Latner and Simmel
[2019] FamCA 972
•17 December 2019
FAMILY COURT OF AUSTRALIA
| LATNER & SIMMEL | [2019] FamCA 972 |
| FAMILY LAW – CHILDREN – Best interests of the child – Where allegations the father has physically and sexually abused the child – Whether unacceptable risk of harm posed by the father to the child – Where father and Independent Children’s Lawyer contend that the Joint Investigative Response Team interview is unreliable and the Court should be cautious in making findings on the basis of the child’s answers to questions asked in it – Where real questions arise about the reliability of the child’s account of the father’s conduct – Where the child’s account is a significant factor in determining whether a positive finding that the father sexually abused the child and in determining risk of sexual abuse – Where it is found that the father does not pose an unacceptable risk of harm to the child – Where orders made to foster the child’s relationship with the father. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 65D, 65DAA, 117 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Deiter & Deiter [2011] FamCAFC 82 Goode & Goode (2006) FLC 93-286 Johnson & Page [2007] FamCA 1235 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92 PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold v Penfold(1980) 144 CLR 311 W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235 |
| APPLICANT: | Ms Latner |
| RESPONDENT: | Mr Simmel |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 2646 | of | 2018 |
| DATE DELIVERED: | 17 December 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 23, 24 & 25 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Haughton |
| SOLICITOR FOR THE APPLICANT: | Family Focus Legal Pty Ltd |
| SOLICITOR FOR THE RESPONDENT: | Mr Simmel as a self-represented litigant |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Scarlett |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The mother and the father have equal and shared parental responsibility for their child X born … 2011.
X is to live with her mother.
Whenever X is with one of her parents, that parent is responsible for her day to day care.
The parents are to agree about the time X is to spend with her father. If the parents do not agree, then X will spend time with her father as follows:
(a) For three months (until 17 March 2020) every second Saturday for six hours as agreed by the parents. If the parents don’t agree it will occur from 10.30am to 4.30pm;
(b) For another three months (until 17 June 2020) every second weekend from 10.30am to 6.30pm on Saturday and 10.00am to 2.00pm on Sunday;
(c) During the school term for another six months (until 17 December 2020) every second weekend from 10.00am on Saturday to 5.00pm on Sunday;
(d) All of the time X spends with her father in 2020 will be in Sydney;
(e) During the school term from January 2021 and continuing into the future each second weekend from the time X is collected from after school care on Friday afternoon to 5.00pm on Sunday;
(f) From July 2020 X will spend time with her father during the school holidays as follows:
(i)X will begin spending time with her father in the July school holidays in 2020 for four days and nights in a row on dates as agreed between her parents;
(ii)X will spend four days and nights in a row with her father in the October 2020 school holidays on dates as agreed between her parents;
(iii)In the Christmas school holidays 2020 X will spend two groups of four nights in a row with the father on dates agreed between her parents;
(iv)Starting in the April school holidays in 2021, X will spend school holiday time with her father and every second year after that for the school holidays at the end of Terms 1, 2 and 3 starting from after school care on the Friday when school finishes to midday on the middle Saturday; and
(v)From 2022, X will spend school holiday time with her father starting from midday on the middle Saturday to 3.30pm on the last day of school holidays (including any pupil free day) and every second year after that for the school holidays at the end of Terms 1, 2, and 3.
(vi)This pattern will continue so that X will spend time with her father in the Term 1, 2 and 3 school holidays in the first week in years ending in an odd number and the second week in years ending with an even number.
(g) At Christmas X will spend time with her father:
(i)On Christmas Day 2019 for four hours as agreed between her parents. If the parents do not agree it will be from midday to 4.00pm; and
(ii)In 2020 midday on Christmas Day to 5.00pm on Boxing Day.
(h) In the Christmas school holidays X will also spend time with her father:
(i)From 2021 and every second year after that from the time school finishes for the year until midday on Christmas Day and from midday on New Year’s Day to midday on 15 January; and
(ii)From 2022 and every second year after that from midday on Christmas Day to midday on New Year’s Day and from midday on 15 January to the last day of the school holidays in January.
(i) X will spend time with her father from 5.00pm on the day before Father’s Day to 5.00pm on Father’s Day every year.
X will live with her mother whenever she is not spending with her father. X will also spend time with her mother from 5.00pm on the day before Mother’s Day to 5.00pm on Mother’s Day every year.
The father is only allowed to take X outside Sydney on his weekend time from 2021 once a month.
Whenever X is spending time with her father in any place other than his home, he must tell X’s mother on the Wednesday before that weekend where he and X will be staying.
Whenever X stays overnight with her father, he must make sure she has her own bedroom.
Each of the parents is allowed to telephone X when she is with the other parent and both parents must make sure that X can ring the other parent when she wants to.
The father’s time with X during the school term starts up again whenever school starts and continues in the same pattern as if there wasn’t a holiday.
If X spends time with her father away from Sydney during the school term, the parents are to agree on a suitable place for the father to return X to her mother.
Whenever X spends weekend time with her father he is to pick her up from after school care on a Friday afternoon at 4.00pm and deliver her to her mother’s home at the end of this time, except when the parents have agreed to X being delivered to her mother somewhere else.
Each parent must tell the other:
(a) If X is receiving treatment from a doctor including being prescribed any medication; and
(b) If a parent changes home, the new address and details of anyone else living there within three days of any change.
If X goes to hospital or receives urgent medical care when with one parent that parent must tell the other as soon as possible.
Both parents are able to obtain information about X from any doctors treating her.
If one parent wants to take X out of New South Wales that parent must tell the other parent all the details of that travel four weeks in advance.
Neither party is allowed to take X overseas without the other parent’s written agreement.
Neither parent is allowed to discuss this court case or anything about it with X.
Within seven days both parents must contact B Group on … to arrange for their participation in the Keeping Contact program. Each parent must do everything they are asked to do by the program directors at B Group to complete the program.
The Independent Children’s Lawyer is allowed to provide a copy of these orders to B Group.
Within 30 days the father must pay to Legal Aid NSW the sum of $1,650 for his contribution to the Independent Children’s Lawyer’s professional costs, unless Legal Aid NSW agrees to some other date.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Latner & Simmel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2646 of 2018
| Ms Latner |
Applicant
And
| Mr Simmel |
Respondent
REASONS FOR JUDGMENT
Introduction
On 14 August 2017 the chain of events that brings the parties before this Court began. On that day the parties’ daughter then aged five (“the child”) was believed to have been overheard at school telling another child about her father’s sexually abusive conduct.
