KMA and SAN and Anor
[2008] FamCA 1211
•19 December 2008
FAMILY COURT OF AUSTRALIA
| KMA & SAN AND ANOR | [2008] FamCA 1211 |
| FAMILY LAW – CHILDREN - With whom a child lives - Mother lives in New Zealand and father and paternal grandmother live in Australia - Neither party proposes to relocate regardless of the outcome of these proceedings - Mother’s capacity to provide for the children’s emotional needs is gravely compromised and in her care the children’s emotional and psychological well being is highly likely to be severely damaged - Children ordered to live with the father and the paternal grandmother and spend time with the mother in Australia for no longer than one week at a time FAMILY LAW – CHILDREN - Parental responsibility - Presumption of equal shared parental responsibility is rebutted - Father and paternal grandmother to have equal shared parental responsibility for the children FAMILY LAW – CHILD ABUSE - Allegations and risk of harm - Mother made allegations that the father sexually abused their daughter and one of the mother’s children from a previous relationship - The Court is not satisfied that the father sexually abused any of the children or that there exists an unacceptable risk he may FAMILY LAW – FAMILY VIOLENCE - Both parties made allegations of family violence against each other and the Court finds that both parties engaged in family violence |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 60CG 60J, 60K, 60I, 61B, 61C, 61DA, 61DB, 64A, 65DAA, Pt VII Evidence Act 1995 (Cth) s 140 Family Law Amendment (Shared Parental Responsibility) Act 2006 |
Goode and Goode (2006) FLC 93-286
M v M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Johnson and Page (2007) FLC 93-344
W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
A v A (1998) FLC 92-800
Jaeger (1994) FLC 92-492
JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580
Blanch v Blanch and Crawford (1999) FLC 837
R v R (Children’s wishes) (2000) FLC 93-000
H v W (1995) FLC 92-598
| APPLICANT: | Ms KMA |
| FIRST RESPONDENT: | Mr SAN |
| SECOND RESPONDENT: | Mrs N |
| FILE NUMBER: | (P)NCC | 1142 | of | 2007 |
| DATE DELIVERED: | 19 December 2008 |
| PLACE DELIVERED: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATES: | 14, 15, 16, 17 & 18 December 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Davies |
| SOLICITOR FOR THE APPLICANT: | Braye Cragg |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Sundstrom |
| SOLICITOR FOR THE FIRST RESPONDENT: | Winder Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Graham |
| SOLICITOR FOR THE SECOND RESPONDENT: | Fowler Predny |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bates |
| SOLICITOR FOR THE RESPONDENT: | Peter Hamilton Solicitors |
Orders
That all prior orders made in these proceedings operative on the date of these are discharged.
That the father, Mr SAN and paternal grandmother, Ms N have equal shared parental responsibility for the children E born … August 2002 and N born … August 2004.
That until 20 December 2009 the children shall live with the father and paternal grandmother.
Commencing 21 December 2009 the children shall live with the father.
Upon Order 4 commencing operation and in the event the children are living in a residence separate to that of the paternal grandmother, the children shall spend time with the paternal grandmother not less than one night each week except during periods when the children are spending time with the mother.
That the mother shall spend time with the children in Australia at such times and for such periods as agreed between the paternal grandmother and the mother provided that:
(a)The children shall not spend more than one week continuously with the mother.
(b)The block periods of time the children spend with the mother shall coincide with the children’s school holidays.
(c)During school term the mother’s time with the children shall occur on a weekend.
(d)Before the mother collects the children she shall provide the address and telephone number for the place the children will be staying with her and a photocopy of her return airline ticket.
In the event the mother is residing in New Zealand if the mother and paternal grandmother are unable to agree upon the dates and times upon which the mother shall spend time with the children in Australia, provided the mother has provided no less than eight weeks written notice of the dates and times she seeks to spend time with the children and her proposals are consistent with conditions in order 6(a) to 6(d) above, the mother’s proposed arrangements shall prevail.
For the purpose of changeover the mother shall collect the children from the paternal grandmother’s home and return them to the same place.
The father is restrained from coming within 500 metres of the paternal grandmother’s home during the period the mother is present to collect or return the children.
That the father and paternal grandmother shall give the mother a landline telephone number upon which the mother may communicate with the children.
The mother shall have telephone communication with the children on the telephone number provided above at all reasonable times but no more frequently than twice weekly.
The mother is restrained from removing or attempting to remove the children E born … August 2002 and N born … August 2004 from the Commonwealth of Australia.
That the Australian Federal Police place the names of the children E born … August 2002 and N born … August 2004 on the Airport Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until further order of the Court AND the Court requests the assistance of the Australian Federal Police in the implementation of this order.
Whilst the children are spending time with the mother she is restrained from questioning them about the father and paternal grandmother’s care or presenting the children for an intimate medical examination.
The mother and father are restrained from speaking to the children negatively about the other parent or permitting any other person to do so.
In the event of the mother moving to live in Australia she has liberty to apply to vary the orders in relation to the time and conditions under which she spends with the children.
The father and/or the paternal grandmother shall forthwith authorise the children’s schools to provide to the mother at her expense copies of the children’s school reports, school photographs and other school publications relative to the children.
Unless within the preceding 12 months he has done so, within six months of these orders the father must attend and complete a parenting course approved or nominated by the Manager of the Child Dispute Service of the Court’s Newcastle Registry and must:
(a)contact the Manager within twenty one days and obtain the approval or nomination;
(b)pay the reasonable fees for the course;
(c)upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
(d)promptly provide the mother and paternal grandmother with a copy of that letter.
The father is restrained from consuming alcohol beyond the legal driving limit and from ingesting marijuana or any other prohibited substance whenever the children are in his care.
The father is restrained from physically disciplining the children.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.
That all outstanding applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym KMA & SAN and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: (P)NCC1142 of 2007
| MS KMA |
Applicant
And
| MR SAN |
First Respondent
And
| MRS N |
Second Respondent
And
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
These are competing parenting applications concerning two children, E who is six years old and N who is four years old. E, his parents and two elder half-siblings migrated to Australia from New Zealand on 15 June 2003. Following the parent’s final separation in January 2006, the children remained with their mother, Ms KMA (the mother). Without Mr SAN’s (the father) consent, on 7 March 2006 the mother returned to New Zealand with the four children. Although the father had information, including from the mother that she had left Australia it was only after he was served with her New Zealand application for parenting orders that he believed she was there.
The father then initiated an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction[1] for his two children’s return to Australia. Following a defended hearing, on 16 October 2006, the Family Court of New Zealand granted his application and ordered the children’s return. The mother’s appeal failed and on 19 June 2007 the Family Court in Christchurch granted the New Zealand Central Authority’s application for warrants to secure the children’s return to Australia. The warrants were ordered to lie and not issue if, during this period, the mother returned the children to Australia. When she failed to do so the warrants issued.
[1] Exhibit ‘R’
Mrs N (the paternal grandmother) flew to New Zealand on 25 July 2007 where she collected E and N. The paternal grandmother returned with the children to Australia the same day. The father and paternal grandmother live together and upon her return to Australia, the children came into the father’s joint care.
Having left her elder children in New Zealand, the mother arrived in Australia on 26 July 2007. At her behest, officers from the Department of Community Services wrongly removed the children from the paternal grandmother on 28 July 2007 and gave them to the mother. The mother took the children to Queensland and in effect, disappeared with them.
On 29 July 2007 the father obtained ex-parte orders restraining the mother from removing the children from Australia. Two days later he applied for final and further interim parenting orders. Upon filing he discovered that on 18 June 2007 the mother had filed an application for parenting orders in the Family Court at Brisbane which was listed for interim hearing on 16 September 2007. The father had not been served with the mother’s application and she withheld his address from the Court. When retrieved from the Brisbane Registry, the mother’s documents failed to provide an Australian address for service or her residential address.
The father’s interim applications came before the Court on 31 July 2007. Having exhausted all avenues which may have revealed the mother and children’s whereabouts, on 31 July 2007 interim orders were made placing the children in the paternal grandmother’s care and for a recovery order. The mother’s mother and her New Zealand solicitors were served with the orders.
Before the recovery order was executed the mother learned of the 31 July 2007 orders and through her New Zealand solicitors contacted the Court. On 2 August 2007, by arrangement with the Court, the mother and children came to the Court’s Brisbane Registry following which they were handed over to the paternal grandmother’s care. On an interim basis the father was able to have daily supervised visits with the children.
