JIN & JIN
[2020] FamCA 920
•3 November 2020
FAMILY COURT OF AUSTRALIA
| JIN & JIN | [2020] FamCA 920 |
| FAMILY LAW – PARENTING – Review of Senior Registrar’s decision – Where there is an Application before the Court to review a decision of the Senior Registrar in respect of interim parenting arrangements for the parties’ three (3) children – Where the father seeks that the parties’ youngest child live with him and spend each alternate weekend with the mother – Where the mother seeks that the children live with her and the parties’ youngest child spend supervised time with the father each Saturday for six (6) hours – Where the Independent Children’s Lawyer seeks that the children remain living with the parent that they currently reside with other than the parties’ youngest child who shall reside with each parent in a shared week-by-week arrangement – Where the eldest child currently lives with the father and spends no time with the mother – Where the middle child lives with the mother and spends no time with the father – Where the parties’ middle child has made allegations that the father has sexually abused her – Where the mother contends the parties’ youngest child is at risk while in the care of the father as a result of the allegations made by his elder sister and is also at risk of grooming and manipulative conduct on the part of the father – Where the father denies those allegations – Orders made dismissing the Application for a review and upholding Senior Registrar’s Orders. |
| Australian Constitution s 71 Family Law Act 1975 9Cth s 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA Family Law Rules 2004 (Cth) r 18.08, 18.10 |
| B and B (1993) FLC 92-357 Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017) pts VII-X Hon. John Fogarty AM, ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australian Journal of Family Law 249 |
| APPLICANT: | Mr Jin |
| RESPONDENT: | Ms Jin |
| INDEPENDENT CHILDREN’S LAWYER | Legal Aid NSW |
| FILE NUMBER: | SYC | 7272 | of | 2017 |
| DATE DELIVERED: | 3 November 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney by web conference |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 15 September 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Watkins |
| SOLICITOR FOR THE APPLICANT: | Duffy Law Group |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Crawford Ryan Lawyers Pty Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Clack of Legal Aid |
Orders
The Application in a Case filed 4 September 2020, for a review of the Senior Registrars decision and Orders dated 11 August 2020, be dismissed.
That the parties do all such things and sign any such document to cause the child Y born … 2008 to be enrolled in KK School for the 2021 school year and undertake not to remove him from that school or alter his enrolment without the written consent of the other party or by further order of this Court.
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 Jin & Jin 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 SYDNEY |
FILE NUMBER: SYC 7272 of 2017
| Mr Jin |
Applicant
And
| Ms Jin |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The parties, Mr Jin (“the father”) and Ms Jin (“the mother”), are involved in a dispute concerning the parenting arrangements for their three (3) children, X born in 2003, Z born in 2006 and Y born in 2008 (collectively “the children”).
This decision concerns an Application in a Case filed on 4 September 2020 by the father for a review of a decision made by Senior Registrar Campbell on 11 August 2020 in respect to interim parenting Orders. That decision by the Senior Registrar was as follows:
1. The children Z born in 2006 and Y born in 2008 (collectively ‘the children’) shall live with the mother.
2. The father shall cause Y to be returned to the mother’s care by 7.00pm today (11 August 2020).
3. The child X, born in 2003 shall spend time with the parties in accordance with her wishes.
4. I make no order in relation to Z spending time with the father.
5. Y shall spend supervised time with the father every Saturday from 9.00am until 5.00pm.
6. The time that Y spends with his father pursuant to order 4 shall be supervised by the father’s brother or, if the father’s brother is unable or unwilling to provide such supervision, then the time will be supervised by such person or organisation as may be agreed between the parties in writing.
7. In the event that the supervisor pursuant to orders 4 and 5 herein in the father brother or a person agreed between the parties (other than a person engaged by a commercial or community based supervision service) the father must forthwith file with the court an undertaking as to supervision, executed by the supervisor, in the usual terms.
As noted by counsel for the father, the primary issues before the Court concern the child Y and relate, specifically, to the parenting arrangements for Y and the school that he should attend when he commences high school at the beginning of 2021.
The determination of those issues, in these interim proceedings, involves the Court balancing the interests of the child having a meaningful relationship with both parents as against any potential risks to the child.
In this case, the mother contends that Y is at risk while in the care of the father as a result of allegations of sexual abuse made by his elder sister, Z. As will be detailed, in late 2017, Z first alleged that the father had acted inappropriately in showering with her, including in the period subsequent to the parties’ separation. Those allegations have increased in severity and the child now alleges that the father has sexually assaulted her.
The mother contends that the parties’ only son, Y, is at risk of similar sexual assault and/or grooming conduct on the part of the father and is otherwise at risk of being exposed to manipulative conduct on the part of the father with a view to the child being alienated from his mother. In that respect, the mother contends that the father has engaged in such conduct in respect to the parties’ eldest daughter, X, who now does not spend time with the mother.
While acknowledging that a review of the Senior Registrar’s decision involves a fresh hearing on all issues, counsel for the mother contended that the decision of the Senior Registrar achieved an appropriate balance between ensuring that Y has a meaningful relationship with his father while, at the same time, avoiding the child being at an unacceptable risk of physical and/or emotional harm.
The father contends that the Court would find Z’s allegations of sexual impropriety by the father towards Z to be without foundation and, on that basis alone, would uphold the father’s Application for review. The father contends that there is no risk of Y being sexually abused by him and that, contrary to the position asserted by the mother, the risk of the child being alienated is one of the mother alienating the child against the father. In that respect, the father contends that the mother has, on a previous occasion, advised the eldest child that she was sexually abused by her father and this, the father contends, is one reason that the parties’ eldest daughter is estranged from the mother.
Applications
Orders sought by the father
By way of Application in a Case filed on 4 September 2020, the father seeks the following order:
1. Pursuant to section 37A(9) of the Family Law Act 1975 (Cth), that the decision made by Senior Registrar Campbell of the Family Court of Australia at Sydney on 11 August 2020 be reviewed by a Judge of the Family Court of Australia.
In place of the Orders made by the Senior Registrar, the father applies for orders to be made in accordance with those set out in his Response to an Application in a Case filed on 6 August 2020 which, in respect of parenting arrangements, are as follows:
3. That the child Y born in 2008 live with the father.
4. That pending further order, Y spend time with the mother as follows:
(a) During school terms, each alternate weekend from after school or 3:00pm on Friday until before school or 9:00am on Monday;
(b) During the 2 week school holidays following term 3, for the first week commencing from after school or 3:00pm on the last day of the school term until 6:00pm on the middle Saturday;
(c) During the Christmas school holidays, for weeks one, three and five, with week one commencing from after school or 3:00pm on the last day of school and changeover to occur at 6:00pm on Saturdays; and
(d) At Christmas as agreed and failing agreement from 12:00pm Christmas Day until 6:00pm Boxing Day.
5 . That in the event Y suffers a medical emergency or serious illness, the father will inform the mother as soon as practicable.
6. That the mother be restrained from de-registering or removing Y from any extracurricular activity without the written consent of the father.
7. That the parents are restrained from discussing these proceedings or any allegations made in documents filed in these proceedings in the presence or hearing of Y.
8. That the parents are restrained from denigrating the other parent in the presence or hearing of Y or allowing any third party to denigrate the other parent in the presence or hearing of Y.
9. That commencing 2021 Y shall attend K School.
10. That the father shall meet the annual school fees for Y’s attendance at K School.
Orders sought by mother
The mother seeks an order that the father’s Application for review of the Senior Registrar’s decision be dismissed.
In respect of the interim parenting orders Applicant, the mother sought that orders be made in accordance with her Application in a Case filed 16 July 2020, set out as follows:
…
2. That the children X born in 2003, Z, born in 2006 and Y, born in 2008 live with the Mother.
3. That the children, X and Y be delivered together with such of their personal items, school requirements and clothing to the Mother's address by 5 pm on the day of the making of these Orders by the Father, should the Mother not otherwise be able to collect the children from their respective schools on the date of the making of this Order.
4. That the child, Y spend time with the Father each Saturday between the hours of 9am and 3pm or such other time as is agreed between the parties in writing provided such time is subject to supervision by a person or persons agreed upon in writing between the parties and failing agreement as to supervisor by professional supervision organisation, B Centre or a contact centre and the costs of such professional supervision service is to be met by the Father.
5. That unless otherwise agreed in writing between the parties that the Father be restrained and remain restrained from contacting each of the children other than in accordance with an Order of the Court.
6. That the Father be restrained and remain restrained from attending each of the children's schools being K School, Suburb LL, CC School, City E and EE School or at any other location, including the venue for extracurricular activities at which each of the children may attend from time to time other than in accordance with an Order of the Court.
7. That the Mother shall keep the Father informed of her and the children's current residential address and her mobile and landline telephone numbers and any available email address and advise of any change thereto within seven (7) days of such change.
8. In the event of childhood illness or emergency of a child or children the Mother shall contact the Father and inform him of the nature of such illness or emergency.
9. That the Mother be restrained from denigrating the Father or a member of the Father's family in the presence or hearing of the children and shall ensure no third party denigrates the other party or a member of their family in the presence or hearing of the children.