The adult who overheard this conversation appropriately took steps to ensure that it was reported to the Department then known as Family and Community Services (“the Department”).
Officers of the Department together with police then commenced a JIRT[1] investigation which included interviewing the child the following day at school. In the course of the interview the child made statements including that the father had punched her, touched her using a puppet and licked her in the genital area. There were however a number of problematic features of the child’s statements and the JIRT officers concluded that the complaint was not “substantiated”.
[1] JIRT - The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.
The allegations of sexual abuse brought the parents’ relationship to an end and for the following year the child spent no time with the father. Since August 2018 the father has spent limited supervised time with the child.
Each of the parents is to be commended upon their approach to the parenting dispute. They appear to have shielded their child from the dispute and the allegations, of which the child apparently has no memory. The child has been able to maintain a satisfactory relationship with the father and shows no signs of distress arising from these proceedings.
Each of the parties accepts that the sole matter which will determine their dispute is the question of whether there is an unacceptable risk of harm posed by the father to the child. It is common ground between them that if the father is found to have sexually abused the child or there is a real risk that he will do so in the future it is not in the child’s interests to have a relationship with him. Conversely the parties agree that if the father is not found to pose an unacceptable risk of harm to the child she will benefit from having a meaningful relationship with him that may be fostered by orders for her to spend substantial time with him and for the parents to share parental responsibility for her.
Background
The mother who is 31 and the father who is 30 commenced a relationship in 2010. The mother became pregnant with the child fairly early in the relationship and thereafter the parties began living together in the maternal grandparents’ home.
The parties’ only child was born in 2011. For some time the family continued to live with the maternal grandparents.
The family moved to their own home in about mid-2013. It appears that the child was raised in a generally happy and secure home environment with both parents being involved in her care.
The child commenced school in 2017 and as both parents were working she attended an out- of- school- hours (“OOSH”) service before and after school.
As foreshadowed in the introduction to this judgment there was an event of great significance for the family on 15 August 2017. On that day each of the parents was informed that the child had made disclosures of physical and sexual abuse by the father in the course of an interview with JIRT. This interview had come about following a report made by OOSH staff that the child had been overheard the previous day alleging sexual abuse of her by the father.
Police also interviewed the father on 15 August 2017. He was not charged with any offence but a provisional Apprehended Domestic Violence Order (“ADVO”) was made for the protection of the child restraining him from having any contact with her except through a legal representative.
Although the parties ceased living together on the day they became aware of the allegations against the father they did continue to communicate civilly with one another including in relation to matters concerning the child. The father at least had an expectation that after the ADVO proceedings which he was defending were complete the family may live together once again.
On 9 September 2017 JIRT revisited the allegations but no further information had come to light.
On 27 October 2017 a further report was made to the Department in relation to a story the child was said to have written at school which caused some concern to a mandatory reporter.
In November 2017 the Department closed the file in relation to the investigation.
On 9 April 2018 the application for a final ADVO against the father for the protection of the child was dismissed following hearing.
On 26 April 2018 final orders in relation to the parties’ property were made with their consent in a Local Court. Essentially these orders provided that the father was to buy out the mother’s interest in their former family home and the mother was to receive a share of the father’s superannuation interest.
The mother has continued to live with the maternal grandparents and other family members since separation.
In June 2018 the mother commenced these parenting proceedings which were allocated to the Magellan protocol[2].
[2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
In August 2018 interim orders were made with the parties’ consent that the child live with the mother and spend time with the father supervised by a private agency at the father’s expense or at a contact centre when time at the centre became available. Supervised time commenced two weeks after these orders were made.
Shortly after the child began spending time with the father it was reported at the OOSH service that the child had been seen putting her hands down another child’s pants. Although the mother was made aware of this complaint no report was made to the Department.
In November 2018 the parties were assessed by a family consultant for the purposes of a family report.
In mid-December 2018 the child began spending time with the father at a contact centre.
The Family Report was released on 14 January 2019 and on 4 February the proceedings were expedited and trial directions made.
In about May 2019 the father sold the former family home and shortly thereafter purchased a home in a regional area a distance of about three and a half hours driving time from the mother’s home. Although the father did not inform the mother about his intention to move to another area she became aware that the former family home was to be sold and asked through her solicitor that the father inform her of his new address. The father did not respond to these requests.
does the father pose an unacceptable risk of harm to the child?
From the time the allegations of physical and sexual abuse by the father against the child were first made the determinative issue has been whether the father poses an unacceptable risk of harm to the child.
For reasons which will become clear in this judgment there is no dispute between the parties and the Independent Children’s Lawyer (“ICL”) agrees that if the father does not pose such a risk it is in the child’s best interest for orders to be made to foster the relationship between the child and father. It was also common ground at the hearing that if this risk of harm exists it is not in the best interests of the child for orders to be made to promote the relationship between the father and the child.
It had appeared to me on the basis of the mother’s affidavit and answers given by her in the course of cross-examination that she did not positively assert the father poses an unacceptable of harm to the child but accepted it was a matter that required resolution. It then became clear in the course of an interchange between counsel and myself at the end of the evidence that the mother does contend that such a risk exists. Later in submissions made on her behalf the mother went further and contended that the evidence is capable of supporting a finding that the father had sexually abused the child.
In Deiter & Deiter[3] the Full Court explained in the context of interim parenting orders that risk assessment comprises two elements. The Court said at [61]:
Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
[3] [2011] FamCAFC 82.
It is not a matter of dispute that the severity of the impact upon the child if she had been or were to be sexually abused would be profound. As observed by the family consultant in her report “being subjected to sexual abuse during childhood can be associated with severe mental health difficulties in later life, including post-traumatic stress disorder as well as increased likelihood of substance use. In the present, it may have implications for [the child]’s well-being and her capacity to form relationships with important adults”.
The family consultant also explained that if the child has been or were to be sexually abused then any contact between her and the perpetrator “may invite the possibility for [the child] to believe that [the father]’s alleged behaviour is “normal” and deemed acceptable in some way. It may also undermine the message to [the child], that, if abuse occurred, it was not her fault”.
In other words it is beyond dispute that the impact upon a child caused by sexual abuse is of the most severe order. For this reason if it were found that the father poses a risk of harm to the child on this basis such a risk could not be mitigated in any manner.
The alleged harmful events under contemplation at the commencement of the final hearing were physical and sexual abuse of the child. By the completion of the hearing the mother had abandoned any contention that the father posed a risk to the child on the basis that he may physically abuse her.
