Kerrison and Kerrison
[2013] FamCA 31
FAMILY COURT OF AUSTRALIA
| KERRISON & KERRISON | [2013] FamCA 31 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Allegation of sexual abuse by the Father – Where there is a likelihood or possibility that the Father sexually abused his daughter from a previous marriage – Where there is a finding that the Father physically abused his son from a previous marriage – Where there is no evidence of the Father being sexually abusive in the past 20 years –Where there is no evidence of the Father being sexually abusive to the children the subject of these proceedings –Where the Mother has never had concerns about the Father sexually abusing the subject children – Where the Mother is capable of acting protectively of the children –Where the children currently have a meaningful relationship with both parents – Finding that there is an unacceptable risk of harm if the younger two children were to spend unsupervised overnight time with the Father until they reach an age where they are able to protect themselves |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 MRR v GR (2010) 240 CLR 461 M v M (1988) 166 CLR 69 Sigley & Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Kerrison |
| RESPONDENT: | Ms Kerrison |
| INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family & Animal Law |
| FILE NUMBER: | BRC | 3627 | of | 2009 |
| DATE DELIVERED: | 4 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19-21 December 2011; 31 January 2012; 2 and 20 March 2012 |
REPRESENTATION
| COUNSEL FOR THE RESPONDENT: | Mr Black |
| SOLICITOR FOR THE RESPONDENT: | Think Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Sweetapple |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Couper Geysen Family & Animal Law |
Orders
That except as otherwise provided, the Father and the Mother are to have equal shared parental responsibility for the major long term issues of the children J born … September 1998, M born … April 2004, and B born … June 2006.
That the parents are to consult with each other about decisions to be made in the exercise of their shared parental responsibility as follows:
(a) they shall inform the other parent about the decision to be made;
(b) they shall consult with each other on terms that they agree;
(c) they shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a) the Mother shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her;
(b) the Father shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
That the Mother and Father shall:
(a) keep the other parent informed at all times of their residential address, email and telephone contact telephone numbers;
(b) keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at the parent’s cost).
That during the time the children are with either parent, that parent shall:
(a) respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(d) not physically discipline the children.
The Father shall supply clothing for the children while the children are in his care and shall return the children’s clothing to the Mother in a washed and clean manner, and will return the children bathed and in a clean state.
The children are to live with the Mother and are to spend time with the Father as may be agreed between the parties or, failing agreement, as set out in this Order.
That the children are to spend time with the Father during school term as follows:
(a) subject to the proviso in 9(b) below commencing Friday 8 February 2013 (or alternatively commencing from fulfilment of the said proviso) J shall live with the Father during the school term every second weekend from 3:00pm on Friday until 5:00pm on Sunday;
(b) notwithstanding paragraph 9(a) above, J shall not start overnight time with the Father until the Father provides the Mother with documentary evidence (such as a lease or similar) showing that he has residential accommodation suitable for the child’s needs;
(c) M and B shall spend time with the Father during the school term every second weekend from 9:00am to 5:00pm Saturday and 9:00am to 5:00pm Sunday;
(d) upon M turning 13 years of age, she and B shall spend time with the Father under the same terms as paragraph 9(a) above, provided that the Father has residential accommodation for the children’s needs, being at least a three bedroom house with separate beds for each child;
(e) that the Father’s overnight time with the children is suspended at any time during which he does not maintain suitable residential accommodation with provision for separate beds for each of the children, and during suspension the children will spend time with the Father every second weekend from 9:00am to 5:00pm Saturday and 9:00am to 5:00pm Sunday.
The children are to spend time with the Father during school holidays, as set out in paragraph 11 below, provided that:
(a) the Father is able to take time off work to care for the children during that holiday time; and
(b) the Father has given 28 days prior written notice to the Mother of his intention to take time off work and spend time with the children during the holiday period.
Commencing in 2013:
(a) J is to spend time with the Father for the first half of the July school holidays and the first half of the September school holidays;
(b) J is to spend time with the Father from after school upon completion of the school year until 5:00pm on 23 December each year;
(c) M and B are to spend three days with the Father during the first half of each of the July and September school holidays (such days to be agreed between the parties) between 9:00am and 5:00pm on each of those three days;
(d) M and B are to spend eight days with the Father between the completion of the school year and 23 December (such days to be agreed between the parties), between 9:00am and 5:00pm on each of those eight days.
After M turns 13 years of age, M and B are to spend time with the Father on the same terms as in paragraphs 11(a) and (b) above.
That, notwithstanding any other order, the children shall spend time with and communicate with the Mother and Father on special occasions as follows:
(a) with the Father on Father’s day (if a non-contact weekend) from 9:00am until 5:00pm;
(b) if Mother’s day falls on a weekend during which the children are scheduled to spend time with the Father, the children’s time with the Father will be suspended for that weekend;
(c) if one of the children’s birthdays falls on a weekend during which the children are scheduled to spend time with the Father, the children’s time with the Father will be suspended for that weekend.
Unless otherwise agreed in writing, all changeovers shall take place:
(a) if changeover occurs on a school day, at the child’s school;
(b) otherwise, at the Suburb D Police Station.
The children shall communicate with their parents on the telephone at such times as a child reasonably requests but otherwise between 7:00pm and 8:00pm on Wednesday and in relation to such communication each parent shall:
(a) ensure that the children are available to receive the telephone call;
(b) arrange for the children to telephone the other parent on the following night if, for any unforseen circumstance, the children miss the telephone call from that parent;
(c) ensure that the children have privacy during the conversation.
That while the children are spending time with either parent, that parent will ensure:
(a) the appropriate medication is available to treat B’s Asthma condition;
(b) that the children maintain a non colour/flavour or preservative diet;
(c) that the children are not in the presence of, or subjected to, the smoking of cigarettes;
(d) that the children are transported at all time with the use of age and statute appropriate safety car seat restraints;
(e) that M not share a bed with another male child or adult.
That the Father must provide a separate bed for each child during any period the children spend overnight time with the Father.
That if any of the children are suffering from a significant health issue requiring medical attention that child will remain with the Mother.
That each parent shall deliver and return the children’s clothing, school supplies and belongings and the children’s clothing shall be returned in a clean condition.
That the process to be used for resolving disputes about the terms or operation of these Orders shall be as follows:
(a) the parents shall consult with the Family Dispute Resolution practitioner or Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made;
(b) they shall pay the costs of the Family Dispute Resolution practitioner equally;
(c) in the event that they are unable for any reason to have an appointment with the Family Dispute Resolution practitioner and cannot agree on an alternate Family Dispute Resolution practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d) the Father shall choose one of those listed practitioners within seven (7) days of receipt of the list;
(e) if the Father fails to choose then the Mother may choose.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in the preceding Order.
Pursuant to s 65DA(2) and s 62B of the 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 Kerrison & Kerrison 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: BRC 3627 of 2009
| Mr Kerrison |
Applicant
And
| Ms Kerrison |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Initiating Application filed 27 April 2009, Mr Kerrison (“the Father”) sought parenting Orders in respect of three of his children by his former wife, Ms Kerrison (“the Mother”); namely J, born in September 1998 (14 years), M, born in April 2004 (8 years), and B, born in June 2006 (6 years) (“the children”).
By that Initiating Application, the Father sought that the children spend week about as well as half of all school holidays with each parent and that both the Mother and the Father have equal shared parental responsibility. This was amended by the Amended Initiating Application filed by the Father on 26 May 2011, which sought that the Orders of Federal Magistrate Howard, made on 27 May 2009, be, “…reinstated…” Those Orders provided for the children to live with the Mother and to spend every second weekend with the Father and for the parties to have equal shared parental responsibility, amongst other matters.
The Mother, by her Further Amended Response to Initiating Application filed 3 June 2011, proposed substantially similar Orders, including that all three children live with the Mother and spend alternate weekends with the Father and that both parties have equal shared parental responsibility.
However, this was amended in the Mother’s Case Information Document filed 8 July 2011, wherein she sought Orders that upon the Father providing the Mother with evidence that he has obtained appropriate accommodation, the oldest of the subject children, J, spend each alternate weekend with the Father, and the two younger children, spend from 9.00 am until 5.00 pm on Saturday and Sunday of each alternate weekend with the Father. The Mother also sought an Order for equal shared parental responsibility.
The alteration of the Mother’s position in terms of the Orders sought by the Mother was brought about by the reporting to her by one of the Father’s children from a previous marriage, S (as at trial 25 years of age and a mother herself) that the Father had sexually abused her during her childhood. This allegation of sexual abuse, and its truth or otherwise, became a central issue in this matter.
Background
The Father was born in 1963 and is now 49 years of age. The Mother was born in 1976 and is now 36 years of age.
