LAWRIE & SHEEHY
[2017] FCCA 428
•9 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAWRIE & SHEEHY | [2017] FCCA 428 |
| Catchwords: FAMILY LAW – Parenting Orders – Non-disclosure of prior criminal offending involving child under age of 16 years – interim order obtained – partial disclosure of offending – discovery of recorded history of making and breach of domestic violence orders and notifications of domestic violence by means of subpoena before trial – trial vacated – applications for interim relief – evaluation of circumstantial evidence – best interests of children paramount consideration – interim parenting orders that children reside with father pending trial. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CC, 60D, 60G, 65D, 69ZT |
| Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8 Goode v Goode (2006) 36 Fam LR 422 Cowling & Cowling (1998) 22 Fam LR 776 |
| Applicant: | MS LAWRIE |
| Respondent: | MR SHEEHY |
| File Number: | BRC 10489 of 2015 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 22 February 2017 |
| Date of Last Submission: | 22 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 9 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nielsen of Counsel |
| Solicitors for the Applicant: | Power & Cartwright Solicitors |
| Counsel for the Respondent: | Mr Shoebridge of Counsel |
| Solicitors for the Respondent: | Tubaro Lawyers |
ORDERS
That the child X born (omitted) 2002 live with the father.
That the child Y born (omitted) 2005 live with the father.
That order 2 shall take effect from 5:00pm on Sunday 26 February 2017.
That pending order 2 taking effect the Applicant Ms Lawrie shall not allow:
(a)the child Y to be left alone at the Applicant’s home; or
(b)the child Y to be in the company of Mr J at any time.
That the parents shall have equal shared parental responsibility for the children in respect of all ‘major long term issues’ as defined in the Family Law Act1975 (Cth) as amended, including but not limited to:
(a)the children’s schooling;
(b)medical treatment the children receive, including attendances upon psychiatrists and psychologists;
(c)any name change for the children;
(d)any religion the children practice.
That the parents shall each have, during all such times that the children are in their respective care, parental responsibility in respect to issues that are not “major long term issues”, meaning:
(a)the mother shall be responsible for the daily care, welfare and development of the children whilst the children are living with or spending time with her; and
(b)the father shall be responsible for the daily care, welfare and development of the children whilst the children are living with or spending time with him.
That the children shall spend time with and/or communicate with the parents for such periods of time or in such manner as might be agreed between the parents and failing agreement, in accordance with the succeeding provisions of these orders.
That the child X shall spend time with the mother as follows:
(a)during the school term every alternate weekend from 5.00pm Friday until 4.00pm Sunday (to correspond with the weekend that Y will be in the mother’s care);
(b)for half of all gazetted Queensland school holiday periods on a week about basis with the first week with the mother (to correspond with the school holiday period during which Y will be in the mother’s care).
That the child Y shall spend time with the mother as follows:
(a)during the school term every alternate weekend from Saturday 9.00am until 5.00pm and Sunday from 9.00am until 5.00pm.
That should the children not otherwise spend time with the mother on Mother’s Day weekend, then the children shall spend time with the mother from 9.00am until 4.00pm on the Sunday of Mother’s Day weekend in addition to the children’s normal time with her, PROVIDED HOWEVER, should the children not otherwise spend time with the father on Father’s Day weekend, then the children shall spend time with the father from 9.00am to 4.00pm on the Sunday of Father’s Day weekend in addition to the children’s normal time with him.
That should the children’s birthdays fall on a school day, then the parent with whom the child is not otherwise residing be at liberty to spend time with the children for up to two (2) hours on that day.
That should the children’s birthdays fall on a non-school day, then the parent with whom the child is not otherwise residing be at liberty to spend time with the children for up to four (4) hours on that day.
That for the purposes of spending time with the children, changeover shall occur at a half way point to be agreed in writing between the parties.
That for the purposes of spending time with the children, changeover shall occur at a half way point to be agreed in writing between the parties.
That communication between the parents be limited to that which is necessary for the effective parenting of the children as agreed between the parents, and the parents will at all times be civil and respectful towards the other parent and not denigrate the other parent or the other parent’s partner.
That each parent shall:
(a)keep the other parent appraised of their residential address and telephone contact number and advise of any change within seven (7) days of the date of such change;
(b)notify the other parent as soon as practicable should any of the children suffer any medical emergency, serious illness or other significant issue affecting the children’s health or welfare whilst in their care, and in an event within four (4) hours of the occurrence of same.
That this Order acts as an authority for any doctor, hospital and/or other health professional to provide to the parents, at the requesting parent’s expense, any information concerning the health of the children.
That this order acts as an authority for the children’s school to provide to the parents, at the requesting parent’s expense, copies of all school reports, school photographs, and any other documents regarding the academic progress or achievements of the children, and notification of such important events such as parent/teacher events, sports days and concerts.
That each parent shall refrain from denigrating the other parent and/or their respective partners in front of the children or any other person and shall not expose the children to any other person doing so.
That during the time that the children are with either parent, that parent shall:
(a)respect the other parent’s privacy and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully and refer to the other parent as “Mum”, “Dad”, “Mummy” or “Daddy” as the case may be.
That all changeovers to occur at McDonalds, (omitted) Shopping Centre.
That the children X born (omitted) 2002 and Y born (omitted) 2005 be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry of the Family Court of Australia at Brisbane.
That the mother is to ensure that neither child come into contact with Mr J during any period of time that they are in her care.
That the parties comply with all reasonable requests made by the Independent Children’s Lawyer in reflection to:
(a)the preparation of an updated report by Mr S; and
(b)the provision of any documents relevant to the issues in dispute in these proceedings.
The application be adjourned to 18 May 2017 at 9.30am for directions in the Federal Circuit Court of Australia sitting at Brisbane.
AND THE COURT NOTES THAT:
A.Pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Lawrie & Sheehy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 10489 of 2015
| MS LAWRIE |
Applicant
And
| MR SHEEHY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this proceeding commenced their relationship in 2001. They separated under the one roof in late 2014 or early 2015.