By 8 August 2007 the mother had moved to Newcastle since when the children’s time has been shared between the parties. The general routine has been that each week the children live with the paternal grandmother and father from Friday evening until Monday afternoon and the mother at all other times. Whilst the children have been in the father’s company his mother has supervised.
The mother and father each make serious allegations concerning each other’s parenting capacity.
Irrespective of the outcome of these proceedings the mother will return to New Zealand to live. Irrespective of the outcome of these proceedings the father will continue living in Australia. This presents significant logistical impediments for the Court’s capacity to significantly involve both parents in the children’s lives. Even if the children live with the mother in New Zealand the father is unwilling to visit them there. Whilst the mother is willing to visit the children in Australia she does not anticipate being able to regularly do so and says her financial circumstances and commitments to her older children make it preferable that the children have the opportunity to visit her and their half siblings in New Zealand.
The father’s mother is committed to the children’s welfare and, since the children returned to Australia, has been intimately involved in their care. In the event the Court determines that the children should not reside with either parent, she says they can live with her.
Background facts
Throughout these reasons statements of fact are findings of fact.
The father was born in New Zealand in September 1968. He is 40 years old.
The mother was born in New Zealand in December 1972. She is 36 years old.
In March 1991 the mother’s son R was born. When R was about 12 months old the mother’s parents adopted him. R’s father is T whose surname is not known to the Court.
In April 1997 the mother’s daughter D was born. D’s father is Mr NO. Mr NO was a prisoner when he and the mother met and she fell pregnant to him. D has never lived with him.
In August 2000 the mother’s son C was born. Mr NO is C’s father. C has never lived with his father and until about the time the mother and father separated he believed the father was his father.
The parties met in late 2001 when, as a boarder, the father moved into the mother’s home. Their relationship quickly became intimate and within weeks of meeting each other the mother was pregnant to the father. When the parents discovered the mother was pregnant the father suggested she have an abortion. At that stage they barely knew each other and he was concerned that their relationship was not strong enough for the parents to commit to each other as parents or partners. Upon the parents being advised of the risks to the mother a termination they agreed to have the baby and unite as a family. Their relationship was nonetheless volatile and before E was born they separated on a number of occasions.
In August 2002 the mother and father’s first child together, E was born.
The mother, father, D, C and E migrated to Australia on 15 June 2003. They left New Zealand so that the father could break away from his drug abuse lifestyle and the mother could join her parents who were then living in Brisbane. Upon arrival the family settled in Brisbane. The father immediately obtained work as a tradesman. He worked full time usually at night. The mother obtained paid work not long after they arrived. While the parents were at work the maternal grandmother cared for E. By the end of 2003 the mother was no longer working outside of the home. As between the parents the mother was overwhelmingly responsible for the children’s care.
The mother contacted police on 21 March 2004 about the father’s behaviour. The mother had arrived home to discover the father had been drinking. They argued during which the father threw a tub of margarine, which did not hit anyone, then tried to grab E from the mother’s arms. She resisted and says she ended up with bruises and scratches on her arms from the father’s attempts to drag the baby off her. Police took a statement and did not observe any injuries on the mother. I am satisfied there were none. The mother and children went to her parent’s home for the night. Almost immediately the parties resumed cohabitation.
On 31 March 2004 at the Magistrates Court a Domestic Violence Order was made for the mother’s protection from the father. The order was made in both parties absence and did not prevent them from continuing to cohabit. The order required that for two years the father be of good behaviour towards the mother and any person named in the order and not commit an act of domestic violence towards her or any named person. No other person was named in the order. Police served the father with a copy of the order on 9 April 2004.
The mother and father married in April 2004.
In August 2004 the mother and father’s daughter N was born. As between the parent’s the mother assumed primary responsibility for N’s care.
On 9 February 2005 the father was arrested for breaching the Domestic Violence Order. During an argument the father threw a glass which smashed. It did not hit anybody. When the mother told the father she was going to telephone the police he told her to “watch out” and pulled the telephone cables out of the wall. The father was convicted of breaching the Domestic Violence Order. The parties continued to cohabit.
During a heated argument in which the parties were screaming abuse at each other, on 15 December 2005, the father pushed the mother and the mother hit him.
The paternal grandmother arrived for a short Christmas holiday with the family on 23 December 2005. Not long before she arrived the mother discovered N with a bag of cannabis leaf in her mouth. The mother telephoned the father at work and yelled at him. He yelled back then hung up.
The paternal grandmother found the disharmony between the parents difficult to cope with and on 27 December 2005 she moved out. This was one day before she was due to depart.
On 28 December 2005 the parents separated. There had been another heated argument during which the mother told the father to leave. As the mother was closing the screen door behind him, the father turned grabbed her wrist and verbally abused her. The mother reported to police that the father said “If you ever stop me from seeing the kids, I will rip your fucking head off and kill you. You bitch.” He agrees he swore at her but denies threatening to kill her. When the mother picked up the telephone to call the police he grabbed it from her. Still swearing at the mother the father then left. Police traced the call and telephoned the mother. She informed them the father had left and arrangements were made for Police to attend the following day to take the mother’s statement. The mother did not tell Police about her own equally abusive language or that she had recently hit the father, kicked a hole in a wardrobe and kicked the family car about twenty times.
At separation the mother and children remained in the home. The father had little money and slept in his car. He did not see the children until the parents reconciled and he moved back into the family home.
On 29 December 2005 Police interviewed the mother about a possible breach of the 2004 Domestic Violence Order.
On 8 January 2006, with the mother’s agreement, the father moved back into the family home.
After a failed attempt at marriage counselling, on about 19 January 2006 the mother told the father that if they finally separated she planned to return to New Zealand with the children. When it seemed increasingly likely that the parties would finally separate the father attended the Family Court and obtained a consent orders package. He hoped he and the mother would be able to agree on the children’s post separation living arrangements. As things transpired they did not.
On 29 January 2006 the parties separated finally. The mother and children remained in the family home and the father stayed in his car, a motel and then moved in with a work colleague. When the father left he took the children’s passports with him.
The same day the mother was interviewed by police concerning her complaint made on 28 December 2005 and about the father’s conduct the day of separation. In relation to the later the mother correctly alleged that the father had been verbally abusive and smashed the garden shed and some of its contents. The mother gave Police the father’s bong. He was charged with possessing drug paraphernalia. The father admitted the offence and was sent to a drug diversion program.
On 30 January 2006 the mother applied for an urgent variation of the Domestic Violence Order. Essentially the mother sought to include conditions the effect of which would require the father to return the children’s passports, restrain him from communicating or spending time with the children other than in accordance with Family Law Act orders or agreed in writing with the mother. The children were included as named persons on the application. Orders were made ex-parte in accordance with the mother’s application on 31 January 2006. The mother’s application was returnable at Beenleigh Magistrates Court on 27 February 2006.
On 15 February 2006 the father was served with the mother’s application and the 31 January 2006 orders. In accordance with the serving Police Officer’s suggestion the father returned the children’s passports.
After the parties separated the mother applied for Centrelink benefits. However she had not previously applied for permanent residence and was ineligible for more than family tax benefits. The mother’s income was derived from her small personal services business she ran from home. She had the parties’ savings of about $1400 and no other realisable assets. Her business produced insufficient income to meet the home repayments and support the children. After she defaulted on the mortgage/rental payments the mother was ordered to vacate the home.
By late February 2006 the mother and children were temporarily residing with Ms FN and her family. On about 21 February 2006, with Ms FN listening in, the mother told the father: “If you don’t give me some money I have to go back to New Zealand”. The mother says her financial predicament is the reason she decided to return to New Zealand where she would have access to greater government financial support. The mother did not leave Australia because she feared for her or the children’s safety.
The father, but not the mother, attended Beenleigh Magistrates Court on 27 February 2006. The interim order was continued and the proceedings adjourned until 27 March 2006.
On 7 March 2006, without having had further discussion with the father, the mother returned to New Zealand with the children. Ms FN paid the airfares. The mother, E, D and C all had New Zealand passports. N did not have a passport. Without informing the father, the mother applied for a New Zealand passport for N. The New Zealand passport application form makes it clear that the parent or guardian making the application is responsible for consulting with the other parent or guardian in relation to it. Although the mother could have contacted the father, she elected not to. The mother says, at least by his failure to support her financially, the father impliedly acquiesced to her taking the children back to New Zealand. Her claims do not withstand scrutiny. Had she been confident of his consent she would not have hidden from him her application for N’s passport and would, at the very least, have told him when she and the children were flying out of Australia. The mother says she hoped that the father would follow and continue his relationship with the children.
