Kirkwood and Dennis

[2016] FCCA 2361

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRKWOOD & DENNIS [2016] FCCA 2361

Catchwords:
FAMILY LAW – Interim arrangements for parenting of children aged 14 & 7 – high conflict between parties – recovery order sought – mother alleges father has unilaterally retained children following regular weekend time – father alleges he has withheld the children as a consequence of the mother exposing the children to neglect and sexual behaviour – nature of interim hearing – assessment of risk – relevance of reports of concerns to child welfare authorities, police and a medical practitioner – major long term issues – father seeks to enrol children at new school – best interests.

Legislation:

Family Law Act 1975, ss.4(1), 4AB(1), 4AB(2), 60CC, 61DA

Evidence Act 2009, ss.140(1), 140(2)

Cases cited:
Keats & Keats [2016] FamCAFC 156
SS v AH [1][2010] FamCAFC 13
Goode & Goode (2006) FLC 93-286
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
M & M (1988) FLC 91-979
N & S and the Separate Representative (1996) FLC 92-655
W & W [Abuse allegations: unacceptable risk] [2005] Fam CA 892

Applicant: MS KIRKWOOD

Respondent: MR DENNIS

File Number: ADC 3303 of 2016

Judgment of: Judge Brown

Hearing date: 6 September 2016

Date of Last Submission: 6 September 2016

Delivered at: Adelaide

Delivered on: 8 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Brown

Solicitors for the Applicant: Legal Services Commission of South Australia

Counsel for the Respondent: Ms Gough

Solicitors for the Respondent: Adelaide Family Law

ORDERS

UNTIL FURTHER OR OTHER ORDER

1. The father deliver the children X born (omitted) 2002 and Y born (omitted) 2009 to the mother at her residence this Friday, 9 September 2016 prior to commencement of his work.

2. The children live with the mother.

3. The father spend time with the children each alternate weekend commencing Friday, 16 September 2016 from 5:00pm until 5:00pm the following Sunday with the children to be collected and returned to the mother’s residence.

4. Pursuant to section 11F of the Family Law Act the parties and the children attend a child inclusive family dispute resolution conference at the Family Court of Australia with a family consultant on Friday, 16 September 2016 at 10:00am, to discuss the care, welfare and development of the children X and Y in an endeavour to resolve any differences between the parties in relation thereto.  The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

5. The mother be restrained and an injunction issue restraining her from permitting her boyfriend from being present whilst the children are in her care.

6. The parties are restrained and an injunction issue restraining them from denigrating the other in the presence or hearing of the said children or permit any other person to denigrate the other party in the presence or hearing of the said children.

7. Pursuant to section 69ZW of the Family Law Act, Families SA are ordered to provide to the court on or before 20 October 2016 the following documents:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the agency in the course of investigating a notification.

8. Pursuant to section 69ZW of the Family Law Act, the South Australian Police are ordered to provide to the court on or before 20 October 2016 the following documents:

   (a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

   (b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

   (c)any reports commissioned by the agency in the course of investigating a notification.

9. Further consideration of the matter is adjourned to 21 October 2016 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Kirkwood & Dennis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3303 of 2016

MS KIRKWOOD

Applicant

And

MR DENNIS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties to these proceedings, Ms Kirkwood “the mother” and Mr Dennis “the father” are the parents of X born (omitted) 2002 and Y born (omitted) 2009.  The mother commenced the proceedings on 1 September 2016.  At her request, they were listed urgently, on 6 September 2016, in a busy duty list. 

2. The mother seeks a recovery order in respect of both children.  A recovery order is, in effect, a direction to police officers to locate and remove children from a nominated person, more often than not a parent.  It is analogous to an arrest warrant.  Necessarily it has the potential to be traumatic for the children concerned and accordingly is a remedy of last resort.

3. The mother’s case is that the parties were in a de facto relationship for approximately 24 years from 1991 onwards.  The parties separated in early 2015.  Besides X and Y, they are the parents of two other adult children – Ms A, who is now 21 and Mr N, who is 19.  Mr N lives with Ms Kirkwood and, until recently, his two younger sisters. 

4. The mother lives in (omitted), in suburban Adelaide.  Following the parties’ separation, the father moved to live in (omitted).  However, he commutes week days to Adelaide where he is employed as a (occupation omitted) in (omitted). 

