Kingston and Donald

[2016] FamCA 609

FAMILY COURT OF AUSTRALIA

KINGSTON & DONALD [2016] FamCA 609

FAMILY LAW – CHILDREN – With whom a child spends time – With whom a child communicates – Allegations of sexual abuse – Order that father not spend any time with the youngest child – Order that mother have sole parental responsibility for the eldest child – Injunctive Orders – Matter listed for trial on a fixed date

Family Law Act 1975 (Cth)

APPLICANT: Mr Kingston

RESPONDENT: Ms Donald

FILE NUMBER: CAC 1070 of 2013

DATE DELIVERED: 27 May 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Benjamin J

HEARING DATE: 27 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Evans

SOLICITOR FOR THE APPLICANT: Evans Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Simpson

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Dobinson Davey Clifford Simpson

Mr Haddock

Legal Aid Commission Australian Capital Territory

Orders

1. Order 3 of the Orders made 20 May 2014 be suspended and Mr Kingston (‘the father’) spend no time and have no communication with B born ... 2003 (‘B’).

2. Order 1 of the orders made 20 May 2014 be varied and Ms Donald (‘the mother’) have sole parental responsibility for C born … 2000 (‘C’).

3. Order 12 of orders made 20 May 2014 be discharged and the father be and is restrained from attending any school attended by C and from participating in any activities arranged by the school to which parents may be invited (including parent teacher interviews and meetings about C’s individual learning plan).

4. Order 1(b) of orders made 24 September 2015 be discharged.

5. 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.

6. This matter be removed from the docket of Benjamin J and placed into the docket of Watts J.

IT IS NOTED

1. These proceedings are listed for final hearing commencing Monday 16 January 2017 at Canberra for five days.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Kingston & Donald 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 CANBERRA

FILE NUMBER: CAC 1070 of 2013

Mr Kingston

Applicant

And

Ms Donald

Respondent

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Mr Kingston (‘the father’) and Ms Donald (‘the mother’) in relation to parenting arrangements for their children, C and B.  This is an interim application which was, in essence, brought back before me on my request in April 2016.

2. The interim parenting proceedings involve the question of whether B should spend time with her father on an unsupervised basis in accordance with an order made in the Federal Circuit Court on 20 May 2014 as sought by the father, or whether the child should spend no time and have no communication with the father as sought by the mother, or the intermediate position of the Independent Children’s Lawyer which involves a reduction of time but unsupervised time and accords with his minute of order which I will mark as Exhibit ICL1.

3. The genesis of the application arose after the child, C, made allegations of sexual impropriety and physical impropriety by her father in June of last year.

4. From at least May 2014 until June or July 2015 the B had been spending significant and substantial time with the father.

5. There was a relatively short break in 2015 after the disclosure, but the proceedings came back before her Honour Judge Hughes of the Federal Circuit Court, and her Honour determined on 24 September 2015 that B, spend time with the father in accordance with the order of 20 May and made some other orders.

THE ISSUES

1. There is an issue as to parental responsibility with regard to B between now and the final hearing.  There is an issue in relation to order 1(b) made by her Honour on 24 September 2015, in particular with regard to the mother discussing with the children the issues arising out of the complaint made by C.  Finally, there was an issue in relation to whether the father should attend school or have access to the school records.  That matter was resolved during the course of the morning.

THE BACKGROUND

1. The father was born in 1972 and is aged 44.  The mother was born in 1973 and is aged 43.  The parties commenced cohabitation in about 1999.  They married later that year and there are two children of that relationship:  C, who was born in 2000; and B, who was born in 2003.  The mother has a child from an earlier relationship, D, who is aged 22 or 23.  The parties separated in about October 2012.  They were divorced in 2014.  A final order was made on 20 May 2014.

2. These proceedings were commenced by the father initially who filed an application on 17 July 2015.  The mother responded on 4 September 2015 and filed a notification of risk.

THE EVIDENCE

1. In terms of the material before me today, for the mother I had her affidavit filed 23 July 2015.  I had her response filed 4 September 2015, her notice of risk of the same date, and her affidavit filed the same date but sworn on 3 September 2015.  This material was before the learned Federal Circuit Court judge at the time of the first interim hearing.  I also have the mother’s affidavit of 20 April 2016.