In late March 2006 the father wrote to the mother’s parents expressing his distress at the idea that the children had been taken to New Zealand. He included a telephone contact number in the letter and questioned how this can have happened. The letter is inconsistent with any suggestion he consented to the children’s removal and reveals his despair at the thought she had done so.
On 27 March 2006 the father attended Beenleigh Magistrates Court when the mother’s domestic violence application was adjourned to 30 June 2006.
Later that day the mother telephoned the father and advised him she and the children were in New Zealand. The mother says during this phone call the father threatened to kill her. Nonetheless she made a series of telephone calls to him later that day. The father kept shouting at the mother and hanging up. He was agitated and angry at learning she would not return the children to Australia. The mother persevered trying to placate him and explain why she had taken the children to New Zealand and how he could see them in the future. He agreed that he was angry and verbally abusive but denied threatening to kill the mother. He made it plain to her that he would not be returning to New Zealand. This is consistent with the contents of his letter to the mother’s parents and his subsequent actions. While I accept the father was verbally abusive to the mother I am not persuaded he threatened to kill her or that she feared he might. Rather from these telephone calls the mother realised she potentially had a fight on her hands about the children.
Following these telephone calls the mother contacted Sergeant X. He is a Queensland Police domestic violence liaison officer. She told him she was in hiding in Christchurch and that the father had threatened to come to Christchurch and kill her. The only part of this which is true is that the mother was in Christchurch. While she had not told the father the address of the refuge she was residing this was not for safety reasons. At the mother’s request Sgt X forwarded a copy of the Queensland Domestic Violence Order to New Zealand Police.
On 4 April 2006 the mother filed a parenting application in New Zealand.
On 5 April 2006 the mother obtained an ex parte protection order arising from the threats she alleges the father made during their 27 March 2006 telephone conversation. The mother was aware of the father’s address in Australia and his telephone number. It is difficult to understand why service of her domestic violence application was dispensed with.
On 13 June 2006 the mother purchased a two-fifths share as tenants in common of a residence in Christchurch.
The father was served with the mother’s parenting application on 26 June 2006. It is at this point that he finally believed the mother was in New Zealand where she planned to stay. Until served with the mother’s parenting application the father was unsure where the mother was and thought she was either temporarily in New Zealand or that she was in Australia and that the information that she was in New Zealand was a ruse. His uncertainty mainly arose from the ongoing Queensland domestic violence proceedings in which, amongst others, orders were being sought restraining him from approaching Queensland addresses where it was alleged the mother and children were living or attending school. Following service he sought legal advice and for the first time realised he could commence action concerning the children’s removal from Australia.
On 30 June 2006 Beenleigh Magistrates Court dismissed the mother’s domestic violence application.
On 18 July 2006 the Queensland Central Authority, on the father’s behalf, filed an application in New Zealand seeking that New Zealand return E and N to Australia. The mother resisted the application.
On 16 October 2006 the Family Court of New Zealand ordered the children’s return to Australia. Presumably so that the parties could consider the judgment’s ramifications and make arrangements for the children’s orderly return to Australia, the proceedings were adjourned.
The Family Court of New Zealand entered orders in accordance with its 16 October 2006 decision on 5 December 2006.
During October 2006 the father moved to Newcastle where his mother resides.
The mother appealed to the High Court of New Zealand against the 16 October 2006 decision. The High Court of New Zealand dismissed her appeal on 16 March 2007.
The mother appealed[2] to the Court of Appeal in New Zealand against the High Court of New Zealand’s dismissal order. On 5 June 2007 the Court of Appeal of New Zealand refused the mother’s application for leave to appeal the High Court’s order.
[2] Exhibit ‘I’
On 8 June 2007, after D was informed that her younger brother and sister were to return to Australia she told the mother that the father sexually abused her. These allegations were investigated, the details of which are dealt with later in these reasons.
On 18 June 2007 the mother applied to the Family Court at Brisbane for orders that the children live with her in New Zealand. The application was returnable in September 2007.
On 19 June 2007 the Family Court in Christchurch refused the mother’s stay application and issued warrants to secure the children’s return to Australia. Presumably in the hope that the mother would arrange the children’s calm and orderly return to Australia, the Family Court ordered that the warrants lie for 21 days.
On 26 June 2007 Mr NO, with the mother’s consent, obtained an interim order in the Family Court at Christchurch[3] which restrained the mother from removing C or D from New Zealand. Mr NO’s application was filed on 14 December 2006[4]. Mr NO was then and at the time of this hearing, still is in jail. When C and D lived with the mother in Australia he did not see them. After the mother returned to New Zealand she visited Mr NO in jail and thereafter C and D began visiting him. Although Mr NO may have genuinely wanted to keep C and D in New Zealand, the mother’s consent was almost certainly given for perceived forensic advantage in her case to retain E and N in New Zealand. A final order was subsequently made in the same terms as the interim order.
[3] Exhibit ‘O’
[4] Exhibit ‘N’
The mother took no steps to comply with the orders for the children’s return. Throughout the various stages of the New Zealand proceedings the mother was legally represented and consulting various agencies concerning her and the children’s predicament. By the time her stay application was refused the mother understood she had exhausted legitimate avenues to resist the children’s return to Australia. She also understood that if she failed to abide orders for the children’s return, the warrants would be effected. I am strongly satisfied the mother was aware that this would involve police retrieving the children. It is no coincidence that when police arrived to take the children members of the media were present. Although the mother may not have personally arranged for the media to attend, I have no doubt that she was aware someone associated with her had which she did nothing to stop. As must have been anticipated the children were distressed when removed from the mother, as was she. The media presence probably made the situation even more difficult for the children. Had the mother abided the various orders referred to she could have avoided causing this distress to the children. Responsibility for the children’s distress overwhelmingly rests upon her. In so finding I make no criticism of the mother exhausting her appellate options. My criticisms focus on the extent to which she made the children’s situation even more difficult.
Before the warrants were executed, the relevant Central Authorities in Australia and New Zealand made arrangements with the paternal grandmother and father for the children’s care following their retrieval. This was necessary because the mother maintained she would not return to Australia with the children. Upon the father’s indication that he would not travel to New Zealand to collect the children from police, arrangements were made for his mother to do so. The father was afraid that if he went to New Zealand he was at risk of serious harm from the mother’s gang associates, possibly even death. Both the Court Expert appointed in the New Zealand Hague Convention proceedings and officers of the Queensland Department of Child Safety considered that the father’s fears were legitimate[5]. I am satisfied that they were.
[5] Exhibit ‘BB’
Officers of the New Zealand Ministry of Social Development delivered the children to the paternal grandmother at Christchurch airport on 25 July 2007. This is the first time the children had seen her for approximately 16 months. E remembered her, but N who was only 19 months old when she last saw her paternal grandmother, did not. The mother attempted to board the aeroplane carrying the paternal grandmother and children. Because of her poor behaviour the airline refused her permission. The father met his mother and the children upon their arrival at Sydney airport and the same day they returned to the paternal grandmother’s home at U. E was pleased to see the father and ran to him. N was reserved but went to him when he held his arms out to her. Both children questioned the father about whether he would hurt them, repeating remarks which the mother had made to them.
On Friday 27 July 2007 the father went to T Local Court looking for family law advice. He spoke with Sergeant W. Sergeant W told the father New South Wales police had received a request from New Zealand to register a Protection Order for the mother’s protection from him. This is the ex parte order the mother obtained in New Zealand on 5 April 2006. From his discussion with Sergeant W the father understood it was likely to be at least a few days before the Protection Order was registered. Moving with commendable haste a New South Wales domestic violence liaison officer applied for and obtained registration of the protection order at Newcastle Local Court the same day. The effect of registration was that the father was subject to a New South Wales domestic violence order. It comprised the mandatory statutory restraints and prevented the father from living in the same home as the children or having contact with them other than in accordance with orders from a court exercising family law jurisdiction.
New South Wales police officers served the father with the Domestic Violence Order at his mother’s home on 28 July 2007. So as to comply with the order the father placed the children into his mother’s care and went to stay at a friend’s home. Later that day, two officers from the Department of Community Services (“DoCS”), accompanied by police, arrived at the paternal grandmother’s home. The DoCS’ officers told her they were authorised by the Director General of the Department of Community Services to remove the children. They were not so authorised and misled the paternal grandmother. It appears they were reacting to pressure placed on them by the mother and some of the New Zealand workers supporting her. The paternal grandmother telephoned the father who promptly arrived at her home. Although the paternal grandmother refused the DoCS’ officers permission to enter her home, they entered and carried the very distressed children away. There is no doubt the DoCS’ officers acted beyond their authority and their actions warrant criticism. The DoCS officers refused to inform the father and paternal grandmother of the children’s whereabouts.
