Gray and Catlyn

[2019] FamCA 998

FAMILY COURT OF AUSTRALIA

GRAY & CATLYN [2019] FamCA 998

FAMILY LAW – CHILDREN – Interim Parenting – Review of a Senior Registrar’s Decision – Where the mother unilaterally relocated with the children – Where the mother seeks orders that the children live with her and spend supervised time with the father at a contact centre – Where the father seeks orders that the children live with him in the former family home and spend supervised time with the mother – Where the Independent Children’s Lawyer proposes that the children live in the former family home with the mother and spend unsupervised time with the father each alternate weekend – Where the mother alleges that the father has sexually abused one of the children – Allegations of family violence, alcohol misuse, drug use and mental health concerns – Where the father contends that supervised time with the mother is necessary to protect the children from coming to believe falsely that he abused one of the children – Orders made that the children live with the mother in the former family home and spend substantial and significant time with the father.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D
Family Law Rules 2004 (Cth) r 18.10

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT: Ms Gray

RESPONDENT: Mr Catlyn

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 378 of 2019

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Reilly

SOLICITOR FOR THE APPLICANT: Bryant McKinnon Lawyers

COUNSEL FOR THE RESPONDENT: Ms De Vere

SOLICITOR FOR THE RESPONDENT: Ryan & Seton Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

Pending further order

1. The children X and Y are to live with their mother.

2. The mother is to do everything necessary to make sure that X and Y live with her at B Street, Suburb C (“the family home”), from 10 January 2020.

3. The father is to move out of the family home by 3 January 2020.

4. Starting tomorrow and throughout the holidays, the children will spend time with the father every second weekend from 10.00am Saturday until 5.00pm Sunday. The parents will meet at a place they both agree is suitable in D City so that X and Y can be collected by the father and returned to the mother. After the children move to the family home they will be collected and returned by the father at the family home.

5. After the school year starts the children will spend time during the school term with the father every second weekend from after school Friday until the start of school the following Monday.

6. When the school year starts the father will pick up Y from school and X from childcare or preschool on the Friday when they are spending time with him and return them to school and childcare/preschool on the following Monday. If either Y or X are not at school or childcare/preschool on those days the drop off and pick up will occur at the family home.

7. From the April school holidays in 2020 X and Y will spend time with the father for the first half of all school holidays at the end of Terms 1, 2 and 3. This time will start on the last day of term and finish at 5.00pm on the middle Saturday of the holidays.

8. The parents are both to do everything necessary to enrol the children in school and childcare or preschool for the start of the 2020 school year.

9. X and Y will speak to their father on the phone or by video call every Wednesday and the father will make the call between 5.00pm and 5.30pm to the mother’s mobile phone. So that the children can take the call the mother is to make sure that her mobile phone is charged and switched on.

(10)The parents are to tell each other about any new mobile phone number.

(11)Both parents are not to say anything critical or insulting about the other parent in front of the children or let the children hear anything like that from anyone else.

(12)Both parents must not speak to X or Y about anything to do with this court case except about when they are to spend time with their father.

(13)This case is transferred to the Family Court at Newcastle.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gray & Catlyn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 378 of 2019

Ms Gray

Applicant

And

Mr Catlyn

Respondent

REASONS FOR JUDGMENT

Introduction

1. In October 2018 the parties separated after a marriage lasting almost 11 years.  Their two children aged eight and three (“the children”) remained living with the mother in the family home and the father who lived nearby spent time with them each Saturday and on some other occasions as arranged between he and the mother.

2. In late January 2019 during the school holidays the mother left the family home taking the two children with her to live in a town 475 kilometres from the family home. The father returned to live in the family home.

3. The day after moving the mother commenced proceedings in the Federal Circuit Court seeking interim and final orders that would see the children live with her, that she have sole parental responsibility for the children and that the father spend supervised time with them.  The proceedings were subsequently transferred to this Court.

4. Following a hearing before a Senior Registrar on 25 July 2019 orders were made requiring the mother to return with the children and the father to vacate the former family home so that the children could live there with the mother.  Orders were also made for the children to spend supervised time with the father at a contact centre near the family home. 

5. The mother filed an application seeking to review and discharge the orders of the Senior Registrar and that orders be made that the children live with her in the town and spend supervised time with the father at a nearby contact centre. 

6. The orders made by the Senior Registrar at the interim hearing were subsequently stayed pending the hearing of the mother’s application for review.

7. In an application for review I am required to conduct a rehearing of the whole matter (Rule 18.10 of the Family Law Rules 2004). In determining competing applications which were heard before me on 16 October 2019 I am required to decide whether it is in the best interests of the children to remain living with their mother in the new location and spend supervised time with the father nearby or move to live with the father in the former family home and spend supervised time with the mother at a nearby contact centre. Alternatively it may be in the children’s best interests to live in the parenting arrangement as proposed by the Independent Children’s Lawyer (“ICL”) appointed in the proceedings. The ICL’s proposal would see the children remain living with their mother but return to the former family home and spend unsupervised time with the father each alternate weekend and for at defined periods in the school holidays.

Background

1. The father who is 40 and the mother who is 39 married in 2008.

2. The parties lived in various places before settling in the F Region in 2010.  They subsequently bought a home in that location which became their family home.

