Fielding and Mason
[2011] FMCAfam 1137
•16 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FIELDING & MASON | [2011] FMCAfam 1137 |
| FAMILY LAW – Parenting – mother’s allegations of sexual abuse – no unacceptable risk of abuse – mother coaching children – family violence perpetrated by father – mother and father drug and alcohol issues – where the least risk lies for the children – child’s attachment to mother disrupted. |
| Evidence Act 1995 (Cth), s.140 Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 64, 65DAA |
| A v A (1976) VR 298 B and B [Access] (1986) FLC 91-758 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Briginshaw v Briginshaw (1938) 60 CLR 336 Brown and Pedersen (1992) FLC ¶92-271 J v Lieschke (1987) 162 CLR 447 Leveque v Leveque (1983) 54 BCLR 164 M and M (1987) 11 FamLR 765 McKee v McKee (1951) AC 352 MRR v GR [2010] HCA 4 N and S and the Separate Representative (1996) FLC 92-655 Re G (a minor) (1987) 1 WLR 1461 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 Reynolds v Reynolds (1973) 47 ALJR 499 S v S [1993] NZFLR 657 TF and JF and Children’s Representative [2005] FamCA 394 V and V [2004] FamCA 1081 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892 WK v SR (1997) 22 FamLR 592 |
| Applicant: | MS FIELDING |
| Respondent: | MR MASON |
| File Number: | SYC 5298 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 12-14 October 2011 & 17-18 November 2011 |
| Date of Last Submission: | 18 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 16 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Reynolds |
| Solicitors for the Applicant: | Ilona Beutum Solicitor |
| Counsel for the Respondent: | Mr Johnston, Mr Harper, Mr Barry |
| Solicitors for the Respondent: | Marks Griffiths & Bova Solicitors |
| Counsel for the Independent Children’s Lawyer: | Ms Boyle |
| Independent Children’s Lawyer: | Hamish Cumming Family Lawyers |
ORDERS
That, as from no later than 4:00pm on 18 December 2011, the children [X] born [in] 2007 and [Y], born [in] 2008 (“the children”) shall live with the Father.
That the parties shall have equal shared parental responsibility for the children and they shall, in the exercise of their joint parental responsibility, consult with each other in relation to the children’s health and education and should there be no agreement on any issue that pertains to the children’s health or education, the Father shall make the decision and shall advise the Mother of the decision made.
That the Mother spend time with the children as follows:-
(a)With [X] on one weekday each week as agreed between the parties and failing agreement each Wednesday between 10.00am and 4.00pm, with such time continuing until 20 January 2013;
(b)With both children, one weekend day each week as agreed and failing agreement each Sunday between 10.00am and 4.00pm;
(c)From the beginning of the Term 2 School Holidays in 2013, with both children each alternate weekend from 10.00am Saturday until 4.00pm Sunday;
(d)From 10.00am until 4.00pm on 24 December 2011;
(e)From 10.00am until 4.00pm on 25 December 2012;
(f)Commencing 2013, with the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years and from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;
(g)At such other times as agreed.
That the Father shall live at the home of his parents.
That the parent’s shall ensure the children continue at [G] Child Care Centre until the end of 2012.
That unless otherwise agreed, changeover shall take place at McDonald’s at [suburb omitted].
That each party be restrained from attending changeover with any other person.
That the Father shall continue his therapeutic attendance on Ms M or other therapist as recommended by her for the purpose of maintaining his current sobriety and in order to assist him with the long term care of the children.
That the Mother shall continue her therapeutic attendance on Ms E and in the event Ms E is unable to continue such therapy, with a therapist as nominated by the Independent Children’s Lawyer, for the purpose of assisting her relationship with [X] AND the mother shall facilitate [X]’s attendance at such therapy as recommended by the therapist provided that any appointment for [X]’s attendance are at times when [X] is otherwise in the Mother’s care.
That each party keep the other informed of a current address and telephone contact number.
That each party keep the other informed of any matter arising in relation to the children’s education and medical treatment.
That each party inform the other before taking the children outside the Sydney Metropolitan area.
Notwithstanding any other Order, the children shall spend time with the Mother from 10am until 4pm on Mother’s Day and from 10am until 4pm with the Father on Father’s day.
That each party be restrained from:-
(a)Discussing the proceedings with the children;
(b)Discussing any allegations of sexual abuse by the father or the paternal grandfather with the children;
(c)Denigrating the other parent or any member of the other parent’s family in the presence or hearing of the children.
IT IS NOTED that publication of this judgment under the pseudonym Fielding & Mason is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5298 of 2009
| MS FIELDING |
Applicant
And
| MR MASON |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X], who is 4 years old and his sister [Y], who is 3 years old. Whilst at a theoretical level this case is about orders that are in the best interests of [X] and [Y], in reality this case is about where there is the least risk for them. The mother alleges that the father has been violent to her, has sexually abused the children, and that he abuses alcohol. The father alleges that the mother abuses alcohol, has coached the children to make disclosures about non-existent abuse, will not foster the children’s relationship with him, and indeed has a problematic relationship with [X]. The relationship between the parents has been and continues to be a toxic one.
Background
The father is 42 years, is a [occupation omitted] by trade working in the family business, and lives with his parents in a northern Sydney suburb. The mother is 38 years old, describes herself as unemployed and undertaking home duties, and lives with the children in an eastern Sydney suburb. They commenced cohabitation in 2003 and separated for the last time in 2009. There were several separations and reconciliations between 2003 and 2009. As indicated above, it was a toxic, volatile relationship. The police were frequent visitors to the family home in the Eastern suburbs. Both the father and mother had AVO’s made against each other. The mother had AVO’s made against her by third parties. Both parents were charged and convicted of breach of AVO. The father was convicted of assault and several drink-driving offences.
At times during their relationship the mother struggled with alcohol abuse, and the father struggled with marijuana addiction. There were high levels of family violence in the relationship.
Since [X] was born in 2007, the paternal family has been involved in supporting the parents in the care of the children. Given the history of this family, it is perhaps unsurprising to learn that the NSW child welfare authorities became involved. Both parents were involved, to different degrees, with the Brighter Futures program.
Despite a tumultuous relationship and separation, until orders were made in October 2009 the children managed to spend time with both parents. They have also consistently attended one child care centre, which seems to have been a stabilising, moderating factor for them. However changeovers have been highly problematic for the children, who have been exposed to very high levels of conflict between their parents. Consent orders were made in October 2009 for the children to live with their mother, and spend three out of four weekends with their father.
The father attended [O], a rehabilitation facility, and as a result overcame his addiction to marijuana.
In either December 2010 or January 2011, the mother claims that [X] made disclosures of being sexually abused by his father. During 2011 these disclosures multiplied and included [Y] as a victim. JIRT and DOHS investigated and interviewed the children twice. On these occasions the allegations were not substantiated. The mother was unhappy with these investigations and interviews. She steadfastly maintained that the children had been abused by their father. The father has steadfastly denied any allegations of wrong doing, and has consistently maintained that the mother is coaching the children.