For these reasons the matters to be resolved are whether the father sexually abused the child as the mother contends and whether there is an unacceptable risk that the child may be harmed as a result of sexual abuse by the father in the future.
In M v M[4] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
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….
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….
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.
[4] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
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 362.
In Johnson & Page[5] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[5] [2007] FamCA 1235 at [72].
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[6], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[6] (2005) FLC 93–235.
It is the mother’s case that the evidence is capable of supporting a finding that the father sexually abused the child. This abuse is alleged to have been constituted by the father punching, touching by use of a puppet and licking the child in the genital region.
It is also the mother’s case that even if there is no positive finding that the father engaged in this behaviour there is sufficient evidence to raise an unacceptable risk of harm arising from sexual abuse on this basis. It is conceded on behalf of the mother however that there is no other evidence that would support a finding of unacceptable risk of harm other than the evidence that she says supports a positive finding that the father did sexually abuse the child as alleged.
The evidence adduced in relation to the contentions concerning sexual abuse is as follows:
·The child displaying patterns of behaviour and suffering from a urinary tract infection in early 2017 which the mother contends is consistent with having been sexually abused
·The content of child’s complaints about the father’s conduct overheard by the OOSH staff member on 14 August 2017
·The child’s answers to questions in relation to the father’s conduct given in the JIRT interview on 15 August 2017
·The content of a story said to have been written by the child in October 2017
·The child’s behaviour in August 2018 at OOSH
In the course of submissions it was conceded on behalf of the mother that the story said to have been written by the child in October 2017 could not be probative in relation to the question of whether the child had been sexually abused or was at risk in this regard.
It is the father’s case with which the ICL agrees that there is insufficient evidence to support a positive finding that he sexually abused the child or that there is any risk that this may occur.
The father has denied at all times that he sexually abused the child or did anything untoward of this nature.
In making a determination as to whether the evidence supports a positive finding that the alleged abuse occurred and in assessing whether there is an unacceptable risk of harm arising from sexual abuse I make the following observations and findings concerning the evidence.
The child’s behaviour in 2016 and 2017 hospital admission
The evidence concerning the child’s behaviour which the mother contends is suggestive of the child having experienced sexual abuse arose in the course of cross-examination. The mother had not deposed in her affidavit to any matters relating to the child’s behaviour prior to August 2017 but at the commencement of the hearing it was foreshadowed that she would seek leave to adduce additional evidence of these matters. Ultimately she did not seek that leave but was cross-examined about these matters which she indicated through her counsel provided sufficient material for consideration by the Court.
The matters that were revealed under cross-examination relating to the child’s behaviour may be summarised as follows. In 2016, the year prior to the child commencing school the mother had concerns about the child’s “major body image problem” manifested in the child’s statements that she was “fat” and attempts to throw up after eating which were thwarted by the parents. In her first year of school, 2017, the child had apparently done a drawing in which the mother says the child depicted herself as fat. In February 2017 the mother spoke to the child’s class teacher raising concerns that the child was coming home from school with her lunchbox full of food over a period of a couple of weeks. The mother was also concerned at about this time that when the child became frustrated she would “stick her fingernails into her arms” but would not communicate about her concerns which the mother considered to be ‘self-harming” behaviour.
The mother agreed under cross-examination with a record from the school indicating that the child’s teacher told her that the child was not displaying any of this behaviour at school that she had observed.
The mother does not adduce any evidence to suggest that she referred the child to any professional or that any expert had been consulted about whether this behaviour raises matters of concern.
When cross-examined the family consultant was asked to express an opinion about this behaviour and in particular whether it could be consistent with the child having been sexually abused. The family consultant expressed the very firm opinion that there are no fixed indicia of child sexual abuse and that there was very little that could either confirm or negate child sexual abuse having occurred. The family consultant agreed that these behaviours possibly were symptoms of the child experiencing anxiety and opined that sexual abuse can render a child anxious. The family consultant also noted that this behaviour began at around the time the child started school and the tenor of her evidence was that the behaviour could be consistent with this significant change in the child’s life.
Having regard to the evidence of the family consultant and in the absence of any other expert evidence I attach little weight to the mother’s observations of the child’s behaviour in 2016 and early 2017 in determining whether the child has been sexually abused.
The other matter which the mother regards as concerning relates to the child’s presentation to a hospital emergency department in February 2017. The mother agreed that the child was admitted to hospital due to severe tonsillitis and suspected appendicitis though there were also concerns that the child had a sore “vagina” and pain when urinating.
The mother was cross-examined about a record produced by the child’s school indicating that she told the child’s teacher that “the hospital questioned if [the child] had been touched”. The mother said under cross-examination that she did not recall any conversation along these lines at the hospital.
The records of the hospital in relation to the child’s presentation are very minimal and do not include any record in relation to questions being raised as to whether the child had been “touched”. The final report in relation to the presentation indicates that the reason for presentation was “sore throat/fever”. The report also records reports of the child having diarrhoea and screaming when voiding over the past week and also that the child had presented with a generalised rash. The admission summary indicates that she presented with a viral illness and that she was discharged after a throat swab was taken.
I am of the view that there is no probative value to the evidence of the hospital admission in relation to the question of whether the child has been sexually abused.
The child’s statements about the father’s conduct – 14 August 2017
The circumstances in which the child was overheard allegedly making a complaint about the father’s conduct in my view requires close scrutiny as this is the genesis of the investigation by the Department and obtaining an ADVO for the child’s protection. If accepted as accurate the complaint may amount to a serious allegation of sexual abuse.
The records of the organisation that operates the OOSH service attended by the child contain a single brief document in relation to this matter. This document is titled “Incident, injury trauma or illness record” (“the incident report”) and was created by an “educator” (“the witness”) employed at that service. The record was made at 6:39pm on 14 August 2017 in relation to an incident said to have occurred at 3:20pm. The record states:
[Name of witness] (one of our educators) noticed [the child] pointing at her genital area whilst talking with other students on the steps inside of the hall. When [the witness] walked over she was pointing at her genital area and told another student “my dad lick me here”. Then [the child] said “he lick me all over my body” she did this whilst pointing all over her body. Another child asked her “did he lick you in between your butt” [the child] said “yes” (as written)
A second record in relation to the incident is a statement given to police by the witness contained within the police brief of evidence from the Local Court file in relation to the ADVO proceedings against the father. The witness gave oral evidence in the ADVO proceedings and was cross-examined but a transcript of her evidence was not available in these proceedings. The witness did not give evidence in these parenting proceedings.