3. The first of the parties’ children (“the oldest child”), a boy now aged nine was born in 2010.

4. A second son who is now three was born in 2016 (“the youngest child”).

5. The mother contends that throughout the relationship the father used illicit substances as he had done since his adolescence and continues to use cocaine on a frequent basis.  It is also her contention that the father misuses alcohol.  It appears to be suggested by the mother that the father’s parenting capacity is diminished as a result of his use of drugs and alcohol.  The father concedes that he occasionally used drugs when he was younger and that the mother did the same.

6. The mother also contends that the father perpetrated family violence throughout their relationship in that he made threats to her including death threats, was verbally abusive and isolated her from family and friends.

7. The mother also deposes to the father experiencing difficulties with his mental health in the past including depression and anxiety for which he has been medicated.

8. In October 2018 the parties’ relationship came to an end.  While the father was overseas the mother contacted him to let him know that he was not to return to the family home.

9. Upon his return from overseas, the father moved out of the family home and spent time with the children by agreement with the mother usually occurred from 8.30am to 5.30pm each Saturday. It also appears that the father spent some time with the children at school or day-care.

10. On 23 November 2018 the mother personally applied for an Apprehended Domestic Violence Order (“ADVO”) naming herself and the two children as protected persons.  No interim order was made on the various occasions the application was before a Local Court though an undertaking was given by the father that he not assault, threaten, stalk, harass or intimidate the mother and children or damage their property.

11. It is the mother’s contention that the father has sexually abused the youngest child and there is an unacceptable risk that the children will be harmed in the future on this basis.  It is her case that the youngest child made statements on two occasions in January 2019 to the effect that the father had sexually abused and hurt him. The mother subsequently reported these disclosures to “Child Safety NSW” which I take to be a complaint made to the Department of Communities and Justice (“the Department”) and to police.

12. On 7 January 2019 a provisional Apprehended Violence Orders (“AVO”) was made against the father for the protection of the youngest child.

13. The day after the mother made notifications to the Department and police a safety assessment was completed by the JCPR Team[1].  The safety assessment is a matter to which I will return but it suffices to say that the youngest child did not disclose any sexual harm when interviewed in the course of that assessment.  This child did disclose in the interview that his father had hit him in the head but gave no further context to the complaint.  The oldest child was also interviewed.  Neither the allegations of physical abuse or sexual abuse were substantiated by the JCPR Team. 

    [1] JCPR – Joint Child Protection Response Team made up of officers from the Departments of Communities and Justice and Health and police investigate allegations of serious child abuse.

14. On 11 January 2019 police made application to revoke the AVO on the basis of insufficient evidence.

15. The father last spent time with the children in January 2019.

16. On 24 January 2019 the mother claims that the youngest child made more allegations of sexual abuse against the father and behaved in a manner that she regarded as consistent with sexual abuse.  On the same day the mother packed up the family’s belongings and took the children with her to the new location which is about five hours driving distance from the family home.

17. The next day, 25 January 2019, the mother commenced parenting proceedings in the Federal Circuit Court seeking interim and final orders that the children live with her, that she have sole parental responsibility for them, that they spend limited supervised time and have some telephone contact with the father and that he undergo random drug tests. She did not seek an order that she be permitted to change the children’s residence or refer to having left the F Region in her affidavit filed at the time.

18. On 29 January 2019, a further complaint was made to the Department about the father’s conduct with respect to the children.

19. The mother amended her Initiating Application in late February 2019 to also include property adjustment orders.

20. On 14 March 2019 further allegations relating to physical and sexual abuse of the children said to have been perpetrated by the father were reported including some additional information not previously reported.  The allegations of physical harm were assessed as not meeting the threshold of risk of serious harm and were not further investigated for this reason.  The youngest child was not spoken to or reinterviewed as part of this further assessment but some enquiries were made of his child care centre and the father was reinterviewed.  He denied the allegations of sexual and physical abuse.  The outcome of the assessment was that no risk issues were substantiated.

21. On 22 March 2019 the father filed a Response seeking final orders that he have sole parental responsibility for the children, the children live with him and spend supervised time with the mother for two hours per fortnight. He also sought orders in relation to distribution of the parties’ property.

22. On 26 March 2019 the proceedings were transferred to this Court and subsequently allocated to the Magellan protocol[2].

    [2] Magellan Protocol - The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.

23. On 5 June 2019 the mother’s personal application for an ADVO for the protection of herself and the children was dismissed in a Local Court.  On that date the father gave an undertaking with respect to his conduct including that he would not contact or approach the mother except through a lawyer or for purposes associated with the family law proceedings.

24. On 25 July 2019 following an interim hearing a Senior Registrar made orders that the children continue to live with the mother and that she return to the family home within 21 days which the father was to vacate.  Orders were also made that the children spend supervised time with the father at a contact centre near the family home on one occasion up to two hours per fortnight.

25. On 31 July 2019 the mother filed an Application in a Case seeking to review and discharge the orders of the Senior Registrar, but she did not at that stage seek a stay of the Senior Registrar’s orders.  The mother did not move back to the family home with the children by 15 August 2019 as required pursuant to the orders.  The following day she filed an application to stay the Senior Registrar’s orders.