5. It is the mother’s case that following separation, an agreement was reached that the children would spend one weekend in every five with their father, being collected on Friday afternoon and being returned to their mother’s home in (omitted), on Sunday afternoon.  In the recent mid-year school holiday, it was agreed that Mr Dennis would spend time with the children for a period of a week. 

6. In her affidavit, file in support of her application for the recovery order, Ms Kirkwood deposes that the father as usual collected X and Y following the conclusion of his work on Friday, 19 August 2016.  It was the mother’s understanding that the children would be returned to her in accordance with the parties’ informal agreement the following Sunday afternoon. 

7. It is her case that she was informed by her son Mr N who apparently received a telephone call from the father, that Mr Dennis had decided not to return the children to the mother and that henceforth they would be living with him (Mr Dennis).  

8. Ms Kirkwood wasted little time in applying for legal aid and instituting these proceedings.  It is the submission of her solicitor, Ms Brown, that the court should not condone unilateral action by a parent other than in situations of extreme emergency or danger to the children concerned.  Necessarily, Ms Kirkwood asserts that there are no conditions of risk or danger to either child.

9. It is against this background that the mother seeks that the children be returned forthwith to her care and that failing this, the recovery order sought by her issue.  It is her case that both children are well settled in her care and, as such, it is axiomatic that their interests will be best served if they are returned to the long standing arrangements with which both are familiar. 

10. The father does not agree.  It is his case that the mother’s care of the children is significantly substandard and she has neglected both of them over at least the last six months or so.  Significantly, he alleges that Ms Kirkwood has a new boyfriend who is a bad influence on both her and the children, causing X to fall out with her mother.  As such, he submits that it would potentially cause X psychological harm to be compelled, against her will, to return to her mother’s care.

11. The mother concedes that she has recently commenced a relationship with another person.  She conjectures that the father is resentful of this development in her life.  She alleges that he was controlling of her prior to the parties separation.  Accordingly, she asserts that the father’s actions are more likely to be motivated by his post-relationship politics with her rather than by issues relating to the best interests of X and Y. 

12. Underpinning the mother’s case is her assertion that she has always been X and Y’s primary carer, particularly since the parties separated, now well in excess of 18 months ago.  In addition, it is her case that the children share a close emotional bond with Mr N.  In these circumstances, the mother contends that it is axiomatic that the children’s best interests will be served if they are returned to her care. 

13. The mother concedes that X is a vulnerable child.  She has been attending (omitted) High School, where she is in Year 8.  Ms Kirkwood concedes that X has recently been suffering anxiety and depression and has been assessed by (omitted) Children's Services.  This assessment has concluded that X has significant learning difficulties.  Recently, Ms Kirkwood arranged for X to be referred to Headspace via a mental health care plan.  As a consequence of this, X is receiving counselling from a therapist. 

14. Y is currently in Year 1 at (omitted) Primary School.  It is Ms Kirkwood’s evidence that she is progressing well at the school and has many friends there.  Both X and Y engage in basketball at a recreation centre near to their mother’s home. 

15. Currently, Ms Kirkwood is employed as a (occupation omitted) with (employer omitted).  X and Y attend (omitted) High School (omitted) or are looked after by Mr N until Ms Kirkwood completes her employment responsibilities at around 5:00pm.  Ms Kirkwood denies that she abuses illicit drugs or drinks alcohol.  It is her case that she is in good health and her home is a comfortable and suitable one for the children. 

16. Since the children went into the care of their father, it is Ms Kirkwood’s evidence that she has not been allowed to have any contact with X and Y whatsoever.  Initially, at second-hand from Mr N, she believed that Mr Dennis was alleging that her new boyfriend had abused one of the children concerned.  However, it is Ms Kirkwood’s evidence that she has not been contacted by either Police or Families SA, the government authority responsible for the statutory protection of children in this state. 

17. As such, she doubts that either agency is currently involved in investigating any of the father’s allegations or is likely to do so in the foreseeable future.  In these circumstances, she submits that it is necessary for this court to take action to secure the best interests of X and Y and return them to her care. 

18. Ms Kirkwood submits that it is either disingenuous or ignorant for Mr Dennis (and those advising him) to contend that he is justified in retaining the children merely because these agencies have ostensibly advised him not to when they are not likely to take any active steps to investigate his allegations and there is little concrete or objective evidence exists to support them.