In her police statement the witness deposes that she was supervising the OOSH program on 15 August 2017[7] which was held in a school hall with around 50 children present. The witness describes the environment as very noisy and deposes to being unable (presumably initially) to hear the conversation between the child and other children. She says that her attention was drawn to the child who was engaged with other children in conversation and had spread her legs and was “pointing to her private part” which the witness felt was inappropriate.
[7] This must be an error as all records indicate these events occurred on 14 August 2017.
The witness deposes to walking over to the child and telling her “Stop stop…that is not a good idea to point to this part”. At that point the witness deposes that the child smiled at her and said to the other children “my dad, he lick me here” and pointed to “her private part”. The witness deposes that the child then said “he lick me all over the body” and pointed to various parts of her body. She says that another child asked “does he lick you all over your body, even in the middle of your butt?” to which the child responded “yes”. The witness does not say when this event was said to have occurred but says that she first raised it with other staff and a regional manager at 6.30pm.
Although the evidence of the witness was not tested in these proceedings in my view there are a number of features about her statement that must be considered in determining the reliability of her account of the words said to have been used by the child on this occasion.
First, an examination of the witness’s statement reveals the use of syntax in parts, which in my view is quite distinctive. In particular this witness expresses herself in the present tense in unusual circumstances including for example the following;
“she point to the left arm and chest and use her hands on her body”
“at that time, my assistant coordinator [name] she call out to me and asked me to take the children outside”…
“I call the other coordinator [name] and then I call my regional manager.
After I get off the phone [assistant coordinator] make the mandatory report to the helpline”….
“the following day, [the child] she not attend the program, but she there every day after that”.
(emphasis added)
The same distinctive use of language is also contained within the OOSH incident report. It is of significance in my view that the same syntax is adopted when this witness is reporting on the conversation that she overheard between the child and other children. For example the witness reports overhearing the child say “my dad, he lick me here” “he lick me all over the body”.
In determining whether it is likely that the child adopted this same distinctive use of language I have the benefit in these proceedings of having heard the child speak at length when interviewed by JIRT the following day. She did not on any occasion during that interview speak in this particular manner which I consider distinctive.
For this reason I consider it appropriate to take caution in relying upon the witness’s record of the words said to have been used by the child. There is a real risk in my view that the witness has paraphrased the child’s words into her own manner of speaking rather than accurately recording the actual words spoken by the child.
It is also to be remembered that according to the witness’s police statement the environment in which her attention was first drawn to the child was very noisy and it appears that she was unable to hear the initial conversation between the child and other children. As will become apparent when considering the JIRT interview the following day, the child gave many answers in that interview which include references to her father “kicking” her. For reasons I will come to it seems most likely that the references to “kicking” are a description of the child and father practising karate together. It is in my view possible that the witness misheard the child to say the father “licked” when the child may have said that he “kicked” her.
Other questions also arise about the reliability of the witness’s memory of the actual words spoken by the child. There appears to be no doubt that the witness was concerned about the child from the time she first observed her engaging in conduct which the witness regarded as inappropriate. I have some concern about whether the witness’s view about the child’s conduct may have had some influence over what she believed she heard the child say. The witness herself provides no other context about the circumstances in which the child was having the conversation.
Another matter I consider relevant in assessing the reliability of the witness’s account of the words spoken by the child is that the first record of these words was made by the witness three hours after the conversation was overheard.
There are also some discrepancies between the incident report and the police statement including in relation to the exact words reported to have been spoken by the child. It is also curious that the police statement which was made nine days after the incident is more detailed than the incident record made on the same day.
In my view another unusual feature of the police statement is that the witness deposes to moving away from the child at a critical point in the conversation, having overheard a further question raised by the other child in the conversation but not waiting to hear the answer. These matters in the police statement which are not included in the incident report are as follows:
[After the other child asked “does he lick you all over your body? Even in the middle of your butt?” to which the child answered “yes”]
[The other child] said “even in the middle of your legs?”
At that time my assistant co-ordinator [name] she call out to me and asked me to take the children outside. I got up off the step and went to [assistant co-ordinator] and I had a conversation with her.
(I said “ok but can you go over to the children and listen to what they say. They are not talking about appropriate things”).
I then went outside with the other children.
It seems unlikely in my view that if the witness was certain she heard the last question asked by other child in the conversation she would have not remained to hear the answer rather than request another person to come and listen to the conversation.
The fact that only part of the conversation said to have taken place between the children is recorded in the incident report and my observations concerning the further alleged conversation suggests that the witness may have had some uncertainty about the exact terms of the children’s conversation.
Finally, although I am unable to make an assessment of the witness myself an inference may be drawn that the magistrate who heard the application for ADVO may not have placed significant weight on her evidence as the application was dismissed.
I am unable for the foregoing reasons to be satisfied to the requisite standard that the child did say the words attributed to her on 14 August 2017 by the witness though I accept that the witness believed she overheard the child saying words along similar lines.
However, even if words along similar lines were spoken by the child, I attach weight to the view of the family consultant (who as explained later has experience in child sexual assault assessments) about this matter. In her opinion the conversation overheard by the witness is not necessarily as alarming as may appear at first blush. It is the family consultant’s view that “context [in which the complaint is made] is often everything”. As she observed in cross-examination, the child was at a very noisy OOSH service where she is likely to have interacted with children of varying ages and varying experiences when she engaged in this conversation.
The child herself also did not actually complain that the father licked her in the genital region but is reported to have pointed there. The words spoken by the other child in the conversation (asking the child about whether she was licked “in between [her] butt”) is not in the view of the family consultant necessarily so greatly concerning. She also does not draw a significant inference from the child’s response (saying “yes” in agreement with the question) as she opines that children often are agreeable to be part of a conversation. In her view the child’s agreement does not necessarily indicate that this was something the child had experienced.
The JIRT interview – 15 August 2017
The child then aged six was interviewed by JIRT officers at her school the following day, 15 August 2017. The interview which was played in the proceedings and transcribed took place over almost an hour. In the course of that interview the child made statements in answer to questions which include the following:
·[A195] “my daddy hurts me when he punches me, he kicks me or he, um, um, um gets me in the rude part”.
·[In response to Q313] “so yesterday at OOSH I’ve been told that you told someone that dad licked you over your vagina” the child answered “he did”.
