HANES & HANES
[2019] FCCA 2650
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANES & HANES | [2019] FCCA 2650 |
| Catchwords: FAMILY LAW – Children – best interests – sexual abuse allegation – physical abuse allegation – unacceptable risk – children opposed to resuming relationship with father. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65D, 65DAA |
| Cases cited: Goode & Goode (2006) FamCA 1346 M & M (1988) FLC 92-979 |
| Applicant: | MS HANES |
| Respondent: | MR HANES |
| File Number: | ADC 3512 of 2014 |
| Judgment of: | Judge C Kelly |
| Hearing dates: | 31 October, 1 and 2 November 2018 |
| Date of Last Submission: | 26 July 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Dickson |
| Solicitors for the Applicant: | SE Lawyers |
| The Respondent: | In Person |
ORDERS
The mother have sole parental responsibility for the children X born … 2007 and Y born … 2011.
The children live with the mother.
The father’s Application for the children to live with or spend time with him is dismissed.
The father and the paternal grandmother are permitted to send cards, letters or gifts to the children on one occasion during each school term and on the children’s birthdays and Christmas each year, provided that the birthday and Christmas gifts are received at least two weeks prior to the relevant date.
The mother facilitate any request by either child to contact the father or the paternal grandmother and thank them for the cards or gifts.
The mother facilitate any request by either child to re-establish contact with the father in the future.
All proceedings are dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Hanes & Hanes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3512 of 2014
| MS HANES |
Applicant
And
| MR HANES |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the parenting arrangements for the children X born … 2007 and Y born … 2011. The children have not spent any time in their father’s care since August 2015, following allegations of physical and sexual abuse by him. The father denies these allegations and seeks to reinstate his relationship with the children.
The parties have been unable to reach agreement in relation to the children’s long term parenting arrangements and it falls to the Court to determine these issues.
Background
The father was born on … 1981 and is 38 years old. The mother was born on … 1983 and is 35 years old. The parties began living together in 2002 or 2003, although nothing turns on this distinction. They were married on … 2006 and separated on 3 August 2013.
Both parents were actively involved in the day to day care for X and Y during their marriage, managing their family life and parenting responsibilities around their employment obligations. They both worked at the local employer; the mother as a factory worker on day shifts and the husband was employed as a labourer, working on evening shifts.
The mother alleges that the father was violent towards her during the relationship, including physical, emotional and verbal violence. The father conceded that there were arguments and disagreements between the parties that may have deteriorated to verbal abuse, but denies that he was ever physically violent towards the mother or that his behaviour otherwise met the definition of family violence within the Family Law Act 1975.[1]
[1] Family Law Act 1975 (as amended), s.4AB
Following separation the parties negotiated a Parenting Plan which reflected the care arrangements in place prior to separation. They agreed that the father would care for the children during the day whilst the mother was at work and the mother would care for the children from approximately 3.30pm in the afternoon, returning them to the father’s care at 5.45am the next morning before commencing her day shift. The children would then spend alternate weekends with each parent.
The mother says she felt bullied by the father and agreed to these parenting arrangements to avoid any confrontation with him. Nonetheless the parties entered into the Parenting Plan on 12 August 2013 which confirmed these arrangements and dealt with a range of other matters relating to the children’s care arrangements and the co‑parenting relationship between them.
The effect of the Parenting Plan was that the parties were conducting handovers twice each week day. The mother alleges that the father would use these handovers as an opportunity to verbally abuse and intimidate her, in the presence of the children. The father acknowledged that there were difficulties between the parents at handover but considers each party was equally responsible. Despite these difficulties, the parenting arrangements continued until August 2015.
During 2014 the father became concerned that the mother was physically abusing the children and says that the children regularly complained that their mother had ‘beaten them’. He says on one occasion Y returned from the mother’s care with a black eye. In January 2015 he finally made a report to the Suburb M Police Station and to the Child Abuse Report Line. The father alleges that the police took no action in relation to his report.
On 26 January 2015 Y made the first disclosure of possible inappropriate sexualised behaviour by the father, when she told her mother that her vagina was sore because “Dad touches it all the time”. The mother consulted with her general practitioner, who reported the allegations to the Child Abuse Hotline.
Over the following weeks the allegations were investigated by police from the Suburb D station and Child Protection Services at Suburb N Medical Centre (“CPS”). The children remained in the mother’s care during this period. The CPS clinician, Ms E, determined that Y was unable to cope with a formal interview process and SA Police concluded that there was insufficient evidence for the investigation to proceed. Thereafter the parties reinstated the shared care arrangement but their parenting dynamic continued to be extremely difficult.
On 31 July 2015 X disclosed to his teacher that his father had hit him on his back and head that morning and that he had hit him at other times as well. The teacher made a mandatory notification, as she was required to do and X was subsequently interviewed by police. On 3 August 2015 Y made another disclosure to the mother of inappropriate touching by the father and repeated this disclosure to her kindergarten teacher, Ms F, the next day.
In light of both of these allegations, the father was arrested on 5 August 2015 and was charged with aggravated assault upon X and rape and aggravated indecent assault upon Y. These allegations and the resulting investigations will be discussed further in these Reasons. A second CPS investigation took place during August 2015 and the report was completed on 19 October 2015.
Ultimately the charges in relation to X were withdrawn on 24 March 2016 and the charges in relation to Y were withdrawn on 14 April 2016, as the police were concerned about the impact upon the children should they be required to give evidence in Court.
On 12 May 2016 a final Intervention Order was issued naming the mother, X and Y as protected persons.
The children have remained in the mother’s primary care and have not spent any time with their father since August 2015.
These proceedings
The father filed his Initiating Application on 16 November 2016 seeking orders for equal shared parental responsibility and to recommence his relationship with the children, eventually returning to a shared care outcome. The mother filed her Response on 31 January 2017, seeking orders for sole parental responsibility, for the children to live with her and to spend time with their father as agreed, or ordered by the Court.
The matter was first listed on 2 February 2017. On that occasion the parties consented to interim orders as follows:
1.The mother have sole parental responsibility for X and Y.
2.The children live with the mother.
3.The children spend time with the father through the Suburb D Children’s Contact Service on a fortnightly basis for a period of no less than three months.
In addition, the parties consented to mutual injunctive orders restraining each of them from:
a)discussing information pertaining to these proceedings with or in the presence of X or Y or allowing any other third party to do so;
b)denigrating the other party to or in the presence of X or Y or allowing any other third party to do so;
c)consuming illicit substances twenty-four (24) hours prior to and during any period of care of the children;
d)consuming alcohol to excess twenty-four (24) hours prior to and during any period of care of the children;
e)physically disciplining the children; and
f)permitting any third party to physically and/or verbally discipline the children.
The proceedings were adjourned to 12 July 2017 but that date was vacated to allow time for the Children’s Contact Centre visits to proceed. The proceedings were administratively adjourned to 23 November 2017.
