Jones and Azarac

[2012] FamCA 872

FAMILY COURT OF AUSTRALIA

JONES & AZARAC [2012] FamCA 872

FAMILY LAW – CHILDREN – where there are allegations of sexual abuse – where the father is not the biological father of one of the two subject children – where there are issues of alcohol addiction and drug use – where the mother seeks that there be no time between the father his non-biological son – where the father seeks parenting orders in respect of both children – whether orders should be made for time between the father and the non-biological son – consideration of best interests of both children – where orders made that the children live with the mother and the father spend time with both children.  

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

AIF v AMS (1999) 199 CLR 160
B v B (1993) FLC 92-357
B v B (1988) FLC 91-978
CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) 42 Fam LR 559
Goode v Goode (2006) FLC 93-286
Hardie & Capris [2010] FamCA 1046
In The Marriage of N & S (1996) FLC 92-655
M v M (1988) FLC 91-979
Marsden & Winch (No 3) [2007] FamCA 1364
McCoy & Wessex (2007) 38 Fam LR 513
MRR v GR (2010) 240 CLR 461
Mulvany v Lane (2009) FLC 93-404
Napier v Hepburn (2006) FLC 93-303
Neil v Nott (1984) 68 ALJR 509
Partington (aka Bade) v Cade (No 2) (2010) 42 Fam LR 401
Sigley & Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238

APPLICANT: Ms Jones

RESPONDENT: Mr Azarac

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 7420 of 2010

DATE DELIVERED: 18 October 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 – 15 March 2012

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Andrews

SOLICITOR FOR THE RESPONDENT:  MA Kent & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Queensland

Orders

IT IS DECLARED THAT the presumption of equal shared parental responsibility is rebutted in the best interests of M (born …2008) (“the child”).

IT IS ORDERED THAT

Parental Responsibility

1. The mother shall have sole parental responsibility in respect of all “major long-term issues” (as that expression is defined in s 4(1) of the Family Law Act 1975 (Cth) (as amended)) in respect of M, save that the mother shall, prior to making the sole ultimate decision about any such issue:

   a)   Use her best endeavours to advise the father in writing of the decision intended to be made;

   b)     Seek the father’s written response in relation thereto;

   c)     Consider, by reference to the best interests of the children, any such response prior to making any such decision; and,

   d)     Advise the father in writing as soon as reasonably practicable of her ultimate decision.

2. The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of M and K (born …2006) (“the children”) whilst the children are in her care.

3. The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in his care.

Live/Spend Time With

1. The children shall live with the mother.

2. The children shall spend time with the father as follows:

   M

   a)Until she commences Prep:

   Week one

   i)From 3:30pm Friday to 9:30am Monday; and,

   ii)From 3:30pm to 7:00pm Wednesday.

   Week two

   iii)From 3:30pm Wednesday to 9:30am Friday.

   b)Upon commencing Prep:

   i)From after school Wednesday to before school Monday each alternate week.

   K

   c)For a period of one month from the date of these Orders:

   i)From 9:00am to 5:00pm Saturday and 9:00am to 5:00pm Sunday each alternate weekend (commencing on a weekend upon which M is spending time with her father pursuant to paragraph 5(a)(i)); and,

   ii)From after school to 7:00pm Wednesday every week.

   d)After that one month period has expired and for a further period of one month:

   i)From 9:00am Saturday to 4:00pm Sunday each alternate weekend (commencing on a weekend upon which M is spending time with her father pursuant to paragraph 5(a)(i)); and,

   ii)From after school to 7:00pm Wednesday every week.

   e)Thereafter and until M commences Prep:

   Week one (which is to correspond with the “Week one” referred to in paragraph 5(a))

   i)From  after school Friday to before school Monday; and,

   ii)From after school to 7:00pm Wednesday.

   Week two (which is to correspond with the “Week two” referred to in paragraph 5(a))

   iii)From after school Wednesday to before school Friday.

   f)Once M commences Prep:

   i)From after school Wednesday to before school Monday each alternate week, commencing at the same time as time between the father and M pursuant to paragraph 5(b)(i) commences.

   Both children

   g)For the first half of the Easter, June/July and September/October gazetted school holiday periods every even year and the second half in every odd year;

   h)For the first half of the Christmas/New Year School holidays in even years, commencing 4:00pm on the last day of school before the holidays commence, and concluding at 10:00am on Boxing Day;

   i)For the second half of the Christmas/New Year School holidays in odd years, commencing at 10:00am Boxing Day and concluding at 4:00pm on the day before school recommences in Term 1;

   j)On the children’s birthdays as follows:

   i)In odd numbered years from after school on the day before their birthdays until commencement of school on their birthdays;

   ii)In even numbered years from after school on their birthdays until the commencement of school on the day after their birthdays;

   iii)If their birthdays fall on a weekend from 9:00am to 12:00pm on the birthday.

   k)On the father’s birthday as follows:

   i)If it falls on a weekday: from after school until 7:00pm; and

   ii)If it falls on a weekend: from 9:00am until 5:00pm.

   l)On Father’s Day from 9:00am until 5:00pm.

3. Time between the father and the children in accordance with the preceding paragraphs is contingent upon the father:

   a)Undergoing CDT testing once every four months, for a period of two years from the date of these orders, at a date and time to be nominated by the mother in writing with such written notice being provided to the father at least 48 hours prior to the nominated date; and

   b)The father providing copies of the test results to the mother within 48 hours of his receipt of same; and

   c)The results of all CDT tests undertaken in accordance with paragraph 6(a) being clear of alcohol. 

4. In the event that the any of the CDT tests conducted in accordance with paragraph 6(a) return a positive result for alcohol, time between the children and the father in accordance with paragraph 5 shall cease and the father shall spend time with the children as follows:

   a)From 9:00am to 5:00pm Saturday each alternate week; and,

   b)From 9:00am to 5:00pm Sunday every other week,

   with such time to be spent in the presence of the paternal grandmother

5. Upon the father providing the mother with CDT test results which are clear of alcohol, time between the father and the children shall resume in accordance with paragraph 5.

6. All costs associated with undergoing the tests referred to in paragraph 6(a) shall be borne solely by the father.

7. The children shall have no contact with the maternal grandfather, Mr G, or Mr S, unless such contact is supervised by the mother.

Changeover

1. Changeover for the purpose of facilitating time in accordance with these orders shall occur:

   a)For M:

   i)    At the I Town train station, until she commences Prep.

   ii)   As and from the time M commences Prep:

   (1)At her school during school term; and

   (2)At the train station during school holidays or on public holidays or pupil-free days. 

   b)For K:

   i)    At his school during school term; and,

   ii)   At the I Town train station during school holidays or on public holidays or pupil-free days.

Consumption of Alcohol and/or Illicit Substances

1. The mother and father shall not use, or be affected by, any illicit substances 24 hours immediately prior to, or whilst, the children are in their care.

2. The father shall not consume any alcohol 24 hours immediately prior to, or whilst, the children are in his care.

Non-denigration

1. The mother and the father shall not denigrate nor insult each other, or any spouse or partner of the other to, or in the presence or hearing of, the child.

Communication

1. The parties shall be at liberty to contact the children when they are otherwise not in their care via telephone between 6:00pm and 6:30pm every Monday, Wednesday and Friday.

2. The parties shall facilitate telephone communication between the children and the parent with whom they are not staying at any reasonable time requested by the children.

Provision of Information

1. Each party shall do all such things and sign all such documents as may be necessary or required to:

   a)Authorise each other party to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom M consults, failing which this Order shall, of itself, constitute such authority;

   b)Speak to, and receive oral or written communication from, any school or other educational institution, attended by M, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;

   c)Keep the other party appraised of their residential address, telephone contact number, and other electronic communication address or addresses for the purpose of communication with the children (such as Skype and email), with any changes to same being notified to the other party in writing within 48 hours of same occurring;

   d)Notify the other party as soon as reasonably practicable should either of the children suffer any medical emergency, serious illness, or other significant issue affecting the children’s health or welfare, whilst in their care.

