Knibbs and Knibbs

Case [2010] FamCA 446

FAMILY COURT OF AUSTRALIA

KNIBBS & KNIBBS [2010] FamCA 446
FAMILY LAW – CHILDREN – BEST INTERESTS –  Whether sexual abuse – Whether unacceptable risk of sexual abuse – Finding made that no sexual abuse occurred – No unacceptable risk of sexual abuse – Parental responsibility –Determination made that equal shared parental responsibility is in children’s best interests – Equal time – Determination that equal time with each parent is in children’s best interests – Orders made accordingly
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

B and B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Hilton v Allen (1940) 63 CLR 691
Johnson & Page (2007) FLC 93-344
Korban & Korban [2009] FamCAFC 143
Lindsay & Baker (2007) FLC 93-347

M and M (1988) 166 CLR 69
MRR and GR [2010] HCA 4

Mazorski & Albright [2007] 37 FamLR 518
McCall & Clark [2009] FamCAFC 92
Murphy & Murphy [2007] FamCA 795
N & S (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Nikolakis & Nikolakis  [2010] FamCAFC 52
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Reifek v McElroy (1965) 112 CLR 517
WK v SR (1997) FLC 92-787
APPLICANT: Ms Knibbs
RESPONDENT: Mr Knibbs
FILE NUMBER: BRC 2169 of 2009
DATE DELIVERED: 28 May 2010
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: O'Reilly J
HEARING DATE: 11, 12, 15, 16, 17 & 18 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O'Meara
SOLICITOR FOR THE APPLICANT: Mark Treherne & Associates
COUNSEL FOR THE RESPONDENT: Mr Selfridge
SOLICITOR FOR THE RESPONDENT: McMillan Kelly & Thomas Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hogan
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O’Neill
Legal Aid Queensland

Orders

IT IS ORDERED

Parental responsibility

  1. The parties have equal shared parental responsibility for N born … April 1999 and S born … February 2003 (the children) in relation to the major long-term issues concerning them, including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.

  2. In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions. 

  3. If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues. 

  4. The parties each be responsible or the children’s day to day care while the children are with each of them.

Living arrangements and changeovers

  1. The children live with each of the parties on the equal time week…

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AGLC
Knibbs and Knibbs [2010] FamCA 446
Case
[2010] FamCA 446
Decision Date

CaseChat Overview and Summary

This case concerned an application by the mother and father for orders regarding their two children, N and S. The dispute centred on allegations of sexual abuse by the father and the resulting risk to the children. The court was required to determine whether the evidence established that the children had been sexually abused by the father and whether there was an unacceptable risk of such abuse occurring if the children spent unsupervised time with him.

The court considered the principles for assessing risk of harm to children in family law proceedings, referencing previous Full Court decisions that emphasised the need to consider whether the evidence establishes an "unacceptable risk" and that this involves a "real and substantial" consideration of particular facts. The mother sought positive findings of sexual abuse by the father against both children, while the independent children's lawyer and the father argued against such findings and contended there was no unacceptable risk. The court specifically examined the mother's allegations regarding the father touching S over her swimming costume while applying sunscreen and touching N's penis on two occasions.

The court ultimately found that the evidence did not establish that the children had been sexually abused by the father, nor that there was an unacceptable risk of sexual abuse if they spent unsupervised time with him. Consequently, the court made orders for equal shared parental responsibility, with specific arrangements for the children's living arrangements, changeovers, special days, and communication between the parties. The orders also included provisions for the parties to not denigrate each other in the presence of the children, not discuss adult issues with them, and to ensure the children had no contact with a Mr R. The independent children's lawyer was to remain involved for 12 months to assist in explaining the orders to the children and providing them to the children's school.

Orders

Orders of the court

IT IS ORDERED

Parental responsibility

1.

The parties have equal shared parental responsibility for N born … April 1999 and S born … February 2003 (the children) in relation to the major long-term issues concerning them, including their education both current and future, religious and cultural upbringing, health and any changes to their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them.

2.

In the exercise of their equal shared parental responsibility concerning the children in relation to decisions as to any major long-term issues the parties are to consult each other and make genuine effort to come to joint decisions.

3.

If after consultation joint decisions are not able to be made as to an issue or issues the parties jointly are to consult a family law dispute resolution practitioner to assist them to resolve such issue or issues.

4.

The parties each be responsible or the children’s day to day care while the children are with each of them.

Living arrangements and changeovers

5.

The children live with each of the parties on the equal time week about basis including in relation to the March/April, June/July and September/October school holiday periods but not the Christmas school holiday periods.

6.

In relation to the Christmas school holiday periods the children spend the first half in or commencing in even years and the second half in or commencing in odd years with the mother and the second half in or commencing in even years and the first half in or commencing in odd years with the father, with the first half to commence after school on the last school day of term 4, the second half to commence at 9.00am on the middle day of the Christmas school holiday period or if no middle day at 9.00am on the day following the midpoint and end on the morning of the first school day of the next school term

7.

Changeover occur during school terms on Fridays after school at the children’s school, and except as provided in paragraph 6, at all other times at the parties’ homes with the party with whom the children have been spending time to deliver the children to the other party at the commencement of time and that party to deliver the children back at the conclusion of time.

Special days

8.

If the children are not already spending time with the mother on Mother’s Day, they spend time with her on that day from 9am until 5pm.

9.

If the children are not already spending time with the father on Father’s Day, they spend time with him on that day from 9am until 5pm.

