Howlett and Morris
[2016] FamCA 710
•26 August 2016
FAMILY COURT OF AUSTRALIA
| HOWLETT & MORRIS | [2016] FamCA 710 |
| FAMILY LAW – CHILDREN – Extent and conditions on the children’s time with the father – The father and his partner’s aberrant conduct during and after the parents’ relationship – The eldest child’s behavioural issues – Where the mother has a firm belief that there has been actual sexual abuse – Where the Court cannot be satisfied that the father perpetrated actual sexual abuse on the child – Where there is a strong inference that the child has suffered trauma by reason of inappropriate exposure to the activities of the father and his partner – The father and his partner’s mental health – Expert opinion – Where the mother will continue to be the children’s primary carer and the issue of her anxiety – Orders where the risk from the father’s partner is removed and the father’s time progresses gradually over period under supervision of the paternal grandmother – Where all parties sought orders for the mother to have sole parental responsibility – Mother to keep the father informed of decisions. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode[2006] FamCA 1346 |
| APPLICANT: | Mr Howlett |
| RESPONDENT: | Ms Morris |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
| FILE NUMBER: | SYC | 4345 | of | 2013 |
| DATE DELIVERED: | 26 August 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 4, 5, 6, 7 and 8 April 2016 and 21 and 22 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Cairns |
| SOLICITOR FOR THE APPLICANT: | Mason Mia & Associates – Solicitors & Advocates |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | Mills Oakley Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms De Vere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
Orders
That the mother, Ms Morris, born on … 1985, shall have sole parental responsibility for the children J born on … 2011 and P born on … 2013.
That notwithstanding Order 1, the mother shall:
(a) Keep the father, Mr Howlett, born on … 1984, informed in relation to significant medical issues affecting the children, or either of them and shall give any necessary authority to enable the father to liaise directly with any specialist medical practitioner; and
(b) Include the father’s details on the enrolment/information forms for any preschool and/or school attended by the children and shall provide any necessary authority to enable the father to receive directly copies of the children’s school reports and school photograph order forms.
That the children shall live with the mother.
That the father, in the absence of written consent from the mother, is restrained from:
(a) Permitting Ms X being present when he is spending time with the children;
(b) Permitting Ms X attending changeover at the commencement or conclusion of his time with the children;
(c) Permitting, facilitating or encouraging any form of communication between Ms X and the children while the children are spending time with their father; and
(d) Permitting, facilitating or encouraging any form of communication between Ms X and the mother.
That the mother is restrained from making arrangements to schedule activities or events which would take place in the father’s time as set out in Order 7, unless the father’s prior consent has been obtained.
That the mother is restrained from enrolling the children in extra-curricular activities which may occur in the father’s time, without the father’s prior consent in writing such writing to include SMS or email communication provided that if the father gives consent to enrolment in extra-curricular activities, the father shall ensure that the children attend those activities which may occur in his time, regardless of whether the children would otherwise be spending time with him in Town E.
That unless otherwise agreed between the parents in writing such writing to include SMS or email communication, the children shall spend time with the father:
(a) For three months following the date of these Orders, from 11.00 am until 2.00 pm each alternate Sunday (coinciding with the father not being required to work) and this time shall occur in the Suburb T area and at all times be supervised by the paternal grandmother provided that the paternal grandfather is welcome to attend while the children are spending time with their father but the father shall not permit the paternal grandfather to be the sole supervisor of the father’s time with the children;
(b) Thereafter and until the younger child commences school from 10.00 am until 4.00 pm each alternate Sunday (coinciding with the father not being required to work) and this time shall occur in the Suburb T area and at all times be supervised by the paternal grandmother provided that the paternal grandfather is welcome to attend while the children are spending time with their father but the father shall not permit the paternal grandfather to be the sole supervisor of the father’s time with the children;
(c) From the time the younger child commences school each fortnight as follows:
(i)In the first fortnight period from 10.00 am until 4.00 pm Sunday (coinciding with the father not being required to work) with such time to occur thereafter each alternate fortnight and this time shall occur in the Suburb T area and at all times be supervised by the paternal grandmother provided that the paternal grandfather is welcome to attend while the children are spending time with their father but the father shall not permit the paternal grandfather to be the sole supervisor of the father’s time with the children;
(ii)In the second fortnight period from 11:00 am Saturday until 3:00 pm Sunday (coinciding with the father not being required to work) with such time to occur thereafter each alternate fortnight and for the purpose of this Order the children shall sleep overnight at the home of the paternal grandparents in Town E and the time shall be supervised by the paternal grandmother provided that the paternal grandfather is welcome to be present while the children are spending time with their father but the father shall not permit the paternal grandfather to be the sole supervisor of the father’s time with the children;
(d) In the holidays at the end of Term 4, commencing with the holidays at the end of the younger child’s first year at school from 11.00 am on the second and fourth Saturdays until 3.00 pm on the following Mondays provided that the children shall sleep overnight at the home of the paternal grandparents in Town E and the time shall take place substantially in the presence of the paternal grandmother;
(e) In the holidays at the end of Terms 1, 2 and 3, commencing when the younger child is in Year 1, the father’s time as set out in Order 7(c)(ii) shall extend to 3.00 pm Monday and for the purpose of this Order the children shall sleep overnight at the home of the paternal grandparents in Town E and the time shall take place substantially in the presence of the paternal grandmother.
That for the purpose of Orders 7(a), (b) and (c)(i) changeover shall take place at the commencement and conclusion of the father’s time at Hungry Jack’s Suburb T unless otherwise agreed between the parents in writing with such writing to include SMS or email communication.
That for the purpose of Order 7(c)(ii) changeover shall take place at the commencement and conclusion of the father’s time at the home of the paternal grandparents at Town E with the mother or her nominee delivering and collecting the children to and from that residence unless otherwise agreed between the parents in writing such writing to include SMS or email communication.
That for the purpose of Orders 7(d) and (e) changeover shall take place at the commencement and conclusion of the father’s time at McDonalds Town W unless otherwise agreed between the parents in writing with such writing to include SMS or email communication.
That in the event that Mother’s Day falls on a day when the children would otherwise be spending time with their father then the children’s time with the father on that weekend shall be suspended provided always that in the event that Father’s Day falls on a day where the children are not otherwise spending time with the father then they shall spend time with the father in accordance with the time provided for in Orders 7(b) and 7(c)(i) as applicable.
That the mother and father shall communicate with each other about the arrangements outlined in Order 7 via SMS or email and shall each respond to any SMS or email within 24 hours.
That the mother shall keep the older child’s appointments with Dr L and thereafter comply with any recommendations of Dr L and any other treating professionals engaged as recommended by Dr L.
That the mother shall engage with Dr V or any other therapist recommended by Dr V for therapy to assist her to manage the issues which were the subject of these proceedings and provide support to the mother about the children spending time with their father.
That the mother and father shall keep each other informed of their residential address and mobile telephone numbers and shall notify each other of any change within 48 hours of such change.
That otherwise the father shall be entitled to attend on such occasions as are relevant to the welfare of the children including occasions relating to the child’s education, religious education, sporting activities and any other extra-curricular activities, whether organised by the mother or otherwise, where the attendance of either or both parents is to be reasonably expected provided that the father shall notify the mother via SMS or email of any intention to attend such events.
That the mother and father are each restrained from:
(a) Denigrating each other or members of each other’s extended family in the presence or hearing of the children or allowing any other person to do so;
(b) Discussing these proceedings or the issues in these proceedings in the presence or hearing of the children, subject to any discussion being necessary for therapeutic purposes; and
(c) Discussing these proceedings or the issues in these proceedings in any social media or allowing any other person to do so.
That the father shall, within 28 days of these Orders, procure a mental health referral to Dr R for the purpose of provision of therapy in relation to the issues raised in the report of Dr Q and for the purpose of this Order, the father is permitted to provide Dr R with a copy of Dr Q’s report and a copy of these Orders and provided that in the event that Dr R is not able to provide therapy, the father shall accept and engage with any alternate therapist recommended either by Dr R or the father’s General Practitioner.
