Geiger and Geiger
[2010] FamCA 796
•10 September 2010
FAMILY COURT OF AUSTRALIA
| GEIGER & GEIGER | [2010] FamCA 796 |
| FAMILY LAW – CHILDREN – BEST INTERESTS – Allegations of sexual abuse of children by father – Finding no sexual abuse – Allegation of unacceptable risk – Finding no unacceptable risk – Restraint on mother not to take children to organisation known as Z Organisation – Male child has very conflicted relationship with father possibly caused by mother’s belief system as to sexual abuse – Consideration of whether children at risk of emotional abuse in mother’s household – Consideration of whether mother’s belief system may change after the trial process – Order made for equal shared parental responsibility – Children to live with mother and spend holiday time with father – Children to attend specialist paediatrician – Ancillary orders |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 65DA |
| B and B (1993) FLC 92-357 Bookhurst & Bookhurst [2010] FamCAFC 26 Briginshaw v Briginshaw (1938) 60 CLR 336 Friscioni & Friscioni [2010] FamCAFC 108 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Hilton v Allen (1940) 63 CLR 691 Jacks v Samson (2008) FLC 93-387 Johnson & Page (2007) FLC 93-344 Korban & Korban [2009] FamCAFC 143 Lindsay & Baker (2007) FLC 93-347 L & T (1999) FLC 92-875 M and M (1988) 166 CLR 69 Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638 Marsden & Winch [2009] FamCAFC 152 Mazorski & Albright [2007] 37 FamLR 518 McCall & Clark [2009] FamCAFC 92 Miller & Harrington (2008) FLC 98-383 MRR and GR [2010] HCA 4 Napier and Hepburn (2006) FLC 93-303 N & S (1996) FLC 92-655 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Reifek v McElroy (1965) 112 CLR 517 Rice and Asplund (1979) FLC 90-725 Russell v Close [1993] FamCA 62 In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 WK v SR (1997) FLC 92-787 at 84,694 |
| APPLICANT: | Ms Geiger |
| RESPONDENT: | Mr Geiger |
| FILE NUMBER: | BRC | 14238 | of | 2007 |
| DATE DELIVERED: | 10 September 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 15, 16, 17, 18 and 19 March, 14, 17 and 18 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Ashcroft |
| SOLICITOR FOR THE APPLICANT: | Family Lawyers & Mediation Services |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Family Law Doyle Keyworth & Harris |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Burridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kushal Bridges Family Law Specialists |
Orders
Parental responsibility
Subject to the specific orders below concerning the children’s education (orders 13-17) and health, therapy or counselling (orders 18-20) the parties have equal shared parental responsibility for J born … December 2001 and A born … March 2004 (the children) for decisions 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 the children 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 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.
Living arrangements
The children live with the mother.
The children spend time with the father as may be agreed between the mother and the father but at least:
a.for the whole of the March/April, June/July and September/October school holiday periods commencing at 12 noon on the first Saturday and concluding at 12 noon on the last Saturday of each such period;
b.for two weeks of each of the Christmas school holiday periods, for those commencing in the odd years from 12 noon 14 days before Boxing Day until 12 noon on Boxing Day and for those commencing in the even years from 12 noon on Boxing Day until 12 noon 14 days later.
Telephone communication
If the children express the wish to the mother to telephone the father she facilitate that by permitting/assisting the children to dial his home telephone number once each week between 6.00pm and 6.30pm.
Gifts
The father may give the children Christmas, birthday and other gifts during any school holiday period they spend with him.
Changeover
For the September/October 2010 school holiday period changeover be facilitated by arrangements to be made between the independent children’s lawyer and Mr C, family consultant (or if he be not available another family consultant nominated by the Manager Child Dispute Services) at 4.00pm on the last day of the school term for the commencement of time and at 4.00pm on the last Friday of the school holiday period for the conclusion of time.
On that occasion Mr C (or other family consultant nominated by the Manager Child Dispute Services) explain to the children that they will be spending time with the father for the holidays and then returning to the mother.
The mother, to facilitate changeover at the commencement of such time, must bring the children to Child Dispute Services at 3.30pm and depart as soon as the children are delivered, and the father collect the children at 4.00pm, and at the conclusion of time the father deliver the children to Child Dispute Services at 3.30pm and depart immediately and the mother collect them at 4.00pm.
In relation to the Christmas 2010/2011 school holiday period and all subsequent holiday periods the father collect the children at 12 noon on the designated commencement day at a place nominated by the mother to the father in writing (for example, the Shell Garage at … or McDonalds at …) and return the children to the mother at that place at 12 noon on the designated return day.
For the purpose of such changeovers the father may be accompanied by his partner Ms H and the mother by her partner Mr M and the father and the mother must ensure that they not come within ten metres distance from each other.
Education
Unless there be a joint decision to the contrary, the mother must ensure that the children remain enrolled at the O State School and ensure that the children attend school on all school days unless genuinely ill.
The mother and Mr M, and the father, Ms H and their children may attend all scheduled school functions usually attended by parents.
The father and the mother on such occasions must ensure that they not come within ten metres distance from each other.
The father and Ms H otherwise must not attend at the children’s school unless contacted by the school in relation to any accident or emergency.
The father, by direct arrangement with the children’s school, may receive all letters, circulars, school reports, activity sheets, school photographs and so forth usually provided by the school to parents.
Health and counselling
The mother must ensure that the children attend upon Dr G, paediatrician, P Medical Centre, for all appointments advised by him and that they attend upon all appointments that he may advise or refer at Children’s Youth Medical Health Service or other therapy or counselling.
Restraint on the mother
The mother must not take the children to any therapy or counselling other than upon referral by Dr G.
In particular, the mother must not take the children to any counselling or services of any kind with any person associated with the organisation known as Z Organisation or any other organisation specialising in or purporting to specialise in sexual abuse of children.
Dr G
The independent children’s lawyer provide a copy of these orders and reasons for judgment to Dr G.
Information
The parties must notify and keep each other informed of his and her residential address, email address, text message service number, landline and mobile telephone numbers.
The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.
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 any information or reports concerning the children provided that this order is sufficient authorisation to do so.
Mr M
The mother must encourage the children to call Mr M by his first name and use her best endeavours to ensure that Mr M provides similar encouragement to the children, provided that such be firm but without chastisement.
Corporal punishment
The parties must not use corporal punishment in relation to the children and use their best endeavours to ensure that their respective partners do not do so.
Non denigration
The parties must not denigrate each other or permit other persons to do so in the hearing or presence of the children.
Discussions with the children
The mother and the father must not discuss with the children any allegations or disclosures made in these proceedings and use their best endeavours to ensure that their respective partners do not do so and the mother must use her best endeavours also to ensure that the children’s sibling T not do so.
All other orders discharged
All other orders concerning the children are discharged.
All other applications dismissed
All other applications concerning the children are dismissed.
Independent children’s lawyer
The independent children’s lawyer not be discharged for 18 months.
Liberty to apply
The parties and the independent children’s lawyer have liberty to apply on short notice to the Associate by email 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 involving Mr C the family consultant are sought to be made.
IT IS NOTED that publication of this judgment under the pseudonym Geiger & Geiger is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 14238 of 2007
| MS GEIGER |
Applicant
And
| MR GEIGER |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings concern J born in December 2001 now 8 years and A born in March 2004 now 6 years (the children) whose parents are Mr Geiger (the father) and Ms Geiger (the mother).
They were commenced by the mother on 28 February 2008, shortly after police interviews with the children on 18 February 2008.
The parties before and during the trial formulated a variety of proposals for the children. By the conclusion of the proceedings however the mother sought orders that she have sole parental responsibility for the children, that they live with her, and that if I should find they have not been sexually abused and are not at unacceptable risk of sexual, physical or emotional abuse in the father’s household they spend holiday time with him being the whole of the March/April, June/July and September/October school holiday periods in each year and two weeks of the Christmas school holiday period in each year. The father sought orders in the same terms as proposed by the independent children’s lawyer, that is, that he have sole parental responsibility, the children live with him and not spend time with or communicate with the mother for the period of six weeks, following which period for an indefinite time but pending matters to which I will refer the children spend time with the mother for two hours each week or such other time as may be arranged at the W Contact Centre and have telephone communication with the mother on no more than two occasions in each week with the father to be permitted to monitor the telephone calls. The independent children’s lawyer’s proposal, which, as I have said, was supported by the father, included the following two paragraphs, which having regard to their specific content I will not paraphrase:
3.The father take all steps necessary to ensure that the children attend the Child and Youth Mental Health Service to assist the children by undertaking all necessary therapy and counselling to adjust to the change from the mother’s household to the father’s household and to follow such further directions and or recommendations made by that organisation.