This application concerns their children, X born (omitted) 2002 and Y born (omitted) 2005.
In June 2015 the applicant mother left their home in Brisbane. In July 2015, the mother, without notice to the respondent father, left Brisbane and moved, with Y, to (omitted). Since that date the child Y has lived at (omitted) with her mother and new partner, now husband, Mr J. In moving to (omitted), the mother did not take the son, X, leaving him in the care of the father. The circumstances in which the son did not move to (omitted) are in dispute.
On 22 February 2017 the court pronounced interim orders that, until further order, both children should now live with the father. On that date, further orders were made in relation to the matter in order that it might proceed to a final hearing, including orders:
a)for the appointment of an Independent Children's Lawyer to represent the children in this proceeding; and
b)that a further family report be obtained from the expert witness, Mr S (“Mr S”), including that he be provided supplemental documents in addition to those referred to in his family report dated 30 June 2016.
The ancillary orders made that day were largely agreed by the parties.
These reasons explain why those interim orders were made.
Procedural history
On 30 October 2015 the mother filed an initiating application seeking both property and parenting orders. It is and has been the mother’s contention, since filing her initiating application, that:
a)the child X should reside with the father;
b)the child Y should reside with the mother.
Extensive ancillary orders were also sought, including that the parents should have equal shared parenting responsibility.
On 30 October 2015 a notice of risk of child abuse, family violence, or risk of family violence was filed on behalf of the mother.
On 18 November 2015 the father filed a notice of risk.
On 19 November 2015 the father filed a response which also made claims for property and parenting orders. The father’s position, then as now, was that both of their children, X and Y, should live with him. He too sought that the parties have equal shared parenting responsibility and ancillary orders.
Affidavits were sworn by the mother and father on 29 October 2015 and 16 November 2015 respectively.
On 9 December 2015 being the first return date in the proceeding, both parties applied for interim relief as to parenting. Consent interim orders were made, substantially in terms of the relief sought by the mother; namely, that the son, X, reside with the father, the daughter, Y, reside with her. The parties consented to orders that they should have equal shared parenting responsibility.
The parties’ positions appear to be that they have been able to comply with the interim parenting orders in the period December 2015 to date.
The proceeding was again heard on 22 February 2016. On that day, a family consultant, Ms I, interviewed the parties and their children. Ms I then gave a report to the court.
Two months later, on 20 April 2016, Mr S interviewed the parties, their children and their paternal grandparents together with the mother's new partner, Mr J.
On 30 June 2016 Mr S completed his family report.
On 11 October 2016 orders were made by consent dealing on a final basis with the parties’ property applications.
As concerned the determination of the parties’ applications for parenting orders, on 11 October 2016 orders were made designed to regulate each of the steps required of the parties so that the matter could be ready for a final hearing (on a one day estimate). Orders made included that by 20 January 2017, the parties file and serve the affidavit of any witness intended to be relied upon at the final hearing. Other orders regulating the trial included that:
a)each party file and serve a case outline setting out a precise minute of the final orders each sought, a relevant chronology, a list of affidavits and applications and/or responses intended to be relied upon at the final hearing and a statement of evidence which, they contended, supported the principles contained in s.60CC of the Family Law Act 1975 (Cth) (“Act”);
b)the parties’ solicitors send to Mr S a joint letter of instruction enclosing any affidavit material to be relied upon by the parties and not already in Mr S's possession and posing a series of no more than ten (10) questions from each party to elucidate some further clarification of Mr S's opinion.
I was informed that the parties have formulated their questions for, and that these had been provided to, Mr S for the purposes of his giving evidence at the trial that was listed for 22 February 2017.
The father filed an affidavit sworn on 19 January 2017. His affidavit deposed to the acrimonious and dysfunctional nature of the parties’ relations, his poor relations with Mr J and of his good relations with each of the children. His affidavit provided evidence of the familial support that is available to him in Brisbane.
On 20 January 2017 an affidavit was sworn by the mother. The history as deposed to in that affidavit recounted the troubled nature of the parties’ relationship and contained repeated allegations concerning the conduct of the father. However, what it also did was address some of the criminal history of Mr J as was known to the mother at that time. The mother deposed of her knowledge as to Mr J stating:
“[59] I think it is important for me to make this Honourable Court aware of the fact that in the mid to late 1990’s Mr J was convicted of an offence related to him having sex with an underage woman. I became aware of this offence approximately 12 years ago.”
The affidavit proceeded to give evidence as to how those events were of relevance to Y and that the mother “had no reason to believe that Y was in any danger” from Mr J.
On the same date, 20 January 2017, an affidavit was also sworn by Mr J which addressed his observed conduct of the father and of his relations with Y. Under the heading, Events since Ms Lawrie moved to (omitted), Mr J also deposed to his conviction for offences in 1997 as follows:
“[38] I feel it is important to make this Honourable Court known (sic) that I have previously been convicted of carnal knowledge of a girl under 16, indecent treatment of a child under 16 and sodomy in 1997.”
Like the mother’s 20 January 2017 affidavit, Mr J deposed as to why he considered that he presented no risk to Y.
The matters as deposed to in each of the 20 January 2017 affidavits above were not disclosed to: (1) the court on 9 December 2015; or (2) either of the family experts, Ms I or Mr S.
On 16 February 2017 a new notice of risk was filed by the father.
A series of subpoenas were also filed on behalf of the parties being to:
a)Commissioner of Police, Queensland Police Service;
b)Director General, Department of Communities, Child Safety and Disability Services;
c)Medical Director, (omitted) Public Hospital;
d)Director General of the Department of Education, Training and Employment;
e)Queensland Health, Director General of Queensland Health; and
f)Queensland Health, Chief Executive of Health Service.
An examination of the subpoenas may suggest that both parties sought to trawl the available documentary records but that the inquiries being made were directed to the promotion of their competing cases.