The Father has a long history of participation in family law proceedings. Documents relating to those proceedings were admitted into evidence in the trial of the proceedings before me.
Proceedings for property Orders between the Father and his first wife, Ms A, were commenced by Ms A by Initiating Application filed on 4 August 1994. Those proceedings were settled by consent on 30 August 1994.
By Initiating Application filed 4 October 1995, the Father commenced new proceedings against Ms A with respect to parenting Orders for their four children, namely W, born in February 1985, S, born in July 1986, K, born in June 1988 and N, born in February 1992. That application sought that the children remain living with the Mother, but that the Father spend time with one of each of the children from 9.00 am to 5.00 pm each Saturday and all four of the children together one Sunday per month.
In those parenting proceedings, issues of domestic violence and sexual abuse loomed large. In a report of Dr C, psychiatrist, filed 28 September 1995, Dr C reports that W, the oldest of the Father’s children, reported to him the following:
He told me “He tried to put us against Mum. Tried to say that Mum didn’t feed us enough. That we made breakfast in bed for Mum because Mum orders us but we do it because we love Mum. He was violent. To Mum and us kids, well me. When he was hurting Mum I jumped on his back and smashed his glasses. Got him in a head lock. He threw me on the floor. I tried to get him off Mum.
Further quotations, “He beat me in the stomach with his fists. I think it was for no reason. I don’t know why he did it. “He (sic) used the excuse that his father did it to him so he would do it to his own kids.”
On other occasions, “I heard him threaten to commit suicide.”
I asked him what that does mean he replied “To kill himself.”
…
I discussed with [W] whether he felt safe at home with his mother and he stated clearly that he did not feel safe from his father. He remained unconvinced that any laws would help him keep safe. He said that “He would still get us even if there was an electric fence. We’re not allowed to sleep with the windows open at night even in the summer.”
In her Answer filed in those proceedings on 2 October 1995, Ms A deposed that the Father had physically abused W and had sexually abused both of their daughters, S and K, throughout the marriage. Ms A provided detailed particulars of several instances of alleged abuse of the children in her Cross-Application, and sought Orders that she have, “…sole custody…” (the terminology then in use) of all four children and that, “…no order for access…” (the terminology then in use) be made by the Court.
A family report by an Officer of the then Department of Family & Community Services, Queensland, Ms G, was filed in the matter on 4 December 1995. That report refers to two child protection notifications to the Department being made, one on 26 September 1995 concerning sexual abuse of S and K during a visit to a cinema in December 1994, and another on 3 October 1995 concerning severe physical abuse of W over a prolonged period. Ms G arrived at the following conclusions following interviews with the three eldest children (N at that stage being only three years of age) and Ms A:
The investigation by the [Local] Area Office is not yet complete as there has not been an opportunity for [the Father] to be interviewed by the [Local] Area Office and medical examination of the children by the Royal children’s Hospital is not complete.
[S] and [K] have both separately disclosed sexual abuse by their father during the time he lived with them, and also during access visits after he had separated from his wife. [W] has disclosed physical and emotional abuse by his father on occasions when [the Father] lived with the family as well as on occasions when he visited the house after he separated from his wife. The children have witnessed domestic violence between their parents and [W] has become involved in physical violence at times. The children had experienced emotional abuse as a result. It appears that [Ms A] was aware of the abuse, and for a long time was not able to protect the children from further abuse. All the children have reported they do not wish to go on access visits with their father, and it appears that the children would be at considerable risk of continued abuse if they saw their father in an unsupervised situation.
Ms G also makes reference to other ongoing investigations occurring at that time:
The matter has been referred to the Suspected Child Abuse and Neglect team (SCAN) on the 8/11/95. I am aware that [the Father] has been interviewed by [Ms E] ([Suburb F] JAB) and serious consideration is being made of charges being laid against [the Father] in relation to sexual abuse of [S] and [K] and physical abuse of [W]. I am aware that [W] has been attending the Child and Family Therapy Unit (CAFTU) for some time in relation to the abuse he has experienced.
A Domestic Violence Order was made in July 1995, with Ms A as the aggrieved and the Father as the Respondent, with the children also being named in the Order.[1]
[1] See paragraph 3 of Ms I’s affidavit filed 6 December 2011.
A Notice of Child Abuse or Risk of Child Abuse was filed by Ms A on 17 July 1996, which details physical abuse of W and sexual abuse of S.
The parenting proceedings between those parties were settled by consent on 8 July 1997, with final Orders being made that all four children reside with Ms A and that she have sole care of them. No Order for contact with the Father was made. Thus the serious allegations in those proceedings were not tested by the Father at a trial and were not disputed to the extent of the Father seeking the Court’s determination of Orders. The Father consented to Orders that effected sole care by the Mother and no access order.
It appears that following those final Orders most of those four children then had little or no contact with the Father until much later in their lives, although W appears to have spent some time with and lived with the Father for certain periods.
The Father re-partnered with the Mother following his separation and eventual divorce from Ms A. The Mother and the Father married and commenced living together in August 1997 and separated on a final basis on 30 January 2006, only four and a half months prior to the birth of the parties’ third child, B, in June 2006. The Father admits that he had commenced seeing another woman prior to the parties’ separation and that he moved in with her following the separation. However, that relationship has not persisted and did not produce any children. Following the parties’ separation, the Mother re-partnered with one Mr H in 2008, and married him in mid-2011.
The Father has formed relationships with several other women in the past six years, including with one Ms P, with whom he has had a further two children bringing to nine the number of children the Father has fathered. When interviewed by the Family Consultant, Ms I, on 14 July 2011 Ms P stated that despite having children together, she and the Father were, “…just friends, not like partner stuff…” and that Ms P continued to live with her husband in his home.[2]
[2] See paragraphs 43 and 44 of Ms I’s affidavit filed 6 December 2011.
The Mother deposes in her affidavit filed 20 May 2009 that immediately following separation, the three children the subject of these proceedings spent irregular time with the Father, “…at the [Father’s] request.” The Mother also deposes in that affidavit that since June 2008, the children had spent every second weekend with the Father.
The present parenting proceedings between the Mother and the Father appear to have been originally precipitated by the Mother’s wish to have a four week holiday overseas to spend time with her now Husband, Mr H, during which time she did not wish the children to spend time with the Father, but instead proposed that the maternal grandparents care for the children and the Father continue to spend time with the children on alternate weekends during that period. The Mother deposed in her 20 May 2009 affidavit that her concerns about the children spending that time with the Father were based on a number of grounds, including that there would not be sufficient bedding available for the children at the Father’s home and that the Father worked full-time and therefore would not be able to properly care for all the children, including B, who was at that time just about to turn three years of age.
In her 20 May 2009 affidavit, the Mother’s concerns regarding any risks of abuse of the three subject children were restricted to her reporting of an incident between the Father, the Mother and the maternal grandfather occurring on the Easter long weekend in 2009. In that affidavit, the Mother deposes that the Father, following the Mother’s refusal to allow the children to spend time with the Father and the paternal grandfather during that weekend, arrived at the Mother’s home as she was leaving in a vehicle and attempted to forcibly remove the children from the car as well as assaulting the maternal grandfather, who was called by the Mother to intervene. The Mother deposes that her refusal was partly based upon the fact that the Father wanted the children to spend time with the paternal grandfather, whom the Mother deposes has been alleged to have sexually abused the Father’s brothers and sisters. The Mother also raises in that affidavit that the Father and W had violent arguments in front of the three subject children, but does not otherwise mention any of the history of allegations of abuse against the Father concerning his first marriage and the four children produced by it.
As a result of the altercation during Easter 2009, the Mother applied for a Protection Order against the Father, which was due to be heard in the Magistrates Court in July 2009. However, the Mother deposes in her affidavit filed 8 July 2011 that she never proceeded with the application for the Protection Order, as she hoped that following the Father’s instigation of family law proceedings in April 2009, “…that [she] may no longer require this after [Family] court orders were in place.”
Also as a consequence of the Easter 2009 altercation, the Mother withheld the children from having any further time with the Father until Orders were made by Federal Magistrate Howard on 29 May 2009 for the children to live with the Mother and to spend alternate weekends and half school holidays with the Father.
In an affidavit filed 18 October 2009, the Mother deposes that S contacted the children’s school in June 2009, asking the Mother to contact her. The Mother further deposes that she met with S in August 2009, at which point S raised concerns with the Mother about the safety of the children due to her experience of sexual abuse by the Father during her childhood. Specifically, the Mother deposes:
7. In August 2009 [S] visited me at my residence and raised concerns with me about the Father’s parenting of the children. [S] then said to me that she was concerned that the same thing could be happening to my children that happened to her when she was a child. I asked her what she remembered as a child. [S] advised me that she remembered showering with her father and also being in bed in the middle of the night and waking up to find her father in her bed when she was between 6 and 8 years of age. [S] did not specifically state what had occurred except to say that “yes the allegations were true, it did happen”. This statement was in reference to allegations of sexual abuse being made against the Father when [S] was approximately 8 years old.