19. The mother expresses her concern that the father is not a child focussed parent and she is worried that he may not be providing a satisfactory standard of care for the children.  In the past, she alleges that Mr Dennis regularly drank alcohol to excess and used illicit drugs including cocaine and amphetamines. 

20. The father apparently consulted his solicitor on 30 August 2016 and instructed her to prepare an application to the court based on his concerns.  This putative application was overtaken by events, in the form of the mother’s recovery proceedings, which were served on him on 2 September 2016. 

21. In these circumstances, the father and his solicitor have been only able to prepare an affidavit and a notice of risk.  These documents were handed up to the court on the morning of 6 September 2016, with the direction that they contained serious welfare concerns in respect of the children and with the rider that they had been hurriedly prepared.  Through their respective counsel, the court was advised that there could be no compromise reached between the parties and any deferral of the required interim hearing was mutually opposed.

22. Accordingly, the proceedings come before the court against a background of extreme urgency.  It is also apparent that the parties themselves thoroughly mistrust one another and communicate with difficulty, if at all.  As such, there has been little focus on investigating appropriate mechanisms to get to the bottom of the factors which are currently impacting upon the children or explore appropriate means to examine what their views, if any, are and what is affecting those views. 

23. Sadly, these proceedings represent all the worst aspects of reactive and volatile adversarial proceedings involving children, where the main emphasis has been on the parties’ criticising each other and justifying their respective conduct.  As I said during the course of the hearing, an atmosphere of recrimination and an insistence that extreme actions be taken, on the part of both parents concerned, does not provide a conducive atmosphere for proper and considered decisions to be made in respect of children who are invariable highly vulnerable.

24. On the mother’s own case, X is a vulnerable child likely to have as yet not fully assessed special needs.  I am gravely concerned that this truncated hearing which has been hastily brought on, in response to the father’s unilateral action, does not provide the best mechanism in  which to make a carefully considered decision in respect of the children concerned, particularly X.

25. At this stage, Mr Dennis has not been in a position to file a formal response to the mother’s application.  However, his solicitor, Ms Gough has indicated that the father is open to the children having substantial time, with their mother, on weekends, provided the time occurs in the absence of the mother’s new boyfriend.  How this stance fits in with his over-arching view that Ms Kirkwood has neglected the children and is a significantly impaired parent is not altogether clear to me.

26. The obvious corollary of this proposal is that X and Y would continue to live, with their father, in (omitted).  It is approximately 85 kilometres between (omitted) and (omitted), albeit much of the journey takes place on the (omitted) freeway.  The father proposes that the parties should share the driving which is likely to take in excess of one hour. 

27. It is implicit in the father’s proposal that both children would have to change school.  In this regard, the father proposes the (omitted) School.  Needless to say the mother has not been consulted about this change of schooling which, in my view, must have significant implications for the children and their well-being, particularly their sense of stability and belonging.

28. The father alleges that both X and Y have been subjected to abuse and neglect.  As indicated above, it is his case that these allegations have been reported to the police; a child welfare authority; and a medical practitioner.  It is clearly Mr Dennis’ case that the gravity of the allegations made by him and the fact that they have been reported to appropriate authorities justifies his unilateral retention of the children.

29. In his notice of risk, Mr Dennis summarises the allegations of neglect and abuse as follows:

    ·The mother and her partner have verbally and emotionally abused both children;

    ·The mother and her partner have caused Y to witness sexual activity;

    ·The mother has physically assaulted X by whipping her on the legs.

30. Mr Dennis deposes that he has noticed a marked deterioration in the appearance of the children over the past six months or so.  Y’s hair is alleged to have become unkempt and infested with head lice.  In addition, Mr Dennis alleges that X has complained that she is bullied by both her mother and her boyfriend which has precipitated the child suffering anxiety and panic attacks. 

31. Mr Dennis also alleges that X has complained to him via text messages that she has been whipped with a cat strap or cat toy in August of 2015, which caused the child to sustain a big red mark on her leg.  A photograph has been provided of the alleged injury apparently sent as an attachment to a text message from X to the father.