2. In terms of the father, I have his application initiating proceedings filed 17 July 2015, his affidavit of 17 July 2015, and his affidavit of 23 September 2015.  Those two affidavits were, I presume, before the learned Federal Circuit Court judge.  I also have his affidavit filed 20 May 2016.

3. Each of the parties provided a bundle of documents which were admitted into evidence and each of them referred to material contained within those bundles of documents.

4. In terms of expert evidence I had a report of Dr E, dated 5 February 2016.  In relation to that report I make the following observations: it is not clear when the interviews took place, however presumably they took place after the material was referred to her in about November 2015 and the date of the report.  I also note that this report has not been tested by way of cross‑examination and that the father has made comments in relation to the veracity of some parts of the report in his most recent affidavit.

5. The second report which I had available to me was that of Dr F which was dated 12 September 2014.  That report was prepared by her after the orders were made on 20 May 2014.  Those orders provided in order 5 that the mother will arrange for the child, C, to see Dr F for the purpose of therapeutic counselling.  That is set out in orders 5(b) and 6.  This in circumstances where C had been estranged from the father since around the time of separation.

6. Dr F interviewed the child C in the first appointment where the child stated she did not want to see Dr F again.  Dr F saw the child the second time, and in the context of that meeting the child made it clear that she did not want any further involvement with Dr F.  I am satisfied on that report that, from what Dr F says, no deep therapeutic relationship was developed.

7. The third report was a psychiatric family report which was prepared by Dr G and dated 8 January 2014.  This report involved an assessment of the parties and the children for the purpose of the first hearing in the Federal Circuit Court.

8. Also tendered in evidence were the summonses in terms of the criminal proceedings which have been commenced against the father following the disclosures made by C.  The father has been charged or summonsed in relation to four offences:- 

   ·The first offence Case No: … asserts that the father assaulted C and thereby occasioned to her actual bodily harm. 

   ·The second offence Case No: …, asserts that the father, between January 2009 and December 2009 committed an act of indecency in the presence C, that C at that time being a person under the age of 10 years.

   ·Thirdly, Case No: …, that the father indecently, in the presence of C, committed an act of indecency between … January 2009 and … December 2009, in the presence of C at the time being under the age of 10 years.

   ·Fourthly, Case No … that on … October 2011 the father assaulted C. 

9. These are serious charges, three of which are to be heard by way of trial in the Supreme Court of the Australian Capital Territory and one of which is to be heard in the Magistrates Court.  The father has in all of the material denied any such behaviour on his part. 

10. The record of evidence of an interview between the police and the child was tendered and is Exhibit M2.  In that the child makes the complaints upon which the charges are based.  In June of last year the child was aged almost 15 and is now approaching her sixteenth birthday this year.

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent

   consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out 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 if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (2)The primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)       the nature of the relationship of the child with:

   (i)       each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii)       to spend time with the child; and

   (iii)     to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)       either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)       the capacity of:

   (i)       each of the child's parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)      if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)any family violence involving the child or a member of the child's family;

   (k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:

   (i)       the nature of the order;

   (ii)      the circumstances in which the order was made;

   (iii)     any evidence admitted in proceedings for the order;

   (iv) any findings made by the court in, or in proceedings for, the order;

   (v)       any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)      any other fact or circumstance that the court thinks is relevant.

7. The substance of the time argument is that which relates to risk to the child B.  B was born in 2003 and is aged just over twelve and a half.  There is no evidence before the Court that she has been sexually abused by the father.  Counsel for the mother effectively outlined the risks I need to consider. 

8. The first is whether B is at unacceptable risk of sexual abuse in the supervised or unsupervised care of the father.  Secondly, whether the child is at an unacceptable risk of physical abuse in the care, whether supervised or unsupervised, of the father.  Thirdly, whether the child is at risk of psychological abuse if left in the supervised or unsupervised care of the father.  Finally, whether the child is at risk of neglect or harm in being excluded from or not being able to communicate or spend time with the father, given the nature of the relationship between the child and the father, and whether that relationship is likely to be irreversibly or irretrievably harmed.

9. I make it clear at the start that I am not making findings of fact. It is impossible for me to do so. All I can deal with is on the evidence as it appears before me. I am very conscious of the provisions of section 60CC(2)(a), (2)(b) and (2A) of the Act.