8. [S] informed me that she does not know if the sexual abuse is happening now but is concerned that it may occur in the future. She said to me words to the effect “I wouldn’t be leaving my daughter anywhere near him”.
The Mother deposes in the 18 October 2009 affidavit that such allegations had been raised previously during her relationship with the Father, but that she had believed that the allegations had been, “…dropped.” The Mother further deposes that she had, “…never noticed any behaviour or comments made by the children that gave me cause for concern that the children were being interfered with by the Father,” and that she, “…personally had not seen the Father behave inappropriately with the children during the time we were together.” As a result, the Mother did not react immediately upon receiving the above information from S, but did keep a, “…watchful eye on the children for any out of character behaviour,” and, “…spoke with the children about “Personal Space” and outlined who is not allowed to touch our bodies.”
However, the Mother deposes in that same affidavit that in September 2009, the children’s school was contacted by a Ms L, who held herself out to be the Father’s then-current girlfriend. The Mother contacted Ms L and was informed that Ms L had heard M ask J, “Do you want to lick my vagina?” and that Ms L had contacted the relevant government Department about this disclosure. At that point, the Mother ceased all unsupervised contact between the children and the Father and proposed that until the matter could be resolved by the courts, the Father have only supervised contact with the children at the O Contact Centre, and organised an intake interview with that contact centre for 30 October 2009. However, the Mother proposed to allow the children increased telephone contact with the Father in addition to the supervised contact.
On 5 November 2010, Barry J made interim Orders that the children spend unsupervised time with their Father every Sunday from 9.00 am to 5.00 pm, and on 18 January 2010, Barry J made further interim Orders that J alone also spend every second Saturday with his Father from 9.00 am to 5.00 pm. In addition, 30 minute telephone calls were ordered to occur between the Father and the three children each Wednesday night.
Thus, since 5 November 2010 the children have been spending regular unsupervised time, but not overnight, with their Father.
The trial and further hearings
The trial commenced on 19 December 2011 and was set down for three days. However, on the final day of trial, during the final submissions of the Independent Children’s Lawyer, I was informed by Counsel for the Independent Children’s Lawyer, Ms Sweetapple, that she was compelled to inform me that during the preceding lunch break, S, who had given evidence in the Mother’s case, had informed Ms Sweetapple that her brother, W, had threatened her when he discovered that she was to give evidence against the Father and that that had affected the evidence she gave to the Court. Ms Sweetapple also informed me that Ms A and K were also now prepared to give evidence in this matter regarding the allegations of sexual abuse of both S and K and the physical abuse of W during the Father’s first marriage. The trial was then adjourned to allow that to occur and, due to the Christmas period, set down to continue on 31 January 2012, with the existing Orders to continue until that time. While the Mother did not object to the adjournment, the Father did, although he informed that Court that he wanted this to be, “…cleared up…”
On 31 January 2012, leave was given to the Mother to reopen her case for the purpose of providing further evidence from S. Although S was not in attendance on that day, the Father indicated that he wished to cross-examine her, and thus a further hearing date was set down for that to occur on a date to be fixed (later confirmed to be 2 March 2012). Both the Father and the Independent Children’s Lawyer were given leave to subpoena W to provide evidence in this matter (the Father having informed the Court that W would not voluntarily give evidence) and the Independent Children’s Lawyer was given leave to subpoena both Ms A and K to give evidence, it having become evident that neither would attend to provide evidence to the Court without a subpoena.
On 2 March 2012, S, Ms A and K were all present via videolink from Sydney to give evidence; however, the Father failed to appear. Later evidence given by the Father appeared to indicate this was because the Orders and other communications detailing the hearing date of 2 March 2012 had been sent to an address at which he no longer resided, he having failed to update his Notice of Address for Service. The matter was again adjourned to a date to be fixed, which was later confirmed to be 20 March 2012.
On 20 March 2012, each of S, K and Ms A gave evidence in this matter concerning the allegations of physical and sexual abuse made against the Father during his first marriage and were asked questions by Counsel for the Independent Children’s Lawyer. The Mother elected not to cross-examine any of the three women, and the Father elected to only cross-examine S and Ms A.
Statutory Framework
As this is a matter which was both initiated and heard prior to 7 June 2012, most of the recent amendments made to the Family Law Act 1975 (Cth) do not apply.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:
65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to 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. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, 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. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
In MRR v GR (2010) 240 CLR 461, the High Court observed (at para [9] of the judgment):
“[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.”
At [13], the High Court held:
“[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case:
a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010))
c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
i)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
ii)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (2010) 240 CLR 461, s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In M v M (1988) 166 CLR 69 (“M v M”), the High Court authoritatively determined the applicable principles for a primary judge to apply in determining parenting orders in a case involving allegations of sexual abuse.
Whilst Part VII of the Act has been amended since it was there considered by the High Court, none of those amendments operate to alter the substance of those principles. Rather, the principles may be expressed consistently with the language of Part VII in its amended form.
It follows from the decision of the High Court that in parenting cases involving allegations of sexual abuse, a number of propositions can be stated:
a)A primary Court is not under a duty to resolve in a definitive way whether, on the balance of probabilities, a parent has sexually abused a child. The ultimate and paramount issue the Court must decide is the making of parenting orders in the best interests of the subject child or children;
b)In parenting proceedings, the Court is concerned to make such parenting orders as will best promote and protect the interests of the child. In deciding what order it should make, the Court will give very great weight to the importance of maintaining parental ties, because it is prima facie in a child’s interests to maintain the filial relationship with both parents. Thus, resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of best interests;
c)The Court should not make a positive finding that the allegation is true unless the Court is so satisfied on the balance of probabilities. In applying that standard of proof, due regard must be had to the following factors:
i)The seriousness of an allegation made, the inherent unlikelihood of a given description, or the gravity of the consequences flowing from the particular finding are considerations which must affect the answer to the question of whether the issue has been proven to the reasonable satisfaction of the tribunal. In such matters, “…reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences.”[3]
d)An allegation that a parent has sexually abused the child is often easy to make but difficult to refute. However, it does not follow that if an allegation of sexual abuse is not proven on the balance of probabilities, that that conclusion is necessarily determinative of the outcome. In many cases the Court cannot confidently make a finding that sexual abuse has or has not taken place and there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless impelled by the particular circumstances of the case to do so;
e)The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental to be taken into account in determining parenting orders. The Court must determine whether, on the evidence, there is a risk of sexual abuse occurring and assess the magnitude of that risk. The magnitude of the risk may be less if time is supervised, but even then, that is not determinative because of the potential effect upon a child of interaction with a parent who has, or whom the child believes has, sexually abused the child;
f)To achieve the proper balance between the risk of detriment to the child of sexual abuse, and the possibility of benefit to the child of parental time and communication, the test to be applied is that a Court will not make orders for time and communication, which orders would expose the child to an unacceptable risk of sexual abuse.
[3] M v M (supra) at p 77,081, citing Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 362.
Outside of those cases falling at the extreme ends of the spectrum, on the one hand where the evidence and the circumstances of the case impel a positive finding that sexual abuse has actually taken place, and on the other, where the Court has no hesitation in rejecting the allegation as groundless, the High Court referred to, “…very many cases…” in which the Court, “…cannot make a finding that sexual abuse has taken place.”
Thus, in many, if not most, cases where an allegation of sexual abuse is made, the evidence and circumstances will not justifiably permit the Court to make a positive finding that sexual abuse has or has not occurred. However, the Court must:
a)Determine whether, on the evidence and circumstances, there is a risk of sexual abuse occurring in future; and
b)Determine the magnitude of that risk; and
c)Determine whether and how that risk may be addressed; and
d)Determine whether, because of the nature and magnitude of the risk, there would exist an unacceptable risk that the child would be exposed to sexual abuse by the form of parenting orders made.
The emphasis by the High Court in M v M on the passage quoted from Dixon J in Briginshaw v Briginshaw (supra), including the reference to, “…inexact proofs, indefinite testimony or indirect inferences,” resonates in cases involving an allegation of child sexual abuse, not only with respect to the limitations upon the Court making a positive finding, but also as to the risk assessment to be undertaken.
Notably, in a similar vein, in the passage of Dixon J’s judgment cited, his Honour also observed in that judgment (at p 368):
…The importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation.