That the father shall comply with the recommendations of Dr R or other therapist as recommended and shall continue with therapy until the therapist considers that such therapy is no longer required.
That the father is permitted to invite Ms X to participate in the therapy.
That the mother shall use her best endeavours:
(a) Not to permit or encourage the children, or either of them, to refer to her partner as “dad” or any other name which implies that her partner is the father of the children; and
(b) Not to permit any other person to so refer to her partner.
That the appointment of the Independent Children’s Lawyer shall continue until 12 months after the making of these Orders and the Independent Children’s Lawyer is authorised to contact Dr L, Dr V and Dr R (or any subsequent treaters or therapists) to ascertain the progress of treatment and/or therapy.
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 Howlett & Morris 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: SYC 4345 of 2013
| Mr Howlett |
Applicant
And
| Ms Morris |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings in relation to the children J (“the older child”) born in 2011 and P (“the younger child”) born in 2013. At the conclusion of the trial the children were aged five and three.
The Litigation
The applicant father commenced proceedings in relation to the children in August 2013. At that time in summary he sought final orders in relation to the children that provided for him and the mother to have equal shared parental responsibility, for the children to live with the mother and for the children to spend defined time with him. He also sought various specific issues orders.
The respondent mother in her response filed on September 2013 sought orders in relation to the children that provided for the mother to have sole parental responsibility, that the mother be permitted to relocate the residence of the children from Town E in the Central West of New South Wales and that the children and spend time and communicate with the father as the court determines.
The proceedings had a short history in the Federal Circuit Court of Australia. On 13 September 2013 an Independent Children’s Lawyer (“ICL”) was appointed to represent the children and interim orders as to the children were made by consent. Those interim orders provided for the children to live with the mother and for the father to spend supervised time with the children at the Interrelate Contact Centre in Town B.
On 18 October 2013 the proceedings were transferred to this Court in the context of there being allegations of inappropriate sexual conduct by the father towards the children.
The mother and father and the children attended a conference with a family consultant on 13 March 2014 for the purposes of a preparation of a Child Responsive Program Memorandum. That Memorandum (Exh C) identified key issues as:
a)The most appropriate arrangements for parental responsibility;
b)Whether the children should be permitted to relocate from Town E;
c)Allegations that the father had sexually and physically abused the older child;
d)Whether the children would be at risk of harm in the father’s care;
e)The most appropriate arrangements for the children to spend time with the father;
f)Allegations regarding the father misusing drugs and alcohol;
g)Allegations that the father was controlling towards the mother; and
h)The nature of the parenting relationship between the father and mother and the impact of this on the children.
Following release of the Child Responsive Program Memorandum and on 18 September 2014 an order was made for the appointment of a Chapter 15 Single Expert. Dr Q, Child and Family Psychiatrist, was appointed. Dr Q’s Single Expert report was dated 30 January 2015 and was released to the parties by order date dated 3 February 2015.
Trial directions were made in relation to the matter on 4 March 2015, noting that the matter would take five days for trial. The matter was finally listed for trial commencing 4 April 2016 and adjourned part heard on 8 April 2016 to 21 July 2016 for two further days of trial.
On adjournment on 8 April 2016 orders were made by consent that permitted to mother to relocate the residence of the children outside the Town E area. She subsequently relocated to reside with her partner in the Suburb T area west of Sydney.
Otherwise on the same day other orders and notations were made as follows:
6.That within seven (7) days of the date hereof the parties shall make application to the [T] Children’s Contact Centre and do all things as shall be necessarily required by the Centre to facilitate the children’s time with the Father pursuant to orders made 13 September 2013 to occur at such Centre.
7.That upon a place becoming available at the [T] Children’s Contact Centre the Father’s time shall occur at such Centre in lieu of Interrelate with the parties to contribute equally to the costs of such supervision.
8.That within seven (7) days hereof the Mother shall attend upon [the older child’s] treating general practitioner and obtain a referral for [the older child] to Dr [L] Specialist Paediatrician for assessment of behavioural issues and to thereafter comply with any recommendations of such treating professional/s.
9.That the Mother shall use her best endeavours so as to not allow or encourage the children or either of them from referring to her fiancé [Mr Z] as “dad” or to permit any other person to so refer to him in the presence or hearing of the children or either of them and she shall use her best endeavours to ensure that the children do not continue to refer to [Mr Z] as “dad”.
IT IS NOTED THAT:
A.On the adjourned date it is anticipated that oral evidence from [Ms Y] will be adduced and that the Single Expert Dr [Q] will be available for cross examination in relation to her report with Dr [Q’s] evidence not to commence until 10:30am on 21 July 2016.
B.The court today has required a transcript of a portion of the oral evidence in these proceedings and that transcript will be made available for the Independent Children's Lawyer to provide for the consideration of the Single Expert so as to hopefully limit to some extent the scope of her oral evidence on the remaining days of the trial.
Pending the further trial days transcripts of the oral evidence of the father and his partner thus far in the proceedings were made available to the Single Expert.
Judgement was reserved on 22 July 2016.
Documents relied on
The father relied upon:
a)His trial affidavit filed on 9 March 2016;
b)The affidavit of the paternal grandmother Ms H filed 18 March 2016; and
c)The affidavit of his partner Ms X filed 7 March 2016.
The mother relied upon:
a)Her trial affidavit filed 8 March 2016;
b)The affidavit of the maternal grandmother Ms M filed 8 March 2016;
c)The affidavit of the mother’s sister Ms K filed 7 March 2016;
d)The affidavit of the mother’s partner Mr Z filed 7 March 2016;
e)The affidavit of Ms N, psychologist, filed 7 March 2016; and
f)The affidavit of Ms Y, social worker, filed 11 September 2013.
The major issue
Ultimately it was common ground that the mother should have sole parental responsibility for the children and that they should reside with her.
The significant issue at trial was the risk presented to the children in terms of time with the father and in particular the risk to the children if the children come into contact with the father’s partner.
Context
The mother and father are both 31 years of age.
The mother at trial was engaged full-time caring for the children although she is a qualified childcare worker. The mother is engaged to her partner.
The father at trial was employed full-time at a retail store. He is in a de facto relationship with his partner Ms X who is aged 24. It appears that they plan to marry. The father has a current child support obligation of $548 per month. Ms X works in a childcare centre in Town E.
The parties commenced cohabitation in September 2006 and married in 2009. They separated on 9 February 2013.
The subject children are the only children of their relationship. At the time of separation the older child was just two years of age and the youngest child was not born until three months after separation. The eldest child at present attends preschool at Suburb T two days per week and the mother proposes that he commence school in 2017. The youngest child also attends the same preschool.
After the birth of the eldest child the mother returned to work part time in retail doing evening work. The maternal grandmother provided some assistance in care for the child at her home. The days that the mother worked were irregular but her working hours were usually between 5.00 pm and 9.00 pm in the evening. Apart from assistance rendered by the maternal grandmother, the father cared for the child at the parties’ matrimonial home in Town E whilst the mother worked.
In early 2012 the mother obtained extended working hours. Her shift work was irregular. Some weeks she worked Sundays from 9.00 am to 7.00 pm and on other occasions she would only work for two or three hours. By March/April 2012 she was working regular shifts each Sunday from 9.00 am to 7.00 pm. On occasions the child was cared for by the maternal grandmother but otherwise by the father.
Concerning developments
The mother subsequent to the birth of the eldest child observed changes in the father’s behaviour. He began to show poor hygiene and would sleep for extended periods when he was not working. Mostly he left the care of the child to the mother even though he took some time off work on paternity leave following the birth of the child.
By mid-2012 the mother began to notice that the father had little interaction with the child notwithstanding that the child sought his attention.
The father’s relationship with the mother commenced to change. The mother asserts that he was aggressive towards her. On 28 December 2012 she found a packet of open condoms in his car. Two days later she found him on a second mobile phone that he had communicating with a young girl from his place of employment. That girl is now his present partner Ms X. That evening the father left the matrimonial home to stay at his parents’ home.
The father sought medical help from his GP and was placed on Effexor 150mg daily for depression from 16 January 2013. He was referred to Dr R, psychologist, in Town E. The father somewhat ingenuously did not tell his psychologist of his long term infidelity and that relationship being conducted in the matrimonial home with the child present.