10. What then are the circumstances or the facts that have changed or what are the matters that have changed since the matter came before the Federal Circuit Court in September 2015.  Two substantial factors have intervened: firstly, the report of Dr E has been issued, and, whilst untested, it is the evidence of a single expert and needs to be considered in light of this determination; secondly, that the father has been charged with the matters set out in these reasons and they have been, at least in relation to three of them, committed for trial in the Supreme Court of the Australian Capital Territory.  I am told and I accept that committal in the Australian Capital Territory is not an arduous process; it is more of a administrative process.

1. My task is to weigh the risks.  It is a prospective risk assessment task.  I need to look at the facts, consider what the risk is and what the consequence of the risk is and the likelihood of that occurring

2. In terms of sexual abuse I have the material asserted by C and the father’s absolute denial of it.  That material has been sufficient to persuade investigative bodies to take the matter to the Supreme Court for a trial.  That does not mean that the father is either guilty or innocent, but means that there must be some weight in the material and that it is not to be ignored.  The second factor of course is that whilst there is an allegation that C was sexually abused there is no allegation that B has ever been sexually abused by the father.

3. The psychometric evidence of Dr E is that the father is of low risk of abuse.  However, of course if C is correct, then Dr E raises in her report concerns about the father’s attitude to his children and his attitude to that kind of behaviour.  I am alert to the age of the child and I have heard the submission made by Ms Evans for the father as to the likelihood of the child complaining, although it is significant that C did not complain for some time, if she is correct, and expressed to someone her concerns that her mother had in fact permitted that behaviour, that it was acceptable behaviour.

4. The second risk of which I need to consider is that of psychological harm.  It is the father’s case that B spending time with him would provide a sea of tranquillity in what is going on in the mother’s household.  The evidence of Dr E is that the child does not like going, becomes highly distressed, and does not like to be away from her mother or sister.  The evidence of the earlier psychologist and psychiatrist is that the transfer was relatively easy and the child was happy to go.

5. B herself is said to have described a somewhat ambivalent relationship with her father and I note what was said in paragraph 229 of Dr E’s report.  Dr E describes the child at page 68 as being an anxious and fragile child.  Dr E also says that the child knows her own mind and her views should be given some weight. 

6. The mother, in her affidavit of 20 April, describes the child as reluctant and distressed.  I note the mother’s evidence in paragraph 15(a) to (d) of her affidavit and her non-responsive behaviour, and the child’s fear that the father will hurt the mother, and note the mother’s reassurance that she says she made to the child at that time.  I have also noted the concerns raised by the mother in paragraph 15(e) to (h) of her affidavit.  The mother raises in her submissions, and I have had regard to, the talk that goes on between B and the father, and the father raises the talk between B, her sister and now I think presumably her sisters.

7. The mother takes me to paragraph 18 of her affidavit and some indication that the father has been engaging with the child in terms of discussions.  The mother assets that the father observes the pressures on the mother’s home, but notes no pressure on his home.  I have taken judicial notice that the next six to 12 months are going to impose enormous hardships on the homes of both parties and particularly on the children as they live through that time, irrespective of the outcome.

8. Dr E observes of B the following:-

   191.According to [B’s] response to the APS, she considers herself to have  severe clinically significant problem with sleep, as well as with (sic) a raft of ongoing anxiety symptomatology, including that pertaining to episodes of panic, ruminative thinking, generalised fears, social concerns and worries about being separated from her primary caregiver.  [B] also endorsed severe problems with disturbance in her identity and sense of Self.

   192.In addition to the above areas of concern, [B] has identified moderate concerns with melancholic mood, attention and concentration, physical health, restlessness, obsessiveness and interpersonal problems.  There were moderately severe scores on a number of scales relating to personality as well, which suggests that [B’s] difficulties are affecting her sense of Self and ability to establish a functional and stable identity, which is one of the primary tasks of adolescence. 

9. This his arose in circumstances where the child was regularly seeing the father and I note also that Dr E observed at page 65:-

   … Elevated levels of anxiety may be a function of exposure to abuse although there are other reasons why a child may have anxiety and in this case, heritability may play a role, as might ongoing health concerns and bullying at school.  Perhaps even more important, the ongoing acrimony between [B’s] parents, her mother and sister’s level of distress and ongoing disagreement about the time she spends with [the father] could reasonably be expected to contribute to her experience of anxiety. 