10.

The children spend from 3pm on Christmas Day until 3pm on Boxing Day with the party with whom they are not spending the first half of each of the Christmas school holiday periods.

11.

The children (both) spend 2 hours on the birthday of either of the children with the party with whom they are not then spending overnight time, unless a child’s birthday is a changeover day, and if no other period be able to be agreed between the parties the 2 hours be from 4.00pm until 6.00pm.

Telephone communication

12.

The parties are to permit the children to have liberal telephone communication with the party with whom the children are not spending time, including on special days.

Parties’ ability to make other arrangements in writing

13.

Despite these orders, the parties may make other arrangements in relation to the children spending time with each of them, provided that such other arrangements are agreed in writing.

Parties’ communication

14.

All written communications between the parties concerning the children, including in relation to the parties’ equal shared parental responsibility, be by email or text message and not contain any subject matter other than as may relate directly to the children and the carrying out of these orders.

15.

To facilitate such written communication the parties as soon as practicable provide each other with an email address and/or SMS text message service number and give written communication of any change of such within 24 hours of any change.

Information

16.

The parties must notify each other as soon as practicable of any serious accident or injury concerning the children or either of them.

17.

The parties must notify each other of the names and addresses of any treating medical or health practitioner including any counsellor or psychologist the children attend and any hospital the children attend and authorise such to provide to the other at his/her request and expense any information or reports concerning the children provided that this order is sufficient authorisation to do so.

18.

The parties must authorise the children’s school to provide each other at his/her request and expense information concerning the children, copies of school reports concerning the children and circular or other written information concerning school activities usually provided to parents of children at the school provided that this order is sufficient authorisation to do so.

Attendance at the children’s school

19.

The parties may attend any school or extra curricular activities usually attended by parents such as parent teacher interviews, concerts, sports days and the like.

Physical discipline

20.

The parties must not us physical discipline in relation to the children nor permit any other person to do so.

Non denigration

21.

The parties must not denigrate each other or permit other persons to do so in the presence or hearing of the children.

Adult issues

22.

The parties must not discuss adult issues with or in the presence or hearing of the children and use their best endeavours to ensure that other persons do not do so.

Allegations in these proceedings

23.

The parties must not raise with the children the substance of the allegations in these proceedings.

Mr R

24.

The parties must ensure that the children do not come into contact with or have any communication with Mr R.

All other orders discharged

25.

All other orders concerning the children are discharged.

All other applications dismissed

26.

All other applications concerning the children are dismissed.

Independent children’s lawyer

27.

The independent children’s lawyer arrange for the children to meet with Mr P, family consultant, to enable him to explain to them these orders concerning their living arrangements.

28.

The independent children’s lawyer provide a copy of these orders to Mr I, Principal, V State Primary School.

29.

The independent children’s lawyer not be discharged for 12 months.

Liberty to apply

30.

The parties and the independent children’s lawyer have liberty to apply by arrangement directly with the Associate if confusion should arise as to the intended operation of these orders or if any of them is ambiguous or unclear so as to require clarification.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In Johnson & Page, the Full Court did not cast doubt upon these observations by Mr Fogarty. Indeed, the Full Court emphasised (at [66]) the concluding part of the passage set out above, namely that there is a requirement to ask whether the evidence establishes an unacceptable risk. In Lindsay & Baker (2007) FLC 93-347, Bryant CJ referred with approval to [78] - [80] of the first instance decision then under appeal of Carmody J describing at [3] those paragraphs as “a useful summary of what is required”. For my part, [79] and [80] are of particular practical assistance:79. The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.80. Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it. In Nikolakis & Nikolakis (above) the Full Court at [96] reinforced that the unacceptable risk inquiry involves a “real and substantial” consideration of whether or not “particular facts” raise an unacceptable risk. Ms Hogan of Counsel, for the independent children’s lawyer, in her written submissions submitted that on the evidence I would not conclude that the children have been sexually abused by the father or that there is an unacceptable risk to the children of sexual abuse if they spend unsupervised time with him. In oral argument, Ms Hogan supported positive findings that the children have not been sexually abused by the father and there is no unacceptable risk to them of sexual abuse by him. Mr Selfridge of Counsel, for the father, urged to similar effect. Mr O’Meara of Counsel, for the mother, urged that there be the positive finding that the father sexually abused S at the V swimming area, on the day of the Amberley Air Show, by touching the outside of her swimming togs with his fingers near her vaginal area while applying sunscreen to her, and sexually abused N by touching his penis on two occasions while rolling him over in bed, the first occasion being sometime during 2009 and the second occasion two weeks before N’s police interview on 10 January 2010 being “the week before last week”, but that if I should not make those positive findings the mother did not contend that any other circumstance would warrant the conclusion of unacceptable risk of sexual abuse to the children by the father. Against that background, I will deal first with the two positive findings sought by Mr O’Meara, and then more generally with the other allegations and disclosures made by the children. S disclosed to Police Officer W on 7 January 2009 that the father had touched her “in the private bits”. She said this was at the river when she and N went for a swim, the touch was “with his fingers”, “on top” of her “swimming undies”, before she went into the water. She said it was “near the cruiser” (the father’s Toyota Landcrusier) “and I was putting sunscreen on” but the father did not let her put sunscreen on and she had to go into the river without it. She said this occurred “about two weeks ago” and that the father “opened the door” of the crusier and “then he just touched me”: ex 7, pp4-8.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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