The case outline filed on 7 February 2017 on behalf of the mother adhered to the position stated in her application: final parenting orders were sought that X live with the father in Brisbane and that Y should live with the mother in (omitted).
The case outline filed on behalf of the father on 10 February 2017 reiterated that both children should live with him.
Each party contended for equal shared parental responsibility and indicated their consensus in relation to many of the ancillary orders.
In consequence of the subpoenas, a large volume of new evidence came to light in the period after 20 January 2017. In particular, documents produced in response to the subpoena served on the Commissioner of Police, Queensland Police Service, disclosed that in relation to Mr J, his history included a history of domestic violence more extensive than had been disclosed by the affidavits of the mother or Mr J made on 20 January 2017.
Following the production to the parties of the documents made available in response to the subpoenas, a supplementary case outline was filed on behalf of the father.
Hearing on 21 February 2017
Given the recent discovery of Mr J’s criminal history, I declined to allow the parties to conduct a final hearing for final parenting orders. Instead, the matter proceeded on the basis of a hearing for interim relief by each party for the parenting orders that they have sought.
Proposed interim orders were provided that had been drafted, using as a template, the 9 December 2015 orders. The parties’ submissions confirmed that there was substantial agreement in relation to the majority of those orders. Relevantly, the substantive issue concerned Y and whether she should be allowed to continue to live with the mother.
Undertakings were proposed by the mother designed to provide some level of insulation from Mr J so that Y would not be exposed to any alleged risk. In substance, those undertakings entailed that Y would not at any time be left alone, or in the company of Mr J, that her bedroom would be fitted with a lock and that no-one would be entitled to enter her bedroom. An alternative regime was proposed whereby Mr J would reside in a caravan located on the (omitted) property where the mother and Y now live and that the doors to that home be locked. The court was informed Mr J agreed in the proffered undertakings.
Three matters of immediate concern to the court were whether:
a)Mr J presented an unacceptable risk to Y;
b)before giving his evidence, Mr S would wish to reconsider his expert opinions after having had an opportunity to consider Mr J's offending and convictions for the 10 offences admitted to have occurred in 1997, together with the contraventions of domestic violence orders and notifications since that date;
c)an Independent Child’s Lawyer should represent the children at a final hearing of the application for parenting orders.
Those considerations, in combination, compelled the court to decline to deal with this proceeding as a final hearing. The parties made applications for interim parenting orders in effectively the same terms as proposed by their case outlines.
PARENTING ORDERS
Part VII of the Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss.60 – 70Q.
Section 65D of the Act provides that the court may make such parenting order as it thinks proper. In Bondelmonte v Bondelmonte [2017] HCA 8, the Court said of s.65D at [8]:
“A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.”
The objects of Part VII are stated in s.60B(1). They include to ensure that the best interests of children are met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s.60B(1)(b). The principles underlying those objects recognise the manifold rights of children with respect to their parents: s.60B(2). It must also be recognised that the principles in s.60B(2) are expressed as being subject to an exception: “except where it is or would be contrary to the child’s best interests”.
In determining the best interests of the children there are two primary considerations which must be taken into account. The two primary considerations are as set out in s.60CC(2). The court must consider:
a)the benefit to the children of having a meaningful relationship with both of their parents; and
b)the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
See ss.4(1) (abuse); 4AB(1) (family violence); 60B(1)(c), 60CC(1) (determining child’s best interests); 60CC(2) (primary considerations). Additional considerations are prescribed by sub-s.60CC(3)(a)-(m).
In addition, amendments to the Act effected by s.60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the court is required to give greater weight to the need to protect the children from physical or psychological harm from being subjected, or exposed, to abuse, neglect or family violence. Although sub-s.60CC(2A) does not expressly identify the subject matter over which weight must be given, it is plain that, where the circumstances require, the need for protection from harm as addressed by sub-s.60CC(2)(b) will assume prominence over a meaningful relationship with both parents as addressed in sub-s.60CC(2)(a). This conclusion is reinforced by the exception provided for in sub-s.60B(2) referred to above.
When deciding what parenting orders ought to be made in proceedings under Part VII of the Act, the best interests of the children are the paramount consideration: s.60CA. Accordingly, the principles contained in s.60B(2), which express rights of children in relation to their parents, may yield to the paramount consideration expressed in s.60CA that in deciding whether to make a particular parenting order, a court must have regard to the best interests of the child. Approached another way, where it would be contrary to the child’s best interests to make orders which accorded priority to the principles in s.60B(2) (as by facilitating the child’s right to spend time on a particular basis with both of their parents or other people significant to their care), the mandate, which is expressed as the paramount consideration to pay regard to the best interests of the child, may support orders appropriate to promoting and protecting the child’s best interests including orders that will operate so as to protect the child from harm.
INTERIM ORDERS
It was common ground that the principles in Goode v Goode (2006) 36 Fam LR 422 applied to the determination of an interim application for parenting orders. This being common ground, it is nonetheless useful to consider the circumstances of Goode’s case a little further. There the parties were agreed that their applications were related to orders for parental responsibility under ss.61A – 61DB. In Goode the trial judge had made certain orders regulating parenting arrangements but had not made orders for equal shared parenting responsibility. Nor had specific consideration been given to the matters in s.60CC when deciding the child’s best interests.
In allowing the appeal, the Full Court drew attention to the amendments to Part VII of the Act which took effect from 1 July 2006, the objects of Part VII and the mandatory requirement expressed in s.60CC that the court must have regard – as the paramount consideration – to the best interests of the child in deciding parenting orders: (2006) 36 Fam LR 422, [7]-[10]. The Full Court conducted a detailed examination of the principles concerning shared parental responsibility.