By mid-January 2013 the parties had resumed their relationship with the mother at that time expecting the birth of their second child some months later.
On 27 January 2013 the eldest child was left in the care of the father for a period whilst the mother slept. The mother awoke to find the child standing next to her bed smelling of poo, he had it all over his hands. The mother walked out and found that there was a dirty nappy and poo all over the kitchen walls and the father on the lounge. To the mother’s observation the child was very hyperactive and anxious.
On the afternoon of 31 January 2013 whilst the father was to care for the child the mother returned home to find the child waiting for her at the front door. The house was a mess and she found the father in bed crying. The mother made an appointment for the father to attend upon a medical practitioner urgently. Later that afternoon the father handed to the mother a handwritten letter that comprises Annexure C to her affidavit. From the letter it is evident he was referring to his depression, being unmotivated, being a horrible person and having done a bad things that he knew he shouldn’t do. He wrote that he could not offer the mother comfort because he didn’t know how.
The next day he sent to the mother a text message that contained:
…there are things I have buried inside me for years things I have bottled up and I am terrified of opening those wounds.
He sent to the mother similar text messages in the following days.
The eldest child was left in the care of the father on 5 February 2013 while the mother was absent from the home for a period. On returning to the home the mother observed that the child’s behaviour was out of control, that the child appeared stressed, anxious and hyperactive, randomly throwing things around the room and lashing out at her. The father could offer no explanation for the child’s behaviour.
The parties separated on 9 February 2013 with the mother remaining in the matrimonial home.
On 10 February 2013 the mother found in a notebook a note written by the father. The note was in foul and disgusting language concluding with:
…get your fucking fist shove it up your fucking cunt and fuck yourself because I do not want anything to do with you any more what have I become, fucking up all I have won everything I worked hard for is all gone.
On 11 February 2013 the father attended at the matrimonial home, throwing plastic crates and CDs and DVDs across the room in the direction of the mother. The father then left the home. Later, on 18 February 2013 the father without the mother’s knowledge returned to the home gaining access through a toilet window. On 6 March 2013 an interim apprehended domestic violence order was made for the protection of the mother. In December 2013 when the mother and father had in effect no contact with each other for an extended period the ADVO was withdrawn and dismissed.
On 14 February 2013 the father’s sister informed the mother that the father had been seeing Ms X for some time. On 16 February 2013 the father’s sister informed the mother that the father had been staying regularly at Ms X’s house.
On 15 April 2013 the mother met with the father and spoke about a number of issues. She confronted him with her knowledge that Ms X had been at the home with him while she was at work. The mother informed the father that the child had been saying sexual things and acting out sexually. The father informed the mother that he agreed to having supervised visits with her and requested that Ms X be allowed to be present. The mother was resistant to such an arrangement. The father said to the mother “she ([Ms X]) is very jealous and worried about you”. The father then said concerningly to the mother “I know I have passed on the cycle of abuse to [the child J]. I am seeing my psychologist about it and I’m starting to get better.”
Surprisingly the father was of the view that the mother had known of his affair and conduct since 30 December 2012. He conceded that he had been having an affair with Ms X since January 2012 when the child was 11 months old.
The child continued to exhibit various sexual behaviours including rubbing himself against the mother, trying to kiss her with an open mouth, trying to touch her vagina and anus. Such behaviour continued for an extended period after separation.
Up to mid-April 2013 the mother facilitated some time between the child and the father at a park supervised by her. Thereafter the mother was reluctant to allow time. On 1 May 2013 she told the father that because of the child’s behaviour he needed to go back to his psychologist and tell the truth about “what you and she did to [the child J] and he can help you…”. The father never did.
There was correspondence between solicitors about the child’s time with the father. There was no agreement until October 2013 for supervised time to commence.
The older child’s behaviour and subsequent interventions
The mother commenced to observe behavioural changes in the older child in mid-2012. The child became more emotional and angry and would hit, pinch, punch and yell. He was very clingy to the mother and would cry for her. The child became distressed when the mother was due to leave the work.
In October 2012 the child commenced to refer to his penis as a “cock”, this reference used by the father. By November 2012 the child commenced to exhibit fears of having a bath or shower and attending swimming lessons. On one occasion the child said to the mother when she was drying him “that’s the girl’s towel, can’t use it mummy that’s the girls towel…”
By Christmas 2012 the mother’s concerns in relation to the child’s emotional well-being were heightened. In early 2013 she commenced a diary as to her observations of the child’s behaviour.
In February 2013 and thereafter the eldest child said various things to the mother including:
…girl get in shower,
…girl cup tea, girl make it,
…big cock,
…girl pinch,
…girl tits,
…girl pinch. pinch me,
…Daddy cock,
…girl shower,
…Daddy pinch me,
…fuck [J],
…man sucks, fuck bottom,
These were words the mother had not heard the father use in the presence of the child.
On 26 March 2013 the mother reported the child’s “disclosures” made on 23 March 2013 to the Child Protection Hotline. The referral to the NSW Police was rejected and the matter was referred to Community Health Town E (Exh U). The mother was referred to the local Community Health (Exh T). The mother’s engagement with Community Health revealed more fulsome complaints about the child’s disclosures and behaviours through to August 2013 notwithstanding the child’s time with the father had ceased months before.
On 28 March 2013 the child attended on Ms Y, senior social worker, at Community Health. She informed the mother that she would be notifying the Department of Family and Community Services as to her concerns. The child attended on Ms Y until late June 2013. Ms Y was not required for cross examination as to her affidavit and report. The report is clearly indicative of the child being exposed to inappropriate sexual conduct or indeed being the subject of physical and or sexual abuse.
The mother thereafter sought that any time between the child and the father be supervised. The child’s behaviour became more concerning and the mother made a further report to NSW Police and the Department of Family and Community Services in May 2013. The Department did not further interview the child by reason of his age.
The mother engaged the child in “sexual assault counselling” play therapy on referral from the Department with Ms A from Community Health from July 2013 until September 2013 (Exh T). To Ms A the child made no adverse disclosures notwithstanding the mother continually informing Ms A as to her own observations of the child’s behaviour outside interview.
The mother provided a lengthy typewritten report to the child’s paediatrician in March 2014 and the child was referred by the paediatrician to Ms N, psychologist. The child commenced engagement with Ms N (Exh R) in April 2014. The mother provided to Ms N updating written notes and emails as to her asserted observations of the child’s behaviour. By September 2015 the mother had engaged Ms N in the issues of her proposed relocation to Sydney and her distress as to the Facebook entries referred to below. Surprisingly the mother was usually present during the therapy sessions, with the child on occasions being aggressive towards the mother or engaging in destructive behaviour.
The mother has also acted inappropriately at times in interview with the child and Ms N, seeking to have the child recall alleged conduct by the father many months after the alleged events. The child was not seen by Ms N again until February 2016. Her oral evidence was supportive of further investigation as to the child’s underlying issues perhaps with paediatric review and psychological assessment. She conceded that the child’s presentation was consistent with exposure to trauma or the child being highly anxious.
The mother has not herself sought counselling in relation to the issue of sexual abuse even though there were suggestions that she was overly engaged and enmeshed in the issue (see Exh N: Department of Family and Community Services.) The mother was told in interview by the Department in May 2013 that any further interview of the child would in itself be abusive. Concerningly, she sought to attribute blame on the father for the child suffering a broken leg in August 2013 in a trampolining accident when in her care when the father had no contact with the child for months beforehand.
Otherwise the mother kept and continued to keep detailed diary notes of the older child’s alleged behaviour, his spoken words and his interaction with others including the younger child in an almost obsessive way.
The father’s supervised time
The father commenced agreed supervised visits in October 2013.The father’s time with the children has been regulated by court orders since late 2014. There are no adverse comments as to the father’s time made by the Interrelate workers. Yet the mother asserts difficulties in the child’s behaviour both before and after Interrelate sessions, although conceding with her experience as a childcare worker that children do pick up on the actions, reactions and nerves of a parent. She did “feel that they were stressed to go there”.