10. That the Mother be restrained from discussing these proceedings or the contents of any documents filed in these proceedings with or in the presence or hearing of the children.
11. That the Mother be at liberty to provide a copy of these Orders to each of the children's schools and/or organisations at which the children may participate in extracurricular activities from time to time.
12. That the Mother have sole parental responsibility for the purposes of enrolling the child, Y, in a high school at which he is scheduled to commence the school year in 2021.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks that orders be made in accordance with paragraph 34 of their case outline document filed on in 2020, as follows:
1. That the child X born in 2003 live with her father.
2. That the child Z born in 2006 live with her mother.
3. That the child Y born in 2008 shall reside in a shared, alternating week by week arrangement.
4. That the parents shall share long term parental responsibility for the child Y.
5. That the mother shall hold sole parental responsibility for the child Z.
6. That the father shall hold sole parental responsibility for the child X.
7. That X shall spend time with her mother as per her wishes.
8. That the parties do all such things and sign any such document to cause the child Y to be enrolled in K School for the 2021 school year and undertake not to remove him from that school or alter his enrolment without the written consent of the other party or by further order of this Court.
Evidence
The father relied upon the following documents:
a)Application in a Case filed 4 September 2020;
b)Response to an Application in a Case filed 6 August 2020;
c)Affidavit of the father filed 6 August 2020 (marked ‘Exhibit 1’);
d)Exhibits to the Affidavit of the father filed 6 August 2020;
e)Case outline document of the father filed 7 August 2020 (marked ‘Exhibit 3’);
f)Tender bundle of documents produced under subpoena (marked ‘Exhibit 2’); and
g)Affidavit of Ms Sarah Kermode filed 4 September 2020.
The mother relied upon the following documents:
a)Application in a Case filed 16 July 2020;
b)Affidavit of the mother filed 6 August 2020 (marked ‘Exhibit 7’);
c)Case outline document of the mother filed in 2020 (marked ‘Exhibit 8’); and
d)Tender bundle of documents of the mother (marked ‘Exhibit 9’).
The Independent Children’s Lawyer relied upon the following documents:
a)Case outline document of the Independent Children’s Lawyer filed in 2020 (marked ‘Exhibit 5’);
b)Independent Children’s Lawyer’s tender bundle of documents (marked ‘Exhibit 6’); and
c)Family Report of Dr F dated 5 June 2020 (marked ‘Exhibit 4’).
Nature of a review of a registrar’s decision
Rule 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”) enables a party to apply for a review of an order made by a Registrar.
Rule 18.10 of the Rules sets out the power of the Court on review which is by way of an original hearing or, in other words, proceeds by hearing de novo:
Power of court on review
(1) A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2) The court may receive as evidence:
(a) any affidavit or exhibit tendered in the first hearing;
(b) any further affidavit or exhibit;
(c) the transcript (if any) of the first hearing; or
(d) if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
These relevant rules reflect that the Family Court of Australia is a federal court exercising the judicial power of the Commonwealth pursuant to s 71 of the Constitution. In those circumstances, the delegation of powers and functions performed by the Court to a Registrar of the Court will be valid only if the exercise of that delegated jurisdiction is subject to review by a judge on all issues, including findings in respect to both relevant facts and law: see Harris v Caladine (1991) 172 CLR 84 at 85.
Accordingly, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [43].
Interim parenting orders
The decision of the Full Court in Goode and Goode (2006) FLC 93-286 usefully sets out the approach which should be taken in considering an application for interim parenting orders. At [81]-[82], under the subheading “How should interim proceedings be conducted?”, the Full Court said:
81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Cowling v Cowling (1998) FLC 92-801 at [18], the Full Court said:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Competing proposals of the parties
The competing proposals of the parties are set out in the parties’ respective applications and responses which have been referred to above.
Agreed and objectively verifiable facts
In 1970, the father was born. He is currently aged 50 years.
In 1980, the mother was born. She is currently aged 40 years.
In 2002, the parties commenced cohabitation.
On in 2003, the parties’ eldest daughter, X, was born. She is currently aged 16 years.
In 2006, the parties married.
In 2006, the parties’ second daughter, Z, was born. She is currently aged 14 years.
In 2008, the parties’ son, Y, was born. He is currently aged 12 years.
On 1 December 2016, the parties separated and, on 2 January 2017, the mother moved out of the former matrimonial home.
Between January 2017 and September 2017, both of the parties’ daughters lived in an equal shared care arrangement with the parties. That arrangement in respect of the parties’ son Y continued until May 2020.
Z has lived solely with the mother since late-September 2017 and, other than on two (2) occasions, has not spent time with the father.
In early 2017, the mother commenced a relationship with Mr G and they live in rented accommodation in a suburb in City E.
After Z left the residence of the father in late-September 2017, she made a disclosure to the mother in which the child contended that the father had been sleeping in the same bed as her and that the father had showered with her.
On 18 January 2018, Z was interviewed by police regarding allegations that she had made against the father. The father contends that this interview was conducted on 19 January 2018.
On 25 January 2018, the father participated in a limited interview with police and investigating officers of the Joint Investigation Response Team (“JIRT”).
On 17 July 2018, by consent Orders made by Judge Kemp, Dr F was appointed as a Single Expert to provide a report to the Court concerning issues in the parenting proceedings, including those matters set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). Dr F’s report was delayed as a result of investigations relating to allegations by Z that she has been sexually abused by her father.
In July 2018, Z was taken to JJ Hospital by the mother after overdosing on paracetamol and Nurofen. The child made a disclosure to the treating psychiatrist at the hospital that the father had physically and sexually abused her.
In August 2018, Z was further interviewed by police.
In September or October 2018, Z commenced seeing a counsellor, Ms H.
In 2018, the parties divorced.
In the period from September 2019 to date, the parties’ eldest child, X, has lived with the father and spends no time with the mother.
On 17 February 2020, Z made allegations about the father to the counsellor, Ms H, which resulted in Ms H making a mandatory report.
On 8 May 2020, Z alleged, to the mother, that the father had engaged in penetrative sexual intercourse with her.
On 14 May 2020, Y and Z went to stay with their maternal grandmother and her cousin in northern New South Wales until 28 May 2020. Prior to Y travelling to northern New South Wales with his sister Z, the mother removed Y’s phone which had been provided to him approximately 12 months prior by his father. Upon their return, the mother did not facilitate Y spending time with the father in accordance with existing Orders.
On 20 May 2020, the father filed an Application in a Case in the Federal Circuit Court of Australia seeking urgent Orders for the recovery of the child Y in circumstances where he alleged that Y had been “wrongfully retained” by his mother on 17 May 2020.
On 10 June 2020, Judge Kemp made an Order releasing the Family Report prepared by Dr F dated 5 June 2020 to the parties.
On 12 June 2020, the mother filed a Response to an Application in a Case seeking, inter alia, that the father return X to her care and that Y spend time with the father on a supervised basis.
On 17 June 2020, the matter was listed before Judge Kemp of the Federal Circuit Court of Australia, at which time his Honour made Orders for the mother to facilitate Y returning to school in circumstances where he had failed to return on 25 May 2020 following a period of shutdown in response to the COVID-19 pandemic. Judge Kemp otherwise made no additional orders in respect to the living arrangements of the children and transferred the matter to the Family Court of Australia.
In June 2020, Z was interviewed by a representative of Department of Family and Community Justice (“FACS”), as they were then known, in respect to her allegations that the father had sexually abused her, including by engaging in penetrative intercourse.
On 20 June 2020, the mother returned Y’s mobile phone to Y. As noted above, the phone had been removed from Y by the mother on or about 14 May 2020. After the phone was returned to Y on 20 June 2020, there were several text message exchanges between Y and his father.
In June 2020, Z was further interviewed by police regarding her allegations.
On 9 July 2020, the father collected Y from his mother’s home at approximately 4:30 am. This was followed by a series of text message exchanges between the father and Y sent throughout the night and early hours of the morning.
Y remained exclusively in the father’s care from 9 July 2020 until the Orders were made by the Senior Registrar on 11 August 2020.
Relevant legal principles
Part VII of the the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These 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.
Significantly, in Masson v Parsons (2019) 368 ALR 583 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that:
Subdivision B of Div 1 of Pt VII [of the Act], which is headed “[o]bject, principles and outline”, provides, inter alia, in s 60B(1) that the objects of Pt VII include “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”
(Emphasis in original)
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”: s 43(1)(c) of the Act [Emphasis added]. Those rights include:
·The right “to know and be cared for by both their parents”: s 60B(2)(a) of the Act;
·The 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)”: s 60B(2)(b) of the Act; and
·The right to “maintain personal relations and direct contact with both parents on a regular basis”: s 60CC(3)(e) of the Act.
Presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1) When making a parenting order in relation to a child, 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In this case, a significant issue that the Court will be required to determine at final hearing is whether the allegations of abuse made against the father have any merit such that the presumption of equal shared parental responsibility would not apply. In these interim proceedings, however, I am required to take a cautious approach and, in doing so, do not consider that it would be appropriate, in the circumstances, for the presumption to be applied.
