Frome and Frome (No. 2) - [2010] FamCA 1104

FAMILY COURT OF AUSTRALIA

FROME & FROME (NO. 2)

[2010] FamCA 1104

FAMILY LAW – CHILDREN – BEST INTERESTS – Allegations of sexual abuse of child by father – Finding no sexual abuse – Allegation of unacceptable risk of sexual abuse – Finding no unacceptable risk – Child’s relationship with father fractured – Order made for family therapy to restore child’s relationship with father – Mother seeking to relocate children from southern Queensland to coastal Queensland – Interim order made that children live with mother in southern Queensland provided that mother chooses to live in southern Queensland on the interim basis pending family therapy and further listing – Children to live with father in southern Queensland pending further listing if mother relocates to coastal Queensland before further listing – Final parenting orders anticipated to be made within twelve months as to whether the children live with mother in coastal Queensland or father in southern Queensland

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DA, 65DAA

AMS v AIF (1999) 199 CLR 160
B and B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
Hilton v Allen (1940) 63 CLR 691
Johnson & Page (2007) FLC 93-344
Korban & Korban [2009] FamCAFC 143
Lindsay & Baker (2007) FLC 93-347
Mazorski & Albright [2007] 37 FamLR 518
M and M (1988) 166 CLR 69
MRR and GR (2010) 240 CLR 461; [2010] HCA 4
McCall & Clark (2009) FLC 93-405
N & S (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Reifek v McElroy (1965) 112 CLR 517
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor v Barker (2007) FLC 93-345
WK v SR (1997) FLC 92-787 at 84,694

APPLICANT:

Mr Frome

RESPONDENT:

Ms Frome

FILE NUMBER:

BRC

8078

2009

DATE DELIVERED:

6 December 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

16, 17, 18 and 19 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

Best Wilson Family Law

COUNSEL FOR THE RESPONDENT:

Mr Green

SOLICITOR FOR THE RESPONDENT:

Anthony Black Family Law Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Wiid
Lyrene Wiid Lawyer

Orders

IT IS ORDERED

Parental responsibility

The parties have equal shared parental responsibility for H born … February 2001 and S born … January 2002 (the children) in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.
In the exercise of their equal shared parental responsibility concerning the children in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FamCA 1104
Decision Date: 6 December 2010

CaseChat Overview and Summary

The case of *Frome and Frome (No. 2)* involved a dispute between the father and mother concerning the parental responsibility and living arrangements for their two children, H and S. The matter came before Justice O'Reilly.

The court was required to determine the terms of parental responsibility, including how the parties should consult and make decisions regarding major long-term issues concerning the children. Additionally, the court needed to establish orders regarding the children's day-to-day care, communication between the parents, attendance at therapy, and specific restraints on contact with certain individuals and organisations. The court also had to consider the children's living arrangements and time spent with each parent, pending further orders.

Justice O'Reilly made detailed orders concerning equal shared parental responsibility, mandating a structured process for joint decision-making on major long-term issues, including written proposals and responses, and referral to a dispute resolution practitioner if agreement could not be reached. The court also ordered the parties and children to attend family therapy with a psychologist, Mr O, for a period of 12 months, with the aim of restoring the child S's relationship with the father and fostering confidence in her safety. Specific orders were made to prevent the children from attending or coming into contact with certain individuals and organisations, and to ensure they use their surname Frome. The court also made interim orders for the children to live with the mother at T, provided she chose to reside there, and to spend time with the father on alternate weekends and other specified occasions, with changeovers designed to minimise contact between the parents. The matter was adjourned for further evidence and argument regarding final parenting orders, specifically concerning whether the children should live with the mother or the father.

Orders

Orders of the court

IT IS ORDERED

Parental responsibility

The parties have equal shared parental responsibility for H born … February 2001 and S born … January 2002 (the children) in relation to the major long-term issues concerning them including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.

In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.

In relation to such consultations:

a. the parent wishing to make a proposal as to a major long-term issue make it in writing to the other parent setting out the advantages of the proposal perceived by that parent and reasoning supporting it

b. the other parent respond in writing to the proposal by either agreeing with it or making a different proposal setting out the advantages of any different proposal and reasoning supporting it

c. if after such consultation on an issue a joint decision is not able to be made the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve the issue.