Otherwise the mother has facilitated time between the children and the paternal grandparents in her presence with that time continuing up to hearing. The mother reluctantly conceding that day only time for the children with the father in the presence of the paternal grandparents would allay significantly her concerns and give some normalcy to the children’s relationship with the father.
The paternal grandmother gave oral evidence as to her willingness to supervise the father’s time if ordered by the Court. It is accepted that she would be a suitable supervisor as required.
Following the commencement of supervised time with the father in October 2013 the child, asserts the mother, exhibited concerning behaviours: he was anxious, hypervigilant and aggressive. Yet to the mother’s observations his behaviours began to improve thereafter especially after he commenced preschool attendance in 2015 (Exh J and M).
In oral evidence the mother could see no positive benefit in the children having a relationship with the father notwithstanding over two years of supervised time. She asserted that “when they are old enough, they can make their own choice”. The mother also saw no issue in the older child referring to her partner as “Dad” because “he wanted to”.
The conduct of the father and Ms X
The father concedes his sexual relationship with Ms X, that he described as “intense”, commenced in January 2012 in the matrimonial home, with Ms X there on occasions that the mother was at work. Ms X says she was at the home several days a week and Sundays most weeks.
Such conduct was a staggering breach of trust by the father.
The child J was 11 months of age and walking at the beginning of their relationship with the father describing him as active and interested. Yet the father did not see the presence of another woman on a regular basis as confusing for the child, notwithstanding the child called Ms X “mum” on one occasion. Ms X conceded that when at the home she fed the child and played with him.
The confusion in the child’s mind must have been overwhelming.
The father acknowledged, somewhat superficially, that it was understandable that the child would have issues in 2012/2013 with Ms X in the home, the separation and a new baby brother on the way.
He asserted that his conduct was because of depression and he not thinking clearly and acknowledged that his conduct hurt his son.
The father sought to deny that the child was awake when they had sex or engaged in sexual activity. He asserted that Ms X had only showered at the home on one occasion in 2012. The strong inference is that such was not the case.
In late April 2013 it was reported to the mother that the father and Ms X had been having sex in the shower at the matrimonial home in front of the child who was made to touch the father’s genitals. As expected this further heightened the mother’s concerns as to what may have been happening in her home during her absence and provided to her a pathway for an explanation as to the child’s behavioural aberrations.
The father denies any suggestion of inappropriate conduct with, to or in the presence of the child. Yet in his oral evidence, when pressed, he conceded that that the child may have seen things that the father was not aware of. Ms X asserted that she had “no memory” of the child ever being present during sexual activity.
Thereafter the mother became aware of various Facebook posts by both the father and Ms X on their respective Facebook pages. The numerous posts are reproduced in the affidavit of the maternal grandmother. The posts are described by the mother as very disturbing, confronting involving explicit sexual and violent content particularly relating to children. Some of the posts by Ms X are abusive, demeaning and belittling of the mother and infer violence to her.
The posts demonstrate little emotional regulation by the father and Ms X and an alarming lack of appropriate boundaries. The posts continued into 2016 notwithstanding the Single Expert report expressing significant concerns about them in the report in January 2015. The posts were described by the Single Expert as “derogatory of and threatening to the mother”.
These posts were disseminated to many friends of the father and Ms X as well as to each other particularly in the community in which they lived. Some posts came to the mother’s attention as they were sent to her by her own friends and acquaintances in the town.
The father never disapproved of Ms X’s posts, saying he enjoyed the same material as her. She has, he says, a right to post what she wants.
Notwithstanding the father being aware of the mother’s offence at the various Facebook posts well before trial he did nothing to curb Ms X’s activities, somewhat ingenuously asserting that “she (the mother) was not part of our social group it’s designed to include and they didn’t all target the mother”. Although he said he knew the mother would not take well to the postings and as such there would be a negative impact on her wellbeing.
Ms X in oral evidence seems to have come to the realisation that her posting activities did nothing to help the father’s case and offered the ingenuous view that she now regretted “some of them”.
Concerningly the father acknowledges that he and Ms X are committed to being together and that she has uncomplimentary views of the mother. The father concedes that Ms X is “intensely concerned” about the parenting issues saying to the Single Expert “we’ve missed out…they are doing everything to keep us out.” Ms X acknowledged that she spoke for both of them on interview with the Single Expert.
To the mother’s concern Ms X had contacted the elder child’s preschool in February 2016 enquiring as to any out of area enrolments. At this time the mother was still mainly residing in the Town E area with the older child attending the T Preschool one day per week. Ms X did so she conceded to “catch out” the mother who she thought had relocated to Sydney without consent.
Yet the father conceded that Ms X was of the view that “they have done nothing wrong”. In oral evidence Ms X agreed that she had no regard to the sensitivities of the mother. She concerningly suggested that she was a victim of the mother’s allegations and that the mother would be “subject to Karma” in the future.
In a remarkable lack of insight by Ms X she attributed any need for her to be excluded from the father’s time with the children to firstly the need for the children’s relationship with him to strengthen and secondly the mother’s concerns about her use of social media. Otherwise she could see nothing that she had done that was wrong.
Her ongoing engagement with the children into the future is at best problematic. Should the father pursue a relationship with her it may need to be that such relationship does not bring her into contact with the children without the informed consent of the mother.
Mental health issues: the father and Ms X
The father’s psychological intervention is referred to above. He had not seen any mental health professional since September 2014 and at trial was on no medication. He described his long term depression as his “deep dark secret”.
The father was at the time of separation in January 2013 prescribed Effexor 75mg for his depression by his GP and he was referred to Mr R psychologist. His dose was later increased to 150mg a month later (Exh K). His dose was reduced to 75mg in March 2013 when he complained that he could not ejaculate. This led to his later complaint that he was “all over the place” and in May 2013 his dose was again increased to 150mg.
He ceased taking his medication in September 2013 by which time he was on 50mg per day. He did not seek advice before he did so.
The father agreed that he had told the mother he had no feelings for her or the child J. He only was having feelings for the child after separation and with treatment for depression.
The father conceded that Ms X had raised with him his own use of pornography, she telling her psychologist that it precipitates in her low mood, low self-esteem, and trust issues.
The father at trial was aware that Ms X suffered from depression and was on medication and was seeing “someone at [E] Psychology” with her medication prescribed by a Dr O. He was not sure of her “full condition” and not sure if the Single Expert was told of her “difficulties” as a teenager. The father was not surprised that the Court was looking at Ms X’s mental health particularly as he proposed to co-parent with her. He described her as “on, off and on” her medication.
He acknowledge that he and Ms X had “some fights, nothing serious” in mid-2013 after which time he became aware that she was self-harming, cutting at her legs. The Single Expert was not told of this behaviour although the father conceded it was a serious concern for him.
He conceded that Ms X’s mental health could present a risk to the child.
Ms X in oral evidence said that she had long standing depression with a history of self-harm. She disclosed her earlier sexual abuse by her cousin and earlier abusive relationships to her GP in January 2013 (Exh K). She said she also suffered from anxiety. She was referred to Ms F, psychologist in October 2013 for depression and the father attended some sessions in relation to their own relationship issues. Ms X complained to Ms F about the father’s use of pornography in May 2014.
She had been medicated commencing in August 2013 firstly with Zoloft 50mg and then from February 2014 150mg. In March 2015 she was commenced on 50mg of Pristiq daily for depression and was continuing so at trial. She could not recall what she told the Single Expert about her mental health history. In fact she told the single expert nothing.
Ms X knew the father had stopped his medication and conceded his depression may present a risk to the children.
The parties’ proposals at trial
At trial the mother ultimately sought orders (Exh X) that in summary provided for:
a)The mother to have sole parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time with the father supervised by the paternal grandmother until the youngest child commences to attend school on four occasions each year from 11.00 am to 3.00 pm being the first Sunday in January, April, July and October in each year and that upon the youngest child commencing to attend school on four occasions each year from 9.00 am to 5.00 pm being the first Sunday in January April July and October in each year;
d)That the mother ensure that the father is kept informed of the children’s progress at school by provision of school term reports and school photographs and of any serious medical problems or illnesses suffered by the children; and
e)That during the time the father spends with the children he be restrained from bringing the children into any contact with his partner Ms X.