26. On 2 September 2019 the Senior Registrar made orders in chambers that the father file and serve a Response to the mother’s application for stay and any relevant affidavit and listed the application for determination in chambers on 11 September 2019.  On 11 September the stay was granted pending determination of this application for review without a hearing and in the absence of the parties.

27. Prior to hearing the application for review I ordered that the parties attend upon a family consultant for the purposes of the Child Responsive Program.  This took place on 10 October 2019 and a Memorandum written by the family consultant was available for the purposes of the hearing.

The interim orders sought by the parties

1. The mother who is the applicant for review and interim orders seeks orders that the children live with her and spend supervised time with the father at a contact centre for at least two hours per fortnight in a location near the town to which she moved in January 2019.  She also seeks orders with respect to the appointment of a Chapter 15 Expert in the proceedings in her Application In A Case but this was not pursued at the interim hearing.

2. The father seeks orders that the children live with him in the former family home and spend supervised time with the mother at a nearby contact centre for two hours per week at the mother’s expense.  He also proposes various alternate orders in the event that orders are not made as he seeks.  In particular in the event that the court orders that the children live with the mother in the F Region he proposes that he vacate the former family home, the mother and children live there and the children spend time with him each alternate weekend from after school Friday until the commencement of school on Monday and half the school holidays. 

3. The father also proposed a Recovery Order in the event that the mother fails to comply with the primary interim orders.  The order was not pursued at the interim hearing.  He also proposes an alternative for his time if the children are to continue to live with the mother in the town to which she has moved.

4. The ICL’s proposed Minute of Order contains three alternate suites of orders depending upon whether the children remain living with their mother in their current location, live with her in the former family home or live with the father in the former family home.  It became clear in the course of the review application that the ICL supports an arrangement for the children that would see them to live on an interim basis in their former home with their mother and spend time with their father each alternate weekend without the need for any supervision.

5. It is the mother’s case that the father poses an unacceptable risk of harm to the children and that the only way to mitigate this harm is for his time with them to be supervised.  It is also her case that it is in the children’s best interests that they continue to live in their current home where it is contended they are “thriving”.

6. The risks of harm said by the mother to be posed by the father are

   ·Harm arising from potential future sexual abuse perpetrated by the father.

   ·Harm arising from potential future physical abuse perpetrated by the father.

   ·Neglect of the children’s physical care as a result of the father’s cocaine use, alcohol abuse and mental health difficulties.

7. It is the father’s case with which the ICL agrees that he does not pose any unacceptable risk of harm to the children on any basis. 

8. The father and ICL also contend that it is in the best interests of the children to return to their former home pending resolution of the parenting dispute on a final basis. 

9. The father also contends that the mother poses an unacceptable risk of psychological harm to the children arising from her potential to coach them or otherwise cause them to have a false belief that he has or will sexually abuse the younger child and physically abuse the children.

10. In the course of the proceedings it was identified that both the father’s home and the mother’s current home where she lives with the children are proximate to the Newcastle Registry.  The ICL is also located in the F Region, closer to Newcastle and there is no other connection with this Registry.  On this basis the proceedings will be transferred to Newcastle after determination of this interim application.

The law and discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[3]. (“Goode”).

   [3] (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346

2. Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts. 

3. Although when considering interim orders, the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the Court may and in some cases must have some regard to the matters in dispute. 

1. In SS & AH[4], their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [4] [2010] FamCAFC 13

2. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[5], a decision of the Full Court citing Deiter & Deiter (“Deiter”)[6]).

   [5] [2013] FamCAFC 182

   [6] [2011] FamCAFC 82

3. In Deiter the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court

4. For this reason consideration must be given to the risk alleged to be posed by the parties in this case especially as matters of risk are fundamental to each party’s proposal that the other parent’s time with the children be supervised. 

Alleged risk factors in the father’s care

Alcohol and illicit substance misuse and mental health difficulties

1. The mother contends that the father has used illicit substances since his adolescence and continues to use cocaine on a frequent basis.

2. The mother’s affidavit in support of her application for review and interim orders sets out her evidence in relation to the father’s drug use in great detail going back to allegations relating to his drug use in high school.  Much of this detail is largely irrelevant to the matters for determination in this interim hearing.  It is also curious and inconsistent that the mother deposes to being unaware of the father’s substance abuse until July 2018 in one part of her affidavit but gives many details about the father being drug affected prior to that time.

3. In general the mother deposes to the father’s regular absence from the family home which she suggests caused the father to neglect the children after the birth of the second child in May 2016.  She deposes in voluminous detail to all of the father’s absences from the family in 2017 and up until the parties’ separation in 2018 which she says was due to the father’s “partying lifestyle”.  The mother attempts to corroborate this contention by annexing bank statements that allegedly indicate expenditure on alcohol and gambling on the occasions the father was absent from the home. 

4. The nub of the mother’s complaints about the father’s absences from the home however seems to focus on her allegation that the father prioritises his own recreational and leisure activities over his responsibilities as a parent, rather than on his neglect of the children or the risks he is said to pose to them.