·[A406] “my daddy just grabbed a puppet and do it in my rude part”.
Each of these statements summarises the matters which the mother alleges which constitute sexual abuse, being that the father punched or kicked, licked and used a puppet to touch the child in the genital region. It is essentially the mother’s case as I understand it that the child was being truthful when she gave these answers and many other answers to questions in the JIRT interview.
It is the case of the father with which the ICL agrees that the JIRT interview is unreliable and that the Court should be very cautious in making findings on the basis of the child’s answers to questions asked in it.
The approach of the parties to the JIRT interview was to attempt to demonstrate by objective evidence the accuracy of information given by the child that aligned with that parent’s position. In this way the mother sought to establish the child was truthfully relating actual events and the father sought to establish the child was not giving an account of any real event. For example the child refers in her interview to the father coming into her bedroom and turning on a fish tank light, so there was cross-examination to establish whether it was correct that the child had a fish tank with a light in her bedroom. It was then argued that the correctness of the child’s answer about this matter provides support for the mother’s contention that the child’s account of events she says occurred when she was in bed are accurate. As the child also introduced the idea in her interview that the father touched her by using “a puppet of him” there was a great deal of cross-examination concerning the presence of puppets at the parties’ home at the time. It was argued by the mother that I should find consistent with her case that there were puppets at the family home which it is contended corroborates the child’s allegation as to the assault by use of the puppet.
In some cases I may be able to make findings about the truth or otherwise of details contained in the child’s answers including where that truth or untruth is agreed by both parties. Such findings do not necessarily assist in resolving the central question about the interview being whether the child’s answers accurately relate to real events. For example the child’s first apparent disclosure of the father’s misconduct is a statement that he hurts her when he “gets me in the rude part” and in answers to further questions the child persistently uses the expression “the rude part”. Both parents agree that the expression “rude part” was not used at all in their home and the mother was quite emphatic in maintaining that discussions about the genital area in the household involve the use of correct language. It does not necessarily follow however that the child’s account that the father “gets me in the rude part” is not a true complaint of the father making contact with the child’s genital region.
Further, overall the child’s answers are confusing, at times internally contradictory and inconsistent with other agreed facts. She does not give a coherent narrative.
For the foregoing reasons it is not, in my view, appropriate to analyse individual answers given by the child to determine their accuracy in the manner described. Rather, I propose to look at the child’s answers holistically and consider the features of the interview overall to determine the weight to be attached to it when considering whether an allegation of sexual abuse perpetrated by the father has been proved to the requisite standard.
For the following reasons I consider that real questions arise about the reliability of the child’s answers as proof of the allegations made against the father.
·As noted in the Magellan Report[8] the child demonstrates limited understanding of time and it is virtually impossible to gain an understanding of the context in which she reports that the father sexually abused her. There are many examples of the child’s poor understanding as to temporal matters. For example she was unable to nominate the day of the week of the interview but said that the father “gets me in the rude part” on “Mondays” and “Fridays” and a short time later said that he did it “on Wednesday”. She then specified that it happened “a long long long long time ago. I was four”.
[8] A Magellan report sets out the involvement of The Department with the family including assessments and findings of JIRT investigations.
·As also noted in the Magellan Report the child appears to struggle with the concept of truth and lies. In this regard I have particular concerns that at the end of the interview there were the following questions and answers:
o Q503 Have you told me the truth today?
o A Um no.
o Q504 You haven’t told me the truth today?
o A No, because that was all, the last weekend and that, that was in my daddy’s dream.
o Q505 Ok. But do you remember before turned, well, when we started recording and we started talking today, we shook hands? Do you remember how we shook?
o A (No audible reply)
o Q506 And we told, we said that we were only going to talk about the truth and things that really happened?
o A (No audible reply)
o Q507 Do you remember us talking at that?
o A Nope.
o Q508 You don’t remember that?
o A (No audible reply)
o Q509 Remember how we talked about truth and lies and you told me that, um a lie’s not telling the truth?
o A Um---
o Q510 Remember we shook hands and we said that we’re only gunna talk about the truth and ---
o A Uh-huh.
o Q511 ---things that actually happened?
o A Huh?
o Q512 Do you remember that?
o A Ah, nope.
o Q513 No? Have you told me the truth today?
o A Nope.
o Q514 Have you told me any lies today?
o A Yeah, a lie.
o Q515 What have you lied about today?
o A Um, that was, that, that, that thing what didn’t, that, that thing was in my dad’s dream.
o Q516 What thing was in your dad’s dream?
o A Um the that thing I told you, my dad told me in the morning when was going for thing, um, he told me that was his dream.
o Q517 Right. So, so did those things that we’ve already talked about today, about Dad punching you in the vagina and licking you on the vagina and using the puppet to touch you on the vagina, did those things happen or not?
o A That was in the part of his dream.
o Q518 In your dream or Dad’s dream?
o A Dad’s dream
o Q519 Ok. And how do you know about Dad’s dream?
o A Because Daddy, when we was going fishing my daddy telled me.
·Many of the child’s answers are tangential or contain strong elements of fantasy. For example, in one answer [A222] the child says “he know what colour tears I got” and in another [A368] the child says “my daddy was dressed like the boogie man” and “my mum recognised, um, my dad and my dad got some boogie man costume because the last, for, for work day, um, my dad buyeded it and my mum saw”. When the interviewer attempted to ask to engage the child with conversation about her father’s use of the puppet, the child’s answer included “my daddy was thinking about having dreamed about doing that and then last week his dream came true and he done it”. At the end of the interview the child said she knew about the father’s dream because he told her when they were fishing. When asked where they were fishing the child answered “um, there, see, there was a very huge lake with crocodiles in it, so, so we can, so we can fish for, for, for, for croc, crocodile food, so for fish, so we, so we, so my dad, so the fi, the dogs can eat it because be, we needed one fish for the, um, dogs so the dogs can get anymore good” (as said).
·The child does not give a coherent narrative. The family consultant who has had extensive experience working in child protection including as a clinician in the Child Protection Unit opined that “it’s almost impossible to obtain a “coherent narrative” from a child of this age for various reasons including the fallibility of children’s memories and the fact that children are very easily suggestible.
·The family consultant identified a number of answers given by the child which she opines demonstrates suggestibility. On each of these occasions the interviewer asks the child about events in a manner which assumes that the event had happened which the family consultant opines would have encouraged the child to answer accordingly. For example, the child said that her father “sometimes hurts me” and when asked to tell the interviewer more about that the child said that he “punches” “kicks”, or “gets” her “in the rude part”. The interviewer then changed the language used by the child and asked about when the father “touched you on the rude part” even though the child had not used the word “touch”. As explained by the family consultant this would have encouraged the child to answer as if it were a fact that the father “touched” her.