…
6.That the mother spend time and communicate with the children following her attendance with and upon the recommendations of the Child and Youth Mental Health Service that the mother is ready to spend time with the children and will not expose the children to her beliefs about the father in relation to any allegations of abuse, as follows:
a. for the whole of the April and September and one half of June school holiday breaks;
b. for two weeks of the Christmas school break each year, the first 2 weeks in odd numbered years and the last 2 weeks in the even years;
c. telephone communication in accordance with subparagraph 5.1 herein.
The telephone communication referred to in 6c. by reference back to subparagraph 5.1 was the same as previously mentioned, that is no more than two occasions in each week with the father to be permitted to monitor the telephone calls.
As is evident by par 3 as proposed, the independent children’s lawyer and the father seek an order for a change of residence for the children but that such be assisted by therapy and counselling for them to make adjustment from the mother’s household to the father’s household, and by par 6 as proposed that the mother spend unsupervised time with the children (after the initial six week period of no time or communication and after the subsequent time at the W Contact Centre indefinitely to which I have referred) only upon the happening of contingent future events namely the mother’s attendance at CYMHS, and subsequent recommendation by an unidentified person or persons within CYMHS that the mother is “ready” to spend time with the children and “will not expose the children to her beliefs about the father in relation to any allegations of abuse”. Plainly, for such recommendation to be made, someone at CYMHS would need to form an opinion, in absolute terms, as to the future conduct of a person, that is, positively that the mother “will not” in future do a particular thing.
As will be seen, these proposals are made against the background of the mother having been assessed as having the firm and unshakeable belief that the father has sexually, physically and/or emotionally abused the children, a matter which I am required to determine. However, the matter is complex because, even if I should determine that the father has not abused the children sexually, physically and/or emotionally, and accordingly that the mother’s unshakeable belief is unfounded, the family consultant in the matter, Mr C, very strongly cautioned that if there be a change for the children to live in the father’s household they may not adjust to that, in particular, because of behavioural and psychological problems suffered by J, and that any change for the children from their primary residence with the mother “will significantly destabilise the children’s sense of emotional security”. Mr C cautioned that J “would be prone to indulge in extreme limit-testing behaviour if a change of residence were to occur and is likely to consider defiance and running away”, and that A is “likely to be significantly distressed”, behind a “façade” of acceptance: Mr C’s specific issues report 15 March 2010. Mr C said (same report) that a change of residence for the children should be considered only as “an option of last resort”.
The case is one, as will be seen, in which the children having the benefit of both of their parents having meaningful involvement in their lives “to the maximum extent consistent with their best interests” ultimately may not be able to be met, for practical reasons beyond the reach of the assistance of the Court, as demonstrated by the circumstance of the independent children’s lawyer recommending a course that the family consultant described as the one of “last resort” because it would destabilise the children. The balance to be achieved, if at all possible, in relation to the children having the benefit of both of their parents having meaningful involvement in their lives, is to give effect to the phrase “to the maximum extent consistent with their best interests”, but without destabilising the children.
Background matters
The mother and the father commenced cohabitation in 2000. They married in 2001, separated in 2004 and were divorced in 2005.
The mother is 33 years. She lives near P, southwest of Brisbane, with her partner Mr M, 34 years, T her daughter aged 12 years of a prior relationship and the two children J and A. Mr M has two children, aged 14 years and 8 years, whom he sees regularly. The mother presently describes herself as an “at home mum”, but has training and employment experience in aged care, supermarket management and as a barista. She receives the family tax benefit and single parent pension as well as assessed child support from the father and financial assistance from Mr M. Mr M is in receipt of a disability pension but is in part time employment in the security industry. The mother and Mr M commenced their relationship in mid 2008 and have resided together with T and the children since December 2009.
The father is 34 years. He lives at W, south of Brisbane, with his partner H, 28 years, and their son E born in June 2009 now 1 year. The father and Ms H are expecting their second child in September 2010 so that, as at that point, they will have a toddler and a newborn. Ms H does not have other children. The father is a technician, with flexible working hours. Ms H has undertaken an impressive number of TAFE and other courses including in relation to child development and safety and has several certificates in a wide variety of matters. She has completed a Bachelor degree and currently has deferred enrolment in a professional degree to devote herself to parenting. The father and Ms H met also in mid 2008 and have resided together since January 2009.
T, J and A attend the O State College, T in Year 8, J in Year 4 and A in Year 1. The location of the children’s school in relation to the parties’ homes at P and W respectively is depicted in ex 17.
Other history and history of contact since the separation
Between the parties’ separation in 2004 and February 2008 the children spent regular time with the father: see ex 9. Final orders were made concerning J and A in April 2007 providing that the children live with the mother and spend time with the father each alternate weekend from Friday to Sunday, Tuesdays overnight, half holidays and on special occasions.
However, the children have not spent time with the father since February 2008, other than on the very few occasions detailed in ex 9 and for attempted facilitated time under s65L with Mr C as detailed in his report 17 June 2009.
It is important I think to observe that the facilitated time, which occurred on 5 March, 9 April, 21 April, 8 May and 28 May 2009, even with the skilled professional assistance of Mr C, was conflicted in relation to J as detailed by Mr C in his report 17 June 2009.
The result, as at the time of the trial, was that the children had not spent time with the father since May 2009 other than in relation to interviews for various reports.
Notice of Child Abuse or Family Violence
The mother filed a Notice of Child Abuse or Family Violence on 28 February 2008 alleging at Part E:
1.The respondent entered my 10 yr old daughters room naked and tried to hug her.
2.My son disclosed that daddy touches him on the penis
3.My son disclosed that daddy rubs himself while naked on him
4.My son and daughters have told child safety that their dad is touching them and exposing himself to them.
At Part F the notice records:
1.If visitation is to continue unsupervised there is a high risk to the children that the abuse will continue.
At Part G the notice records:
1.I currently have a dvo on the respondent which is the second one that has been needed. The respondent has been violent towards the children and myself since we became a couple and always gets worse during the court process.
At Part H the notice records:
1.During the court process the respondent father’s abuse is worse. There is a high risk that after court the violence will continue.
The evidence
The mother relied on affidavits by herself, her partner Mr M, her sister Ms S, and Ms N and Ms R who are counsellors with Z Organisation.
The father relied upon affidavits by himself an his partner Ms H.
The independent children’s lawyer relied upon the reports by Mr C, the family consultant appointed to the matter, dated 17 June 2009 and 15 March 2010, the family report by Mr PR, social worker, dated 1 July 2008, a report by Dr D, psychiatrist, dated 11 February 2010, two reports by Mr W, registered psychologist, dated 12 June 2009 and 12 May 2010, a report by Ms I, registered psychologist, dated 12 May 2010 and an affidavit by Ms A, stenographer, who transcribed audio tapes of police interviews with each of T, J and A, the police interviews having taken place on 18 February 2008. Oral evidence was adduced by Ms MN and Ms KE, each from the Contact Service which operates the W Contact Centre, and Ms U, who at relevant times was a counsellor with a community services organisation.
In addition, the evidence comprised a Department of Communities Magellan Report dated 3 March 2010 (ex 1), three Queensland Police Service audio tapes (ex 6) and three Queensland Police Service DVD recordings (ex 7) of police interviews with T, J and A on 18 February 2008, a voluminous bundle of agreed documents in two A4 arch lever folders comprising 669 pages (ex 3) and several other documentary exhibits (in all comprising exs 1-17).
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.
The disclosures made by T, J and A and the findings sought by the mother
Mr Ashcroft of Counsel, for the mother, helpfully provided two schedules, one being a list of disclosures made by each of the children cross referenced to the evidence (ex 15) and the second a list of findings sought by the mother in relation to the disclosures (ex 14). The schedules comprise six pages and four pages respectively. Having regard to their length and detail, I do not propose to set them out, but rather, for the purpose of these reasons for judgment, would incorporate them by reference. The disclosures, as is evident by the schedules, were made to several persons, including to Police Officer AS, Ms J, an employee of the Department of Communities, Ms N, a counsellor with V Organisation to whom I have referred earlier and others.