5. Although in her Notice of Risk filed in proceedings and in the Outline of Case relied upon at the interim hearing the mother makes allegations about the father’s alcohol and illicit substance abuse and “gambling related issues”, the nexus between these matters and her claim that the father has “serious parental incapacity” and poses a risk to the children when they are in his care do not amount to anything more than assertions as to these matters.

6. It is also contended on behalf of the mother as a matter of concern that the father has refused to undergo hair testing or urinalysis despite being aware that his substance misuse is a matter that has been raised by her since the commencement of proceedings in January 2019.  The mother also contends that at a court event on 26 March 2019 the father was aware of the mother’s proposal to seek an order that his drug use be monitored so his failure to undergo such testing is a matter to which the Court should attach significant weight.  Such an order may have been sought but was not made.

7. When seen by the family consultant for the purposes of the Child Responsive Program the father denied that he abuses drugs or alcohol and claimed that the reason he had not taken a hair test was due to the expense.  He also maintained that if he were required to undergo hair testing then the mother should also be required to do so.

8. In his affidavit the father presents himself as a parent who was involved in every aspect of the children’s care throughout their lives prior to separation.  He deposes to the mother being away occasionally overnight throughout the relationship and that he was solely responsible for the care of the children during these periods.  He deposes that the mother did not ever raise concerns about his parenting during the relationship.

9. With respect to the mother’s complaints about his substance misuse the father admits to “occasionally taking recreational drugs when younger” but says that both parents did this.  He otherwise does not address the issue of substance misuse. 

10. There was a significant focus in submissions made on behalf of the father about the allegations concerning his absences from the family home and substance misuse and in particular it was submitted the mother has significantly exaggerated her concerns in this regard.  It may well be that these submissions are ultimately found to have some weight but I consider the more important point to be that the mother does not raise any actual concerns in her evidence about the father’s capacity beyond mere assertions. 

11. In my view the father did not assist his own case by declining to submit to testing of his drug use on the basis that it was too expensive (albeit that an order in these terms had not been made).  However, it remains the case that there is no real evidence as opposed to assertions about the risks associated with the father’s drug and alcohol use to support a contention about risk posed to the children by the father on this basis. 

12. In my view the concerns that the mother has with respect to the father’s mental health are in a similar vein.  In other words although she deposes to the father suffering from depression and anxiety for which he has been prescribed medication in the past there is no real evidence upon which any contention could be based that any mental health diagnosis cause him to have serious impairments in his parenting capacity or pose a risk of harm to the children. 

Family violence

1. The mother deposes to behaviour exhibited by the father throughout the parties’ relationship that she contends amounts to family violence and this matter was raised by both parents with the family consultant.  It was also contended on the mother’s behalf at the interim hearing that the father’s threats against her were a significant issue in her decision to relocate with the children. 

2. Although I am unable on the untested evidence to make any positive findings at this stage I am required to make some assessment of this evidence as it is advanced as a matter relating to risk to the children in the father’s care. 

3. I do not consider it likely that the father will be found to have perpetrated family violence against the mother on the evidence adduced to date or if such findings are made they will in my view be likely to amount to violence at the lowest end of seriousness.  For example, the mother deposes to in her affidavit to having received a death threat from the father via text message.  The message in question was tendered in the proceedings and in my view was clearly intended as a joke and could not amount to a threat.

4. Further, although the mother has made complaints to the police about the father’s conduct no ADVO has been sought by police or made for her protection from family violence said to have been perpetrated by the father.  The only application for an ADVO (other than in relation to the oldest child which is discussed later) was made by the mother herself rather than police on her behalf.  The grounds upon which that order was sought includes the allegations of threats said to have been made by the father against her in these proceedings.  That application was dismissed with no provisional, interim or final order ever being made. 

5. For the foregoing reasons I do not consider family violence to be a weighty matter in these interim proceedings.

Sexual Abuse and Child Abuse Allegations

1. The mother makes allegations of sexual abuse said to have been perpetrated by the father against the youngest child of the most serious order.  She alleges that the father penetrated the youngest child’s anus with his fingers and penis.  She also alleges that the father has physically assaulted the youngest child by hitting him on the head and appears to suggest when she deposes that she found some “child size handcuffs” in an old suitcase in the garage that the father perpetrated or contemplated the use of these handcuffs on the children.  For this reason she contends that there is an unacceptable risk that the father will sexually and/or physically abuse the children in the future.

2. There can be no doubt that if a child had been or were to be sexually abused in the manner alleged the severity of the impact upon that child would be extreme.  However, the likelihood of a court finding at the final hearing that there is a possibility that such events may occur in the future must be weighed at this stage. 

3. The mother’s case in relation to the possibility that the father may sexually abuse the youngest child or the children in the future is based entirely on disclosures she claims were made by the youngest child and comments made by the older child to she and the maternal grandmother. 

4. The mother deposes that the first such complaint was made on 1 January 2019 in response to her finding a jar of petroleum jelly that she had not seen before and asking the children whether they knew “what daddy uses this for”.  The mother deposes that the youngest child who was then two and half said “daddy uses up my bottom-hurt”.