32. In respect of both the allegations of physical neglect of the children and the issue of the injury arising to X, the father is not in a position to present any independent assessment of these matters.  It would appear to be the case that the whipping incident was not reported to Police and the child concerned was not medically examined.  As yet, Ms Kirkwood has not put her version of events in respect of the matter which occurred almost 12 months ago now.

33. The father further alleges that both children have disclosed to him that they have witnessed the mother and her boyfriend engaging in sexual activities in the lounge room whilst they watched television.  The father is not able to ascertain the veracity of this allegation from his own observations. 

34. In the context of extremely strained relations between the parties and an absence of effective communication between them, I am concerned that the children may not be the most reliable informants of these matters.  In short, they may have an axe to grind and Mr Dennis himself because of his antipathy for Ms Kirkwood, may not be inclined to reality check the allegations with her directly.  Rather, he may follow the natural human inclination to think the worst of someone for whom he does not have high regard.

35. Mr Dennis has also alleged that the children have reported that their mother’s boyfriend has access to firearms and has threatened to kill him and shoot the children’s pets at their mother’s home.  These allegations are said to be supported by text messages which the father has intercepted between the mother and the parties’ oldest adult child Ms A, who currently lives in Western Australia with her partner.  I have read the text concerned and frankly confess that I do not understand them and find them largely incoherent.  

36. It is Mr Dennis’ contention that relations between X and her mother have now broken down largely as a consequence of the mother’s angry and reactive behaviour and her inappropriate interactions with her boyfriend.  The father asserts that X has suffered panic attacks as a result of being yelled and screamed at by her mother.  The father further asserts that the children have complained that they are constantly left unattended at their mother’s household.

37. In his affidavit material, Mr Dennis has deposed that he has reported his concerns to the child abuse hotline and been advised by an unspecified staff member at Families SA not to return the children to their mother’s care.  Mr Dennis has also reported his concerns to SAPOL. 

38. It is the contention of Mr Dennis’ solicitor that given this advice by Families SA, he was justified in retaining the children.  However, in my view, Ms Gough is likely to have been aware that this was generic advice and was not necessarily indicative of any investigatory role or further action on the part of the authorities concerned. 

39. In his affidavit, Mr Dennis has indicated his assumption that Families SA and/or the Police would be in contact with Ms Kirkwood.  If this was legal advice given to Mr Dennis, in my view, it was either disingenuous or incompetent advice.  In any event, Ms Kirkwood’s evidence is that she has not been contacted by anyone from either department.  She herself has apparently inaugurated a welfare check by police of Mr Dennis’ home.

40. Finally, Mr Dennis has deposed that he has arranged for Y to attend upon his general medical practitioner in (omitted).  As a consequence a mental health treatment plan has been inaugurated for Y.  Mr Dennis alleges that Y also made disclosures to the doctor concerned which caused him (the doctor) to make a mandatory notification to Families SA.  However, I have not been provided with any details of these disclosures and what direct observations, if any, the doctor concerned noted.  I have not got a medical report from the doctor.

1. The father denies that he has any issues to do with drug abuse or excessive alcohol consumption.  It is his case that the mother is an incompetent housekeeper and the accommodation which she has provided for the children has been dirty. 

2. In short, both parties are extremely critical of the other’s parenting capacity and assert that he or she is properly motivated in the stance adopted in these proceedings by concerns relating to the poor parenting and conduct of the other.  The mother asserting that the father’s resort to self-help demonstrates that he is a controlling and bullying person; the father asserting that with the imprimatur of those in authority, he has been compelled to extreme actions because of the mother’s abusive and neglectful parenting. 

3. These issues have to be determined at extremely short notice in the absence of any recent independent evidence whatsoever.  However, whatever is the outcome of the case it has the potential to have extremely serious implications for the emotional well-being of the children concerned.  At this stage, I am deeply concerned at that prospect.

The legal principles applicable

1. At the interim stage, the hearing before the court must inevitably be brief and rely on untested, incomplete and controversial evidence.  As is clear from my summary of the parties’ evidence, they disagree on most salient aspects of the evidence.  In addition, there is currently a significant dearth of independent and objective evidence in respect of both X and Y, as to how they are currently travelling emotionally and what are their wishes, if any, in respect of the outcome of the case. 

2. Family reports are routinely ordered in cases concerning children, particularly where there is a high degree of conflict between the parents concerned.  Such family reports involve formal interviews with the children concerned and invariably an observation of how they interact with their parents and others who are significant to them.  At this stage, there has been insufficient time for such a family report to be commissioned or for the parties to gather whatever independent evidence is available about the various issues of neglect and abuse. 