The expert evidence in this case, led by the Independent Children’s Lawyer Ms Adams, and her Counsel Ms Boyle, included a detailed Family Report dated 19 August 2010 prepared by Ms C, a Family Consultant. There were also reports prepared on both parents by Mr K, a behavioural scientist specialising in substance abuse assessments. Both experts also gave oral evidence.
The father’s solicitor was Ms Mordaunt, and his Counsel included
Mr Johnston, Mr Harper and Mr Barry. The father gave evidence as did the paternal grandparents and paternal aunt.
The mother’s solicitor was Ms Beutum, and her Counsel was
Ms Reynolds. The mother gave evidence, as did her friend Mr G.
The many issues raised in this case meant that the evidence was carefully tested, and there was a significant volume of documents tendered into evidence. It also means that the parent’s proposals evolved to reflect the trends in the evidence.
By the time of the final hearing, the mother’s position was that she should have sole parental responsibility, the children should live with her, and the father have contact each alternate weekend provided this was supervised by the paternal grandparents or paternal aunt. The Minute of Order Sought by the mother is reproduced in the Schedule to these reasons.
The father’s proposal was that he should have sole parental responsibility, the children live with him, and the mother have supervised contact at a centre. He proposed that he would live with the children at his parent’s home. The Minute of Order sought by the father is reproduced in the Schedule to these reasons.
The Independent Children’s Lawyer’s proposal was only formulated once all the evidence had been adduced and tested. The proposal was consistent with that of the Family Consultant in her oral evidence. In summary, this proposal is that the children live with their father but continue to attend their existing child care centre for 2012. The mother would have contact with [X] on one day mid-week, and with both children on weekends (day time only). The Independent Children’s Lawyer proposed a modified form of equal shared parental responsibility that enabled the father to make decisions if the parents were unable to agree. Other aspects of the Independent Children’s Lawyer’s proposal are contained in the Minute of Order sought by the Independent Children’s Lawyer, as reproduced in the Schedule to these reasons.
I will set out what I consider to be the applicable law in this case, and then discuss the evidence commencing with the experts, then the parents and their witnesses. I will then consider how the law applies to the evidence and explain the order I consider to be the one that exposes the children to least risk and is, therefore, at least in an artificial way, in their best interests.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
This is a case where serious allegations are made about sexual abuse. A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892 at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18 and 19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
The Family Report
Family Consultant Ms C prepared a Report dated 19 August 2010. Whilst it was a long report, there is much in it relevant to the issues that need to be decided in this case, so quite extensive reference will be made to it. Ms C was extensively cross-examined. She impressed me in evidence with her obvious expertise, experience and sensitivity.
The report sets out the proposals of the parents as framed at the time. What is of interest is the mother’s proposal. Her first option was sole parental responsibility with no contact. What is significant about this is that this was her position well before the abuse allegations were raised. Her next alternative was three hours supervised contact with the father each alternate weekend. Her final alternative was unsupervised contact each alternate weekend, and one afternoon in the other week. By the time of the report interviews in July 2010, her position had changed again – that the father should have supervised time “until he goes to rehab and sorts out his drug issues” (Family Report, paragraph 8). This was clearly the issue that was foremost in her mind at the time. The father’s proposal was that the children live with him and spend time with the mother on weekends, provided she was not drinking. Clearly this was the issue foremost in his mind at the time.
The Family Consultant made some observations of the mother at paragraph 11. She noted that at times “during the assessment process she became defensive, angry and exasperated …” I had the benefit, of course, of seeing the mother give evidence over two days. Whilst I did not observe her to become angry, I certainly found her to be often defensive, and sometimes exasperated.
The Family Consultant’s observations of the children and their parents is lengthy, but important because the nature of the children’s relationships with each parent is an important issue in this case. These observations commence at paragraph 65:
65.[X] (aged 3 years, 2 months) was observed on two separate occasions with his sister [Y].
66.On the first occasion, 6 July 2010, [X] arrived with his mother and sister [Y] on a Tuesday morning at approximately 9.20am. He had spent the previous night with his mother and the weekend with his father.
67.Upon entering the child care room, [X] quickly moved away from his mother and immediately began to play with the toys. He was moving quickly from one activity to another. He looked very comfortable in the room. When his mother signalled her intentions to leave the room to speak with the Family Consultant, he paused briefly in his play but then turned away. He did not approach his mother at this time, nor did he say good-bye. He did not acknowledge her leaving the room. He continued to play after she left the room and did not exhibit any distress.
68.Although Ms Fielding was aware that the Family Report interviews would probably last a full day, she had only brought a couple of mandarins for the children to eat.
69.When Mr Mason entered the child care room shortly before lunch, [X] ran towards him with his arms out, shouting “Daddy, Daddy!” in a highly excited voice. Mr Mason picked [X] up and hugged him. [X] said to him, “are we going in car now?” a number of times, clearly thinking that his father was there to take him back to his house. Mr Mason attended to both children’s needs in regards to organising them to go out for lunch with him.
70.When Ms Fielding returned to the child care room after lunch, [X] was playing quietly. He looked up and saw his mother and burst into tears. He started screaming: “where’s Daddy?” over and over. When Ms Fielding attempted to soothe him, he shouted at her “Don’t want to play, want my Daddy!” He was highly distressed to the point of ‘hiccupping’ sobs. Ms Fielding responded to this distress by attempting to pick [X] up and give him a cuddle. He fought this by not putting his arms around her in return and then arching his back stiffly and kicking out at her. She remained holding him calmly and then sat down with him on her lap. Ms Fielding said to him in a soft voice, “Daddy will be back soon [X].” She then attempted to distract him, offering to play a game with him, however he refused to be distracted and continued to alternate between desperate sobbing and screaming “want Daddy back now! Don’t want Mummy!” He would briefly quieten for approximately 30 seconds (it would appear in order to gather breath) and then begin the cycle again. This continued for approximately 20 minutes when it was decided that [X] had become too distressed for the observations to continue. Ms Fielding was asked if she would remain in the room while Mr Mason came in to help alleviate [X]’s distress. Ms Fielding declined to do this. Ms Fielding was then asked to leave the room which she did. As she was leaving [X] said, “don’t want Mummy come back!” [X] remained in the childcare room with another Family Consultant, saying in a hopeful voice, “get Daddy back?” He calmed almost immediately and commenced playing with the Consultant.
71.Mr Mason then came back into the childcare room. Both children ran towards him with delight, shouting “Daddy, Daddy!” After a cuddle, [X] calmed almost immediately and started playing. Mr Mason sat down with them both at a table and played a Lego building game that both children engaged fully with.