5. The mother then deposes that she and the maternal grandmother asked the youngest child again about the petroleum jelly on 6 January 2019 and that “the child identified that there was a difference between the petroleum jelly and [nappy rash cream] by stating that the petroleum jelly “hurts”.”  She goes on to say:

   After further conversation with [the youngest child] he said “daddy’s doodle is in bottom and hurts and I cry”.  He further stated that “daddy punched me in the head”.

6. The mother then deposes to calling “Child Safety NSW” and “Department Children’s Services”.  Although I am not aware of any agencies or departments with these titles, the Magellan Report records that on 6 January 2019 a report was made along these lines to the Department which led to an assessment by the JCPR the following day. 

7. The mother also deposes that she took the youngest child to a local hospital but left due to the staff being busy and the child being overtired but deposes to an attendance at the hospital the following day, 7 January 2019.  On that occasion the mother deposes to meeting a social worker from a sexual assault service and that the youngest child had “a non-invasive outer body physical examination”.  The mother also claims that a doctor told her prior to the medical examination that “because [the youngest child] was taken for swims in chlorinated water, it is unlikely we will find any evidence”.  No records from the hospital or sexual assault service were adduced in the proceedings. 

8. According to the Magellan Report the notification of 6 January 2019 was treated as a risk of serious harm (“ROSH”) report which proceeded to assessment.  The record of this assessment includes the following:

   No injuries were noted…

   [the youngest child] did not disclose any sexual harm and based upon the information he provided it was unclear whether the use of petroleum jelly by his father was solely for the purposes of changing his nappy and preventing any rash or soreness as a result of his toileting.  The [nappy rash cream] and petroleum jelly were brought into the interview to initiate conversation. [The youngest child] indicated that his mother uses the [nappy rash cream] on his bottom to poo and that his father uses the petroleum jelly on his bottom and it hurts. 

9. The allegations of sexual abuse and physical abuse were not substantiated.

10. When the allegations were first reported to police on 7 January 2019 a provisional ADVO was made against the father for the protection of the youngest child.  Both parents depose to the AVO being later revoked due to a lack of evidence.

11. Records of the Child Abuse Unit and police indicate that a decision to make application to revoke the AVO was made only a few days after it was made (on 11 January 2019) on the basis that there was insufficient evidence of the child having been sexually harmed by the father.  The records also indicate that other very relevant evidence had come to light after the child’s interview on 7 January 2019 including the context of the child’s alleged disclosures to the mother and events in the mother’s household surrounding the alleged complaints by the child. 

12. In particular records indicate that it came to light that the second conversation in which the child is said to have made disclosures to the mother and maternal grandmother on 6 January 2019 was recorded by the mother on her mobile phone but that the JCPR and police were unaware of the recorded conversation when they interviewed the child the following day.

13. A transcript of the recorded conversation contained within police records indicates the mother asking extremely leading questions of the child about the petroleum jelly and the child giving inaudible answers.  The maternal grandmother and mother also repeatedly suggest to the child that the father put the petroleum jelly “up” or “in” the child’s bottom.  The mother is highly leading when she asked the child whether the father “hurt you with his doodle”.  On other occasions the mother repeatedly tells the child that he is a “good boy” after he gives various answers.

14. It is also apparent from the police records that the mother was unable to explain why she did not report the first alleged disclosures of sexual abuse made by the child on 1 January 2019 and why she permitted the children to have unsupervised time with the father after this complaint was first made by the child.  The mother was also unable to explain why the presence of petroleum jelly caused her such concern, why she associated it with sex and why is caused her to ask questions of the children. 

15. The records indicate that the mother did not inform police or JCPR on 7 January 2019 that she had recorded her conversation with the youngest child the previous day.  That conversation is described in police records as “extremely leading, repetitive and suggestive” and it is recorded that if the Child Abuse Unit were aware of the recorded conversation with the child consideration would have been given to not interviewing the youngest child at all or at the very least that the mother would not have been used as a support person.  The police records also report that the mother claimed when spoken to on 7 January 2019 that the father has posted to a chat group that he is a paedophile and shouldn’t be allowed near children or animals.

16. The police records also contain a summary of the interview with the mother in which it is noted in particular that she told police that following separation she did not agree to the children having unsupervised time with the father even though the sexual abuse allegations had not been made at that stage and there were no other incidents of violence or risks to the children’s wellbeing that had been identified.

17. The police records further contain an assessment of the father’s interview on 9 January 2019 in which he denied all allegations of a sexual nature and stated that the petroleum jelly is his and used for chafing and skin irritations.  He told police that he changes the youngest child’s nappy at times had never applied petroleum jelly but had applied nappy cream.  He denied applying nappy cream to the child’s anus or penetrating his anus and “presented as appropriately upset about these very serious allegations”. 

18. It is recorded that the father also told police that the mother had not agreed to his proposal in relation to his contact with the children and wanted it supervised and his understanding that the mother also wanted to move to another town but would not be able to do so unless he was considered violent or inappropriate. 

19. The police records also report on the interview with the oldest child who denied ever seeing petroleum jelly previously and denied ever seeing his father hurt the youngest child.  He also said that his father had never hurt him, that he feels safe around his father and loves spending time with him.