3. In addition, at this interim stage, I have not had an opportunity to take any lengthy evidence from any of the persons who are involved in this case and seen that evidence being tested through cross-examination.  It is through this process, which if necessary will occur at final hearing that the court is in a position to make findings of fact as to what has actually occurred and other matters relevant to credit. 

4. At the interim stage, it is frequently the case that the court is called upon to make difficult decisions in respect of the care of the children in circumstances where the facts are bitterly disputed and where the parties concerned, for all sorts of reasons, are in a state of crisis.  As a consequence, it is very often difficult for the court to have a clear sense of what has actually occurred, with each parent asserting that if urgent action is not taken some terrible misfortune will befall the children concerned.

5. However, given the structure of Part VII, particularly its emphasis on protecting children from the consequences of exposure to any form of abuse or neglect, the court cannot disregard such allegations because of evidentiary difficulties, which may or may not arise as a consequence of the court trying to establish the truth or otherwise of the allegations concerned and the circumstances in which they arose. 

6. These features are present in the current matter.  Mr Dennis asserts that he was justified in taking extreme actions in retaining X and Y because they are likely to come to significant harm as a consequence of being abused.  Of equal moment, Ms Kirkwood asserts that it is likely to cause the children significant emotional harm if they remain arbitrarily uprooted from their familiar home, school and care arrangement; and separated from their long-standing carer and adult sibling, Mr N.

7. Necessarily such a situation creates a dilemma.  The court is damned is does and damned if does not in the eyes of one of the protagonists to the proceedings concerned.  As the Full Court pointed out in Keats & Keats:[1]

   “As with many interim hearings, the proceedings were determined without cross-examination and the primary judge was not in a position to resolve evidentiary controversies.  The primary judge applied the principles that emerge from cases such as SS v AH,[2] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…”

   [1]  Keats & Keats [2016] FamCAFC 156

   [2]  SS v AH [2][2010] FamCAFC 13

8. But, notwithstanding the problems which arise in interim hearings, it remains the court’s responsibility to do the best it can with the evidence available to put in place the orders which it thinks will best serve the interests of the children concerned.

9. The manner in which the court makes arrangements for the care of children is through the making of a parenting order.  A parenting order is what it suggests:  it is an order which allows the court to make an order for determining such things as where children should live, who the children should spend time with and other arrangements for the children’s care. 

10. Although the hearing at the interim stage takes a different form to that which occurs at the final hearing stage – the former is a truncated hearing, the latter is a process which entails a more detailed examination of evidence including cross‑examination – the same principles apply at both stages.  Whatever I do at this stage, I must be satisfied that it is in X and Y’s best interests.

11. How a child’s interest is to be best served is determined by reference to the matters set out in section 60CC. In a case called Goode & Goode,[3] the Full Court of the Family Court has indicated that in a truncated interim hearing, such as this one, the court should endeavour to analyse the factual situation, focusing on what is agreed, whilst bearing in mind that it cannot make findings of fact about all manner of disputed things. 

    [3]  Goode & Goode (2006) FLC 93-286

12. Rather, the court should focus on what is agreed or what appears to have been the situation in respect of prior care arrangements for the child concerned. In this context, it should analyse what findings should be made in respect of the relevant section 60CC factors.

13. Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it: primary considerations and a longer list of additional considerations.

14. There are two primary considerations which are set out in section 60CC(2)(a) & (b), namely:

    ·The benefit to the child of having a meaningful relationship with both of the child’s parents, and

    ·The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

15. Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act.  It means:

    “(a)   an assault, including a sexual assault, of the child; or

    (b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

    (c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

    (d)     serious neglect of the child.”

16. Family violence is defined by section 4AB(1) of the Family Law Act.  It means:

    “violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”

17. The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act, one of which is an assault. X is to be regarded as a member of the mother’s family. Accordingly, if X was assaulted in August of 2015, this incident can obviously constitute an episode of family violence.

18. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

19. The other specific criteria, which are categorised as being additional considerations also relate to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

20. Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

21. Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.  The court’s duty is to deliver individual justice for the child affected in every case.[4] 

    [4]  See B v B: Family Law Reform Act 1995 (1997) FLC 92-755

22. In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[5] As such the various factors in section 60CC are inclusive but not exclusive of one another.[6] 

    [5]  See B v B: Family Law Reform Act 1995 (ibid) at 84,220

    [6]  See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J

23. Given the importance which the applicable legislation places on the co-involvement of parents in their children’s lives and development, there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].

24. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

25. The presumption of equal shared parental responsibility is rebutted if it is found on reasonable grounds that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

26. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

27. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].

Consideration

1. The father’s case is that there is cogent evidence relating to the risk of the subject children being exposed to abuse in the form of both serious neglect and exposure to sexual activity which warrant the urgent intervention of the court.

2. Essentially, in my view, Mr Dennis’s application calls for the court to assess the degree of risk which the mother’s alleged conduct and that of her boyfriend may pose for X and Y in the short to medium term.  Risk arises in every aspect of human endeavour.  No individual’s life can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising on an objective basis.

3. The court is frequently called upon to assess all manner of potential risks to children in proceedings coming before it.  These risks include the risk of sexual abuse; compromised parenting generally or as a result of psychological illness or personality disorder; risks relating to illicit drug use or excessive alcohol consumption; and, as in this case, dangers relating to a new partner of a parent.

4. In cases concerning the sexual abuse of children, the test to be applied is whether the risk alleged is one which is of such a degree that it would be unacceptable for the court to assume it.[7]  In conducting the unacceptable risk assessment, the court must examine all relevant evidence and put in place a response which is proportionate to the risk so assessed and which also serves the best interests of the child concerned. 

   [7]  See M & M (1988) FLC 91-979

5. Clearly, if the risk or danger of abuse is an unacceptable one for the court to countenance, it would not be in the child’s best interests to be exposed to such a risk.  In general terms, it is my view that this unacceptable risk test should be applied to other allegations of neglect or abuse of children. 

6. The evidentiary standard to be applied to civil cases in Australia is proof on the balance of probabilities [see Evidence Act 2009 (Cth) at section 140(1)].  Pursuant to 140(2) in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.

7. However, it is somewhat misleading to talk of the application of evidentiary standards to family law proceedings at the interim stage because the court is precluded from making findings of facts because the available evidence is, more often than not, a tangled skein of controversies, contradictions and disputes.  But nonetheless the court is still required to act on the evidence before it.  Necessarily, this must require some process of analysis of the available evidence, particularly in cases in which serious allegations of misconduct are made against a parent.

8. In my view, Fogarty J in N & S and the Separate Representative[8] provides an authoritative catalogue of matters for the court to consider when analysing potential risk to children.  They include the following:

   [8]  See N & S and the Separate Representative (1996) FLC 92-655 at page 82,713-82,714

   ·what is the nature of the events alleged to have taken place? 

   ·who has made the allegations? 

   ·to whom have the allegations been made? 

   ·what level of detail do they involve? 

   ·over what period of time are the events alleged to have occurred? 

   ·what are the effects exhibited by the child? 

   ·what is the basis of the allegations? 

   ·are the allegations reasonably based? 

   ·are the allegations genuinely believed by the person making them? 

   ·What expert evidence has been provided? 

   ·are there satisfactory explanations for the allegations apart from sexual abuse? 

   ·what are the likely future effects on the child?

9. Fogarty J was careful to indicate that these matters did not constitute an exhaustive list of what the court should consider.  Rather, they were an injunction to the court to give real and substantial consideration to the facts of each case concerned.  In the case His Honour also warned:

   “…courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.”[9]

   [9]  See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] Fam CA 892 at paragraph 95

10. With these strictures in mind, I turn to consider the evidence available in the current case, bearing in mind its provisional and untested nature.  The August 2015 matter is, in my view, a potentially serious incident. Contemporary community standards no longer accept the corporal punishment of children involving devices such as canes or straps.  Similar considerations apply to hard slaps and smacks.  It is recognised that such matters represent a severe risk to the emotional well-being of children and are unacceptable.

11. However, the incident concerned occurred approximately twelve months ago.  I have scant evidence regarding the sequellae of the matter from X’s perspective or the context in which the incident arose in the first place.  The matter was not subject to any contemporaneous independent investigation, by appropriate authority and, at the time, Mr Dennis himself did not see fit to report the incident to police. 