Against this background, consideration was then given to the principles applicable to interim parenting proceedings: (2006) 36 Fam LR 422, [66]-[82]. The Full Court, recognising that interim proceedings were interlocutory in nature, confirmed some of the statements in Cowling & Cowling (1998) 22 Fam LR 776 as apposite, and accepted that the procedure in making interim parenting orders would continue to be an abridged process such that the scope of enquiry was, of necessity, to be significantly curtailed from that which obtained at a trial. Yet the Full Court recognised that that principle was constrained by the requirement “that the court must have regard to the best interests of the child as paramount in deciding what interim orders to make” (2006) 36 Fam LR 422, [69]. In holding that Cowling’s case must be reconsidered in light of the amendments to the Act, the Full Court held:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”: (2006) 36 Fam LR 422, [72].
Goode’s case holds that the Act evinces a legislative intent that favours the substantial involvement of both parents in the lives of children, both as to parental responsibility and as to time spent with children. The Full Court’s holding was, however, expressed as being subject to: (1) the need to protect children from harm from abuse and family violence; (2) the proviso, whether the substantial involvement of both parents would be in the child’s best interests and reasonably practicable. This reasoning echoes the text of ss.60B(2) and 60CA. The general legislative intention in favour of substantial parental involvement cannot then be read as though divorced from the mandate to observe the paramount consideration of the child’s best interests, the prescription to give greater weight to the need to protect children from harm from abuse and family violence, or the exception to s.60B(2) that the child’s rights to parental involvement may yield as to what would be in their best interests or reasonably practicable.
The parties were agreed that as concerned their interim applications the following principles stated in Goode’s case (2006) 36 Fam LR 422, [82] were applicable when following the legislative pathway:
“In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)-(j) . . . ;
(k) even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Relevantly, for the purposes of the present application, Goode’s case confirms that the abridged conduct of interim applications for parenting orders remains qualified by the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse or family violence.
In contrast with the present case, and albeit in a different context (being a consideration of equal parenting rights), the errors that were identified by the Full Court in Goode’s case included that no consideration or weight had been given to: (1) the circumstance that it had been conceded that there was no risk to the children; (2) the primary or additional considerations prescribed by ss.60CC(2)-(3) in determining what orders were in the best interests of the children: (2006) 36 Fam LR 422 [108], [110].
In the context of the present application for interim parenting orders then, the court must have regard to the considerations in s.60CC(2)-(3), and, where the exception in s.60B(2) is engaged, that the rights of the child in relation to their parents should yield to the paramount consideration of what orders are in the child’s best interests.
EVIDENTIARY APPROACH
The court hearing an interim application cannot make findings about disputed facts: Goode (2006) 36 Fam LR 422, [74], [81].
The mother’s counsel provided a helpful summary of the legal principles applicable to the assessment and determination of unacceptable risk. The summary recognised the objects of Part VII, including that the best interests of children are to be met by protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s.60B(1).
The mother did not cavil with the record of convictions as contained in the respondent’s supplementary case outline; namely, the convictions on 24 June 1998, 6 November 2009 and 21 September 2012. Thus, the fact of the 10 convictions in 1998 and the breaches of those domestic violence orders were not in issue. As concerned those domestic violence orders, it was pointed up that the parties did not have the police briefs so that the circumstances were not yet fully known.
It was also accepted by the mother that while s.91 of the Evidence Act 1995 (Cth) established a prima facie rule to exclude evidence of a conviction, this section did not apply to a child related proceeding: s.69ZT(1)(c) of the Act. Thus, evidence of Mr J’s convictions arising from the convictions in 1998 for carnal knowledge, indecent treatment of a child under 16, sodomy of a child under 16 years of age, and the subsequent convictions for breach of the domestic violence orders was admissible.
Challenge was made, however, to a raft of incidents that had been notified to authorities and which were the subject of reports disclosed in documents produced in response to the subpoenas (“Notifications”).
The mother relied upon the seminal statements of principle in M v M (1988) 166 CLR 69, being the settled approach to the resolution of allegations of sexual abuse in parenting cases. It is necessary to examine the reasoning in that case. In rejecting the principle submission of the appellant (that in such cases, the paramount issue in the determination in a parenting application was the allegation of sexual abuse itself), the Court held in a joint judgment at 75-76:
“The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”
Adapting this principle to the Act in its present form, M v M holds that parenting orders should not be made if to do so would expose the child to an unacceptable risk of sexual abuse: (1988) 166 CLR 69, 78; see also, B and B (1988) FLC 91-957; Johnson and Page [2007] FamCA 1235.
The High Court’s reasoning underlines that parenting proceedings are distinct from purely inter partes proceedings in that they do not entail the enforcement of a parental right – rather they concern the making of orders that would best promote and protect the interests of non-parties - that is, the children of the relationship. For that reason, the Court held that “the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child.” (1988) 166 CLR 69, 76.
Thus an enquiry as to sexual abuse cannot distract attention from the paramount obligation to determine what is in the best interests of the child. Once that is recognised, the question to be resolved in abuse cases entails the determination on the evidence whether there is:
“. . . a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.”
M v M (1988) 166 CLR 69, 76.
As the Court noted, since the question concerns the assessment of risk, the requirement is to assess and evaluate the likelihood or possibility of events or occurrences which, if they did occur, would detrimentally affect the child’s welfare: M v M (1988) 166 CLR 69, 77.
It is axiomatic that allegations of sexual abuse are serious. The allegations are easily made and difficult to negate. Briginshaw principles apply to the determination of whether there had been, or whether there was a risk of sexual abuse: see Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J); M v M (1988) 166 CLR 69, 76-77; s.140(2)(c) Evidence Act 1995 (Cth). In my view, the statements of principle to be derived from M v M serve to explain why Briginshaw is applied before a positive finding of sexual abuse could be made in a parenting application and why the court should generally refrain from making a positive finding of abuse unless impelled to do so.
M v M was decided in 1988. Since that date, the Act has been amended, including Part VII, on several occasions. Relevantly:
a)s.69ZT was inserted in the Act in 2006, so as to remove the application of significant parts of the Evidence Act in proceedings relating to Children under Part VII of the Act;
b)to similar effect, a raft of other amendments were effected to Part VII in 2006 which provided explicit principles and duties to be applied in the conduct of child related proceedings;
c)s.60CC(2A) was inserted with effect from 7 June 2012, so as to require that greater weight be given to the need to protect children from harm in the determination of what orders were in a child’s best interests.