2. Each parent shall be at liberty to attend any and all extracurricular activities undertaken by the children and the parties shall do all things and sign all documents reasonably necessary to ensure that the attendance of each party is authorised.

3. In the event that any party fails or refuses to do any such thing or provide any such document or authority, this Order shall, of itself, be sufficient authority for each and all of the matters referred to in paragraphs 17 and 18 of these Orders to occur.

Miscellaneous

1. Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same.

2. The Independent Children’s Lawyer is discharged upon the later of the expiration of the appeal period in respect of these Orders or the hearing of any appeal.

3. All extant applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

4. Pursuant to s 65DA(2) and s 62B, Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC7420/2010

Ms Jones

Applicant

And

Mr Azarac

Respondent

REASONS FOR JUDGMENT

1. These proceedings for parenting orders concern K (born in 2006) and M (born in 2008). Whilst K is not the biological son of the respondent father, he seeks parenting orders in respect of K, who has not seen his biological father since December 2007. M is the product of a relationship between the applicant and respondent that commenced in early 2007, at which time the applicant was living in a Women’s Refuge with K. The parties separated in July 2009, at which time M was about 15 months old. 

2. The father spent time with the children following separation, as agreed between the parties. Between separation and February 2010, the father spent alternate weekends with the children (although the mother claims the father did not avail himself of time on several occasions). From February 2010 to mid-2010 the children lived with the father and spent approximately 4-6 nights per fortnight with the mother. The mother says this change in living arrangements arose as a result of her having to find alternative accommodation.

3. The children continued to live with the father until June 2010, when the mother found alternate accommodation and the children returned to live with her.

4. The mother says that when the children returned to live with her, she did not cause K to spend time with the father because “K showed great distress every time he was in the [father’s] care. I considered that it was in the best interest of K for him to stop spending time with the [father] at least for a period of time.” Notwithstanding her ostensible concern for K’s “great distress”, the mother continued to facilitate time between the father and M.

5. In fact, the mother deposes to the father withholding M from 25 June to 23 September 2010 during which time the mother says she saw M on only three occasions despite her “…persist[ing] in asking the [father] to let M see me…”

6. On 12 August 2010, the mother filed an Initiating Application in the Federal Magistrates Court seeking parenting orders with respect to M only. The mother sought, inter alia, an order that M live with her, that she and the father share parental responsibility for M and that M spend time with the father each alternate weekend.

7. On 23 September 2010 the matter came before Cassidy FM who made interim orders by consent that the parties share parental responsibility for M, the mother have sole parental responsibility for K and that the father spend time with M and K for seven nights a fortnight (being Friday to Monday morning in the first week and Thursday to Monday morning in the next).

8. The mother says she facilitated time between the father and the children, in accordance with the Orders of 23 September 2010, albeit not without incident. The mother says that K in particular stated on a number of occasions that he was fearful of the father, and that he did not wish to see the father any more. Further, on 24 November 2010, the mother took M to the hospital after she came home from her father’s with “Hs in her genital areas…” however, the hospital “concluded that M was fine and there was no evidence that she had been harassed.” As a result of the mother taking M to the hospital, the children did not spend time with their father that weekend in accordance with the existing Orders.

9. On 8 February 2011, Cassidy FM amended the Orders made by her on 23 September 2010 preventing the children from having contact with the maternal grandfather and an acquaintance of the mother, Mr S. More will be said about these Orders, and their genesis below. The matter was also set down for final hearing on two days commencing 9 June 2011. As it eventuated, the June trial was vacated and the matter was set down for mention on 1 July 2011.

10. Prior to that hearing, the mother says that on or about 15 June 2011, K “made some remarks that concerned me.” Those “remarks”, insofar as they allege sexual abuse of K by the father, will be considered in detail below.  

11. On 1 July 2011, Cassidy FM set the matter down for trial commencing

    
    

    4 August 2011 and on 4 August 2011, Cassidy FM made interim orders by consent that M spend time with the father for five nights and one additional afternoon per fortnight. Orders were also made by consent that K spend time with the father during the evening (but not overnight) each Wednesday (when M would also be in the father’s care) and during the day each alternate Saturday and Sunday (again, when M was in the father’s care). Time between K and the father was to be supervised by the paternal grandmother.

12. Cassidy FM also transferred the matter to the Family Court and on 19 August 2011, Registrar Kane designated the matter Magellan and requested the intervention of the Department of Communities, Chid Safety and Disability Services (“the Department”), pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”). The mother subsequently filed a “Notice of Child Abuse or Family Violence” on 22 September 2011.

13. In that Notice the mother alleged that the father had sexually abused K and that M was also at risk of sexual abuse by the father.

14. I ultimately heard the trial of this matter over two days commencing 14 March 2012. Counsel appeared on behalf of the father and the Independent Children’s Lawyer, whilst the mother represented herself during the proceedings before me.

Parties’ Proposals

The Mother’s Proposals

1. The orders sought by the mother are contained in a Case Outline filed on 8 March 2012. In essence, the mother seeks an order that the children live with her and that the father have no contact with K but that M spend time with her father every alternate weekend. The mother also seeks an order that the paternal grandmother “…maintain a partial supervisory role in the care of M”. Quite what that order means is not clear.

2. In terms of parental responsibility, paragraphs 1 and 2 of the mother’s proposed orders states that she is to have “sole parental responsibility” for each of the children. Contrastingly, paragraph 12 reads “[t]hat the Father have shared parental responsibility for the major long term issues of the Child, including but not limited to education, religious and cultural upbringing and health.” Given that the mother seeks an order for no time between K and the father, it seems that the only “Child” paragraph 12 could be referring to is M.

3. The mother also seeks an order the effect of which is to injunct the father from “…consuming alcohol for a period of 48 hours prior to, and at any time during which, the Child is in his care.”

The Father’s Proposals

1. The father seeks an order that he and the mother share parental responsibility for both children and that both children spend alternate weeks (with such arrangement continuing through the mid-semester holidays) and half of the Christmas/New Years school holidays with each parent.

2. In the alternative, the father seeks orders in similar terms to those made by Cassidy FM on 23 September 2010.

3. The father also seeks an order that the children have no contact with the maternal grandfather or Mr S.

4. Finally, the father seeks an order restraining each of the parties from consuming alcohol or “illicit substances” whilst the children are in their care and for “twenty-four (24) hours prior to changeover.”

The Independent Children’s Lawyer’s Proposals

1. The Independent Children’s Lawyer proposes an order that, should the Court determine that the father does not pose an unacceptable risk to the children, the children live with the mother and spend unsupervised time with the father each alternate weekend and on two afternoons in the intervening week, together with half of the school holidays.

2. These orders in respect of time between the father and the children are “…contingent upon…” the father attending Alcoholics Anonymous (“AA”) “…for a period of 2 years…” from the date of the orders, as well as:

   ·    Attending “…Alcohol and drug related counselling under a Mental Health Plan”;

   ·    Anger Management counselling; and

   ·    Biannual Carbohydrate Deficient Transferrin (“CDT”) testing (at intervals of six months) for a period of 2 years.

1. The Independent Children’s Lawyer seeks a similar order with respect to CDT testing by the mother at intervals of “…at least 4 – 5 months…” and further seeks an order that the children not be left unsupervised with either the maternal grandfather or Mr S.

2. If a finding of unacceptable risk is made in respect of the father, the Independent Children’s Lawyer proposes an order that the father spend time as above, after three months’ “lead in time” during which the father’s time with the children is to be supervised by his mother. The contingencies outlined above similarly apply.

Risks?

1. The evidence, and the orders proposed by the mother in particular, but also by the Independent Children’s Lawyer, reveal the central role allegations of risk have in this case:

   a)The potential for both the maternal grandfather and Mr S, a friend of the mother’s, to present a risk resulting from inappropriate sexual behaviour.

   b)The suggestion that the father has engaged in sexually improper behaviour towards both K and M.

   c)The father’s alcoholism and vulnerabilities in his personality, including the potential for a resurgence of his alcoholism.

   d)The risk of emotional and psychological harm to the children as a result of the history of physical violence between the mother and father.