12. It is clearly inappropriate if Ms Kirkwood and her boyfriend have engaged in sexual activity in the presence of the children concerned.  The father alleges that Y has disclosed that the person concerned has sucked on her mother’s breast whilst she has been present and the two have had sex together in the lounge room, also while Y was present. 

13. Such behaviour appears improbable but obviously not impossible.  In my view, in assessing the potency of these allegations, I must bear in mind that Mr Dennis has received them second hand from an adolescent child and there is not a great level of detail provided.  As earlier indicated, it is not beyond the bound of possibility that the children have some ulterior motive for reporting the matter in the manner in which they have done and Mr Dennis himself has not sought any clarification from Ms Kirkwood herself.  Rather he has elected to retain the children.

14. The applicable legislation concerned speaks of serious neglect constituting abuse.  At this juncture, it is difficult for me to ascertain whether the allegations regarding the unkempt nature of the children’s hair constitutes such abuse.  It is a common allegation, in bitterly contested children’s proceedings, for a parent to make such allegations and for the other parent concerned to indicate that such things as head lice are no more than the ordinary incident of childhood. 

15. In my view, in assessing the father’s allegations, I must look to the absence of any authoritative and independent assessment of these issues of neglect.  As such, in my view, I must approach them carefully, particularly given the unpredictable consequences which may arise if there is a precipitate change in the living arrangements for the children concerned on the basis of an uncertain level of proof. 

16. Mr Dennis places particular emphasis, in his case, on the fact that he was advised by Families SA and SAPOL not to return the children to the mother’s care.  However, the fact remains that there is not a scintilla of evidence to suggest that either such authority has taken any concrete action whatsoever in regards to these allegations. 

17. The court frequently invites child welfare authorities to intervene in proceedings which come before it. In addition, it is a very common phenomenon that the court directs that such authorities provide documentary evidence of any notifications of child abuse received by such authorities pursuant to the provisions of section 69ZW of the Act.

18. As a consequence of these various interventions, it is well known to both judges of this court and members of the legal profession who regularly practice before it that the statutory and practical criteria to be met before the Department becomes actively involved in any particular case are high. 

19. Accordingly, just because a notification has been made and apparently noted by relevant authorities, does not necessarily indicate that those authorities are actively involved in any formal investigative process.  Rather their actual role may be no more than formally documenting the notification received.  This is particularly so in cases where the Department concerned anticipates that this court or the Family Court has been or will be enjoined by one or both of the parents concerned to determine how the best interests of the applicable child or children are to be determined. 

1. In this particular case, I will direct that a notice be provided to both Families SA and SAPOL pursuant to section 69ZW, in respect of any notifications of abuse which have been received in respect of X and Y. I am informed that it will take the authorities approximately eight weeks to respond to such a direction. Given the length of the delay, it would be inappropriate to hold the mother’s application in abeyance until such time as this information is to hand.

2. In my view, in the short to medium term, an appropriate response to the allegation of the mother exposing the children to inappropriate sexual conduct is to direct that Ms Kirkwood not permit her boyfriend to be present in her household when the children are there, at least until the section 69ZW information is to hand and more evidence has been elicited from X herself. I appreciate this is a significant restriction on the mother’s personal freedom but in my view, given the tensions between the parties, it is warranted.

3. X and to a lesser extent Y, are likely to have strong views as to what is the appropriate outcome in the case [section 60CC(3)(a)].  Those views are likely to be influenced by the significant level of conflict between their parents, of which both children are likely to be well aware.  In addition, given X’s likely special needs and Y’s tender years, it is uncertain what is the level of maturity of these children to express a concluded view on which the court should act decisively. 

4. Significantly, I am unaware of the degree to which the children have been enlisted, by one or other of their parents, into their conflicted relationship and whether this has resulted in the children being placed in a position where they can play off their parent’s against one another to what they think is their advantage.  For obvious reasons, children of tender years are not necessarily the individuals best placed to determine what the appropriate outcome for their care is. 

5. I am gravely concerned at Mr Dennis’s assertion that X is suffering from panic attacks and anxiety which he attributed to the mother’s verbal abuse of her.  It is also his evidence that the child is frightened that she will get into trouble, with her mother, as a consequence of what she has disclosed to her father.