By the time DoCS’ officers removed the children the mother had arrived in Australia. DoCS’ officers delivered the children to her not long after their removal. The mother and children stayed overnight in a refuge in Newcastle and the following day went to Brisbane. She did not inform the father or paternal grandmother she was in Australia or tell them of the children’s whereabouts. The father guessed the children were probably with the mother and because he was afraid she would again take the children out of Australia, he contacted the Family Court’s after hour’s service. The Family Court made orders preventing the children’s removal from Australia and listed the proceedings on the next working day, namely 31 July 2007.
On 31 July 2007 I made the following orders:
1.I give [the paternal grandmother Mrs N] leave to make an oral application for orders that “the children” [E] born […] August 2002 and [N] born […] August 2004 live with her pending further order.
2.That in the first instance [the paternal grandmother] has leave to proceed with the above application in so far as it concerns the mother exparte.
3.That pending further order that the children referred to in order 1 above shall continuously spend time with [the paternal grandmother].
4.That pursuant to section 67Q of the Family Law Act 1975 a recovery order issue authorising and directing the Marshall, all Officers of the Australian Federal Police and all officers of the Police Force of all States and Territories of the Commonwealth of Australia to take possession of and deliver the said children to the paternal grandmother [Mrs N].
5.That [the paternal grandmother] is restrained from allowing the said children to have contact other than telephone communication with their father [Mr SAN].
6.In the event that [the father] attempts to communicate with or spend time with the children beyond that provided for in the above order [the paternal grandmother] shall forthwith notify the New South Wales Police.
7.That the parties have liberty to apply on 30 minutes notice to the Court and the other parties.
8.That the mother forthwith files a Notice of Address for Service in accordance with the Family Law Rules.
9.That the father cause sealed copies of these orders to be served upon Ms Alexis Hart of Parnell Law[…] Auckland, New Zealand immediately.
10.The Court requests that Ms Hart immediately provides notice to the mother of these orders.
11.Upon giving the mother notice of these orders Ms Hart shall file and serve an affidavit in this Court confirming that the mother has notice of the orders and proceedings.
12.That the father’s solicitor immediately give oral notice to [the maternal grandmother] of these orders including the Court’s request that in the event she hears from [the mother] [the maternal grandmother] informs her that these orders have been made.
13.The proceedings are adjourned to 12.00 noon Thursday, 2 August 2007.
14.That [Ms D] and [Ms F] appear before the Court at 12.00 noon on 2 August 2007 to give evidence concerning their dealings with [the mother] and information they have which may assist in locating the children.
15.Upon the undertaking of [Ms G] that she will return the Department of Community Services file to the Court on the resumed hearing on 2 August 2007 without alteration to any past records, the file is released to Ms [G].
Almost instantly the mother became aware of the orders. Through her New Zealand lawyer she contacted the Court and made arrangements to deliver the children to the Australian Federal Police in the Court’s Brisbane Registry on 2 August 2007. The mother remained with the children until they were handed over to their paternal grandmother. It is noteworthy that as a consequence of the mother’s failure to abide orders thrice in one week officers of three different police forces took possession of the children.
To the extent they are relevant on 2 August 2007 I made the following orders:
1.That further consideration of this matter is adjourned to 10.00 am Wednesday 8 August 2007 in the Newcastle Registry.
2.To the extent they have not already done so, all parties are directed to file and serve any application for interim parenting orders together with the evidence they propose to rely on by 12.00 noon 7 August 2008.
3.I dismiss the mother’s oral application to discharge the Recovery Order made 31 July 2007.
By Consent it is ordered:
4.That the father shall spend time with the children during the period of the adjournment :
(a) between 9.00 am and 5.00 pm each day,
(b)upon condition that [the paternal grandmother] or another adult agreed to between the parties supervises those periods he is with the children.
5.Pursuant to s.68L of the Family Law Act 1975 that the children [E] born […] August 2002 and [N] born […] August 2004 are separately represented and I request the Legal Aid Commission of New South Wales to provide such representation.
6.That Orders 5, 6 and 7 of the Orders made 31 July 2007 are discharged.
After the 2 August 2007 orders were made, the same day the paternal grandmother flew to Brisbane where she collected the children from the Australian Federal Police and returned with them to her home at U. The paternal grandmother stopped work and cared for the children fulltime. The children spent time with their father in accordance with the 2 August 2007 orders.
Following upon the 2 August 2007 orders, the mother left Brisbane and moved into refuge accommodation in Newcastle. She did not see the children between 2 and 8 August 2007.
The proceedings were again before the Court on 8 August 2007. Excluding procedural matters, on that day I listed the applications for final hearing and made the following interim orders and notations:
1.That the children [E] born […] August 2002 and [N] born […] August 2004 spend time with the parties as follows:
(a)with the father and paternal grandmother from the conclusion of the paternal grandmother’s employment on a Friday evening (6.00 pm) until the commencement of the paternal grandmother’s employment on the following Monday (2.00 pm) each week and with the mother at all other times.
(b)with the mother from 12.00 midday to 4.00 pm on 11 August 2007 and 19 August 2007.
2.That the paternal grandmother shall supervise the time the father spends with the children.
3.That during periods when the children are in the father and paternal grandmother’s care the father is restrained from:
(a)entering the children’s bedroom between 7.30 pm and 6.30 am; and
(b)showering or bathing the children.
4.That Order 1(a) herein shall be implemented by the mother collecting the children from the paternal grandmother’s place of employment and returning them to the same address at the conclusion of the time the mother spends with the children, that address being […].
5.That Order 1(b) herein shall be implemented by the paternal grandmother delivering the children to the mother at McDonalds at [G] at 12.00 noon and collecting them from that address at 4.00 pm.
6.That Order 4 made 31 July 2007 and Order 10 made 2 August 2007 are discharged.
7.That the mother forthwith place the address at which she is residing in an envelope which shall be immediately delivered to my Associate and that such envelope be sealed and shall not be opened other than pursuant to an order of the Court.
8.The Court notes that the mother has complied with Order 8 above and that the envelope referred has been placed in the Registry Manager’s safe.
9.That the mother’s application for interim relocation to New Zealand is listed for hearing before a Judicial Registrar at 10.00 am on 28 September 2007.
10.That Order 1 of the orders herein shall be implemented by the children being delivered to the mother at McDonalds [G] at 7.30 pm tonight.
The Court Notes:
11.The undertaking given on oath by [Ms DE] that in the event the mother removes the children’s residence from the Women’s Refuge where the mother presently resides Ms [DE] will immediately notify a Registrar of this Court that she has done so.
12.The undertaken given on oath by [Ms DE] that she will ensure that all other refuge workers at the women’s refuge at which the mother presently resides are aware that in the event the mother removes the children’s residence from that refuge if Ms [DE] is unavailable, another worker will immediately notify a Registrar of this Court.
Following the 8 August 2007 orders, the parties complied with the orders, which meant the children were spending significant time with each of the parties, albeit insofar as the father was concerned, supervised by his mother. These arrangements continued until the mother unilaterally stopped the children spending time with their paternal grandmother and the father. The reason she did so is that she said that on 27 August 2007 N said that her paternal grandmother and father had been rubbing her vagina and bottom. Having spoken with refuge workers and a local medical practitioner, the mother decided the father and paternal grandmother were in breach of the interim orders and that the father had sexually abused N.
On 30 August 2007 the mother filed an interim application seeking to formally suspend the 8 August 2007 orders insofar as these facilitated contact between the children and paternal grandmother and in lieu proposed supervised visits at a contact centre. The father and paternal grandmother denied the mother’s allegations.
The mother’s interim application was listed for hearing on 18 September 2007. Because of the gravity of the situation, unusually for an interim application, the Court permitted cross examination. After cross examination finished the parties agreed on a further suite of interim orders. Concerning the children’s living arrangements they agreed as follows:
a)That all interim applications apart from Order 5 sought in the application of the applicant filed 7 August 2007 (which is listed for hearing on 28 September 2007) are withdrawn and dismissed.
b)That Order 2 of the orders of 8 August 2007 be varied to now read: “2. That the paternal grandmother shall be present at all times that the father spends with the children.”