As I have determined that the presumption of equal shared parental responsibility does not apply, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply.
The Court is, therefore, at large in making orders that it considers to be in the best interests of the children in the context of the issues raised in these interim proceedings.
Determining what is in the best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests.
In Banks & Banks (2015) FLC 93-637 at 80,116, the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act in interim proceedings in the following terms:
48. It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at a trial…
49. … there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The Act requires the Court to consider all of the s 60CC factors and I have done so below. However, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) of the Act against one another. Those 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 balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is, as noted, whether there is an unacceptable risk of harm in the child spending time with either parent.
Section 60CC(3) of the Act refers to a number of additional factors that the Court is required to consider in determining what orders are in the best interests of the child. I describe those as the secondary considerations and will subsequently set out those secondary considerations in greater detail.
In interim proceedings, it is not possible to make findings of fact where those facts are contested. In that context, to the extent that I am able, I will set out those matters relevant to the s 60CC(3) considerations before discussing the primary considerations of ‘meaningful relationship’ and ‘issue of risk’.
Secondary considerations
Subsection (3)(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
It is acknowledged by both parties that Y has expressed the view that he wishes to spend a week about arrangement with both parents.
At paragraph 81 of his Affidavit, the father sets out the following telephone conversation which he contends he had with Y on 4 July 2020:
Y: “Dad, I miss you. I want to come back to your place. I want things to return to the way they were”.
[The father]: “I know mate”.
Y: “I really wanted to play football with my team this weekend”.
[The father]: “Hopefully everything will be sorted out soon”.
Y: “I told Mum I wanted to see you, but she told me that until the investigation was over I have to live with her and it’s unlikely I’ll spent much time with you. When I pushed her further about wanting to see you she didn’t answer me. She told me she registered me at another football club, but I want to play at Suburb J. I texted her today and told her I want to play at Suburb J, not the new team”.
[The father]: “I know this is confusing for you mate. I’ll try to work it out for you, OK.”
Y: “OK Dad”.
The father further attests that, on 2 August 2020, he was approached by Y who said to him, “Dad, I have made a decision about what I want to do. I want to live with you for most of the time and spend time with Mum sparingly”.
At paragraph 105 of his Affidavit, the father concedes, however, that one of the reasons that Y may want to live with the father rather than the mother is because he wants to attend K School, which is located in close proximity to the father’s home.
At paragraph 149 of her Report, Dr F states:
149. The children vary significantly in their views, in particular their family experience and desire to spend time with their father. X who was 16 years old at the time of the interviews, seemed to hold a bipartisan and balanced position where she considered both parents to take an active part in her life and she wished to maintain a relationship with each of them. While the parties made allegations that X has been exposed to undermining conversations by the other in an attempt to seek her alignment with their views, that was not borne out by the interviews with X for the purposes of this report, nor were they mentioned by Ms L who completed the Child Inclusive Conference Memorandum in 2018. Similarly, while Ms Jin and Ms M made allegations that X was treated harshly by Mr Jin in the past and X had chosen to deny that experience, X’s accounts were that her father had been an active and involved parent in her life, especially in respect of her sport. It may be that Mr Jin has placed demands on X and according to Ms Jin has derided her for not achieving sufficiently well, however, it would seem that both parents have held very high academic expectations of their children, especially X and Z and this was echoed by Ms N at EE School and evident in Ms Jin’s behaviour in seeking for Z to be accepted to CC School. It is a credit to X and indicative of her level of maturity that she had, until September 2019, been able to maintain a relationship with both parents and wished that to continue, albeit that she indicated that logistically as she entered her later years of high school, it would be preferable for her to base herself in one household.
150. X’s disclosures suggest she is highly committed to her school work and extracurricular activities and she is focused on her achievements. In the light of the highly conflicted family environment X finds herself, it is possible that her focus on her school work provides her with a distraction from the chaos in her home environment. This seems to have come to a head in September 2019, since when X has self-placed with her father and is not having contact with her mother or sister. It is unfortunate that X has felt the need to align herself with one parent, especially given that only months previously she had spoken so positively of the relationship with both parents. However, it is possible, that the conflict reached a point where she was unable to move between the two households without pressure being exerted on her to align herself with one parent as a form of protection from the emotional tug-o-war. Given X’s age, providing there are no issues of safety, considerable weight should be accorded to her views.
151. Z expressed views which echo those of her mother in respect of her father and paternal family. She disclosed that she was the preferred child to her father and the paternal family whose expectations of her were conditional on her being a high achiever, a value that is highly prized by the Jin family. Her disclosures in September 2017 that her father made her feel afraid after he reprimanded her were followed by further disclosures that, throughout 2017 while she was spending time with her father and prior to that time, he invaded her boundaries in the shower, kissed her on the lips and expected her and Y to share his bed. Her rejection of her father is strong and vehement and according to her current psychologist, unlikely to change. Z is now thirteen years and ten months old. There is a strong chance that any pressure placed on Z to spend time with her father against her wishes is likely to lead to more dysregulated behaviour including further self-harm attempts and disclosures that she is afraid of Mr Jin and at risk in his care.
152. Z expressed strong views at the interview and now to her psychologist that she wishes to remain exclusively in her mother’s care and not spend time with her father. If there are no grounds or at risk concerns for Z, her articulated views could be seen as manipulative and maybe a rejection of the pressure which she experienced from the paternal family and/or a wish to align herself with her mother. If on the other hand, the Court establishes that there has been some transgression on Mr Jin’s part, Z’s views could be seen as self-protective and a mature and courageous way of dealing with a family situation where she feels unsafe.
153. Y expressed a desire to have relationship with both parents and for the equal shared care arrangements to continue. He presented bipartisan views of each of his parents and the care they provide for him. Compared to his sisters, Y has been relatively spared of the influences and pressures that seemed to have come to bear on his siblings as revealed by their disclosures.
Subsection (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child
In her interview with Dr F, the mother stated that she believes that X and Y love their father and that, in his own way, he loves them.
In paragraphs 82 and 83 of his Affidavit, the father attests to Y expressing a desire to interact with his paternal family, including playing golf with his paternal uncle, Mr MM.
The mother advised Dr F in her interview that she believes that Z “misses her paternal extended family dreadfully”.
At paragraphs 154 to 166 of her Report, Dr F reported as follows:
154. The parties provided somewhat different reports of their perceptions of the children’s relationships with them prior to their separation. Ms Jin perceives her relationship with the children to have been strong and secure and that she was their primary attachment figure. She considers herself to have been nurturing and protective and the parent who provided the emotional sustenance for the children even though there are probably times when inadvertently she may have been emotionally unavailable because of her preoccupation with her own needs, especially during periods when she claimed she suffered from illness resulting from her diagnosis with a health condition and was in her view, unsupported by Mr Jin.
155. Ms Jin perceives the children’s relationship with their father to have been one based on fear but not founded on a highly significant emotional connection. From her perspective, Mr Jin was absent from the children’s lives and it was only in the final months prior to the separation that he began showing a more visible presence in the family context. She asserted that Mr Jin’s intimidating and demanding attitude towards the children resulted in them being fearful and anxious in his presence. Ms Jin seems to project her own experience of Mr Jin onto the children and she seems to find it difficult to accept that her experience of Mr Jin may be different to that of the children. She referred to this specifically in respect of identifying with Z’s reported experience of Mr Jin.
156. Mr Jin disputed this and alleged that he was a significant presence especially on weekends when he was an active part of the children’s sporting life. He asserted that the records from the children’s football and surfing clubs would attest to his visibility throughout the marriage. He referred to the warmth in the messages that were exchanged between himself and Z in the immediate post separation period as an indication of the strength of their relationship. He agreed that the children have a close relationship with their mother although he questioned her capacity to facilitate Z’s relationship with him and fears she may be undermining him to Z, in particular.
157. It is perplexing that, notwithstanding the allegations that Ms Jin made of Mr Jin and his pre-separation parenting involvement and behaviour even to the point where she had suggested to X that she goes to the house of her friend, Mr PP, if she felt afraid, she agreed to allow arrangements that were tantamount to equal shared care from the time the parties separated. Even if that is what the children desired and/or Ms Jin was afraid of Mr Jin’s reaction if she did not agree, questions would have to be raised about her protective capacity and ability to prioritise the children’s needs if she agreed to the children spending from Thursday afternoon to Sunday afternoon each week with their father believing they were at risk. Once she initiated proceedings in November 2017, at which time Z had already become partially estranged from her father, her application was only for property orders. In her reply in February 2018, at which time the first investigation of allegations Z made about Mr Jin’s inappropriate sexualized behaviour had occurred in January 2018, her proposal was for X and Y to continue spending substantial care time with their father while Z could be left to decide for herself how much time she spends with Mr Jin. If Ms Jin did have concerns about Mr Jin’s parenting capacity, she was somewhat remiss in putting in place protective strategies for X and Y in the face of the emerging allegations.
158. As the proceedings have evolved, X and Y were able to preserve intact relationships with both parents, Mr G and members of their respective paternal and maternal extended families until September 2019. Both X and Y considered each parent to be there for them and responsive to their needs.
