Hunt and Richards
[2016] FCCA 779
•11 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUNT & RICHARDS | [2016] FCCA 779 |
| Catchwords: FAMILY LAW – Children – mother seeks increased time with child– possible attempt to pervert the course of justice – possible contempt of court – allegations of abuse by half-sibling – veracity of the father’s evidence – conclusion father coached child – no unacceptable risk to child – restraint on complaints to disciplinary bodies. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA Crimes Act 1914 (Cth), s.43 |
| B & B [Suspension of access] (1988) FLC 91-978 Sigley & Evor [2011] FamCAFC 22 |
| Applicant: | MS HUNT |
| Respondent: | MR RICHARDS |
| File Number: | LNC 702 of 2009 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 17, 18, 19, 23 and 24 February 2016 |
| Date of Last Submission: | 24 February 2016 |
| Delivered at: | Burnie |
| Delivered on: | 11 April 2016 |
REPRESENTATION
| The Applicant appeared unrepresented | ||
| The Respondent appeared unrepresented | ||
| Counsel for the Independent Children's Lawyer: | Ms M Ryan | |
ORDERS
That all previous Orders are hereby discharged.
That the Legal Aid Commission of Tasmania is requested to extend the appointment of the Independent Child’s Lawyer for a period of 12 months from today.
That MR RICHARDS be and is hereby restrained from making any complaint to the relevant disciplinary body of any lawyer or psychologist involved in these proceedings without first applying for and obtaining the leave of this Court to make such a complaint.
That MS HUNT (“the mother) and MR RICHARDS (“the father”) have equal shared parental responsibility for the child Y born (omitted) 2009 (“Y”).
That Y live with the father.
That Y will spend time and communicate with the mother as follows:
(a)During school terms in each fortnight as follows :
(i)In Week One from Friday after school (or 10.00 am if pupils are not attending school that Friday) until 5.00 pm Sunday;
(ii)In Week Two on Friday after school until 5.00 pm on that Friday (or if pupils are not attending school that Friday 10.00 am until 5.00 pm) until Y is spending three consecutive nights with the mother in accordance with paragraph (iii) immediately below, at which time this provisions will cease;
(iii)Two (2) months from the commencement of paragraphs (i) and (ii) above the mother’s time will increase to three consecutive nights per fortnight in Week One from Friday after school (or 10.00 am if pupils are not attending school on that Friday) until the commencement of school Monday (or 5.00 pm if pupils are not attending school that Monday);
(iv)Four (4) months from the commencement of paragraphs (i) and (ii) above the mother’s time will increase to four consecutive nights per fortnight in Week One from Friday after school (or 10.00 am if pupils are not attending school that Friday) until the commencement of school on Tuesday (or 5.00 pm if pupils are not attending school that Tuesday);
(v)Six (6) months from the commencement of paragraphs (i) and (ii) above the mother’s time will increase to five consecutive nights per fortnight in Week One from Friday after school (or 10.00 am if pupils are not attending school that Friday) until the commencement of school on Wednesday (or 5.00 pm if pupils are not attending school that Wednesday); and
(vi)For the purpose of this Order Week One shall be the first week of the relevant school term.
(b)For school holiday periods the spend time arrangements will continue as provided in paragraph 6(a) above and in addition : -
(i)If Y is Ordered to spend two nights per fortnight during school terms with the mother in accordance with paragraph 6(a)(i), then Y’s time with the mother in Week Two will extend by commencing at 10.00 am Thursday;
(ii)If Y is Ordered to spend three nights per fortnight during school terms with the mother in accordance with paragraph 6(a)(iii), then Y’s time with the mother will extend such that her time commences at 10.00 am Thursday;
(iii)If Y is Ordered to spend four nights per fortnight during school terms with the mother in accordance with paragraph 6(a)(iv), then Y’s time with the mother will extend such that it commences at 10.00 am Thursday;
(iv)If Y is Ordered to spend five nights per fortnight during school terms with the mother in accordance with paragraph 6(a)(v), then Y’s time with the mother will extend such that she spends half of each school holiday period with the mother from after school the last day of term;
(c)For Christmas notwithstanding other provisions of this Order :
(i)In odd numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(ii)In even numbered years from 3.00 pm Christmas Day until 3.00 pm 27 December;
(d)For Easter notwithstanding other provisions of this Order :
(i)In even numbered years after school on the Thursday before Easter until 12.00 midday on Easter Sunday;
(ii)In odd numbered years from 12.00 midday on Easter Sunday until commencement of school on the following Wednesday (with the remainder of the week being spent in accordance with the time provisions of these Orders);
(e)On Mother’s Day notwithstanding other provisions of this Order, from 10.00 am until the commencement of school the next day (or 10.00 am if pupils are not attending school on that day);
(f)On Y’s birthday notwithstanding other provisions of these Orders:
(i)In even numbered years from after school the day before Y’s birthday (or 3.00 pm if pupils do not attend school that day) until the commencement of school on her birthday (or 10.00 am if pupils do not attend school that day);
(ii)In odd numbered years from after school on Y’s birthday (or 10.00 am if pupils do not attend school that day) until the commencement of school on the following day (or 10.00 am if pupils do not attend school that day);
(g)On the Mother’s and Z’s birthdays, notwithstanding other provisions of these Orders, from after school on the relevant day (or 10.00 am if pupils do not attend school on that day) until the commencement of school on the following day (or 10.00 am if pupils do not attend school on that day);
(h)Such further or alternate times as agreed between the parties in writing (including by SMS text message).
That notwithstanding other provisions of these Orders Y will spend time with the father as follows :
(a)For Christmas :
(i)In even numbered years from 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(ii)In odd numbered years from 3.00 pm Christmas Day until 3.00 pm 27 December;
(b)For Easter :
(i)In odd numbered years from after school the day before Y’s birthday (or 3.00 pm if pupils do not attend school that day) until the commencement of school on her birthday (or 10.00 am if pupils do not attend school that day);
(ii)In even numbered years from 12.00 midday on Easter Sunday until commencement of school on the following Wednesday (with the remainder of the week being spent in accordance with the time provisions of these Orders)
(c)On Father’s Day from 10.00 am until the commencement of school the next day (or 10.00 am if pupils are not attending school on that day);
(d)On Y’s birthday :
(i)In odd numbered years from after school the day before Y’s birthday (or 3.00 pm if pupils do not attend school that day) until the commencement of school (or 10.00 am if pupils do not attend school that day);
(ii)In even numbered years from after school on Y’s birthday (or 10.00 am if pupils do not attend school that day) until the commencement of school on the following day (or 10.00 am if pupils do not attend school that day);
(e)On the Father’s and the paternal grandmother’s birthdays from after school on the relevant day (or 10.00 am if pupils do not attend school on that day) until the commencement of school on the following day (or 10.00 am if pupils do not attend school on that day);
(f)Such further or alternate times as agreed between the mother and the father in writing (including by SMS text message).
That Y spend time and communicate with her half-brother Z (“Z”) as follows:
(a)By way of reintroducing Z to Y, at the offices of Mr M on dates advised by Mr M, and for not less than five such appointments unless at some time during such process Mr M recommends that either more appointments or less appointments are needed;
(b)Following the final appointment with Mr M, pursuant to subparagraph 8(a) above, Y’s time with Z will be between 10.00 am and 5.00 pm on either the Saturday or Sunday Y spends with her mother and with such time to be supervised by the mother;
(c)After two months of day time spent by Y with Z pursuant to sub-paragraph 8(b) above, Y’s time with Z will increase to one overnight period per weekend that Y spends with her mother, with such time to be supervised by the mother.