When it is accepted that outside of those rare cases where there are any admissions or any physical evidence beyond the statements of a child, usually filtered through others, the difficulties of assessing the evidence become readily apparent.
s 60CC Best Interests Considerations
In analysing the s 60CC “best interests” considerations, I propose to, in accordance with the statutory framework set out above, consider the additional considerations set out in ss 60CC(3), (4) and (4A) before the primary considerations set out in s 60CC(2).
As regards the views expressed by the three subject children and the weight that should be attributed to those views (s 60CC(3)(a)), I note that there are three family reports in this matter. The first was written by Ms Q, Family Consultant, on 2 November 2009. The second and third were written by Ms I, Family Consultant, and filed on 13 April 2010 and 6 December 2011 respectively.
In the first report, Ms Q interviewed the Mother, the Father, J (then aged 11 years) and M (then aged 5 ½ years), B then being only three and a half years of age. Ms Q concluded that although J was initially, “…sullen and cranky,” he later relaxed and was, “…comfortable and easy…” with the Father. Indeed, Ms Q writes that J told her that he loves the time he spends with his father, and was upset that he was not being allowed to see him anymore (this report being written following the Mother’s withholding of the children from contact with the Father following S and Ms L’s reports to the Mother). Ms Q reported that M did not express any wishes about the time she spends with either of her parents.
In her first report, Ms I reports the following in relation to the children’s views on the time they wish to spend with the Father:
5. [J] (10 [this should read 11] and a half years old) presented as an articulate young man who understood that “the reason we’re not seeing Dad so much” was because “my parents fight, especially at Easter last year.” He told me that “Dad came like an ambush in a video game”, turning up at their house as they were about to leave for school on the last day of term. He added “Dad was technically supposed to have us for half the holidays. I was confused and went into Dad’s car. Dad told me to get out of Mum’s car. Mum said ‘stay in the car; get out of Dad’s car.’ They keep yelling and fighting over the little ones. Now I have a really bad attitude from that. I get grumpy all the time.”
…
7. [J] said that what happened at Easter is “always on my mind even when I’m watching TV to escape.” He worries about the future, about the “crazy things happening” like his parenting (sic) fighting, and that “I might not be able to see Dad much more or even again.” …
8. [J] said that he would like to live “one week with Mum and one week with Dad – it’s fair on me and it’s fair on Dad because he says he really misses me.” He said “I worry about Dad. I worry about all my family.”
9. [J] said that he wanted more time with his Dad but did not want to be responsible for any decision about time spent and for the adults to “hurry up and come up with an answer.” He could think of “nothing” that his father might have said or done to make him feel worried or scared. He said “nothing makes sense.”
…
11. When asked if there was something she would change about her father [M] said that “he would sleep with me.” She went on to tell me about her princess bed at her father’s place and her brothers having bunk beds there. Her comment appeared to be in the context of spending overnight time with her father, as she followed with “I don’t see him at his house anymore ‘cos Mummy had a fight with him so I go to a contact centre.”
12.[M] told me that she wanted it “to be different, to see Daddy like we used to. We’d see him every second holiday at his house.”
13. [B] (aged 3 years 9 months) presented as an active, exuberant little boy. He told me that he lives in a house “with [J] and [M] and Mummy, and Pop has his own house with Nan.” He said “Dad keeps changing houses so I tell him he’s naughty,” and that he sees his father at “someone else’s house” where there are “swings and all sorts of drinks.” [B] said “I love seeing Daddy there.”
14. [B] recalled “We saw him at his old house last year. There was painting there and beds and pancakes.” He told me that he wants to see his father “much” but “Mummy didn’t like Dad. They were fighting last year.” …
In her second report, Ms I writes that J expressed the following views on spending time with his father:
47. In interview [J] told me that he was glad that they had stopped seeing their father at a contact centre as “it got a bit boring; we didn’t get to spend much time together.” He told me that he and his siblings spend the full day each Sunday at his father’s place and [J] also gets to spend alternate Saturdays with his father, but not overnight, and “I really want sleepovers there.” He saw no reason why he could not sleepover on that Saturday night “but Mum says no way.” …
…
48. [J] commented “I think it’s completely mental. Dad’s willing to talk but Mum isn’t. Dad just wants to get it sorted out. Mum does too but she won’t talk.” [J] clearly had no idea about his mother’s reasons for not agreeing to sleepovers with his father, which confirms [Ms T’s] earlier claims that she had not told [J] about the sexual abuse allegations made against [the Father]. [J] thought the ceasing of sleepovers may have something to do with the incident at Easter 2009, and he said that “nothing like that” had happened since. He told me that he was not worried or afraid: “I trust Dad with my life.”
…
50. [J] thought the best arrangement for him was “fifty-fifty” between his parents; “Mum says I should think carefully, but the days with Dad go so quickly. I really want more time with Dad. Maybe one week with Mum, one week with Dad. Maybe switch on a Sunday or Friday.” He would like more flexibility than the current arrangement…
In that report, Ms I also reported that M similarly had no idea about the sexual abuse allegations regarding the Father, and that M also expressed a preference for spending alternate weekends with the Father over the present every Sunday arrangement so that M could spend more time with the Mother and Mr H. B also expressed a desire to sleepover at the Father’s home, but noted that his mother wouldn’t let him because he was, “…too small she thinks.”
Ms I concluded at the end of both of her reports that the children clearly had a good relationship with their father and wanted to spend more time with him, being completely unaware of the sexual abuse allegations made against him. In her oral evidence before me, Ms I confirmed, under cross-examination by the Father, that the children appeared to trust the Father in the settings they saw him in (not having spent overnight time with him in a long time).
The views of the children are important, and particularly the views of J and M, who are each now of an age at which they can clearly express their feelings and at which their views should be taken into account. However, the weight given to the children’s views must be balanced against the fact that none of the children know anything of the allegations of sexual abuse made against their father or of the risk he may pose to them if those allegations were to be substantiated.
I record in passing that in the confidential setting of these proceedings over a lengthy period it is to the credit of the Mother and reflects her capacity to be child-focused that she has not burdened the children with knowledge of allegations about which she herself is obviously uncertain, or used that information to influence the children.
Regarding the nature of the children’s relationship with each of the parents and other persons (s 60CC(3)(b)), it is clear that the children have close relationships with both of their parents, and this is recognised both through the Family Reports already mentioned above and the Father’s amending of his application to propose Orders that the children remain living with their mother and simply spend time with him, rather than the week about arrangement originally sought by the Father.
The Mother has been the primary carer of the children since their birth, and B in particular has never had any experience of the Father being present in his life on a day-to-day basis. The maternal grandparents also appear to have a good relationship with the children, having participated in their care during the early years of the children’s lives and particularly since the parties’ separation. Despite the Father’s allegations concerning alleged violence by the maternal grandfather perpetrated upon J, each of J himself, the Queensland Police Service and Ms I appeared to conclude that in the relevant incident J was not harmed and that the maternal grandfather’s actions in restraining J’s arms were to counteract a severe tantrum J was throwing at the time. I accept the Mother’s version of this incident.
There is also little question about each party’s willingness to facilitate and encourage a close and continuing relationship between the child and the other parent (s 60CC(3)(c)). The Mother has historically promoted contact between the children and the Father since separation, and has only restricted contact between the children and the Father when acting protectively following the Easter 2009 incident and following the revelations by S about the Father’s sexual abuse of S during her childhood. Even following those actions, the Mother moved quickly to organise an intake interview at a contact centre to ensure that the Father’s contact could be resumed quickly, and maintained telephone contact between the children and the Father. I note in particular the following depositions in the Mother’s affidavit filed 16 October 2009 which followed the revelations by S and the Mother’s suspension of the children’s time with the Father:
…I have not brought this application lightly and without concern for both the children’s safety and their relationship with the Father. I do not wish to interfere with the Father’s time with the children but need to be sure that the children are safe in his care.
I note that Ms I, in her report filed 6 December 2011, records that the Father reported to her that the Mother was excluding him from the children’s lives, giving the examples of the Mother taking J out of football without consulting the Father and the Mother failing to inform the Father when M was too ill to attend a concert that the Father attended. The Father also reported to Ms I that the Mother strictly enforced the terms of the Orders, for example cutting off phone contact at the end of the allotted half hour, whether or not the children had finished talking. The Mother admitted, in her interview with Ms I for the Family Report filed 13 April 2010, that she did interrupt at times when the Father was having phone contact with the children because the Father said, “…inappropriate things and told lies.” However, none of these examples paint a picture of a Mother truly determined to harm the relationship between the children and the Father, and the clear affection expressed by the children towards the Father as recorded in the respective family reports is a testament to the Mother’s ability to shield, to some degree, the children from her feelings and concerns regarding the Father. As already noted, if the Mother were motivated to adversely influence the children’s views of their father she could have provided them with knowledge of the historical allegations of S.