159. X presented as a mature and responsible child who, until the time of the interviews at least, reported that both parents were nurturing and loving. Her views in this regard did not differ to those expressed to Ms L in the Child Inclusive Memorandum interview. She seemed to have taken on a role of keeping her parents separate from each other in order to minimize the chances of further conflict. She also described how she compartmenalises which is a defense she has adopted to deal with the “ugliness” of her family life. X appeared to want to please both parents and referred to the tension she experienced speaking with her mother about any living arrangements that differed from what was currently in place out of fear that her mother might think she is rebelling. There also seemed some tension in the mother/daughter relationship as reported by Mr G. Although X nominated both parents as being there for her, she reported that she preferred to deal with issues on her own and from all accounts, engaged minimally with the counsellor to whom she was referred in 2017 although that may have changed in in recent times since she has engaged with Dr N. Hopefully, that provides X with a neutral space free of the pressure from either parent to share her feelings.
160. Ms Jin believed that for X in particular, the elevated role she has been accorded in her father’s household compensates X with attention she has not received from him in the past and therefore fills a void in the father/daughter relationship. She considered X as having inappropriately stepped into being Mr Jin’s confidante and had at times become a scout to solicit information about her to report back to Mr Jin. There seemed to be limited insight on Ms Jin’s part on how her behaviour may have been impacting on X and their relationship and X’s reluctance to address issues with her because of the feared consequences. If it is the case that she involved X in undermining discussions about the paternal family in September 2019, that would have been contraindictive to the mother/daughter relationship and could have easily been a contributing factor to X’s decision to self-place.
161. On the other hand, Z seems to have become progressively more estranged from her father and paternal family with whom she has previously had a close relationship. In her disclosures and the subpoenaed documents, Z presented as a highly intelligent but also troubled child. She appears to have experienced a problematic trajectory since the separation and she perceives her decision to sever the relationship with her father in September 2017 as a way of setting boundaries to his infringement on her personal space. Notwithstanding the closeness that Z seemed to previously enjoy with her father and the warm exchanges that had occurred between them, Z has not been able to repair the rupture in the father/daughter relationship. Z disclosed in the context of the interview that she feared her father’s anger that she would be silenced in the father’s household if she was to resume seeing him. She has progressively made more and more allegations about her father which suggest that it will become increasingly difficult to effect repair. If Z’s experience with her father is as she discloses, it is likely that she would feel unheard and not understood by him and that she would feel resentful towards him for not acknowledging the impact of his actions, even if they were not sinister.
162. There seems to be ongoing tension in Z’s relationship with her mother as evidenced in May 2018 when Z ran from her mother to her father in order to secure spending the night with a friend. The reported history of Z’s relationship with her mother and notations in the JJ Hospital documents where Z suggested that her relationship with her maternal grandmother is stronger than that with her mother are significant. Similarly, there have been disclosures in Ms P’s notes that Z feels but some difficulties with her mother. Ms Jin stated that she and Mr G continue to engage with therapy to acquire strategies to deal with Z’s dysregulation and behaviour which at times can be challenging. Ms P’s notes make reference to the closeness Z feels to Mr G and Ms Jin also made reference to some sexualized behaviour in Z’s interactions with Mr G. It is perplexing that Z is using Mr G in her email address. There may be some boundary issues in the relationship Z has with Mr G which warrant further exploration.
163. It is possible that through the proceedings and the various investigations that have occurred, Z has received the attention which she was longing to receive from her mother and provides some reassurance for any fragility in the mother/daughter relationship. It may be that Z revels in the one on one attention she currently receives from her mother and it is noteworthy that both to Ms L and in the course of the interviews for this report, she did not express a concern for her siblings and considered it to be their prerogative whether they continued to spend time with their father. Many of Z’s criticisms of her father and his family echo those Ms Jin and it is not beyond the realms of possibility that she and her mother have been brought closer together by defining Mr Jin and members of his family as a common enemy.
164. Y reported that he has strong and secure relationships with both parents and that both of them are nurturing to him. His views for the purposes of this report, do not differ significantly from those expressed to Ms L in February 2018. Although Ms Jin and Z suggest that Y may be fearful of Mr Jin and unable to stand up to him and assert his views, for example, in respect of what school he might attend once he begins high school, this is not congruent with Y’s disclosures of the strength of the relationship he enjoys with both parents, his siblings, especially X and members of his extended families.
165. Unfortunately, the trajectory that this family has taken has resulted in tension in the sibling sub-group. X and Y did not always seem au-fait with the reasons for which Z no longer spent time with their father. They became involved in trying to re-engage her back into the father’s household through their conversations and delivering gifts from their father which to Z seemed to have seen as an indication that they have overstepped the mark of the sibling responsibilities. This has resulted in tension in the sibling relationships. Z was critical of her siblings and of their relationships with her. Currently, there is a split in the sibling group with Y being the only child who can move between the two households and maintain a relationship with both parents, siblings and members of extended families.
166. The parties need to appreciate that there are likely to be a number of factors impacting on the children’s relationship with each parent which are related to the children themselves and factors to which both parties have contributed. Such factors include the pre-separation relationships and alignments which have already been referred to. Children sometimes choose to align themselves with a parent who they believe is vulnerable and needs them, the parent who is the primary care giving parent or the parent the children are most afraid to reject because of the anticipated consequences. These factors, based on the reports of the parties, are pertinent in this case.
Subsection (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child
The father attests to taking a keen interest in the children’s sporting and educational activities. This does not appear to be contested by the mother.
As is made apparent in the text message exchange which the father contends occurred between the father and Y, as set out at paragraph 81 of the Affidavit of the father, and to which I have referred above, Y has indicated an eagerness to involve his father in decisions regarding his extracurricular activities. Y advised Dr F that his father has been the coach of his football team when he played with a local team at Suburb J.
In her interview with Dr F, X stated that her father spends time with her by engaging in activities such as playing football, cooking and watching movies as a family and that her father helps her with her studies and she enjoys discussing general knowledge topics with him. X described her father to Dr F as “kind, thoughtful, gentle, loving, supportive, empathetic and charismatic”.
X advised Dr F that she engages in similar activities in her mother’s home and stated that, when she was spending time with her mother and with Mr G, she enjoyed boating on the lake and attending a local recreational park. X described her mother as “kind, gentle, loving supportive, understanding and charismatic” and Mr G as “kind, caring, understanding, gentle and fun”.
X also described having positive relationships with each of her siblings and close relationships with members of both her extended maternal and paternal families.
Subsection (3)(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.
The mother contends that the father has not attended to the payment of all of X’s school fees. However, even if that is the case, his omission to do so is not a relevant consideration in this decision.
Subsection (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
At paragraphs 167 to 170 of her Report, Dr F reported the following:
167. X and Y had substantial or equal shared arrangements for almost three years post-separation. These were arrangements that were agreed to by the parties and sought by them in their Application and Reply. Although at the time of the interviews X and Y voiced views that they wished those arrangements to continue, X who is now in her later adolescence, has self-placed with her father in accordance with arrangements she had mooted she would desire in the future. In the light of X’s age, the parties would be advised to allow living arrangements in accordance with her wishes unless at risk concerns are identified. Even then, there would be no assurance that X would agree to living with her mother if their relationship has become fractured and they have been unable to affect any repair to their estrangement.
168. Z had similar living arrangements to her siblings for the first nine months post separation but it has now been over two and one half years since she has spent time with her father except for an outing at Christmas 2017 and an isolated incident in May 2018 when she impulsively ran to her father. It is noted that from May 2018 until August 2018 there were a number of issues which troubled Z including the aforementioned incident in May 2018 which seemed to have some element of manipulation on the part of Z to secure a certain outcome, difficulties with gaining acceptance to CC School and a suicide attempt in August 2018.
169. Mr Jin is seeking Orders for Z to resume spending time with him. The parties have both mentioned the prospect of this happening through the assistance of family therapy, however, this option seems to have gathered no momentum. Any changes to Z’s current living arrangements, if they were to occur, would need to be canvassed and managed in the context of a well-supported, specialised therapeutic intervention and, even with that intervention, there is a likelihood that it may not eventuate. In the light of the therapy Z has already received, her articulated views and the hostility that currently exists between the parties, it is difficult to envisage that family therapy will have any efficacy unless it is complimented by major changes in the Z’s demeanour and the parenting relationship. Without this, attempts at repairing the father/daughter relationship through family therapy could result in further hostility, anger and resistance from Z who may even make further allegations. It is difficult to see how this would be helpful to Z and may only put even more stress on her.
170. The issue in this matter would seem to be the living arrangements for Y who will be turning 12 in September 2020. Providing there are no risk issues identified in either household, it is important that Y maintains the current living arrangements thereby allowing him to spend time with each parent and his siblings. He is unfortunately moving between the two households in isolation of his sibling group. Collapsing time, particularly if Y continues to feel the pressure of the adult dispute, he may follow the example of his sisters and self-place with one parent, possibly under crisis conditions, at the exclusion of the other parent. He reported that he believes he will be attending K School which could be that logistically, living with his father becomes the easier option.