Principles relevant to parenting orders
Children’s best interests paramount
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (the Act), in determining whether and if so what parenting orders in relation to a child should be made, the Court must regard the best interests of the child as the paramount consideration.
Objects and principles underlying objects
Section 60B of the Act provides that the objects of Part VII of the Act, which relates to children, are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
·and that the principles underlying the objects are that, unless it would be contrary to a child’s interests:
·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
·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
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children; and
·children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Determining what is in a child’s best interests
Section 60CC of the Act provides that the Court must consider the matters set out in s 60CC(2) and (3), described as the “primary considerations” and the “additional considerations”.
The primary considerations are:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are too numerous to set out. However, I will make specific reference to them below, to the extent that each may be relevant.
Parental responsibility
Under s 61C of the Act, subject to any orders of the Court, each of the child’s parents has parental responsibility for that child.
Under s 61DA of the Act, the Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or another child who, at the time, was a member of that parent’s family or that other person’s family, or family violence.
Equal time/substantial and significant time
Under s 65DAA of the Act, 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 consider whether the child spending equal time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making an order to provide for the child to spend equal time with each of the parents; and
·if an equal time order is not made or to be made the Court must consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and is reasonably practicable and if it is consider making such an order.
Section 65DAA(3) and (4) of the Act provide that a child will be taken to spend substantial and significant time with a parent only if the time the child spends with the parent includes both:
·days that fall on weekends and holidays; and
·days that do not fall on weekends and holidays;
and:
·allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child; and
·allows the child to be involved in occasions and events that are of special significance to the parent,
although regard may be had to other matters.
Section 65DAA(5) of the Act provides matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents including:
·how far apart the parents live from each other; and
·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
·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
·the impact that an arrangement of that kind would have on the child; and
·such other matters as the Court considers relevant.
Prior parenting plans
Section 65DAB of the Act provides that the Court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child’s parents if doing so would be in the child’s best interests.
Other provisions
The Act provides several other provisions which may apply in a particular case and to which reference will be made if applicable in this particular case.
Weight
Matters affecting weight are primarily for the trial judge to attribute in the exercise of his or her discretion, subject to any error of law in that exercise.
Principles relevant to findings of sexual abuse
In M and M (1988) 166 CLR 69 at 77, the High Court said:
[T]here are strong practical 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 order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind such matters as the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v Briginshaw (1938) 60 CLR 336. Hilton v Allen (1940) 63 CLR 691. Reifek v McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1, in which the High Court, in relation to the “ordinary standard of proof” required in civil litigation said that nonetheless the “strength” of the evidence required “may vary according to the nature of what it is sought to prove” and that authoritative statements such as “clear or cogent or strict proof” are to be understood in this context and not as directed to the standard of proof.
Section 140 of the Evidence Act 1995 (Cth) provides:
1. In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
2. Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In Johnson & Page (2007) FLC 93-344 the Full Court observed, at [70], that although cases such as Neat were decided before the introduction of the Evidence Act, the principles in them have been applied in decisions after its introduction. In short, it seems plain that s 140(2) has “picked up” the earlier principles, which thus are useful in its application.
In several cases, including since the introduction of the Evidence Act, the Full Court has made clear that in parenting cases, the grave consequences of a finding of sexual abuse cannot be overstated. See, for example, WK v SR (1997) FLC 92-787 at 84,694. Further, in Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court at [18] referred to the need to be satisfied on the balance of probabilities that “something has actually occurred”, and said:
18… 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.
Approach to the analysis of evidence relating to sexual abuse disclosures
In B and B (1993) FLC 92-357 the Full Court at 79,772 described as “logical and comprehensive” the approach of the trial judge, Warnick J, to the evidence in that case:
His Honour then considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, which he considered under the following headings:-
(a)Abuse by other persons;
(b)Children fabricating the allegations;
(c)Innocent statements misinterpreted.
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion. He then considered the nature of other evidence which was suggestive of sexual abuse having occurred … .
Although there is no binding methodology of approach to the analysis of evidence relating to sexual abuse disclosures, in particular because the facts and evidence in each case will be different, his Honour’s approach, in my respectful view, is a useful tool in the process of considering and evaluating the veracity of children’s disclosures, bearing in mind always the relevant legal principles to which I have referred.
Principles relating to unacceptable risk of sexual abuse
In determining what is in a child’s best interests, which is the paramount consideration, it is necessary to balance the level or degree of any identified risk of harm to a child from spending time with a parent or other person against the possible benefit to the child from spending time with that parent or person, and, accordingly, come to a conclusion as to where the balance lies. This is referred to, generally, as the “detriment/benefit” test, so that it is only if the level or degree of any identified risk of harm to a child from spending time with a parent or person outweighs the possible benefit to the child from spending time with that parent or person that the risk of harm is said to be an unacceptable risk.
These principles were summarised by the Full Court in B and B (above) at 79,778:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours 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”.
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. (emphasis added).
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“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.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
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 [now s 65E] and Brown and Pedersen (1992) FLC 92-271.
The Full Court then dealt with the Family Court’s obligation to protect children and said at 79,780:
Given the obligation to protect children from abuse, the Family Court should be careful to ensure that any order for supervised access is not attended by any risk of infringement of the child’s right to safety, in the widest sense of that word. …
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look at the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.
More recent Full Court cases concerning unacceptable risk have discussed the application of, but not restated, these principles. In Napier and Hepburn (2006) FLC 93-303 at [56] Bryant CJ and Kay J, however, drew attention to the importance of careful consideration by trial judges of all relevant matters before a finding of unacceptable risk is made, and at [114] Warnick J observed that once made such a finding “can come down between a parent and child like an iron gate, that no subsequent efforts can raise”.
In Johnson & Page (above) at [68] the Full Court set out, with qualified approval, an extract from the article “Unacceptable risk – A return to basics” by the Honourable John Fogarty AM (2006) 20 Australian Journal of Family Law, p 249 at pp 265-6, being a summary of the principles which Mr Fogarty identified as emerging from M & M:
1The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
At [69], the Full Court noted Mr Fogarty’s observation (at p 266) that whilst it still may be convenient to refer to “the Briginshaw test” (as the High Court had in M & M, decided before the Evidence Act), “It may now be preferable to refer to the statutory formulation”, which Mr Fogarty described (also at p 266) as one “which effectively replicates that approach”.
At [71] and [72] the Full Court then said:
71We generally agree with Mr Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v JC Hutton Proprietary Limited (1990) 169 CLR 638).
72We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
The Full Court did not elaborate on its reference to Malec, a well known case concerning the assessment of future probability rather than past fact: see at 643 per Deane, Gaudron, and McHugh JJ; and 639-40 per Brennan and Dawson JJ. However, in this context, in N & S (1996) FLC 92-655 at 82,713-5 (set out exhaustively in Johnson & Page at [66]), Fogarty J referred to the inevitability of making some effort to “quantify” the relevant risk (at 82,713):
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that Courts will have to make some effort to quantify the relevant risk. …
and said (82,713-4):
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
and further (82,714-5):
If the Court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The Court must still ask the “unacceptable risk” question. An example of this is Thomas J’s approach at 681-682:
I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. 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. (emphasis added)
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 findings urged by the parties
The mother urged the findings set out in ex 14, which I will summarise:
The child J
· Finding One: father uses excessive physical discipline: hits smacks grabs & kicks.
·Finding Two: father hit J with a toy sword across the stomach.
·Finding Three: father inappropriately touches J’s penis.
·Finding Four: father plays with J’s penis.
·Finding Five: father dances naked in front of J.
·Finding Six: father hugs J while naked when he gets out of the shower.
·Finding Seven: father rubs himself on J while naked.
The child A
·Finding One: father hits and smacks A and locks her in the toilet.
·Finding Two: ingestion of contraceptive tablets by A.
·Finding Three: father inappropriately touching A.
The child T
·Finding One: father slapping, smacking and hitting & grabbing and dragging.
·Finding Two: father seeks to hug T while naked in her bedroom.