2. The determination of whether any, or all, of those risks are “unacceptable” in the sense used in the authorities turns, in large measure on the evidence of each of the parties and their veracity and credibility and it is to that issue that I first turn.

Credibility of the parties

1. I am cognizant that the mother’s self-representation has the potential to create for her some disadvantages, not only in respect of the presentation of her case, but also in respect of her presentation generally. I have that potential for disadvantage acutely in mind when assessing her evidence - and also her submissions.  (I note, for example, what the High Court said in Neil v Nott (1984) 68 ALJR 509 at 510 about the Court “… assume[ing] the burden of endeavouring to ascertain the rights of the parties which are obfuscated by [a self-represented party’s] own advocacy.”)

2. I am, however, equally mindful that self-representation can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation.

3. Ultimately, I was unsatisfied with the evidence of each of the mother and father; I considered much of it to be self-serving. I consider that both parties were aware of the impact of their evidence on the outcome of the proceedings, and they each tailored their evidence to ensure, as best they could, that the result would favour them as distinct from giving their best, honest recollection.

Mother’s allegations of sexual and physical abuse

1. I do not propose to engage in a discursive consideration of the well-established principles pertaining to parenting cases which involve sexual abuse allegations. I make plain, however, that I am cognizant of, and apply, the principles enumerated in, for example, M v M (1988) FLC 91-979, B v B (1988) FLC 91-978, McCoy & Wessex (2007) 38 Fam LR 513, In The Marriage of N & S (1996) FLC 92-655, Napier v Hepburn (2006) FLC 93-303 and Partington (aka Bade) v Cade (No 2) (2010) 42 Fam LR 401.

2. Nothing in the amendments to Part VII, including the introduction of mandatory Primary and Additional Considerations alters the principles discussed in those authorities.  Best interests remain the paramount consideration (s 65AA) and, unsurprisingly it might be thought, protection from harm is (as it has always been) a Primary Consideration.

3. Subject to a consideration of the presumption of equal shared parental responsibility and, consequently, s 65DAA (reference to each of which will be made in a moment), the weighing of relevant Primary and Additional Considerations in the context of the Objects and Principles of the Act requires, in cases of this type, a careful balancing exercise similar to that referred to by the Full Court, prior to the 2006 amendments to the Act, in B v B (1993) FLC 92-357, in particular at 365-366.

4. The primary basis for the mother’s contention that the father poses a risk of sexual harm to K is an alleged “disclosure” made by K on 15 June 2011.  He was 5 years of age. The mother deposes in an affidavit filed

   
   

   3 August 2011 that, on 15 June 2011, she was wiping her son’s bottom and he said to his mother “Please Mum, please be careful not to put your finger in my bum like [Mr A] did… Please be careful not to put your finger in my bum like a naughty man did to me”. The mother took her son to be referring to the father, whom K often refers to by his first name.

5. The mother goes on to describe a process of enquiry by her of her son during which she asked K “What does he do buddy, what do you mean?” to which her son allegedly responded “He put’s [sic] his finger in my bum and does this” and the mother describes her son “…pointing his finger in the air and motioning up and down.” After further questioning by his mother, K allegedly said that “He squeezes my bum very hard”.

6. The mother said in oral evidence that her partner, Mr N, was present but in another room when K made the statements alleged by her. The mother stated during cross-examination that, in the midst of K allegedly “disclosing” that he had been sexually abused by the father, she told him to stop, that she would be “…back in a minute” and “… I ran up and asked [her partner], ‘You’ve got to hear this.  [K] is saying that Nick abused him, sexually’…” Apparently, the mother’s partner did not leave the other room; he was, the mother says, playing computer games and did not, despite the mother allegedly stating that K was disclosing sexual abuse of him by the father, leave the computer game and go to the kitchen.

7. Mr N’s evidence is that he was present in the house when K made the alleged “disclosure”; he was “surfing the net” in the bedroom when the mother “…came in very upset saying…[K] said he had been abused…”. Mr N did not immediately leave the room, although he later went to the kitchen where the mother asked K to repeat what he had allegedly said. According to Mr N, he did not immediately go to the kitchen because “… he didn’t see how I could strengthen the situation by going out there…” 

8. I was wholly unimpressed with Mr N’s evidence. Mr N deposed that “…some months” after he and the mother had moved into their home in June 2010, the mother “…informs me about [K] being abused and refuses to let [K] go to [the father’s]…I was also present when [the mother] was questioning [K] about the situation I could not really give a strong opinion on the matter because I was not present at [the father’s] … I thought it was simply [Ks] imagination…”

9. During cross-examination of Mr N, I sought to clarify the chronology of events set out in Mr N’s affidavit. When I asked Mr N when it was, approximately, that the mother had “…inform[ed]” him that K had been sexually abused, Mr N stated “I can’t really recall…I can’t give you an exact date or month.” Mr N initially thought it was in summer although he later stated that he was “…not sure” when summer was and went on to state that it was “…the end of winter…” before further stating that it was “…just before Christmas 2011 actually.” As it eventuated, Mr N stated that he was “informed” of the allege abuse on the “same day” that the mother came into the bedroom and told him that K had made “disclosures”. Further, whilst Mr N provided no detail of the alleged disclosures in his affidavit, in his oral evidence he proceeded to give an account of what he contends K said.  Mr N’s evidence contained significant inconsistencies - not only between his affidavit and oral evidence, but also within his oral evidence.

10. According to the mother she took K to the I Town Police Station on

    
    

    15 June 2011 however, there were “…no officers there to take a statement”. The mother also called the Department “to notify them…” of K’s statements.

11. On 16 June 2011 K participated in an interview with police. The mother states that the police officer who conducted the interview advised her that K “…had not disclosed anything to her...”

12. The Independent Children’s Lawyer tendered, with the consent of the other parties, a summary of the contents of the “s 93A” police interviews with K (Exhibit ICL 2). That summary reveals that in the first 93A interview (which occurred on 16 June 2011), the police officer asked K if he knew the father and he said the father was “a bad man, a naughty man” and when asked why K stated “because he yells at me too much.” The police officer:

    …asked [K] a number of questions about if anyone had touched him on his private parts or private spots and he said that you have to keep your hands to yourself. He got very distracted at this time walking around and talking about going to the shop. [The police officer] tried to get him back on track by asking whether anyone has touched his bottom and he said no.

    [The police officer] asked whether he felt safe at home with his mother and he said yes but sometimes she was naughty and that was when he didn’t do the right thing…

    …

    When asked if [he was] safe with [the father] he said no because he was scared of ghosts and afraid of them. When [the police officer] asked any other reason he was scared he said he was afraid of dragons…

    …

13. The mother alleges that when she and K returned home from the police station on 16 June 2011, K apologised to her for not telling the police everything and that he did not do so because he was “scared [he] was going to get into trouble from [his mother]…”

14. According to the mother she asked K why he had not run away from the father to which K said “Nick was on top of me and he was squishing me so I couldn’t move while he hurt my bum…” The mother further deposes that K stated that he had tried to “…run away back to [his mother’s] house…but Nick got me and put me in the car and took me to my special Daddy, [Mr D] and he hurt my bum too…” The mother contends that the reference by K to his “special Daddy” was to his biological father. During cross-examination by counsel for the father, the mother conceded that the father and K’s biological father had “no connection”.

15. On 17 June 2011, the mother took K to their “local doctor” who provided a referral to the Child Protection Unit at the I Town General Hospital, where K was seen by Dr R on 18 June 2011.  

16. The mother deposes to Dr R advising her that “…there was scarring and evidence of previous trauma, however as there is no recent abrasions that he would be putting ‘no evidence’ on his Affidavit.” There is no evidence before the Court, independent of the hearsay evidence of the mother just referred to, that scarring or other evidence of “previous trauma” was observed in K’s anus.