·Similarly, and in my view of greater concern, it is the interviewer who introduces to the child the suggestion that the child herself had made a complaint that the father “licked her over her vagina” even though it had never been reported that the child used these words. It is to be remembered that on the day prior to the interview it was reported that the child pointed at her genital area and told another student “my dad lick me here”. In her JIRT interview the child did not make any complaint of this type until she was asked the following question (Q313) “so yesterday at OOSH I’ve been told that you told someone that dad licked you over the vagina” even though there was no evidence that the child did say this to someone. The expert considered this as an example of the questioner “adducing” the concept that the child had said these words which would encourage the child to answer accordingly. The child’s answer to this question (predictably according to the evidence of the family consultant) is “he did”.
·The interview was lengthy and it appeared at times that the child was not concentrating on the questions and was becoming distracted. For example at [Q42] the interviewer reminded the child to look at her when she was talking. At [Q425] the interviewer told the child to stop banging the table. At [Q459] the interviewer told the child to “put your bottom on the chair” and at [Q496] the interviewer told the child to sit up on the chair. At this stage in the lengthy interview I gained the clear impression that the child was not focusing or concentrating on the questions. The family consultant said that she gained the impression the child wanted the interview to be over.
·At times I gained the impression that the child may have been seeking affirmation from the interviewer about the correctness of her answer when she looked up at the interviewer and used a questioning tone (for example at [A199]).
·At times the child showed some confusion about naming body parts. For example, although as earlier observed the child referred to “the rude part” as the place in which she had been hit or punched (which the parties ultimately appeared to accept related to karate practise) in the child’s household this was not an expression used to describe the genital area. The questioner tried on numerous occasions to have the child explain the meaning of “the rude part”. At one stage the interviewer had the child indicate “the rude part” on a diagram of a girl’s body but there is some ambiguity about the body part identified. It was then the interviewer who suggested that “the rude part” should be referred to “by its proper name” which the interviewer nominated as “the vagina”.
·In the course of the proceedings both parties appeared to accept that there was a benign or innocent explanation for the child’s allegations that the father “punches”, “kicks” or “gets” her “in the rude part”. In abandoning her allegation that the father had physically abused the child the mother appeared to accept that it was most likely the child at this stage was describing the father and child sparring with one another as part of the child’s karate practise and the father conceded in oral evidence that he may have accidentally kicked the child in the groin on one of these occasions. There were many references made by the child to the mother being present when this kicking or punching occurred in the lounge room which is also consistent with the child reporting upon karate practise that occurred in that room and in the presence of the mother.
There was no real challenge to the opinion of the family consultant in relation to the matters relating to the JIRT interview except her opinion that the interviewer had been suggestive which was likely to have resulted in the child agreeing with the interviewer and that this likelihood affects the reliability of the child’s answer.
Under cross-examination the family consultant expanded upon her evidence relating to suggestibility. She confirmed that if it is put to a child that the child has previously made a particular statement that something had previously happened, the child tends to agree, even if it is incorrect. The family consultant supported her opinion by reference to research about this topic when she gave the following oral evidence:
Well, we know it’s very powerful when adults tell children that something happened or seem to assume that something happened, that children are very likely to agree… There’s a – a bit of an old study now where children were – an adult talked about a rabbit that got loose in the school. It hadn’t, but an adult talked as if that had happened and the vast bulk of the children this age then went on to give a narrative about a rabbit that got loose in the school. So this is the sorts of things I’m talking about that a child will assume.
The family consultant returned to this research later when she talked about “source monitoring errors” which she explained occurs when a person confuses the source of something that he or she has heard to suggest that he or she had experienced the event personally. She explained that in the case of the story about the rabbit which had been consciously planted as a false memory in the minds of the children interviewed “something like seventy per cent of the children” said they saw the rabbit “with my own eyes” “and then interviewed several weeks later and children were saying that they saw it with their own eyes and – it established all sorts of stories around the rabbit.”
In my view each of the foregoing matters are relevant to the question of reliability of the child’s account in the JIRT interview. In summary they include the length of the interview and distractibility of the child, the child’s struggle with the concepts of truth and lies, the lack of a coherent narrative or context, the answers which are tangential or contain strong elements of fantasy, the suggestibility inherent in many of the questions, the child’s confusion around the notion of time and naming parts of the body and the parties’ agreement that there is a benign explanation for some of the child’s answers. Taken together these matters cause me to have concerns about the reliability of the child’s account in relation to the father’s conduct generally or on particular occasions. This is a significant factor in determining whether I can positively find that the father sexually abused the child and in relation to a risk of sexual abuse as it is the most important evidence relating to these matters.
The Magellan Report in relation to the Departmental investigation also records that on 9 September 2017 JIRT met with the child again but the child did not say anything new, did not repeat the allegation and was “happy and bubbly”. There is no other record of JIRT meeting with the child on this date and the mother has no recollection of that occurring. At most it appears that there may have been an informal enquiry made of the mother about the child but no further light was shed on this record.
The child’s story written in October 2017
As previously noted, in the course of final submissions, the mother conceded that no weight could be attached to the story said to have been written by the child in October 2017 in determining whether the father sexually abused the child or in relation to the question of whether a risk of abuse of this nature is posed by the father. In my view the concession made on behalf of the mother is sensible and appropriate.
The document created by the child is referred to in the Magellan Report as a matter which founded a complaint made to the Department’s helpline. It is recorded that it was reported that the child had written a story as follows:
Sometimes strangers turn their back. That person is a stranger. That strangers is my dad’s friend. When my daddy was at home we go to his friend’s house. I was shy. My dad call [Mr D] and we go swimming at his house.
It is also recorded in the Magellan Report that this complaint did not proceed to secondary assessment.
In the course of the proceedings the “story” in question was tendered. The mother was unable to provide any further information in relation to it and it appears that a mandatory reporter from the school made the notification on the basis of concerns about its content.
The story said to have been written by the child (Exhibit 7) consists of four lines of incomprehensible writing. The only legible words are “back that” appearing on the second line and the word “the” or possibly “they” on the third line. An unknown person has written the words said to have been written by the child under the child’s writing.