72.In an interview with Ms Fielding following this incident with [X], she stated that she had “never seen him like that before”. She said that when she drops him off at childcare on a Friday morning he says to her “is Daddy coming?” but that is the extent of it. She was at a loss as to what might have precipitated the behaviour described above, other than that the extended family “always pamper him and I don’t … perhaps he wants more of that attention?” Ms Fielding identified that things such as structure, routine and discipline were more important to her than “spoiling a child rotten”. Ms Fielding also identified another reason for [X]’s behaviour might be because he was “not happy about seeing us (his parents) together.”
73.Ms Fielding stated that [X] will occasionally have a tantrum over something like not being allowed to have chocolate. She said that she responds at times like this by speaking to [X] in a calm voice and saying something like ‘Mummy doesn’t like it when you are like this [X]’ and then giving him a cuddle.
In cross-examination Ms C explained that she was so concerned about what she observed that she decided it was essential to have another observation at a later time, to control for any factors affecting the children on the date of the first observation. The report then sets out the second observations.
74.The children were seen again on Thursday 15 July 2010 when they had been with Ms Fielding since the previous Monday afternoon.
75.[X] was dressed in a ‘Spiderman’ shirt and he was keen to point this out. He smelled very strongly as if he had soiled his nappy.
76.As soon as [X] saw the childcare room he moved away from his mother and started playing. He said, “Bye-bye Mummy, want you go now.”
77.The smell of [X]’s dirty nappy had become overwhelming and the Family Consultant pointed out to Ms Fielding that [X] may have a dirty nappy. She looked surprised and said, “You’re right, I couldn’t smell it over there!”
78.When Ms Fielding left the childcare room to take [Y] to the other playroom, [X] said “bye-bye Mummy” with a flat affect, staring briefly at her then turning away to engage the attention of the childcare worker.”
79.When Ms Fielding returned to the childcare room about 20 minutes later, [X] was playing with the childcare worker. He did not look up or engage his mother even after she said, ‘Hi [X] I’m back.”
80.During their time in the playroom together, [X] appeared disconnected from his mother. He made very little eye contact with her and did not attempt to get close to her. His affect was flat and Ms Fielding’s was similarly flat. They played together in what could be described as a ‘desultory’ fashion. There were markedly less positive attributions in Ms Fielding’s interactions with [X] compared with [Y].
In cross-examination Ms C explained that she had never seen such active avoidance by a child towards his mother in 20 years. She was troubled by this. Whilst [X]’s behaviour was not as marked in the second observations as the first, his hostility towards the mother remained evident. By contrast the strength of [X]’s relationship with his father was evident. Indeed she expressed surprise about this given that, normally, the level of marijuana used by the father (50 cones daily) would disrupt normal attachments. In this case it clearly did not. She surmised that, perhaps the father retained a high level of emotional functioning despite his marijuana use.
81.[Y] (aged 2 years, 1 month) presented as a bright, bubbly and active two year old. She showed no fear or apprehension of the new environment including the people within it. During the first observation, [Y] cried briefly when Ms Fielding said that she was leaving. She clung to her mother for approximately 30 seconds and then allowed herself to be put down. She began playing immediately and she exhibited no further signs of distress.
82.[Y] was very excited when she saw her father. She smiled broadly and reached her arms out to be picked up. She vocalised “Daddy, Daddy” repeatedly. It was of some concern that, when she was having her nappy changed by Mr Mason, he left her on the (four feet high) change table and walked away to get a nappy bag telling her to “stay where you are [Y].”
83.When Ms Fielding returned in the afternoon, [Y] initially reacted very similarly to the way [X] had. She started crying and saying “want Daddy” repeatedly. While this appeared to be genuine distress, it is possible that there was some degree of mimicking of [X]’s distress as well. [Y] settled within 90 seconds. She resumed playing quietly by herself and did not approach her mother again during the time when [X] was upset.
84.When Ms Fielding left the room, [Y] sat down at the table with the other Family Consultant and started playing. She said, “Daddy come” in a hopeful voice. When
Mr Mason entered the room, she whooped with delight and ran towards him.
85.On the second day of observations, [Y] once again presented as confident and outgoing. She approached the Family Consultants on a number of occasions with toys to play with. [Y]’s speech was difficult to understand at times. Her vocalisations were mainly two words with occasional three word sentences.
86.At the end of the session with her mother [Y] wandered out of the room with the Family Consultant. She then became aware that her mother was not following. She turned back and said, “get Mummy” and went back to the playroom to find her. Ms Fielding then accompanied her back to the childcare room with [Y] running up the corridor saying “[Y] see [X] [nicknames omitted]”.
Clearly there are aspects of the observation that were of concern to the Family Consultant. The Family Consultant’s Evaluation is again a lengthy one, but it is such important evidence that most of it needs to be set out in these reasons.
By way of background and summary the Family Consultant states at paragraphs 109-111:
109.This is a very complex matter. The parents have admitted to using alcohol (in the case of Ms Fielding) and cannabis (in the case of Mr Mason) in a chronic and dependent manner during the time when they were together as parents, and also when they were parenting separately. Both parents are now alleging that the substance use of the other poses significant risks to the ongoing safety and wellbeing of the children.
110.The relationships between the adults appears to have been volatile from almost the very beginning. Ms Fielding described a relationship characterised by sporadic physical violence, constant verbal abuse and controlling and intimidating behaviour by Mr Mason.
111.Mr Mason described a relationship that was characterised by constant verbal fighting over Ms Fielding’s drinking habits and other lifestyle associated issues. Mr Mason denied being physically abusive towards Ms Fielding apart from one occasion where he admitted to throwing a glass of water over her.
Indeed the combination of past drug and alcohol abuse as well as family violence and ongoing toxic relationships does create a complex matrix from which this case must be decided. The Family Consultant’s summary at paragraphs 109-111 accurately reflects the facts in this case.
The impact on the children of this, back then and today, is discussed at paragraphs 112-113:
112.Regardless of the veracity of the allegations and counter allegations, it is clear that, prior to the parental separation, the children of this relationship were living in a family environment that was less than ideal. At separation the children were aged 20 months ([X]) and seven months ([Y]). It is likely that their psychological, social and emotional development would already have been compromised by parental substance abuse and family violence issues. The children then became subject to what was (and still is) a shared care arrangement whereby they spend three nights per week with their father and the remainder of the week with their mother. From February 2009 to October 2009 transitions were weekly and would have occurred in an emotionally tumultuous and uncertain way with both parents ‘competing’ to see who could remove them from child care first on a Friday. It appears that their father ‘won’ this competition on most Fridays, but there were times when their mother picked them up first. Due to their ages, neither child had the cognitive capacity to anticipate, understand or manage the process of predictable change in their care arrangements, let alone arrangements which were subject to weekly flux and accompanied by parental conflict.
113.From October 2009, when interim orders were made, the children experienced a greater degree of stability and consistency in their care arrangements. However the paradox of this increased stability is that it has embedded a pattern of care that may be creating further developmental attachment issues for the children.
The Family Consultant is clearly signalling that the current parenting arrangements may not be in the children’s best interests. She summarises her observations of the children at paragraphs 114-117:
114.Observations of [X] with his parents suggest that there are differences in his attachment relationships with each of them. [X]’s behaviour with his mother over the two observation sessions indicates that his attachment to her may be compromised.