6. The dispute between the parties is their dispute not the children’s.  The important thing is for any potential ruptures in the family to be healed if at all possible.  I will make injunction restraining each of the parties from abusing or denigrating the other in the presence or hearing of the children or directly discussing these proceeding with them.  As far as is reasonably practicable the children are to be quarantined from these proceedings.

7. Nonetheless, given the urgency of the situation and the intensity of the crisis which currently besets this family, in my view, it would be appropriate for X and Y to take part in a child inclusive family dispute resolution conference.  Such a conference can take place on Friday, 16 September 2016 at 10:00am and has the potential to be illuminating as to what has been happening in the family from each of the children’s perspective.

8. The parties have been separated for a significant period of time during which Mr Dennis has moved to (omitted), away from Ms Kirkwood.  It is implicit from his actions that, in the period following separation, he had confidence in Ms Kirkwood’s ability to parent the children appropriately. 

9. In my view, it is also significant that the mother has been the children’s primary provider of care for a significant period of time. It also seems more probable than not that X and Y have a close and loving relationship with Mr N. These are important considerations [see section 60CC(3)(b)]. Necessarily, both the mother and Mr N have very significant relationships with X and Y.

10. At this juncture, I am unable to ascertain to any definitive degree, the implications for the family of Ms Kirkwood becoming emotionally involved with another person.  I accept however that, in general terms such involvements have the potential to upset the emotional equilibrium of a separated family both from the perspective of parents and children.  Such new relationships can entail a significant process of adjustment for all concerned. 

11. In this context, in my view, it is significant that although Mr Dennis makes very significant allegations against Ms Kirkwood regarding her parental capacity, he is open to the children spending significant periods of time in her care provided the children are able to continue to live with him in (omitted) and he can determine which school they attend. 

12. One of the legislatively mandated best outcomes for children is that their parents should share decision making responsibility for the children concerned, particularly in respect of what are categorised as being major long-term decisions.  Such decisions are defined in the Family Law Act and include matters relating to the education of children. 

13. Accordingly, the legislation (and the court which must apply it) disapproves of instances in which one parent takes unilateral action in respect of such matters.  In this context, in my view, it is a very significant decision for a child to be removed from one school and enrolled in another.  It is the decision which ordinarily should be the subject of close consideration and advice from the schools and teachers involved.  This is particularly so in cases where an affected child has learning difficulties and special needs which must be satisfied. 

14. In all these circumstances, I am concerned at the possibility that Mr Dennis has acted parenterally and as such has demonstrated a flawed insight into the responsibilities of being a parent [see section 60CC(3)(c)(i)]. I am also concerned that since the children have been in (omitted), they have not been attending school. It is also unclear who is caring for the children whilst Mr Dennis is at work or if he is not currently working what his long term plans are in this regard. This is a significant criticism of Ms Kirkwood.

15. Mr Dennis is critical of X’s recent school record. He is entitled to be concerned at her non-attendance. However, as yet, I have little information about this issue and whether there is some explanation for it. After closely considering all the available evidence and considering the relevant section 60CC factors, I have come to the conclusion that it would not amount to an unacceptable risk if the children are returned to their mother’s care forthwith.

16. I reach this conclusion primarily because Ms Kirkwood has been the children’s major provider of care for a significant period of time.  I am concerned by situations in which one parent takes significant unilateral actions in respect of children where the relevant parents have no capacity whatsoever to discuss their concerns calmly and rationally together.

17. It seems to me that the next step is to gather further information if it is available from the relevant authorities and from the children themselves via a Child Inclusive Conference.  In the meantime, in my view, it is more likely than not that the children should be returned to the long standing status quo relating to their care.  If X’s relationship with her mother is ruptured, there is some merit in the two attempting to repair it sooner rather than later.

18. As indicated earlier, in my view, an appropriate response to the degree of risk relating to exposure to sexual activity is for an injunction to issue restraining Ms Kirkwood’s boyfriend being present at times the children are in her care. 

19. I will direct that the children be returned to their mother’s care at her residence prior to the father’ commencing his work on this coming Friday 9 September 2016.  Thereafter the children should spend alternate weekends with their father according to the previous regime commencing after his work has concluded on Friday 16 September.

20. I have come to the conclusion that it is not appropriate for the presumption of equal shared parental responsibility to be applied at this interim stage.

21. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:         8 September 2016