17. On 19 June 2011, K participated in a further “93A interview”. Exhibit ICL 2 reveals that during that interview:

    …

    Initially the policewoman asked [K] if he knew what he had come there to talk about and he told her that he was going to talk about [Mr A]. When she started to question him “what about [Mr A]” [K] said that [Mr A] punches and kicks him and puts chairs on his head…

    When she asked him why he has been punched and kicked his answer was for “washing you up”. She tried to get him to explain what that was but he didn’t know what he meant.

    …

    She asked him about why he didn’t want to go to [Mr A’s] and that he said he was scared. When she asked him why he was scared he said that he did lots of things. She then tried to find out what the lots of things were and he said that there was “punching”…and he and [Mr A] watch tv together and that it was good.

    …

    The police woman asked why [K] had told her that [Mr A] punched [him] and he said that he didn’t know, and when asked if Nick had ever hurt him he said “no not yet”.

    …

    She again asked him if anyone had touched him anywhere inappropriate on his private parts but he said no and talked about keeping his hands to himself.

    She specifically asked him the question about anyone ever touching him on the back side to which he said no. She tried to direct the child’s attention to his bottom by saying it was where the poo came from, and asked him if anyone had touched him there and he said no.

    …

18. Significantly as it seems to me, K was asked if the father had ever touched him “where the poo came from” and K said “no”.

19. During submissions, the mother proceeded to give further evidence regarding why she believed the father had sexually abused K. Given that the mother was self-represented, and bearing in mind the provisions of Division 12A of the Act and s 69ZN in particular, I allowed the “evidence” to be given in that manner and afforded counsel for each of the father and the Independent Children’s Lawyer to provide submissions in respect of same.

20. According to the mother K had exhibited what she now appreciated to be “flags” of sexual abuse prior to his alleged “disclosure”. Those “flags” included K being “highly sensitive”, stating that his “bum was sore”, he was having “trouble walking” and he was “wetting the bed very bad” and also “wetting his pants at school”. This was the first time in the proceedings that the mother had referred to K’s “bum [being] sore” or him having “trouble walking” prior to the “disclosure”.

21. It is not at all clear whether or not the mother contends that the father poses an unacceptable risk of sexual harm to M. The mother’s proposed orders see the father spending time with M on each alternate weekend, with the paternal grandmother to “…maintain a partial supervisory role in the care of M”. In this respect, the single expert, Mr F states (in his report dated 20 January 2012) that the mother “…made clear that she is not seeking any supervised time in the Order for M and her father” (emphasis added).

22. However, the mother refers, in a Notice of Child Abuse of Family Violence filed by her on 22 September 2011 in the section “About the alleged risk of abuse” to two occasions when, it is said, M attempted to insert a spoon and a fork into her vagina. The mother asserts that she took M to a doctor after the first occasion and was advised that her “hymen was intact” and that she should not contact the “police/child safety as [she] could be charged with making a false report.”

23. The mother further states that on 30 November 2010, she “caught” M “trying” to insert a fork into her vagina.

24. I note that after this time, the mother continued to facilitate unsupervised time between the father and M.

25. The mother deposes to being aware during the relationship that the father was sexually abused as a child and does not contend that behaviour on the part of the father during the relationship caused her to consider that the father posed a risk of sexual abuse to either K or M.

26. Indeed, following separation, the mother left both K and M in the father’s sole care from February 2010 to June 2010. At no point during this time does the mother contend that either K or M made any “disclosures” or statements indicating sexually inappropriate behaviour by the father.

27. In terms of the risk of physical harm posed by the father, the mother makes repeated reference to the father’s alleged excessive physical disciplining and “verbal abuse” of his two older sons, U and A.

28. In her affidavit filed on 24 January 2011, the mother deposes to having “…often witnessed the [father] screaming and verbally abusing all of his children including U and A. I witnessed an incident where the [father] grabbed A and threw him across the room whilst screaming at him.”

29. I pause to note that despite the mother “often” witnessing the father’s alleged verbal and physical abuse of his children, the mother determined in early 2010 that the father’s home was one in which she could leave her two children, who were, at the time they commenced living primarily with the father in February 2010, aged three and one.  She does not contend this occurred through any threats, coercion or any other such behaviour by the father.

30. The mother also contends, in her Case Outline filed 8 March 2012, that in September 2010 (that is, around the time the first set of consent orders were made), K made a “disclosure of physical assault by [the father] to his Preschool teacher”.

31. There is no evidence from that teacher of what K actually said. Indeed, it seems, the Case Outline is the first reference made by the mother to the alleged “disclosure”. In this respect, the Notice of Child Abuse and Family Violence filed by the mother on 22 September 2011 makes no mention of K’s alleged “disclosure” to his teacher of physical assault. 

32. As set out above, K referred to the father “punching and kicking” him in his second 93A interview with police. When these statements were further explored by the police officer conducting the interview, K stated that “…he didn’t know” why he had said the father had punched him and, further, when asked if the father had hurt him, K stated “…no not yet” (emphasis added).

33. The Department was notified of the alleged “disclosures” of sexual abuse made by K, as well as various other allegations, including domestic violence and alleged “burns” and “bruises” on the children after returning from the father’s home (see, Exhibit M1).

34. The Department produced two reports to the Court pursuant to s 91B of the Act. In the first and more substantive of those reports (dated 12 September 2011), it is noted that the Department had determined to take no further action in respect of the allegations made by the mother in June 2011 regarding K’s alleged “disclosures”: “…the concerns reported to the department have not met the department’s threshold for further investigations and assessment.”

35. In the second s 91B report dated 10 January 2012, the Department states “[a]t this stage there is insufficient information to indicate that the children are at significant risk of harm, abuse or neglect due to the actions or inactions of a parent or household member…”

36. The father has two sons to previous relationships. Ms H, the mother of his eldest son, U, filed an affidavit in which she describes the events that led to U being placed permanently in his father’s care at 10 years of age. U’s mother goes on to state that she has never had any concerns regarding the father’s treatment of either herself or her son. Indeed, Ms H deposes to the father “…always provid[ing] a clean and loving home to [U].” Ms H’s evidence was not challenged.

37. In the latter of the s 91B reports prepared by the Department, it is noted that further concerns had been reported to the Department regarding the father including, relevantly, that the children had allegedly “disclosed that their father hits and yells at them…” The Department determined that “…there is insufficient information to indicate that the children are at significant risk of harm, abuse or neglect due to the actions or inactions of a parent or household member.”

38. I have had regard to the evidence of each of the parties, the evidence of U’s mother, the 93A interviews with K and the determinations by the police and the Department (including, for example, as set out in the two s 91B reports). I am satisfied that the father does not pose an unacceptable risk of sexual or physical harm to either K or M.

Risk posed by Mr S and the Maternal Grandfather?

1. On 8 February 2011, orders were made by consent by Cassidy FM amending the earlier consent orders so as to prevent the maternal grandfather and Mr S from having any contact with the children, unless that contact was in the presence of the mother.

2. The mother relied upon the affidavit evidence of Mr S to support a number of the claims made by her. The affidavit filed by Mr S makes no mention of the fact that he had been convicted of an offence stemming from a sexual relationship he had engaged in, as a 38 year old, with a 14 year old girl.  The mother attributes this “oversight” in Mr S’s affidavit to the fact that her then solicitors prepared the material.  However, Mr S’s affidavit was filed on 24 January 2011 and the mother filed a further two affidavits on her own behalf (3 August 2011 and 6 March 2012) in which she makes no mention of the alleged oversight in Mr S’s affidavit.

1. As a result of his conviction, Mr S was sentenced to a term of imprisonment.

2. Mr S said in oral evidence that he now appreciates that his actions in conducting a sexual relationship with a 14 year old girl were inappropriate and that he should have “waited”.  Mr S breached his bail conditions on three separate occasions by having contact with the child.  He is now in a relationship with her and they have a child together.