The holding M v M is reinforced by those provisions.
As to risk, the test in M v M requires the assessment and evaluation of the likelihood or possibility of future events which, if they come about, will have a detrimental impact on the child’s welfare. Why then should the court be required to shut its eyes to evidence which, if otherwise relevant, is probative of the issue of risk even if that evidence does not rise to the level of proof of a conviction?
An approach which commends itself to a proper consideration of the Notifications is found in the law relating to circumstantial evidence. Circumstantial reasoning in a civil case does not require that the court to be satisfied on the balance of probabilities of the truth of each single factor relied upon before being permitted to take it into account. To the contrary, the court is permitted to aggregate the whole of the evidence. When assessing the evidence in a circumstantial case, the court should consider the weight of the combination of facts and then determine whether the combined weight of those facts support an inference, as a matter of probability, of the ultimate fact in issue: Transport Industries Pty Ltd v Longmuir (1997) 1 VR 125, 128 (Winneke P), 141 (Tadgell JA); Cross on Evidence, 10th Ed [2015], at [9055].
In a similar vein, in Slater & Light [2013] FamCAFC 4, May, Strickland & Forrest JJ endorsed the following statement by the Hon John Fogarty who, writing extra-judicially, said:
“1 The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”
As the Full Court observed, those observations were also endorsed by another Full Court in Johnson and Page [2007] FamCA 1235.
The final point made by the Hon John Fogarty above is entirely consistent with the approach that is taken in circumstantial reasoning. Applied to the present case for example, a single and historical notification of domestic violence may, viewed in isolation, be insufficient to support a conclusion of a real or immediate risk of physical or psychological harm to a child. By contrast, a documentary record that discloses a repeated or systemic pattern of such behaviour might do so more persuasively.
Considered from another perspective, it has been accepted as relevant that proof of past events having occurred often provides a reliable basis for informing the probability – high or low – of their recurrence: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (per curiam); see also Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638, 639-640, 643.
Several observations may be made. First, there is no allegation that Mr J has sexually abused Y. Secondly, no occasion arises for the court to make a positive finding of abuse. Thirdly, convictions in relation to sexual offending or offending of a kind relevant to the primary considerations are relevant to interim parenting orders. Fourthly, both the making – and the breach – of domestic violence orders, are relevant considerations in the determination of what parenting orders, including interim orders, are in the best interests of children. Fifthly, so too, are documented records in the nature of notifications to, and investigations by, departmental authorities. Sixthly, one need not be satisfied of the truth or completeness of each notification made to a departmental authority. Seventhly, the court may reach a conclusion of unacceptable risk from an accumulation of factors and the combined weight that they provide.
CONSIDERATION
Goode’s case holds that in making interim decisions, the legislative pathway must be followed notwithstanding that the court will often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child (2006) Fam LR 422, [81]. So here, there was a considerable body of material filed. Regrettably, it confirms the parties’ troubled history.
As the Full Court of the Family Court of Australia recently confirmed, authorities which refer to Part VII as prescribing a legislative pathway and as imposing an obligation upon a court applying Part VII to follow a legislative pathway, are properly understood as serving to emphasise that the statutory considerations relevant to a particular case must be considered and applied as directed by the Act: see, for example, Oswald & Karrington [2016] FamCAFC 152 at [47] (Ainslie-Wallace, Aldridge & Kent, JJ).
Applying the considerations identified in Goode as identified above:
a)during the course of their submissions the parties identified the many parenting orders that they had agreed. As noted above, their proposed orders were modelled on the earlier consent orders that had been made on 9 December 2015;
b)equal shared parental responsibility was not in dispute: s.61DA;
c)as to the best interests of the child, X, there was no apparent issue that he was in peril in the circumstances of Mr J’s offending. The mother is content for the son to be with the father;
d)also agreed was that, in determining what parenting order was appropriate on an interim basis, the best interests of Y remained the paramount consideration: s.60B;
e)the competing proposals of the parties as concerned the interim parenting arrangements for both children were fully identified by their case summaries and confirmed by their submissions.
Accordingly, the sole focus was upon the best interests of the daughter, Y. What then of the considerations posed by s.60CC?
The submissions for the mother frankly acknowledged that the circumstances disclosed by the material recently unearthed by the subpoenas established a risk to Y. So much was implicit in the alternative undertakings that had been proposed. As the applicant put it, the issue was whether the mother’s association with Mr J posed an unacceptable risk to Y.
For the father, the issue of risk was put more broadly: (1) the risk posed by Mr J’s association with Y; (2) the inability of the mother to: (a) appreciate the risk, or; (b) respond adequately to it. The father’s submission was that the totality of Mr J’s offending, coupled with the mother’s lack of insight as to a risk that it posed and her response to it, presented an unacceptable risk to Y until final hearing and that interim orders were now required.
As framed by the parties, the central issue was whether Mr J posed an unacceptable risk to the child. While the adoption of that approach represented a candid attempt by counsel to confront issues during the interim application, the authorities discussed above require that the question be framed as one that was focussed on the paramount issue of the best interests of the child Y giving greater weight to the need to protect her from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence. I have treated the parties’ submissions as being focussed upon that issue.
Adopting that approach, it is convenient to consider the evidence, albeit that it may remain in contest in many respects, as follows:
(1)1997 offending
Mr J’s 1998 convictions related to a child younger than 16 years.
Counsel for the mother accepted that his client had known of the convictions for the 10 offences committed in 1997. So much was plain from the 20 January 2017 affidavits of the mother and Mr J.
The mother’s counsel asked that I view Mr J’s convictions for the 10 sexual offences with which he had been charged in 1998 as historical – rather than recent – offending. The conduct was portrayed as the conduct of a 23 year old man who had met a young woman in a hotel and, as he had seen her drinking, assumed her to be of adult age.