Despite orders 1-3, if the father proposes to the mother that the children attend upon a dentist at T for dental check and treatment and that he be responsible for payment the mother must ensure the children attend all dental appointments made by the father.

The parties each be responsible for the children’s day to day care while the children are with each of them.

Parties’ communication

Except in the case of any emergency, all written communications between the parties concerning the children, including in relation to parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.

To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or text message service number and give written notice of any change of such within 24 hours of any change.

Attendance on Mr O, psychologist

The father, the mother and the children attend on Mr O, psychologist, at T, at dates and times to be arranged by the independent children’s lawyer, for family therapy counselling for the period of 12 months from the date of S’s first attendance with a view to:

a. restoring S’s relationship with the father

b. encouraging in S and the mother the belief that the father has not sexually abused S and

c. encouraging in S confidence in feeling safe with the father as a person who will not harm her

such counselling to be confidential and non-reportable except as to the matters in order 25 below.

The father and the mother share equally the cost of all attendances on Mr O.

Reasons for judgment

10.

The independent children’s lawyer provide a copy of these orders and reasons for judgment to:

a. the Director-General, Department of Community Services

b. Mr O.

11.

The mother provide a copy of these orders and reasons for judgment to her private therapist Ms Y.

12.

The father provide a copy of these orders and reasons for judgment to his private therapist Ms TR.

Family report and transcript oral evidence Ms L

13.

The independent children’s lawyer provide a copy of the family report of Ms L, social worker, and the transcript of her evidence 19 August 2010 to Mr O.

Restraints

14.

The parties must not cause or allow either of the children to attend on or come into contact with:

a. Dr H

b. Ms GA

c. Pastor N

d. the organisation known as V Organisation.

15.

The parties must ensure that the children be called, known as and enrolled at school and all other places and bodies by the surname Frome and not any other surname.

16.

The parties must not attend the children’s school other than for usual school events which parents attend such as parent teacher interviews, concerts, sports days and the like unless invited in writing by the school principal for some other specific purpose or notification by the school of some emergency and must ensure that the children’s grandparents similarly not attend at the children’s school other than on such occasions.

Information

17.

The parties must notify each other of his and her residential address, landline and mobile telephone numbers and give written notice of any change within 24 hours of any change.

18.

The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.

19.

The parties must notify each other of the names and addresses of any treating medical or health practitioner or hospital the children attend and authorise such to provide to the other at his/her request and expense information or reports concerning the children provided that this order is sufficient authorisation to do so.

20.

The parties must authorise the children’s school to provide to the other at his/her request and expense information, copies of school reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Non denigration

21.

The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children.

AND IT IS ORDERED UNTIL FURTHER ORDER

22.

The mother must not relocate the children from T, southern Queensland.

23.

Provided that the mother chooses to live at T:

a. the children live with the mother at T

b. the children remain at the T State Primary School

c. H spend time with the father:

i. on alternate weekends from Saturday 1.00pm until Sunday 4.00pm including throughout the school holiday periods

ii. such further time as Mr O may recommend and/or the parties may agree.

d. changeover occur at McDonalds at T with the delivering party to deliver H to the playground door and the collecting party to collect H from the non-playground door such that the parties ensure they not come into contact with one another

e. S spend time with the father as may be recommended by Mr O, and if such be at the Contact Centre the mother and the father arrange intake as soon as possible, with H to attend if advised by Mr O, and if such be at the father’s home it coincide with all or part of the time H is to spend with the father pursuant to subparagraph c, with changeover in accordance with subparagraph d

f. on Christmas Day 2010 the children spend time with the father at a place to be recommended by Mr O, which may include the father’s home, between 9am and 2pm

g. on each of the children’s birthdays on … January 2011 and … February 2011 the children spend time with the father at a place to be recommended by Mr O, which may include the father’s home, between 4pm and 7pm

h. on Easter Sunday 2011 the children spend time with the father at a place to be recommended by Mr O, which may include the father’s home, between 9am and 2pm.

23.

If the mother should relocate from T:

a. the children live with the father at T;

b. the matter be relisted in relation to the children spending time with the mother.

AND IT IS FURTHER ORDERED

Independent children’s lawyer

24.

The independent children’s lawyer not be discharged for 18 months.

25.