Both the father and the Independent Children’s Lawyer emphasise this aspect of Dr F’s report in proposing orders for Y to spend equal time with each parent. It is to be noted, however, that Dr F’s recommendation to that effect was subject to the Court finding that “there are no risk issues identified in either household”. For reasons which I set out below, upon taking a cautious approach, as I am required by authorities to do in interim parenting proceedings, I am satisfied that there is an unacceptable risk to Y in spending overnight time with his father.
Subsection (3)(e) and (3)(f) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis and the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs
The mother is employed, and she works the following hours:
a)Monday to Wednesday from 9:00am to 3:00pm; and
b)Saturday and Sunday from 9:00am to 5:00pm.
The mother attests that, on those occasions that she is at work, the children – that is, Z and Y – are supervised by her partner, Mr G, or her mother, Ms M.
In her interview with Dr F, the mother expressed concern regarding the father’s parenting capacity in several respects. Firstly, the mother claimed that the father places pressure on the children and that they are afraid of him. Dr F states that the mother also alleged that X has become “her father’s confidant” despite having had the father’s anger directed towards her. The mother further contends that the father has inappropriate boundaries in respect of co-sleeping and showering with the children and contends that the father does not take sufficient care of the children. In that respect, the mother provided Dr F with an example of an occasion on which the father did not ensure that the children wore sunscreen and took a bottle of water with them when attending a swimming carnival.
The father attests to the following routine when Y is in his care:
When Y is in my care our usual routine on school days involves organising breakfast and lunches before I drive him and his sister to school. In the afternoons, I pick him up after school and he has a small snack before he completes any homework he has. If he doesn’t have any homework, I give him some supplementary work. After that is complete, we may go out for a physical activity, time and weather depending. In months when football season is on, I take him to training 1 or 2 nights per week. The early evening, I prepare dinner and after dinner, we might watch a movie. Y is usually in bed around 9:00pm, although during school holidays and on weekends, he might stay up later. On weekends and in school holidays, we visit my extended family, attend football matches or go for a meal in town. Y will sometimes have a friend over to play with, and spends time with his sister X, exercising, going to the park, swimming or playing basketball. I encourage the kids to be physically active rather than to spend time playing computer games. Y has recently started enjoying playing golf with my brother Mr MM. We go out on golf days and spend a few hours here and there at the driving range hitting golf balls.
At paragraph 14 of her Report, Dr F refers to clinical notes of the father’s treating counsellor, Mr Q, who provided therapy to the father during 2017 and 2018. Dr F notes that Mr Q prepared a report dated 9 March 2018, in which he reported that the father “had been committed to therapy, and an unlikely threat to his children”. Dr F further recorded in her Report that the notes produced by Mr Q “suggest that [the father] engaged in psycho education about how to manage the children’s behaviour”.
There is no indication, however, that Mr Q considered Z’s statements to police and investigators from FACS in which she alleged that she had been sexually abused by the father. Nor is there an indication that Mr Q considered the statement that the father provided to police that he had, on occasions when Z stayed with him, been naked in the bathroom while Z was also naked in the bathroom in the context of, as contended by the father, the father getting into the shower immediately after Z had finished. Specifically, there was no indication that Mr Q was advised that such conduct continued in circumstances where Z was approaching puberty.
At paragraphs 179 to 185 of her Report, Dr F reported as follows:
179. It seems that the parties adopted quite traditional roles in the marriage. Mr Jin was the breadwinner who became more immersed in that role as he developed his own business while Ms Jin was the homemaker. In addition, it seems that Ms Jin provided for the greater part of the children’s day to day needs and considers herself to have largely performed the role alone and to being discounted by Mr Jin when she reached out to him for help.
180. Mr Jin acknowledged that Ms Jin assumed the bulk of the parenting responsibilities while he was at work. Generally, he was not critical of the way she cared for the children. He asserted he played an auxiliary parenting role when he was at home, especially on weekends when he took the children to their sporting and extracurricular activities.
181. The accounts of the parties would suggest that while both parties were visible in the children’s lives, Ms Jin was the primary source of their emotional nurturance although Mr Jin referred to both X and Z speaking to him first when they commenced menstruating. Both parties seemed to have disciplined the children when needed. Ms Jin was critical of Mr Jin for being the harsher of the parents in his discipline style while Mr Jin asserted that there were some punitive acts of physical discipline perpetrated by Ms Jin as well.
182. The separation signaled a dramatic change in the circumstances of the parties and the children. The parties both became involved in the hands on care of the children and meeting their day to day needs. The way in which the parties initially made arrangements for the children meant that Mr Jin attended to their weekend activities while Ms Jin met their needs during the week. These arrangements possibly reflected the adults’ needs and commitments at the time, however, they subsequently changed and X and Y commenced spending alternate weeks with each parent. Even though Ms Jin was suspicious of Mr Jin’s capacity to meet the children’s needs, at least from the perspective of X and Y, both parties played an equal role in meeting their emotional, physical, social, extracurricular and intellectual needs particularly since the separation. This was confirmed by the teachers at the children’s school.
183. Since September 2017, Ms Jin has been the parent who has unilaterally attended to Z’s educational, extracurricular, psychological, therapy and medical needs. She has needed to do this on her own with the support of Mr G. Ms Jin has advocated earnestly for Z, for example, reporting incidents of alleged abuse by Mr Jin, seeking therapy, for Z, ensuring that she was accepted at the CC School for 2019 and dealing with issues that arose at the football club. There was some disquiet at the time about how Ms Jin managed the issue with the football club including her use of social media and reacting to decisions that were made by the team during training sessions which Z had missed.
184. Both parents indicated a strong willingness to contribute to their children’s lives and meet their needs. Mr Jin would like to be involved in meeting Z’s needs. He feels completely sidelined from Z and questions how he can affect a re-introduction. Realistically, Ms R was the only therapist who sought to involve Mr Jin and it is noted that Ms Jin questioned the appropriateness of Mr Jin infringing on Z’s therapeutic space. While this might be difficult for Mr Jin to accept Z’s rejection of him, given the relationship he claims to have enjoyed with Z in the past, he also needs to appreciate how difficult it is for a child to reel back once they have made such serious allegations about a parent.
185. The parents need to be mindful that the children currently have certain needs that are consistent with their developmental stage. X and Z are in their adolescent years and developmentally as part of their quest to develop their identity, they will most likely distance themselves from their immediate family and will consolidate relationships with peers who will assume greater importance in their lives. Each of them is a high academic achiever, and their focus is likely to be on their academic pursuits. Y is at the later stage of the latency period. His energies need to be ploughed into his school and extracurricular activities which allow him to continue to feel a sense of pride and competence in his accomplishments and abilities. Unlike his sisters, Y does not have the same academic acumen and as Ms N, the principal of his school suggested, the parties may need to be mindful of that in their expectations of Y.
While it is not possible to make findings in respect to the issue, in these interim proceedings, Dr F postulates that there may be some issues in respect to each of the parties’ respective backgrounds and personality traits that are relevant to the current dispute between the parties and the likely trajectory of that dispute. Unfortunately, there is a real possibility that the predicted trajectory will have an adverse impact on the children. In that respect, at paragraphs 194 to 197 of her Report, Dr F reported as follows:
194. Neither party reported any current mental health concerns, nor does there seem to be any past mental health diagnoses. They reported they have experienced anxiety and stress arising from stressors in their relationship, serious physical health concerns in the case of Ms Jin especially, poor and conflicted communication and financial difficulties.
195. According to the reports of both parties, the other has some scarring and abusive childhood experiences at the hands of their parents. Such experiences, if they did happen, are likely have impacted on their parenting capacity and given reason for the parties being suspicious of the other’s parenting behaviour. It is also not uncommon for patterns which occur in a family to manifest intergenerationally. It is unclear whether the parties have worked on resolving any family of origin issues in the therapy with which they have engaged.
196. Based on the presentation of the parties for this assessment, neither of them currently has any mental health concerns that would impact on their parenting capacity, however, some of their past and current behaviour including their need for control, inability to consider the perspectives of others, impulsivity and emotional dysregulation are highly counterproductive to their co-parenting capacity. Parents who have a propensity for emotional dysregulation may be more authoritarian, inconsistent and likely to respond angrily to their children’s testing behaviour.
197. The parties also need to be mindful that the pressure of ongoing proceedings is highly stressful. It is not uncommon for a separation to impact adversely on the stress levels of parties with the result that symptoms of anxiety and depression manifest. It seems to have been the case for both parties that, in addition to their pre-separation acrimony, they have had a stressful post-separation trajectory which has been compounded by ongoing litigation about property and parenting as well as investigation of sexual assault allegations with the police and therapeutic intervention especially for Z.
Subsection (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks relevant
Counsel for the father contended that, in assessing the question of risk, the Court should have regard to the presentation of the children in assessing the credibility of their accounts of the father’s conduct.
In that respect, it was noted that, in her Report, Dr F stated that X, who is now 16 years old, “presented as a considered, polite, articulate and reflective adolescent”. It was noted that X is respected by her teachers and had consistently performed well at school.