(d)After two months of one overnight time spent with Z, pursuant to sub-paragraph 8(c) above, Y’s time with Z will increase to two (2) overnight visits during the mother’s time with Y, with such time to be supervised by the mother.
(e)After two months of two overnight time spent with Z pursuant to sub-paragraph 8(d), Y will spend time with Z while in the mother’s care without the need for supervision.
(f)Such further or alternate times as agreed between the mother and the father in writing (including by SMS text message).
That for the purposes of facilitating Y’s attendance at appointments with Mr M for the purposes of Order 8(a) hereof, the mother will collect Y from her school prior to the start of each appointment and return her to her school at the conclusion of each appointment, and Z must not be in the vehicle used to transport Y to or from those appointments.
That the mother and the father are each at liberty to register interest in providing parent help at Y’s school and attend Y’s school for this purpose and other school activities.
That with as much notice as possible (being not less than 12 hours) the parties must each notify the other of their intention to attend school activities (such as, but not limited to, assemblies and school carnivals) and the mother must provide such notice to the father by SMS text message to the paternal grandmother’s telephone and the father must cause the paternal grandmother to provide such notice to the mother by SMS text message to the mother’s telephone.
That only one party may attend each school excursion with Y in accordance with the next three succeeding Orders hereof.
That with respect to any of Y’s school excursions should parents be offered the opportunity to attend with the children or should the school seek help from parents, the father and the mother must take it in turns to accept such an offer or request and even if it is declined (for whatever reason) that opportunity will still be considered to be that party’s “turn”.
That should a party decline to accept the offer or request to attend an excursion then he or she must notify the other with as much notice as is possible so that the other party may then take up the opportunity, and should the other party do so it will not count as that party’s “turn” to attend but it will be in addition to that party’s turn to attend.
That to avoid doubt the first offer or request for the purposes of the three preceding Orders hereof shall be deemed to be the father’s “turn”.
That the Independent Children’s Lawyer is requested to provide a copy of these Orders to the principal of Y’s school.
That changeovers for the purposes of these Orders will be
(a)at school on days that pupils attend school; and
(b)should a changeover fall on a pupil free day, school holidays or a weekend the changeovers will be at the (omitted) Children's Contact Service if that service is available; but
(c)if the facilities of the (omitted) Children's Contact Service is unavailable for any reason, changeover will be at the (omitted) McDonalds Restaurant.
That the changeovers occurring at the (omitted) Children's Contact Service will be as close to the times provided for in these Orders as the (omitted) Children's Contact Service can accommodate.
That both the father and the mother must comply with any reasonable request by any staff member of the (omitted) Children's Contact Service.
That the father and the mother must each promote these Orders in discussions with Y and not initiate any discussions about any reservations they may hold in relation to these Orders.
That the father and the mother are each hereby restrained from discussing any allegations raised during the course of these proceedings with Y or with any other person in the presence or hearing of Y.
That the father and the mother must each make all reasonable efforts to ensure that no other person discusses any allegations raised during the course of these proceedings with Y or in the presence or hearing of Y.
That the father and the mother be and are each hereby restrained from requesting Y to disclose information about the other party’s household.
That the father and the mother be and are each hereby restrained from using any illicit substances while Y is spending time with him or her and during any period of 24 hours prior to Y coming into his or her care.
That the father and the mother be and are each hereby restrained from drinking alcohol to the extent his or her blood alcohol level would exceed 0.05 grams per millilitre while Y is spending time with him or her and during any period of 24 hours prior to Y coming into his or her care.
That the father and the mother be and are hereby restrained from denigrating or criticising the other parent, or any member of that other parent’s family, to or in the presence of Y or from causing or permitting any other person to do so.
That the father and the mother be and are each hereby restrained from abusing, threatening or assaulting the other party.
That the father and the mother be and are each hereby restrained from smoking in any car or inside any dwelling while Y is in their care.
That the father and the mother must do all such things and sign all such documents as may be necessary or required to:
(a)Authorise each parent to communicate without restriction with, and receive communication from any doctor or health professional of whatever type that the child consults and this order shall of itself constitute such authority;
(b)Authorise each parent to speak to, and receive oral or written communication from any school or other educational institution attended by Y and this order shall of itself constitute such authority;
(c)Keep the other parent informed of their residential address and telephone contact number;
(d)Notify the other parent should Y suffer any medical emergency, serious illness, or other significant issue affecting Y’s health or welfare, whilst in their care.
That the father and the mother be and are each hereby restrained from taking Y to see any counsellor or psychologist other than Mr M, unless agreed otherwise in writing by the father and the mother or Mr M specifically recommends that course.
That the parties must follow the reasonable recommendations of Mr M or any psychologist Mr M recommends should he be unavailable, and must facilitate Y’s prompt attendance at consultations as scheduled by such professionals.
That except for emergencies or otherwise by agreement in writing (including by SMS text message) the parties must only take Y to the (omitted) Medical Centre for medical appointments with a general practitioner.
That all extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hunt & Richards is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BURNIE |
LNC 702 of 2009
| MS HUNT |
Applicant
And
| MR RICHARDS |
Respondent
REASONS FOR JUDGMENT
The applicant is MS HUNT (“the mother”) and the respondent is MR RICHARDS (“the father”). They are the parents of Y (“the child”), who is just seven years old.
In essence, the proceedings are about what orders should be made for the time that the child is to spend with the mother, and whether that time should ever be in the company of the mother’s older child, Z (“Z”), who has recently had his fifteenth birthday.
Both the mother and the father were unrepresented at the hearing. The Independent Child’s Lawyer, Ms M Ryan (“the ICL”) also appeared at the hearing.
Background chronology
The ICL set out a lengthy chronology in her Case Outline. It was not challenged by either party, so I adopt it and set it out below:
|
As can be seen from the chronology above, the parties commenced proceedings in 2009, which were resolved by the making of Consent Orders in February 2012. Following the father’s allegations about the child’s disclosures suggestive of inappropriate touching of the child by Z, further proceedings were commenced in late 2013.
The conduct of the hearing
After a number of earlier adjournments, this matter was allocated a hearing of up to three days commencing on 17 February 2016 in Burnie. In fact, it was heard over five days and the increase in hearing time was almost entirely caused by the father.
The mother accepted from the outset that the child will continue to live predominantly with the father. Essentially, she accepted the ICL’s recommendations as to the type of orders that should be made. (Unfortunately, that only provided the father with opportunities to misguidedly accuse the ICL of running the mother’s case.)
On the other hand, the father ran what can only be described as an entirely negative campaign against the mother throughout the hearing. His negativity and antipathy towards the mother had been almost continuous, so I asked him to tell me about the mother’s good points towards the end of the third day. All he could say was: “She can be a very nice person when she wants to be, your Honour”, but he immediately undid that miniscule concession by adding “but it’s not to many people and it’s very rare. Even [the child] has picked up on that”.[1]
[1] Page 274 of the transcript
The father displayed an unfortunate inability to control his impulses. Throughout the hearing he was unable to resist urges to interrupt and/or argue with me or the ICL. Indeed, he did this so often that the only way to stop him interrupting and/or arguing at times was for me to raise my voice quite significantly.
Towards the end of the day on Friday 19 February 2016, it came to my attention that at some time before the start of the hearing the father had deliberately deleted an item recorded on the ICL’s mobile telephone which she intended to put before the Court as part of the evidence. The circumstances of how that item was recorded are not particularly relevant at this point, but it occurred to me that the father may have attempted to pervert or obstruct the course of justice by deliberately attempting to destroy potential evidence.[2] Consequently, I informed him of that and I suggested that he might like to get some legal advice before the matter resumed on Tuesday 23 February 2016.