The ICL sought final orders in the following terms:
1)The mother, [Ms Morris], born on … 1985, shall have sole parental responsibility for the children [J] born on … 2011 and P born on … 2013.
2) Notwithstanding Order 1), the mother shall:-
a)Keep the father, [Mr Howlett], born on … 1984, informed in relation to significant medical issues affecting the children, or either of them and shall give any necessary authority to enable the father to liaise directly with any specialist medical practitioner
b)Include the father’s details on the enrolment/information forms for any pre-school and/or school attended by the children and shall provide any necessary authority to enable the father to receive directly copies of the children’s school reports and school photograph order forms.
3) The children shall live with the mother.
4) The father is restrained from:-
a)Permitting [Ms X] being present when he is spending time with the children
b)Permitting [Ms X] attending changeover at the commencement or conclusion of his time with the children
c)Permitting, facilitating or encouraging any form of communication between [Ms X] and the children while the children are spending time with their father
d)Permitting, facilitating or encouraging any form of communication between [Ms X] and the mother
5)The mother is restrained from making arrangements to schedule activities or events which would take place in the father’s time as set out in Order 7, unless the father’s prior consent has been obtained.
6)The mother is restrained from enrolling the children in extra-curricular activities which may occur in the father’s time, without the father’s prior consent.
a)If the father gives consent to enrolment in extra-curricular activities, the father shall ensure that the children attend those activities which may occur in his time, regardless of whether the children would otherwise be spending time with him in [Town E].
7)Unless otherwise agreed between the parents in writing, the children shall spend time with the father:-
a)For 3 months following the date of these Orders, from 11am until 2pm each alternate Sunday (coinciding with the father not being required to work)
i)This time shall occur in the [Suburb T] area and at all times be supervised by the paternal grandmother
ii)The paternal grandfather is welcome to attend while the children are spending time with their father but the father shall not permit the paternal grandfather to be the sole supervisor of the father’s time with the children
b)Thereafter and until [the younger child] commences school from 10am until 4pm each alternate Sunday (coinciding with the father not being required to work)
i)This time shall occur in the [Suburb T] area and at all times be supervised by the paternal grandmother
ii)The paternal grandfather is welcome to attend while the children are spending time with their father but the father shall not permit the paternal grandfather to be the sole supervisor of the father’s time with the children
c)From the time [the younger child] commences school the father shall spend time each fortnight as follows:
i)In the first fortnight period from 10am until 4pm Sunday (coinciding with the father not being required to work) with such time to occur thereafter each alternate fortnight and to be governed by the provisions of Order 7b)i)-iii)
ii)In the second fortnight period from 11am Saturday until 3pm Sunday (coinciding with the father not being required to work) with such time to occur thereafter each alternate fortnight and for the purpose of this Order the children shall sleep overnight at the home of the paternal grandparents in [Town E] and the time shall be supervised by the paternal grandmother
d)In the holidays at the end of Term 4, commencing with the holidays at the end of [the younger child’s] first year at school from 11am on the first and fourth Saturdays until 3pm on the following Mondays
i)The children shall sleep overnight at the home of the paternal grandparents in [Town E] and the time shall take place substantially in the presence of the paternal grandmother
e)In the holidays at the end of terms 1, 2 and 3, commencing when [the younger child] is in Year 1, the father’s time as set out in Order 7) c) ii) shall extend to 3pm Monday
i)The children shall sleep overnight at the home of the paternal grandparents in [Town E] and the time shall take place substantially in the presence of the paternal grandmother
8)For the purpose of Orders 7) a) b) and c) i) changeover shall take place at the commencement and conclusion of the father’s time at Hungry Jack’s [Suburb T] unless otherwise agreed between the parents
9)For the purpose of Order 7 c) ii) changeover shall take place at the commencement and conclusion of the father’s time at the home of the paternal grandparents at [Town E] with the mother or her nominee delivering and collecting the children to and from that residence unless otherwise agreed between the parents
10)For the purpose of Orders 7) d) and e) changeover shall take place at the commencement and conclusion of the father’s time at McDonalds [Town W] unless otherwise agreed between the parents
11)In the event that Mothers’ Day falls on a day when the children would otherwise be spending time with their father pursuant to Order 7)b), the children shall spend time with their father from 10am until 4pm on the day prior to Mothers’ Day.
12)In the event that Mothers’ Day falls on a day when the children would otherwise be spending time with their father pursuant to Order 7)c), the children shall spend time with their father from 10am until 4pm on the day prior to Mothers’ Day and such time shall take place in the [Suburb T] area.
13)The mother and father shall communicate with each other about the arrangements outlined in Order 7 via SMS and shall each respond to any SMS within 24 hours.
14)The mother shall keep [the older child’s] appointment with Dr [L] and thereafter comply with any recommendations of Dr [L] and any other treating professionals engaged as a consequence of the initial appointment with Dr [L].
15)The mother shall engage with Dr [V] or any other therapist recommended by Dr [V] for therapy to assist her to manage the issues which were the subject of the proceedings and provide support about the children spending time with their father.
16)The mother and father shall keep each other informed of their residential address and mobile telephone numbers and shall notify each other of any change within 48 hours of such change.
17)The mother and father are each permitted to attend pre-school/school events to which all parents and carers are invited but the father shall notify the mother via SMS of any intention to attend such events.
18) The mother and father are each restrained from:-
a)Denigrating each other or members of each other’s extended family in the presence or hearing of the children or allowing any other person to do so
b)Discussing these proceedings or the issues in these proceedings in the presence or hearing of the children, subject to any discussion being necessary for therapeutic purposes
c)Discussing these proceedings or the issues in these proceedings in any social media or allowing any other person to do so
19)The father shall, within 28 days of these Orders, initiate a referral to Dr [R] for the purpose of provision of therapy in relation to the issues raised in the report of Dr [Q]
a)For the purpose of this Order, the father is permitted to provide Dr [R] with a copy of Dr [Q’s] report and a copy of these Orders
b)In the event that Dr [R] is not able to provide therapy, the father shall accept and follow through with any alternate therapist recommended either by Dr [R] or the father’s General Practitioner
c)The father shall comply with the recommendations of Dr [R] or other therapist and shall continue with therapy until the therapist considers that such therapy is no longer required
d)The father is permitted to invite [Ms X] to participate in the therapy.
20) The mother shall use her best endeavours:-
a)Not to permit or encourage the children, or either of them, to refer to her partner as “dad” or any other name which implies that her partner is the father of the children
b) Not to permit any other person to so refer to her partner.
21)The appointment of the Independent Children’s Lawyer shall continue until 12 months after the making of these Orders and the Independent Children’s Lawyer is authorised to contact Dr [L], Dr [V] and Dr [R] (or any subsequent treaters) to ascertain the progress of treatment and/or therapy.
The father at trial sought the following orders:
Parental Responsibility:
1.That the mother have Sole parental responsibility for the children [J] born … 2011, and [P] born … 2013 (Collectively known as “the children”) in all matters except in regards to any change in the children’s living arrangements that may make it significantly more difficult for the children to spend time with the father, whereby the Parents exercise Equal Shared Parental Responsibility for this issue.