However, the evidence adduced may be understood as suggesting that this description of the circumstances of the offending were somewhat more complicated. In particular, as submitted by the father’s counsel, the material suggests that it may be that Mr J had been sharing a house with the girl and her parents. If that were so, it may undermine the notion that Mr J thought her to be an adult. But these are matters that may be explored further at trial.
(2) Domestic violence
Documents comprised in the Queensland Police files (Exhibit 1) suggested that Mr J’s history had included a history of domestic violence and a relevant history that was more extensive than had been disclosed by the mother’s case.
As noted above, the mother’s counsel recognised that his client had known of some – but not all – of the conduct disclosed by the records produced on subpoena. The concession in respect of convictions for conduct after 1998 was confined to the breaches of domestic violence orders as set out in the respondent’s supplementary case outline.
Much of the material disclosed by the Queensland Police records was repetitious as concerned the convictions of, and domestic violence orders relating to, Mr J. There may have been some overlap in those entries. Although the parties referred to some of that material, the contents of Exhibit 1 may suggest that there have been a wider series of incidents in the period 2008 – 2012.
It appears that none of the incidents involved the children with whom the present application is concerned.
It will be for the parties to consider what, if any, use is to be made at trial of the material recorded in, or said to be revealed by, the documents that were produced by Queensland Police.
(3) Notifications
In addition, the Queensland Police records also include records of the Notifications, which I accept remain in contest. Documents produced by Queensland Police include a number of Notifications. Whether the matters the subject of those Notifications were or were not well based remain in dispute and I cannot express a concluded view about them upon an interim application.
In relation to these Notifications three matters were raised.
First, it was said to be relevant that in one case, the victim had continued to reside with Mr J. This militated against a finding of unacceptable risk. The overall history of domestic violence does not support that submission. Persons may continue to reside in the same property irrespective of the conditions in which they are living.
Secondly, it was also put that Mr J had resided with the mother and father at various times in the period 2009 – 2013, and that this consideration demonstrated the ability of the father to have observed Mr J’s conduct in that period. It was said that the father’s affidavits were silent as to any observed conduct on the part of Mr J evidencing any risk posed to Y. It was said in response that the father’s vigilance in observing Mr J may well have been heightened by actual knowledge of the level of domestic violence incidents in which Mr J had been involved. I agree.
Thirdly, it was also pointed up that following a departmental investigation the conclusion was that Mr J was assessed as posing no risk to Y. It is necessary to say a little more as to that. The conclusions relied upon by the mother were drawn from a 2015 Safety Assessment which assessed the potential risk presented by Mr J to Y. The summary of that assessment was as follows:
“a) Safety decision for household 30/07/2015: Safe
b) Final risk level 27/08/2015: Low”
Viewed in isolation those conclusions may have been reassuring. However, as the one page containing the assessment had been extracted from a CD of the documents produced on subpoena, a full version of the report was located, printed and provided to the parties.
The above summary extract from the Safety Assessment should be considered in the context of further entries in the full report which state:
“Assessment of harm and Risk of Harm
During the investigation Y did not indicate that she has been groomed by Mr J.
Mr J does have a criminal history as a sex perpetrator against a minor and a (sic) adult, however, each of the allegations were unfounded and Mr J was not charged.”
As I was asked to take account of the conclusions expressed in that Safety Assessment, I cannot ignore that the premise on which it was reached included that, as concerned allegations of sex offending by Mr J, the assessor had been told that “the allegations were unfounded and Mr J was not charged”. The documentary record above – both as to breaches of domestic violence orders and of notifications – would undermine the premise on which the safety decision and final risk level assessment were reached. Once that flaw is exposed it is apparent that the opinion expressed in the report was based upon incomplete information and that this may well have infected the reasoning.
(4) Disclosure
I regard as relevant that the mother’s affidavit made on 29 October 2015 did not disclose the known offending of Mr J. Although the application before me proceeded initially with focus on the 1997-1998 offending and conviction, it soon expanded to consideration of the other admitted conduct of Mr J. Importantly, as the matter proceeded, the mother conceded to having also known of Mr J’s offending on 6 November 2009 and 21 September 2012. Again, neither of those matters had been disclosed in the mother’s 29 October 2015 affidavit (or indeed, in either of the 20 January 2017 affidavits).
None of those matters were disclosed to the court when interim orders were made on 9 December 2015.
Ms I’s report contained no mention of these matters. She therefore did not evaluate them (as she had not been told about them).
Mr S had interviewed Mr J and while his family report did address the position as concerned Mr J, it contained no reference to the convictions, domestic violence orders, the breach of those orders or the Notifications. When, on 30 June 2016, Mr S completed his family report, he had not been instructed or informed of Mr J’s offending. Accepting that some of the material and history is in contest, it remains the fact that there is no reference to the admitted criminal history, domestic violence orders, the breach thereof or the Notifications concerning Mr J as now disclosed.
The orders regulating the matter for final hearing required the parties to file and serve a case outline, a relevant chronology and a statement of evidence which, they contended, supported the principles contained in s.60CC. They did so. The mother’s case outline remained essentially silent as to Mr J’s conduct – this occurred despite the contents of the two 20 January 2017 affidavits in which both deponents deposed to the apparent importance (i.e. potential relevance) to the court being made aware of Mr J having been “convicted of an offence related to him having sex with an underage woman”. The fact that that offending had entailed 10 convictions was not made clear. The reasons why this was considered not to pose a risk to Y were not explained.
Although the mother did relate that she had known of “this offence” for about 12 years, her admitted knowledge of the other offending was not disclosed. At the least, the court is entitled to regard that non-disclosure as relevant to the mother’s ability to perceive the risk and of her ability to respond to it.