The visits at the Suburb D Children’s Contact Centre did not proceed as the children refused to see the father.[2] Accordingly on the adjourned date the proceedings were listed for a three day trial, to commence on 31 October 2018. The Court ordered a s.62G family report be prepared and the matter was otherwise adjourned to 26 March 2018.
[2] Mother’s Affidavit filed 11 September 2018, Annexure H-13 AnglicareSA Children’s Contact Service report dated 21 September 2017
The family report was completed on 28 February 2018 by Ms G, but did not assist the parties in resolving parenting arrangements for X and Y. In the absence of any agreement, trial directions were pronounced at the next hearing on 26 March 2018.
The trial
The trial commenced before me on 31 October 2018. The mother was represented by Ms Dickson of Counsel and the father was self represented.
The mother relied upon the following documents and evidence:
a)Her Amended Response filed 11 September 2018;
b)Her trial Affidavit filed 11 September 2018;
c)Testimony from Ms E, Child Protection Services, who attended pursuant to subpoena;
d)Testimony from Ms H, Y’s counsellor at CAMHS, who attended pursuant to subpoena;
e)Testimony from Dr J, X’s counsellor at CAMHS, who attended pursuant to subpoena.
The mother also relied upon a range of materials annexed to her trial Affidavit or tendered into evidence.
The father relied upon the following material:
a)His Initiating Application filed 16 November 2016;
b)His trial Affidavit filed 24 September 2018;
c)Trial Affidavit of the paternal grandmother, Ms C, filed 24 September 2018.
The father was self represented at trial, but had legal assistance with preparing his trial Affidavit, which assisted him to present his case before the Court. The father also relied upon a range of materials annexed to his trial Affidavit or tendered into evidence.
Both parties were cross examined, as were their supporting witnesses. I am satisfied the father endeavoured to give his evidence honestly and to the best of his recollection but his memory of past events was coloured by the resentment he feels towards the mother and his distress over the loss of his relationship with X and Y.
The paternal grandmother was cross examined. I accept that she endeavoured to give her evidence honestly and made appropriate concessions, for example, regarding the father’s previous drug use. She also demonstrated significant hostility towards the mother, particularly surrounding the allegation of sexual abuse.
The mother endeavoured to give her evidence honestly and to the best of her recollection. Her testimony was also coloured by her hostility towards the father, but she was generally consistent in her recollection of past events.
The mother’s witnesses, Ms E, Dr J and Ms H all attended on the first day of hearing. Ms E gave evidence-in-chief before proceeding to cross examination and she gave her evidence in a calm and professional manner. Dr J and Ms H gave brief evidence, their clinical notes were received into evidence and there was limited cross examination by the father. I accept the evidence from the mother’s witnesses.
Ms G was cross examined by both parties in relation to the contents of her family report and her evidence was of great assistance to the Court.
The trial was unable to be concluded in the three days allocated and was adjourned for final submissions. Unfortunately, the hearing could not be concluded until 26 July 2019, due to judicial unavailability.
The parties’ positions
The father says that he enjoyed a strong and loving relationship with X and Y and seeks orders that will enable him to re-establish this relationship. He acknowledged this process will need to start slowly and was willing to co-operate with any orders the Court may make in that regard. Ultimately the father sought to return to a shared care arrangement, if possible.
The father vehemently denies that he has sexually or physically assaulted either child. On the contrary, he argues the children are at risk of physical abuse in the mother’s care.
The mother alleges that the children are at risk of abuse in the father’s care. She seeks orders that she have sole parental responsibility for X and Y and for the children to live with her. She does not support any orders for the children to spend time with the father.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles that govern the Court’s decisions making responsibilities. This section focuses on the importance of children being meaningfully involved in their children’s lives, fulfilling their parenting duties and obligations and upon the need to protect children from harm.
Section 60CC sets out the factors the Court must consider in determining the child’s best interests. As discussed in the Full Court in Goode & Goode[3], s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”. Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case.
[3] Goode & Goode (2006) FamCA 1346
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
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 the physical or psychological; harm from being subjected to, or exposed to abuse, neglect or family violence.
In the event these two considerations are in conflict, s.60CC(2A) clarifies that concerns regarding the children’s safety must prevail. Section 60CC(3) then sets out a range of additional considerations that must also be taken into account.
The Court must also ensure that any parenting orders do not expose children to an unacceptable risk of family violence (s.60CG). Section 4AB defines family violence to include violent or threatening or other behaviour used to coerce or control a person, or to cause them to be fearful. Violent behaviour includes physical or sexual assault, sexually abusive behaviour, taunts, stalking, intentionally damaging a person’s property or exercising financial control over a person.
Section 61DA presumes that it is in a child’s best interests for the parents to have equal shared parental responsibility, unless the Court finds that the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it is in the child’s best interests to spend equal time with each parent, or substantial and significant time which each parent. Substantial and significant time is defined to include weekday time as well as time during weekends, school holidays and on special occasions.
The Court has an overarching obligation to protect children from abuse and this obligation must take priority over the Court’s requirement to promote a meaningful relationship between the children and each parent.
Evidence in relation to physical or sexual abuse of children is rarely straightforward, as this behaviour invariably occurs behind closed doors and away from scrutiny. The High Court has articulated the test to be applied when considering allegations of child sexual abuse. In M & M (1988) FLC 92-979 the High Court concluded that a Court should not make parenting orders granting custody or access to a parent (as then described in the legislation) “if that custody or access would expose the child to an unacceptable risk of sexual abuse”.[4] It is well understood that a finding of an unacceptable risk involve more than a lingering doubt. The Full Court has since confirmed that the “unacceptable risk” test applies equally to other allegations of abuse beyond sexual abuse.[5]
[4] M & M (1988) FLC 92-979 at p.77,081; See also B & B (1988) FLC 91-978; Re W (sex abuse: standard of proof) [2004] FamCA 768
[5] B & B (1993) FLC 92-375; Re W & W (abuse allegations; expert evidence) (2001) FLC 93-085
Given the serious nature of allegations relating to child abuse, the authorities are clear that the relevant evidentiary test is at the strictest end of the civil standard of proof, as defined in Briginshaw & Briginshaw (1938) 60 CLR 336[6] and reflected in s.140 of the Evidence Act 1995 (Cth) as follows:
“(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.”
[6] Briginshaw & Briginshaw (1938) 60 CLR 336
The evidence
While the Court will consider all of the relevant factors pursuant to s.60CC, this decision turns on my findings in relation to the children’s safety, in light of the allegations of physical and sexual abuse. Accordingly, I will discuss the evidence of the expert and professional witnesses first before turning my attention to the evidence of each party and the s.60CC criteria.
Ms E
Ms E is a qualified social worker and was employed with the Children’s Protection Services at Suburb N Medical Centre (“CPS”) between 2008 and 2017. In that role, Ms E undertook a child protection investigation in relation to the child Y and completed an assessment report on 19 October 2015.[7]
[7] Mother’s trial Affidavit filed 11 September 2018, Annexure H-9, CPS Assessment Report dated 19 October 2015
In response to the initial referral on 10 February 2015 the CPS attempted to medically examine Y but she became distressed and the physical examination did not proceed. Y was so distressed that Ms E did not attempt to interview her. Interviews were conducted with the mother on 13 February 2015, with the father on 19 February 2015 and with X on 20 February 2015.