At the Court’s request, the Registry Manager invited the Department of Community Services to intervene in the proceedings which the Director General declined.
Following upon the 18 September 2007 orders the children resumed spending time with the parties with the frequency described in the 8 August 2007 orders.
On 28 September 2007 the mother’s application to return to the New Zealand with the children pending the final hearing came before the Court. If granted one effect of her application was that the children would, for about two and a half months, be denied face to face contact with the father. The Court dismissed her application and ordered, pending further order, that in the event that the mother was not available to have the children live with her in the Newcastle area for any reason, then to the extent necessary, the children would live with the paternal grandmother under the conditions set by the orders made on 8 August 2007, as varied on 18 September 2007.
On 22 October 2007 the mother and children moved into different refuge accommodation. This is the third refuge in which they lived following the mother’s arrival in Australia.
The Court Expert commenced her interviews on 30 October 2007.
In early November 2007, with Mr NO’s consent, the maternal grandmother brought D and C to Australia. This visit was timed to coincide with the Court Expert’s interviews and enabled her to meet with them on 8 November 2007. For the few days they were in Australia they stayed with the mother.
On 12 November 2007 the paternal grandmother told the mother that she and the father had seen the children simulating oral sex. E told the paternal grandmother that a 9 year old girl living at the refuge had shown them this. The father notified DoCS of his observations.
On 4 December 2007, following the children spending the weekend with their father and paternal grandmother, the mother presented N to Newcastle Hospital. The child had a red vagina and urinating was painful. A junior doctor advised the mother N’s hymen was torn[6]. The following day a senior paediatrician corrected this misdiagnosis and confirmed that the child’s hymen was intact and her genitalia were normal[7]. The redness to the child’s vulva settled down over a couple of days.
[6] Exhibit ‘T’
[7] Exhibit ‘U’
Because of the complex issues raised in these proceedings, the Court appointed an Independent Children’s Lawyer. On the Independent Children’s Lawyer’s application, Ms SE was appointed as the Court’s Expert to investigate and report upon matters relevant to the children’s welfare. Ms SE is a clinical psychologist with 31 years experience in child and family psychiatric settings. She has particular child protection expertise, along with parenting capacity assessment of parents who have personalty disorder, mental illness, developmental delay and substance abuse issues. Mr SE is well qualified for the tasks required of her. Ms SE provided two reports. Her first report[8] is dated 3 December 2007 and her second report[9] is dated 6 December 2007. Having completed the first report, Ms SE was contacted by the Independent Children’s Lawyer and requested to investigate further child sexual assault allegations which had arisen after Mr SE completed her initial interviews. By and large Ms SE’s observations of the parties accords with my own. Although cross-examination revealed a few instances where Ms SE misunderstood factual matters, these were relatively inconsequential and do not detract of the overall integrity of her investigations and opinions. She accurately reports on her discussions with the various interviewees and observations sessions. Ms SE understood the issues and salient facts. Given the factual complexities and difficulties the mother and father presented, Ms SE’s evidence is balanced, well considered and warrants significant weight.
[8] Exhibit ‘F’
[9] Exhibit ‘G’
Ms SE concludes:
In my opinion [N] and [E] should be placed with their father and paternal grandmother for the following reasons:
· The mother’s poor track record of parenting.
· The mother’s personality disorder and the impacts of this on her general parenting capacity.
· The apparent emotional abuse by the mother of these children by embroiling them in what appears to be false claims of sexual abuse.
· The risk of harm posed to the children by residing with their brother [C]. [C] is a very violent young boy, who has a history of being violent to his younger siblings. [The mother] has said that he ‘targets’ [E] who was admitted to hospital with concussion after being assaulted by [C]. Not only will [E] and [N] be at risk of ongoing physical assault by [C], they will also likely be chronically exposed to his anti-social view of the world which he continually spouts.
If the children – especially the remaining boy, [E] – are not to follow the anti-social path of their older brothers, then they should not be placed in the maternal household. As well placement of the younger children with [the mother], may well lead to their influence by [Mr NO] if [the mother] continues her alliance with him.
These recommendations are made taking into account the children’s attachment to their mother and siblings, and the problems that living in another country will pose for contact with the maternal family. However in my opinion the children’s long term emotional and personality development should take precedence. Additionally in view of the mother’s previous history, it is unlikely that the mother would cooperate with orders for contact with the father, were the children to be placed with her.
At the end of her first report Ms SE provided a précis of her specific recommendations. She recommended:
1.[E] and [N] be placed in their father’s and paternal grandmother’s care.
2.Contact with the mother and her family should be restricted and should not involve holiday stays. Given the highly dysfunctional function of the mother’s household contact between the mother and children should occur in Australia only.
3.There should be regular telephone contact between the children and their mother.
4.The father should undertake to send regular school reports, photos, etc, of the children to the mother.
5. The father should attend a parenting course.
6.A copy of this report should be sent to DoCS, given the child protection concerns.
In her addendum report Ms SE concluded:
…. the mother’s claim appear to more likely be a repeated pattern of dubious claims of sexual abuse to gain advantage in a court matter. While it is conceded that the child did have a sore vulva, it appears that the mother has chosen to view this in the worst possible manner.
Concerning the father and paternal grandmother’s claims that the children were sexually acting out, late notice to Ms SE deprived her of the opportunity to reinterview the father and paternal grandmother. However as Ms SE had recently seen N and investigated the children’s circumstances previously, nothing turns on this. Ms SE reported: “These children do not clinically present as eroticised children – and young children of this age generalise such behaviour and usually present some evidence of this in repeated clinical interviews. I saw no evidence of this, and [N] and [E] did not present clinically in the way in which sexualised children of this age do. As well there seems no corroborated evidence from others of such behaviours. Children of this age are usually indiscriminate in the situation in which they display such behaviours.” In relation to the father and paternal grandmother’s claims, Ms SE opined these draw … “the children in even more to the sexual abuse allegations spiral, which is very damaging.”
At the end of her cross-examination, Ms SE reinforced her recommendation that the children live with the father and paternal grandmother for 12 months and thereafter the paternal grandmother’s role lessen but that she remain a significant presence in the children’s lives. Ms SE recommended that the children spend time with the mother in Australia and strongly opined that the risks that the mother would embroil the children in further abuse investigations in New Zealand with the commensurate disruption to the children’s lives were too high to countenance face to face visits outside Australia.
At the end of the hearing the Independent Children’s Lawyer submitted a Minute of Proposed Orders[10] which, on the children’s behalf, it was submitted best promotes their long term wellbeing. The Independent Children’s Lawyers proposed orders are set out below.
[10] Exhibit ‘CC’
1.That [E] born […] August 2002 and [N] born […] August 2004 (the children) live with the father and paternal grandmother until the second anniversary date of these orders and thereafter with the father.
2.Following the second anniversary date of these orders and in the event of the children living in a residence separate to that of the paternal grandmother the children shall spend time with the paternal grandmother overnight on not less than one occasion in each week except during periods when the children are spending time with the mother.
3.The mother spend time with the children at such times and for such periods as agreed between the paternal grandmother and the mother provided that:
3.1The children’s time with the mother occurs in Australia.
3.2The time the children spend with the mother not exceed one week on each occasion.
3.3In the event of the mother being available for the children to spend time with her the periods of time the children spend with the mother occur on not less than three occasions in each year.
3.4The times the children spend with the mother occur during school holidays applicable to the schools which the children may from time to time attend.
4.In the event of the mother becoming permanently resident in Australia the mother have liberty to apply in relation to the time the mother spends with the children.
5.The father and the paternal grandmother facilitate the children being able to communicate with the mother by means of telephone or email and that telephone communication occur at least weekly.
6.The father and/or the paternal grandmother authorise the schools which the children attend to provide to the mother copies of the children’s school reports, school photos and other school publications relative to the children.
7.Within six months of these orders the father must attend and complete a parenting course approved or nominated by the Manager of the Child Dispute Service of the Court’s Newcastle Registry and must:
(a)contact the Manager within 7 days and obtain the approval or nomination;
(b)pay the reasonable fees for the course;
(c)upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
(d)promptly provide the mother and paternal grandmother with a copy of that letter.
8.The father is restrained from consuming alcohol to excess and from ingesting marijuana or any other prohibited substance whenever the children are in his care.
9.The father is restrained from physically disciplining the children.
10.The father and the paternal grandmother have equal shared parental responsibility for the children.
Those orders concerning the distribution of parental responsibility and the children’s living arrangements are generally consistent with Ms SE’s recommendations.