3. I consider an order that Mr S spend no time with either of the children, unless in the presence of the mother, to be warranted in the circumstances.  

4. According to the mother, when she was 13 years of age, her father sexually abused her by placing his hands under her clothing and touching her clitoris. The mother reported to Dr O that this “…episode of inappropriate sexual behaviour…has had a profound effect upon her emotionally.” There is also evidence from the mother that her father “groped” her on the bottom and breasts (over her clothes) from her adolescence until her mid-20s.

5. I am satisfied that an order that the maternal grandfather spend no time with either of the children, unless in the presence of the mother, to be justified in the circumstances.

Risk posed by the father’s alcoholism and depression

1. The mother contends that the father poses a risk of harm to the children as a result of his alcoholism.

2. The father concedes, readily, that he is an alcoholic. He denies, however, drinking to excess as described by the mother.

3. According to the mother, the father told her at the beginning of their relationship that he was a recovering alcoholic. The mother alleges that the father began drinking heavily after she became pregnant with M in late 2008. The mother further contends that the father would become physically and verbally abusive towards her and the children whilst inebriated.

4. The father concedes that he and the mother would drink together during their relationship. The father, however, denies ever being physically violent towards either the mother or the children. The father concedes that the parties’ relationship “…was at times marred with arguments…”

5. It was submitted on behalf of the father that the mother’s contentions are completely at odds with her actions in placing both of the children in the father’s primary care for an extended period in 2010. I think there is merit in that submission.  That is particularly so because, again, there is no suggestion that doing so was as a result of any threats, coercion or other such behaviour on the part of the father. The mother contends that she was, in essence, forced to leave the children with the father as a result of her precarious housing situation. The mother, however, also contends that at the time she left the children with the father she was “…giving him the benefit of the doubt” and was “…trying to help him in his recovery from his depression and alcoholism…”

6. The mother’s actions in this respect might be starkly contrasted with her actions following K’s alleged disclosures earlier discussed.  I do not accept that this mother would leave her children with a man she claimed was drinking to excess on almost a daily basis and who had physically and verbally abused not only herself but also the children.  Again, there is no suggestion of threats or coercion bringing about that situation.

7. The mother relies upon the evidence of Mr S to support her claims regarding the father’s alcohol consumption during the relationship. It will, I think, already be apparent that I was singularly unimpressed with Mr S’s evidence; I consider it unreliable and attach little weight to it.

8. A Protection Order was made against the father as a result of an incident at the parties’ home in February 2009. The mother contends that the father was inebriated during the incident. The father was handcuffed by the police and, according to the mother, both U and K observed the father being handcuffed and were “very upset.” The father was not charged in respect of the incident, however, the police made an application for a Protection Order, naming the mother as the aggrieved. A Protection Order was ultimately made on 13 May 2009 requiring the father to “…be of good behaviour towards the [mother] and … not commit domestic violence.” The order continued until 12 May 2011. The parties continued to live together for several months after the making of the Protection Order.

9. None of the children were named as relatives of the aggrieved in the application for the Protection Order. The father contends that he was unaware of the application and, consequently, did not appear in Court when the Protection Order was made. The Order reveals that it was made by consent; but I am inclined to believe the father’s evidence.  I think the reference to consent arises from the father not attending the hearing.

10. The mother also contends that the father poses a risk of harm to the children as a result of his depression. The mother claims that the father has previously threatened to kill himself and has intentionally taken incorrect dosages of medication prescribed to treat the symptoms of his depression.

11. For the purposes of these proceedings, the father attended upon Dr O, a psychiatrist, for the purposes of undergoing a psychiatric assessment. Dr O subsequently prepared a report, which was annexed to an affidavit of the doctor and filed on 4 January 2012.

12. In that report, the doctor notes that the father was diagnosed with “significant Chronic Depression in 2002 and has been on the Disability Support Pension since that time.” Dr O confirmed that “[i]t is clear…that [the father] suffers from a chronic Major Depression…” Whilst Dr O reported that at the time of the report (being 16 November 2011) the father was not attending upon a psychologist or psychiatrist in respect of his depression, the doctor formed the opinion that the father did not require the services of a psychiatrist or psychologist “…at this time as…his illness has developed into a chronic state with medication likely to ameliorate the worst aspects of his mood disturbance and provide him with a degree of emotional stability to assist him in continuing his parenting role.” At the time of the hearing, the father was taking medication prescribed by his General Practitioner to assist in treating his depression.

13. Dr O reported that the father demonstrated “…no evidence of any psychotic phenomena in the form of hallucinations or delusions” and was “…of sound mind and capable of providing a parenting role for his children.”

14. Mr F prepared two family reports in these proceedings. In the latter of those reports (dated 20 January 2012), Mr F noted that the father had been taking anti-depressants and had been attending AA.

15. The father contends that he has been sober for approximately 3 years. The father does, however, concede that he has relapsed during that period.

16. In this respect I note that the father significantly downplayed a “relapse” he had in November 2011 in not only his affidavit evidence but also to both Dr O and Mr F.

17. The father deposed to relapsing in November 2011 after he was followed to an AA meeting by two men who were making comments about the father harming his children. The father deposed to purchasing “…a bottle of bourbon and some marijuana and went home.” In respect of this incident, the father advised Mr F that he had “relapsed” and “wiped himself out” in November 2011. The father advised Dr O that in the two years preceding November 2011, he had only consumed “…one cone and a drink…”

18. The true magnitude of the father’s relapse only revealed itself during the father’s cross-examination. The father stated that in addition to consuming alcohol, he had also consumed some 40 “cones” of marijuana in a single night.

19. The mother tendered evidence of the father’s bank statements (Exhibit M2) to support a contention by her that the father had been consuming alcohol during the period from July 2009 to January 2011 (when the father says he was sober). Those statements reveal approximately 12 withdrawals/purchases at hotels and liquor shops on 10 days across 18 months. The father contends that the purchases were for food at the hotels and that when he did purchase alcohol, it was for family and friends.

20. The mother put the statements to Mr F who stated that alcoholism carries a “long term risk of relapse”, however, even assuming that the bank statements were proof that the father had been purchasing alcohol for his own consumption, the father has, since his relapse in November 2011, engaged with “supportive services including AA” and is “somewhat insightful” in terms of his addiction.

21. I am concerned by the father’s failure to provide an honest account of his relapse, including to Mr F or Dr O.  However, I accept, as Mr F reported, the father has been “help seeking” and in this respect I note that he has been attending AA and is taking medication to ameliorate the symptoms associated with his depression.  Of course, during that time, these proceedings and, thus, the scrutiny of the Court have provided a significant background.

22. Further, the father has a strong relationship with his mother and Mr F cites that relationship as a further “protective factor” for the father.  

23. There is no evidence before me of any Departmental involvement with the father in respect of either of his other sons, U or A. Indeed, U continues to live with the father and A spends unsupervised time with his father during school holidays.

24. Further, U’s mother has given unchallenged evidence that she visited the father and U “quite regularly” during 2010 (including when K and M were living primarily with the father) and observed that the father was providing all the children “…with a safe home…love and support”.  Whilst I have some reservations about this supportive evidence, it does, I think, provide an appreciable measure of comfort in assessing risk.  In that respect, Ms H states that she “…did not see any signs of alcohol or drugs during my visits to the Respondent Father’s house.”

25. Whilst the father plainly has an issue with alcohol, having regard, in particular, to the evidence of Ms H, Mr F and Dr O, I am not satisfied that the father’s alcoholism or his depression, whilst properly managed, poses an unacceptable risk of harm to either of the children.

26. That said, given the chronic relapsing nature of the father’s addiction and his relatively recent relapse, and the magnitude of that relapse, I consider it appropriate to make an order that requires the father to undergo CDT blood tests every four months for a period of two years from the date of these orders. In the event that the father’s CDT results indicate that he has been consuming alcohol, any orders for unsupervised time with either of the children shall be suspended and all time with the child/ren shall be supervised until such time as the father’s CDT tests are clear of alcohol.