20. According to the police records the youngest child was medically examined after the interview with police and there were no signs suggestive of an assault, no suspicious injuries and the child’s external genital examination was normal.

21. On the basis of the foregoing, police decided to apply to revoke the ADVO on 11 January 2019 and this application was successful on 22 January 2019.

22. The father’s concerns expressed to police that the mother was in effect looking for a pretext for moving to another town have some support in the mother’s own affidavit.  She deposes to seeking the advice from her solicitor in late 2018 in relation to a request for her to relocate and that after hearing of the sexual abuse allegations and the revocation of the AVO for that child’s protection she decided to relocate with the children.

23. According to the mother’s affidavit on 24 February 2019 the youngest child had a nightmare and called out “don’t touch my bottom I don’t like it” and the following day told her that “daddy kisses my doodle and bottom” after “inappropriately playing with a stuffed toy”.  On 8 March 2019 the mother deposes to the youngest child telling her that “daddy put fingers down my throat and hurt my neck”. 

24. On 14 March 2019 there was a further ROSH report made to the Department alleging physical and sexual abuse of the youngest child by the father including in terms of the allegations made by this child to the mother in February and March 2019.  The complaints concerning physical abuse were not considered by the Department as meeting the threshold for further investigation and a decision was made not to reinterview the child.  The outcome of this assessment was that no risk issues were substantiated.

25. It appears that a court will be required at the final hearing to consider whether it is possible that the father may sexually or physically abuse the children in the future on the basis that he has done so in the past.  The allegations of past conduct themselves depend entirely on the youngest child’s complaints said to have been made to the mother and maternal grandmother. 

26. When considering whether an unacceptable risk of harm will be found to be posed by the father I consider it likely that a court will attach weight to the context in which these complaints were said to have been made.  This context includes the separation of the parties and the mother’s desire to move away from the father at that stage even though she had not initiated any proceedings.  I also consider it likely that weight will be attached to the mother’s claim that the youngest child had made a complaint of sexual abuse by the father which she did not report to the authorities and that she allowed the children to continue to have unsupervised time with the father.  Even on her own case the complaints made by the child in relation to sexual abuse ultimately provided the trigger for the mother to leave.  The mother had also applied for an ADVO against the father for her protection but had been unsuccessful at that stage as no provisional or interim order had been made. 

1. I also consider it likely that significant weight will be given to the assessment of the police and JCPR as to the insufficiency of the evidence and their assessment of the mother’s recorded conversation which was extremely leading and also appears to have been an attempt to gather evidence in support of her case.  The analysis of the police and the JCPR of the investigations also founded a very speedy decision to seek revocation of the ADVO made for the protection of the child.  This would suggest that those agencies did not consider that there was a need for such an order to protect the child from the father in the circumstances.  The allegations concerning physical abuse were also not regarded by the Department as being of sufficient concern that the ADVO should continue for the protection of the child.

2. Having regard to all of these matters I consider it most unlikely that a court will find at a future final hearing that there is an unacceptable risk posed by the father on the basis that he may sexually or physically abuse the children.

Risk factors in the mother’s care

1. The father’s primary position is that the parenting arrangement that would meet the children’s best interests is that the children return to live with him and spend supervised time with the mother.  He contends that supervision is necessary to protect the children from psychological harm arising from the children coming to believe falsely that he had sexually abused the youngest child.  In submissions made on the father’s behalf at the interim hearing it was submitted that great concerns arise from the mother’s full time care of the children and her adverse and alienating influence upon them in relation to the father. 

2. The father also conceded that if the mother were required to return the children to the F Region and the restraints as posed by the ICL were put in place he would not press his primary position of seeking orders for the children to live with him. 

3. There is in my view insufficient evidence even to make an assessment of the father’s claims about the way in which the children may have come to believe that he is dangerous and poses a risk to them as there is no evidence that the children have come to form such a belief.  The oldest child did not report anything adverse about the father to the JCPR when interviewed in January 2019.  Although this child made some complaints to the family consultant when interviewed in October 2019 the thrust of these complaints were that the father paid insufficient attention to the children and became irritated if the children were noisy or disturbed him.  While the oldest child did make some complaints about physical abuse such as “on the bed he would pin me down” he conceded that the father had been doing this to be playful.  When asked what the father could do to make him feel more comfortable to spend time with him this child did not express any fears about the father’s abusive conduct but rather said that he “should play with him more, take him to the park, help him with his homework, listen to him read and not shout”. 

4. So far as the youngest child is concerned when observed with the father in October 2019 the family consultant opined that “he appeared very pleased to see [the father] and hugged him tightly” and after the observation session “grinned widely and said that he had enjoyed seeing his father”.

Best interest considerations

1. In Deiter (supra), the Full Court also said that when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children.  

2. Although the proceedings have been on foot for almost a year there has been very little progress towards a final hearing.  There were delays in the interim hearing and this application is a review of that decision which was made over six months ago.  An order for a family report or the appointment of a chapter 15 expert has not yet occurred and it is possible that there will be some further delay involved in transferring the proceedings to the more appropriate Registry.  There are also property proceedings but I am unaware of the stage that they have reached.  In other words it is likely that the interim parenting arrangement under consideration will be in place for at least many more months.