·Finding Three: T sleeps in father’s bed.
·Finding Four: father inappropriately touched T.
The independent children’s lawyer and the father sought that I find that the alleged abuse has not occurred.
Evidence and findings – whether sexual or other abuse of the children by the father
The evidence concerning the allegations and disclosures is so voluminous that it is not practicable to set it all out. Rather, as I have mentioned already, in these reasons for judgment I incorporate by reference Mr Ashcroft’s able synopsis of the children’s disclosures cross referenced to the evidence (ex 15) and the specific findings sought by the mother also cross referenced to the evidence (ex 14). Thus, what follows must be taken to include my full consideration of all of the evidence whether or not specifically mentioned.
Physical abuse – all three children
There is abundant evidence on which to conclude that in the past the father has used excessive physical discipline in relation to all three children.
T, as the children’s older half sibling, at 12 years is of an age to have her descriptions regarded as truthful and reliable. J and A, although much younger at only 8 years and 6 years at the time of the trial gave descriptions of physical treatment of them by the father with sufficient consistency in relation to T’s descriptions to be regarded as having substance. The absence of acute physical injury to any of the children or medical evidence indicating acute physical injury would lead however to conclude that some of J’s descriptions were embellished by him either by imagination or coaching.
Mr Burridge, for the independent children’s lawyer, made the following observations in relation to the evidence, which in my view are accurate:
· [T] reported to the Department in February 2006 that discipline from the father involved being yelled at and receiving slaps on their bottoms, arms and legs; she explained that she and her siblings receive the same discipline however she does not get smacked on the bottom; the slaps do not leave a red mark and the father yells at them for not following instructions or for using rude words.
· [J] told the Department on the same date that at his father’s home he is smacked if he is naughty.
· [J] told Police Officer [AS] the father hits him.
· [T] told Police Officer [AS] that [J] is not allowed into [A’s] room when she and [T] are playing and if he does he gets smacked and sent to his bedroom, and is slapped when he will not go to bed.
· [J] told Police Officer [AS] the father hits him for no reason and hit him with a toy sword and a sword made of timber which hurt and he had a “humungous mark”.
· [J] told Mr [C] the father hit him with a sword and it broke.
· [J] told Dr [D] the father hit him with swords (plural) on the bottom and the back and that the swords were plastic or wood (whereas in other reports the reference was to being hit with a sword in the stomach).
· The mother took [J] to the [local] Medical Centre in November 2007 at which observation was made [J’s] stomach was soft and not tender.
· [Ms S], the mother’s sister, said she saw the father grab [J] around the neck and put him in the car when [J] was refusing to go on contact.
· The mother said she saw the father grab [J] around the neck at a BMX track in about May 2006.
· The mother said that [J] told her after spending time with the father in November 2007 the father had kicked him in the groin area. [J] told this also to Mr [PR], but not to Police Officer [AS].
· The child was presented to the [local] Medical Centre on two occasions at the end of November 2007 but there is no entry in the records in relation to any concern or injury as the result of the alleged kick despite the child being presented in relation to an alleged injury to the stomach or abdomen area.
· The mother said [A] has told her the father has hit and smacked her.
· The mother said [A] has been physically abused by the father by allowing [A] to swallow contraceptive tablets, however, the father said that whilst it appeared she had swallowed the sugar tablets in the pack and not the contraceptive pills he informed the mother and contacted the poisons hotline. The mother said the incident caused [A] to vomit.
· The mother said [A] told her the father had hurt her.
· The mother said [A] had told her the father had locked her in the toilet.
Mr Burridge submitted, supported by Mr Anderson, for the father, that the evidence does not support findings of physical abuse and there is no evidence that the father’s physical discipline of the children was so excessive as to constitute abuse.
Mr Ashcroft, for the mother, in careful written submissions with detailed reference to the evidence urged that the evidence supports the findings sought.
It seems, on all of the evidence, that there was an incident in which the father used a sword, seemingly a toy sword, in physical discipline of J, which has troubled J. However, it does not appear he suffered physical injury, in particular as his reference to a “humungous mark” is not recorded in the medical notes at a visit soon after the reported incident. It is less certain whether the father “kicked” J, however, similarly if there was such an action it does not appear he suffered physical injury, such also not having been noticed at a visit to the medical centre soon after the reported incident with specific examination in relation to whatever incident occurred.
Otherwise, whilst it appears the children’s complaints indicate frequency of hitting or slapping or grabbing of them by the father in the past, it appears that none amounts to abuse in relation to a child within the meaning of s 4 of the Act, namely an assault which is an offence under a law. Rather, in my view whilst it is relatively clear on the evidence that the father excessively has used physical discipline in relation to the children, rather than to have exercised restraint and used other disciplinary methods, none appear to have had such force as to amount to child abuse, although collectively or cumulatively the frequency of physical discipline as a pattern ought not to have occurred.
On all of the evidence, I reject the mother’s case that there should be findings of physical child abuse by the father of any of the children and make the positive finding that physical abuse has not occurred.
Sexual abuse - J
Although J made the disclosures summarised in ex 15, the best opportunity I had at the trial to assess J’s disclosures was in the DVD interview with Police Officer AS, in respect of which I observed J to be tentative, scared, unsure of himself and unsure of his subject matter. The interview shows “rehearsed” reporting by J in some parts, vague statements in some parts and response to direct leading questions by Police Office AS in other parts, all of which in my view tend to make J’s descriptions to Police Officer AS unreliable, particularly having regard to J’s age.
Moreover, there is evidence of coaching by the mother of J to make disclosures as to sexual touching or other sexual impropriety by the father, which was the conclusion also of the representative of the Department who interviewed J about these matters.
Dr D, who is a very experienced psychiatrist in child matters, said that J stated he knows the difference between good and bad touches and:
… He denied anyone touching him inappropriately. He specifically denied anyone touching his genitals or penis. He also denied that he had ever touched anyone’s genitals. He specifically denied that his father had ever touched his genitals or that he’d ever seen his father’s penis.
Ms N, a counsellor with V Organisation, said to the effect that if a child discloses sexual abuse, it has happened, and showed no insight into the possibility that a child’s disclosure of sexual abuse may not be reliable.
Mr Anderson, in relation to the transcript of police interview (annexed to the affidavit of Ms A), referred to the following as illustrative of the tenor of J’s interview by Police Officer AS:
42. On 18 February 2008 [J] tells Constable [AS] in response to the question, “So tell me what its like over at your Dad’s?” The child responds that “he touches me where he shouldn’t be.” When asked to tell further [J] says, “When he comes out of the shower he dances with me or possibly everywhere.” When asked to explain where the father touched, [J’s] response was “um there” motioning to the groin area. In response to the question when was the last time that the father had touched “it”, [J] did not respond nor could he say when asked when was the last time he saw his Dad (pages 7 and 8).
Exhibit 15 records a summary of disclosures made by J to other persons, including teachers at his school and to his class. However, as J had been interviewed many times and, as I find, was coached by the mother, such is not surprising.
Mr Anderson supported Mr Burridge’s submission that the evidence does not support findings of sexual abuse.
Mr Ashcroft, again by careful and detailed reference to the evidence, in his written submissions urged that the findings sought be made.
However, in my view, the evidence is so lacking in probative value as readily to conclude that findings should not be made.
Further, the circumstance of coaching by the mother of J, as I find, together with my observation of J in his DVD interview with Police Officer AS, has effect that I find positively that no sexual abuse of J by the father occurred. In some cases, it is appropriate that a judge not make a finding that no sexual abuse has occurred. However, as will be seen, in this particular case the mother has had such an unshakeable belief that sexual abuse has occurred that it is both necessary and desirable, for the parties’ future parenting of the children, that I make that further finding, if only for the purpose of assisting the mother in her ability to allow the children their right to a meaningful relationship with the father.
I would make reference also to the evidence of Ms MN and Ms KE, each a former employee of the Contact Service which operates the W Contact Centre. Both women said that on an occasion of supervised time they witnessed the father have a “soft erection”, describing that the groin area inside the father’s pants was enlarged. The father seemed bewildered by what the women said they saw and said “An erection is an erection!” and said further, which I accept, that he did not have an erection at any stage at the W Contact Centre. The father described that possibly the way he was sitting might have given that appearance but was adamant that he had not had an erection. The evidence of the women, to which I listened very carefully, in my view was speculative, or at least capable of other innocent explanation having regard to clothing or posture.