Comparatively, Dr F observed that Z, who is now 13 years old, “presented as [a] troubled child who became quite distressed at several points in interview”. It was observed, however, that Z is “a gifted student and was offered a place in the opportunity class steam [sic] at DD School”.
Dr F read the clinical notes produced by Dr T which indicated that, prior to 23 August 2018, Z did not want to leave the house, was having nightmares, going to bed late and waking up late and refused to attend school.
In respect to Y, Dr F observed that he “presented as a polite and contented child”. She further noted that that Y held a particular interest in sport and noted that the father is the coach of his football team at Suburb J.
By way of summation, in respect to the characteristics of the children, Dr F stated, at paragraphs 198 to 200, as follows:
198. According to [the mother], X has displayed some self-harm behaviour in the past. There were no documents sighted which suggested that there might be any current mental health concerns for X. It is recommended, however, that X continue to receive ongoing counselling support.
199. Z seems to have struggled with mental health concerns and has been diagnosed with mood difficulties, poor sleep and poor concentration when she was admitted to the JJ Hospital after an overdose of paracetamol in 2018. At that time there were a number of stressors in Z's life including court proceedings in the previous week, indecision about her high school which she seemed to be under considerable pressure to be accepted into, peer difficulties, school refusal and disclosures of physical and sexual assault by her father. Z is receiving ongoing counselling and it would be recommended that continue.
200. Z seems, since the separation, to have become involved in a nexus of the police and the health care system. The notifications and investigations have been ongoing but not been able to secure the A.V.O. which [the mother] seems to have desired. If it is the case that Z has been the victim of abuse perpetrated by her father, the investigating bodies have not been able to establish that. Children who have been victims of abuse of any kind are highly vulnerable to future mental health concerns and therefore are in need of a huge amount of support and therapeutic intervention. If, on the other hand, Z is implicated in a ploy attempting to achieve certain outcomes, that equally places her in an extremely vulnerable position and in a nasty web where she is denying her relationships with significant others in her life and that is also likely to impact adversely on her mental health. This leaves Z in an extremely vulnerable position.
Subsection (3)(i) – the attitude to the child and parental responsibilities by each of the child’s parents
The mother contends that the father was irresponsible in removing Y from her care at approximately 4:30 am on 9 July 2020. The mother further contends that the father acted irresponsibly in not permitting the child to spend time with the mother in the period subsequent to that date and until 4 September 2020, being the date of the Orders made by the Senior Registrar. In particular, the mother contends that the father neglected to respond to her requests for Y to spend the day with her and Z on the date of Z’s birthday.
At paragraph 69 of his Affidavit, the father attests that the mother wrongfully retained Y in May 2020 and failed to facilitate his attendance at school from 25 May 2020, being the date that “students were supposed to return to full time school attendance following the remote learning that took place during the COVID-19 lockdown”. The father further contends that this action, on the part of the mother, not only impacted upon Y’s academics but also deprived him of the opportunity to interact with his friends at school.
At paragraph 59 of his Affidavit, the father is critical of the mother terminating a phone call from Y to him at approximately 10:00 pm one night. The father contends that event occurred approximately 12 months ago, in circumstances where he recalls that the phone call was made during school holidays “when the children have less routine around bedtimes”. As a result of that incident, the father purchased a phone for Y. It does not appear that the father consulted with the mother prior to purchasing that phone. The nature of communications between Y and his father using that device is a subject of further observation under the subheading of ‘Issue of risk’ below.
At paragraph 62 to 66 of his Affidavit, the father contends that the mother has acted irresponsibly in circumstances where she withheld Y from spending time with the father in the period subsequent to 17 May 2020.
The father also contends that the mother has acted irresponsibly in failing to facilitate Y’s attendance at school from 25 May 2020, being the time the father contends children were to resume physically attending school after a period of the COVID-19 lockdown.
The father is critical of the mother in failing to permit Y to play football. In that respect, the father contends that the mother “got angry” with the father when the father enrolled Y to play football at Suburb J Sports Club, which is a club at which the father contends the child has “played for years”.
It appears, however, the mother’s concern is in respect of where Y played football. In that respect, the father attests, at paragraph 80 of his Affidavit, that on 4 July 2020 Y advised him that the mother had registered him to play football in a club located in a suburb closer to where the mother resides at Suburb C.
Counsel for the mother contends that the father had inappropriately engaged Y in aspects of the parental dispute. In that respect, reference is made to paragraph 82 of the father’s Affidavit where he engaged directly with Y regarding the mother not permitting Y to play golf with his paternal uncle and two other friends. Further, the father refers to receiving a text message from Y in which Y said “I want to go so bad” and the father responded with a text which read:
Everyone wants to hang out with you and see you ... especially me...
Just remember that you have a right to be heard Y. Your happiness is very important. I know things are very difficult around you. Just hang in there. Ok?
Most relevantly, the mother is critical of the father for engaging in direct communication with the child including communication commencing at 1:27 am on 9 July 2020 and concluding with the father collecting the child from the mother’s home at approximately 4:30 am that morning, in circumstances where the mother was not aware of the communication between the father and the child nor the fact that he attempted to collect the child from her home. The father attests, at paragraph 92 of his Affidavit, that he texted the mother “a few hours after” he picked up Y to tell her that Y was in his care.
I am satisfied that action on the part of the father in communicating with the child, particularly at the times that he was communicating in respect to an issue that was as significant as a child changing residence and, ultimately, removing the child from the mother’s care in the early hours of the morning, was grossly irresponsible.
The father’s actions occurred in circumstances we where he had engaged in a dialogue with the child throughout the month of June and into early July concerning the child’s expressed desire to spend time with the father, to play golf with his paternal uncle and friends and to enrol in a football team near the father’s place of residence. That communication all occurred directly between the father and the child without the mother being advised.
At paragraphs 171 to 178 of her Report, Dr F opines:
171. There are some perplexing dimensions to this family dispute and possibly both parents have behaved in ways that have undermined the other parent to the children. [The mother] appears to hold rather ambivalent views on the children especially Z having a relationship with [the father]. On the one hand, she indicated that she wanted the children to have a relationship with both parents and to this end, she has agreed to the children spending substantial time with their father. However, she has, at the same time, maintained a view that even prior to the separation, [the father] was an abusive and unsafe parent and she seemed doubtful that once the living arrangements were implemented, [the father] would be unable to sustain them. Notifications were made to F.A.C.S. quite early in the separation, however, no at risk concerns were identified. The message she has given to the children by encouraging them to have a safe house and taking Z to the police in September 2017 is that their father is an unsafe parent.
172. While [the father] appears to have been the parent who has been more able to purvey to the children that he wishes them to have a relationship with both parents, if it has been the case that he has undermined the mother to them, suggested that she had abandoned the family and has sought to solicit information about her lifestyle through the children, that would not be behaviour consistent with facilitating the children's relationship with both parents. X now has decided to live exclusively with her father and it may be that she has aligned herself with her father's position.
173. The level of rejection Z has displayed towards her father is puzzling and concerning. If she is genuinely at risk in her father's care, it is self-protective and she would rightly be feeling angry towards [the father]. In this event, as previously mentioned, it is concerning that X and Y continue to spend time with their father and that no steps have thus far been taken to protect them.
174. On the other hand, if it is established that there are no safety concerns for Z, she may be resorting to the dynamic of "splitting" which is often observed by children who are caught in high conflict situations. It is not uncommon for such children to view one parent as totally "bad", intimidating and insensitive as [the father] is now portrayed while the other parent, in this case [the mother] and Mr G, as nurturing, loving and responsive. Although there have been no follow up interviews with X since she has been living exclusively with her father, it is possible that a similar black and white dynamic has come to pass in her relationship with each parent.
175. At present, the parties are incapable of assisting X and Z to fluidly maintain a relationship with each of them. Assuming that [the mother and the father] have not been abusive, this is problematic as avoidance of a parent is a defense mechanism, which if not addressed and worked through, will follow X and Z through their adolescence and adulthood and manifest in a number of ways. This may include steering away from relationships that seem difficult or challenging such as those with peers and avoiding working through personal difficulties which ultimately does not assist in building their resilience. The self-esteem of children who are estranged from one parent can also potentially be undermined as they struggle with their own sense of being either "perfectly good" like one parent or "completely bad" like the other parent and therefore they may find it difficult to manage ambivalence or tolerate opposite feelings. Children who have a ruptured relationship with one parent also run a high risk of suffering from anxiety, depression, and self-destructive acting out behaviour.
176. The incapacity to have a relationship with both parents is likely to impact adversely on children achieving differentiation of self which is an important dimension of identity formation, an essential developmental milestone requiring mastery in adolescence. Without this, X and Z may be left with unresolved issues about their capacity to reality test, to make good judgments and to form an identity separate to one of their parents.
177. Given the incongruence between the children's current position on their parents and past disclosures about their experience with each of them, it is likely that in order to justify their current positions, they will have created a narrative about their estranged parent which is incongruent with parts of how they experienced them in the past i.e. that they were, at times, a good enough parent who attended to their needs, that they had some enjoyable times together and that they may have even been a favoured child in the case of Z. It is perplexing that notwithstanding the allegations Z has made about her father's treatment of her, she seemed nonchalant about whether her father posed a risk to her siblings.