On 4 December 2008 the Court notified the parties judgment would be delivered on 19 December 2008. Amongst other things this gave the parties and Independent Children’s Lawyer an opportunity to adduce further evidence if during the period following my reserving judgment there had been a relevant change in circumstances. No one applied to re-open and I infer there was nothing which the parties or Independent children’s Lawyer wished to bring to the Court’s notice.
General Law in parenting cases
Orders concerning parental responsibility, with whom a child will live and arrangements for spending time with his or her parents, as well as other people interested in the child’s welfare, are parenting orders (s 64A). They arise in proceedings conducted under Pt VII of the Family Law Act 1975 (Cth). Unless a court makes an order which changes the statutory presumption of joint parental responsibility, s 61C(1) provides that until a child turns eighteen, each of the child’s parents has parental responsibility for the child. The meaning of ‘parental responsibility’ is defined in s 61B as: “… all of the duties, powers, responsibilities and authority, which by law, parents have in relation to children.” Essentially the presumption relates to parental decision-making and does not determine where or with whom a child will live. By virtue of s 61DA(2) the presumption does not apply where there exist reasonable grounds to conclude that a parent, or a person who lives with a parent of the child has engaged in family violence or child abuse. The presumption is rebutted where a court is satisfied it would conflict with the child’s best interests (s 61DB). Thus if the Court determines the presumption does not apply or is rebutted, it must decide the appropriate parental responsibility arrangements. The process for doing so is found in s 60B and s 60CC.
Section 60B sets out the objects of Pt VII and the principles which underline those objects. In deciding whether to make a particular parenting order, including an order concerning parental responsibility, s 60CA and s 65AA ensures that the child’s best interests are the paramount consideration. Section 60B is important as it provides the context within which the relevant s 60CC factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case but as a general approach, examined from the child’s perspective, points the way to an optimum outcome. Where there are no countervailing factors, the s 60B principles may be decisive. Section 60B is set out below.
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).
3.For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s 60CC. Section 60CC(1) contains two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)). The second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Because these two factors are referred to as “primary considerations” this means they must be considered in every parenting case and are to be considered as having particular importance.
Having considered the primary considerations, the Court must take into account the thirteen additional considerations set out in s 60CC(3). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (m) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. The Court must also consider the extent to which each parent has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities: s 60CC(4). In deciding the appropriate parenting order, the Court must, to the extent possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence: s 60CG. Ultimately the weight attached to each factor is a matter for the Court’s discretion.
The sequence of determining parenting orders is important. If the court is satisfied that a child’s parents are to have equal shared parenting responsibility, it must consider the practicability (s 65DAA(5)) of the child spending equal or substantial and significant time with its parents (s 65DAA). In the context of s 65DAA 'consider' means a consideration tending to a result, or to consider positively the making of an order. Goode and Goode (2006) FLC 93-286. The notion of equal time requires no explanation and is decided first. If equal time is not ordered, substantial and significant time must be considered. This concept is defined in s 65DAA(3) and occurs where:
(1)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
(2)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
(3)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 child’s best interests remain the overriding consideration.
Where neither concept delivers an outcome which promotes the child’s best interests the court then determines the parenting applications as outlined above. Similarly, where the Court has decided against maintaining equal shared parental responsibility s 65DAA considerations do not apply.
General principles to be applied in determining risk allegations
The legal principles to be applied in a case involving allegations of sexual abuse are laid down by the High Court in M v M (1988) 166 CLR 69. The oft quoted passages are found at pp 76-78 where the High Court held:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has 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 it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. 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 matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
By way of further elaboration of the civil standard of proof, the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 per Mason CJ, Brennan, Deane and Gaudron JJ said at pp 170-171
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
The Briginshaw test is now enshrined in s140 of the Evidence Act 1995 (Cth). As the Full Court in Johnson and Page (2007) FLC 93-344 makes clear these principles apply to cases decided after its introduction.
Thus a Court will only make a positive finding that sexual or other abuse has happened when, by reference to s 140(2)(c) of the Evidence Act the judge “is satisfied to the highest standard, on the balance of probabilities abuse has occurred”: W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235.
If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether, by reference to s 140 of the Evidence Act, in all the circumstances there is an unacceptable risk of it. This involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable. The components which go to make up that conclusion need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard: Johnson and Page (supra).
These principles are applicable to all allegations of risk of harm, including family violence: A v A (1998) FLC 92-800.
The findings made in the assessment of risk addresses part of the Court’s responsibilities. Whilst the resolution of the risk issue may be the central issue in proceedings, the Court’s role is broader in that it must determine the best interest of the child having regard to the relevant statutory factors. In M v M (at p 76) the High Court said:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide, cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
If the Court reaches the conclusion that there is no unacceptable risk, the Court must consider the separate issue of the parent’s belief in the occurrence of the events. In A v A (supra) the process is described thus:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.
Family violence
Family violence is a significant issue in these proceedings. With the passage of the Family Law Amendment (Shared Parental Responsibility) Act 2006 it arguably has even greater prominence than beforehand. The definition of family violence is widened and is now defined as being “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.” (See s 4). In a note to the definition it is explained that “a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.” Thus the notion of fear has both an objective and subjective element.
In the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (8 December 2005) Parliament explains the significance and effect of its intention concerning the s 60B(1)(b) object and in doing so highlights its prominence. It states:
35.The second new object is inserted in new paragraph 60B(1)(b). It recognises that there is a need for children to be protected from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The provision recognises that children need to be protected not only from direct harm but also harm caused by being exposed to abuse or family violence that is directed towards, or affects, another person. This would cover, for example, the possible psychological harm to a child caused by the child witnessing abuse against another child, or family violence against a member of the child’s family. This new object implements recommendation 2 and conclusion 2.29 of the FCAC Report and recommendations 17 and 18 of the LACA Report. The term ‘subjected to’ has been retained as well as ‘exposed to’ in the drafting to make clear that it covers protection both from direct harm and from witnessing violence towards another person.
At page 13 the Explanatory Memorandum says:
48.The amendment to section 60CC creates two tiers of considerations that the court must take account of in determining what is in the best interests of a child. The primary considerations are contained in the new subsection 60CC(2). They include the benefit to the child of having a meaningful relationship with both parents and the protection of the child from physical and psychological harm. The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents. The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B (inserted by item 8).
49. For example in a case where there is family violence or sexual abuse then keeping the child safe will have particular relevance. In other cases not involving any issues of safety that will be less relevant and the issue of the benefit of a meaningful relationship with both parents will be the primary factor although other factors in the secondary list, such as the child’s views, or failure to previously fulfil parental responsibilities without any reason may also be considered as relevant.”
In addition to the objects (s 60B(1)(b) and inclusion of family violence as a primary consideration (s 60CC(2)(b), s 60CG requires the Court to “ensure, when it makes an order, that the order is consistent with any family violence order that may be in place; and does not expose a person to an unacceptable risk of family violence.” The Court must do so to the extent possible consistent with the child’s best interests remaining the paramount consideration. As discussed earlier s 61DA(2) provides that the presumption of equal shared parental responsibility 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 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.
By s 60J people are not required to attend family dispute resolution where there has been child abuse or family violence by one of the parties to the proceedings but shall be provided with information about the services and options that are available to them. This will ensure that people are made aware of services and options (including alternatives to court action) that are available in circumstances of abuse or violence. Section 60J(2) provides an exception to the requirement in s 60J(1) where there is a risk of child abuse or family violence if the matter is delayed getting to court. While the intention of s 60J(1) is to ensure that victims of violence have information on the services available to them, the exception is to ensure that those matters involving high risk of immediate violence or abuse are heard by the court as soon as possible
Section 60K places an obligation on the Court to take prompt action in relation to allegations of child abuse or family violence.
Section 60I(9)(b) provides that attendance at family dispute resolution is not required where the Court is satisfied that there are reasonable grounds to believe that there has been or would be a risk of abuse of the child if there were to be a delay in applying for the order, or if there has been or would be a risk of family violence by one of the parties to the proceedings.
In their totality these changes are consistent with principles which emerged, but curiously were not universally accepted, from a series of pre Shared Parental Responsibility Act 2006 cases. Particularly Jaeger (1994) FLC 92-492, JG and BG (1994) FLC 92-515 and Patsalou and Patsalou (1995) FLC 92-580. In Patsalou the trial judge discussed the significance of family violence and in doing so said the following:
Any suggestion that such behaviour is only relevant to the welfare of children if it ‘took place in the presence of the children’ or they were ‘made aware of it’ cannot be supported. In my opinion, the denigration of one parent by the other and the perpetration of violence by that parent against the other is of importance when assessing where the interests of children lie and what future arrangements might best advance their welfare.