Sexual abuse - A
The finding sought by Mr Ashcroft is that the father improperly touched A. The evidence is that while the mother and Mr M were in the shower, A became upset and said “That is what the father used to do to her, it used to hurt her and she did not like it”. There is however no evidence of what A saw in the shower and Mr M said “I do not believe that [A] could see who was in the shower but I believe she could see our shadowy figures” (affidavit Mr M, par 45). The mother also said that A “did not see anything as the curtain was closed” (mother’s affidavit filed 4 February 2010, par 194). There is evidence however that after a direct question by the mother of A as to whether the father had touched A’s private parts, A said “Yes” after a long pause.
The evidence cannot support a finding that the father sexually abused A. Further, for the same reason as I have given above I make the positive finding that no sexual abuse of A by the father occurred.
Sexual abuse - T
The finding sought seems limited to one Sunday evening in February 2008 at the end of a weekend during which the mother was moving from one house to another and did not collect T from the father’s home as arranged so that T was not expecting to spend the night at the father’s home and did not want to and was upset. T described that after she had gone to bed the father entered her room naked and motioned with his hand (a curved motion from the elbow) and had attempted to cuddle or hug her. In her interview with Police Officer AS T seemed very tentative as to her recollection save as to a clock radio showing the time. T said “He did not say anything”, and she was in the bed with the covers on. She said she saw the father “front on”, seeing “everything”, but then said something about his “rear”, as if he had turned around. Generally, the DVD interview shows that T was not sure about what she was actually reporting. She said a light was on. The father said that whilst he slept naked in his own bed, he always put on shorts to visit the bathroom during the night or get a drink from the kitchen. He said the door to T’s room that night was not fully closed but ajar.
Putting all of the evidence together, of both T and the father, it appears to me that the most likely thing to have occurred is that the father, probably when going to bed, either had turned on a hall light, or it may already have been on, and possibly moved his arm at or near T’s doorway either in the process of checking on her or in some other innocent way which T has misunderstood. There is no reason to think that T at 12 years would lie about having seen the father “front on” and “everything” and his “rear”, but probably that was unknown to the father through an incident of carelessness. Possibly T had been asleep then stirred when the father was going to bed seeing him naked, her door being ajar. It is unlikely that the father would have turned on any light or kept on any light if his intention had been to sexually abuse T in her bed, and even more unlikely, if such had been his intention, that he would have turned on the light in T’s bedroom. T did not say in the police interview that the father had touched her, just that he had made the gesturing motion with his hand, which, it appears, she has interpreted as an attempt to cuddle or hug her. If that had been his intention, it would have been easy to execute.
Ms S, the mother’s sister, and the mother, possibly have made much of an innocent remark by T and suggested to T that the father either sexually abused her or intended to.
However, on my view of the evidence the incident is rationally and completely explained by the likelihood that the father when himself going to bed or during a night visit either checked on T through the door to her room or simply passed by the door with some turning movement, his evidence being that the door was not fully closed but ajar, which is not something to which T would have given second thought but for the circumstance that he was naked. It seems that this was then reported to Ms S and the mother, and that the hand motion description has escalated to the proportion of a major event. It seems to me, looking at all of the evidence, that the circumstance which caused T to comment about the incident was the nakedness, which plainly was careless and inappropriate with a 12 year old girl in the house, and in itself was an incident which ought not to have occurred.
However, on all of the evidence, T’s description is incapable in my view of amounting to actual or attempted sexual abuse and capable of entirely innocent explanation. T herself said that she was in the bed “with the covers on” and did not suggest that the father attempted to remove the covers.
The evidence cannot support a finding that the father sexually abused T. Further, for the same reason given above, I would make the positive finding that no sexual abuse by the father of T occurred.
Emotional abuse
The findings sought by the mother as to emotional abuse of the children by the father are bound up with the allegations of physical and sexual abuse.
As I have determined that there was no physical or sexual abuse, it follows that there has been no emotional abuse by the father of the children. In particular, there are no independent allegations of emotional abuse.
Summary of conclusions
In summary, I have no hesitation in concluding that the father has not sexually, physically or emotionally abused T, J or A.
Findings - unacceptable risk
Based upon the findings which I have made, I find further that there is no identified risk, on the evidence, of sexual abuse of the children by the father or of physical or emotional abuse should the children live with the father or spend unsupervised time with him.
Whilst I accept that in the past the father excessively has used physical discipline in relation to the children, the father since has undertaken several parenting and self improvement courses and also had the benefit of the trial experience, in particular of listening to all of the evidence in the case concerning the children, including the expert evidence, and additionally now has the benefit of a stable relationship with Ms H to assist him with parenting. In all of these new circumstances I am confident the father does not present a risk of physical abuse to the children.
As there is no identified risk of sexual, physical or emotional abuse by the father it follows that there is no unacceptable risk and it is thus unnecessary to proceed to any balancing exercise between the risk of detriment to the children from abuse and the possibility of benefit to them of living with or spending time with him.
The statutory matters
The children’s best interests
Having dealt with the matters raised by the mother of alleged sexual and other abuse of the children by the father, and alleged unacceptable risk of such, I turn now to the statutory matters concerning the children’s best interests.
Section 60CC(2) – the primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents
The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark [2009] FamCAFC 92 at [108]-[122]. At [119] the Full Court concluded in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests, and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.
In his early report 1 July 2008, Mr PR said that J and A have a very loving relationship with the father and that he could not relate the negative image of that relationship which both the mother and T presented, but saw absolutely no signs of tension or alienation from the father (par 167). By the time of Mr C’s s 65L sessions with the children, however, in March, April and May 2009, J’s relationship with the father had deteriorated to the point of a highly conflicted relationship ranging from having hung, decapitated and disembowelled a teddy bear which the father had given him (pars 21, 23) to enthusiasm, laughter, hilarity and merriment (pars 26, 27, 28, 39), then retraction and hostility (pars 49-56; 62-63). Dr D observed, as to Mr C’s s 65L report (Dr D’s report, p 10):
Mr [C’s] Report was even more concerning. [J] interacted warmly and appropriately with his father and happily accepted a present off him. [The mother] was not happy with the children seeing their father or accepting presents and it was returned the next visit mutilated and [J’s] behaviour had deteriorated. Even then [J] played happily with his father for the next two sessions but by the fourth he was very abusive to him. It is noteworthy that he wanted to show his mother his abusive notes as if to seek her approval.
A, according to Mr C’s s 65L report, for the most part engaged well with the father. In his specific issues report 15 March 2010 however he said that A has a particularly strong emotional attachment to the mother and a very tenuous bond with the father.
I have referred earlier to the circumstance that at the time of the trial the children had not seen the father (apart from for report interviews) since May 2009. However, adopting the prospective approach, and particularly having regard to my findings as to absence of abuse, I conclude that there is benefit to both of the children in having a meaningful relationship with the father.
The children’s relationship with the mother is one of primary parental attachment (Mr C, 15 March 2010, par 9). Elsewhere however it is described as enmeshed. The mother, since 2008, has portrayed the father to the children in a very negative way. In particular, she assisted J to decapitate and disembowel the teddy bear the father had given him. Further, Mr C observed on at least two occasions that J (and to a lesser extent A) displayed a strong desire to demonstrate to the mother how they had behaved in a negative and dismissive manner towards the father, which gave the impression that both children are strongly aligned with the mother and want to demonstrate that they “are on her side” (Mr C’s s65L report, par 83).
The children thus presently have a meaningful relationship with the mother. However, whether prospectively there is benefit to them in the continuance of a relationship with her is very much entwined as a conflict between the mother being the children’s primary carer, and possible psychological harm she may be causing them, such that if she cannot change her negative views about the father, in the future she may continue to cause them psychological harm, to which matter I now turn.
Section 60CC(2)(b) – the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence
I have dealt sufficiently with matters relating to risk of sexual or other abuse in the father’s household and found there is no unacceptable risk and thus not a need to protect the children from physical or psychological harm in the father’s household.