Risk posed by the alleged violence between the mother and father?

1. The mother contends that the father was physically and verbally abusive towards her during the relationship. The father denies being physically violent towards the mother but concedes that he may have been “verbally angry” towards her. The father contends that the mother would become physically aggressive towards him after she had consumed marijuana, which, he says, she did on a “regular basis”.

2. I have already referred to the circumstances of the Protection Order, which was made upon application by the Queensland Police.  Ultimately, the Protection Order made continued in force until May 2011.

3. The parties continued to reside together after the Protection Order was made and, notwithstanding the mother’s allegations of the father’s continued physical and verbal abuse, there is no evidence before the Court of the father being dealt with for any breaches of the order.

4. The mother makes fleeting reference in an affidavit filed by her on 6 March 2012 to a “temporary AVO” having been made against the father. There is no evidence before me of any such order or any application seeking such an order. Nonetheless, Mr F notes in his report of 20 January 2012 that “[t]he previous Domestic Violence Order expired in May 2011. [The mother] has applied for another Domestic Violence Order, listing [the father] as the respondent. He is subject to a Temporary Order and the matter proceeds to Court during March 2012.”

5. Mr F also reports the father stating that “[h]e called the mother a ‘fucking liar’ to her face, prompting her application for a DVO.” It is not clear whether that incident was the catalyst for the initial application in February 2009 or whether that was the basis for the “temporary AVO”.

6. The father was also convicted of wilful damage after smashing a window at the maternal grandfather’s property in March 2009. Apparently, the father became enraged after he overheard the mother talking to her brother about their father attempting to “sexually assault” the mother when she was 13. According to the father, he subsequently attended at the maternal grandfather’s home and smHd the window. The father was sentenced to 12 months’ probation as a result of the incident.

7. U’s mother deposes to there being no incidents of violence between herself and the father either during their relationship or post-separation. Dr O refers to statements provided by the mothers of each of the father’s other children and reports that those statements indicate “…that [the father] has not shown previously any history of domestic violence and/or hostility towards either his ex-partners or any of his children.”

8. The mother contends that the father has continued to be verbally abusive post-separation and that the children have been present when the father has been abusive.

9. In his report, Mr F opined that:

   … [t]he level of parental conflict and mistrust has escalated…both of these parents have managed their conflict and mistrust poorly. The children are likely in the longer term to be exposed to their mistrust and antipathy for one another. The father appears to be quite uncontained. When it comes to balancing issues of parental conflict against the emotional needs of the children, both of these parents appear to be quite limited…

10. As a result of the mother being self-represented during the proceedings, I had the benefit of observing the nature of the relationship of the parties whilst the mother was cross-examining the father. What I observed was entirely consistent with the opinions of Mr F set out above.

11. However, there is no independent evidence before me of any incidents of abuse (whether physical or verbal) between the mother and father post-separation and, apart from the mother’s allegations, there is no evidence that the father breached the Protection Order made on 13 May 2009.

12. Further, documents produced pursuant to subpoena by the Department (exhibit M1) reveal that the Department was notified of alleged incidences of “domestic violence” between the parties and yet, both s 91B reports produced by the Department indicate that it did not consider the children to be at risk of harm from either parent.

13. I am tolerably satisfied that the children are not at an unacceptable risk of harm from violence, or exposure to violence, by the father (B v B (1988) FLC 91-978 and M v M (1988) FLC 91-979).

Statutory Considerations

1. I am cognizant of the statutory basis upon which I am to ascertain K’s and M’s best interests and the Considerations relevant to same enumerated in s 60CC of the Act. I am also aware that the ascertainment of the children’s best interests takes place within the framework of the Objects and Principles of the Act (s 60B).

2. That framework has now been discussed in numerous decisions of the Full Court.  Examples include: Goode v Goode (2006) FLC 93-286; Donnell & Dovey (2010) 42 Fam LR 559; Marsden & Winch (No 3) [2007] FamCA 1364; Mulvany v Lane (2009) FLC 93-404; and, the High Court in MRR v GR (2010) 240 CLR 461. Other decisions have considered aspects of those requirements including, for example, the expression “meaningful relationship” (see for example, Sigley & Evor (2011) 44 Fam LR 439).

3. In Hardie & Capris [2010] FamCA 1046 I attempted to collate my understanding of the principles flowing from the authorities (including those which bind me). I do not propose to repeat those passages here, but I make it clear that I am here applying those principles, as understood by me, as set out in that decision (at [44] to [86]).

4. The Act makes it abundantly clear, and it reminds the Court numerous times in different places, that the essential exercise in making parenting orders is to arrive at ultimate findings directed to the specific child’s/children’s best interests relevant to their specific circumstances.

5. The assessment of best interests is to be conducted within the statutory objective of maximising parental involvement but only insofar as it is consistent with that assessment. Ascertaining best interests by reference to the Act’s mandatory signposts must embrace the fact that:

   It is a mistake to think that there is always one right answer to the question of what the best interests of the child will require.  Best interests are values not the facts. (CDJ v VAJ (1998) 197 CLR 172 at 219)

6. Findings as to best interests underpin each of the specific matters to which the Court is directed by the Act. (See for example, s 60B(1)(a); s 60CA; s 61DA(1); s 65DAA(1)(a); s 65DAA(2)(c) and Note 1 to each of those latter two sections). I turn now to consider the relevant Considerations.

Section 60CC(2)(a) – Meaningful relationship

1. The mother contends that the father is not K’s biological father and that, coupled with K’s alleged “disclosures”, means that K would derive no benefit from a relationship with the father.

2. The father has been in K’s life since K was an infant. Mr F observed K with the father in December 2010 and January 2012 and reported that K displayed affection towards the father on each occasion. Indeed, during the latter observation, K gave the father “…occasional hugs quite spontaneously”.

3. Perhaps most significantly, K identified the father as being part of his family. K also stated that the father “…has been good to me and I love him.”

4. Mr F stated in both of his reports that he considered that K looked to the respondent as a “father figure” and that the father was K’s “psychological father.”

5. In his most recent report, Mr F observed that “…K appears also to accept [the father’s] family as his wider paternal family…” Mr F further stated that “[i]f K is not to have an ongoing connection with [the father] it is likely to cause him considerable confusion and loss. He will be losing a secure attachment figure at a young age…” This loss, according to Mr F, is likely to be exacerbated as a result of the father having an ongoing role in M’s life.

6. I consider that, contrary to the mother’s assertions, K does have a relationship with the father that is not only beneficial to him, but also significant and valuable (see, Sigley & Evor).

7. The mother conceded, rightly in my view, during oral evidence that M has relationship with her father that is beneficial and meaningful to her. Mr F observed a “…relaxed and secure…” relationship between M and her father.  

8. Both children plainly have a strong and meaningful relationship with their mother and the father, to his credit, does not contend otherwise.

9. I consider that both children benefit, and will in the future benefit from a meaningful relationship with each of the mother and father.

Section 60CC(2)(b) – Protection from harm

1. I have dealt with the issue of harm at length earlier in these Reasons.  

2. I am not satisfied that the father poses an unacceptable risk of sexual harm to the children.

3. Further, whilst I accept that there have been incidents of family violence between the parties such as to warrant the granting of a Protection Order against the father, having regard to the evidence of Ms H, the Department and to the observations of Mr F of the nature of the relationship between the children and the father, I consider that the children are not at an unacceptable risk of harm from violence, or exposure to violence, by the father.

1. I consider that risks to the children are likely to arise if the father’s alcohol addiction relapses and the children are in his care.  I have indicated earlier in these reasons what orders I propose to meet that potential risk.

Sections 60CC(3)(a) and (b)

1. M is currently 4 years of age and is not at an age and stage of development where she is able to express her wishes and “views”.

2. K is also young, although I consider he is of an age and stage of development where he is able to express her wishes and “views”. Whilst such views may not be significantly determinative of the matters about which those views are expressed (given his youth), it is, in my view, fundamental that the voices of children should be heard in proceedings about them.