In her interview with Ms E, the mother described Y’s disclosure on 26 January 2015 to Ms E as follows:
“At approximately 5.00pm, as [X] was having a shower and Y was getting ready to have a shower, Y was observed to wipe her perineal area with a flannel and stated that her vulva area was ‘sore’. Ms Hanes observed that Y’s vulva area was red and asked Y why it was hurting to which Y responded that it was ‘because of dad’. Ms Hanes explained that she waited to discuss this topic with Y as [X] was present and later asked her if Mr Hanes had ‘touched’ her. Y stated that Mr Hanes did ‘sometimes’ and demonstrated what occurred by moving her hand ‘back and forth’ over her genital area. Ms Hanes explained that while demonstrating this action Y had a towel covering her genitals. Ms Hanes added that she asked Y what fingers Mr Hanes used to touch her and Y immediately ‘grabbed’ Ms Hanes’ ‘index and middle finger’ and reported that he said ‘tickle, tickle, tickle’.[8]
[8] Ibid at pp. 44,45
In the course of Ms E’s interview with X, the child described seeing his father “put cream on Y’s vagina because it was hurting but he made it worse”. He went on to describe this happening more than once and that the father would tickle Y and she would be crying.[9]
[9] Ibid at p. 64
Ms E conducted extensive interviews with the mother and father in the course of the first referral. Both parties raised numerous concerns about the other parent’s behaviour during the relationship and after separation. SA Police requested that the sexual abuse allegation not be raised with the father and the CPS respected this request. Accordingly, the father’s interview focussed on the parties’ relationship and his concerns regarding the mother’s behaviour towards the children.
Ms E noted that the father repeatedly returned to his complaints about the mother but struggled to provide details of the incidents when the mother allegedly abused the children. This lack of contextual detail raised doubts about the reliability of the father’s allegations.[10] By contrast, the mother was able to provide extensive contextual and background detail regarding her specific allegations about the father’s abusive and violent behaviour towards her.[11]
[10] Ibid at p. 59, 68
[11] Ibid, at pp. 52 – 55
At the conclusion of the interviews in February 2015 Ms E concluded as follows:
“… the CPS considered that he [X] had been able to describe Mr Hanes touching Y’s vagina and tickling her which the CPS noted was similar to what Y had described to Ms Hanes. The CPS was unable to clarify, however, the context of the touching and whether it constituted sexual abuse or may have occurred in the process of caregiving activities.”[12]
[12] Ibid at p. 64
At the commencement of the initial investigation the mother presented “as unsure whether Y had been sexually abused by Mr Hanes”.[13] At the conclusion of the initial investigation, the CPS formed the view that the mother had not fabricated the sexual abuse allegations, noting she was open to the explanation that the father might have touched Y’s vulva area as part of normal care giving. Ms E also noted that the mother subsequently reinstated the usual parenting arrangements, which further indicated that she held an open mind about the allegations.[14]
[13] Ibid at p. 49
[14] Ibid at p.67
The second tranche of interviews occurred in August 2015, following the second disclosure by Y, made to her mother and her kindergarten teacher. Y was medically examined on 4 August 2015 and the medical report did not identify any concerns regarding Y’s physical presentation.[15] The mother was interviewed on 6 August 2015 and Y was interviewed on 12 August and 21 August 2015. The father declined to participate in a further interview, acting on legal advice.
[15] Father’s Affidavit filed 24/9/18, annexure H5, Police Statement from Dr A, Medical Practitioner, regarding physical examination of Y conducted 4 August 2015
In the course of the 21 August interview with Y, the child agreed that she had told someone[16] “that Dad touched my vagina”. She went on to say “he makes it red and go away” and when asked why her vagina was red Y responded “because Dad always touch it”. When asked how she felt about her father touching her vagina Y replied that she felt “sad …very sad” and that he had touched her vagina with “his fingers and his thumb”. Y went on to describe the father touching her with “a needle” which she described as “big and round” but Ms E could not clarify Y’s meaning.
[16] This person was not identified in the CPS Report but has subsequently been identified in police documents as Y’s kindergarten teacher, Ms F
Y was able to identify on a body diagram where the vagina is located and described how the father “put gina with the fingers in” before adding “if we go there again, touch my gina again … never go there again then we need to go to mum’s again”.[17] She was able to demonstrate what had occurred, which Ms E considered increased the reliability of her disclosure.[18]
[17] Ibid at pp.65-66
[18] Ibid at p.66
Ms E noted that Y said Mr Hanes “tickles my vagina first … he didn’t stop … and him do it again”.[19] This echoed her disclosures to the mother and Ms E noted that X had also described the father ‘tickling’ Y. At no time did Y relate the father’s ‘touching’ to the application of any cream, as suggested by X.
[19] Ibid
Portions of Y’s interview were unclear or confusing, such as her reference to “a needle”. Y described her father having “wrecked” her knickers and gave conflicting answers about whether she was wearing her underwear when the father was allegedly touching her. Y also referred to X touching her vagina, but this comment occurred late in the interview after Ms E had raised X’s name in a different context and when Y was struggling to continue with the interview process.[20] Ms E did not place any weight on this reference to X.
[20] Ibid
Ms E acknowledged that some aspects of Y’s interview were unclear, but did not consider that these inconsistencies necessarily undermined Y’s disclosures. Ms E summarised her findings as follows:
“When considering the information that Y provided during the interviews at the CPS, the CPS was extremely concerned that she had been sexually abused Mr Hanes [sic]. When forming this opinion, the CPS considered that Y provided details about Mr Hanes touching her ‘gina’ including that it occurred ‘in bed’ and that it made her feel ‘very sad’ and that he touched her with his ‘finger and his thumb’.”[21]
[21] Ibid
The CPS report concluded:
“Furthermore, the CPS was of the opinion that Mr Hanes had touched Y’s vulva area on more than one occasion. The CPS formed this view when considering that Y had disclosed about the touching approximately six months apart, that [X] had described that this had occurred on more than one occasion, the language that Y had used (particularly using the word ‘always’) and that she believed that Mr Hanes would touch her vulva area again in the future.”[22]
[22] Ibid at p.69
As a result of their investigations, the CPS “was unable to dismiss the concern that Y had experienced sexual abuse perpetrated by Mr Hanes.”[23]
[23] Ibid
In the course of cross examination by the father, Ms E agreed that she cannot be 100 % certain that the father sexually abused Y, noting that she can only express her expert opinion based on her interviews with the relevant family members. The father asked Ms E to consider the possibility that the mother had coached the children to make these allegations. Ms E replied that she did not observe any indications that the children had fabricated the allegations or had been coached in any way.
When asked to consider whether the mother’s allegations were a tit‑for‑tat” response to the father’s child protection notification about the mother, Ms E replied that she always ‘keeps an eye out’ for malicious allegations but considered the mother’s presentation was coherent and plausible. She noted that the mother had demonstrated her willingness to reinstate shared care after the initial allegation was raised in February 2015, until the second round of allegations arose in August 2015.