Counsel for the independent children’s lawyer, Mr Burridge, and Counsel for the father, Mr Anderson, drew together a significant body of evidence in support of their joint submission that if the children should continue to live with the mother they will suffer not only emotional abuse in her household by her denigration of the father and an endeavour by her to instil in the children’s minds that he is a “bad person”, but severe psychological abuse evidenced by, as only one example, the extreme incident of the mother assisting J to cut off the head of the teddy bear the father had given him, and to disembowel it, wrap it up and give it back to the father. This matter I will refer to in some detail, not only because at the trial it occupied some time, but also because it is at the very least disturbing. In short, during one of the s65L sessions with Mr C, the father gave J and A gifts which he had brought from the United Kingdom after a holiday. J’s was a teddy bear. The mother gave evidence that J had hung his teddy bear on the doorknob for some time, and then obtained a knife from the kitchen and in his bedroom the mother chanced upon J seeking to decapitate the teddy bear with the knife. The mother, apparently, decided this was a good thing and assisted J to decapitate the teddy bear by “holding” the teddy bear for J. Ultimately, the parts of the teddy bear, after “disembowelment” with the knife, were wrapped up by J and sticky taped and delivered back to the father in Mr C’s presence on the next s 65L occasion. The mother, at the trial, not only demonstrated utter lack of insight into her conduct in assisting J in his endeavour, and failure to understand that J’s motivation may well have been a reflection of his “alignment” with her rather than the father, in particular in relation to her extreme negativity to the father, but in my view demonstrated also her lack of ability as a parent on this particular occasion to point out to J that the father had given him the teddy bear because of the father’s love for him and, for example, that it would have been appropriate for him to love the teddy bear and take it to bed rather than to cut off its head and to disembowel it.
There is the circumstance also, as I have found, that the mother coached J in relation to his disclosures of sexual abuse by the father.
Dr D said (report, p 10):
… Certainly [J] is aware of the negative views of his mother and tries to get approval and attention from her by mimicking her views. Given her very strongly held paranoid views the inclusion of [J] into her belief system would be described as a Folie à Deux or Shared Psychotic Disorder (DSM 4 TR) if the beliefs were of delusional intensity. (emphasis added)
He said further (p 11):
If the Court was to find little evidence of abuse from the father than (sic) [J] is being emotionally abused by his mother either intentionally or inadvertently by her repeated sabotauging (sic) of his relationship with his father. In this scenario thought should be given to Court ordered access, progressing to unsupervised overnight access with appropriate provision for make up time. [The mother] needs psychiatric treatment for her anxiety and paranoid belief structure and [J] needs appropriate treatment from an experienced Child and Adolescent Psychiatrist with a copy of this Report. If [the mother] is unable to support a relationship between her children and their father then consideration may need to be given to alternative residency arrangements. (emphasis added)
Dr D was cross examined as to the assumptions underlying his conclusion that the mother held “paranoid views”, on the basis that some of the things which the mother reported to him which led him to this conclusion, it was demonstrated by other evidence had in fact occurred. However, his reference to the inclusion of J into her belief system, if her beliefs are of delusional intensity, described as a Folie à Deux or Shared Psychotic Disorder, nonetheless is of concern.
It remains to be seen however whether my findings in the matter that the father has not sexually or otherwise abused the children will be accepted by the mother so that her belief system and negative attitude to the father with deleterious effect on the children may alter. Mr W said (oral evidence 17 May 2010, T3/10-15 and 25-35):
That’s even if I were to find that it hadn’t happened and spelled it out in black and white?‑‑‑It’s my experience that, firstly, not everybody will accept as being their own reality the finding of a court, and I think in this case the mother has so much attached to her beliefs that a decision of the court won’t change what she believes.
…
And taking sexual abuse, if the children’s belief – false belief – is reinforced within the mother’s household, what concerns would you have with that scenario, so far as the children’s development within the mother’s household?‑‑‑The children, basically, will grow up believing that they have been sexually abused, if that is truly what they remember, and I believe that’s the case. No matter what has happened, they remember that, and that will affect how they have relationships, how they communicate, how they behave, how they think, how they understand themselves in reference to the world, ad infinitum, and it will increase the chance that they’ll suffer from psychological and physical health problems and decrease the chance of success academically, socially, etcetera.
However, Mr W has not had the advantage I have had as the trial judge of observing the mother over 8 days, and I am not persuaded that Mr W is correct that a Court decision will not change what she believes. Mr W’s opinion was formed only upon the basis of Court documents given to him and a brief interview with the mother, whereas I have had the advantage of observing the mother over the full 8 days of the trial.
Section 60CC(3) – the additional considerations
Any views expressed by the children
Mr PR said (report, 1 July 2008, par 175) that both children were extremely enthusiastic about seeing the father, and in the case of J was outspoken in expressing a wish to see the father at his home.
Since then however there have been police interviews and other interviews and the sessions and incidents described by Mr C in his s 65L report with effect that views presently expressed by the children are likely to be conflicted and unreliable.
Further, J, at 8 years, and A at 6 years, are too young to express meaningful views, even more so in the context of the conflict described.
The nature of the children’s relationships
The children have lived with the mother for all of their lives. Their primary attachment is with her.
The children’s relationship with the father is very conflicted, as has been sufficiently detailed.
They have developed a relationship with Mr M, the mother’s partner, to the point of calling him “Dad”.
They have not met Ms H, the father’s partner, other than incidentally and at interviews, and so they do not have a developed relationship with her. They have not met E, their half sibling now 1 year.
The children have a strong relationship with each other and also with T.
Willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
Dr D said if the children should live with the mother and spend time with the father she has “a lot of negativity” about him so that it may be likely that any ordered time the children should spend with the father would be sabotaged by her so that, if the children should live with the mother, Dr D said “I can’t see how any meaningful relationship between the children and the father could work”.
Mr W, who had been provided with a copy of Dr D’s report (plus voluminous other material listed at pp 4-11 of his report) said (report 12 May 2010, par 67) that he could not see that the children could spend time with the father if they lived with the mother (second sentence) and that he did not consider the mother is capable of facilitating a relationship between the children and the father or at least facilitating one that did not distress the children greatly (last sentence). Although I have selected these two sentences, I would refer to the whole paragraph for its content.
The mother’s past conduct and negative views of the father would lead easily to the conclusion that she has no willingness or ability to facilitate and encourage a close and continuing relationship between the children and the father. At the last phase of the trial however the mother proposed that if I should find that the children have not been sexually abused the children live with her and spend holiday time with the father. It is difficult to assess whether such was disingenuously thrown up by her as a middle ground position when she perceived that the evidence may be such as to persuade me that the children’s best interests would be met by living with the father or illustrative of a genuine shift in her thinking as the result of the trial process.
Be that as it may, in her final proposal, the mother at least has proposed that if the children should live with her, they spend holiday time with him as mentioned.
The father, in his evidence, professed a willingness and ability, if the children should live with him, to facilitate and encourage a close and continuing relationship between the children and the mother. However, in my view the father in his evidence demonstrated contempt for the mother, in particular having regard to her case against him in these proceedings, and in my view, the father has no more willingness and ability to promote a relationship between the children and the mother than vice versa.
Mr W said (report 12 May 2010, par 73) that it appears the father is a parent who will facilitate a relationship between the children and the mother should they live with him. Mr C agreed with Mr W’s view, saying (specific issues report 15 March 2010, p 11) that he did not hold concerns about the father’s likely commitment to maintaining the children’s relationship with the mother.
However, I have had the advantage of observing both the mother and the father during 8 days of the trial process and it is plain to me that the father has little time for the mother, and thus I am unable to share Mr W’s and Mr C’s confidence that the father, more so than the mother, would facilitate and encourage a close relationship with the other parent.
In practical terms, their evidence and demeanour at the trial made plain that neither, at that stage, had willingness or ability to promote a relationship between the children and the other parent.
However, the mother’s late proposal at least was encouraging, subject to the reservation I have expressed as to whether it was a disingenuous tactic or illustrative of a genuine shift.
Thus, whilst I understand what Dr D expressed, and in turn what Mr W expressed, and the reasons for it, I would reiterate that I have had the advantage as the trial judge of the wider view of the evidence overall.