115.Observations of [X] with his father indicate that he has a secure attachment to him. He expressed great delight to see his father on reunion; he played attentively and constructively with his father; and he separated without overt distress when he was aware that his father was coming back soon.
116.The child care centre reported that [X] is markedly more responsive to his father than to his mother, which suggests that these attachment behaviours are stable over time and not a ‘spike’ caused by the unfamiliar assessment and observation context.
117.Observations of [Y] with both parents indicate that she has a secure attachment to both, although on the day when her father was present for the assessment, she exhibited a clear preference for him (although it is likely that this was in part a result of her mimicking [X]’s behaviour). This is consistent with that the child care centre has reported about [Y]’s attachment behaviours – that she is attached to both parents but is beginning to display a preference for her father in her vocalisations.
The mother’s somewhat disconcerting response to [X]’s behaviour is noted at paragraph 118:
118.Ms Fielding handled [X]’s overt rejection of her in a calm manner. She did not become distressed or flustered. If anything, she appeared nonplussed. Her evaluation of [X]’s behaviour was that it was caused by [X] being spoiled by his paternal family and that he was being attention seeking so that he could be spoiled some more.
The concerns about [X]’s relationship with his mother resonate in these paragraphs. The reasons for this are explored at paragraphs 119-123:
119.There are a number of possible explanations as to what may have caused the differences in [X]’s relationships with his parents. It may be that [X] experienced
Mr Mason’s care to be more predictable, emotionally responsive and safe than his mother’s, despite
Mr Mason’s admission that he was a chronic and heavy daily user of cannabis. Mr Mason certainly claims that he has been a hands-on parent for all of [X]’s life, including the post-separation period.
120.Ms Fielding disputes Mr Mason’s description of her parenting but she did comment that when she was drinking heavily in the period January to August 2009 she was “less than 100%” as a parent and SDN Brighter Futures indicates that concerns were raised by agencies about Ms Fielding’s drinking in October and November 2008. This suggests that Ms Fielding may have misrepresented the duration and extent of her problem drinking which may have pre-dated [X]’s birth and been constant after [X]’s birth. It could therefore be the case that [X] experienced Ms Fielding as physically unavailable and emotionally unresponsive over a critical period in his development. The literature on substance abuse suggests that the substance itself can become the parent’s primary attachment, which may inhibit their capacity to show the child emotional warmth, even when they are able to adequately perform basic physical care tasks.
Indeed in cross-examination Ms C poignantly and powerfully described how [X] had learnt early on that he was not going to get anything from his mother, so he gave nothing back to her.
The Family Consultant goes on to discuss the possible impacts of family violence:
121.It is also possible that Ms Fielding may have been, from the commencement of her relationship with Mr Mason, a victim of coercive, controlling and verbally abusive violence. It is possible that because of the impact of this alleged violence, Ms Fielding suffered depression, stress, anxiety and low self-esteem. She may have misused alcohol in order to cope with the relationship and the feelings stemming from the violence.
122.If Ms Fielding’s allegations of violence are substantiated as true, this would raise concerns about Mr Mason’s capacity to regulate his emotions which would have significant implications for his parenting both now and when the children are older.
123.While parental accounts of the instigators of the violence and the reasons for the fights differ, police records indicate chronic disputes that necessitated police involvement. [X] was always present during the fights. Mr Mason did not display any remorse for his behaviour but sought to explain it away in the context of his concerns about Ms Fielding’s drinking and his dislike of aspects of her personal hygiene. Ms Fielding also tended to downplay the impact her alcohol use had on her parenting and to blame Mr Mason for everything which could be an impediment to her addressing the legacy – ie, her problematic relationship with [X] especially.
In cross-examination the Family Consultant explained that even if this was the case, it did not change her final recommendations, for reasons that will become apparent below. In any event it was her opinion that the family violence was more likely to have been reciprocal and reactive, and that it was not necessarily the case that the father was always the primary perpetrator. There is evidence before the court that supports this conclusion.
The Family Consultant emphasised the need to obtain expert information about the parent’s current drug and alcohol use. Mr K’s evidence in this regard is discussed below. To the extent that the Family Consultant had concerns about the mother minimising her past problematic alcohol abuse and it’s impact on parenting, Mr K’s evidence does support this concern, as does my own observation of the mother in evidence.
In relation to [X], the Family Consultant opines at paragraph 126:
126.[X] appears to have learnt that his mother is unreliable and unresponsive which he is likely to have internalised as a message that he is unlovable. The strength of [X]’s expressed preference for his father suggests that his father (and his extended paternal family) has begun to offer [X] an emerging sense that he is loved and lovable, and [X] is responding with a degree of desperation in order to keep this fragile sense of self intact.
The Family Consultant also noted the differences between [X] and [Y] at paragraph 125.
In cross-examination she explained that her conclusions about [X]’s attachment issues with his mother were reached not just because of the observations, but by reference to the other material available to her.
She continues in relation to the inadequacy of the current parenting arrangement at paragraphs 127-130:
127.The children currently have no defined primary caregiver. This does not appear on the face of it to have affected [Y] adversely however [X] is more vulnerable to inconsistent care-giving and this type of arrangement serves to exacerbate his existing vulnerability. If the situation were to continue there is a possibility that [X] may develop significant cognitive and behavioural problems as he tries to make sense of the fractured nature of his lived experience.
128.It is possible that neither parent currently has the capacity on their own to provide adequate, stable and secure care for these two vulnerable children. Neither has sufficiently resolved their substance misuse issues in a way that would give the appropriate degree of confidence in them sustaining sobriety. Neither demonstrated any real insight into the impact of their own substance misuse on their parenting but they were both keen to point out the impact of the other’s substance misuse on their care of the children. In effect, this means that the children are to a large degree still invisible in the middle of their parents’ mutual animosity and self-serving view of the world.
It is important to interpose here the court’s own observations. What the Family Consultant states in paragraph 128 remains entirely the case now, having regard to all the evidence before the court. Its particular significance is that so little was done by either parent to improve themselves on these issues in the 12 months between release of the report and the hearing. The report continues:
129.Mr Mason appears to be settled living with his parents. Neither he nor they indicated that this arrangement was likely to change in the future. The following comments on possible future care options are predicated on this arrangement continuing.
130.Maintenance of the existing arrangements or a move to a 50/50 shared care arrangement is not recommended as being in either child’s best interests. They are both of an age where they require stability and continuity of care in order to achieve developmental milestones and meet their attachment needs. Neither child is capable of coping with multiple transitions but [X] is particularly vulnerable in this respect.