To conclude, Ms E provided a detailed report regarding the allegations of sexual abuse and the family dynamics generally. Ms E continued to hold real concerns that Y may have been subjected to inappropriate sexual contact by the father. Her opinion was not swayed during cross examination and the Court places considerable weight upon her evidence.
Dr J
Dr J is a clinical psychologist employed with CAMHS. She provided counselling support to X between 28 June 2017 and 26 October 2017.
Dr J confirmed that she would generally meet with the mother and speak to her alone and then have a separate session with X before a “wrap up session” with the mother and X together. Dr J confirmed she had never met the father and all of her information was provided by the mother or X himself. Dr J also met or spoke with Y’s counsellor, Ms H, from time to time.
Dr J’s notes contain occasional references to the father. On 12 July 2017 she noted that X spontaneously recalled “he feels sad at night time as he cant get thoughts of father throwing him against the wall out of his head”.[24] On 26 July 2017 X provided Dr J with a letter he had written to his father, explaining that X did not want to see him at the present time.[25] The session continued and Dr J explored the use of distraction techniques at night time to help X shift his focus away from thoughts of his father.[26] On 14 September 2017 X said he was happy at not having to see his father any more.[27]
[24] Exhibit M1, CAMHS notes re X 12 July 2017
[25] Ibid, photocopy of X’s handwritten note, written in the context of Contact Centre visits having just commenced.
[26] Ibid, 26 July 2017
[27] Ibid, 14 September 2017
The CAMHS counselling notes provide further confirmation of the alleged physical abuse, albeit X’s comments to Dr J were limited. Dr J’s evidence is relevant to my assessment of X’s perceptions of his relationship with the father at that point in time, approximately two years after the incident occurred. The counselling process appears to have been helpful for X and the mother reported that there was significant improvements across all areas of X’s functioning by the time the sessions concluded in October 2017.
Ms H
Ms H is a clinical psychologist employed by CAMHS and provided therapeutic support to Y between 22 March 2017 and 26 October 2017. Y was referred to CAMHS following concerns regarding her demeanour at school, where Y became selectively mute on occasions and was particularly nervous around some male teachers. Ms H confirmed these concerns directly by speaking with the school Principal, Ms K and with Y’s class teacher.
Y’s counselling was generally focussed on her school-based anxiety. Ms H said that there was no indication that Y’s distress arose because she was missing her father. When asked if Y had ever expressed any fear towards her father, Ms H referred only to some pictures apparently drawn by Y that the mother brought in. These were drawings of her father, with words such as scary (spelt “scera”) and angry (spelt “angre”) written alongside.[28] The absence of any further discussion suggests that Y’s relationship with her father was not a significant focus in the counselling.
[28] Exhibit M2, CAMHS notes re Y
Ms H’s evidence does not greatly assist me in determining the issues before the Court, but it was reassuring to see that Y was more settled at school and experienced some benefit from the counselling process.
Ms G, family report writer
The s.62G family report was released to the parties on 28 February 2018. Ms G attended to give evidence at the hearing and confirmed that her professional opinion remained as set out in her report. Ms G acknowledged that the father denied the allegations of physical and sexual abuse and that he believes the allegations have been instigated by the mother.
Ms G agreed that children can be manipulated by a parent and said that she is always alert to this possibility during her interviews with the children. She noted that X’s comments about the father’s marijuana use may have reflected some adult influence, but nonetheless Ms G concluded that X and Y demonstrated a genuine level of distress when talking about their father and that their comments did not appear to be simply “learned” or “repeating by rote”.
In the course of cross examination Ms G commented that both children were very distressed and emotionally reactive on the day of the interviews. She noted that the past parenting arrangements, which required twice daily handovers between high conflict parents, would have been a source of stress for the children at that time, as would their later participation in interviews at CPS and with SA Police.
It is clear that both X and Y demonstrated a significant level of emotional and physical distress during the assessment process. Ms G reported that X “described his father as ‘scary’ speaking in a very quiet voice, sinking deep into his chair, with signs of agitation such as tugging and worrying at his hair and tapping his foot.” She went on to describe X sitting “hunched in his chair with his arms around his legs and his face buried in his knees as he spoke”.[29] At that point Ms G concluded her interview with X due to his distress.
[29] Family assessment report, paras. 90, 93
Y was reported to have been crying quietly in the childcare room for approximately two hours prior to her interview with Ms G but she settled sufficiently to participate. When asked to tell the writer about her father, Y responded by saying “He bes [sic] mean and he also touched my private parts. It isn’t nice.” Ms G noted that Y appeared very uncomfortable when being asked any questions about her father and noted that “… as she spoke about the father she [Y] underwent a change: she sat down into the chair, pressed her legs tightly together, pulled her skirt down as low as it would go to cover her legs and became still.”[30]
[30] Ibid, para.102
Both X and Y refused to spend any time with their father and Ms G concluded that it was not appropriate to attempt any observed interaction, given the level of their distress.
Ms G spoke with the children’s school Principal, Ms K. Ms K confirmed that the parties’ parenting relationship had historically been highly volatile and described the mother presenting as “distressed and anxious” and the father presenting as “needing help to calm down”. She confirmed that the school had called the police on one occasion because the parents were fighting verbally and the children had to be removed from the vicinity of their argument.
Ms K noted that the father would talk abusively about the mother whilst holding Y in his arms, despite Ms K’s requests that he cease doing so. She further confirmed that, as school Principal, she had been concerned about both children, particularly Y. She confirmed that the school had suspended Y’s lessons with male teachers because of her overwhelming reaction to them. She ultimately referred the family to CAMHS in late 2016.
Ms K said that the children had been more settled across 2017, perhaps because they were not moving between their parents. She further commented that 2017 was a really positive year for X and that Y had also made huge gains.[31]
[31] Ibid, paras. 121-130
In the course of the family assessment Ms G also spoke with the paternal grandmother and conducted a period of observed interaction with the paternal grandmother and the children, in the presence of the mother. The children were happy to see the paternal grandmother and gave her a hug when asked. It was pleasing to note that the paternal grandmother and the mother engaged politely and respectfully during the session and hugged goodbye at the conclusion of the session.
In response to a question from the father, Ms G agreed that Y’s distress on that day might have arisen because she is a naturally shy child and had not seen her father for a very long time. Ms G acknowledged that there was “a lot happening” for Y across the day of the interviews. She commented that the previous daily shared care regime would have created a strong attachment between Y and each of her parents, but noted that a child’s attachment relationships can develop as positive, secure attachments or as insecure, dysregulated attachments. Ms G noted that a parenting regime which exposed children to high level conflict at handover can be deeply distressing for any child and disruptive to their emotional development.
In the event the Court made a finding that either child had been subjected to sexual or physical abuse, Ms G recommended that there be no contact between the children and the father. She expanded upon this recommendation in the witness box, noting that the premeditated nature of sexual abuse represents a much greater betrayal of trust by a parent. Ms G was concerned that any ongoing contact with an abusive parent may convey to a child the message that “what happened to you wasn’t so bad”.