In these observations I intend no criticism of Dr D, Mr W or Mr C in their professional capacities, but simply to state the obvious fact that whilst the opinions of experts must be weighed carefully, necessarily this must be in the context of all of the evidence in the trial experience and not be taken or be regarded in isolation of that, a trial judge, unlike the expert witnesses, being in the unique position of hearing all of the evidence and of observing the parties’ demeanour over a more lengthy period.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other child or person (including any grandparent or other relative of the children) with whom he or she has been living
It is significant that it appears that the children want to have a relationship with both parents, in particular because despite J’s conflicted behaviour concerning the father there is evidence that at times he has engaged with him warmly. Mr C observed however that the father did not demonstrate, even in the “relatively controlled environment” of the Court’s childcare room, much ability to deal with the children appropriately in that the father had difficulty in dealing with J’s limit-testing and defiant behaviour: Mr C’s specific issues report, par 11.
Mr Burridge and Mr Anderson sought support for their case by selected sentences in Mr W’s report. However, selected sentences isolated from context are not useful. Further, when Mr W’s evidence is read as a whole, in my view it does not necessarily support a move to the father’s household, as opposed to “suggesting” a staggered mechanism if that is to occur. Further, even if overall its tenor supported such, Ms I was the person specifically asked to assess psychological impact on the children, and the tenor of her report, read as a whole, is against moving the children to the father’s household and, moreover, she agreed with Mr C that such is an option of last resort.
Mr Burridge and Mr Anderson submitted that the solution to the matter, if I should order the children to live with the father, is that he take all steps necessary to ensure the children attend at CYMHS and the other steps set out in proposed par 3. Mr C said that if that course be chosen, CYMHS could undertake that role. This however does not detract from the force of his evidence that, even if such role be undertaken for skilled and significant therapy for the children, in particular J, “and quickly”, if the therapy were unsuccessful the consequences would be that the placement would be very tenuous and unlikely to last, and Ms I said (par 116) that “managing the children’s difficult behaviours would require skill and knowledge beyond most parents’ capacity”. Further, Mr C said that if the children are moved to the father’s household, J may be likely to run away and that whether A would cope would depend on how J copes. There is no scope for confidence, in the face of this evidence, that magically CYMHS could alter these dynamics, either immediately or at all, which circumstance supports Mr C’s view that movement to the father’s household is an option of last resort.
Having regard to all of the evidence, the submissions, and the statutory matters I am required to consider, I am not satisfied that the children’s best interests would be to live with the father and would regard that at this stage not only as experimental but on the evidence a circumstance with which the children are unlikely to cope, even with immediate therapeutic intervention, which in itself is an experimental proposition. Conversely I am satisfied that the children’s best interests would be met by an order that they continue to live with the mother. It is one thing to formulate a proposal that all will be well if the children, the father and Ms H are assisted by counselling. It is another thing however if J should run away, with A’s ability to cope dependent upon J’s reactions. Moreover Mr C, the family consultant in the matter, said in unwavering terms, and with conviction, having spent more time with these children than any of the other experts in the case, that a move to the father’s household would destabilise the children. Further, whilst I am concerned in this particular case with J and A, and not with E nor the child yet to be born, the protection of these two young children must not be overlooked having regard to J’s demonstrated ability to be violent. Put another way, as I am required to focus in this particular case on the best interests of J and A, rather than E and the yet to be born child, if J did not cope and harmed E or the new born child then that is something he would have to live with, and in my view it is appropriate to consider J’s own protection in this regard. Such observation, far from being alarmist, is supported by Mr C’s opinion that J does not cope with new situations “and is prone to anxiety-based aggressive reactions as a result” such that he would be “prone to indulge in extreme limit-testing behaviour”.
I am conscious that this is a case in which there is diversity of expert opinion in relation to some matters. I am required to consider the parties’ proposals in light of all of the evidence, including all of the expert evidence. However, as has often been said, there is no magic in a family report; and that a family report writer, or other expert, is not in a privileged position, is required to give evidence in the ordinary way and is not responsible for dealing with the various relevant provisions of the Act in particular s60CC in order to determine a child’s best interests, which is the role of the judge: Friscioni & Friscioni [2010] FamCAFC 108 at [96] – [102]. I have explained my acceptance ultimately of Mr C’s opinion in the matter, supported by Ms I.
There is another matter to be addressed. Even if I were satisfied (which I am not) that the children’s best interests would be to move to the father’s household, I would be disinclined to order in terms of par 6 as proposed by the independent children’s lawyer. In Bookhurst, the Full Court considered a final order by the trial judge relating to the obtaining of a future report, to govern if and when a father should spend unsupervised time with his children, the report to be by a psychiatrist or a psychologist stating (amongst other things) [50]:
(d) The unqualified opinion that the father does not nor is it reasonably foreseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.
In the Full Court, evidence was admitted that the ethical treating psychiatrist or psychologist should not be willing to offer an unqualified opinion which is in effect an absolute guarantee: [53]. The Full Court held [62] that if compliance with the order is impossible by the report of any Australian psychiatrist bound by the ethical considerations then such order cannot be allowed to stand.
Paragraph 6 as proposed by Mr Burridge does not use the word “opinion”. There is however, contextually, a semantic difference only between “opinion” and “recommendation” or “recommendations”, which latter words infer the formation of an underlying opinion supporting the recommendation as to a subject matter. Paragraph 6 further does not use the word “unqualified”. However, a recommendation that someone “is” ready to do something and “will not” do something necessarily incorporates words which themselves are unqualified words. Thus, in my view par 6 invites an “unqualified opinion”.
Further, whilst there is no evidence that an employee of CYMHS ethically could not give the unqualified opinion contemplated by par 6, it is likely that the relevant employee at CYMHS would by a psychiatrist or psychologist, and not the floor cleaner, so that ultimately evidence of the kind adduced on appeal in Bookhurst would be likely to apply. Equally, Mr Burridge did not adduce any positive evidence from CYMHS that ethically one of its medical personnel could give such unqualified opinion.
For these reasons, even if I had been satisfied that the children’s best interests would be met by living with the father (which I am not) I would not have made an order as contemplated by par 6. However, as I am not satisfied that the children’s best interests would be met by living with the father, par 6 of Mr Burridge’s proposal is academic and I need not deal with it further, save to observe the strength of Mr Ashcroft’s submission that there is no evidence whether CYMHS (which is directed to children and youth) does and is able to provide therapy to adults, or therapy of the kind that the proposal anticipates, such that the practicalities of the proposal are unknown, and the mechanism itself relies on the subjectivity of unknown individuals within the organisation rather than the experience of the Court.
I propose to order therefore that the children live with the mother.
As to the children spending time with the father, I propose to order that they spend specified holiday time with him, as proposed by the mother, as an order which I determine also is in the children’s best interests. In this regard, Ms I agreed that if the children should live with the mother “standard” time of alternate weekends and half holidays “just wouldn’t work”, but that holiday time “has the chance of working”, “with assistance” but that it should be expected that “the first few times” could be emotional for the children after their return to the mother. Mr W disagreed that holiday time with the father would “work”, saying that such would be “stressful” for the children “unless the mother could give up her beliefs and I do not believe that is possible at all”. However Mr W’s evidence is not helpful because, as I have determined that the children’s best interests will be met by living with the mother, the only alternative, according to Mr W’s view, would be that the children not spend holiday time or any time with the father, despite Ms I’s view that holiday time “has the chance of working”, with assistance. Thus, whilst I have considered Mr W’s evidence as to this aspect of the matter, the reality is that there is no evidence of any “stress free” formula for these children, and the Court can only do the best it can on the available evidence.
Holiday time with the father would allow the children scope for meaningful extended time with him, Ms H and their children. I am conscious of my observation as to whether J may present a risk to E and the newborn child. However, there is a vast difference in my view between living with the father, and not the mother, which Mr C said might cause J to react, and J merely spending holiday time knowing he is to return to the mother.
I do not propose to make an order specifying the “assistance” which the father should seek in relation to the children’s holiday time with him. It will be a matter for him to seek it, bearing in mind Ms I’s view that holiday time “has the chance of working”, “with assistance”. This will be a matter for him to heed and be advised perhaps by his lawyers, and/or Ms H, who has undertaken courses in child development, as to the seeking of appropriate assistance.