2.That the mother shall keep the father informed (via SMS text message in a timely way) about all decisions in regards to her exercise of Parental Responsibility including but not limited to, issues about:
a. The education of the children;
b. The religion of the children;
c. The health of the children;
Live with and spending time:
3. That the children live with the mother.
4.That the children spend time with the father (noting his current work roster) as follows:
a.From the date of these orders until January 2017, such time to arise fortnightly, on the first and third Sunday in a four weekly cycle (when the father is not working) from 11am to 3pm in the Western Sydney area, such time to take place in the presence of the Paternal Grandmother and/or Paternal Grandfather, with changeover to take place at Hungry Jacks, [Suburb T].
b. From January 2017 until January 2018:
i.On the first weekend in a four weekly cycle (when the father is not working) from 11am Saturday to 11am Sunday in the Western Sydney area, such time to take place in the presence of the Paternal Grandmother and/or Paternal Grandfather, with changeover to take place at Hungry Jacks, [Suburb T];
ii.On the third weekend in a four weekly cycle (when the father is not working) from 11am to 3pm Sunday, in the Western Sydney area, such time to take place in the presence of the Paternal Grandmother and/or Paternal Grandfather, with changeover to take place at Hungry Jacks, [Suburb T];
c.From January 2018 until the [younger child] commences primary school such time to arise fortnightly:
i.On the first weekend in a four weekly cycle (when the father is not working) from 11am Saturday to 3pm Sunday in the [Town E] area, such time to take place in the presence of the Paternal Grandmother and/or Paternal Grandfather and at their home, with changeover to take place at McDonalds [Town W];
ii.On the third weekend in a four weekly cycle (when the father is not working) from 11am to 3pm Sunday, in the Western Sydney area, such time to take place in the presence of the Paternal Grandmother and/or Paternal Grandfather, with changeover to take place at Hungry Jacks, [Suburb T];
d.When the [younger child] commences primary school such time to arise fortnightly:
i.On the first weekend in a four weekly cycle (when the father is not working) from 11am Saturday to 3pm Sunday in the [Town E] area, with changeover to take place at McDonalds [Town W];
ii.On the third weekend in a four weekly cycle (when the father is not working) from 11am Saturday to 3pm Sunday, in the Western Sydney area, with changeover to take place at Hungry Jacks, [Suburb T];
iii.During each of the shorter school holidays on a Saturday the father is not working from 11am Saturday to 3pm Monday with changeover to take place at McDonald’s [Town W];
iv.During the Christmas School holidays such time arising on two (2) separate occasions on a Saturday the father is not working from 11am Saturday to 3pm Monday with changeover to take place at McDonald’s [Town W];
v.From 11am Christmas Eve to 3pm Boxing Day every second year commencing in 2019, with changeover to take place at McDonald’s [Town W];
vi. Such other times as agreed between the parties.
NOTATION:
The Court notes that references to the father’s work roster are made to his current work roster … where he is not rostered to work on one weekend each fortnight;
Communication:
5.That all communication between the parents regarding the children’s ongoing care and welfare and spending time arrangements shall take place via SMS text message and the other parent shall ensure they reply promptly and in any event within 24 hours.
6.That the father shall advise the mother promptly of any change in working rosters that effect his compliance with orders.
7.That each parent (or their nominee known to the children) shall be prompt to changeover and shall have due regard to the weather and road conditions when travelling and in the event that a parent is running late to changeover, they shall advise the other parent via SMS text message promptly.
8.That the father shall communicate with the children on one occasion each week via telephone or Facetime/Skype on such days as agreed, but failing agreement between 6.30-7pm each Wednesday, with the father to initiate the phone call to the mother’s mobile phone and the mother shall ensure that the children are afforded privacy and the phone is not placed on speaker phone.
9.That on each child’s birthday (being … and …) the father shall be permitted to communicate with the birthday child via telephone or Facetime/Skype at 8am on these days, with the father to initiate the phone call to the mother’s mobile phone and the mother shall ensure that the children are afforded privacy and the phone is not placed on speaker phone.
10.That the father (and members of his Paternal family) shall be permitted to have further telephone or Facetime/Skype communication with the children if he is not otherwise spending time with them otherwise, as follows:
a. On Father’s Day at 10am;
b. On Easter Sunday at 10am;
c. On Christmas Day at 10am;
with the father to initiate the phone call to the mother’s mobile phone and the mother shall ensure that the children are afforded privacy and the phone is not placed on speaker phone.
11.That the father’s time under orders 4 is suspended on the weekend on which the [day] known as Mother’s Day arises.
Non Denigration:
12.That each parent shall not denigrate the other parent (or their family or partner) in the presence or hearing of the children or use their best endeavours to ensure that no third person denigrates the other parent (or their family or partner) in the presence or hearing of the children or via any social media;
Exchange of information:
13.Both parents shall keep each other informed of their residential address and contact mobile telephone number and shall advise each other of any change in these details seven (7) days prior to any such changes arising.
Health and Medical:
14.That each of the parents shall forthwith inform the other parent of any major illness, injury, hospitalisation, medication, medical or other appointment for the children, and shall provide all information as is necessary to the other parent to enable the other parent to be fully informed of the treatment and condition of the children.
15.If there is an emergency in relation to the children whereby they require emergency medical treatment, the other parent is to be notified by SMS text message as soon as practicable and in any event not more than 2 hours after the emergency has come to the attention of that parent.
16.In the event of any of the children being prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the children, any medication or material required for the treatment will be sent along with a description of the condition for which it is required and the appropriate dosage or method treatment.
17.That each of the parents shall advise the other of each medical practitioner that the children may from time to attend, and provide authorities so that the other parent may contact that medical practitioner directly if necessary, and these orders shall be sufficient authority for this purpose.
Counselling and Medical referrals:
18.That within 7 days of these orders, the mother shall attend upon [the older child’s] treating GP and obtain a referral for [the older child] to Dr [L] (Specialist Paediatrician) for assessment of behavioural issues and to thereafter comply with any recommendations of such treating professional/s.
19.That the Father will use his best endeavours to engage with and undertake [Ms X] in therapy therapy in regards to the issues raised in the report of Dr [Q] with Dr [R] (or other treating psychologist as available to them) that leave be granted to the Father’s lawyer to provide the treating psychologist with a copy of the report of Dr [Q] to assist in this therapy as well as the judgement of the Court in this matter.
20.That the mother shall within 7 days of these orders, obtain a referral from her treating GP to access counselling with Dr [V] or other such treating psychologist to assist her with managing her beliefs in relation to [the older child’s] abuse and thereafter comply with any recommendation of such treating psychologist.
Education:
21.That both parents shall, within 14 days of the date of these Orders sign all necessary documents to cause to be forwarded to the other parent, a copy of any child care and/or school reports from any child care centre and/or school that the children may from time to time attend, as well as any photograph Order forms and any other notice(s) relating to the children within 7 days of receiving same, and to permit both parents to attend the school(s) for events involving the children to which parents are invited and/or speak to the teachers of the children concerning their school performance, and these orders shall be sufficient authority for this purpose.
Restraints:
22.That for a period of twelve (12) months or other time as ordered by the Court, from the date of these orders the father is restrained from permitting [Ms X] to have any contact with the children;
23.That the mother be restrained from allowing or encouraging the children or either of them to refer to her partner [Mr Z] or to any other person (except their biological father) as “Dad”, and she shall not refer to [Mr Z] as “Dad” in the presence or hearing of the children or either of them and she shall use her best endeavours to ensure that the children do not continue to refer to [Mr Z] as Dad.
24.That the mother be restrained from changing the last name of the children from [Howlett] (or hyphenating it) and she shall ensure that the children when enrolling the children in an education institution this shall be using this last name and to use her best endeavours to ensure that they are hereafter be known in the community by the name [Howlett]
25.That pursuant to s62B and s65DA(2) of the Family Law Act 1975, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties that adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
NOTATION:
The Court notes that the completion of the Counselling foreshadowed herein is a significant change of circumstances for the purpose of any further Application to the Court.
The Single Expert: Dr Q
The Single Expert’s report by Dr Q was dated 30 January 2015.
The Single Expert’s report (Exh D) concludes as follows:
At assessment it was notable that Ms [X] often spoke for [the father] and impressed as strongly invested in these issues and perhaps providing some of the momentum for these proceedings. It was not clear whether the father’s impetus would be as strong without her influence. Her Facebook postings showed a marked preoccupation with sexual matters and suggest some immaturity, but given her age it is less remarkable that it is with respect to [the father]. The boundary issues have been noted already. Also quite notable was her marked externalising orientation, meaning a propensity to a tribute (sic) responsibility externally, this too may be of some concern in terms of her potential role as a stepparent.