10. This is a child who is struggling and who was struggling; of that there is not doubt.

11. There is no evidence of any physical assaults by the father on B although there is some evidence of B being exposed to abuse of her mother and her sister, although I again note the father has denied that has occurred.

12. There is material provided by the Child Protection Service in the Australian Capital Territory.  I have read carefully the father’s complaints about that organisation.  He says they have victimised him and that their views are not to be relied upon.  That has to be tested and will be tested, no doubt, in more than one court over the next 12 months.  I do not know, of course, what the outcome of that will be.

13. I have noted the material raised by the mother’s counsel, in particular the produced documents.  The substance of the report of the abuse was disclosed by C at high school to a teacher.  That is set out on page 13 of the mother’s bundle of documents.  There was evidence of C at least expressing suicidal ideation and her complaints about the abuse.  C wrote a letter, apparently in 2014.  I do not know what to make of that letter, but she expresses herself forcefully in light of her concerns about the circumstances in which she finds herself.  No doubt it will be the unfortunate duty of some judge or some jury to make head or tail or that, but it is part of the material to which I have had regard and I should have regard.

14. Ms Evans, on behalf of the father, went through the reports of Dr G[1] and exposed the nature of the relationship as that doctor observed at that time.  She said there were serious issues as to whether the mother was failing to encourage the relationship between C and the father and quoted in particular paragraphs 366 and 367 of that report.  In fairness, Dr E’s report observed in paragraph 232 that she saw no evidence of that behaviour of alienation.

    [1] Exhibit F1 – Single Expert Report dated 8 January 2014.

15. I accept the submission made on behalf of the father that there is a real risk of the loss of the relationship between B and her father if time is completely excluded.  I have gone through those parts of Dr E’s report to which I was taken by Ms Evans.

16. The Independent Children’s Lawyer, as is his role, tried to straddle the middle ground.  He said that B is at an age where she could self‑protect, and of course his clear instructions that B wants to see her father.

17. I have considered the views of B as expressed by the Independent Children’s Lawyer, Dr E and each of the parents.  I accept that she is a child of 12 who thinks for herself and is able to express her views forcefully, although, by her nature, she is a child who, as I understand it, has a tendency to go along with things rather than force her way.  Her primary carer is her mother and it would appear on the material before me she has a close relationship with both of her sisters.  But for the allegations she has a close relationship with her father.

18. Each of the parents, in their own way, has endeavoured to provide and be involved in the care of this child, although each of them has had a different perspective. They have different perspectives in terms of her health needs, different perspectives in terms of their respective involvements in the child’s life. There is no practical difficulty in relation to B spending time with the father. There is no issue as to the capacity of each of the parents. There is no issue as to the maturity, sex, lifestyle and there are no issues in relation to section 60CC(3)(h) and (j) of the Act.

19. There is an issue in this case of family violence.  Each parent has made historical allegations against the other in relation to asserted family violence.  The mother has asserted that the father engaged in controlling behaviour. 

20. There are no family violence orders or bail conditions. It is in essence an assessment of risk, particularly having regard to section 60CC(2A) of the Act.

21. I have considered the risk and I am satisfied on all of the evidence that the child is, on the material I have, at an unacceptable risk of abuse in the unsupervised or supervised care of the father, given the material to which I have referred to earlier. 

22. In coming to this decision I had regard to the exchanges between bench and bar table during the course of the argument as part of my reasoning.  I considered unsupervised time and have determined that it is not in the best interests of B.  I then considered supervised time as recommended, in part, by the Independent Children’s Lawyer, but determined, given all of the circumstances, that there ought to be no time.

23. Accordingly, I will be making an order that the child B not spend time with the father or communicate with the father between now and the final hearing of this matter.

24. Given that determination, and that C is going to be a witness in the final hearing, I will make an order for sole parental responsibility in favour of the mother, but will require the mother to inform the father and the Independent Children’s Lawyer of any major decisions she wishes to make in advance so that the matter can be brought to the Court if it is of such moment. 

25. I was also asked to consider order 1(b).and given the circumstances I intend to make that order as well.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 27 May 2016.

Associate:     

Date:              27 May 2016