Denigration and/or assault put the target of this behaviour under considerable unnecessary strain which may, in turn, impinge upon the quality of parenting able to be offered to the children for whom that parent bears or shares responsibility. For a parent to conduct himself/herself in such a manner towards the other parent reflects poorly on the assailant's capacity to recognise that by this behaviour they may erode the confidence, dignity and self esteem of the children's other parent and thereby place the quality of parenting able to be offered under unnecessary strain.
It also reflects poorly upon the assailant's capacity to provide children with a positive role model for their own behaviour and methods of resolving disputes and dealing with tensions and stress.
Moreover, the effect upon children of inter-spousal violence is now the subject of a considerable body of research. This shows that, though the effects may vary depending on a number of variables, including age and stage of development of the child and frequency and extent of the violence, they may be profound and long-lasting.
Even if the issue was not addressed in submissions, the Court is required to consider the effect on a child of a violent parental role model. Blanch v Blanch and Crawford (1999) FLC 837.
Section 60CC(3)(e) concerns the practical difficulty and expense of a child spending time with and communicating with a parent. On the mother’s case the father would visit New Zealand for about 20 weekends and they would come to Australia during school holidays. On the father and paternal grandmother’s case the mother will see the children in Australia. However because of the distances involved, the children’s time with the parent with whom they do not otherwise live will occur during school holidays and thus no more frequently than on four occasions annually. Although the mother’s offers more contact at best the father would be able to afford the expenses associated with school holiday visits. If the visits are supervised his mother’s travel and associated costs must be taken into account. Whilst in New Zealand the father may be able to moderate his expenses by staying with acquaintances. If the children remain in Australia the mother will either incur similar travel costs visiting them here, or they would visit her in New Zealand.
Neither party suggests the children are old enough to travel unaccompanied, an approach with which I agree. This means, if the children travel to New Zealand an adult must accompany them and the costs of contact increase accordingly. If contact is limited to Australia the mother will incur additional accommodation costs unless she is able to stay with friends such as Ms FN. She will also probably incur costs bringing the children’s half siblings to see them. The mother suggests that she pays half the children’s airfare and that the paternal grandmother meets the other half.
Whichever scenario is ordered the costs of the children spending time with the parent with whom they do not live are significant when measured against the parties’ modest financial circumstances. It is feasible that even if orders are made for the children to spend time with the parent with whom they do not live each school holidays that the practical difficulty and expense associated with this may mean it does not routinely occur. The difficulties in both scenarios are self evident.
Thus I accept that the practical difficulties and costs associated with the father spending unsupervised time with the children are less complicated or expensive than the reverse situation. If it is supervised there is no notable difference.
Because of the father’s fears for his safety in New Zealand, this factor is not as compelling as might otherwise have been the case. Nonetheless it throws into stark relief the terrible difficulties which the Court faces in trying to ensure that the children continue to have as meaningful relationships as possible with both parents and other family members to whom they are close. These practical issues influence the structure of my orders concerning the circumstances in which the children will spend time and communicate with the parent with whom they do not reside. Ultimately however it is primarily the risk and relationship issues which determine the structure for these arrangements.
Section 60CC(3)(f) focuses upon the parties parenting capacity. I have earlier made findings which indicate the paternal grandmother’s parenting capacity is superior to both the mother and the father’s. So that it is clear, I do not accept that the children have regularly returned from stays with the paternal grandmother dirty and smelly. Although I am satisfied the paternal grandmother felt unable to personally attend to aspects of the children’s hygiene she did her best in a very difficult situation to ensure their physical needs were adequately addressed. The paternal grandmother had limited financial resources and when the children came to her they came with nothing. She did not have the capacity to provide another full wardrobe of clothing for each child and again did her best to attend to the children’s needs within her capacity. If the mother was concerned about the children’s presentation, rather than simply complain she could have provided the paternal grandmother with an adequate selection of the children’s clothing and belongings. That the children for a period went without is solely the mother’s responsibility.
I have no doubt that the mother is capable of providing for the children’s physical and educational needs. Mr WR reported that E attended preschool regularly and there was no complaint from his preschool concerning his attendance or presentation. After some initial difficulties, D settled into her school and the school had no concerns about her attendance or presentation. Any difficulties C was experiencing at school related to his aggression and did not reflect adversely upon the mother’s capacity to attend to the children’s physical and educational needs. Without restating the reasons why, I am strongly satisfied the mother’s capacity to provide for the children’s emotional needs is gravely compromised and that in her care the children’s emotional and psychological well being is highly likely to be severely damaged. The mother demonstrated virtually no insight into the impact of her behaviour upon the children and the awful consequences her lack of judgment in relation to the pressure placed upon them to disclose sexual abuse by the father. Her lack of insight into her role in the pursuit of evidence which would prove her child sexual abuse theory lends strong support to the father and Independent Children’s Lawyer’s submissions against the children remaining in her care.
There are no s 60CC(3)(g) factors which require further consideration.
Aboriginal and Torres Straight Islander issues do not arise.
Section 60CC(3)(i) concerns the parties attitudes towards the children and the responsibilities of parenthood. Prior to separation the parties organised their family life so that the mother was primarily responsible for the children’s day to day care and the father primarily responsible for providing financially for the family. The father worked hard to fulfil his financial responsibilities to the family and his efforts should be acknowledged. However by his continued cannabis and alcohol use the father was irresponsible and failed to appreciate how important it was for the children that he was a stable guiding force in their lives. He gambled money the family could not afford to lose and was utterly irresponsible when he engaged with the mother in their frequent loud and verbally abusive disputes. Perhaps the parent’s separation was a wake up call the father needed in terms of prompting him to reconsider his attitude towards his parental responsibilities and thus the children. I say this, because post separation his behaviour is significantly improved and he has demonstrated a considerably higher regard for his parental responsibility and commitment towards the children. This is evident from his no longer abusing drugs and alcohol and his diligent involvement in the children’s lives following their return from New Zealand.
The father was criticised for failing to contribute to the children’s financial support post separation. There is no doubt that since separation his child support payments have been manifestly inadequate. In January 2007 he paid $358 and in February 2007 he paid $651. He has not contributed financially to the costs the mother incurred supporting the children since. Although the father told the New Zealand authorities he would pay $1,200 towards the mother’s rental bond if she returned to Australia, he did not. The father could and should have contributed more financially towards the children’s expenses post separation at least until the children returned to Australia. During the former period the father was in fulltime employment and, although he needed funds with which to re-establish himself, this does not explain his failure to pay child support between March 2006 and July 2007. Having listened carefully to the father’s evidence I am satisfied the father’s failure to pay child support during this period emanates from his anger at the mother’s actions in taking the children to New Zealand and was a deliberate stance designed to make her situation as financially difficult as he could. The father ignored that the children also would miss out. His actions were irresponsible and vindictive and reflect poorly on his parenting capacity.
Prior to separation the mother worked hard to fulfil her parental responsibilities and day in and day out accepted responsibility for the children’s care. When finances were tight she took paid employment, including working from home, so as to assist the parties to make ends meet. Although the mother did not behave in a physically aggressive way to the same extent the father did, she too exposed the children to verbally abusive behaviour and on occasion’s physical aggression. As to the latter her antics of kicking the car at Christmas 2005 and kicking a hole in a built in wardrobe are no more or less concerning than, by way of example, the father smashing coffee cups and slamming the glass door. The effects on the children are similar and the reality is that in behaving this way the mother failed to fulfil her parental responsibilities. Post separation the mother’s attitude towards her parental responsibility has deteriorated insofar as this relates to promoting the children’s relationship with the father and doing her best to ensure their emotional and psychological well being. As to the latter, the mother’s willingness to herself or permit others to repeatedly question the children in relation to the father’s possible sexual abuse and involving the children in child abuse investigations has shown an extraordinary lack of judgment on her part and fundamentally involves a failure to fulfil her parental responsibilities. It was the mother’s responsibility to arrange the children’s orderly return to Australia as ordered by the New Zealand courts. Rather than fulfil this responsibility she either deliberately, or with complete lack of insight into the consequences for the children, allowed steps to unfold which resulted in the children being far more distressed in the situation than had she cooperated. The consequences for the children have been traumatic and the mother demonstrated as clearly as she could her willingness to abandon her responsibility as a parent to provide for the children’s emotional and psychological well being when it suited her. This is a finding to which I attach considerable weight.