178. One of the concerning dimensions of family situations such as this is that, as children move through their adolescence, particularly when their parents have such a high level of acrimony, they manipulatively play one parent against the other. There was already some indication of the potential for such behaviour in 2018 when Z ran from her mother to her father for one evening. It is not beyond the realms of possibility that, if X or Z struggle to hold a relationship with their aligned parent in the future, they may reject them in favour of the other parent and then possibly ping pong between their parents. There seems to be a pattern in this family certainly in [the mother's] family of origin of a fraught relationship with her adoptive father and allegations of at least physical violence which impacted adversely on her stability within the household including a period of estrangement from her parents.
In respect to the issue of risk, in her Report at paragraphs 144 to 148, Dr F observed the following:
144. Children who are caught in high conflict family law proceedings are at risk of psychological harm and in this family, Z seems to be the child who is carrying the burden of the pathology in the family system. She has, since September 2017, been the child at the centre of investigations pertaining to treatment in her father's household. She was subjected to several interviews by the police, she has been in therapy with numerous counsellors and she was interviewed for the purposes of this report. On at least one of the occasions when Z was interviewed by the police, it seems that the police believed Z may have been coached. On the two other occasions when allegations of possible sexual abuse were investigated, the police concluded that there were no grounds for criminal charges to be laid against [the father]. Further allegations have been made in 2020, however, Z refused to participate in the interviews. Such experiences and repeated interrogations are damaging for children for a number of reasons. Repeated interviewing can result in the contamination of a child's recall, memory and emotional experiences if indeed any abuse has happened. In the absence of abuse, it constitutes a form of systems abuse and results in children becoming desensitized to the issues and become fearful and pressured by the consequences of their disclosures which may then lead to them responding in a way that they believe they are expected to respond. In the interviews, in August 2018, the Child Abuse Squad identified inconsistences in Z's disclosures which illustrate that she may already be a victim of the aforementioned pressures. This has had significant and concerning consequences for Z's emotional well-being. There was a period of hospitalization following attempts at self-harm in 2018 and the chance of further self-harm is obviating any more police interviews.
145. There are a number of possible scenarios in this matter which are pertinent to the risk concerns for the children, especially for Z. The first is that Z has not been exposed to any risk as [the father] purports. If this is the case, it is unfortunate and a dreadful loss to Z that consequently there has been the breakdown of her relationship with [the father] and her paternal family. Reportedly, she previously had a close relationship with them but now considers them to be aligned with her father and rejecting of her. Most recently, she seems to have adopted a narrative that her grandparents have been abusive to her father and his siblings. The specific incident in September 2017 which led to Z becoming estranged from her father would seem to be in keeping with parental boundary setting did not seem to warrant such an extreme reaction. It is highly damaging for Z if she feels she needs to deny the reality of her past relationship with her father including rationalizing that he favoured her in a way that was not always healthy and that she felt the need to make disclosures that are incongruent with her experiences as that leaves her in a very confused space.
146. Another scenario is that there is some confusion about intimacy boundaries in this family. There were apparently discussions in this family preceding the separation which would suggest the occurrence of behaviours with which [the mother] felt uncomfortable and were raised by her with [the father] but from her accounts, were minimized and dismissed by him. Even if they were not intended to be abusive, [the father] entering the bathroom when his daughters were verging on their adolescence, sleeping in the same bed as Z and Y, especially if he was naked and kissing Z on the lips, if they did occur, demonstrated elements of poor judgement, murkiness and inappropriate boundaries on his part towards pre-pubescent and pubescent daughters and could even be construed as grooming. Even if it was behaviour that had previously occurred in the context of an intact family, given the litigious family law proceedings which have followed, such behaviour is inappropriate and places [the father] at risk of serious allegations. If, as is alleged, [the father] was dismissive of attempts to rectify that behaviour and implement more well defined boundaries that is concerning and demonstrated a lack of insight of the possible ramifications on his part. Albeit that the aforementioned behaviour is reportedly no longer an issue, [the father] may still benefit from exploring appropriate behaviour and boundaries with teenage children.
147. It is noted throughout the documents from various agencies, that [the father] has been repeatedly labelled as a father who has placed Z at risk, even though that has not been established by the police. As far as this assessment could ascertain, he does not meet the criteria that would predispose him to engage in pedophilic behaviour which include prior criminal charges for sexual matters, a history of significant mental health concerns or psychopathic personality disorder, being a victim of sexual abuse himself, instability in employment or endorsing attitudes or values supportive of child sexual abuse. Nonetheless, it is the position that Z and [the mother] maintain and their narratives are very strong that [the father] poses a risk at least to Z. This is a problematic position and one that has serious implications for Z trusting her father as her narrative which has now been presented to the various therapists by whom she has been counselled is that she has been seriously betrayed by him. This could impact significantly on her behaviour in relationships with men as she moves towards her adulthood.
148. In the final upshot, [the father, the mother] and the children hold very different views of the alleged abuse and whether Z, in particular, is at risk. [The father] dismisses the allegations. [The mother] and Z still believe that [the father] has transgressed the boundaries leaving Z at risk and the allegations appear to be ongoing. [The mother] seems dissatisfied with the findings of the investigating bodies which have not established grounds for an A.V.O. Z continued to recount that she has been violated by her father and her progressive disclosures from September 2017 to the present seem to have ramped up the seriousness of the allegations. Even though it is not uncommon for memories of abuse to be repressed, the evidence before the Court does not constitute grounds for charges against [the father]. The investigating bodies suggest that there have been some elements of coaching in Z's initial disclosures, that there have been contradictions in the latter disclosures and most recently that Z refuses to participate in further interviews. This creates a very complex conundrum for the matter to move forward.
Counsel for the father contends that the allegations of sexual abuse made by Z should be given little weight, firstly, as a result of what he contends were leading questions asked of Z by her therapist, Ms H and, secondly, as a result of the father’s contentions that the mother has coached the children and, specifically, that she has advised each of the children that their father has engaged in acts of abuse against them.
In her Report, Dr F also referred to the possibility of the mother having “coached” Z in respect to disclosures she has made regarding the alleged sexual abuse perpetrated by the father. As against that submission by counsel for the father and that provisional opinion expressed by Dr F, other clinical notes of Ms H dated 17 February 2020 are not indicative of Z having a determination to poison or destroy the relationship between her siblings and their father. While she expressed the view that, “at this point I think for the rest of my life I don’t want to see him” she also stated “I personally don’t think they are safe with him” but that “it is not my place to dictate what happens with their lives”.
Evaluation and conclusion
As previously noted, other than to the extent that facts are agreed or objectively verifiable, the Court does not undertake in exercising fact finding in interim proceedings. In this matter, I have set out evidence that will likely be considered at final hearing, including referring to relevant extracts of the Report of Dr F. Having regard to that evidence, I am satisfied that, if risk were not an issue in these proceedings, the orders proposed by the father and the Independent Children’s Lawyer would be appropriate. However, the issue of risk and whether that risk is unacceptable is the central issue in these interim proceedings. Specifically, the most significant issue to be determined in this case is whether Y would be exposed to an unacceptable risk by orders which provide for him to spend overnight time with his father. In order to assess whether there is such an unacceptable risk I have, in this decision, focussed primarily on the evidence as to whether Z has been subjected to inappropriate sexual conduct on the part of the father. That issue is however, relevant to assessing whether Y is at a similar risk.
Counsel for the father contends that the Court should have regard to the Report of the single expert Dr F dated 5 June 2020 in rejecting the proposition that Y is at risk of sexual abuse in the care of the father. In that respect, Counsel for the father further contends that one of the purposes of appointing Dr F was for her to “enquire into” whether Z had been sexually abused. It was contended that, in circumstances where Dr F recommended that Y spend equal time with each parent, it could be inferred that Dr F was not satisfied that Z had been sexually abused by her father.
With respect to that submission, that inference is not available on the Report of Dr F. Moreover, it is not Dr F’s role, as a single expert in family law proceedings, to make findings of fact. That is the role of the trial judge. As noted in Hall and Hall (1979) FLC 90-713 at 78,820:
… There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities...
[Citations omitted]
That point is, with respect, acknowledged by Dr F when she states in paragraph 1 of her Report that her Report is “intended to assist the Court to make a final decision about parenting arrangements” for the children.
Further, it is to be noted that Dr F’s recommendation for Y to spend equal time with each of his parents was conditional upon there being “no further evidence” coming before the Court in respect to the issue of risk.
In his Affidavit, the father explicitly denies the allegations that Z has made that he has acted sexually inappropriately with her by jointly showering with her and subsequently alleging that he has engaged in penetrative sex with her. The father does not, however, in his Affidavit, acknowledge that which he was informed by police regarding his practices when the children were showering. The police notes of 25 January 2018 record that the father advised the interviewing officer that, “he on occasions … would come into the bathroom when Z was hopping out of the shower and he would get into the shower. Due to the changeover of both having a shower, they would both be naked”.