[2]See section 43 of the Crimes Act 1914 (Cth)
Late on Monday 22 February 2016, the father faxed a copy of a medical certificate to the Launceston Registry of this Court. It was timed at 4.07 p.m. and the father’s general practitioner stated: “This is to certify that [the father] has a medical condition and will be unfit to attend Court from 22/2/16 to 7/3/16 inclusive”.
On Tuesday 23 February 2016 the father did not appear at the appointed time and I was informed that the ICL had only been told about the medical certificate minutes before the matter resumed.[3] I required the father to be telephoned from the courtroom and I told him that I needed more information about his “medical condition” in order to consider what I inferred was an application on his part to have the matter adjourned.[4] Arrangements were made for his doctor to be telephoned later in the day and, after speaking to his doctor, I adjourned the matter to 2.15 p.m. on that day, with the father to attend again by telephone from his home.
[3] She had travelled from Hobart to Burnie for the resumed hearing on the Tuesday.
[4] See Medlon & Medlon (No. 4) [2015] FamCAFC 70 at paragraph 5
At approximately 2.15 p.m. on 23 February 2016 the father was telephoned and I commenced giving my ruling in relation to the question of a possible adjournment. Again the father interrupted and would not let me deliver full reasons. I then informed the father that I was not granting an adjournment and:
·the hearing would resume the following day at 10.00 a.m.; and
·it would continue in his absence if he did not attend.
The father’s reaction to that did him no credit at all. Among other things, the father said the following to me:[5]
You know, if you give a person enough rope, they hang themselves. You’re doing that. You’re doing that, your Honour. You cannot force me into court under a medical certificate, your Honour. I’m now under heavy medication. I am in no way – no fit state of mind to be in a courtroom. I will fight fist and hand, your Honour, and you will see with the backing that I’ve got with the ruling you’re about to make to be the biggest mistake of your career.
and
You’ve just crossed – you’ve crossed the line. You’ve crossed the line, your Honour, and it shows the denigration that you and Ms Ryan have against me in this court case – absolute denigration towards me and that’s what it shows – what you’re doing now – and you’ve got no idea of the people I’ve got behind me and you’ve just proved a point and you’re going to get even more people behind me now and I mean higher in Tasmanian government – the Attorney-General’s office – the – you know, I can name names but I won’t. I will let you find out the hard way, your Honour. You’ve got no legal right to do this. I’m under a medical certificate. Of the stress and duration (sic) I’m under, you’ve got no right to do it but, I tell you what, I won’t walk away from this. I’m going to be your worst nightmare if you continue doing this and you won’t have a happy retirement. You will be dragged through the ropes of the legal stuff, mate, and you will find out what it’s like to be denigrated in a court of law. Absolutely disgusting, your Honour, and I hope this all is recorded because that’s disgusting.
and
No wonder no one has any … hope in the Family Law Court, your Honour, especially when they have judges like you. Absolutely disgusting.
[5] Commencing at the foot of page 304 of the transcript
The father unilaterally terminated the telephone call shortly after saying those things (but he did attend Court in person on the following day).
Clearly, the father had taken very little notice when I said at the beginning of the hearing that I expected the parties to be respectful to each other and to the court.[6] He certainly displayed little appreciation of the seriousness of Court proceedings generally, so it is likely that he is completely unaware that he could have been liable for punishment under sub-section 17(3) of the Federal Circuit Court of Australia Act 1999 for contempt committed in the face or hearing of the Court. However, the father is clearly now on notice that he needs to modify his behaviour if he is involved in any court proceedings in the future.
[6] See page 3 of the transcript.
The current orders
Currently there are interim orders,[7] which inter alia provide that:
[7] See the Orders of 25 May 2015
a)The parties have equal shared parental responsibility for the child.
b)The child live with the father.
c)The child spend time and communicate with the mother each fortnight as follows:
i)in Week One from Saturday at 10 am until Sunday at 4 pm; and
ii)in Week Two from Friday after school (or 3 pm if a non-school day) until 5 pm, with such to increase in school holidays from 10 am until 5 pm.
d)The mother must not bring the child into contact with her half-brother Z at all.
e)Under certain conditions the parties each has leave to attend the child’s school activities but only one party is to attend any school excursion with the child.
f)Changeovers are to take place at the child’s school, except on pupil free days, school holidays or weekends when the changeovers are to take place at the (omitted) Children's Contact Service if that service is available, or at the (omitted) McDonalds Restaurant if the service is unavailable.
g)Both the mother and the father are restrained from discussing with the child any allegations raised in the course of these proceedings.
h)Both parties are restrained from pressuring the child to disclose information about the other party’s household.
i)Both parties are restrained from using illicit substances in the 24 hours prior to the child coming into their care.
j)While the child is spending time with either party that party is restrained from drinking alcohol to the extent that his or her blood alcohol level would exceed 0.05 grams per millilitre.
k)Both parties are restrained from denigrating or criticising the other parent to the child or in the presence of the child, or from causing or permitting any other person to do so.
l)That the parties must not smoke in a car or inside any dwelling when the child is with them.
m)The parties are each restrained from making any complaint to the relevant disciplinary body of any lawyer or psychologist involved in these proceedings without first applying for, and obtaining the leave of this Court to make such a complaint.
The issues and applications
As was stated in the ICL’s Case Outline, the most significant questions that the Court needs to answer are:
·Should the child spend increased time with the mother? and
·Should the child spend any time with her half-brother, Z?
Both the mother and the ICL say that I should answer both questions in the affirmative, whereas the father’s view is essentially that they should be answered in the negative.
At the start of the hearing the ICL proposed orders that would provide for:
a)staged increases in the child’s time with the mother, culminating in the child being with her mother for:
i)five nights per fortnight during school terms; and
ii)half of each school holiday;
b)special occasions such as Christmas, Easter and birthdays generally to be shared between the parents on an equal basis; and
c)for the child to be reintroduced to Z with the assistance of the (omitted) Children's Contact Service (“DCCS”) and the psychologist, Mr M. (During the hearing, the ICL indicated that DCCS could not assist in the process of reintroducing the child to Z, so only Mr M’s assistance would be sought.)
The ICL also sought similar injunctions to those made on 25 May 2015 and orders in relation to communication, the child’s education and medical treatment.
As mentioned above, the mother accepted the ICL’s recommendations as to the type of orders that should be made.
The father stated his position at the start of the hearing as follows:[8]
I’m suggesting that they don’t change from what they are now: one night per fortnight, without the half-brother there, your Honour. And I don’t really feel comfortable at that, but I’m happy to accept that and I’m happy to show that I do believe that [the child] should see her mother …
[8] Page 4 of the transcript
At the end of the hearing, the father submitted that:
·the mother should not spend any increased time with the child until she has undergone psychological counselling; and
·if the child is to spend any time in the presence of Z, it should not be unsupervised until Z has had “the correct counselling that he needs” and it should be “every three weeks for no more than two hours”.[9]
[9] Page 372 of the transcript
The ICL also sought an injunction to restrain the parties from making any complaint to the relevant disciplinary body of any lawyer or psychologist involved in these proceedings without first obtaining the leave of this Court. I will refer to that further below.
The evidence
The mother relied upon affidavits by herself, her friend (Mr D) and Z’s paternal aunt (Ms T).
The father relied upon affidavits by himself and his mother.
The ICL filed an affidavit by a psychologist (Mr M) who had been appointed in 2014 as a Court Expert pursuant to Rule 15.09 of the Federal Circuit Court Rules 2001. Mr M completed three reports dated 14 August 2014, 5 May 2015 and 14 January 2016. Those reports were all attached to his affidavit.
