary care; they wish to remain living with her; they would be quite anxious about moving to live with the father, though the extent and duration of their anxiety is incapable of accurate prediction; the father and his partner are not readily available as primary carers; and there is now, finally, some realistic expectation the mother will abide by orders requiring her to ensure the children spend substantial time with the father and, just as importantly, are allowed to enjoy the experience.

6. The father is concerned the mother either will not or cannot comply with orders to that effect once the litigation is at an end and she is no longer in the harsh glare of the Court’s attention. The father submitted the mother will, sooner or later, cease ensuring that the children spend time with him, meaning he will be forced to choose between two options: acquiescing to her contravention and thereby losing his relationships with the children, or alternatively, commencing fresh proceedings to renew his application for the reversal of their residence.

7. While the father’s doubts are understandable, on balance, the mother will probably now comply with such final orders, notwithstanding her continuing belief that Mr C did sexually abuse the youngest child. The experience of cross-examination at trial was a torrid reality-check for the mother, which must have impelled some introspection about the numerous shortcomings of her past parenting performance. Final orders which require the mother to ensure the children spend substantial time with the father should be regarded by her as an opportunity to demonstrate both her willingness and capacity to be indefinitely compliant, irrespective of her genuine feelings about what is best for the children. She said in cross-examination she would comply with whatever orders the Court considered were best. If she was being truthful, the family upheaval should end. If her evidence was false, she is forewarned of the consequences.

8. Of course, if the father was right and the rejection of his submission proves to be a mistake then, in any fresh proceedings, the reversal of the children’s residence would feature prominently as a remedy. It would then be difficult to conceive a sensible alternative (Re David (1997) FLC 92-776 at 84,574 – 84,575).

9. The time the children will spend with the father should be influenced by his expected availability for them, though of course it is quite reasonable for him to depend upon the help of Ms D to care for and supervise the children when his employment precludes it unforeseeably. The orders therefore provide for the children to see the father:

   a)for three consecutive nights each alternate weekend (during both school terms and school holidays), when the father will not likely be working and, since those visits are at fortnightly intervals, the mother can plan her holidays with the children in school holiday periods around them;

   b)for several hours every Wednesday evening (during school terms only, so as not to interrupt any holiday plans the mother has for the children during school holiday periods);

   c)every Father’s Day;

   d)for one week each year, commencing on Christmas Day afternoon, as the father is always on holidays at that time due to his employer’s Christmas shut-down; and

   e)on up to three other occasions each calendar year, such times being at the father’s election, so that he can choose to have the children stay with him when he takes his annual leave.

10. The changeover venues were agreed.

11. An injunction restrains the father from allowing the children to be left alone in Mr F’s company. Both the father and Ms D agreed in cross-examination they would submit to and abide by an order in those terms. It merely perpetuates the obligation the father agreed to accept in April 2018.[65] As I understood it, the mother’s counsel was satisfied with an injunction in those terms and did not press for the injunction in such absolute terms as she originally proposed.[66] If she did, an injunction in such restrictive terms is unnecessary.

    [65] Order 1.15(f) made on 26 April 2018

    [66] Exhibit M1, second Order 2

12. A similar injunction requires the father to ensure that either he or Ms D is present in the company of the children and Mr C for the next 12 months. Even though Mr C was not proven to pose any risk of harm to the children, it was conceded at least the youngest child would be anxious about his re-introduction to Mr C, so the finite order will help abate that anxiety. The father, Ms D and Mr C all said they would accept and abide by such an order. The extension of the injunction to Mr C is obviously not for the reason as was intended by the mother and, as in respect of Mr F, it is unnecessary for the injunction in relation to Mr C to be in absolute terms.

13. The remaining orders are either in similar terms to those proposed by the parties or could not be the subject of reasonable opposition.

14. The ICL invited an order which requires her to ensure the orders and reasons are independently explained to the children.

15. No order specifies any telephone communication between the children and the parties. The father did not seek any such order. The mother started the trial by seeking an order about the children’s access to their telephones,[67] but she later said in cross-examination there was no need for any order about telephone communication. Even if she did not intend to resile from her original application by such oral evidence, an order in the terms she proposed is unwarranted. There should be no need for the children to regularly telephone her while they are in the father’s temporary care. The children see the parties frequently enough that regular telephone communication is unnecessary.

    [67] Exhibit M1, second Order 3

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 30 October 2020.

Associate: 

Date:  30 October 2020