Fraser & Fraser
[2022] FedCFamC1F 542
•19 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fraser & Fraser [2022] FedCFamC1F 542
File number(s): SYC 1270 of 2021 Judgment of: ALTOBELLI J Date of judgment: 19 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the mother sought an adjournment on the first day of the trial – Where the adjournment was opposed by the father but supported by the Independent Children’s Lawyer – Where the mother made significant concessions and resiled from her beliefs that the father had sexually or physically abused the children or that he poses a risk of physical harm to the children – Where the mother proposed interim orders for the children to undergo therapy and spend time with the father – Adjournment granted – Interim parenting orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 102NA Cases cited: Carlyon & Graham [2022] FedCFamC1F 228
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 43 Date of hearing: 18–19 July 2022 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Swifte Law Counsel for the Respondent: Mr Macpherson Solicitor for the Respondent: Wmd Law Counsel for the Independent Children's Lawyer: Mr Pickering Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 1270 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FRASER
Applicant
AND: MR FRASER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
19 JULY 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Orders are made in terms of the minute proposed by the Applicant, marked “A” dated this day and attached hereto.
2.The Independent Children’s Lawyer, along with Ms L of M Psychologists (“Ms L”), are requested to explain the orders to the children as soon as practicable.
3.The Independent Children’s Lawyer is directed to provide a copy of the following to Ms L:
(a)The reasons for judgment delivered today; and
(b)The single expert report of Ms N dated 16 December 2021.
4.The final hearing of this matter is adjourned to 11 April 2023 at 10am, with an estimated hearing time of four days.
5.The matter is listed for mention on 6 September 2022 at 9am to ascertain the implementation of the orders made today.
6.Leave is granted to the parties to apply to relist the proceedings on seven days’ notice in the event that there are any issues with the implementation of the orders made today, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
7.The costs of the father incurred in the proceedings to date are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fraser & Fraser has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
I provide the following ex tempore reasons for judgment in this matter. In formulating these reasons I have had regard to a number of documents, including:
(a)The single joint expert report of Ms N dated 16 December 2021 (exhibit ICL1);
(b)The curriculum vitae of Ms L (exhibit ICL2);
(c)The Magellan Report dated 15 June 2021 (exhibit ICL3);
(d)The report of Ms O, psychologist, dated 15 June 2021 (exhibit ICL4);
(e)The affidavits of Ms Fraser (“the mother)” filed 25 February 2022 and 23 June 2022;
(f)The affidavit of Mr Fraser (“the father”) filed 23 June 2022;
(g)The mother’s case outline filed 12 July 2022;
(h)The father’s case outline filed 8 July 2022;
(i)The Independent Children’s Lawyer’s case outline filed 14 July 2022;
(j)The decision of Campton J dated 8 April 2022 in Carlyon & Graham [2022] FedCFamC1F 228; and
(k)The minutes of orders proposed by the parents, and the Independent Children's Lawyer, both as to final and interim orders.
In this regard the Court marks the mother’s proposed interim orders as exhibit A1, the father’s proposed interim orders as exhibit R2, and the Independent Children's Lawyer’s minute as to final orders as ICL5.
I found particularly useful the detailed chronology prepared in the father’s case and contained in his case outline, whilst recognising its inherent limitation in that it is based exclusively on the father’s evidence.
The matter came before me yesterday, which was day one of a five-day listing. The case is about two children who are nine and a half and eight and a half years old. The children live with the mother and have not spent time with the father since early last year. At the commencement of the hearing yesterday, the issues in the case presented as an unacceptable risk of child sexual abuse from the mother’s perspective, and from the father’s perspective an unacceptable risk of psychological abuse.
All of the documents that had been filed in this case before yesterday indicated that the mother believed that the children should not spend time with their father because of the unacceptable risk of the father perpetrating sexual abuse on them. It is common ground, and consistent with the expert evidence, that the children believe that their father has abused them. They are thus fearful of him and do not wish to spend time with him.
The mother is represented pursuant to the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”). The Court takes notice of the limitations of such representation. The Court record indicates that the mother has not been represented since early 2022. Nonetheless it is clear that the mother had available to her at all relevant times the Magellan Report and the single joint expert report. When the matter was called on yesterday I sought to clarify with counsel for the mother whether her case was predicated on the basis that there was an actual risk of harm to the children because they had been actually abused by their father, or whether the issue for the Court was whether there was a risk of abuse by their father.
In effect the Court was seeking to clarify whether it was being asked to make actual findings of sexual abuse as opposed to an assessment of the risk of such abuse occurring in the father’s care. Initially, counsel indicated that his instructions were that the mother would press the Court for a finding that abuse had actually occurred; in the alternative, her case would be that there was nonetheless a risk of abuse occurring.