All the deponents referred to in the three paragraphs above were cross-examined, with the exception of Mr D. The ICL and the father elected not to cross-examine Mr D.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The Court must consider the best interests of the child as the paramount consideration.[10]
[10] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [11]
[11] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[12]
[12] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[13]
[13] Subsection 60CC(2)
The Court must also take into account those of the “additional considerations” that are relevant.[14]
[14] Subsection 60CC(3)
It is clear that the father’s position in this matter is that there is a need to protect the child from physical or psychological harm from being subjected to abuse or violence from Z. Consequently, the Court needs to assess the risk.
The High Court and the Family Court of Australia have often stated that Courts should not make orders that expose children to an unacceptable risk of abuse. It is also clear that the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the relevant child or children. The Court’s consideration of the paramount issue must not be diverted by any perceived need to arrive at a definitive conclusion about the allegation of sexual abuse.[15] Further, the Court should not make a positive finding that such an allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.[16]
[15] See B and B [Suspension of access] (1988) FLC 91-978
[16] Briginshaw v. Briginshaw (1938) 60 CLR. 336
Their Honours Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ of the High Court said:[17]
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[17] M and M (1988) FLC 91-979 at page 77,081
In Lindsay and Baker,[18] Bryant CJ said the following that was clearly intended to give guidance in relation to the application of a test of “unacceptable risk”:[19]
The trial Judge discussed at some length, without apparent error, the standard of proof applicable to the allegations by the mother that the father had sexually abused the child and the unacceptable risk question (para 76 - 106). I agree with Finn J that it seems unnecessary for anything to be said beyond the broad general guidance given by the High Court in M and M (1988) FLC 91-979. That said however, the concept still frequently proves to be a difficult one to apply and the description by his Honour in paragraphs 78, 79 and 80 which are repeated below, in my view, provide a useful summary of what is required:
“78. The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court's formulation in M v M [(1988) FLC 91-979; (1988) 166 CLR 69], where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered.
79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.”
[18] Lindsay and Baker (2007) FLC 93-347
[19] Commencing at paragraph 3
Credit
It is clear that the Court must first assess the likelihood of whether there has been any sexual abuse of the child by her half-brother, before any conclusions can be drawn about whether there is an unacceptable risk to her of any future sexual abuse. However, I consider it appropriate to make some observations about the general credibility of the father’s evidence before doing that.
I found much of the father’s evidence somewhat difficult to believe. For example, in answers to cross examination by the ICL, he said that he had not been violent to the mother but then softened that a little by conceding that he had reacted to violence by her.
In her very first Affidavit filed in this Court on 19 November 2009 the mother said:
9. The family violence started before I was pregnant with [the child]. I acknowledge that it usually takes two to argue. Those arguments would, on occasions, escalate into violence.”
The father’s response in an Affidavit filed 8 December 2009 was:
As to paragraph 9, I agree that the arguing came from both sides and that they did escalate into violence. I am not proud to admit that.
In my view, both parties had made appropriate concessions back in 2009 about their involvement in violent episodes, but it is unfortunate that the father now appears to attribute all the blame for family violence to the mother.
In her affidavit filed 2 December 2013 the mother said this:
14. The shared care arrangement continued for a further three or four weeks until the 13th of October 2013. I called [the father] on Tuesday the 15th of October 2013 to confirm arrangements and [he] told me “Y doesn't want to see you”. I said “okay, we will arrange another time then”. He told me “don't bother it won't be happening. If you do want to see Y it’ll be with supervision by me or mum or that contact centre”.
15. During that same conversation [the father] said that [the ICL in the earlier proceedings] had had sexual relations with me which is how I got what I wanted in the Orders, he said that [the previous ICL] was under investigation and he said that he was going to sue him and the lawyer that acted for him …. The only thing I said was “gee you come up with them …” and then I ended the call.
The father responded to her paragraph 15 in an affidavit filed on 13 February 2014 as follows:
I disagree that I said this to the Applicant, but I did inform the Applicant that the previous ICL … is under investigation with the Legal Profession Board of Tasmania. I would strongly object to the reappointment of the previous ICL …
When he was cross-examined about that by the ICL on Day 3, this exchange took place:[20]
Ms Ryan: Now, I want to suggest to you that, given Legal Profession Board proceedings and complaints are highly confidential, [the mother] would not know except through you or [the previous ICL] that you – well, first of all, did you allege in your complaint that he had had sexual relations?
The father: No, as I’ve said in my affidavits, Ms Ryan.
Ms Ryan: So you didn’t make that allegation?
The father: No, not at all. It’s a fabrication.
[20] Page 204 of the transcript
The father was then asked if he had a copy of the complaint that he had made to the Legal Profession Board. After some discussion, the father indicated that he had a thick file “at home on the Legal Professionals Board”. Ms Ryan suggested that, as the matter would be continuing on another day, the father could bring his thick file to the Court.
The matter was adjourned to the following Tuesday and on the Monday I directed a member of my staff to remind the father by telephone that his file had been requested. What happened on the Tuesday is referred to above.
When the issue was raised on the Wednesday, the father said:
I did look through paperwork. I believed I had it in a basket full of paperwork. I’ve moved twice. I’ve had a bit of a look and I looked through other documents. I only found one piece of paperwork, and I haven’t been able to find my file on Dr W or Mr E. But I have looked for it, your Honour, and I was unable to find it at home. So I don’t know if it’s in a box that has been left out at my mum and dad’s in their storage shed or what. I was unable to get out there either, your Honour, to look for it.[22]
[22] Commencing at page 327 of the transcript
Having heard the father’s excuses for not producing a copy of his written complaint to the Legal Profession Board, I find that the father did tell the mother on or about 15 October 2013 that the previous ICL was under investigation because she had got what she wanted in the earlier Consent Orders by having had sexual relations with the previous ICL. I also find that it is more likely than not that the father included that as an allegation in his written complaint to the Legal Profession Board. In short, I do not believe the father’s evidence about that because it has been in his power since he read the mother’s affidavit of 2 December 2013 to produce the relevant documentation to refute her evidence but he has not done so. In my view the rule in Jones v Dunkel is applicable. [23]
[23] Jones v Dunkel (1959) 101 CLR 298
I have referred above in these Reasons to an incident when the father deliberately deleted an item recorded on the ICL’s mobile telephone that the ICL had intended to put before the Court as part of the evidence. In my view, if a person is prepared to deliberately delete potential audio evidence, it is a reasonable inference that the same person would have few qualms about fabricating other evidence. However, I do not need to surmise about that because the father’s evidence in the witness box about that incident and the surrounding circumstances showed me quite clearly that he was prepared to change his evidence if he thought it would suit his case. There were two such examples.
·Firstly, on 19 February 2016 the father’s initial evidence was: “I pressed delete … because it was obtained illegally, your Honour” but only a few minutes later his evidence was that he accidentally deleted the item on the ICL’s telephone.[24]
·Secondly, his evidence on 19 February 2016 was that his telephone had accidentally rung Ms Ryan’s telephone “whilst in my pocket … without my knowledge”.[25] However, on 24 February 2016 his evidence was that his telephone had been on the fridge in his kitchen when the call was recorded on Ms Ryan’s telephone (i.e. not in his pocket). His words were: “I had tried to ring Ms Ryan and there was no answer. It went to message bank, and I went to press no. I thought it had hung up, and I sat my phone on top of the fridge.”[26]
[24] See pages 280 and 281 of the transcript
[25] Page 281 of the transcript
[26] See page 327 of the transcript
In view of what I have set out above (and my conclusions about the father coaching the child as set out below), I have no hesitation in concluding that much of the father’s evidence must be treated with the utmost scepticism.