The Family Consultant then sets out three options, at paragraphs 131-135:
131.Option one is that the children live primarily with
Ms Fielding and spend substantial and significant time with their father. If this option were to be pursued
Ms Fielding and [X] should be referred to a child psychologist who specialises in intensive attachment repair therapy. (A normal parenting course is not an appropriate approach for the attachment issues observed in this matter.) This option relies on Ms Fielding having been honest about her current consumption of alcohol. If Ms Fielding is continuing to drink alcohol excessively (even intermittently) it will act as a barrier to her becoming more attuned and sensitive to [X]’s needs which is the basis for attachment repair.
132.Child care should increase to four days per week for [X] and three days per week for [Y] with [X] being at home with his mother by himself for one day per week and [Y] at home with her mother by herself for two days per week. The children’s regular attendance at child care allows for professional monitoring of their safety and well-being.
133.Subject to the outcome of any specialist Drug & Alcohol assessment, if option one is pursued, Ms Fielding should engage with a Drug and Alcohol counsellor (or a psychologist who has expertise in substance misuse issues) on a regular basis. The Court may also consider whether regular testing for excessive alcohol use would assist in measuring Ms Fielding’s ongoing capacity to parent the children safely.
The evidence indicates that, acting on this recommendation, [X] and the mother began seeing a psychologist Ms E. I will discuss this evidence in more detail elsewhere in my reasons. In short, I am satisfied that the mother managed to shift the focus away from attachment repair, and towards the abuse allegations, and sought to use these sessions as a vehicle to obtain evidence to support her claims that the father had sexually abused the children. Moreover, and as it turns out, I am satisfied from Mr K’s evidence that the mother has been less than forthright about her current consumption of alcohol. The report continues:
134.Option two is that [X] and [Y] live with their father primarily and spend substantial and significant time with their mother. [X] and his mother would still require therapy to address the attachment issues as this option may serve to further marginalise the relationship if [X] continues to be rejecting of his mother. Mr Mason would need to continue with relapse prevention therapy. Regular (weekly) urine testing for cannabis use would also be recommended for at least the next 12 months. This arrangement should include one day per fortnight when Ms Fielding and [X] spend the day together (not overnight) without [Y]. Ideally this should occur when [Y] is at childcare to minimise her possible anxiety about the process.
135.In addition to either of these options canvassed above, both children should have full paediatric assessments and developmental screening to ascertain the extent of any developmental delays or health issues they may have. Any recommendations arising out of these assessments should be fully implemented by whichever parent has day to day care. Ms Fielding indicated that [X] had recently been assessed by the [omitted] Clinic at [omitted] Children’s Hospital. The result of this assessment was not available to the Family Consultant at the time of writing but this would be very valuable information for the Court to have prior to any judicial decision being made.
In her oral evidence the Family Consultant thought that the second option was the best one for the children. This was strengthened by the undertakings given that if the children were placed in their father’s care, they would be living at the home of the paternal grandparents. It is not as if the Family Consultant did not have concerns about the father’s capacity to care for the children – she clearly did. But she was satisfied that he had available to him in the form of his parents and siblings, a well established, reliable support system. Indeed I will find that the paternal grandparents are a more than adequate safety net for these children.
The Family Consultant clearly accepted the possible adverse consequences inherent in her proposal. It would be a dramatic change for both children. It would be very stressful for the mother. But the underlying theme of her evidence was, using my word and not hers, that this was the course of least risk to the children, and provided the greatest opportunity for attachment repair as between [X] and his mother. The impact of change could be mitigated by leaving both children at their current child care centre for 2012, and thus use [X]’s first year at school 2012 as the opportunity to change that. The father was of the view that this was reasonably practicable in a logistical sense. The impact on the mother could be mitigated by supporting her through counselling.
The Family Consultant was clearly concerned about the mother’s lack of insight and emotional maturity. It should be recalled that all of the abuse allegations post-date the family’s involvement with Ms C, and she had to become familiar with this evidence before giving her oral evidence. As it turns out Ms C’s many years of experience in child protection meant she could provide useful insights into the abuse allegations. Whilst I summarise, and therefore do no justice to Ms C’s evidence, she was of the view that there was no unacceptable risk of abuse to the children and, indeed almost reluctantly, she expressed the view that it was more likely than not that the mother, and/or Mr G had knowingly or unknowingly “coached” the children into making these disclosures by putting subtle and not-so-subtle pressure on them over a period of time. As it turns out, and based on all the evidence before me, that is the finding that I will make. The relevance of this in the present context is that the Family Consultant’s concerns were not just about attachment issues but also about protecting the children from the mother’s lack of insight and emotional immaturity. As it was, she explained, [X] was starting from a complex, disturbed, emotional base. To then have imposed on him the huge emotional load and loyalty conflict which was a consequence of the mother’s pressure to make disclosures demonstrates both the enormity of the problem, and the enormity of the mother’s lack of insight into [X]’s needs.
The Family Consultant’s recommendations were for daytime contact only, and progressing to overnights only on certain conditions. She proposed that at least 12 months elapse, indeed preferably 18 months so that overnights with the mother did not coincide with [X] starting school. It would be necessary for the introduction of overnights to be preceded by a period of settled, stable, continuous, non-pressured, quality contact with the mother. The mother herself would need to properly engage with therapy for herself.
The Family Consultant was quietly confident that these changes in the children’s lives would not be interpreted by them as their mother abandoning them, especially if the mother responded with emotional maturity and was affirming.
I accept the evidence of the Family Consultant. I found her to be an impressive witness.
Evidence of Mr K
Mr K is a Behavioural Scientist who was appointed as the Court’s expert to provide a substance abuse assessment for both the father and the mother. Mr K’s experience and qualifications in drug and alcohol matters certainly qualifies him as an expert. He provided separate reports in relation to each parent.
The Father
Mr K records the self-report given by the father about his substance use history which was acknowledged to include alcohol, nicotine, cannabis, cocaine, amphetamines, methamphetamine and hallucinogens. The father reported that prior to cessation in March 2010 cannabis had been his substance of choice, but current consumption was restricted to alcohol and nicotine. Substance abuse was reported to have commenced from about age 14, and cannabis use was clearly problematic, even from the father’s own perspective. At page 8 of the father’s report, Mr K notes:
Cannabis use is reported to have further escalated in adulthood. Mr Mason said that when he ceased cannabis in March 2010 he was smoking 50 bongs per day “through boredom” and buying at least ½ ounce of “extra high quality” hydroponic cannabis. He reported having smoked at this level for approximately 20 years with no time off. This reviewer presumes that one significant consequence of this level of use was a restriction on his financial choices. For example, he had never travelled overseas.
…
The details of Mr Mason’s cessation from cannabis are outlined in the medical records of Dr H. Mr Mason appears to have elected to cease cannabis use under the combined legal pressure of the current dispute and other legal charges. He said that during the first 21 days of his abstinence he was “violently ill – vomiting – felt like shit – would stay in the shower for hours” and that would “relieve me”. During this time he was unable to eat. However after going to [O] for seven days he “never looked back”. A final face to face interview he observed that he was “now around people who don’t smoke” including his best friend and he [sic] “I don’t miss it now”.