In the event the Court concluded that the children are not at risk of physical or sexual abuse by the father, Ms G still recommended a cautious approach. She noted that the children had refused every opportunity to see the father both at the Children’s Contact Service and during the family assessment. Ms G concluded that any attempt to re-establish the children’s relationship with their father would require reunification counselling and would need to be undertaken by a highly skilled counsellor.
The parties’ evidence
I have considered all of the evidence presented by each party and will discuss their evidence generally, but also within my assessment of the s.60CC criteria. It is unnecessary to repeat all of the evidence, or to rule on every issue that may be in contest between the parties, rather, I will focus my discussion upon those issues that affect my assessment of the children’s best interests.
The father
The father says that he enjoyed a close and loving relationship with both children and categorically denies that he has ever physically or sexually abused either child. On the contrary, the father says that the mother hit X and Y on numerous occasions during the marriage and that after separation the children informed him that they “were being regularly beaten by their mother whilst in her care”.[32] The father tendered a photograph of Y showing an injury to her eye which he says was caused by the mother.[33]
[32] Father’s Affidavit filed 24 September 2018 at para. 12
[33] Exhibit F9
The father argues that the allegations of sexual abuse of Y were the mother’s retaliation after he had reported his concerns to SA Police and the Child Abuse Report Line. The father presented as deeply frustrated that his concerns were not investigated by the appropriate agencies, in contrast to the mother’s allegations raised against him.
In the course of his interview with the CPS the father went into greater detail regarding the mother’s alleged child abuse, claiming that she ‘threw’ one of the children when the child was not even five months old and that X reported that the mother had hit him eight times across the face, legs and arms. These allegations of child abuse were not repeated on oath in his trial Affidavit, however.
Similarly, the father’s trial Affidavit does not raise any specific issues regarding the post-separation parenting relationship, despite his complaints to the CPS. In his trial Affidavit the father deposed that the mother has significant mental health issues and says that throughout the relationship she “demonstrated behaviour that was consistently irrational, violent, volatile, anti-social and manipulative”[34] but did not provide any examples of such behaviour.
[34] Father’s Affidavit filed 24 September 2018 at para. 41
SA Police formally interviewed the father on 22 February 2015 in relation to the first allegation of sexual abuse. He denied that he had ever touched Y on her vagina. He told the interviewing officer that he sometimes applied Hydrosol cream to her bottom and groin area because the child suffered from significant nappy rash but had never applied the cream to her vagina.
The father has also consistently denied the later allegations of sexual abuse. He noted that in the months prior to the August 2015 allegations, Y had complained about soreness in her genital and groin region and the mother had taken her for medical treatment. The father said that he was continuing to apply the Hydrosol cream to Y’s bottom and groin area, to assist with this discomfort.
Regarding Y’s disclosure to Ms F, the father pointed out that the mother had asked Y a range of leading questions on the previous evening.[35] He argued that this would have influenced the child’s comments to her kindergarten teacher the next day, but Ms F’s statement to SA Police does not support this. The disclosure by Y arose following a positive comment Ms F made about the father plaiting Y’s hair. Nothing in their brief exchange suggests that Y appeared to be under any pressure or compulsion when making this disclosure.
[35] Mother’s Affidavit filed 11 September 2018 at para. 90
The father strenuously denies ever assaulting X. He urges the Court to accept that the allegations of physical or sexual abuse are false and that X and Y have been coached or coerced to make these allegations. He says that the mother is determined to exclude him from the children’s lives and that she actively undermined the supervised visits at the Children’s Contact Service.
The mother’s evidence
The mother says she felt “pressured” into implementing the post-separation daily shared parenting regime. I note, however, that given the parties’ work rosters, it was an arrangement that suited both parents.
In her Affidavit the mother described ongoing difficulties that she experienced with the father’s behaviour towards her at handovers. She also deposed to the children complaining that their father routinely criticised or denigrated her.[36] Despite these concerns, the mother concedes that she maintained the shared parenting arrangement for nearly two years, until the allegations of sexual and physical abuse were raised and charges laid against the father. The mother rejects any suggestion that she has concocted the allegations of child abuse or somehow manipulated the children into making these accusations.
[36] Ibid, at paras. 66-69
The mother further denies that she has ever physically assaulted or injured either child, either before separation or afterwards. On the contrary, she says that X complained that his father “keeps asking if you hit me and makes me say yes”.[37] The mother cites this as an example of the father’s emotionally abusive behaviour towards the children. She cites other examples of the same abusive behaviour towards her, such as when the father became loud and angry after their mediation session at Relationships Australia in 2014, causing the mother to seek support from her sister and from staff. The father acknowledged to Ms E that he “kicked up a stink” on that occasion.
[37] Ibid, at para. 76
The mother’s trial Affidavit mirrors much of the information she provided to Ms E during the CPS interviews in 2015. Her description of the events surrounding the abuse allegations is consistent, as is her description of the parties’ relationship and their co-parenting relationship after separation. This consistency in detail adds weight to the reliability of the mother’s evidence regarding Y’s disclosures and to her evidence overall.
I accept the mother’s account of her conversation with Y on the evening prior to Y’s disclosure to her kindergarten teacher on 3 August 2015. The father argues that the mother was manipulating Y, but I am satisfied that Y initiated the conversation. The mother voluntarily disclosed this conversation to Ms E; she is unlikely to have done so if she fabricated the conversation or was attempting to manipulate Y.
The mother says that X and Y are at risk if they spend time in the father’s care. In circumstances where the children are settled and progressing well, she is further concerned that their emotional welfare will be undermined by any attempt to re-establish a relationship with their father.
Section 60CC(2) primary considerations
(a) the children’s right to a meaningful relationship with each parent
Both parties were involved in the children’s care on a day-to-day basis prior to separation and this arrangement continued by agreement after separation. Both parents have raised concerns and reported allegations of physical abuse (and sexual abuse by the father) but the nature of the parenting arrangements during this time meant that X and Y would have held a meaningful relationship with both parents.
X and Y have continued to maintain a meaningful relationship with their mother. In the course of the family assessment Ms G observed that the mother interacted easily with the children and that the children appeared relaxed.[38]
[38] Family Assessment report, supra, at para.109
The children’s relationship with their father has completely broken down following the allegations of abuse. Notwithstanding his previous daily parenting role in their lives, X and Y have rebuffed every opportunity to interact with their father in the safe and supervised settings offered through the CCS and the family assessment interviews. Presently there is no meaningful relationship between the children and their father.
The father argues that this has been the mother’s intention, but I reject that submission. The mother co-operated with the daily shared care arrangement for a period of two years after separation. She re-instated shared care in February 2015, after the original CPS investigation did not identify any significant concerns regarding Y’s safety. This clearly demonstrates that the mother continued to support the shared care regime. It was not until the father was charged with criminal offences against each child in August 2015 that the children’s time with him ceased.