The Father similarly appears to promote, as much as can be expected in a family law dispute such as this, the children’s relationship with their Mother. His Amended Response seeks Orders that the children remain living with the Mother and simply spend time with him, and none of the Family Reports prepared in this matter record reports by any of the children that the Father has denigrated the Mother to the children or that vice versa in respect of the Mother, although evidently the children recognise that their parents do not get along, particularly following the Easter 2009 incident. In his oral evidence before me, the Father acknowledged that the Mother was, “…a good mother, generally speaking…”
In respect of s 60CC(3)(d), the Father’s proposal would not see a significant change in the children’s routine, save that it would change from only spending time during the day on weekends with their father to overnight time on alternate weekends. This change would not substantially change the time the children presently spend with each parent.
The Mother raises some concerns about the practical difficulty of the children spending overnight time with the Father (s 60CC(3)(e)). In particular, a consistent theme throughout her affidavit material is a concern about the Father’s constant changes of residence and his inability to find and retain accommodation which allows the children to each have their own beds and some private space. The Father did not address this issue in his affidavit material, but he gave oral evidence that he had moved frequently in the past and that he was then living in a caravan in a caravan park while he was waiting for a home to become available and that he had received, “…verbal approval…” to move into the home once it was available, which he expected to occur by the end of 2012. He deposed that once he had moved in, there would be two bedrooms for the three children to sleep in. However, the Father’s evidence raises concerns about the likely permanency of this residence or the ability of the Father to maintain such a residence. The Father gave oral evidence that he would only stay at this property for approximately six months, and that he might move even during that period. He gave further oral evidence that the rent was $355 per week, although there would be no bond as his landlord was prepared to waive the requirement for a bond until the Father had sufficient funds to pay one.
The Father’s belief that he could afford $355 per week in rent (when he deposed that he was presently living for free in a caravan in the yard of this property) conflicted with his prior oral evidence that he was not paying any child support to the Mother because he had no money to do so at present. The Father also gave evidence that he still owed Ms A substantial amounts of child support as well as owing the Mother child support somewhere in the order of $20,000.00. Given the Father’s evidence that he had only about $400.00 in his bank accounts at the time, and despite his evidence that he was expecting approximately $4,500.00 in fees that week, I have significant concerns about the Father’s ability to afford rent at the property he then intended to reside at or any similarly appropriate property. If the Father cannot afford to make even modest contributions to his children’s upbringing through child support payments, I find that it is unlikely that he can afford to rent appropriate accommodation.
I also note that, despite my clearly explaining the effect of the rule in Browne v Dunn (1893) 6 R 67 (HL) to the parties prior to the Father’s cross-examination of the Mother, the Father did not challenge the Mother in cross-examination over her repeated references in her affidavit material to the Father not having appropriate accommodation to house the children for overnight visits. These include depositions in her 20 May 2009 affidavit that the three children were sharing one room and one bed when staying with the Father and her depositions in her 8 July 2011 affidavit that the Father had lived in seven locations since 2009, including for several (sometimes lengthy) periods in a caravan or car. I therefore accept the Mother’s evidence about the historical instability of the Father’s accommodation and the often inappropriateness of that accommodation for overnight stays by the children with the Father. Consequently, I find her expressed concerns on this aspect are well-founded.
Those findings are also relevant to the consideration in s 60CC(3)(f); namely, the capacity of the parties to provide for the needs of the children. Also relevant to this consideration are the Mother’s concerns about the Father’s attitude towards what she deposes are the children’s health conditions.
For example, in paragraph 25 of the Mother’s affidavit filed 8 July 2011, the Mother deposes that, contrary to the Orders of Federal Magistrate Howard, the Father does not feed the children a diet free from artificial colours, flavours and preservatives when they are in his care. The Mother deposes that this causes problems with the children’s behaviour, as well as exacerbating problems with eczema and asthma in the two boys, especially B. This issue was discussed by Ms Q with the Father during the interviews for the Family Report written 2 November 2009, where the Father admitted to, “…break[ing] the rules sometimes,” in this respect, but it should be noted that the Mother also admitted to Ms Q that, “…she does give the children treats at times.” When questioned about this issue under cross-examination, the Father gave evidence that no doctor had prescribed the additive-free diet imposed by the Mother upon J and that the Father had seen little impact upon J’s behaviour from the food J was consuming in the Father’s household.
The Mother also makes allegations throughout her material that the Father does not appropriately manage B’s health, but there are no specific allegations of the Father failing to appropriately react to or deal with a medical condition of the children. This issue was also not put to the Father during cross-examination. I therefore place little weight upon this issue.
The majority of the issues (save for the risk of abuse of the children) between the parties appear to arise, as noted by the Family Consultants involved in this matter, from a difference in parenting styles. While the Mother is relatively strict and sets clear boundaries and rules, the Father’s approach is more laissez-faire, and this contrast leads to clashes in the parties’ co-parenting relationship. However, none of the issues raised by the Mother (again, save for the abuse allegations) appear to seriously impair the capacity of either party to successfully parent the three children of their marriage and to take care of their needs. The Mother does raise the issue that the Father uses physical discipline upon the children (with which she does not agree); however, there are no allegations by the Mother that this has ever been excessive and none of the children reported to either of the Family Consultants any fear of the Father in this regard. The Father raised in his oral evidence that J appeared to believe that use of a wooden spoon was appropriate discipline, inferring that the Mother used such means to discipline the children; however, given that this was raised for the first time in oral evidence, was not raised in the affidavit material read by the Father and is inconsistent with the Mother’s consistently strong disapproval of the use of physical discipline upon her children, I do not accept the Father’s evidence in this regard.
Also relevant to this consideration is that the Mother appears to have been more proactive in dealing with emotional issues affecting the children, in particular J. The Mother raises in her affidavit material that J has historically been prone to angry outbursts, and in particular makes mention of an incident where the maternal grandfather had to restrain J during a tantrum (the Father alleges this involved the maternal grandfather putting J in a “chokehold” and took J to the Queensland Police Service to report it, but no action was taken by the police in this regard). J reported to Ms I in the interviews for the 6 December 2011 Family Report that the Mother had taken action to assist J in this regard as follows:
Regarding the earlier incident with his maternal grandfather, [J] said “I don’t think he meant to hurt me, it was a bit of an accident. I’d lost it and was all angry then.” [J] told me about his “counselling for anger” which finished at the end of 2010 and which he found “useful. My temper’s not as bad now.”
The Father does not appear to support the Mother’s approach to this. In her report filed 6 December 2011, Ms I records the Father as reporting to her the following:
He said that although [J] was considered by his mother to have anger problems “he’s not angry at my house.”
As regards the maturity, sex, lifestyle and background of the child and the child’s parents (s 60CC(3)(g)), I note that it is important, as J reaches puberty, that he has positive male role models to emulate.
Section 60CC(3)(h) not being relevant in this matter, I turn to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the Mother and the Father (s 60CC(3)(i)). It is in this context that the issue of child support becomes important.
In her affidavit filed 20 May 2009, the Mother first reports that the Father had ceased to pay child support, “…for the last few months.” By the time the Mother filed her affidavit on 8 July 2011, the Father had not paid child support in over two years. The Mother attaches to this affidavit a notice from the Child Support Agency confirming that the Father owes the Mother $12,578.61 in child support arrears as at 15 June 2011. The Mother further deposes in that affidavit, however, that the Father, despite failing to contribute to the cost of the children’s needs through child support, has bought them expensive gifts such as Nintendo DS’s and Nike shoes. I note that by 15 December 2011, the Father owed the Mother $29,748.40 in child support arrears.[4]
[4] See Annexure “NLK1” to the Mother’s affidavit filed 16 December 2011.
Under cross-examination, the Father admitted that he was not paying child support, but said this was because he lacked the funds to do so. The Father contested that he did not earn the amount assessed by the Child Support Agency, but conceded that he had never contacted the Child Support Agency to change this assessment and that he had failed to provide the Child Support Agency with any evidence of his income. The Father further admitted that he had difficulty in providing evidence of his income given that he had not filed a tax return since some time in the 1990s, but asserted, without any supporting evidence or affidavit, that the accounts of his business were, “…with the accountant…” However, the Father also gave oral evidence that he purchased Nintendo DS games for the children when they were in his care; an unusual step given his assertion that he had no money whatsoever to contribute to the funding of their day-to-day care through the payment of child support.
This appears to be part of a pattern of neglect by the Father of his responsibility to pay child support, with the Father admitting under cross-examination that he still owed his first wife, Ms A, child support, and that the last payment he had made to her had been forcibly taken from his bank account by the Child Support Agency approximately three years ago.