3. I accept the evidence of Mr F as it pertains to that issue.

4. Mr F saw K on 10 December 2010 and again on 12 January 2012.Whilst at the first interview, Mr F reported that K was “…quite unresponsive to my direct questions about his family”, at the second interview, Mr F noted that K was “…more engaging…”.

5. At the first interview, K stated that the father “…yells at me and I feel sad.” Contrastingly, in the second interview, K stated “…my Mum thinks [the father is] naughty. That’s not nice is it? Because he’s been nice to me.” K also stated that he loved the father and when asked by Mr F whether he would like to have sleepovers at the father’s house, K stated, “Maybe I could have two or three sleeps at [the father’s]?”

6. It is also significant that K identified both the father and his son U as being part of his family; K described U as his “brother”.

7. I raised with the mother the inconsistency between the warm and loving statements made by K to Mr F and the allegations against the father. The mother contended that K was a warm and loving child and his responses were merely a reflection of that, rather than he actual feelings for the father.

8. I do not accept this.K’s statements are completely consistent with the spontaneous and affectionate relationship between the father and K observed by Mr F and I consider that his statements are reflective of a mutually loving relationship between K and the father.

9. I have already outlined Mr F’s observations of the father with both K and M. During both interviews, Mr F observed a “relaxed” and “affectionate” interaction between both children and the father.

10. In respect of K, Mr F described K in his 2012 report giving the father “…occasional hugs quite spontaneously.” Whilst the mother would contend that this is simply as a result of K’s nature, I note that Mr N (the mother’s partner) was also present during the observation and Mr F does not report similar spontaneous displays of physical affection between K and Mr N.

11. In terms of the relationship between the mother and the children, during both observations Mr F noted a happy and affectionate interaction between the children and their mother.

12. It is plain that both K and M enjoy loving relationships with each of the mother and father; to K, the respondent is his father. Further, as Mr F identified, and I accept, the father’s other sons, U and A , as well as the paternal grandmother, are each “significant people” in K’s and M’s lives.

Section 60CC(3)(c) – Willingness and ability

1. The mother maintains an implacable belief that the father has sexually abused K. Further, the mother reiterated in her oral evidence, affidavit material and to both Mr F and Dr O, that the father is not K’s biological father and K derives negligible benefit from spending time with the father.

2. Nonetheless, the mother has continued to make K available to spend time (albeit supervised by the paternal grandmother, and not overnight) with the father in accordance with the orders made by consent on

   
   

   4 August 2011.

3. Mr F stated in his latest report that:

   [He had] strong misgivings about the ability of the mother to promote any relationship between K and [the father] of it is the case that the Court does not make a finding of harm. There is a likelihood that if K remains predominantly in his mother’s care, his relationship with [the father] may erode regardless of the structure [put] in place by the Court. The mother puts forward that she has a longstanding view that K’s relationship with [the father] has no quality, but it only serves a purpose (her purpose) to report on any risks to M whilst she is too young to tell her things herself. In making this statement she acknowledges the burden of this on K and that he is cognisant of her mistrust.

4. I accept Mr F’s opinion in this respect; I too have concerns that whilst the mother will most likely facilitate a relationship between the father and K by making K available to spend time with the father, she will not encourage a relationship between K and the father.

5. In particular, I note that K has made no “disclosures” to any person other than his mother regarding the father’s alleged sexual abuse of him. K has, however, told Mr F that his mother has told him that the father is “naughty”.

6. I also have concerns about the father’s willingness to facilitate a relationship between the children and their mother. During the interview with Mr F, the father stated that he wanted the children “…full time now. After this bullshit I want the children full time.” The father went on to state that the children could “…have supervised access” with the mother. Whilst the father does not ultimately seek such orders, his statements to Mr F cause me some concern in terms of the father’s preparedness to encourage and facilitate the children’s relationship with their mother (as well as the father’s attitude to parenting (s 60CC(3)(i)).

Sections 60CC(3)(d), (e), (f), (g) and (i)

1. The orders proposed by the mother represent a significant change for K (s 60CC(3)(d)). Mr F opines, and I accept, that the father is a “…psychological father to K…” and K would suffer “…considerable confusion and loss…” if he were to no longer spend time with the father. Further, “…K appears also to accept [the father’s] family as his wider paternal family.”

2. If orders were made as proposed by the mother, K would “lose” not only a father, but also his paternal grandmother and two half-brothers. He would also have to deal with the confusion of his sister continuing to spend time with that family, whilst he does not. This confusion and loss would undoubtedly be compounded for K when his sister spends time with the father and his family on special occasions such as Christmas and birthdays.

3. The father’s orders also represent a change, albeit not as significant as that sought by the mother. If orders were made according to the father’s proposals, the children would spend significantly less time with their mother each fortnight and would also see K spend unsupervised, overnight time with the father.

4. If orders were made as the father proposes but only in respect of M, both children would experience a significant reduction in the amount of time they spend together.

5. No issues regarding difficulty or expense have been raised by either party (s 60CC(3)(e)).

6. Neither party contends that the other lacks the capacity to provide for the children’s needs (s 60CC(3)(f)). Indeed the orders sought by each of the parties, at least implicitly, acknowledge that the other has the necessary capacity.

7. I note, however, that both the parties and the mother’s current partner admit to consuming marijuana relatively regularly (ss 60CC(3)(f), (g) and (i)). I am perhaps most concerned by the fact that the mother conceded during oral evidence that she has consumed marijuana whilst the children were in the house, albeit when they were asleep. The consumption of drugs in the home in which the children reside or spend time with the parties presents a wealth of risks to the children including, for example, the potential for the children to inadvertently ingest the drug or for the parents to be unable to provide for the immediate needs of the children whilst under the drug’s influence.

8. I consider an order that the parties must not consume any illicit substances during the time the children are in their care, or in the 24 hours immediately prior to the children coming into their care, to be warranted in the circumstances.

9. Dr O completed psychiatric assessments of both parties and reported an absence of “…psychiatric disorder” in both parties. Whilst the doctor stated that the mother has “…shown some poor judgment in the past…” he opined that “…there is no evidence of any psychiatric disturbance impeding [the mother’s] capacity to provide ongoing care and loving relationship with her [children].”

10. A major concern regarding the father’s capacity is his alcoholism. Of course, if the father does relapse, there is the real risk that his capacity to provide for the needs of his children will be significantly compromised. In this respect, Mr F stated that “[a] further issue of risk relates to [the father’s] level of stress and the existence of co-morbid issues…Stress is a significant factor in contributing to relapse.”

Sections 60CC(3)(j) and (k)

1. The issues of family violence and the existence of family violence orders have previously been canvassed, at length, in these Reasons.

Parental responsibility

1. The orders proposed by the Independent Children’s Lawyer are silent as to parental responsibility. 

2. As far as I can gather, the mother seeks an order for sole parental responsibility in respect of both children.

3. The father seeks an order for “equal shared parental responsibility” in respect of both children, or, in the alternative, orders in accordance with those made by Cassidy FM on 23 September 2010 namely, shared parental responsibility for M, with the mother having sole parental responsibility for K.

Parental responsibility in respect of K

1. At first blush the Act would appear to give no power to make an order for non-parents to receive the benefit of an order for equal shared parental responsibility. First, s 61DA – the section containing the presumption – speaks only of “parents” having equal shared parental responsibility. Further, the power to make parenting orders (s 65D) is made subject to s 61DA. And, s 65DAA, which mandates the consideration of equal time upon the application of the presumption, applies when an order provides that “the child’s parents” are to have equal shared parental responsibility.

2. But, the picture is not that simple.  Section 64B defines parenting orders to include orders whereby the Court allocates parental responsibility.  Section 64B(2)(d) contemplates, in terms, the possibility of “two or more” people sharing parental responsibility and also refers to “persons” sharing parental responsibility as distinct from parents.