(b) the need to protect the children from being exposed to abuse or family violence
On 5 August 2015, the father was charged with sexual offences in relation to Y but those charges were formally withdrawn by SA Police on 14 April 2016. At the same time the father was charged with a physical assault upon X. Again, those charges were formally withdrawn on 24 March 2016.
From the father’s perspective, the decision by SA Police to withdraw the charges should be the end of the matter. It must be remembered however that a different standard of evidentiary proof applies in family law proceedings. The Court’s focus is always on the best interests of X and Y. Applying the civil standard of proof at its highest level, this Court must determine, not whether the father is guilty of a criminal offence, but whether – on the balance of probabilities – the children are at an unacceptable risk of abuse in the father’s care.
Allegations of sexual abuse in relation to Y
Regarding the allegations of sexual abuse towards Y, the mother relies upon the statements that Y made to her and upon the CPS report, which I have already considered. The father argues that the mother has manipulated Y and has fabricated the allegations but I reject this contention. I am satisfied that the mother was not pursuing a finding that Y had been abused when this issue first arose in February 2015.
On the contrary, the mother accepted the verbal advice she received from CPS and reinstated the shared care parenting regime at that time. This is hardly the response of a manipulative and hostile parent. It was only upon the second disclosure by Y and criminal charges being laid in August 2015 that the children’s time with the father ceased.
I recognise there are some inconsistencies within Y's CPS interview and this must affect my assessment of her disclosures. Similarly, I note that X’s interview identified the possibility that the touching occurred in the context of the father appropriately applying cream to Y. However, there are other factors that support the reliability of Y’s disclosures. Even if I ignore or disregard Y’s statements to the mother, the child made a subsequent disclosure to her kindergarten teacher on 4 August 2015 and then repeated the same information during her interview with Ms E three weeks later.
At the conclusion of the assessment process, the CPS remained concerned that Y had experienced sexual abuse by the father and was unable to dismiss that concern.[39]
[39] Mother’s trial Affidavit filed 11 November 2018, Annexure H-9, at pp. 65, 69
The evidence before the Court is not sufficiently robust to base a finding of inappropriate sexual behaviour by the father, but that is not the test. In any situation involving allegations of abuse, the Court is required to determine whether there is an unacceptable risk of harm to the child.
Notwithstanding the father’s denials, the evidence before the Court raises significant concerns, particularly Ms E’s evidence. Y has subsequently refused to interact with the father in any way, which further heightens my concerns. Taking into account all of the evidence, I conclude there is an unacceptable risk that Y may be exposed to inappropriate sexual behaviour in the father’s care. This is a significant finding in my overall determinations.
Allegations of child abuse in relation to X
X first disclosed physical abuse to his teacher on 31 July 2015, when he told her that his father “had hit him across the back of the head a few times and across the back.”[40] The teacher acted appropriately and reported these allegations to the Child Abuse Report Line.
[40] Exhibit M4, SA Police Incident Report No 16/S63756
X repeated these allegations when interviewed by police on 26 August 2015 as follows:
“He [X] stated that he [the father] hit him in the head and back, grabbed him and dragged him out of the bed and threw him against the wall. He stated that when his dad threw him against the wall he had grabbed him by both hands around the waist and his head, back and bottom hit the wall. He stated his dad hit him with his bare hands, they were open, and both hands at different times. He stated he also hit him on the bottom. He stated he couldn’t remember how many times his dad hit him. He stated his dad didn’t say anything when he was hitting him. He stated he was crying and it hurt, and it made him feel sad. He stated his dad also hit him near the curtains in the bedroom with his bare hands, but couldn’t remember where on his body or how many times. He stated he had a red mark on his back but aw [sic] it. He stated his dad said sorry the next morning, on the Saturday.”[41]
[41] Ibid
The author of this Police Incident Report, Sergeant L, was not called for cross examination, but her handwritten notes were tendered and I am satisfied this Police Incident Report provides an accurate record of the interview.[42] The father was charged with aggravated assault upon X, but those charges were eventually withdrawn, as discussed above. X remains a protected person on the Intervention Order.
[42] Exhibit M5
During his counselling with Dr J in 2017, some two years later, X again referred to his father “throwing him against the wall” and the consistency in X’s account adds weight to the reliability of his original disclosure. X appeared to gain some benefit from his counselling with Dr J, but the incident with his father was still very much on his mind when X was interviewed by Ms G in February 2018.
X told Ms G that “he [the father] used to hurt me and Y for no reason. We would hop in his bed. One day he slapped me on the bottom and threw me and my back hit the door. He was yelling!” Importantly, Ms G noted that “There was congruent emotion and indignation in X’s tone and facial expression as he spoke”.[43]
[43] Family Report, para. 83
The father denies these allegations and again accuses the mother of coaching X. However, there is no evidence to support this accusation. X’s initial allegation of physical violence was made to his teacher, an independent third party. It was made at a time when the children were living equally with their parents; it was not a situation where the mother had extended care of X to be able to influence him, or manipulate him.
I conclude that X’s allegations are plausible and provide a coherent explanation for the subsequent breakdown in his relationship with the father. I conclude that there is an unacceptable risk that X could be subjected to further physical abuse by his father in the future. This is a significant finding in my overall determinations.
Family violence
The mother’s trial Affidavit sets out detailed allegations of the father’s violent behaviour towards her during their relationship. The mother did not make any contemporaneous reports regarding the father’s alleged violence and her first contact with police occurred after separation.
The father did not cross examine the mother extensively on the topic of family violence during the relationship, but I take into account that he was self represented and, not surprisingly, focussed his cross-examination on the allegations of child abuse. I accept that the father disputes the mother’s allegations of family violence and his failure to cross-examine the mother does not suggest he is conceding these allegations.
The father acknowledged that the parties had a tempestuous relationship and would often argue but denied the mother’s allegations of physical, emotional and verbal violence. He says the reason there are no police reports made during the parties’ relationship is because the alleged violence simply did not occur.
The absence of police reports is a relevant factor for the Court to consider, but it does not automatically mean that the mother’s allegations are fabricated. There may be many reasons why a party does not disclose family violence – they may feel ashamed, they may hope the other parent will change or that the situation will settle down after separation.
The father tendered a letter he received from the mother dated 15 February 2014, which was written six months after the parties’ separated. The mother was encouraging the father to participate in mediation and made it clear that she was still committed to shared care. It was in this context that the mother wrote:
“The biggest reason [why she left] is because I feel you don’t listen, which is why I think we have the problem communicating now. I am not saying you are a bad person, but I can’t live with it. The other major reason is Domestic violence. The hitting, yelling, accusing, abusing, the controlling. All of that is domestic violence.”[44]
[44] Mother’s letter to the father, 15 February 2014, Exhibit F4
This letter was written at a time well prior to the events of January 2015, when the allegations of child abuse were first raised by either parent. The mother identifies family violence as a major factor in their separation, not in a blaming way, but by way of explanation to the father. I consider the letter adds considerable weight to the mother’s allegations of family violence.