I find that this evidence by the Father shows a complete disregard for a key responsibility of parenthood; namely, to fund the upbringing of one’s children wherever and to the extent possible. Furthermore, as mentioned above, it raises questions about the capacity of the Father to provide financially for the children should they spend more time in his care as he proposes.
I now turn to the issue which dominated this case; namely the issue of family violence (ss 60CC(3)(j) and (k)). I also propose, for convenience, to consider at the same time the primary consideration of s 60CC(2)(b), namely the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are two key issues to be considered here; first, the risk of physical and/or emotional abuse, and second, the risk of sexual abuse.
In relation to physical and/or emotional abuse, it is important to note at the outset that the Mother deposes that the Father has not physically abused her or the children either during or after the parties’ marriage (I note in this respect that the physical discipline used by the Father upon the children does not, I find, amount to “abuse” within the meaning of the Act). However, the Mother does allege emotional abuse of both herself and, in particular in relation to the Easter 2009 incident, of the children. Specifically, the Mother notes at paragraph 24 of her affidavit filed 8 July 2012:
24. Although I never personally experienced physical abuse from the Father prior to separation, I did witness his use of intimidation on others, and after separation, the Father at times used the same intimidation tactics on me. I feel that the Father saw me as “his property”.
It appears from the Mother’s affidavit filed 20 May 2009 that she sees the Easter 2009 incident as a key example of this, “…intimidation…” and emotional abuse by the Father. In that affidavit, the Mother deposes that she received a letter from the Father on 29 March 2009 requesting that he have the children for the Easter weekend because the paternal grandfather would be flying in from New Zealand. The Mother, through her solicitors, replied on 1 April 2009, refusing the Father’s request (albeit offering the next weekend, when the paternal grandfather would not be present, in lieu) on the basis of her concerns regarding the paternal grandfather. The Mother asserts that four of the Father’s sisters have alleged that the paternal grandfather had sexually interfered with them, and for that reason she, understandably, did not want the children in proximity to the paternal grandfather.
Under cross-examination, the Father was inconsistent in his evidence about his knowledge of the paternal grandfather’s alleged abuse of his sisters. Initially, the Father said that he had never said that the paternal grandfather had engaged in such abuse; that he did not know if the allegations were true, that he did not think that his siblings were sexually abused and that Ms A was not truthful when she asserted that the Father’s mother and sister had told her that the Father’s sisters had been abused by the paternal grandfather. Later on during his cross-examination, the Father gave evidence that he had not been told, “…directly…” that sexual abuse of his sisters by the paternal grandfather had, “…actually…” occurred. Upon further questioning, the Father revealed that he believed it was simply a, “…misunderstanding of actions…” and added that the paternal grandmother had never provided the Father with solid evidence of the paternal grandfather sexually abusing the Father’s sisters. The Father also gave oral evidence that the only actual statement that had ever been made to him was that the paternal grandfather was in the bathroom while the Father’s sister (then in her teens) was having a shower, and confirmed that he had never discussed this with his sister.
This, however, is inconsistent with the report made by the Father to Ms Q during the interviews for the first Family Report. In paragraph 59, Ms Q records that the Father acknowledged that allegations of the kind referred to by the Mother had been made historically about the paternal grandfather, but that he believed that his father had not acted inappropriately. Most concerningly, the Father there reported to Ms Q, whose evidence I accept, that the paternal grandfather actually got into the shower with the Father’s sister, and not merely went into the bathroom while the Father’s sister was showering, as the Father asserted in his oral evidence before me.
Exhibits F1 and F2 are copies of affidavits by Ms U (the Father’s sister) dated 15 November 2009 and Ms V (the Father’s mother) dated 14 November 2009 respectively. The Father put forward these affidavits as evidence that neither the Father’s sister nor his mother had ever had discussions with Ms A regarding any alleged abuse of Ms U or the Father’s other sibling by the Father’s father. However, these affidavits are bare denials (consisting only of the relevant paragraph number and the word “Denied” in the case of the affidavit of Ms U) and neither woman was called as a witness in this matter and thus made available for cross-examination. I find that I cannot place significant weight on the “denials” by Ms U and Ms V given that it is unclear as to exactly what they are denying – whether it was the contents of their conversations with Ms A, the conversation itself or the visits said to precipitate the conversations. In those circumstances, I find that it was not unreasonable for the Mother to have concerns about her children coming into contact with the paternal grandfather.
This inconsistency gives rise to substantial concern as to the potential risk the paternal grandfather could pose to children. In that context, it was reasonable for the Mother to refuse the Father contact on that weekend (and I note the unchallenged evidence that due to the Father’s religion, he does not celebrate Easter as a special occasion).
However, despite being informed of the Mother’s refusal, the Father nonetheless appeared at the Mother’s home on the morning of 9 April 2009 (the Thursday prior to the Easter break). The Mother deposes in her affidavit filed 20 May 2009 that the Father then asked the children to get out of the car, and when M and B stayed in the back seat, attempted to physically remove them from the vehicle with the assistance of N, one of the Father’s sons to Ms A. The Mother then contacted her own father for assistance, and she deposes that the Father physically assaulted the maternal grandfather, Mr T, causing bruising across his face, while the Mother called the police. The Mother deposed that this ugly incident caused B to have nightmares and for J to check, for days afterwards, that all doors to the car were locked each time the Mother drove them anywhere. The Mother also deposes in that same affidavit that when, on the night of 9 April 2009, a friend knocked on the door of the Mother’s home, the children ran to the Mother, refusing to answer the door, “…in case it [was] daddy.”
The maternal grandfather, Mr T, also filed an affidavit in these proceedings on 8 July 2011.Mr T records the incident as occurring as follows:
35. I arrived at my daughters home about 90 seconds after the call and pulled up immediately behind [the Father’s] car. I got out of my car and noticed [B] on the back seat of [the Father’s] car being restrained by [N], [the Father’s] son from his previous marriage. [M] was in [the Mother’s] car and [the Mother] was standing outside her car and had a fearful look on her face and there was a lady unknown to me standing at the driver’s door of [the Father’s] car saying to [the Father] to “calm down and hand the kids back”.
36. I immediately went to the front passenger side of [the Father’s] car where [the Father] was situated. [The Father] was half in and half out of the car at this time. I called to [the Mother] to call the police and pushed [the Father] further into the car to restrain him and prevent him form hurting [the Mother] or taking the children until the police arrived. I did not punch or strike [the Father] at any stage. It was my intention to merely restrain [the Father] until the police arrived. [The Father] then started to force his knuckles into my left rib cage. He then put his arms around me and put me in a headlock. We then fell out of the car and onto the concrete driveway with me underneath and [the Father] on top of me with his arms under my back. I suffered bruising on my face, bottom and sore ribs. The police then arrived and spoke with my daughter and [the Father].
This is largely (if not exactly) consistent with the Mother’s recounting of events. The Father’s affidavit material for trial does not address this issue at all, however, there is some evidence in the Family Report of Ms Q dated 2 November 2009. The Father reported to Ms Q that he did go to the Mother’s house and, “…attempted to demand to have the children,”, that there was an, “…incident and the Police were called,” but that, “…it was essentially only heated words.” However, given the Father’s inconsistency in his evidence regarding the paternal grandfather, as well as other issues affecting his credit such as his failure to pay child support or to lodge any tax returns for a period in the vicinity of 20 years and in combination with the corroborating evidence of the maternal grandfather, I find that I prefer the Mother’s version of events.
This Easter 2009 incident therefore squarely falls within the meaning of family violence as that term is defined in the Act. While this does not evidence that the Father poses a risk of physical harm to the children per se, the fact that the Father would expose the children to that level of trauma just to introduce them to a grandfather who had potentially sexually abused the Father’s sisters is of concern.
I also note, as mentioned above, that there were a series of allegations regarding the Father’s physical abuse of his first son, W. Given the evidence traversed above, I find that the Father did in fact physically abuse W. This is a relevant factor in my decision; however I also note that, as recorded above, there is no evidence of the Father being similarly physically abusive to any of the children of his second marriage, those the subject of these proceedings.
The second key issue in relation to these considerations is the question of sexual abuse. I note that in this regard, an expert psychological assessment was conducted by Mr Y, psychologist, for the purpose of identifying the risk the Father posed to the three children the subject of these proceedings in terms of sexual abuse. I note at the outset that Mr Y concludes, at paragraph 10.37 of his report, that he could not determine whether or not the Father had sexually abused his daughters from his first marriage. Mr Y applied a number of analytical tools in his report, and concludes:
10.57 If the Court were to determine that [the Father] has previously sexually abused his daughters from his first marriage, then the sexual deviance factor in combination with all other factors noted above with respect to his psychosocial adjustment, would predict a moderate risk of reoffending.