Several of the matters disclosed in those paragraphs of the mother’s 20 January 2017 affidavit are also of note. In particular, the mother: (1) recognised the importance of her making disclosure to the court of the fact Mr J’s conviction; (2) recognised the importance of such disclosure to her application for parenting orders; (3) was aware that the offence for which Mr J had been convicted related to him having had sex with a child under the age of 16 years; (4) disclosed that she had known of this offence for some 12 years; (5) recognised the need to address whether Mr J presented a risk to Y; (6) deposed of her perception that Mr J presented no risk to Y.
The significance of the applicant’s 20 January 2017 affidavit extends beyond the matters addressed above. In context, the mother’s disclosure that she had known of Mr J’s conviction some 12 years earlier allows inevitably for inferences that the mother had known of that conviction, both when she made her affidavit sworn on 29 October 2015 and when her application was made to this court on 9 December 2015 for interim relief that Y live with her (and thus, Mr J).
As noted, Mr J’s 20 January 2017 revealed his 1998 conviction but did so in limited terms. Mr J’s explanation of that conviction included that he had met the girl at a hotel, that she had appeared to him to be 18 or 19 years of age and, somewhat curiously, that he had never seen her go to school. Mr J deposed that:
“[40] . . . it was her parents who told the police that we were sleeping together. I . . . was sentenced to a 12 month Intensive Corrections Order. I did not serve a term of imprisonment.”
Mr J deposed to his embarrassment about what had happened and that “all I can say is that I was young and stupid and made a huge mistake”. Mr J further deposed that “he could say absolutely that I am not in any way interested or attracted to young females and in fact I have raised two daughters on my own and find the idea of a man doing anything with a young girl absolutely abhorrent”.
Mr J’s 20 January 2017 affidavit did not disclose the actual extent of the – now admitted – convictions for domestic violence.
Under the heading, Events since Ms Lawrie moved to (omitted), Mr J set out some evidence as to what, he said, were false allegations that had been made by the respondent to various state departments. Notably, Mr J deposed at [33] that “none of these events have been proven”.
(5) Perception of risk
The mother’s case summary made no attempt to address whether the fact that Y was living with Mr J was of relevance to the determination of the application for parenting orders. Mr J’s conviction was not referred to in her chronology. Nor was it referred to when s.60CC factors were addressed. Under the heading, the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, there was no mention of the disclosures first made in the 20 January 2017 affidavits of the fact of Mr J’s convictions.
The omission to address the issue in the context that the case outlines were required to address s.60CC factors underlines the mother’s lack of perception of the nature of the risk. While this approach was perhaps explicable on the basis that the mother’s 20 January 2017 affidavit advanced a position that she considered Mr J posed no risk, nonetheless I regard this matter as relevant to the submission that the mother’s lack of perception of the risk posed by Y living with Mr J is of relevance to parenting orders.
Submissions made on behalf of the mother made clear that the mother had not known of the extent of Mr J’s offending until she had been served with the father’s case summaries. For present purposes this may be assumed in favour of the applicant.
As noted above, the mother did not cavil with the convictions of Mr J as set out in the father’s supplementary case outline. But they were not addressed in the 20 January 2017 affidavits or in the mother’s case outline.
My conclusion as to the mother’s lack of perception of the risk posed by Y living with Mr J and its relevance to an assessment of appropriate parenting orders is then reinforced by the mother’s concession that she did not cavil with the supplementary case outline which included reference to more recent domestic violence orders.
(6) Expert reports as to Y’s position
It was submitted that Y wishes to remain with her mother.
In Bondelmonte v Bondelmonte, the Court observed that by s.60D(2), the court may “inform itself of views expressed by a child” by a number of means, including a report given to the court by a family consultant under s.60G(2) or, subject to the Rules of Court, “by such other means as the court thinks appropriate”: [2017] HCA 8 at [19].
A matter which was not addressed during the course of the interim application concerned the family consultant, Ms I, who had interviewed the parties and their children and given a report to the court on 22 February 2016. She so reported on that day by way of sworn evidence in the course of which she deposed as to the children’s expressed views of the parenting arrangements. The parties’ lawyers (and I assume the parties themselves), had been present in court when Ms I gave her report. For the purposes of the present application, I note that her evidence included the following:
“Now Y said that she was a bit scared of her dad when she first went up to (omitted) with her mother, which is near (omitted), because he got angry at her about the idea of her having her stuff up there. But subsequently, now that she’s spending lots of time with her dad she was very positive about both parents.”
Ms I opined that Y appeared more concerned about what was best for her respective parents than herself and said:
“Y, I think is too young to be making decisions herself about where she wants to live.”
In a similar vein, Mr S reported at [73] that “When she stays with her father, she feels fine, she finds it really fun, but she would like to go to school in (omitted) as it is better than (omitted) as she thought everyone was mean to her at (omitted) school.”
Mr S's conclusions and recommendations set out in his family report at paragraphs [79] – [96] examined in detail the considerations which that expert took into account in reporting to this court upon the proposed parenting arrangements. In his report he stated:
“79. The primary issue in this family is the current split arrangements of the children’s living conditions, . . .
82. The parties’ respective capacity to express insight as to the nature of their relationship and the difficulties that they experienced appeared to be limited on both sides. Mr Sheehy presented as a relatively articulate man, yet in his understanding of the issues which might have affected Ms Lawrie, it appeared that he was limited.
94. It is true that Y expresses a desire to remain there and that she is clear about her happiness with the current circumstances. However my view is that the insularity of her mother's household, the distance between the two homes, and the stress upon her relationship with her brother, are consequential factors.
95. . . . there is a complex array of factors which are relevant to the welfare of the children. The parents are uncommonly subjective in their views and I formed a view that their respective insight is very limited.
96. This has been a fractured family for some time, and simply returning Y to her family home and [the] father’s care may not be in her best interests, irrespective of the concerns raised regarding the mother’s care. She has a strong bond with her mother. Left to their own devices, I do not have great confidence that either parent will facilitate the relationship between either child and the other parent to the degree which might be necessary.”