The trial judge hearing this matter will likely seek an explanation from the father as to precisely how the changeover in the shower occurred. Specifically, the location of each of the father and Z when the changeover occurred. Based on the position he has taken in these proceedings, that he has not acted inappropriately, it can be anticipated that, at final hearing, the father will give evidence that he and Z were on the floor of the bathroom as opposed to the floor of the shower at the time that they were simultaneously naked. It has not been possible, however, in these interim proceedings, for the Court to assess the father’s evidence under cross-examination, including making an assessment, if appropriate, of his credibility.
A further concerning aspect of the manner in which the father has presented his case in these proceedings is his provision of an alternative narrative as to why Z was admitted to the JJ Hospital after attempting to take her own life in July 2018. Although lacking qualifications to make a psychological assessment, he advances the theory that Z’s attempted suicide and consequent admission to hospital were due to her disappointment at being unsuccessful in her application to be admitted to a selective high school.
Reference was made to the fact that the discharge summary from the hospital makes no reference to that as a potential cause for the child’s mental anguish at the time. It was submitted that, accordingly, it can be inferred that Z’s treating psychologists and psychiatrists at the hospital were not advised of that potential cause. The clinical notes, however, indicate that Z was interviewed about a range of matters, including her relationships at school and pressure she found in respect to work. What appears to be an imputation that either Z and/or her mother deliberately withheld that information from the treating psychologists and psychiatrists when Z was admitted to the JJ Hospital is, in my opinion, unfounded.
Further, it is contended on behalf of the father that there is evidence of the mother coaching Z, including in respect to the allegations she has made regarding sexual abuse by the father. Again, the clinical notes of the hospital did not substantiate that. It is clear that Z was interviewed by treating professionals on her own and, indeed, on occasions, made comments that were quite critical of her mother. Such comments are inconsistent with the father’s thesis that she has been coached by her mother to make unfavourable allegations against him.
In his Affidavit, the father attests that, following his interviews with police, in which he denied the child’s allegations, the police suspended their investigations and informed the father that they were not intending to charge him with any criminal offence. The police notes make it clear that, as he was entitled to, the father declined to submit to a formal recorded investigation in respect to Z’s allegations that he had sexually abused her. The father was well within his rights to decline to participate in an interview on that basis. However, it is, in my opinion, taking matters a step too far to imply, as he has done in his Affidavit, that the information he provided to police was relevant to a decision to either suspend their investigation and/or not prosecute the father.
The father also makes reference to passages in the Report of Dr F whereby Dr F notes inconsistencies in the accounts that Z has provided to police as to the nature of the sexual abuse that she alleges the father has perpetrated against her. It is clear, on a reading of the police records, that the investigating police officers were certainly concerned about what they described as that “inconsistency”. However, the inconsistency in the three (3) interviews that Z has provided to police and officers of JIRT can, in my view, potentially be explained in the child escalating her report of the seriousness of the father’s conduct. This is particularly so in circumstances where the police records establish that, in the earlier interviews, Z was understandably reluctant to go into details regarding the events including describing her own and her father’s body parts.
Comparatively, counsel for the mother referred to the recent report of the Royal Commission into Institutional Responses to Child Sexual Abuse (“The Royal Commission”). In the Royal Commission’s “Criminal Justice Report”,[2] it is stated that:
For centuries, judges have relied on their own understandings of human behaviour to inform the content of the relevant directions and warnings. The difficulty is that, in the absence of research or other evidence as to how people behave, we do not know whether the judges’ assumptions are correct.
In some cases, we know that judges’ assumptions have been far from correct. For years, judges assumed that victims of sexual offences will complain at the first reasonable opportunity. As a consequence, delay was accepted to adversely affect the complainant’s credibility. The common law developed special rules for warning the jury in accordance with this assumption. Research has discredited this assumption. We now know that delay in complaint of sexual abuse is common rather than unusual, particularly in the context of child sexual abuse.
[Citations omitted]
[2] Commonwealth, Royal Commission into Institutional Responses to Child Sexual Abuse, Criminal Justice Report (2017) pts VII-X [31.1].
Accordingly, acting cautiously, as I must in interim proceedings, in determining whether there is an unacceptable risk in Y spending overnight time with the father, I do not give less weight to the evidence of Z that she has been the subject of sexual abuse by the father, as a result of the fact that she has delayed reporting the severity of that abuse including that she has been the subject of penetrative sex on the part of the father.
It is contended on behalf of the father that the Court should dismiss Z’s allegations that the father has engaged in penetrative sex on the basis that it was first disclosed in an interview with her treating psychologist, Ms H, in circumstances where Ms H asked a series of leading questions. That submission is, however, with respect, premature. The Court has not been addressed in respect to appropriate interview techniques and strategies in circumstances where a child alleges they have been the subject of sexual abuse. It can reasonably be anticipated that those interview techniques and strategies may be different depending on whether they are for the purpose of a criminal investigation as opposed to a clinician attempting to explore potential reasons for a child’s mental anguish in circumstances where the 11-year-old child has attempted to take her own life.
In those circumstances, one can well imagine that the priority of the interviewing clinician would be to explore reasons for the child’s ongoing mental health challenges as opposed to interviewing the child for the purpose of law enforcement authorities deciding whether they would or would not prosecute, in this case, the father.
Finally, it is contended, that even if the Court is of the view that there is sufficient evidence for the Court to conclude that there is a real possibility that Z has been the subject of sexual abuse perpetrated by the father and, hence, that there is an unacceptable risk that conduct might occur in the future, it cannot be extrapolated from such a finding that Y is at an unacceptable risk of being the victim of such conduct by his father.
To be clear, I do find, even at this interim stage of the proceedings, that the evidence, including the evidence provided by Z herself to investigating police officers, officers of JIRT and her own treating clinicians, is such that there is a real possibility that the father has, in actual fact, sexually abused her, including engaging in acts of penetrative sex.
It is contended that, in assessing whether such a risk exists for Y, I should have regard to the fact that he is a male and there is no indication that the father has an interest in sexual contact with a male and, further, that Y is at an age where he is capable of reporting any inappropriate conduct on the part of the father.
The text exchanges between the father and Y, which include those that I have extracted in this decision as well as those attached to the father’s Affidavit, satisfy me that the father and Y have a close relationship. However, at the same time, there are elements of that relationship that give me cause for concern. Firstly, there is no evidence that the father chastised or even counselled Y when he communicated to his father that he had a discussion with a friend regarding potentially having sex with a member of his own family. While the subject matter could be regarded as childish banter between two young boys approaching puberty, the significance of the exchange is the absence of an appropriate response by the father.
Further, the evidence that the father engaged in a series of text message exchanges with Y between the hours of 1:00 am and 4:30 am on the morning of 9 July 2020 at which time the father took Y from his mother’s home in a clandestine mission suggests the possibility of Y and his relationship with his father having an element of enmeshment where it may be difficult for Y to become developmentally independent from the wishes of his father and responsible for his own choices. Clearly, that may well be a matter in respect to which the trial judge will seek some assistance from the parties and the family consultant.
Additional relevant context is that Z has made statements to investigators and her therapists that the father has slept in the same bed as herself and also Y at times when the father has been naked. As noted on several occasions in the course of this decision, I am not able to make findings of fact and, specifically, I am not able to determine that, as a matter of probability, the father engaged in that conduct. There is, nonetheless, in my opinion, sufficient evidence for me to conclude that there is a real possibility that the father has engaged in that conduct, that is, sleeping naked in the same bed with both Z and Y.
As against that context to which I have referred, being the nature of Y’s relationship with his father and the evidence of Z that the father has slept naked with both herself and Y, it is highly relevant that Z’s allegations that the father has showered with her and has engaged in acts of sexual abuse occurred when she was at the same age as Y now is.
Having regard to all of those facts and circumstances, in applying the risk matrix to which I have earlier referred of weighing the consequence of harm as against probability of occurrence of the harmful event, I am satisfied that there is an unacceptable risk of Y being subject to inappropriate sexual conduct in the care of the father.
Having determined that such a risk exists, it is then necessary to determine what steps can be taken to mitigate against that risk. I am satisfied that limiting the time the father spends with Y’s to day time supervised visits mitigates against the risk. Accordingly, I am also satisfied that the child’s uncle, or an alternative person agreed to by the parties’, would provide adequate supervision. At the same time, providing for Y to spend every Saturday with his father will be conducive to the child maintaining a meaningful relationship with his father.
I am therefore satisfied that the Orders made by the Senior Registrar, in this matter, which provide for that outcome, were entirely appropriate and that they are Orders that I would make having undertaken this rehearing of the parties’ respective Applications.
Accordingly, for all these reasons, I dismiss the father’s Application in a Case filed 4 September 2020 and, in those circumstances, the Orders made by Senior Registrar Campbell on 11 August 2020 will apply until such time as they are varied by subsequent orders of the Court.
Further, for reasons which I have previously set out, I will make an order that the child Y attend KK School, being a school which is in close proximity to the mother’s home where, pursuant to interim Orders made by this Court, Y will be living.
I certify that the preceding two-hundred and fifty-six (256) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 3 November 2020.
Associate:
Date: 3 November 2020
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