3. Further, an application for a “parenting order” which, by definition, can include an application for an order for parental responsibility by “two or more persons”, can be made not only by a parent, but by any person concerned with the care, welfare and development of the child (s 65C) and can be made in favour of a parent or “some other person”.

4. The position is, then, it seems to me, that an order allocating parental responsibility can be applied for by a non-parent concerned in the care welfare and development of the child and an order can be made between two or more persons including persons who are not a parent.  However, the presumption of equal shared parental responsibility applies only as between parents.

5. Further, where an applicant, or applicants, other than the parents apply for a parenting order allocating parental responsibility, the presumption would operate such that it would be presumed that the parents would have equal shared parental responsibility to the exclusion of the non-parents.  Expressed another way, the presumption that the parents share parental responsibility equally would need to be rebutted by reference to the matters enumerated in s 61DA(2) or (4) before an order allocating parental responsibility to non-parents could be made.

6. K’s biological father was not a party to the present proceedings. The mother and K’s biological father had been parties to parenting proceedings in the Federal Magistrates Court in December 2007 at which time orders were made that the child live with the mother and that the father have supervised contact with the child.

7. The evidence before me indicates that K’s biological father did not avail himself of time with K and K has no relationship with his biological father; the respondent father in these proceedings is the only “father” K has known.

8. I also decline to make an order that the respondent father in these proceedings have parental responsibility for K, save for responsibility for making day-to-day decisions whilst K is in his care. I have made this decision based on the reasons given below for rebutting the presumption of equal shared parental responsibility in respect of M.

9. I note that Cassidy FM made an order on 23 September 2010 giving the mother sole parental responsibility of K, however, in these proceedings, I will not make such an order. I do not consider such an order to be necessary. Pursuant to the orders I will make, the father will have no parental responsibility for K (other than in respect of day-to-day decisions whilst he is in the father’s care) and K will live primarily with the mother. The practical effect of those orders is that, ultimately, the mother will be solely responsible for making decisions about “major long-term issues” affecting K.

Parental responsibility in respect of M

1. Pursuant to s 61DA(1) of the Act, it is presumed to be in M’s best interests for her parents to share parental responsibility for her. For the following reasons, I am satisfied that that presumption should be rebutted in M’s best interests.

2. The mother alleges significant incidents of family violence perpetrated on her by the father during the relationship, with verbal abuse continuing post-separation and to-date. The father denies ever being physically violent towards the mother, although concedes that their relationship was “marred by arguments.” Both parties agree that the best means for them to communicate is in writing, via a communication book, although the mother contends that the father has previously failed to avail himself of this means of communication.

3. The father has previously been subject to a Protection Order and is, it seems on both parties’ evidence, currently subject to a Temporary Protection Order in respect of at least the mother.

4. There may well be grounds for the inapplicability of the presumption by reason of family violence, but I am, in any event, satisfied that the presumption ought to be rebutted in the best interests of the M (s 61DA(4)).

5. The Act defines “parental responsibility” to mean “…all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” Save as the Court orders, each of the father and mother has parental responsibility for M. But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.

6. Not only is that phrase not defined, it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of cooperation, respect and agreement attend consensual post-separation co-parenting arrangements.

7. In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.

8. The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those sharing parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.

9. Carrying out those tasks and obligations, on what might be a regular basis, particularly when, as here, there is increasing “conflict” and “mistrust” between the parties, who each agree that the only effective means of communication between them is writing, carries with it potential significant difficulties.

10. Equally, though, an order for “sole parental responsibility” in favour of a party (as is frequently sought as an alternative to either the sharing of parental responsibility or equal shared parental responsibility) means, at least arguably, that the other party has no rights, responsibilities and authority in respect of “major long-term issues” for the children save as expressly ordered.  (Decisions in respect of day-to-day issues are specifically provided for: see, Note to s 65DAE(1)).

11. The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.

12. There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the child.  But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).

13. I have determined to make orders that contemplate a process of consultation and a genuine attempt by the parties to reach agreement about major long-term issues (as that phrase is defined in the Act) regarding M but, in the absence of agreement, the ultimate decision being left to the mother.

14. I have determined to make orders in those terms (which, I should add, seem to be orders of a type contemplated by the Act – see s 64B(2)(d)) by reason of the issues discussed above. Irrespective of specific findings as to particular incidents of violence, I consider the parties are unable, as a matter of practical reality to do that which the Act mandatorily requires of those who share parental responsibility. In that respect, I accept Mr F’s statement that the “[t]he level of parental conflict and mistrust has escalated” as consistent with the evidence before me.

15. Whilst I appreciate that the parents have shared parental responsibility for M since orders were made to that effect by consent in September 2010, I note that M is presently 4 years of age; she is yet to commence school and I consider that the increasing conflict and mistrust between the parties does not augur well for the parties’ capacity to consult and make joint decisions regarding the multitude of major long-term issues involving M that are likely to arise between now and when she turns 18 in some 14 years’ time.

16. I am satisfied that it is in K’s best interests for no order for parental responsibility to be made in respect of the father and that it is in M’s best interests for the mother to have sole parental responsibility for her.  However, as I have said, I will formulate orders which have the effect of requiring the mother to obtain the father’s written input into any and all decisions to made by her in respect of “major long-term issues” affecting M.

Parenting orders: Conclusions

1. The father seeks an order that the children spend equal time with him and the mother. The mother seeks an order that M spend alternate weekends and one day in the “off week” with the father and that K spend no time with the father. The Independent Children’s Lawyer proposes an order that the children spend alternate weekends and one afternoon in the off-week and half of the school holidays with the father.

2. The orders sought by the father pose a significant change for both children who have, at least since August last year, lived primarily with the mother. Further, K has spent no overnight or unsupervised time with the father since at least that time.

1. Whilst the father has previously had primary care of both of the children and his eldest son, U, has been in his primary care since he was approximately 10 years of age, I have significant concerns that the stress associated with the care of both M and K on a week-about basis could result in the father relapsing.  A corollary is that M and K will have the opportunity to spend time with U, something which I consider is plainly in their best interests.

2. This is particularly so given that the transition for K into overnight time with the father will undoubtedly carry its own unique challenges in light of the allegations made against the father, of which K is patently aware.

3. The father suffered a substantial relapse in November 2011; at that time, he was spending overnight time with M each alternate weekend and seeing K during the day (supervised by the paternal grandmother).  Whilst I accept that catalyst of the father’s relapse was not stressors associated with caring for the children, nor were any of the children in his care at the time, I am gravely concerned by the nature and magnitude of the father’s relapse at a time when the father was spending time with the children in an amount significantly less than that which he presently contends for.

4. The mother has demonstrated a capacity to parent which the father, in seeking an order for equal time, implicitly acknowledges has been “good enough”.

5. In light of these factors, together with the relevant Part VII Considerations set out above, I consider that it is in K and M’s best interests to live primarily with their mother but to, ultimately, spend five nights per fortnight during the school term and half of the school holiday periods with their father. Given my finding that the father does not pose an unacceptable risk of harm to either of the children, I am also satisfied that it is in the children’s best interests to spend unsupervised time with the father, provided that the father remains sober.

6. I consider that five nights with the father per fortnight and an afternoon in the off-week will give the children the opportunity to reap the benefits of what I have found is a mutually beneficial, loving and meaningful relationship between each of the children and the father. I also consider that such an order will minimise the disruption to the children’s lives as they travel between two homes and will enable each of the parents to participate in the children’s schooling and extra-curricular activities.

7. Given that is has been some time since K has spent time overnight with the father, I will formulate orders that will see a gradual increase in time between the father and K, leading, ultimately, to overnight time each alternate weekend.

8. I order accordingly.

Delay

1. I recognise the delay in the delivery of this judgment.  It will not assist the parties if I should I seek to explain (but not excuse) the delay by reference to competing work pressures, but I very much regret the delay and apologise for it.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 18 October 2012.

Associate: 

Date:  18 October 2012