The father’s current alcohol consumption was an issue during the hearing. What the father reported to Mr K is found at page 10:
Recent reported substance abuse: During this assessment Mr Mason denied use of any substances other than alcohol and nicotine. He denied any use of cannabis in the 10 months prior to the initial interview for the assessment. He acknowledged regular but controlled consumption of alcohol.
At second interview, when asked about his most recent consumption of alcohol Mr Mason said that he drinks every day, usually two cans of overproof rum after he returns home from work at around 7:00pm. This is equivalent to 3.8 standard drinks. He confirmed that he had consumed this amount on the previous evening. He said he usually consumes about two cans per day during the week and four cans on weekends. He said he used to drink more and that he has cut down a great deal. He said he could not recall his last episode of intoxication. When asked about the last time he had consumed more than two cans he said he had consumed four cans on New Year’s Eve. When asked about the last time he had consumed more than four cans in a day he said he thought it might have occurred in October 2010 at a party when he may have consumed about eight cans of beer (around 12 standard drinks).
There are restrictions on Mr Mason’s ability to drink in his current lifestyle. He drives an hour each way to work from [suburbs omitted] each day. He retires most nights at about 8.30pm. He has limited interests other than his children. Thus recreational use of alcohol or other intoxicants is curtailed by his responsibilities and by his demanding work routine.
On 11.2.11 Mr Mason reported having consumed 2 cans of overproof rum each day in the preceding 4 days. Each can is 6.5% and equivalent to 1.9 standard drinks. He reported nil alcohol on Sunday 6.2.11. He reported having consumed 1, 425ml serve of beer at the pub at 11.00am on Saturday 5.2.11 and 2 cans of overproof in the afternoon of the same day – in total approximately 5.3 standard drinks. He reported having consumed 2 cans of overproof rum on 4.2.11.
Typically he will drink 1 can every 30 minutes.
Mr K used biomedical measures in the course of his assessment including blood alcohol tests, CDT (carbohydrate deficient transferrin) tests, and reviewed urine drug screen tests. Subject to issues about the urine tests, the results of these tests were not problematic in the context of the issues in this case.
The father obviously created a favourable impression with Mr K:
He impressed as a large, straightforward man who has attempted to address his substance use and past aggression using professional assistance and who appears to be motivated to maintain the gains and benefits he has made in the past 15 months. He impressed as:
· Relatively candid and open,
·
Much less guarded and less other-party focused than
Ms Fielding
· More willing to acknowledge past problem behaviour.
Mr K’s opinion is expressed at page 16 of his report:
OPINION
1. The history of use and/or abuse of drugs and/or alcohol by
Mr Mason.From the assessment and documentary data reviewed it would appear that Mr Mason ahs [sic] been a dependent user of cannabis at very high levels for at least 20 years prior to March 2010. He appears to have been engaged in drinking with adverse consequences since at least 1990 and from his own account, his drinking increased in quantity after he moved from his parents’ home to [suburb omitted] in 2000, aged 30 or 31.
There is also an acknowledged history of other substance use including volatile solvents, hallucinogens, cocaine and amphetamines. Mr Mason denied any consumption of any of these substances in the 2 years preceding this assessment.
At time of assessment he reported consuming around 4 standard drinks on most days and he reported that he had been drinking at this level since his detoxification from cannabis. He also acknowledged smoking around 25-36 cigarettes per day.
2. Any attempts made in the past to address the alleged abuse of drugs and/or alcohol
As is stated above, in the body of the report, Mr Mason has been attending weekly consultations with both a general practitioner and a psychologist form [sic] more than 12 months. He reported having undergone detoxification at home and then at [O] rehabilitation centre in March 2010.
By his claim Mr Mason has now been abstinent from cannabis and other illicit substances for 15 months.
3. Any recommendations for programs that may be attempted by one or other of the parties in relation to drug and/or alcohol abuse
Given his history, Mr Mason should continue to monitor his alcohol use. With his therapists he should explore relaxant alternatives to drinking and should consider alcohol free days each week. This may be easier once the current dispute is concluded.
4. Any assessment of the likelihood of a successful rehabilitation from an abuse of drugs and/or alcohol and if possible an estimate of the time period for such rehabilitation
If Mr Mason’s self report is accurate it would appear that he has successfully ceased use of cannabis and that he has contained his drinking. Over the longer term he should explore stress management strategies and relaxation strategies that could be taken up as alternatives to the ritual of drinking at the end of each day.
5. Any recommendation for future monitoring of drug and/or alcohol use
See Item 3. Mr Mason’s GP can regularly monitor his liver function and periodically test for CDT. Mr Mason has also been advised about a low cost option for urine drug screening. The Court may elect to order additional screening for cannabis.
6. Any other matter that you consider to be relevant within your investigation and report upon the drug and alcohol use of the parties
No additional recommendations.
Protecting the children from harm
There is no risk of sexual abuse whilst the children are in their father’s care. Whilst I accept that both children have made multiple disclosures, the most likely scenario on the evidence before me is that either the mother or Mr G have, advertently or inadvertently, exerted pressure on the children to make those disclosures. The mother, and indeed Mr G as her perhaps unwitting accomplice, pursued a relentless agenda to obtain evidence of what plainly did not exist. There is no objective evidence of abuse after multiple DOCS and JIRT interviews and investigations, and many hours of the therapy with Ms E. The children’s relationship with their father was inconsistent with their being abused. By contrast the mother’s subjective belief, fuelled by this acrimonious litigation, caused her to fail to see what others clearly saw – the absence of any basis for concern. The mother’s beliefs about abuse were plainly inconsistent with her actions in allowing contact at times. The mother’s beliefs about abuse stand quite inconsistently with her scepticism about what the children say about other things. Her campaign to obtain evidence of non-existent abuse included video recording the children, taking them to doctors, hospitals and psychologists and “priming” those at the child care centre.
There is no unacceptable risk of abuse to the children by the father or anyone else in his family. These facts do give rise, however, to the need to protect the children from psychological harm if they continue to be exposed to their mother’s baseless concerns, and her relentless coaching them to make disclosures. This is a real risk on the facts of this case. I am not satisfied that the mother is capable of letting go of these beliefs. Her final proposal to the court was inconsistent with any recognition of what she had done to the children and to others. She was not capable of accepting the outcome of two JIRT investigations, so why would she accept my judgment on this issue? The only way to protect these children from these irrational beliefs is to remove them from the mother’s care, and to limit the time she spends with them.
There are other risks of harm to these children that must be acknowledged. There is the risk that the mother will slip back into alcohol abuse. I suspect that she is binge drinking. She certainly has not acknowledged her past alcohol abuse, and its impacts on her, the father, and the children. This same risk exists in relation to the father who I likewise felt was minimising his past and present alcohol consumption and its effects on parenting. With the father, however, this risk is mitigated by his living with his parents. They provide a safety net for these children that is not present in the mother’s household. I do accept however, that there is currently no risk associated with the father’s marijuana use.