The independent children’s lawyer no later than Friday 1 July 2011, but earlier if considered appropriate, seek a brief report from Mr O as to:

a. the dates and times of scheduled appointments

b. whether the father, the mother and the children have attended all scheduled appointments

c. whether the father and the mother meaningfully have participated in scheduled appointments

d. H’s and S’s response to therapy

e. Mr O’s recommendations to the Court as to H’s and S’s best interests in relation to their living arrangements, schooling and other matters as he may consider appropriate.

Liberty to apply on short notice

26.

The parties and the independent children’s lawyer have liberty to apply on short notice to the Associate by email:

a. if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification or if any machinery or s65L orders are sought to be made

b. if any urgent or other listing is sought, including for final orders.

Further listing

27.

Otherwise the matter be listed at 10.00am on Monday 1 August 2011 before the Honourable Justice O’Reilly for further evidence and argument as to final parenting orders in particular whether the children should live with the mother at B on the Queensland coast or the father at T in southern Queensland.

28.

For the purpose of that listing, no later than 4.00pm on Friday 15 July 2011:

a. the independent children’s lawyer file and serve an affidavit of Mr O annexing his report

b. the father and the mother file and serve one affidavit each confined to any relevant incidents or matters occurring after August 2010

c. the independent children’s lawyer arrange for Ms L, the family report writer engaged in the matter, to read such material and be available at Court for the further listing of the matter to give oral evidence as to her recommendations in the matter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk. In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it. The father relied upon evidence by himself, the paternal grandfather, Mr D, a director of his employer and Ms E, his partner. The mother relied on evidence by herself, the maternal grandfather, the maternal grandmother, Dr H, clinical psychologist, Dr GI, general practitioner, Pastor N, Minister and Ms GA, journalist. The independent children’s lawyer relied upon reports by Dr M, psychiatrist, and Ms L, social worker, who prepared the family report. In addition the parties relied upon documentary evidence, exhibits 1-16, including the Magellan Report prepared by the Department of Communities (ex 1), an agreed bundle of documents selected from the documents provided pursuant to subpoenae (ex 7), an interview with S by Ms GA, journalist (DVD and transcript ex 2), other electronic recordings concerning Ms GA and accompanying transcripts (exs 4, 5 and 6), two electronic presentations made by V Organisation which were provided to the children concerning “Ditto the Lion”, being a DVD (ex 15) and CD-Rom (ex 16), and a book given to the mother by the Department of Communities called “Everyone’s Got a Bottom” (ex 14) apparently a publication of Family Planning Queensland. It is not necessary to refer to all of the evidence. If in these reasons I should not refer to the evidence of a particular witness or parts of the evidence of any witness it ought not be inferred it has been overlooked. All of the evidence has been considered carefully. Ms Lyons of Counsel, for the independent children’s lawyer, helpfully provided a schedule showing, chronologically, the disclosures made by S, the schedule being agreed to by Mr Selfridge of Counsel for the father and Mr Green of Counsel for the mother. Although lengthy, it is useful to set out the schedule in full. The abbreviations used in it are self-explanatory. I would reiterate that I have no power to order the mother to live at T. If the parties wish ultimately to live in separate locations, that firmly is the choice of each, my function in such circumstance being ultimately to decide whether the children’s best interests would be met by living predominately with one parent at his or her preferred choice of location X or the other parent at his or her preferred choice of location Z, such preferred choices being matters to take into account: AMS v AIF (above) at [216], [218]; MRR v GR (above) at [5], [15], [19]. The interim order I propose to make thus does not have the effect of requiring the mother to live at T. Rather its effect is that, on the interim basis, the children live with her provided that she chooses to live at T until further order, to allow the process with Mr O to ensue. If the mother chooses not to do that, in the short term, she should notify the independent children’s lawyer immediately. It is however, in my view, in the children’s best interests that she do so, to enable the therapy with Mr O to continue with the father, the mother and the children involved. It is not an uncommon observation in this Court that children often may be traumatised initially by a specific circumstance, and then respond positively to change with appropriate support. Hopefully the mother will be able to put the children’s best interests ahead of her own, and agree to live with them at T pending the period of therapy with Mr O. If she is not prepared to do that, or for any reason cannot do that, to allow the therapy with Mr O to proceed to fruition, then at the next listing of the matter her reasons for such will need to be explored.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.