To be fair to counsel and to his instructing solicitor, the distinct impression formed by the Court was that he preferred to seek further instructions from his client and have the benefit of time to confer with her. The matter was stood down so that those further instructions could be obtained. At about midday when the matter was re-mentioned, counsel announced to the Court that his client no longer believed that the children had been sexually abused by the father, and she no longer believed that there was a risk of sexual abuse from the father; indeed I think he described it as “the risk of any form of physical abuse”.
The mother sought an adjournment on the basis that interim orders would be made. Implicitly, even if not made explicit by counsel, the purpose of the orders was to facilitate the children’s reintroduction to their father, and therapy for both the children and the mother, the former being critical to a successful reintegration of the father into the children’s lives.
The adjournment application was strongly opposed by the father, for reasons that will be discussed shortly. The Independent Children's Lawyer supported the adjournment on the basis of the interim orders proposed by the mother. The mother’s proposed interim orders provide:
·for the children to continue to live with her;
·for the children to attend reportable therapy with Ms L at the mother’s expense;
·for the Independent Children's Lawyer to be provided with reports from Ms L;
·that the mother facilitate the commencement of therapy with Ms L;
·that the purpose of the therapy is to address the children’s belief that they have been abused by the father, and to assist them to re-establish a significant and meaningful relationship with their father;
·that following at least two sessions with Ms L, or otherwise as recommended by Ms L, the children spend time with the father supervised by a professional supervision service for no less than 12 consecutive occasions each Saturday at the mother’s sole cost, and thereafter it become unsupervised from 12 noon to 4 pm each Saturday;
·that the mother herself engage with therapy through a psychologist or counsellor;
·that neither party discuss the court proceedings with or in the presence of the children;
·that the mother enrol and complete courses recommended in the single joint expert’s report;
·that an updated report of Ms N be undertaken at the conclusion of the 12 supervised visits at the sole cost of the mother; and
·that the parties, and the Independent Children's Lawyer have liberty to restore on seven days’ notice.
The order proposed by the father was that any application for an adjournment by the mother be stood over to the final day of the trial, and that in the event of an adjournment being granted, the orders put forward by the Independent Children's Lawyer be implemented immediately. The father also proposed a number of notations.
The orders proposed by the Independent Children's Lawyer were always expressed as a preliminary view. There were two distinct scenarios: on the first scenario the Court would find that there was an unacceptable risk of harm to the children in the care of the mother; on the second scenario the children would be at unacceptable risk of harm in the care of the father. In the first scenario the children would live with their father, who would have sole parental responsibility, and then spend time with their mother, initially supervised. On the second scenario the children would live with their mother and spend no time with their father.
Each of the lawyers for the parties, and the Independent Children's Lawyer, were experienced family lawyers, and the Court is satisfied that they would have reasonably known that the Court was not bound by any of the proposals put before it.
The Applicable law
This is an interim application. The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act 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 Part VII of the Act 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, the Court is 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)Subject to subsection (6), 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) Subject to subsection (6), 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;
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)For the purposes of subsection (2), a child 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 the Court must then go back to consider s 60CC which specifies how the Court must determine 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).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(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 extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
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.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
The case before the Court now is completely different to the case that started at 10 am yesterday. The mother has made a number of very significant concessions which completely change the complexion of this case and the issues for the children. For all practical purposes the identified risk of harm to the children is as follows: firstly, whether there remains a risk of psychological abuse to the children as a result of the mother’s historical beliefs that the father had actually perpetrated sexual abuse on them; secondly, whether there is a risk of psychological harm to the children caused by the adjournment of the proceedings and the reimplementation of their time with their father.
The father’s strident opposition to the adjournment application was in many respects understandable. The history of this matter indicates that the mother has already once resiled from old allegations of sexual abuse that she made in 2017 by entering into consent orders in 2018. His concern that history is repeating itself is understandable, but for some important differences. The father’s seeming deep cynicism about the mother’s so-called dramatic about‑face is also understandable at one level. The father’s concern about the enormous cost that he has incurred in this litigation is also understandable.
If the father is angry at the mother’s behaviour, and suspicious of her motives, at a human level this is certainly understandable. The tragic reality in this case is that the two children believe that their father has sexually abused them, and presents a risk of harm to them. This belief was seemingly inculcated by their mother, who now resiles from that belief.
The father has a luxury which the Court does not have—indeed does not want—and that is the luxury to be angry at a parent because of what they have done, or failed to do. In this jurisdiction if the judge had such a luxury, one suspects that most judges would be permanently angry. The focus of all proceedings relating to children is what is in their best interests, and whilst that sometimes leads to judgments being passed on the conduct of parents, that is incidental to the task of finding what is in their best interests.
The question for the Court is what is in the best interests of these children. The answer to that question is informed by the evidence before the Court which I have identified above, and is also informed by judicial experience. The single joint expert report identifies clearly that the likely effect of any change in the children’s circumstances will be profound.