Accordingly, in terms of protecting the children from the risk of harm, there is less risk on the father’s proposal than the mothers.
Children’s views
This is not an operative consideration on the facts of this case due to the children’s ages.
Nature of the children’s relationships
With the exception of [X]’s relationship with his mother, the relationships that both children have with their parents, paternal grandparents and aunt, and Mr G are all good ones. None of the proposals will compromise this.
I am satisfied that the children have a good relationship with the paternal family, especially the grandparents. My sense is that they have facilitated a degree of stability and security in their lives which the parents could not. This role will continue into the future. Both children were observed to have strong relationships with the father. In truth, even [X]’s relationship with his mother is adequate in a minimalist sense in that she can provide his physical needs. An important focus in the cross-examination of Ms C was the impact on [Y] of separation from her mother. She was robustly, and appropriately, challenged about this. Ms C was confident that, in the circumstances of this case, whilst separation from [Y]’s primary attachment figure was necessary, the relationship could be maintained in terms of the proposal she advanced, which is reflected in the orders sought by the Independent Children’s Lawyer. It is important to recognise that, in many respects, how [Y] will cope with separation from her mother will depend on the mother’s response to this change. I am satisfied that whilst the changes to [Y]’s relationship with the mother proposed by the Independent Children’s Lawyer and the father are drastic, they are nonetheless necessary, and that in any event the mother will retain her relationship with [Y].
Facilitating and encouraging relationships
In the context of the very toxic relationship that exists between the parents in this case, it is somewhat artificial to examine each parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent. One can but hope that their current loathing of each other will abate with the end of this litigation, though the fact remains that one parent will regard themselves as the winner, the other the loser. Both parents have done things that clearly signal either an unwillingness or lack of capacity to facilitate ongoing relationships. Whilst I am not so critical of the father’s actions in depriving the children of contact with the mother in the aftermath of the January 2009 separation, I am certainly critical of his appalling actions in setting up the mother’s arrest by the police in the presence of the children. I am most critical of the mother’s behaviour in the context of the abuse allegations, and her coaching of the children. Her relentless pursuit of evidence to support unfounded allegations can only be regarded as a desire to cut off their relationship with the father.
Whilst I have clear concerns about both parents in relation to this consideration, on balance I have slightly less concerns about the father’s ability to put aside his own hate for the mother and focus on the children’s need for her. In this regard I think the paternal grandparents will also keep the father accountable.
Likely effect of change for the children
The mother’s proposal promotes the least change for the children, but also least addresses the concerns about the children articulated in these reasons. The Independent Children’s Lawyer’s and father’s proposal promotes the greatest change, but more effectively addresses the concerns outlined. As identified above, the greatest change will be for [Y], but the Family Consultant proposes a blueprint for managing this. Separating the children is simply out of the question, and the imperative to remove [X] from the mother’s care, both for his sake and his mother’s, is so great that in moving [X] the court must also move [Y]. Any reversal of existing long standing care arrangements is a great change for the children, but is justified by the facts of this case. To not change their circumstances means that they will continue to be exposed to their mother’s coaching about abuse allegations, and will mean that [X]’s dysfunctional attachment with his mother will never be satisfactorily addressed. In any event I am satisfied that the changes are not so great that [X] and [Y] will not have a relationship with their mother. Indeed, qualitatively it may be a better one.
Practical difficulty and expense
The father lives in the northern suburbs of Sydney, the mother in the eastern suburbs. Whilst it has been far from uneventful, they have managed issues of distance reasonably well. This should not change in the future subject to a number of key considerations. Firstly, the parents must be kept physically apart as much as possible. Changeovers at the children’s child care centre has worked reasonably well. When [X] commences school in 2013, this may provide another safe changeover venue. The father proposes that in 2012 both children continue to attend their existing child care centre. Not only will this mitigate the circumstances of change for the children, it may also deal with problematic changeovers.
Parenting capacity
As must be apparent from any reading of these reasons so far, parental capacity is a significant issue in this case. Years of drug and alcohol fuelled family violence, and high conflict, combined with the sad description of [X]’s attachment to his mother, mean that each parent’s capacity to provide for the needs of the children is compromised. At a minimal level, each can provide for the children’s needs. The mother has demonstrated, for reasons explained above, she cannot meet the emotional needs of the children, especially [X]. If the father were not so closely supported by his parents, I would make the same finding about him. I am satisfied that with his parent’s support, the father will be able to meet the children’s needs, including emotional and intellectual needs. Again it is the case that the least risk is in the father’s household as presently constituted.
Maturity, sex, lifestyle and background
The parent’s past and current behaviour demonstrates a remarkable immaturity that could only be understood by reference to their past drug and alcohol addictions, and their current hostility towards each other. Both [X] and [Y] expect, and need, their parents to act like adults. Instead they have both acted in childish immature ways, e.g. at changeovers and in their communication with each other. The cessation of this litigation may hopefully result in the mother continuing her studies and getting into the work force, and the father focussing on becoming an effective working parent. The father needs to reconsider the prioritisation he currently gives to expenditure on gambling and alcohol, especially if he wishes to become an effective parent to [X] and [Y]. They must be his priority, and not the horses and drinking.
Attitudes to children and to responsibilities of parenthood
If it were a race between the parents as to who was the most irresponsible, who held the worst attitudes, and who had the least insight about their needs, it would be a photo finish, but the mother would win by a nose. Ultimately it is her coaching of the children to make disclosures of abuse that puts her ahead. Both of these parents have demonstrated remarkable irresponsibility and lack of understanding about the children’s needs. Whether it be the father’s family violence, the mother’s abusive behaviour to the father and others, the father’s marijuana addiction, the mother’s alcohol abuse, the father’s prioritisation of gambling and alcohol over child support, their attempt to use authorities such as the police, DOCS, JIRT and the children’s child care centre in their cause, the making of the false allegations, or the acting out of their conflict in front of the children, these parents have lost sight of what was most important: the welfare of [X] and [Y]. Neither could be trusted on their own to care for these children, and it is only the paternal grandparents who tip the balance in favour of the father.
Family violence
The father’s family violence perpetrated to the mother was totally unacceptable and inexcusable. A notable feature of the father’s case was the absence of any challenge to the mother’s evidence in this regard. True it is that the mother was sometimes abusive and violent towards him, but I do not accept that it was of the same potency or impact. True it is that the violence was fuelled by his marijuana addiction and her alcohol abuse, but that does not justify or excuse this behaviour. The children were exposed to this both directly and indirectly. At one stage in the Family Consultant’s oral evidence she postulated that the father’s family violence precipitated the mother’s alcohol abuse, depression, and subsequent emotional unavailability for [X]. Certainly I considered this possibility as well. The Family Consultant made is quite clear that even if that were the case, it would not change her recommendations. In any event I do not accept that the evidence establishes a link between the family violence and the mother’s depression after [X] was born. The evidence of the mother’s alcohol abuse indicates this started early in the relationship, and nowhere does the mother assert it was a response or reaction to family violence. This is not a case where the evidence suggests that her dysfunctional parenting was causally related to, or even associated with, the family violence. There are too many other factors that are operative including the mother’s alcohol abuse and abusive behaviour.