Mr Anderson submitted (written submissions, par 180) that “The father did not run his case based upon the mother’s late change of orders. No experts support such a proposal”. There are several observations I will make as to this submission. First, I do not recall that at the trial Mr Anderson raised any point of procedural fairness in relation to the mother’s proposal that the children spend only holiday time with the father, nor seek any adjournment in order to deal with the matter. Secondly, parenting cases by their nature are not restricted solely to the proposals put by the parties at the commencement of a trial but typically proposals are moulded with sometimes several variations by the end of a trial. Indeed in this case the mother’s proposal by her summary of argument filed 3 March 2010, being her most recent proposal before her final proposal, was that the children spend time with the father “as determined by the Court” (Part A, par 6). The important aspect is that of procedural fairness so that opposite parties have the opportunity to call evidence against a proposal if they so wish. The father had that opportunity at the trial but did not seek to adduce new evidence when the mother’s proposal was made. Further, as I recall, it was I as the trial judge who first raised for the parties’ consideration whether if the children should live with the mother their best interests would be met by spending only holiday time with the father, but not alternate weekend time, because to introduce what is sometimes called “standard” alternate weekend and half holiday time would be to pretend that the features of this case which make it unusual somehow had vanished. They have not. The mother then adopted the idea and proposed it, against the background not only of the distance between the parties’ homes but also J’s behavioural problems at school during the school terms and having regard also to Mr C’s specific issues report.
In U v U (2002) 211 CLR 238 the High Court made clear that the Court is not confined to the proposals of the parties, provided that careful consideration is given to them: [80] per Gummow and Callinan JJ, Gleeson CJ at [1] and Hayne J at [169] - [171] agreeing. It is plain however that if the Court of its own initiative raises a proposal, and implicitly whether or not it is adopted by any of the parties, they and the independent children’s lawyer must have the opportunity to adduce evidence in relation to it if they wish, and to make submissions in favour of it or against it if they wish, to ensure that procedural fairness is accorded. In this case the father and the independent children’s lawyer have been accorded procedural fairness by being made aware of the mother’s ultimate proposal and each had opportunity to question Ms I, Mr W and Mr C about it. Neither the father nor the independent children’s lawyer made application to adduce further evidence including further expert evidence in relation to it, and each has had had full opportunity to make submissions in relation to it.
Further, it is incorrect to assert, as Mr Anderson did, that “No experts support such a proposal”. I have referred already to Ms I’s support of it as having “the chance of working”, “with assistance”, which evidence is significant in the light of her evidence that “standard” time of alternate weekends and half holidays “just wouldn’t work”.
Not surprisingly, there was no evidence to support alternate weekend time and half holiday time with the father, and indeed specific evidence by Ms I that such “just wouldn’t work”, probably because the facts of the case are such as readily to conclude that the children at this stage would not cope with such interruption in their school terms.
The only time left in the calendar year which the children possibly could spend with the father thus is holiday time. Even if, implicitly, alternate weekend time and half holiday time had been sought by the father in the alternative to the children living with the father, it is plain having regard to Mr C’s specific issues report that an order that the children commence to spend time with the father on alternate weekends, when it did not even succeed in the s 65L environment, could not possibly be an order capable of being considered at this stage as in the children’s best interests, and such would be contrary to Ms I’s evidence.
I am dealing however, at this point, with Mr Anderson’s submissions concerning procedural fairness, and whether there was expert opinion to support that the children spend only holiday time with the father rather than alternate weekends and half holiday time. For the reasons explained, there is no substance in any procedural fairness complaint, nor the submission that “no experts” support the children spending only half holiday time with the father.
Turning now to a different matter, I am conscious that the father and Ms H’s new child is due in September 2010 and that the first holiday period the children will be scheduled to spend with the father will be the September/ October 2010 school holiday period. If the birth and the holiday period coincide the children possibly will share the new child’s homecoming. If they coincide and present difficulty, the father can notify the independent children’s lawyer and if necessary I will suspend all or part of that holiday time so that it commence in the Christmas holiday period.
I am mindful of the “rule” in Rice and Asplund (1979) FLC 90-725: see also however Miller & Harrington (2008) FLC 98-383 at [72] and Marsden & Winch [2009] FamCAFC 152 at [41] – [47], first sentence. As the latter two authorities show, the “rule” is now applied taking into account best interest considerations, and the Court also must apply the provisions of Division 12A of the Act. In a year or so, if the holiday time with the father has been successful, then it would be appropriate for the father to commence new proceedings to extend to alternate weekend time as well, on the basis that the children successfully spending time with the father would be in itself a significant change of circumstances. Similarly, if in a year or so (or even earlier) if the children’s time with the father has not been successful, and the mother be shown to be the cause by her inability to accept my determination that the children have not been abused by the father such that she is continuing to impose negative views of the father on the children, their removal from the mother as the “last resort” option might more readily be seen then as possibly being in the children’s best interests. However, on all of the evidence categorically that is not in their best interests at present.
In the meantime the children will have the benefit of paediatric intervention by Dr G. If in the future there are to be further proceedings more might be known thus as to the true source of J’s behavioural problems.
It goes without saying that I have taken into account whether it is preferable to make the order least likely to lead to the institution of further proceedings concerning the children. However I have concluded that there is none. Much will depend on the children’s progress in the ensuing 12 months, now that the abuse allegations have been dealt with on the final basis.
I will include orders for telephone communication and that the father be at liberty to give the children gifts when they spend time with him. I am conscious of “the teddy bear incident”, however, the children’s lives must progress, and it would be abnormal to make an order that the children not receive gifts from their father.
I have mentioned that the order for equal shared parental responsibility will be subject to specific orders in relation to the children’s health and education. They should have the benefit of continuity of paediatric consultation with Dr G and therapy advised by him. The order for equal shared parental responsibility is formulated to ensure this. There is expert evidence that the children should stay at the O State College. Similarly, the order is formulated to ensure this, subject to a joint decision by the parties to the contrary. I would envisage that such would only be necessary if the O State College were to terminate the enrolment of the children or any of them.
Other matters
The mother, in her amended initiating application, sought an order that the children be known by the surname S, which is her maiden name, rather than the surname Geiger, which is the father’s name. However, no evidence was adduced at the trial in relation to the effect on the children of such a change and no submissions were made in relation to it. I therefore will not make such order.
The children refer to Mr M, the mother’s partner, as “Dad”. There was little evidence about this. In my view it is preferable that the children, who according to my order will live with the mother, be encouraged to call Mr M by his first name, so as to continue to recognise the father as their father. As the children however are accustomed to calling Mr M “Dad”, I will frame the order so that the children be encouraged to call Mr M by his first name, but not be chastised if they do not.
The allegations in relation to corporal punishment in the matter have effect that in my view it is in the children’s best interests that I include in the orders that neither party inflict corporal punishment on the children and I will so order.
During the trial I made an order, with the mother’s consent, until further order that she not take J or A to any counselling or services of any kind with any person associated with the organisation known as V Organisation. In my view, it is reasonably necessary that such a restraint against the mother continue as if it is not continued the mother may well take the children again to that organisation, which, on the evidence of Ms N, seems to specialise in obtaining from children disclosures of sexual abuse. I have determined firmly that these children have not been sexually abused by the father. In my view this precaution is both reasonably necessary and in the children’s best interests.
The complexities of the matter are such that I will not discharge the independent children’s lawyer for 18 months and grant liberty to apply to her and to the parties if difficulties should arise in implementation of the orders or otherwise.
Mr Ashcroft of Counsel, for the mother, specifically stated, upon express invitation to state a position, that the mother did not raise any Russell v Close [1993] FamCA 62 argument, that is, that if the children should spend time with the father her belief system is such that it would have impact on her parenting. On the contrary, the mother’s final position at the trial in actively seeking an order that the children spend holiday time with the father would have been inconsistent with any such submission.
I will not make an order that the mother attend upon counselling in relation to her negative views of the father and the unfounded basis for that and that she ought not impart negative views of the father to the children. This will be a matter for to heed and be advised perhaps by her lawyers.
Ultimately, if the mother cannot manage the children, then as I have said there may well be grounds, even in the short term, for new proceedings to consider afresh whether their best interests might be met by their removal from the mother to live with the father. Hopefully however there will not be the need for further Court proceedings for at least 12 months. On the contrary, if things go reasonably well, the parties will have scope, by order 5, to agree extended time with the father including alternate weekend time.
I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly.
Associate:
Date: 10 September 2010
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