10.58 In my view, if the Court were to take the view that previous sexual offending did not occur or if the Court felt that it could not be proved one way or another, then there would be insufficient information available to indicate that [the Father] would pose any more than a low risk of sexually harming a child.
It is thus fundamental to consider the likelihood or possibility of the Father having engaged in sexual abuse of S and K. In considering this issue, I of course take into account the conclusions of the High Court in M v M. As noted by the plurality in that case, there is no need for this Court to come to a definitive answer in relation to the historical or likely future occurrence of sexual abuse; its role is to consider what is in the best interests of the subject children and as part of that to determine whether unsupervised time poses an acceptable risk.
As the High Court raised in M v M, should the Court arrive at a definitive answer, its conclusions must be satisfied according to the civil standard of proof and with regard to the factors raised in Briginishaw v Briginshaw (supra). However, should the Court be unable to positively accept or refute the allegations of sexual abuse, its task is to determine the nature and magnitude of the risk to the child (that is, whether there is an unacceptable risk of harm) and weigh that against all the other relevant circumstances of the case in determining the Orders that are the best interests of the relevant children.
The evidence of S is key to any finding as to the existence and magnitude of any risk of harm the Father poses to the children. S, filed three affidavits in these proceedings on 16 October 2009, 8 July 2011 and 27 January 2012 respectively.
In the 16 October 2009 affidavit, S makes allegations that the Father sexually abused either or both of herself and her sister, K, in the following ways:
a)The Father took showers with S and K when S was about 5 years of age and K about 3 years of age;
b)When S was 4 or 5 years of age, she would wake up at night to find the Father with his hands in her pants or in the general vicinity of her vagina;
c)When the Father took the children from his first marriage to the movies, the Father tried to look under the toilet door at K and K kicked him in the face.
S further deposes in that affidavit that she and K withdrew their allegations against their Father as children because they had overheard their mother saying that the Father would go to gaol as a consequence of their allegations. S deposes that she and K were afraid of that happening as they wanted their family to reconcile, and so they retracted their earlier allegations for this reason.
Substantially the same allegations are repeated in the 8 July 2011 affidavit, and in both, S concludes, “I do not speculate whether or not he is harming my half-siblings in this way.” S, now a resident of New South Wales, flew to Brisbane to provide oral evidence in this matter and to be available for cross-examination. It was obviously traumatic to her to subject herself to the process involved, including cross-examination.
In her oral evidence, S stated that she still had flashbacks of the Father touching parts of her body that her mother had told her should not be touched, and that that made her feel uncomfortable. More particularly, she gave oral evidence that she woke up feeling, “…hot…” and, “…embarrassed…” and feeling the presence of a hand in her vaginal area. She gave evidence that she remembered three occasions when this happened, but believed that it had happened more times than that. S was unable to provide further detail as to the duration of each of the incidents or the time at which the Father had left her room.
She also referred to what became described in the proceedings as “the movie incident”, saying that she and K had gone to the toilet together and that when the Father tried to peer under the door, K kicked the Father. Importantly, S denied ever seeing the Father go into the toilet with K or touch K in a sexual manner.
As noted above, during the final submissions of the Independent Children’s Lawyer, I was notified by Counsel for the Independent Children’s Lawyer, Ms Sweetapple, that S had revealed that she had been threatened by W in relation to giving evidence at this trial and the trial was adjourned for further evidence to be obtained from S, K and Ms A.
S filed another affidavit in relation to these allegations on 27 January 2012. Specifically, S deposed that her brother, W, sexually abused her between the ages of 10 and 13, although they had since formed a more positive relationship. S further deposed that when W picked her up from the airport when she arrived in Brisbane, the following occurred:
…He (referring to [W]) said to me, “…you had one last chance to do the right thing…” and again I defended my position to him and said to him that I believed that I was doing the right thing. As I got out of the car, [W] yelled to me, “…you can tell that bitch that she has ruined our relationship too and I’ll be seeing her real soon.”
S further deposes that her evidence was affected in the following way by both this and the realisation that neither her mother nor K were prepared to voluntarily give evidence to support her allegations:
15. On 19 December 2011 when I gave evidence to the court I was still very fearful of how [W] would react because of his reactions and comments to me on 18 December 2011. The painful memories of my childhood and what had happened to me between aged (sic) 4 and 13 also played on my mind. I was aware of my agreement with [W] not to say anything how (sic) [W] had also sexually abused me when I was aged 10-13. I realised that I did not have the support of my mother and [K]. I felt that I could only limit my evidence to what had happened to me as no other persons wanted to say what had happened to us as children growing up.
…
18. Before, during and after giving evidence to the court I was very fearful of how [W] would react. I experienced an example of [W’s] anger (with phone calls and texts) during the course of the hearing when in Brisbane and the way that he had been manipulated by [the Father]. I knew this as [the Father] was saying different things to [W] about what [the Mother] had said in her evidence. For example about why I was motivated to say things about [the Father].
19. When giving evidence to the Court I limited what I had to say to the Court when I asked as I was not allowed to say what had happened to [K] or what [W] then subsequently did to me and [K] once [the Father] was no longer living with us.
…
22. It was not until the morning of 21 December 2011 that I spoke to [the Mother] about the threats that [W] made towards the Judge and her lawyer. …
I note that in “SRK1”, an annexure to S’s affidavit filed 27 January 2012 which lists her summary of the times and contents of phone calls between herself and W between 18 and 21 December 2011, S records the following in relation to a call from W to herself at 10.38 am:
[W] said that apparently it had been said that he threatened me. I said that, that I had never accused him of threatening me. I asked him where he had heard that. He said that [the Father] had called him and was very angry because [W] had apparently threatened me and that my mum and sister would be called to defend me. I again said that I would not have said that because he had not threatened me. He said that he had told [the Father] that he didn’t want him to call him anymore. I said lets (sic) just stop talking about all this s***. I asked him if he was able to come and see me. I told him I was at [Suburb X] and he said that’s way too far so I said don’t worry about it. I said that I wanted to come up to see him and just hang out without all this s***. He said that would be really good, then I said I was with some friends and that I would call him back later to chat (sic)
This appears plainly inconsistent with the contents of S’s affidavit, which clearly infer that she was afraid of W and of what he might do if she gave evidence against the Father in this matter. This inconsistency creates a problem of credit for S, particularly given that it was W’s alleged threats to her that delayed the conclusion of the trial by some three months.
As noted above, the later hearing dates were created to allow S to give further evidence and for K, Ms A and W to also provide evidence under subpoena. I note that W was unable to be located by the process server for the Independent Children’s Lawyer and did not, in the event, appear to give evidence before this Court.
However, S, K and Ms A all appeared and gave evidence before this Court in relation to the sexual abuse claims on 20 March 2012.
S’s evidence on 20 March 2012 was largely unchanged from that she had given before. S described the abuse as occurring at night, and involving the Father touching her inside her underwear in the vicinity of her vagina, and confirmed that she had never seen the Father abuse K, save for the movie incident to the extent that may be interpreted as abusive, which she described in similar terms to those she used in her December 2011 evidence. S also confirmed that she had never seen the Father sexually abuse W.
Mr Y, the expert psychologist in this matter, was present when S gave evidence during the December trial and commented that although he found that S was genuine in her evidence, he was unsure as to the accuracy of her memories, making reference as to the absence of any disclosures by M and the hesitancy of S in some of her responses in support of that conclusion. However, given the supporting evidence provided later by K and Ms A and the conclusions I have come to as to their evidence, I find that it is sufficiently likely or possible that S’s evidence accurately reflects the Father’s abuse of her during her childhood as to conclude there is a risk of abuse occurring.
K’s evidence appeared to corroborate that of S. K confirmed that the Father had never interfered with her, and that she remembered the Father taking her into the bathroom at the movies, but did not recall him ever digitally penetrating her. She also gave evidence that she remembered kicking the Father, but could not remember the reason why.
K gave further evidence that the Father was always in S’s bed “scratching her back” (this was said in verbal inverted commas, indicating K’s disbelief of the explanation) and that later on, S would tell her what the Father had done to S being consistent with S’s accounts as outlined above. K described the Father as a “…monster…” and described a series of incidents where the Father had physically abused either the Mother, W or S, including one situation where W was held under the shower for attempting to protect S from physical violence. Given that K had to be subpoenaed to provide evidence and clearly had no desire, in her words, to be, “…dragged in…” to this dispute, I accept her evidence as accurately reflecting her memories as best she could recall.