I acknowledge that it is a rare case when such family violence would not contraindicate the children being placed in the father’s care. As I have previously indicated, however, this is not a case about best interests, but rather where there is least risk. For the reasons outlined, the least risk is in fact with the father.
The most appropriate order for the children?
Having regard to all of the evidence and my discussion of the evidence above, I believe that the Independent Children’s Lawyer’s proposal is the one that exposes the children to the least risk. It must follow from what I have said above that the children live with their father, supported as they are by the safety net provided by the paternal grandparents.
The Independent Children’s Lawyer proposes a modified form of equal shared parental responsibility which imposes an obligation to consult, but expressly recognises that failure to agree results in the father being able to make a decision and then notify the mother. This is an appropriate order on the facts of this case. The orders proposed by both parents for sole parental responsibility are inappropriate because either of them would take such an order as licence to exclude the other from the children’s lives. In short, this is a sad case where neither parent can be trusted with sole parental responsibility. In this case, the order proposed by the Independent Children’s Lawyer is in fact the best one in the circumstances.
Whilst the father proposes the mother have only supervised contact at a centre, the Independent Children’s Lawyer proposes that the mother’s time be day only, but otherwise unsupervised. The father is correct in expressing concerns about the mother’s ability to self-regulate in terms of her abuse beliefs and negative attitudes about the father. The fact remains, however, that [X] and [Y] both need to have a relationship with their mother that is quantitatively and qualitatively richer than that which will arise from contact at a centre only. In any event I accept the Independent Children’s Lawyer’s submission that contact at a centre would be impractical for the mother. The Independent Children’s Lawyer’s proposal also recognises that for 2012, [X] needs to spend special time with his mother.
I accept that the evidence warrants making orders compelling the children’s attendance in 2012 at [G] Child Care Centre, the parent’s ongoing therapeutic attendance on various professionals, and a restraint on any other person attending changeover.
I recognise that changeovers may remain flash points between these parents, but there are few satisfactory options in this case. To use either the child care centre or a supervised exchange service would greatly limit the pattern of contact that is one of the key elements in the Independent Children’s Lawyer’s proposal.
The injunctions suggested by the Independent Children’s Lawyer are entirely appropriate and necessary.
There are no perfect or ideal outcomes in this case. As I have said it is really about least risk rather than best interests. There is a real risk of re-litigation. One can only hope that the end of this litigation may help contribute to reduction in the level of conflict. The order for the children to commence living with the father needs to start sooner, rather than later. I will require compliance within 48 hours of the release of these reasons and making of these orders.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 16 December 2011
Schedule
Mother’s Minute of Order
1. That the mother have sole parental responsibility for the children [X] born [in] 2007 and [Y] born [in] 2008. (“the children’).
2. That the children spend time with the father from 9am to 5pm Saturday and 9am to 5pm Sunday on alternate weekends, supervised by his parents, sister Ms M, or other family member.
3. That the mother do all things necessary to ensure that the father is permitted to attend any preschool or school events at which parents are normally permitted to attend.
4. That the mother do all things necessary to ensure that the father is entitled to receive copies of school reports, school newsletters and any other documents normally made available to parents, from the children’s school and preschool.
5. That the mother keep the father advised of her intentions in regards to the children’s pre school and other schooling and take account of any information the father provides to her in that regard.
6. That the mother advise the father of any medical treatment of the children, other than minor illnesses, and advise him of all details of the children’s treating doctors or therapists, and dates and times of appointments, and authorise such doctors and therapists to provide the father with full information about their treatment of the children.
7. That the mother is at liberty to take the children for overseas holidays of not more than 6 weeks upon giving the father one month’s notice of her intention do so, and supplying him with an itinerary of her proposed travel.
8. That the mother refrain from talking to the children about sexual abuse and not raise the issue of sexual abuse with any therapist.
Father’s Minute of Order
That the children, [X] born [in] 2007 and [Y] born [in] 2008 (“the children”) live with the father.
That the father have the sole parental responsibility for the children.
That the children spend no time with the mother.
That the mother be restrained from communicating with the children or contacting them in any manner whatsoever.
Independent Children’s Lawyer’s Minute of Order
1.That the children [X] BORN [in] 2007 and [Y], BORN [in] 2008 (“the children”) shall live with the Father.
2.That the parties shall have equal shared parental responsibility for the children and they shall, in the exercise of their joint parental responsibility, consult with each other in relation to the children’s health and education and should there be no agreement on any issue that pertains to the children’s health or education, the Father shall make the decision and shall advise the Mother of the decision made.
3.That the Mother spend time with the children as follows:-
3.1 With [X] on one weekday each week as agreed between the parties and failing agreement each Wednesday between 10.00am and 4.00pm, with such time continuing until 20 January 2013;
3.2 With both children, one weekend day each week as agreed and failing agreement each Sunday between 10.00am and 4.00pm;
3.3 From the beginning of the Term 2 School Holidays in 2013, with both children each alternate weekend from 10.00am Saturday until 4.00pm Sunday;
3.4 From 10.00am until 4.00pm on 24 December 2011;
3.5 From 10.00am until 4.00pm on 25 December 2012;
3.6 Commencing 2013, with the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years and from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years;
3.7 At such other times as agreed.
4.That the Father shall live at the home of his parents.
5.That the parent’s shall ensure the children continue at [G] Child Care Center until the end of 2012.
6.That unless otherwise agreed, changeover shall take place at McDonald’s at [suburb omitted].
7.That each party be restrained from attending changeover with any other person.
8.That the Father shall continue his therapeutic attendance on Ms M or other therapist as recommended by her for the purpose of maintaining his current sobriety and in order to assist him with the long term care of the children.
9.That the Mother shall continue her therapeutic attendance on Ms E and in the event Ms E is unable to continue such therapy, with a therapist as nominated by the Independent children’s Lawyer, for the purpose of assisting her relationship with [X] AND the mother shall facilitate [X]’s attendance at such therapy as recommended by the therapist provided that any appointment for [X]’s attendance are at times when [X] is otherwise in the Mother’s care.
10.That each party keep the other informed of a current address and telephone contact number.
11.That each party keep the other informed of any matter arising in relation to the children’s education and medical treatment.
12.That each party inform the other before taking the children outside the Sydney Metropolitan area.
13.Notwithstanding any other Order, the children shall spend time with the Mother from 10am until 4pm on Mother’s Day and from 10am until 4pm with the Father on Father’s day.
14.That each party be restrained from:-
15.1Discussing the proceedings with the children;
15.2Discussing any allegations of sexual abuse by the father or the paternal grandfather with the children;
15.2Denigrating the other parent or any member of the other parent’s family in the presence or hearing of the children.
0
3
2