It is perhaps surprising that the mother initiated the Parenting Plan, given that the arrangement involved twice daily handovers between the parties. The mother addressed this in her oral evidence. She said that she wanted ‘something in writing’ because she knew it would be difficult to negotiate parenting arrangements with the father and that the Parenting Plan was simply re-stating the pre-separation parenting arrangements. The mother added that she did not consider the children were at risk of abuse in August 2013, when the parties signed the Parenting Plan.
The allegations of family violence were discussed with both parents in the course of their appointments with CPS in 2015, in the context of assessing their co-parenting dynamic. The father denied allegations of family violence, but conceded that he reacted angrily during a mediation session with the mother in 2014, to the point where the mother was escorted to her car by a staff member from the mediation service. The CPS report raised a real concern regarding the father’s ongoing hostility towards the mother and his inability to regulate his emotional reactivity in their interactions.
Taking into account all of the evidence, I conclude that the father exhibited a pattern of coercive and controlling behaviour towards the mother both during the relationship and subsequently. No doubt both parties engaged in verbal abuse and verbal conflict during their many handovers, but the father’s behaviour after separation caused the mother to feel frightened and intimidated, leading her to make two separate police reports.[45]
[45] Exhibit M4, Police Incident Report 14/MA2236 and Police Incident Report 14/P555662
I conclude that the father has behaved in ways that meet the definition of family violence set out in s.4AB and that the mother felt intimidated and threatened by his behaviour. This is a relevant factor in my determinations, however this finding alone would not necessarily lead to an outcome where the father spends no time with the children.
A final Intervention Order was pronounced by the Suburb D Magistrates Court on 12 May 2016 naming the mother, Y and X as protected persons.[46] The Intervention Order prohibits contact or communication by the father with the mother or either child unless through a solicitor or pursuant to the Family Law Act 1975.
[46] Mother’s trial Affidavit filed 11 September 2018, Annexure H-10, Final Intervention Order dated 12 May 2016
The Intervention Order specifically allows contact between the father and the children under arrangements “agreed after this Order by a method permitted by this Order”. Clearly an Order of this Court is a permitted method. Orders could be made regarding future handover arrangements to limit the risk of the children’s exposure to violent or aggressive behaviour between their parents. Other protective orders could also be pronounced, including counselling for both parents and/or the children.
Section 60CC(3) additional considerations
(a) the children’s views
As discussed above, both children have refused to spend any time with the father, whether at the Suburb D Children’s Contact Service or in the family assessment process.
X has a clear recollection of his father assaulting him and his description was consistent throughout his police interview and his subsequent interviews with Dr J and Ms G. Both children were very clear in their refusal to see the father during the family assessment and Ms G’s report of the children’s distress is concerning. X was only ten years old at the time of the interview and Y was only seven years old. I take this into account when assessing the weight to be placed upon the children’s comments but their views remain a relevant factor.
(b) the nature of the children’s relationship with each parent and significant others
X and Y enjoy a positive and relaxed relationship with their mother but their relationship with their father has broken down. The children refused to spend time with the father at the Children’s Contact Service in 2017, as described in the report prepared by that Service. [47]
[47] Mother’s Affidavit filed 11 November 2018, Annexure H-13, Children’s Contact Service report dated 21 September 2017
During the first scheduled visit on 22 July 2017, X managed to say hello to his father via a glass window but no face to face contact occurred. The CCS worker asked Y if she also wanted to say hello to her father in the same manner, but Y declined. I note the mother was reported to tell Y that she did not have to “go through to see the father” if she did not want to, but the report also records that the mother was encouraging Y and X to participate in the visit.
Neither child was willing to proceed with the second visit on 5 August 2017. Again, the report shows that the mother was encouraging the children to participate. The third scheduled visit occurred on 19 August 2017. When asked by the CCS worker if they wanted to see their father, both children shook their heads firmly no.
X and Y had not spent any time with their father for over two and a half years at the time of their interview with Ms G. Based on her report, the relationship between the children and their father has broken down entirely.
The paternal grandmother attended the family assessment interviews. Ms G interviewed the paternal grandmother and Ms G conducted a period of observed interaction between the paternal grandmother and the children, with the mother’s co-operation. X was pleased to see his paternal grandmother and interacted warmly with her and I take this into account.
(c) the extent to which each party has participated in caring for the children and making decisions about their welfare;
(f) each party’s parental capacity; and
each party’s attitude to the children and to the responsibilities of parenthood
I will discuss these considerations together as they are interrelated. It is difficult to assess the parties’ parenting capacity as a concept separate to the abuse allegations, but the Court must ensure all relevant considerations are properly addressed.
Both parties were actively involved in the children’s day-to-day care prior to separation and for two years following separation. Clearly, both parties were making decisions regarding the children’s care and welfare and appeared to be meeting the children’s day-to-day care needs. The father does not presently play an active role in the children’s lives, but I accept he would meet his responsibilities in the future, if the opportunity was open to him.
The father agreed to the shared parenting arrangement, notwithstanding his apparent concerns regarding the mother’s interaction with the children. For her part, the mother also agreed, notwithstanding her apparent concerns about the father’s aggressive and violent behaviour towards her. Both parties were balancing their employment obligations with their parenting responsibilities.
The parties’ decision to implement a daily shared parenting regime placed significant strain on the co‑parenting dynamic. This led to ongoing conflict between the parents at handovers and on occasions this conflict spilt over into the children’s school environment. The parties endeavoured to resolve these difficulties through mediation but were unsuccessful. Their failure to address this issue left X and Y exposed to ongoing arguments and hostility between their parents, which must have been distressing for the children.
The mother has demonstrated her ongoing capacity to make appropriate parenting decisions and to provide for the children’s emotional and intellectual needs. X and Y appear settled in her care and are progressing satisfactorily. The father argues that the mother has failed to meet her parental responsibilities by pursuing false and malicious allegations against him but I do not accept his characterisation of the mother’s behaviour.
I am satisfied the mother acted appropriately and protectively in response to the allegations of abuse raised by each child. I reject the father’s claim that the mother manipulated the children to make false allegations.
(d) the likely effect of any changes in the children’s circumstances including the likely effect of any separation from either parent
This is a significant factor in the Court’s determinations. X and Y have moved from a situation where they experienced both parents’ care on a daily basis, to a situation where they have not now spent time with their father for approximately four years. Self-evidently, this was a substantial change in the children’s circumstances and reintroducing that relationship would be equally significant. Even if the Court found that the allegations of abuse were unfounded, the Court must assess whether resuming, or attempting to resume, a relationship with the father would be in the children’s best interests.
There is no dispute that children generally benefit from retaining an ongoing relationship with both parents, but X and Y have refused the opportunity to see their father in a supervised setting on four separate occasions now. Any resumption of their relationship could be supported by reunification counselling but, as Ms G noted, it would need to be very carefully managed, given the children’s strongly expressed views. Ms G commented that any attempt at reunification counselling should only proceed if the nominated counsellor considered the children were ready.