3. In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

4. Pursuant to s65D(1), subject to certain sections which are not relevant here a court may make such parenting order as it thinks proper.

5. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

6. The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.

7. The primary considerations, which are contained in s 60CC(2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

8. Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

9. Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[7] 

   [7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

10. Unfortunately, the children have been deprived of having a meaningful relationship with the father for almost a year.  They have not spent any time with him other than in the course of the meeting with the family consultant in October 2019.  It is unclear why the children did not spend time with their father after orders were made on 25 July 2019 for that to occur and these orders were not successfully stayed until 11 September 2019.  Although I can make no positive finding about this matter the father also complains about the lack of contact and communication between he and the children. 

11. There may have been some damage to the relationship between the father and the oldest child who appeared at times when observed by the family consultant to be somewhat reserved and uncomfortable with the father.  Having said that, the family consultant opined that the child’s level of discomfort related to the father speaking about matters before the Court. 

12. I am of the view that if the children are to remain in their current location some distance from the father and spend only limited and supervised time with him there will be some diminution in the quality of the children’s relationship with him. 

13. There are various allegations made by both parties in relation to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.  Having regard to my consideration of these matters I am of the view that this need does not require that either parent’s time with the children be supervised.

14. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

15. The only assessment of the children’s relationships with their parents and their views is contained within the Child Responsive Program Memorandum relating to the family’s meeting with the family consultant on 10 October 2019. 

16. During that meeting the oldest child spoke positively about his mother, said that she was affectionate towards him and plays with him a lot and said that he is not fearful of her and feels very comfortable living with her.  This child expressed some concerns about his father and in particular that he had often been away from the home and when he was around had rarely played with him or assisted him with his homework.  He also expressed concern that the father use to shout at the mother a lot and became extremely irritated if the children made noise or disturbed him.  This child was strongly of the view that he should remain living with his mother.  Although he said initially he did not want to spend any time with his father he later said that he would feel more comfortable spending time with him if the father played with him more, took him to the park, helped with his homework, listened to him and didn’t shout.  Given the child’s age I attach some weight to his views.

17. The youngest child was not interviewed due to his age but was observed with both parents in the playroom.  This child appeared very pleased to see the father and hugged him tightly.  The family consultant was of the view that he clearly enjoyed interacting with the father.  Both children were observed interacting positively with their mother. 

18. The father paints a picture of having been involved in making decisions about major long term issues in relation to the children and being actively involved with them prior to separation while the mother contends he was a disinterested and irresponsible parent.  A resolution of this dispute is not possible in these interim proceedings.  Following separation the father has not had an opportunity to participate in making decisions about the major long term issues concerning the children as the mother unilaterally relocated the day before she commenced proceedings and has effectively excluded him from such decision making. 

19. I understand that the mother has financially supported the children in her care and the father has paid child support as assessed.   

20. I consider the likely effect of any changes in the children’s circumstances a particularly salient feature in this application. 

21. The father seeks the most dramatic change in the children’s circumstances in that the orders he proposes would see the children live with him and spend very limited and supervised time with their mother who has been undoubtedly been their primary caregiver and presumably primary attachment figure throughout their lives.  Such a dramatic change would not be made lightly and for the reasons given there is sufficient evidence of the risks said to be posed by the mother for an order of limited and supervised contact with her to be made.

22. The fallback proposal of the father, that the children live with the mother so long as they return to the F Region which is the arrangement proposed by the ICL, in my view will bring about the least change for the children.  Such an arrangement will see them continue to live primarily with their mother but effectively pick up where they left off at the beginning of the year when they were moved from their previous home.  The children will return to their old home and in all likelihood their previous school and day care centre or preschool as well as renewing previous friendships and social connections.  They will also be able to resume their relationship with their father from who they have been separated for almost a year in a more meaningful way. 

23. If the children are to be returned to their former home it is timely that this should occur at this stage during the long school holiday break in time for the start of a new year. 

24. As the mother’s proposed parenting arrangement involves the children remaining living in their current home the benefits which she contends arise for the children in these circumstances must be considered.  The mother provides evidence that both children are settled in their new school and preschool.  She deposes to also arranging for the children to receive some counselling or therapy as a result of having been traumatised through exposure to family violence and as the mother is “firmly of the belief that [the youngest child] has been sexually molested by his father”.  It is difficult to see how therapeutic intervention for alleged trauma where there is no evidence to establish this exists will advantage these children in circumstances where there is significant dispute about the allegations of sexual abuse and domestic violence.  Finally, the mother contends that the children have had various appointments with specialist dental and medical specialists in the area in which she lives.  There is no evidence to suggest that these medical facilities are not also available in the F Region.

25. The mother also contends in support of her application to remain living a distance of 475 kilometres from the father that she is an elected official.  However the role in which she has been involved is in the F Region and during her twelve month absence from that location the mother has returned to the F Region for one day and overnight each fortnight to attend meetings and on these occasions the children have been cared for by her parents.  The mother also deposes to a future intention of not seeking re-election. 