In these circumstances I cannot be satisfied that the story attributed to the child was written by or related by her. Having regard to its contents and the manner in which it was treated by the Department, I am of the view that it has no probative value in determining the question of whether the child has been sexually abused or is at risk of sexual abuse by the father.
The child’s behaviour in August 2018 at OOSH
According to the mother’s affidavit on 27 August 2018 she attended the OOSH centre after school to collect the child. When she arrived she was approached by an educator who asked that she speak to the coordinator about the child’s behaviour. She deposes that the coordinator “explained to me that [the child] was massaging another child’s back and then put her hands down the child’s pants and put her fingers into the other child’s bottom”.
The child’s behaviour on this day was apparently observed by the educator who spoke to the child telling her that her behaviour was not appropriate. The mother was given a document headed “Incident Report” setting out a summary of the observations of the child’s behaviour. According to the Incident Report the following occurred:
[The child] was playing with her friend, her friend was laying on their stomach and asked [the child] to massage her back. When [the child] was doing this, [the child] touched the other child’s bottom. [The child] then tried to stick her two fingers down the child’s pants, into her bottom, whilst the child was pleading “please don’t do that or I will tell on you”. An educator heard this and turned, witnessing [the child] touching the other child.
Once again, in my view, the first matter to consider is whether the reports of the child’s conduct set out in the Incident Report and explained to the mother are likely to be accurate. I have concerns about the likely accuracy for a number of reasons.
First, I consider it unlikely that the unnamed educator actually observed the child engaged in the conduct alleged and it is more likely that she inferred or assumed some matters from the other child’s complaint and her partial observations. In particular, it is recorded in the Incident Report that the educator heard the other child’s complaint and turned and that all she actually observed was the child touching the other child. The inference from the use of the words “an educator heard this and turned” is that the educator did not observe anything herself until she turned to face the children.
Further, it would not be possible for anyone to have observed the child touch the other child’s bottom or attempt to stick her fingers down the child’s pants “into her bottom” given that the children were clothed. There is also a distinction, in my view, between actual touching and ‘trying’ to put her fingers down the other child’s pants. There also appears to be no basis for imputing an intention in the child of attempting to put her fingers ‘into’ the other child’s bottom.
While the child may have touched another child around her pants I am not satisfied that the child engaged in the more serious conduct alleged. For this reason I have no regard to it when considering whether the child was a victim of sexual abuse or is placed at an unacceptable risk of harm of this type in the father’s care. This is consistent with the ultimate submission made on behalf of the mother that even if the incident had occurred no weight should be attached to it in determining the central dispute about whether the child has been sexually abused.
Other relevant matters
The father has at all times denied the allegations. He deposes to being extremely shocked by them on the day they were first made. The father was not charged but Police did seek an ADVO for the child’s protection against him. This order was made on a provisional basis and continued as an interim order until there was a final hearing in a Local Court in April 2018. The magistrate dismissed the application on the basis that the child’s evidence could not be accepted. A transcript of the magistrate’s findings was not available in these proceedings but the mother did not take issue with the father’s affidavit in which he deposes that the magistrate found the child’s evidence “confusing and blurred” and in part was “untruthful”. Although I am not bound by any determination of the magistrate I attach some weight to the fact that the application for ADVO was dismissed and that the standard of proof for such applications is the balance of probabilities. In other words, the magistrate was not satisfied to that standard that an ADVO was appropriate for the protection of the child.
The father’s desire to not be restrained by an order requiring that the child’s time with him occur in the Sydney Metropolitan area during term time also relates to his lifestyle and background, another of the additional considerations.
In oral evidence the father said he lives in a small town on his own in a three bedroom home. Although the father was living in the Sydney Metropolitan area not far from the mother when interviewed by the family consultant, the mother at that stage said that the father was a “good dad” in that he took the child to the bush for weekends, taught her to ride a bike and tried to engage her in his hobbies. The child is also reported as speaking with some enthusiasm about the father’s dogs and described his house as “fun” as he has “motorbikes and other stuff”.
Although the father’s affidavit or cross-examination did not address matters relating to his lifestyle and background I understand from his evidence concerning his move to the country, the limited information given to the family consultant as discussed and submissions made in relation to the restraint on taking the child out of Sydney, that the father enjoys outdoor pursuits and is of the view that the child would benefit from activities of this type when spending time with him. He referred for example to taking the child to the beach “or somewhere outside of Sydney, down past C Town” or taking her away camping which he said “would be great”.
The mother is opposed to the possibility that the father will be able to take the child to his home in the country each alternate weekend if he chose to do so after the ultimate parenting arrangement is in place. After the father suggested that he be permitted to take the child away from Sydney once every four weeks she agreed that if this were permitted this pattern would be more suitable.
It appears that the parents have different lifestyles and backgrounds and that the child will benefit from enjoying activities associated with each of them. It is likely to be of benefit to the child in my view that she is exposed to and enjoys activities associated with the outdoors and rural lifestyle enjoyed by the father. However, it is a significant burden for the child to be required to travel in a car for around seven hours each alternate weekend which may occur if the father is not restrained in some way in this regard. It appears to me that the compromise referred to by the parties in final submissions that the father be permitted to (or not restrained from) spend time with the child outside Sydney once in each four week period after the final parenting arrangement is in place is proper in the circumstances.
In my view it is also proper for there to be some flexibility in the arrangements for changeover in the event that the child’s time with the father occurs outside Sydney (no more regularly than once per four weeks). As it is not clear that the father will definitely avail himself of this opportunity, it is more appropriate in my view for alternate arrangements for fitting in around a meal to break the journey as the father proposes be subject to agreement between the parties. Otherwise it appears appropriate that changeover occur at the child’s school at the commencement of her time with him and that the father deliver the child to the mother at the end of that time. The father’s oral evidence was that he had no difficulty with the three and a half hour journey to Sydney and that he had sufficient flexibility in employment for that to occur.
The only other relevant matter referred to in Section 60CC(3) to be considered is the likely effect of the change in the child’s circumstances which is also interrelated to the two foregoing matters. As indicated there is no dispute between the parties that the child will receive a benefit from re-establishing her relationship with her father. The child enthusiastically told the family consultant that she liked seeing her father and that she would like to see him more. The only difference between the proposals of the parents is that the father seeks to reach the pattern of care that the parties agree is in the best interests of the child sooner than the mother.
The family consultant recommended that if the Court considers that the child is not at risk of sexual abuse perpetrated by the father then the child spend supervised time with him each weekend for one month before commencing unsupervised time for one day each weekend for six months and that overnight time could then be considered. This recommendation was confirmed under cross-examination.