Has the child been subjected to sexual abuse?
In his Affidavit filed 11 May 2015 the father said this:
21. On 21 September 2013 [the child] disclosed to me that Z had put his hands down her pants and pinched her next to her underpants. I told [the child] that no one is allowed to touch her private areas, Z as well, and that if anyone touched her or hurt her she was to tell me or [the mother] straight away.
22. Prior to this [the child] made comments to me that Z had touched her bottom. I specifically recall her saying that she had been playing and was on her knees and bent over and Z came up behind her and poked her in the bottom and in the private areas. I had not thought anything about this at the time as I thought it was an accident or simply a misunderstanding.
Six days after that alleged first disclosure the father allowed the child to go to the snow with the mother and Z. His evidence in relation to that was as follows:
23. On 27 September [the child] was scheduled to stay at her mother’s home and while I was concerned about what [the child] told me she had not been significantly distressed and I thought perhaps it had all been an innocent misunderstanding so I facilitated this time occurring. I knew [the mother] had planned to take [the child] and Z to the snow.
24. On 29 September [the child] again disclosed to me that Z had touched her in her private areas and that it had hurt. This time she said it had been on the outside of her pants and that he had squeezed very hard. When asked where [the mother] was she said [the mother] had been playing with Mr D (who I believed to be [the mother]’s boyfriend) in the snow.
The person referred to as “Mr D” by the father is clearly Mr D. He swore two affidavits that were relied upon by the mother and said this in both affidavits:[27]
I am aware that [the father] has alleged that [the mother] and I left [the child] alone with Z when we visited the snow. We did go to the snow, but the children were never left alone. We were both with the children for the day that we were at (omitted).
[27] Filed 16 March 2015 and 21 January 2016
The father chose not to cross-examine Mr D when he was given the opportunity,[28] so I accept the evidence of Mr D in relation to that.
[28] See pages 86, 87, 136 and 137 of the transcript.
The father contacted the (omitted) Sexual Assault Support Service (“(omitted)”) on 3 October 2013. He says that on 14 October 2013 (omitted) “called me and advised me under no circumstances was I to send [the child] to the applicant’s home for her safety and wellbeing. (omitted) also made an appointment time for the child to start counselling”.[29]
[29] See paragraph 6 on the fourth page of the father’s affidavit filed 13 February 2014
(omitted) records were produced pursuant to subpoena, but none reveal any disclosure by the child suggesting sexual abuse by Z.
In his affidavit filed on the 11 May 2015 the father said this at paragraph 28:
On 8 October 2013 [the child] told me that Z had touched her to her private areas. She said that four (4) times it hurt, two (2) times it really hurt and two (2) times it didn’t hurt as much. She has not given me specifics about these times and I do not want to ask her about them. I did ask her when that had happened and she said quietly “A while ago.”
Given that the father did not mention any disclosures taking place on 8 October 2013 in either of his two earlier affidavits,[30] I find that paragraph 28 quoted above is a more recent invention by the father, probably to bolster his case at a time when the matter had previously been set down for hearing (but was adjourned when the current interim orders were made on 25 May 2015).
[30] Filed 13 February 2014 and 11 September 2014
The father did not make a report to the police until 15 October 2013, at which time police records noted the following: [31]
On 15th October 2013, the reporting person attended the (omitted) Police Station to advise police of some concerns he had with [the child] being assaulted (and possibly sexually) by her half brother Z ….
The RP stated that Z resents [the child] and is violent towards her as a result. The RP states that Z regularly spits at [the child] in addition to hitting her in the face. The RP also is of the belief that Z is sexually abusive towards [the child].
This belief comes from conversations the RP has had with [the child] following custody visits with her mother … with whom Z resides.
The [father] stated to police that he has been hesitant to speak to police about the matter due to the fact he is having custody issues with [the mother] and does not want this report to be construed as a ploy to gain sole custody.
[31] Exhibit “ICL2”
I pause to note that it would appear that, if the father believed there might have been “an innocent misunderstanding” on 27 September 2013, by 15 October 2013 he was of the belief that Z was being “sexually abusive” towards the child.
The police records also state the following:
On 24 October 2013, [the father] attended the (omitted) Police Station along with [the child]. Police spoke to [the child] (electronically recorded) regarding the concerns that [the father] had regarding [the child] possibly being sexually assaulted by her half brother [Z].
While speaking with [the child] she outlined numerous incidents to police regarding Z being violent to her. The violence was hitting and kicking her which [the child] stated was to her bottom and lower back. The violence mainly took place in Z’s bedroom when he wanted [the child] to leave his room. [The child] did also state that on occasion Z would spit on or at her but she could not detail this any further.
In relation to the sexual nature of the assaults by Z, police are unable to determine this. Police can’t say it did happen but can’t say that it didn’t either. [The child] could not detail any incidents when this may have occurred.
When police directly asked [the child] about Z touching her vaginal area or putting his hands down his pants, she denied this has ever occurred.
The police records also state the following in an entry on 5 November 2013:
Re-interviewed [the child] at the request of her father … who stated she had disclosed further incidents to him and was now ready to tell police everything.
During this interview [the child] was again unsettled and confusing and non-committal about any disclosures. [The child] initially stated that her half brother [Z] has touched her vaginal area on 4 occasions. [The child] later stated that it only occurred on 2 occasions. She stated on each occasion the touching is down her pants but on top of her underwear and that Z has never pulled her pants down.
The police records indicate that the father was advised on 8 November 2013 that due to Z’s age and the fact that the disclosures by [the child] were “inconsistent and muddled”, it was unlikely that Z would be charged.
On 12 November 2013 the father asked the police to “contact child protection to advise them of [the child]’s disclosures to police.” The Child Protection records are consistent with the police records in relation to the contact between those agencies.
In December 2013 the Child Protection records noted the following:[32]
The child protection concerns of sexual abuse have not been substantiated due to their being insufficient evidence. However as outlined under section 4 of the Children, Young Persons and Their Families Act 1997 it is assessed that [the child] is a child ‘at risk’ of emotional abuse in the care of her father.
…. during the second Police interview [the child] made some disclosures of an indecent assault type nature there was little details provided. The validity of this disclosure is questioned as self reported by the father he was ‘prompting her a little’ prior to her second interview and his rationale for this was that she was not telling the Police anything. The father demonstrated no insight in relation to the inappropriateness of this behaviour. The information gathered from Z and the mother does not support the allegations of sexual and physical abuse and there have been no reports of Z behaving in an aggressive or sexualised manner towards his peers. The father engaged [the child] with (omitted) and it is noted that she has made no disclosures of sexual abuse during her discussion with her counsellor.
[32] Exhibit “ICL8”
The father was informed by the police on 27 January 2014 that the “investigation into this matter will be concluded”.[33]
[33] Exhibit “ICL2” at page 5
The father’s evidence is that his four year old daughter made a disclosure of inappropriate touching on 21 September 2013. I would have expected that to have been a very significant event in any parent’s life. However, when he was questioned about it in cross-examination:
·He said he had “no idea” about the time of day that the disclosure was made;
·When asked where the conversation took place he said: “I believe it was at home”; and
·When asked about the circumstances he said: “I can’t remember exactly what I was doing”.[34]
[34] Commencing at page 221 of the transcript
The father was questioned about the circumstances in which the child was re-interviewed by the police on 5 November 2013 at the request of the father. The police report about that reads as follows:[35]
Re-interviewed [the child] at the request of her father … who stated that she had disclosed further incidents to him and was now ready to tell police everything.