26. I do not consider that the mother’s role in the F Region in any way provides a benefit for the children in remaining in their current location.  Rather, any involvement by the mother in employment based in the F Region would support the proposition that it is in the children’s best interests to return to the F Region where the father may care for them in the event the mother is unavailable due to her employment. 

27. Another salient feature in this matter is the practical difficulty and expense of the children spending time with and communicating with the father.  Real practical difficulties may in my view arise in the children maintaining a personal relationship and direct contact with the father on a regular basis if the mother is to be permitted to remain in the area in which she is now living given the distance from the father.  If the children are to continue living with their mother or the father in the F Region there will be no practical difficulty but some expense involved in the children spending time and communicating with the other parent if this were required to occur at a contact centre.

28. The capacity of each of the children’s parents and other people to provide for the needs of the children including the need to have a meaningful relationship with the parent with whom they are not living is likely to be a significant feature of the final hearing in light of the way in which the interim applications were run.  I cannot make any findings of this nature in these proceedings but do not assess any alleged impairment in the parenting capacity of either parent to require supervision of that parent’s time with the children.

29. Although it is recorded in the Child Responsive Program Memorandum that the children are Aboriginal on their maternal side, and that the mother is a woman of the E People, there is no evidence adduced in these proceedings about the lifestyle and background or culture and traditions of that Aboriginal community.  For this reason it cannot be a matter of weight in this application.

30. If the mother’s contentions concerning the lifestyle and background of the father are found proven as she alleges it is likely a court will attach some weight to these matters when considering the father’s attitude to the responsibilities of parenthood. 

31. For the reasons previously given I am not of the view that family violence is a significant feature in this application.

32. There are two other matters that I consider relevant.  First, as is observed by the family consultant in the Child Responsive Program Memorandum consideration must be given to the potentially negative impact on the children’s wellbeing and mental health from exposure to ongoing conflict between their parents.  Some of the behaviour that has been exhibited by both of the parents while falling short of family violence in my view demonstrates an inability by both parents to shield the children from the conflict. 

33. So far as the father is concerned the oldest child expressed to the family consultant that his father “always use to yell at my mum and swore at her”.  This child also reported that the father was “always saying things to try and make us go to his house” and expressed concern that his father will “make him live with him”.  There is some support in the family consultant’s Memorandum that the father is ready to involve the children in the dispute albeit perhaps unwittingly.  The family consultant records this of the father during the meeting in October 2019:

    He repeatedly told the children that he missed them, spoke about how he was preparing the house for them to visit there, and he occasionally made comments about the impact the family conflict on him, such as declaring “it’s been a very long year for daddy”.

    …when the family consultant advised there was five minutes left before pack up, [the father] asked the children to come and sit down to talk with him stating “any questions you want to ask daddy” and “I know it must have been a hard year for you not seeing daddy”.

34. The family consultant also reported that after the father had left she asked the children how they had found seeing their father that day and the oldest child reported finding it difficult because he felt that the father had placed emotional pressure on him. 

35. So far as the mother is concerned it may also be inferred that she has informed the children about the father’s alleged shortcomings.  When the family consultant asked the older child about his father he reported that his mother had told him that his father uses drugs.  I am also concerned about the highly suggestive and leading manner in which the mother and maternal grandmother interrogated the youngest child about his alleged disclosures of sexual abuse.  As previously noted I consider this to have been a blatant act of evidence gathering without consideration of the impact of harm to the child though suggesting to him that the father is a perpetrator of sexual abuse.

36. This matter supports the restraints proposed by the ICL upon the parents in criticising the other parent or discussing the proceedings with the children.

37. The other relevant matter relates to the circumstances in which the mother unilaterally relocated with the children and whether there was any justification for doing so in the children’s best interests or whether she was attempting to remove the children from the father for the purposes of undermining their relationship with him.  While I cannot and do not make any positive findings in this regard at this stage I have some real concern about the bona fides of the mother especially having regard to the timing of her departure and her failure to mention it or seek permission to relocate for some months after initiating proceedings. 

38. Having regard to all of the foregoing matters and attaching weight to particular considerations for the reasons given, I am satisfied that it is in the best interests of the children for orders to be made in relation to the parenting arrangement for the children as proposed by the ICL in alternate A of Exhibit 1.  I have however worded the orders differently and in plain language without changing the meaning to assist in ease of understanding.

39. It may be observed that this proposal of the ICL does not provide for the exercise of parental responsibility. Although section 61DA provides that when making a parenting order in relation to a child a court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility the presumption does not apply when making an interim order if the Court considers that it would not be appropriate in the circumstances for the presumption to be applied. At this stage of the proceedings when there are many factual matters to be determined and the parents are locked in serious conflict and have no capacity for joint decision making I am of the view that it is not appropriate for the presumption to apply or for any order to be made with respect to parental responsibility.

1. I have made some adjustments to the dates proposed by the ICL given the effluxion of time following the hearing and have also made provision for school holidays in 2020 as the ICL’s proposal only covered the Christmas school holiday period.  I consider the regime for holidays proposed by the father if his primary orders were not made as being in the children’s best interests having regard to the matters as discussed.

2. For the foregoing reasons I make the orders set out at the forefront of this judgment.

I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 December 2019.

Associate:

Date:  20 December 2019