It is to the mother’s credit that she is prepared to consent to supervision ceasing immediately notwithstanding that it may cause her some concern. In my view, the mother demonstrates a laudable focus on the child’s best interests. As there are no concerns about the father’s parental capacity or ability to meet the child’s needs there is no reason why the increase in the child’s time should not occur otherwise as recommended by the family consultant.
The orders proposed by the ICL and agreed to by the mother provide for a different arrangement in the child’s time with the father than that recommended by the family consultant, presumably on the basis that the father has since moved some distance from the child’s home. It is consistent however with the recommendation of the family consultant that the father spend time with the child unsupervised for six months prior to the introduction of overnight time. Once overnight time has been introduced the father proposes that it remain on a limited basis of one night for three months only, while the ICL proposes that this pattern remain in place for six months. In my view, as the introduction of overnight time with the father will bring with it separation from the mother and maternal family members for the first time in the child’s life such an arrangement should be introduced with some caution and it is appropriate for this reason that it extend for a period of six months.
Once overnight time during term time has commenced there seems no reason why some overnights in the school holidays should be delayed as proposed by the ICL, particularly as the father agrees that it is appropriate that the first period of school holiday time is for four consecutive nights. Under the father’s proposal however, the school holiday time of four consecutive nights would commence in April 2020 when the child will not have commenced spending overnight time during the school term under these orders.
In my view, the appropriate time to commence the child’s overnight time with her father in the school holidays is after overnight has commenced during the school term following term two (in around July 2020). From the Christmas holiday period in 2020 this amount of holiday time should increase to two block periods of four consecutive nights (in accordance with the proposal of the ICL) and from 2021 be in accordance with the proposal of the ICL.
Conclusion
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for a child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[10] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[10] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The parties have agreed to an order for equal shared parental responsibility and there is no reason to displace the presumption.
As an order will be made for the parents to have equal shared parental responsibility for the child, under s 65DAA(1) of the Act, I must consider whether the child spending equal time with each of the parents would be in her best interests, and whether such an order is reasonably practicable.
I am then required consider under s 65DAA(2) whether the child spending substantial and significant time with each of the parents would be in her best interests and reasonably practicable.
Neither parent proposes either of these arrangements. An equal time arrangement is clearly not reasonably practicable and having regard to the definition of “substantial and significant time” in Subsection 65DAA(3) such an arrangement is also not reasonably practicable given the distance the parties live from one another.
The Final Orders
For the foregoing reasons, having regard to the relevant best interests considerations, I make the orders as set out at the forefront of these reasons for Judgment.
ICL costs
The only application for costs in these proceedings was made by the ICL who seeks an order that each parent equally share in those costs. The proposed order of the ICL is that the father pay his share in the sum of $5,104 and the mother pay her share of $3,454 on the basis that the mother has already made an initial payment.
Applications for costs in this Court are the exception to the rule. Section 117(1) of the Act sets out the general rule that each party is to bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), that the Court may make an order for costs if in the opinion of the Court it is justified in the circumstances.
The High Court in the matter of Penfold v Penfold[11] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[11] (1980) 144 CLR 311
The Act also makes specific provision in section 117 for orders as to the costs of an ICL as follows:
(3)To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Neither party has received a grant of legal aid in the proceedings but I am mindful of the foregoing restrictions in relation to an order for the payment of the ICL’s costs if a party would suffer financial hardship as a result of such an order. It is the father’s contention that he would suffer financial hardship if an order were made that he pay the ICL’s costs as sought in the sum of $5,104. He deposes to having substantial debts including $9,000 owing to his parents, and a debt to his previous legal representatives which is outstanding.
The father gave oral evidence in the proceedings that he was unable to afford to remain living in Sydney and was required for this reason to sell the parties’ former home and move from Sydney. He deposes to earning $935 per week from which he pays $157 in child support, $120 towards a car loan and is also required to meet his mortgage repayments, household bills and expenses and other living expenses.
In his Financial Statement dated 25 February 2019 the father deposes to having no financial resources and on his current income it is unlikely that he would have the capacity to borrow the necessary funds to cover the ICL’s costs. I agree with the father’s contention that he would suffer financial hardship if ordered to pay the ICL’s costs as sought but this hardship would be reduced if he were required to pay a lesser sum.
The mother did not file any further evidence in relation to the ICL’s costs application or make submissions as to this matter. There is no evidence in the proceedings of her financial circumstances other than the fact that she is employed on a full-time basis.
Section 117(2A) sets out the relevant matters to which the Court is to have regard in considering an order for costs. The relevant matters will be considered and balanced, noting that there is nothing preventing any one factor being the sole determinant for an order for costs.[12]
[12]PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123
The father’s financial position has been discussed. It is in my view that he has limited financial capacity to pay the ICL’s costs but I cannot be satisfied that he has no capacity at all to pay some part of the costs of the ICL.
While there is very little information available on the mother’s financial position, the ICL indicated at the final hearing that the mother has already paid an initial contribution fee of $1,650. The mother has also been able to maintain legal representation throughout the proceedings without any assistance by way of legal aid. In the absence of evidence to suggest otherwise, and given the mother is in full-time employment, I do not consider that the mother would experience financial hardship if required to pay her share of the costs of the ICL as sought. However, I can make no other finding concerning the financial circumstances of the mother given the absence of evidence to this matter.
As noted neither party is in receipt of assistance by way of Legal Aid. There is nothing in relation to the conduct of the parties in relation to the proceedings that is relevant to this costs application.
I consider it relevant that the only reason an ICL was appointed in the proceedings is because they formed part of the Magellan protocol and this is a standard order for such matters. The proceedings were not particularly complex and the only issue to be determined was whether the father posed an unacceptable risk of harm and in this case that assessment was based on limited evidence. It appears to me that there was no other basis for appointment of an ICL.
The other matter I consider relevant is that the mother has already paid an initial contribution fee of $1,650. In circumstances where the father has some capacity to pay it seems just that he also make a contribution to the costs of the ICL in a similar sum. I am precluded from making an order for the costs for the entirety of the sum as sought by the ICL as I consider for the reasons explained that the father would suffer financial hardship if such an order was made.
Balancing the relevant foregoing matters, I am satisfied that it is just for the father to make the same contribution as that which has previously been made by the mother and accordingly set out an order in these terms at the forefront of the reasons for judgment.
I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 December 2019.
Associate:
Date: 17 December 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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