If the court were to determine that there is no risk of sexual harm then it would be reasonable for the children to spend regular time with the father. If they remained in the same location this might be for 2 days each week but if they moved to Sydney that would be difficult to sustain and might have to be restricted to alternate week. I would recommend that they not have separate arrangements and that a graded programme of contact proceed at a pace in accordance with [the younger child’s] developmental stage, on which bases I would not recommend overnight contact until he is aged 3. At that time, if there had been no issues they might progress towards alternate weekends and half the holidays.
If the court were to determine that there is a risk of sexual harm that I would recommend limited and supervised contact, perhaps continuing the present arrangement for now. This cannot continue indefinitely at a contact centre and I would suggest that it then proceeded to time spent at the home of the paternal grandparents, perhaps one day a fortnight. Where there is a risk of sexual harm it is helpful to consider the children are capable of self-protective behaviours at around age 11 and on that basis I would recommend that some form of supervision should continue until then.
I would also recommend that both [the father] and his partner continue with counselling.
Significant issues arose in the context of the oral evidence of the father and Ms X during the trial and the Single Expert was taken to these issues during the course of her cross-examination. The Single Expert was by agreement provided with a copy of the transcript of the oral evidence of the mother, the father and the father’s partner prior to her giving oral evidence.
As to her perception as to the trauma suffered by the child the Single Expert opined:
…but I think it was - it would be very easy to see that the child, for quite a period of time probably - probably quite some months - would have been exposed to what was really a highly sexualised environment. I could understand that the father and his partner might have been oblivious to how much a child of that age can take in. People often - often dismiss a very young child as, "Well, they don't understand. They don't know," whereas children actually do - are very responsive to the environment. They're very responsive to the emotional atmosphere. And that child was - was really being drawn into a secret liaison. And you may think that a child in the second year of life would be oblivious to that, but they're not. And he said things to his mother about the girl, for example. Now, if he's trying to communicate to his mother, and she has no idea what he's talking about, which she didn't for a long time, that's a very - that - that would create an enormous confusion in the child's mind that he tries to explain something to his mother. She's totally not able to understand what he's saying. She had no understanding what "the girl" meant. So the child is in a highly sexualised environment, I would think, where there are probably lots of sexual references being made verbally. I don't necessarily mean any contact with the child. And then the secrecy, and then him trying to communicate to his mother, and his mother not having any idea what he was talking about would all be extremely - extremely confusing and distressing to a child of that age, and create some considerable anxiety. And he would then also develop separate anxiety, not feel safe when his mother left the house.
As to the father and Ms X, Dr Q offered:
And he appeared to be, basically, second fiddle to [Ms Q] in these proceedings, didn't he, in terms of who - what they were wanting to achieve, and the case they were trying to put across to you?
Yes. I think that without - without that impetus, he probably would have been a lot more open to negotiation with the mother.
And you recommended, towards the end of your report, that they - that is, [Ms X] and - at page 37, [Ms X] and [the father] continue with counselling?
Yes.
And it appears, doesn't it, that there are unresolved issues in each of their childhoods that neither has really confronted. Is that your impression, Dr [Q]?
I don't think there's much doubt they're both quite troubled individuals, and they do need some therapeutic assistance?
yes.
…
And would you also want to see something happening in the world of counselling or therapy with both [the father] and [Ms X] before we took an additional step or even a step away from supervision?
I don't think that their difficulties would be dealt with in a 12 month period.
Yes. And given the primary considerations that his Honour must deal with which is first and foremost in my ultimate submission will be the protection of the children from the potential exposure to harm, either physical or psychological harm, wouldn't a safer course be that this caution that you're suggesting should exist for - and it has been suggested it should be used for 12 months or so - extended for, perhaps, a lengthier period and until some form of objective evidence exists about insight and understanding and safety?
I think that might take a long time.
The role of Ms X in the factual matrix of this matter is discussed above. The Single Expert expressed reservations at her ability to prioritise the children’s needs over her own as follows:
Because there's just significant, isn't there, uncertainties in your mind about what may happen if Ms [X] becomes engaged again with the children?
Yes. I think that she has shown - and on her recent evidence, it's apparent still - little insight into these issues.
Yes. Well, she has, effectively, no reflective capacity about the needs of the children, does she?
I think not. She certainly doesn't see her contribution to the difficulties.
and expressed concerns otherwise as follows:
And somebody who suffers from major depression if they are on medication, seeing a counsellor, still engages in self-harm by cutting, that would be a real concern that we actually aren't nearly at the root of what Ms [X's] problems are?
Well, I think that we can have a fair idea what her problems are actually. I think I did have sufficient information to have an assessment - to make an assessment.
All right. And as a preliminary assessment, I understand you to say, what would that be?
I think she has suffered abuse in her developmental years, and that has affected her personality development. And I think that she would suffer from a recurrent depression with - with personality difficulties affecting her capacity for relationships, and also limiting her capacity to control her emotions.
And, in fact, her prolific sexualised postings on Facebook would fall within her inability to limit herself?
Yes, she would have - she would have problems with self - with control of her feelings and impulses.
As to the father’s reflective capacity Dr Q said:
And what do you say about the father's reflective capacity?
It's not good. It's better than Ms [X's] capacity, but I think he hasn't - he hasn't been sensitive to the impact on the children.
Well, more particularly, the older child?
The older child. No, I don't - I think he was oblivious to the impact on the child.
And it's something he's going to have to learn as to the relationship if it's to continue to develop; is that right?
Yes.
The children’s time with the father was considered in the following exchange:
Does the commencement of a more socially structured engagement of full-time school, would that assist in terms of maybe working out some timeframe? In the event that there was a suggestion that, perhaps, the father's supervised time with the children would continue for six or nine months or so from after judgment?
Yes.
That thereafter there would be some cautious day time maybe expanding out just in terms of hours, and then when [the younger child] hits school age and really, sort of, develops much more of, hopefully, a confidence or social capacity, one could look at some very cautious commencement, maybe, of overnight time then. What would you say about that sort of program?
I would suggest that that take place in his parents' home.
Yes?
The home of the paternal grandparents, yes.
But the day time would probably have to happen somewhere in the western area of Sydney because of simply the exigencies of distance. But if there was an overnight time, maybe day time continuing but an overnight time introduced, maybe, once a month or something and then just progress it along?
Mmm.
So you suggest that would happen in the parents' home?
Yes.
Yes. In the absence of Ms [X] - - -?
Yes.
For a period?
Yes.
And that would then take [the older child] up to an age where he would be - well, he's now six?
He's now six, yes. No, he's five actually.
…
That would take him up to about, maybe, eight years of age with him developing a little bit more in terms of reporting capacity in the interests of himself and his little brother, I expect?
Yes.
And that would be when about maybe he would have a commencement of some overnight time. Would that give you some comfort?
Yes, I think if the two children are together, and they're in the home of the grandparents, I think that's a reasonably reliable situation.
Okay. I suppose that's at least, to some extent, a starting framework?
Yes. Yes.
The prospect of a no time with the father order was addressed by Dr Q as follows:
If the outcome of these proceedings is that there is no order for time, how would you see that as impacting on these two children?
I think it's difficult for children to have no contact with their father. Even - even when there is - when there has been harm that we know for sure has taken place, I think some kind of limited contact and understanding of who their father is is important to children. I think that they struggle otherwise always with questions of uncertainty and there's - you can't have a vacuum in the human mind, and they won't have a vacuum where their father is. They will fill that void
Right?
With their own fantasies and, possibly, fears.
…
So the bottom line would be, effectively, some orders for, like, identification type ?
Yes.
Maybe once every six months or every three months or something?
I think at the very least, children need to have some kind of identity contact to, sort of, know who the person is.
Well, the risk of causing - if they don't is that, perhaps, then that missing parent becomes idealised; is that right?
Well, there - there's that risk, that they begin to idealise the absent parent, and sometimes even resent the parent they're living with, and see that parent as responsible for driving the parent away. The other possibility is they become so convinced that the absent parent is such a bad person that they must never have contact with him, and that also is damaging because then the child really identifies a part of himself as bad, "If my father is bad, then I must be bad, too." That also becomes a problem, so it's a really difficult balance. You can't - you can't just extract - extract a parent like that.