Given the children’s refusal to spend time with their father, I agree with Ms G that re-unification counselling for the family would be a necessary first step. Re-unification counselling may provide a safe environment for X and Y to re-connect with their father, but before commencing on this path the Court would need to be satisfied that supervised or other time with their father was in X and Y’s best interests.
The children will clearly be affected by an outcome where they spend no time with their father. That is a relevant factor in my considerations but I conclude the unacceptable risk of harm to the children in the father’s care must outweigh this consideration.
(e) practical difficulty and expense
Both parties reside in the Suburb B region. In the event time between the children and the father was to resume, there are no practical difficulties in terms of travel. Were the children to resume spending time with their father, orders would need to precisely define handover arrangements, to ensure that X and Y were protected from any further conflict between their parents.
(g) the children’s maturity, sex, lifestyle, background and any other relevant characteristics
X is presently 11 years of age and Y is 8 years of age. X appears to be progressing reasonably well at school and impressed Ms G as an engaging and open child. Y is described by both parents and by Ms G as a shy child. Her 2018 school report indicates that she is continuing to develop confidence in the classroom but Y may still resort to ‘silence’ when she is feeling uncertain or uncomfortable.[48]
[48] Father’s trial Affidavit filed 24 September 2018, Annexure H-10, O Primary School midyear report 2018 for Y
There are no other specific characteristics in relation to either child that affect my determinations.
(j) any family violence; and
(k) any family violence order that applies
I refer to the earlier discussion regarding family violence and my findings in that regard. I will not repeat that discussion here.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
It is trite to say that ongoing litigation between parents has a detrimental effect on their children. The Court hopes that the parties will consider these Reasons for Judgment and accept these findings, but that is ultimately a matter for each parent. I stress that the Court has not made a finding that either child has been abused by the father, but in light of the disclosures made by X and Y, there remains an unacceptable risk of harm for the children in the father’s care.
Conclusion
Parental responsibility
In light of the above discussions and the findings I have made in relation to the risk of abuse and family violence, I conclude that the presumption in favour of equal shared parental responsibility does not apply. Even if the presumption did apply to the parties, the lack of trust and mutual respect between them would make any future co-parenting communication very difficult, if not impossible.
The mother provides a safe, secure and loving home environment for X and Y and it is in the children’s best interests that they remain living with her. I am satisfied that X and Y have not been threatened or abused by their mother and are not at risk in her care.
The mother will continue in her role as the children’s primary caregiver and accordingly it is appropriate that an order for sole parental responsibility be made in her favour. I am confident the mother will continue to exercise her parental responsibility appropriately and in the best interests of X and Y.
Children’s time with the father
The situation regarding the children’s future relationship with the father is more complex. I have concluded that there is an unacceptable risk that X and Y may be exposed to harm if they were to spend unsupervised time with their father. Nonetheless the Court must consider whether it is in the children’s best interests that they have the opportunity to re-establish some ongoing relationship with the father, even if only on a supervised basis. Obviously the presence of a supervisor would ensure the children are not exposed to any violent or abusive behaviour by their father, but any arrangements would also need to provide an emotionally secure environment for the children.
X and Y have resisted spending any supervised time with their father. The father argues that the children are rejecting him because they have been ‘brain-washed’ by the mother, but I disagree. Ms G noted that “When the children spoke about the father and the alleged sexual and physical abuse they showed spontaneous and congruent affect and their presentation was consistent with their words”.[49] Ms G is an experienced family consultant and is well placed to identify whether children are being influenced or manipulated. She acknowledged that the children may be aware of their mother’s negative view about their father,[50] but that is a far cry from the mother coaching or ‘brain-washing’ the children.
[49] Family Report, para. 136
[50] Ibid, para. 135
Supervised time would provide an opportunity for X and Y to have some level of relationship with their father, but that must be weighed up against the emotional cost to their family unit. The mother would be unable to support any regime of supervised visits, given her concerns about the children’s welfare. Both children have made disclosures of abuse by their father. They have rejected any opportunity to spend time with him.
Ms G reported that X described the family assessment process as “…being difficult for him as it brought up memories and said that he could not then get to sleep at night because he thinks of his father and remembers him throwing him against the door.”[51] An attempt at re-unification counselling is likely to be equally difficult for X.
[51] Ibid, para 89
I conclude that the prospect of engaging in re-unification counselling or spending supervised time with their father is likely to be emotionally destabilising for the children, rather than be beneficial for them. X and Y may feel that their voices have not been heard, or have been ignored, an outcome which could be deeply disempowering for the children.
Four years have passed since X and Y last spent any time in their father’s care. The father denies all allegations of abuse, but this Court has concluded that there is an unacceptable risk of harm if the children were to spend unsupervised time with him. X and Y have resisted every opportunity to spend supervised time with their father. Given the Court’s findings, and the children’s attitude, I conclude that it is not in the children’s best interests to spend time in the father’s care, whether supervised or unsupervised.
I am acutely aware that this will be a painful and distressing outcome for the father, but my obligation is to make orders that are in the best interests of the children. X and Y are settled in their mother’s care. She has sought counselling for the children when required and has actively engaged with their school to ensure the children receive support, when required. I am satisfied that the mother is able to provide for the children’s care needs throughout their childhood.
In reaching this conclusion I acknowledge that losing any relationship with their father will have an emotional impact upon the children, even in circumstances such as apply here. Ms G acknowledged that there may be negative long term emotional consequences for X and Y. The loss of a primary parenting figure may affect their capacity to maintain their own adult relationships as they grow older and they may struggle to deal with loss and/or conflict within those relationships. I have taken this into account in my assessment of the children’s best interests. X and Y may experience a sense of loss at the absence of any relationship with their father, but I conclude that this concern is outweighed by the need to ensure their long term safety and welfare.
Their sense of loss may be mitigated by receiving occasional cards, letters or gifts from their father and I will make an order in that regard. Ms G recommended that any such gifts should be sent to the children well prior to the relevant birthday or celebration, to avoid any triggering of traumatic memories on special occasions and I agree that this is an appropriate, child-focussed order. I consider that two weeks prior is appropriate.
Ms G also recommended that the children spend regular time with the paternal grandmother, however this recommendation was conditional upon the paternal grandmother and the mother engaging with an experienced post-separation counsellor. I note that the mother and paternal grandmother engaged politely with each other during the family assessment, but the trial process disclosed a deeper level of distrust and hostility between them.
I conclude that any attempt to maintain contact with the paternal grandmother would be fraught with difficulty and I decline to make an order in that regard. It is appropriate that the paternal grandmother also be permitted to send cards and gifts to the children, however.
It is possible that either child may wish to re-establish contact with their father in the future, notwithstanding their current attitude. That option should remain open to the children, which will require the mother to facilitate that communication, if requested by X or Y. How any such communication would occur will depend upon the children’s age and maturity at that time.
I am satisfied that the proposed orders are in the best interests of X and Y. I now make orders as published at the commencement of these reasons.
I certify that the preceding one hundred and sixty-eight (168) are a true copy of the reasons for judgment of Judge Kelly
Date: 20 September 2019
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