Ms A was also called via subpoena to give evidence. In relation to the alleged sexual abuse of S, Ms A gave evidence that the following occurred:
a)Ms A had found blood in S’s bed following a night where the Father had slept in S’s bed, but Ms A could not see any scratches on either the Father or S which could explain the blood;
b)The Father insisted on sleeping in S’s bed from when S was very young;
c)S commenced discussing age-inappropriate things at preschool;
d)The Father said he was scratching S’s back when his hand was in S’s underpants;
e)The Father admitted to “tickling” S’s ear with his tongue;
f)On one occasion, the Father snuck out of the marital bed and into S’s bed. When later questioned about it, the Father said he had heard S cry out from a nightmare, but Ms A was awake and heard no such cry from S;
g)Ms A saw the Father masturbating in S’s bed with one hand on S;
h)Ms A never recalled K telling her that the Father had sexually abused K;
i)K and S had told the Mother that the Father had looked under the toilet door at them when they were at the movies, after which Ms A took K and S to the Royal Children’s Hospital in Brisbane. The suggestion in later police reports that the children had been digitally penetrated by the Father emanated from a suggestion by the doctor at the hospital that K had been digitally raped, rather than a report by either girl;
j)Ms A asked her general practitioner, Dr Z, what she should do about her suspicions that the Father was abusing S, and Dr Z told Ms A that even if her suspicions were true, his examining S would be more traumatic than letting the whole issue go;
k)Ms A told S that she didn’t want the Father to go to gaol prior to S and K’s retraction of their allegations of abuse;
l)S had informed Ms A later that the retraction was a lie and that both W and the Father had sexually abused S.
I found Ms A to be a reliable and credible witness and I accept her evidence. Not only is it corroborated by the evidence of S and K (as well as reflecting the original evidence given by Ms A in her 1995 affidavit, which was Exhibit ICL2 in this matter), but it had to be extracted from Ms A under subpoena and was given in the context of a certain degree of hostility towards the Mother. Ms A was believably upset by having to revisit and recount these traumatic events, and I find that she gave a truthful recounting of her memories of the events transpiring throughout her relationship with the Father. This is particularly compelling evidence in light of the fact that several of the events referred to above involved Ms A seeing abuse of S first-hand, such as the masturbation incident. I note that Mr Y questioned the motivations of Ms A in failing to report in particular the masturbation incident until at least two years after its occurrence. However, I accept Ms A’s explanation that she was not sure what to do and had taken the advice of Dr Z not to investigate the matter further.
Overall on the evidence presented to which I have referred, I find that the likelihood or possibility that the Father did sexually abuse S during her childhood is sufficient to positively conclude as to a risk of abuse occurring. In that context, I refer back to the evidence of Mr Y, which I accept, which was to the effect that should such a finding be made, the Father would pose a moderate risk of re-offending with regards to the three children the subject of these proceedings. Mr Y went further under cross-examination by Counsel for the Mother, giving evidence that if the Father had abused S, then there was an unacceptable risk to the three subject children of the Father abusing them.
Mr Y gave further oral evidence that he believed that the risk would be lower once the children were in their “teens” and were more able to quickly report situations which made them uncomfortable. Relevant to that J has turned 14 years of age.
In light of Mr Y’s evidence and my other findings, I find that at this stage there would be an unacceptable risk of harm to M and B at present in spending unsupervised overnight time with the Father.
In relation to the final two additional considerations, I find that it is in the best interests of these children if there are final Orders made so as to end the dispute between these parties.
The considerations set out in ss 60CC(4) and (4A) have largely already been dealt with. The only matter is that the Mother alleged, and the Father accepted, in oral evidence that the Father is repeatedly late in collecting and dropping off the children from and to handovers with the Mother and that he often ignores the prescribed handover location and instead attends directly at the Mother’s house. The Mother also raised one incident where she drove the children to a contact centre to spend time with their father on Easter Sunday, only to be told minutes before the contact was due to start that the Father was in fact unavailable. This does not necessarily demonstrate a disinterest by the Father in the children, but rather shows the clear contrast between the laissez-faire parenting style of the Father with the stricter approach of the Mother, and I find that this factor holds little weight in my final decision as to the children’s best interests.
The remaining primary consideration is, of course, the right of each child to have a meaningful relationship with both of their parents. I find that the children appear to have a meaningful relationship with both parents at present and in fact have a positive relationship with their Father as they know nothing of the allegations against him. I find that such meaningful relationships will continue even if the Father is only permitted daytime contact with the children until each is of an age where, on the evidence of Mr Y, they are more able to protect themselves in any uncomfortable situation in which they found themselves. An important factor in my assessment of this issue is, of course, the fact that there is no evidence that the Father has physically or sexually abused any of the three subject children, nor that many of the violent characteristics of his first marriage were present in his second.
Presumptions
Given my findings regarding the Father’s involvement in the perpetration of family violence and abuse, the presumption expressed in s 61DA that it is in the best interests of children for their parents to have equal shared parental responsibility does not apply. However, I nonetheless intend to make an Order for equal shared parental responsibility. These parties appear to have been able, save for the issue of overnight time, to largely have been able to co-parent these children. In those circumstances, I find that an Order for equal shared parental responsibility is appropriate. That was an Order sought by the Mother herself, even in the event that the Court found that there was an unacceptable risk of sexual abuse of the children by the Father.
However, I find that given those findings to which I have referred, considering the matters identified in s65DAA, it would not be in the children’s best interests for the children to spend either equal time or substantial and significant time with each parent.
Resolution and Orders
Exhibit “ICL 6” comprises the Orders ultimately proposed by the Independent Children’s Lawyer at the conclusion of the trial in the context of the court finding an unacceptable risk.
Exhibit “M2” are the Orders proposed by the Mother in the event of an unacceptable risk finding.
In terms of time and subject to certain conditions the Orders proposed by the Independent Children’s Lawyer would see J spending weekend overnight time and holiday time with the Father. For M and B the proposed Order is that they spend three hours each fortnight with the Father in a supervised setting at a contact centre.
The Mother’s proposed Orders would see J spending weekend and holiday time with the Father and until M attains the age of 13 years M and B would continue as they have been spending unsupervised day time periods only but upon M turning 13 years of age both she and B would spend time with the Father similarly to that of J, that is, overnight weekend and holiday periods.
As earlier noted, on 5 November 2010 Barry J made interim Orders providing for the children to spend unsupervised time with the Father albeit limited to day time periods. Thus it had long been the case prior to the conclusion of the trial of these proceedings that unsupervised time had been occurring. There is not the slightest hint of evidence of anything untoward in that period and there can be little doubt on all the evidence that the Mother acts protectively and would be keenly attuned to any suggestion of anything concerning in the conduct of the Father over that lengthy period.
Moreover, at no time prior to the parties’ separation and over the years since the respective births of the children the subject of these proceedings has the Mother ever had cause for concern with respect to the Father’s conduct in this respect.
S was born in 1986. She places her own age at about five years of age when the untoward conduct she describes occurred. Thus such conduct occurred in or about 1991 now more than 20 years ago. The Father and his first wife Ms A separated, on her account, in April 1993. Thus it is the case that there is no evidence or allegations involving sexual abuse against the Father as having occurred within the last 20 years.
I am satisfied that the Mother acts protectively of her children. I have no doubt that if she has not already so done she is capable of educating her children as to appropriate boundaries in terms of physical contact between them and any adult including the Father, and that she is capable of ensuring that they receive such education if that has not already occurred. I am likewise satisfied that the Mother would remain vigilant with respect to the children and that her proposed Orders are framed in the context of these considerations.
Obviously, in the best interests of these children Orders must be framed which safeguard them against any risk but for all the reasons already identified the children clearly have a meaningful relationship with the Father and it is in their interests that such relationship be maximised to the extent that balances any tension between these competing considerations.
On balance I am satisfied that to now impose supervised time on the two younger children with all the constraints and restraints that flow from that is not justified by reference to the magnitude of risk in the circumstances, given the existing safeguards against that risk referred to.
Whilst it is the fact that when M turns 13 years of age in the year 2017 B will then be about to turn 11 years of age (and will not yet be a teenager) that is obviously some considerable time into the future (over which period the Father will remain under the Mother’s scrutiny) and it is the fact that the historical allegations relate to primarily S and to a lesser extent K, both females.
Balancing the competing considerations I am satisfied that the best interests of the children are served by the Mother’s proposed Orders and that the relevant risk is not unacceptable in the context of the matters identified. Obviously, if prior to April 2017 when M will turn 13 years of age the Mother has any cause for concern (not currently apparent on her currently proposed Orders) the matter can be revisited by further application to the Court.
I therefore make Orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 4 February 2013.
Associate:
Date: 4 February 2013
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Standing
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Duty of Care
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Negligence
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