During this interview, [the child] was again unsettled and confusing and non-committal with any disclosures. [The child] initially stated that her half-brother Z has touched her vaginal area on four occasions. [The child] later stated that it only occurred on two occasions. He stated that on each occasion the touching is done down her pants but on the top of her underwear and that Z has never pulled her pants down.
[35] Exhibit “ICL2” at page 4
When he was referred to that entry in the police records and asked about the circumstances in which the child had “disclosed further incidents to him”, he said he believed he was at home but he could not remember what he was doing at the time.
One must have some concerns about the fact that when he was asked about two “disclosures” that must have been of great significance to him in relation to this matter, the father:
·was not very sure where the conversations took place;
·could not remember what he was doing at the time; and
·in relation to the first disclosure, he had “no idea” what time of day it was.
When one also takes into account the fact that the father stated to the police on 15 October 2013 that he was having “custody issues” with the mother, when there were no “custody issues” on foot at the time, one must have some concerns about the veracity of the father’s reports to the police at that time and his motives.
When the police first spoke to the child, she did not reveal any abuse by Z that could be construed as being of a sexual nature; but on the second occasion when the police spoke to her, it was “at the request of her father … who stated that she … was now ready to tell police everything.” At that interview, she “initially stated that her half-brother Z has touched her vaginal area on four occasions” but “later stated that it only occurred on two occasions”.
I note also that the Child Protection records state that:
The validity of this disclosure is questioned as self reported by the father he was ‘prompting her a little’ prior to her second interview and his rationale for this was that she was not telling the Police anything.[36]
[36] Emphasis added by me
I also note that the psychologist was asked whether he was concerned that the child had been reinterviewed at the request of her father because “she had disclosed further incidents to him and was now ready to tell police everything”. The psychologist’s evidence was: [37]
It detracts from the likely validity or impact of whatever she did say because the unpolluted initial interview is the most likely valid one. It’s always a concern when the parent seeks to have a child reinterviewed when they haven’t provided the information the parent thinks they should have provided in the first interview.[38]
[37] Page 35 of the transcript
[38] Emphasis added by me
I note also that a worker at (omitted) included this in her report of a meeting with the child on 16 January 2014:[39]
Discussed and reinforced [the child]’s rights in the service. Worker reinforced voluntary attendance. Worker also discussed she had heard dad say previously that the child had to tell me about the abuse.
[39] See Exhibit “ICL9” (emphasis added).
Given the contents of the record of the police, Child Protection and (omitted) as referred to above; I have no hesitation in concluding that the father has attempted to coach the child in what he thinks she should be reporting.
Consequently, I also have significant doubts about the usefulness of the discussions with the child by:
a)a GP on 16 December 2013 in the presence of the father and the paternal grandmother;[40] and
b)a paediatrician on 20 December 2013, also in the presence of the father and the paternal grandmother.[41]
[40] See Exhibit “ICL4”
[41] See Exhibit “ICL6”
In saying that, I do not question the professional competence or the honesty of either the GP or the paediatrician, but I am saying that neither discussion with the child was an “unpolluted initial interview”.
I note also that on 20 December 2014 the paediatrician stated this as the opening to her report to the GP:[42]
Thank you for asking me to see [the child] who I saw today in my clinic accompanied by her father and her nan. [The child] had apparently disclosed to her father during a period between July and October that her 13-year-old half-brother Z had hurt her whilst putting his hands in her undies.
[42] Emphasis added
As I have said, I do not question the honesty of the paediatrician, so I must assume that she was provided with that information by the father or his mother. The father’s own evidence is that the first disclosure was in late September, so the period of disclosures had expanded to be “between July and October” when information was provided to the paediatrician in December. Significantly, the allegations against Z had also expanded to “putting his hands in her undies”, whereas that was not part of the father’s initial evidence, nor was it part of any disclosure by the child during the second interview with the police. In relation to that:
·The father’s own evidence was that on 21 September 2013 she said that Z had “pinched her next to her underpants” and on 29 September “she said it had been on the outside of her pants”;[43] and
·The child stated during the second police interview that “on each occasion the touching [was] down her pants but on top of her underwear.”[44]
[43] At paragraphs 21 and 24 of his affidavit filed 11 May 2015
[44] Exhibit “ICL2” at page 4
In view of this, and my conclusions that the child had been coached by her father, I conclude that no weight should be given to the paediatrician’s statement: “It’s unlikely a four year old would fabricate such a history”.
Given the matters that I have set out above, I conclude that it is highly unlikely that the child was subjected to any abuse of a sexual nature by her half-brother.
The Section 60CC considerations
The benefit of having meaningful relationships with both parents
In Godfrey & Sanders,[45] Kay J (sitting as the Full Court) said:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child's best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child's parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case. [46]
[45] Godfrey & Sanders [2007] FamCA 102 (23 February 2007)
[46] At paragraph 33
He went on to say that “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. [47]
[47] At paragraph 36
Although there has been some criticism of those last comments by Kay J in Godfrey & Sanders by a well respected former judge of the Family Court of Australia,[48] I note that their Honours of the Full Court of the Family Court of Australia have referred to those comments by Kay J without apparent criticism on a number of occasions.[49]
[48] See the article by Prof. Richard Chisholm: “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006” in (2008) 22 Australian Journal of Family Law, commencing at page 193.
[49] See Moose & Moose (2008) FLC 93-375 at paragraph 70 (May, Boland and O'Reilly JJ), McCall & Clark (2009) FLC 93-405 at paragraph 116 (Bryant CJ, Faulks DCJ and Boland J) and Sigley & Evor [2011] FamCAFC 22 at paragraph 135 (O’Ryan, Strickland and Benjamin JJ)
Clearly, the benefit to a child of having a meaningful relationship with both parents is one of a number of factors to be considered under section 60CC, but nowhere in the Act does it state or imply that having a meaningful relationship with both parents “trumps” all of the other considerations under section 60CC. It is a matter of the weight to be attributed to each relevant factor in the specific circumstances of the particular case. I repeat that Kay J said in Godfrey & Sanders that section 60CC “does not seek to mandate that any one or other matter becomes determinative in any particular case”.
In Tait & Densmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders between an “optimal” relationship and a “meaningful” relationship, and said:[50]
Kay J distinguished between the optimal relationship and the meaningful relationship. The questions that I have just asked apply in both situations. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
[50] At paragraph 170
The Oxford Dictionary of English[51] defines “meaningful” as “serious, important or worthwhile”, and I consider that “worthwhile relationship” is synonymous with “meaningful relationship” for the purposes of section 60CC.
[51] 2nd Edition revised
The psychologist made it very clear in his evidence that there is a strong and loving attachment between the child and the father.[52] It is therefore to the mother’s credit that she is not seeking an order that the child live with her. Consequently, the child’s meaningful relationship with her father will continue.
[52] For example, see the foot of page 36 of the transcript.
The father stated at the start of the hearing that the child should continue to spend one night with the mother per fortnight, but he was clearly not particularly enthusiastic about that. For example, he said that he did not really feel “comfortable” about it (as set out at paragraph 23 above). Indeed, the father’s entirely negative campaign against the mother throughout the hearing, as referred to above at paragraph 8, gives me little confidence that the father will actively promote the child’s relationship with her mother as being one that is worthwhile. I am therefore of the view that clear and precise orders are necessary in order to ensure that the child continues to have a meaningful relationship with her mother.
Protecting the child from harm from abuse, neglect or family violence
There is no suggestion that the child has been the subject of neglect by either parent.