The evidence does not support any adverse findings under s 60CC(3)(j) concerning the paternal grandmother. She has fulfilled a role with the children far beyond that reasonably hoped for from grandparents. Her attitude to the children has been exemplary and her involvement in the children’s lives and these proceedings has enhanced the Court’s capacity to deliver at least reasonable outcomes for the children.
Section 60CC(3)(j) and 3(k) concern family violence. I have already made findings concerning family violence when discussing the primary considerations. As a consequence of my findings relating to family violence the presumption of equal shared parental responsibility is rebutted. The current Domestic Violence Order preserves the Court’s capacity to make orders concerning the children’s contact with the father.
As far as possible the Court should make orders least likely to lead to further litigation. As this case demonstrates litigation is stressful and undermines a person’s ability to move on with their lives. If the children live with their mother she will almost certainly fail to comply with orders that they communicate and spend time with their father. Future proceedings are almost certain. The father is more likely to comply with orders and the prospect of further proceedings arising from non-compliance is less probable. The paternal grandmother is most responsible and I am satisfied is, as she has to date, likely to strictly comply with orders. Nonetheless, in order to minimise the risk of future proceedings I have to the greatest extent possible tried to construct orders which address future circumstances so that the parties have a long term framework in which the children will be cared for. This is designed to relieve them of the need to try and negotiate future arrangements, a situation which is fraught with risk.
There is considerable overlap between s 60CC(3) and (4). Post separation the father has been keen to participate in decisions about the children’s lives, in particular where and with whom they live and associated major long term issues. The mother has denied him this opportunity. Her stance had nothing to do with the children’s best interests and is primarily a result of her antipathy towards the father. Somewhat paradoxically the mother criticised the father’s lack of contact with the children in the period between separation and her departure from Australia and then his failure to maintain telephone contact with them after she returned to New Zealand. At the point of separation the mother attempted to have the father charged for breaching a domestic violence order and commenced action to vary its conditions. The father says, and I accept his explanation in this regard, that he was afraid that approaching the mother to see or speak with the children may expose him to false domestic violence allegations. Simply put, the father stayed away from the mother and children to avoid any possibility that ambiguous circumstances might be used against him. Once the mother arrived in New Zealand, the father cites the difficulties which arose as a consequence of the parties telephone conversation on 27 March 2006 as evidence of why he could not afford to run the risk that telephone contact with the mother in order to speak with the children would involve. I have considerable sympathy for the father’s position but was left with a sense of unease that once the Hague Convention proceedings had started he could have done more to arrange at least telephone contact with the children without the mother’s involvement. Had he done so, I have little doubt that following each conversation with the children, the mother or those associated with her would have questioned the children searching for evidence of the father’s inappropriate conversation. The awful reality of the children’s situation during that period suggests that telephone contact with the father would have been unsuccessful and added to their stressors.
As is apparent from my findings, I am strongly satisfied that the mother has deliberately failed to facilitate the father’s involvement in the children’s lives post separation whether that be in relation to participating in major long term decisions, spending time or communicating with the children. The mother is insightless about the effect her actions have had upon the children. For whatever reason the mother’s attitudes which have resulted in this behaviour are deep seated and highly unlikely to change. If the children live with the mother in Australia or New Zealand history will only repeat itself and the almost certain outcome is that just as she has failed to facilitate the father’s involvement in the children’s lives in the past, she will do so in the future. This is a finding to which I attach significant weight.
I have already made findings concerning the father’s failure to adequately maintain the children whilst they lived with the mother in New Zealand. It is important to acknowledge that the mother has supported the children in very difficult financial circumstances and has done her best by them financially.
Conclusion
This is a sad and difficult case the determination of which has weighed heavily. E and N love both of their parents and are loved in return. In adult life both parents have faltered under the stressors that have come their way some of which have been self imposed. The parent’s relationship has now broken down and they are unable to communicate about the children or at all. The father believes he has been on the receiving end of the mother’s malicious campaign to destroy his relationships with the children and portray him as a child abuser. Perhaps because the consequences of her conduct post separation have been so catastrophic for he and the children he is unable to contemplate that her actions may not be maliciously motivated but a consequence of her being abused during her childhood and from the circumstances she has found herself post separation. Whatever the genesis for the mother’s determination to portray the father as a violent partner and child abuser may be, the reality is that post separation her conduct has been extremely emotionally and psychologically abusive of the children.
There is no proper basis upon which the Court could conclude her approach to the father’s relationship with the children in the future may soften or that she is capable of providing adequately for the children’s psychological and emotional well being into the future. I am satisfied she cannot.
Although the children want to live with the mother and their half siblings, they do not have the life experiences and maturity to understand the consequences of so doing. The younger children do not appreciate the poor role models to which they will be exposed living primarily with their mother. Nor the risks to them from C’s violent behaviour. If the children live primarily with the mother it is highly likely they will emulate at least R and C’s anti-social behaviours and develop the mother’s disturbed approach to ordinary human interaction. Of course, in their mother’s care the children’s relationship with their father will be destroyed and with their paternal grandmother, greatly diminished.
Had the father continued to live after separation his former lifestyle determining the children’s future living arrangements would have been even more onerous. Fortunately for the children he has made real improvements in the way he lives and in his attitudes towards his parental responsibility. Post separation the father’s parenting capacity has significantly improved and there is now reason for cautious optimism that this is likely to continue. This is not so certain that absent the paternal grandmother’s significant involvement in the children’s care the Court could be confident these gains would be maintained. So as to reinforce these important changes to the father’s lifestyle and parenting he must live with the paternal grandmother if the children live with him for the next twelve months. Another twelve months with her solid influence and guidance will consolidate the gains the father has made to a sufficient degree that the Court can be confident the children’s needs will in the future be adequately met. Nonetheless and to provide an important safeguard the father and paternal grandmother will share equally parental responsibility and the children will spend at least one night every week with her. The children will thus have a keen observer of their well being and they will have someone in whom they trust to raise any concerns.
I contemplated continuing the mother’s parental responsibility but decided against it. Partly because of the parent’s inability to communicate but more because the parties view the children’s best interests so differently conflict about long term issues is almost certain. This would increase the prospect of further litigation and potentially delay necessary decisions. So as to enable the mother to have information concerning the children’s progress there will be an order which will enable her to directly acquire the type of information which parents should receive.
As is apparent orders will be made largely consistent with those sought by the Independent Children’s Lawyer.
I accept the necessity for the children to spend time with the mother in Australia and nowhere else. The mother, even though restrained from so doing, is likely to continue to question the children about the father. As has been demonstrated the children are vulnerable to her pressure and the mother may try and involve them in further inappropriate investigations or again disappear with them. The chances of her being able to do so are minimised if the children see her in Australia. Because of the mother’s propensity for emotionally abusive behaviour towards the children she will see them for no more than one week at a time. This does not mean she may only see them for one week each school holiday. However if it is to be more than one week the mother will need to return the children for a period before spending more time with them. This provides the children with necessary respite as well as making it harder for the mother to flee with the children. As to the later there will be a series of injunctions and conditions under which the mother spends time with the children aimed at ensuring she is unable to remove them from Australia and enable them to be located. The terms of these orders are self explanatory.
The mother’s costs of spending time and communicating with the children shall be borne by her. It is unlikely that she will contribute significantly to the children’s ongoing expenses which will overwhelmingly be met by the father and his mother. Having paid for their and the children’s necessary expenses they are unlikely to have money available to contribute to the mother’s expenses seeing the children. These factors balance makes it appropriate to leave the mother responsible for these particular expenses. It also means she will be able to arrange to spend time with the children in the most cost effective circumstances.
The orders enable the mother to regularly communicate with the children and provide a structure which should mean the parents do not need to directly deal with each other and still enable the children to speak with the mother reasonably often. For similar reasons the paternal grandmother and mother will conduct changeovers and the father will be restrained from being nearby when this occurs.
For the above reasons I am satisfied the orders identified at the start of this judgment are in the children’s best interests. They enable the children to have as meaningful relationships as possible with each parent and other important people. To the extent possible the children are protected from the mother’s emotionally and psychologically abusive behaviour and are not exposed to risks from which they require further protection.
I certify that the preceding two hundred and seventy-five (275) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan
Associate:
Date: 19 December 2008
Key Legal Topics
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Family Law
Legal Concepts
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Jurisdiction
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Injunction
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Remedies
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Procedural Fairness
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