Mr S’s conclusions as to the complexity of the factors which are relevant to the welfare of the children in this matter are reinforced by the matters that have now been identified in relation to Mr J, including the domestic violence orders and the Notifications.
It was accepted by the mother that Mr S might well have reached a firmer and different conclusion as concerned parenting arrangements had he been fully informed of the true position in relation to Mr J. He was not so informed. One reason why his opinion was formed without Mr J’s criminal history was that it had been withheld from him by the mother in circumstances where she had known of it for 12 years. Mr S may well be concerned to reassess the applicant’s ability to perceive the risk posed to Y by Mr J in light of the non-disclosure of that knowledge.
Mr S’s conclusions bear scrutiny, and perhaps reconsideration, for a further reason. It seems that the family has been a fractured one for some time. However, it must be recognised that Mr S’s assessment – that returning Y to her family home and the father’s care may not be in her best interests – was a view that he had formed without knowledge of Mr J’s offending or the extent of it (including recent offences of which he has been convicted).
(7) Other matters
The mother and Mr J are now married. They have known one another since the applicant was a teenager.
Y is now 12 years of age.
No Independent Children’s Lawyer has considered the matter.
Notices of risk of child abuse, family violence, or risk of family violence have been filed on behalf of both parties since the institution of the proceeding. The presently available information leaves open to question whether the notification by either party was motivated, at least in part, by a desire to cause difficulty for the opposite party.
Other factors that were, it was submitted, to be weighed in the balance included consideration of the alternative scenario – that Y live with the father. Reference was made to Mr S’s report at [94]-[96] (see above). Further, as to this:
a)an incident was relied upon as to cannabis usage by the son X in September 2016. It is said that the cannabis had been provided by a neighbour in Brisbane and that this was said to have been known by the father: see the 20 January 2017 affidavit’s (applicant at [28]-[31], Mr J at [20]-[24]);
b)the mother’s mother in law is said to be over bearing and hostile to the mother.
Mr S’s concern was that if left to their own devices, it was questionable whether either parent would facilitate the relationship between either child or the other parent to the degree which might be necessary. However, that appears not to have been the case inasmuch as interim parenting orders have been in place since December 2015 and the parties seem to accept that parenting arrangements have worked reasonably well since that date.
The mother’s 20 January 2017 affidavit makes explicit that she does not regard the respondent as posing a physical threat to the children.
I take into account the needs of the father to be assured of Y’s protection as a relevant consideration: In the Marriage of Bieganski (1993) 16 FamLR 353 (Fogarty, Baker, Purvis JJ).
Reliance was placed on Y’s present circumstances. She has settled into her new school, she had been appointed school captain of her primary school and, having now progressed to secondary school, has been appointed sports captain in her year. As to this, I note that amongst the matters revealed by the documents produced on subpoena was the following:
a)Y having had 30 full day absences from school in the period from July 2015 to November 2016;
b)the father not being on the school contacts for Y.
The evidence shows that both the mother and Mr J have been diagnosed with or are being treated for various medical conditions of a psychological nature. The applicant’s affidavit sworn 29 October 2015 at [45] disclosed that she was then suffering from stress and anxiety in relation to her “family law situation”. Although the full extent of those has not been investigated the position revealed by the evidence to this point is that:
“a) Ms Lawrie is seeing a psychologist at (omitted). . .
b) Mr J . . . medical condition include Borderline Personality Disorder (2009) and adjustment disorder (17 Oct 2012). . . Mr J medications include . . . ”
As concerned allowing the child to remain with the mother – attention was drawn to the psychological condition of the mother and Mr J respectively as disclosed by the available material. It was also put that there was, presently, no report from an independent doctor or psychologist. There appears in the records produced on subpoena a reference on 1 June 2010, to a serious incident involving the mother and one of the children.
CONCLUSION
Whether the evidence of the making and breach of domestic violence orders above is evaluated alone or together with the 1998 convictions of Mr J, I concluded that that evidence supported the making of the interim parenting orders pronounced in this matter. I was fortified in the conclusions that those parenting orders should be made in light of the documented record relating to the Notifications, my consideration of the progressive disclosure of Mr J’s conduct and the Other Matters addressed above.
I have concluded that it is in the best interests of the child Y that she reside with her father. That is in her best interests because the children are not split, and there is a risk of her coming to harm when living with her mother. The risk is of a kind and magnitude that, in the interim, warrants her not living with the mother but with her father.
The mother’s new partner has an admitted history and has both a proven and possible history travelling beyond what the experts have yet considered. The actual history suggests risk to the welfare of the child. The possible history (if proven) would increase the risk, but the admitted history presents a risk that, in the interests of the child, is to be avoided. The mother recognised as much by her proffering of undertakings that were designed to address the risk and to do so as it is necessary to avoid the risk. But the circumstances in which that came about suggest that the mother is not properly alert to what those risks are or the dimension of those risks.
As concerns the additional considerations identified in s.60CC(3), I have considered the likely effect on a change in circumstances, and weighed up how Y may cope living away from her mother who has been her primary carer. It may be recognised that any sense of loss she might feel in that regard will be comforted by her relationship with her father and her brother. Both Ms I and Mr S have identified that Y’s relations with her father and brother are at least tolerably good. Whilst the additional considerations presented by s.60CC(3) are of importance, the risk of harm must now be given greater weight: s.60CC(2A).
In light of the risk of harm issue being of such importance, I do not propose to address further the additional considerations set out in S60CC(3), but they will remain important at the final hearing.
The orders made will secure the result, at least on an interim basis, that the children’s split living arrangements will be replaced by one in which they are again together.
The final determination of the parties’ applications for parenting orders in this matter would be assisted by the further report of Mr S and the involvement of an independent children’s lawyer.
The matters addressed in these reasons explain why parenting orders were made on an interim basis that addressed the arrangements that should be made for these children.
I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 9 March 2017
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Discovery
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Procedural Fairness
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Statutory Construction
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