In his third report, Mr M said that the child stated that she gets a little bit scared when her mother “growls at her” but she also thought that her mother “always growled for a good reason” and “could not remember any examples of why Mum growled at her”.[53] After listening to what was recorded on the ICL’s mobile telephone,[54] it is also clear that the father is quite capable of shouting at the child. However, I do not consider the mother’s growling or the father’s shouting to be abusive; all children need parental discipline from time to time, and it would be a most unusual parent who did not growl or shout on occasions.
[53] Annexure “E” at page 29 of his affidavit
[54] Exhibit “ICL16”
I have no difficulty in concluding that there was family violence between the parties during their relationship and around the time that they separated in 2009, and that both were responsible for that family violence. However, there is no evidence to suggest that is currently an issue that should cause concern.
I have stated above that it is highly unlikely that the child was subjected to any abuse of a sexual nature by her half-brother. It must therefore follow that there is insufficient evidence for me to conclude that there is an unacceptable risk of sexual abuse occurring.
However, it has also been alleged by the father that Z has been physically violent to the child.
The father said that the child told him in January 2013 that Z had held her underwater and told her she was going to die when she and Z had been playing outdoors in a blow-up pool. The father said that when he questioned the child, she said that the mother had been lying on her bed inside. The mother denied that anything like that had occurred. On balance, I conclude that it is unlikely that Z was trying to drown the child, and I note that the father continued to facilitate the mother spending time with the child for the next nine months.
The mother conceded that there were occasions when the child would want Z to play with her but he was not interested in doing so. The child would then start hitting and spitting at Z, which resulted in Z hitting back.[55] I accept that evidence as being normal sibling behaviour for children of their ages at the time (even though it is not desirable). I also note that the child hit and spat at one of the workers at (omitted) approximately one month after the father unilaterally stopped her time with the mother. The worker and the child were not talking about Z at the time.[56]
[55] At page 113 of the transcript
[56] See Exhibit “ICL10”
I note that the father was of the view that Z had received counselling some time ago in relation to violence. He sought to inspect some counselling records produced pursuant to a subpoena. After I inspected those records, I concluded that they did not relate to anything relevant to these proceedings and did not allow the documents to be inspected by the father.
In the circumstances, I conclude that there is no unacceptable risk of harm to the child in either party’s household.
The child’s views
Mr M said this in his report of 14 January 2016:[57]
Thus far it seems that overnight stays with the mother have not produced serious negative outcomes, and Y has accepted the time with her mother as a normal routine. She remains much too young to be given control over her parenting routine, and I fully expect that she will come to accept whatever arrangements are made on her behalf. Her initial response to a question about whether she would change her present arrangements was that she did not know. I think it is too stressful for her to have any influence on the ratio of time spent with each parent.
[57] See page 31 of his affidavit
He also said this in the witness box:[58]
Apart from that initial, “Mummy” and running to her and jumping on her knee, which sort of negated all the negative stuff that she was giving me about Mum, I think [the child], in the two interviews I’ve had with her subsequent to my initial assessment, has talked about seeing her mother and has talked about that in an accepting way. Mum has come and done parent help at school. She has gone to Mum’s house. She has gone away from the contact centre with Mum. She has stayed overnight with Mum – all those things she has talked about in an accepting way but she continues to say, “I don’t want to spend any more time with Mum.” And she has had some rather odd ideas about if she does have overnight stays with Mum then somehow it’s going to end her relationship with her grandparents and it’s going to result in her living with Mum
[58] At page 36 of the transcript
Clearly the child has some views that are confused. However, as mentioned above, she is just seven years old and it is clear that she is too young for her views about the outcome of these proceedings to be given any significant weight.
The relationships of the child with the parents and other people
Mr M reported that the child is secure in her relationship with her father and her paternal grandparents,[59] and I accept that to be the case. It appears that the mother also accepts that to be the case.
[59] Also at page 31 of his affidavit
It is clear to me that the child has maintained a close relationship with her mother, notwithstanding that her time with her mother since late 2013 has been somewhat limited and interrupted. For example, this exchange took place during the ICL’s cross-examination of Mr M:
Ms Ryan: At the time of the 2014 report, were Mum and [the child] close?
Mr M: There had not been any contact between [the mother] and [the child] for several months prior to my assessment, but when I took [the child] out to the waiting room and she saw her mother, she yelled out, “Mummy,” and ran over to her and jumped on her knee and proceeded to talk flat out to her. And there was clearly an identification, a warmth and a relationship that existed there which was significant for [the child], in spite of that period of several months of not seeing her mother.
Ms Ryan: And has your view of their closeness altered to the present day?
Mr M: No. I don’t think so. [The child], in the three times that I’ve seen her, has always maintained her primary allegiance to her father. She has always stated that she’s perfectly happy with the amount of time she spends with her mother, and she has not wanted to increase that. She occasionally expresses reservations about Mum’s house or how long she wants to spend with Mum, so her views have been pretty fixed. But, interestingly, she has – she has accepted changes that have occurred over that time.
Ms Ryan: Yes. So she has had increases in time, hasn’t she?
Mr M: Yes.
Ms Ryan: And she hasn’t complained about that after the increase, when you’ve next seen her?
Mr M: No. No.
The child’s relationship with Z is clearly not close at this time. In his third report dated 14 January 2016, Mr M said this:[60]
Whenever she goes to stay with her Mum, her half-brother Z is always at Mum’s friend’s house or with [an aunt]. [The child] has not seen Z at all and said she does not want to see him. When asked to say more about that [the child] stated that she used to live at Mum’s and Z once spat in her face. When she told her Mum, Mum said the police were going to come and get her, but they never did.
In reply to “is that the worst thing Z did to you?” [The child] said that once Mum put the pool up and she and Z were splashing in it. He tried to drown her. Generally she was worried that if she saw Z again he would mistreat her.
[60] See page 29 of his affidavit
He went on to say this:[61]
She has not seen her brother Z since my assessment of 24/07 /14, and she is perfectly happy to avoid him indefinitely. This seems to be based on her historical experiences of Z acting aggressively towards her. I have no problem with [the child] seeing Z in the safe environment of the (omitted) Children's Contact Service (DCCS). Once this has occurred on a few occasions, the caveat on Z’s presence when [the child] is with her mother needs to be lifted. I expect that [the child] will discover that Z is quite a different person to the brother she thinks she can remember from almost two years ago, and her fear of him will melt away with familiarity. Thereafter, she is perfectly capable of letting both parents know if she is feeling mistreated by her brother in any way. The issues involving Z are now so outdated that there should be an opportunity for a fresh start.
[61] Commencing at the foot of page 30 of his affidavit
I shall address the issue of re-establishing the child’s relationship with Z below.
The parents’ capacities to provide for the child’s needs
Both parties are capable of providing for the child’s physical and intellectual needs. However, I do have some concerns that the father may not have an adequate appreciation of the child’s emotional needs.
As mentioned above, the father said at the start of the hearing “I’m happy to show that I do believe that [the child] should see her mother…”,[62] but his actions throughout the hearing gave me the impression that he would rather not have the mother in the child’s life at all. His antipathy towards the mother, when combined with his inability to keep his own emotions in check, makes it very likely that he will not encourage the child’s relationship with the mother.
[62] Page 4 of the transcript
The attitudes of the parents to the child and parental responsibilities
There can be no doubt that the father is very committed to the child and he deserves congratulations for being her primary carer throughout most of her life.
It is clear to me that the father minimises his past consumption in relation to both alcohol and drugs.
He appeared to deny that he ever had an alcohol problem in the past, but conceded that he had lost his driver’s licence for being caught driving with high blood alcohol readings, and on the last occasion he lost his licence for three years. In my view, that is symptomatic of an inability to control one’s alcohol intake appropriately.