As to the question of the exposure of the older child to trauma Dr Q considered that it may stem from four sources:
a)The actual physical or sexual abuse of the child;
b)An exposure to the physical aspects of the sexual relationship between the father and Ms X;
c)The interruption of the child’s appropriate attachment development by reason of the interposed relationship between the father and Ms X;
d)The development of a significant separation anxiety in the child by reason of the previous factor;
and said:
Would it be or would you express a view as to whether, in fact, a roll-up of all of those issues, having regard to what was happening in the matrimonial home absent the mother could well comprise all of the elements of the trauma?
Yes, I think - I think that - that that much we - excluding actual physical sexual assault of the children about which we can't be sure, I think all the other factors are part of the mix, yes.
The parenting pathway
The relevant principles in relation to parenting and interim proceedings are well settled Goode & Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
The discussions above touch upon many of the issues raised by the best interest considerations that are referred to below.
Parental responsibility
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption relevantly does not apply where:
a) There are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s 61DA(2)];
b) …
c) If the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA (4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. If an order for equal shared parental responsibility is made by consent the Court may but is not required to consider equal or substantial and significant time (s 65DAA(6)).
The mother makes significant allegations against the father. There is no doubt that the older child has been subject to trauma by reason of the conduct of the father and his partner as discussed above. The father has long term unaddressed mental health issues. The relationship between the father and mother is poor, being virtually non-existent. A consideration of these issues and the broader best interest considerations below are clearly indicative of the presumption not applying in any event.
Otherwise the mother, father and the ICL sought final orders for the mother to have parental responsibility. An order will be made for the mother to have sole parental responsibility for the children but be required to keep the father informed of her decisions in that regard.
As a consequence it is not necessary to consider the issues of equal time or substantial and significant time save to note that the best interest considerations discussed below are clearly not indicative of any such arrangement.
Best Interests
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92, the Full Court at [118] accepted as appropriate this interpretation by Brown J of “meaningful relationship” and said:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…
The children’s relationships with both parents are overshadowed by the issues discussed above, primarily the overshadowing spectre of the trauma to which the eldest child was exposed to by the behaviour of the father and his partner.
It is common ground that the children will live with the mother. The children’s ongoing relationship with the mother being their primary carer is clearly appropriate and valuable to the children’s settled future arrangements.
Otherwise the mother’s anxiety and enmeshment in the issue of her belief in the sexual abuse of the older child necessitates a cautious approach to the relationship issue of the children with the father.
The Single Expert, as discussed above, is clear about the necessity to maintain the children’s primary relationship with the father in some form. The manner in which the children can have a meaningful relationship with the father is clouded by the mother’s anxiety issues that reflect onto the eldest child in particular and the wider issue of such time being in a protective circumstance for the children.
A “meaningful relationship” with the father appears dependent upon a carefully managed regime that provides a protective circumstance for the children and in some respects a protective circumstance for the father from any further allegations. Such a relationship in the best interest of the children can only be in the absence of the father’s partner Ms X. Ms X brings uncertainty into the mix should she be in contact with the children into future. She suffers from a significant depressive history and has an inability to regulate her emotional response. She is regarded by the Single Expert as having little reflective capacity as to the needs of the children. To them she represents a risk.
Such considerations are indicative of orders sought by the ICL excluding the father’s partner from being in the presence of or being in contact with the children.
Section 60CC (2)(b) – need to protect
This is an overwhelming consideration and must be given priority over issues as to relationship as discussed above. The question is whether there is an unacceptable risk to the children of them spending time with the father.
The mother has a firm belief that there has been actual sexual abuse. The father for his part denies same, as does Ms X.
The mother has been relentless in pursuing the issue with allegations of further disclosures and aberrant behaviour by the eldest child escalating in the months after separation. The mother’s offence at the father’s betrayal of trust in his relationship with Ms X in the family home is patent and ongoing. She has pursued the issue relentlessly.
On balance the Court cannot be satisfied that the father perpetrated actual sexual abuse on the child. There are otherwise other factors indicative of the child being exposed to trauma as identified by the single expert.
There is a strong inference that the child has suffered trauma by reason of inappropriate exposure to the sexual activities of the father and Ms X. Otherwise the child has suffered trauma by reason of the disruption of his appropriate attachment development in circumstances where he must have been bewildered by the regular presence of “another mother” in his home and where there were clearly open displays of affection between the father and Ms X in the child’s presence. Such has in the opinion of the Single Expert also lead to the development of separation anxiety in the child contributed to by the mother’s own clear anxiety issues.
The matters discussed above indicate orders where the risk from Ms X is removed and the father’s time progresses gradually over period under supervision of the paternal grandmother. Such orders will hopefully address the mother’s anxiety issues.
The Additional Considerations: s 60CC(3)
Section 60CC(3) sets out the additional considerations:
a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
b) The nature of the relationship of the child with:
i) Each of the child's parents; and
ii)Other persons (including any grandparent or other relative of the child);
c)The extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)To participate in making decisions about major long-term issues in relation to the child; and
ii) To spend time with the child; and
iii) To communicate with the child;
ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i) Either of his or her parents; or
ii)Any other child, or other person (including any grandparent or other relative of the child);
with whom he or she has been living;
e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f) The capacity of:
i) Each of the child's parents; and
ii)Any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h) If the child is an Aboriginal child or a Torres Strait Islander child:
i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)The likely impact any proposed parenting order under this Part will have on that right;
i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)Any family violence involving the child or a member of the child's family;
k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i) The nature of the order;
ii) The circumstances in which the order was made;
iii) Any evidence admitted in proceedings for the order;
iv)Any findings made by the court in, or in proceedings for, the order;
v) Any other relevant matter;
l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m) Any other fact or circumstance that the court thinks is relevant.
There is no evidence as to any relevant wishes expressed by the children. In the circumstances of this matter they would be in any event afforded little weight.
The nature of the children’s relationships is discussed in the context of the factual matters above. There is no issue that the mother will remain the children’s primary carer. The children at present enjoy a good but supervised relationship with the father by reason of extended supervised time. The children enjoy relationships with extended maternal family and to the mother’s credit the paternal grandparents. It is appropriate that such relationships continue.
The father’s lack of engagement with the eldest child during the relationship was conceded by him. He attests to having no emotional attachment until after separation. The mother has had the responsibility of the children and making decisions as to their lives to date. The primary responsibility to do so will be retained by her. The circumstances of the father’s time with the children to date are dealt with above.
The mother has been the main financial provider for the children. The father in full-time employment has been paying child support as assessed.
The substantive position will be by agreement that the children will remain in the primary care of the mother who now resides with her partner at Suburb T west of Sydney. The only change will be the introduction of changed arrangements for the children to have time with the father.
The parties are now living some hours’ drive away from each other by reason of the mother’s permitted relocation from Town E. There are no practical difficulties involved in the children maintaining relationships with both parents and other extended family.
Matters pertinent to parental capacity are discussed above. The father has little reflective capacity as to the needs of the children nor indeed his own behaviour and its impact on the eldest child. He will, it is hoped, develop a better understanding of what has transpired and the consequences of his own behaviour and troubled mental health into the future.
The mother’s capacity to provide for the children’s needs is to some extent compromised by her belief that actual abuse was perpetrated on the eldest child that results in her own anxiety issues. Regrettably it appears that the eldest child is well attuned to those anxieties. It is hoped that the mother will heed the recommendation of the Single Expert that she obtain some counselling assistance so as to better equip herself for the needs of the children.
The father has demonstrated an inappropriate attitude to the children and his role as parent. He commenced with his initial betrayal of the mother’s trust and then his exposure of the eldest child to inappropriate conduct. His condoning of the virulent postings on Facebook of his partner remains concerning. He will need to be alert to the ramifications his past behaviour into the future.
There was a minor incident of family violence when the father broke into the home. The resultant AVO is no longer in effect.
It is appropriate to seek to make final orders so as to avoid further litigation.
A consideration of the best interest factors in the context of the factual matrix of this matter as discussed in detail above are clearly indicative of orders substantially as sought by the ICL being made. Orders will be made accordingly in the best interests of the children.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 26 August 2016.
Associate:
Date: 26 August 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Procedural Fairness
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Remedies
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Standing
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