Even if the father were successful in his application, it is most unfortunate that nowhere does he propose how he will manage the transition of the children back into his care. At the commencement of the hearing he embraced the minute of order proposed by the Independent Children's Lawyer, which contains a number of orders about therapy for the children whilst they are in his care, but that is not an order he sought in his Amended Response to Initiating Application filed 4 March 2022.
The distinct impression formed is that, regrettably, the father has really not considered the impact on the children of transitioning back into his care before the point at which he adopted the Independent Children's Lawyer’s proposal.
The need for the children to be supported as regards any significant change in their lives is apparent from the single joint expert report, as well the report of Ms O, the psychologist retained by the Department of Communities and Justice. Indeed, Ms O’s report presents an insight into what exactly would need to happen within that therapy so that the fears that the children have been instilled with are addressed and shown to be baseless.
The father is entitled to be concerned about the risk of continued psychological abuse to the children whilst in the mother’s care, given the history of this matter, and her dramatic about‑face as regards risk issues.
The issue for the Court, however, is whether that risk is an unacceptable one. The Court believes that it is not unacceptable because the orders clearly provide for both the children and the mother to be engaged in therapy which is reportable, and in the context of an adjournment of the case that will remain in my docket, with the ability to relist on short notice. Indeed, the proposal that the mother herself advances, and which is supported by the Independent Children's Lawyer, exposes her to a level of scrutiny and accountability that she has never experienced before in the history of this litigation, as is discernible from the Court file, or the material before the Court.
The father’s scepticism needs to be reality tested even if it is understandable at a human level. If the mother’s seeming Damascus road experience turns out to be something less than that, she faces the risk of the Court further intruding into her life by making interim orders. In her material, and in the single joint expert report, the mother presents as intelligent, articulate and successful in her business ventures. Drawing on another biblical allusion: surely she must see that the writing is on the wall.
The father contends that this is, in effect, a desperate last-minute gamble by her to retain the children. This assumes that the outcome of the litigation would have been that the children live with him—an outcome that is by no means clear but which very much remains open, and is in any event inconsistent with the recommendation of the single expert at page 76 (namely the last paragraph of the report) which clearly contemplates the possibility that the sexual abuse allegations will be found to be false, but nonetheless recommends that the children continue to live with their mother and spend time with their father. The focus must remain on the children.
Ms L’s qualifications to undertake the role proposed to be played in this case are impressive. Ms L and the Independent Children's Lawyer, the children need to be informed as soon as possible that their mother no longer holds the belief she once held. The orders provide for this. The children need to start spending time with their father. It needs to be supervised, not to protect them, but to reassure them and to gradually reintegrate their father into their life.
The magnitude of the change for these children proposed by the mother’s orders must be understood. The mother’s proposed orders progress to unsupervised time quite quickly. The Court will have no hesitation whatsoever to relist this matter for further interim hearing in order to expand even further the children’s time with their father, and hopefully this will be with the mother’s support, and will be supported by the evidence of how supervised contact is progressing.
Of course there are risks to the matter being adjourned and interim orders being made. The father’s suspicions may be proven correct, but that perhaps makes even more inevitable the outcome that he seeks. The Court accepts he will have incurred costs and may need to reincur further costs, though noting the applicability of s 102NA. The Court will certainly reserve the father’s costs of the proceedings to date, as a potential safety net for him.
The Court will make orders in terms of the minute proposed by the mother, and supported by the Independent Children's Lawyer, with the following changes: firstly, the Independent Children's Lawyer, together with Ms L, are requested to meet with the children to explain these orders as soon as possible. These reasons for judgment will be taken out as soon as possible, and will be made available to the parties, Ms L, and the single joint expert.
This hearing will be adjourned to 11 April 2023 for four days. This matter will come back before me for case management purposes on 6 September 2022 at 9 am, so that the Court may be appraised as to developments as to the implementation of these orders.
I do want to make it very clear, though, that the parties retain leave to relist before me on seven days’ notice if there are any problems with implementing these orders between now and 6 September.
Whilst the Court has some reservations about Order 6 proposed, in the sense that it allows Ms L the ability to make recommendations about when the children start spending supervised time with their father, the alternative of the Court arbitrarily stating when the children’s time commences may naively underestimate the opposition of the children and the therapeutic work that needs to be undertaken.
There is little point in starting supervised time with the father if it is simply going to further alienate the children from him because they have been insufficiently prepared in a therapeutic sense.
As I say, I reserve the father’s costs of the proceedings to date. This is a complex case, and this is a difficult decision. It was always going to be a case of finding where there is least risk for the children, and on an interim basis I am satisfied that the orders that the Court will make on an interim basis present that least risk.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 19 July 2022. Associate:
Dated: 19 July 2022
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