In a report to the Court in the earlier proceedings, a psychologist reported as follows about the father’s drug use:[63]
Asked about his own drug use, the father conceded sometimes using illicit drugs with the mother although he minimised his own use by saying that sometimes he joined her so she would use less. He said he first used cannabis when he was about 17 but had stopped by the time he was 21. He explained many of the sites he worked on had drug testing at the gate and it was simply not possible to work and use drugs. He said he first used amphetamines in about 2005 and commented about the superior quality of mainland speed to Tasmanian speed. He conceded intravenous drugs use during the relationship with the mother. He admitted that he used dexamphetamine arranged for him by the mother the day Y was born. He said he used amphetamines on two occasions after her birth, but never again since then.
[63] Paragraph 27 of Mr J’s report of 8 April 2010
The father was still minimising his past drug use in his closing submissions to me, when he said:
That is not a problem and that is not a drug addiction problem as Ms Ryan has just tried to state that it is. That is classed as recreational use. That is not a problem with drugs.[64]
[64] At the foot of page 368 of the transcript
Having said that, I am satisfied that the father no longer has problems with either alcohol or drugs, and he deserves congratulations for stopping his use of illicit drugs and any excessive use of alcohol. Further, I accept that he did that without the need to attend any drug or alcohol counselling.
In my view, it is unfortunate that the father appears to be unwilling to accept that the mother has also been able to stop her use of illicit drugs and any excessive use of alcohol without the need to attend drug or alcohol counselling. Indeed, his attitude shows a degree of hypocrisy on his part.
I accept that both parents have been able to give up illicit drug use and that neither consumes alcohol to excess.
It is clear that in order to continue her relationship with the child, the mother has:
·persisted with these proceedings in the face of significant opposition from the father;
·obtained a driver’s license to enable her to transport the child;
·volunteered to be “parent help” at the child’s school on a regular basis; and
·consented to an interim order that she must not bring the child into contact with Z.
Those factors persuade me that the mother has an appropriate attitude to her relationship with the child and her responsibilities as a parent.
Any family violence involving the child or family member
This consideration is addressed sufficiently above.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Subject to traffic, the time needed to drive between the mother’s home and the father’s home (or the child’s school) is less than 15 minutes.[65] Consequently, there are no practical difficulties or expenses associated with the child spending time with the mother.
[65] Source: Google Maps
The likely effect of any change in the child’s circumstances
The child will continue to live predominantly with her father, and that is appropriate in the circumstances.
The ICL and the mother are seeking a staged increase in the mother’s time with the child and for Z to be reintroduced into the child’s life.
I agree with the mother and the ICL that the child’s time with the mother should be increased, but I do not agree with the father that it should only be after the mother has undergone psychological counselling.
Because I have already determined that there is no unacceptable risk to the child from Z, it is clearly appropriate for the reintroduction between the child and Z to take place. I agree with Mr M that this should take place in a safe environment and “[when] this has occurred on a few occasions, the caveat on Z’s presence … needs to be lifted”.[66] The DCCS is apparently unable (or unwilling) to assist so I thank Mr M for being willing to do so.
[66] See page 30 of Mr M’s affidavit
The orders
I will make orders that are essentially similar to those proposed by the ICL (with some changes to suit my drafting style). I consider the orders to be in the best interests of the child.
The orders will provide that the parents are to have equal shared parental responsibility for the child, but I do not conclude that spending equal time with her parents is currently in the best interests of the child. The orders will progress to her spending substantial and significant time with each of the parents.[67]
[67] See subsections 65DAA(2) and (3)
The ICL also sought an injunction in final terms similar to an interim injunction that I made on 25 May 2015. It was as follows:
31. That until further Order the parties are each restrained from making any complaint to the relevant disciplinary body of any lawyer or psychologist involved in these proceedings without first applying for and obtaining the leave of this Court to make such a complaint.
The job of any lawyer involved in family law matters is not always easy. That job can be even more difficult if one is appointed to be an Independent Children’s Lawyer. The same must apply to the jobs of psychologists or psychiatrists who are appointed as court experts. That is because family law matters involving children are almost invariably complicated by the emotional involvement of each of the parents (which is only natural). Quite often, the ICL and/or the court expert will be required to make recommendations which are considered to be in the child’s best interests, but which do not suit one of the parties. It is therefore not unusual for that party to believe that the ICL and/or court expert has taken the side of the other party when that is just not the case.
The Guidelines for Independent Children’s Lawyers[68] endorsed by this Court and the Family Court of Australia note that the role of the ICL is unique and that a lawyer appointed to represent and promote the best interests of a child in family law proceedings has special responsibilities. They specifically state:
The way in which the ICL acts may not always meet with the approval of the parties or the child, but this does not mean that the ICL has failed in his/her professional responsibilities.
[68] See >
Those Guidelines go on to state:
The ICL is to act impartially and in a manner which is unfettered by considerations other than the best interests of the child.
The ICL must be truly independent of the court and the parties to the proceedings.[69]
The professional relationship provided by the ICL will be one of a skilful, competent and impartial best interests advocate.
The ICL should seek to work together with any Family Consultant or external expert involved in the case to promote the best interests of the child.
The ICL should assist the parties to reach a resolution, whether by negotiation or judicial determination, that is in the child’s best interests.
[69] Emphasis added by me
The parties in this matter have been involved in proceedings in this Court for a total of approximately five and a half years since the mother first filed an application in 2009, and I have effectively been the only judicial officer who has had carriage of the matter. Indeed, the only orders not made by me in those five and a half years have been:
·an Order for an adjournment by Federal Magistrate Turner (as she was then) when I was on sick leave in March 2011; and
·Consent Orders made by a Registrar when I was overseas in October 2014.
From what I have observed throughout that period of five and a half years, I can say without hesitation that the previous ICL (Mr Walker) and the current ICL (Ms Ryan) have acted properly and professionally at all times.
It is perfectly clear that the father does not believe that to be the case because;
·he has already made a complaint about Dr W; and
·during his tirade over the telephone on Tuesday 23 February 2016,[70] he made it very clear that he would also like to make a complaint against Ms Ryan.
[70] As set out in part at paragraph 14 of these Reasons
As the Guidelines that I have referred to above state; the role of an ICL is unique. I would add that ICLs get paid very little for what can often be a very difficult task.[71] However, even if they were better rewarded, they still would not deserve the unjustified criticisms that they sometimes receive from disaffected parents. If that disaffection results in a complaint to a disciplinary body, it will almost invariably involve many hours of work for which the ICL will receive no remuneration at all. It is therefore my view that it is entirely appropriate that there should be an injunction of the type being sought by the ICL in this matter. Such an injunction will not prevent any proper complaint being made, but it will provide an appropriate filter against any unjustified complaints being made. I will therefore make a permanent injunction, but it will be against the father only because there is no suggestion that the mother has any intention (or history) of making such a complaint.
[71] ICLs are almost invariably paid at Legal Aid rates
I also note that the father claims to be taking action of some sort against a lawyer who had previously acted for him in the earlier proceedings in this Court (Mr Edwards).[72] Although it is not germane to any orders that I will make today, I did not observe any unprofessional conduct on the part of Mr Edwards on any of the five separate occasions on which he appeared in Court for the father between September 2010 and February 2012.
[72] See page 311 of the transcript
Procedure
The orders that I make are set out at the start of these Reasons.
Any applications for costs arising from those orders will need to be made within the 28 days referred to in Rule 21.02 of this Court’s Rules. However, I point out that time is limited for me to deal with them because I must retire in June this year.[73]
[73] Pursuant to the terms of my appointment by the Governor-General on 9 November 2000
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 11 April 2016
[21] The previous ICL and his former lawyer
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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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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