LEARMONT & LEARMONT

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEARMONT & LEARMONT

[2020] FCCA 3131

Catchwords:
FAMILY LAW – Interim parenting arrangements for children aged 9 and 6 – parties consented to final orders in November 2018 – proceedings re-commenced in 2020 – mother alleges father has abused the children – father alleges mother is fabricating allegations – nature of interim hearing – lack of expert evidence – best interests of the children – matters to be considered.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 67Z

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Mazorski v Albright (2007) 37 FamLR 518

N & S and the Separate Representative (1996) FLC 92-655

Stevenson v Hughes (1993) FLC 92-363

W & W (abuse allegations: unacceptable risk) [2005] FamCA 892

Applicant:

MR LEARMONT

Respondent:

MS LEARMONT

File Number:

ADC 1605 of 2018

Judgment of:

Judge Brown

Hearing date:

4 November 2020

Date of Last Submission:

4 November 2020

Delivered at:

Adelaide

Delivered on:

17 November 2020

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

Mellor Olsson

Counsel for the Respondent:

Mr Boehm

Solicitors for the Respondent:

Tolis & Co

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:

The orders made 13 November 2018 do continue.
Until the commencement of the 2020/2021 Christmas school holidays, during school term time the father collect the children X born in 2010 and Y born in 2014 (‘the children’) from school at the commencement of his time and drop them off to school at the conclusion of his time.
Any handovers that do not take place at the children’s school are to take place at the McDonald’s Restaurant, B Street, Suburb C.
The father return the child X to the mother’s care immediately upon the child becoming emotionally distressed whilst in his care.
Each party is restrained and an injunction issue restraining them from physically disciplining the children whilst they are in their care.
Each party is restrained and an injunction issue restraining them from having the children receive any psychological treatment without the written consent of the other.
Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children X born in 2010 and Y born in 2014 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Further consideration of the matter is adjourned to 8 February 2021 at 9.30am for directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1605 of 2018

MR LEARMONT

Applicant

And

MS LEARMONT

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons concern appropriate interim care arrangements for two children, in a high conflict parenting dynamic, involving allegations of family violence and physical abuse of children; which, in turn, are countered by allegations of psychological manipulation and alienation of children.
Mr Learmont “the father” and Ms Learmont “the mother” are the parents of X born in 2010 and Y born in 2014. It is the mother who alleges the children are at risk of abuse; whilst the father asserts that the mother is intent on disrupting his hitherto close relationships with X and Y through her mistaken or fabricated allegations of abuse.
Currently, the children live predominantly with their mother. The regularity of X’s time, with her father, has been interrupted since mid-January of 2020. So far as Y is concerned, there have been difficulties, with her spending time with her father, since mid-July 2020.
As will be explained in greater detail, in due course, since October, there has been a fluidity in respect of arrangements in respect of the children spending time with their father. Mr Learmont has, in the face of the mother’s objections, presented himself at their school and left with both children on two occasions. From his perspective, the children have easily been persuaded to leave with him. Ms Learmont does not agree.
The father’s position is that the children should be exchanged, at their primary school, henceforth, in order to avoid the mother’s influence at handover. He concedes X is an anxious child and is open to her spending an introductory period of afternoon time, with him, until overnight time is reintroduced.
So far as Y is concerned, it is the father’s position that there should be no impediment to her spending regular overnight periods, in both the school week and on weekends, as the parties had previously agreed. He vigorously refutes the allegation that he has recently struck Y so that a handprint of bruises was left on her buttocks and torso.
The mother’s position is that the father’s time, with X, should be suspended, whilst an independent children’s lawyer is appointed and the father and X undergo a process of “reportable unification counselling” with Dr D.
Again Mr Learmont disputes that X, in particular, was exposed to a violent confrontation alleged to have been precipitated by him at a recent handover in February of this year. He is deeply suspicious of any counselling suggested by the mother, asserting that she has recently misled a psychologist consulted by her and the children about his conduct.
It would appear to be the case that the mother is open to Y spending time with her father, to some degree, provided Mr Learmont undertakes a number of parenting courses and a program of anger management. In addition, she would wish the father to be restrained by an injunction that Mr Learmont’s fiancé is “to be substantially present” during any period of time the children spend with their father.

Background

The parties married in 2009 and separated on 20 April 2018. It is the father’s position that, on this day, the mother physically assaulted him, by scratching his face with her fingernail, leading her to be charged with aggravated assault. Later, on 24 April 2018, the father was named as the protected person, in an interim intervention order, which restrained the mother from coming into any contact with him.
The mother has a diametrically opposing view of what occurred on 20 April and indeed during the parties’ marriage. To the contrary, she asserts that on the date in question it was the father who assaulted her first, as he had frequently done before, and she inadvertently damaged a healing scab on his face, when defending herself.
Accordingly, it is the mother’s case that there were no grounds for the interim intervention order and she had been the victim of the father’s controlling and coercive behaviour, during the entirety of the parties’ marriage.
On the other hand, it is the father’s case that it is the mother who is emotionally reactive and incapable of curbing her temper, which causes her to lash out physically, when angered. Each party alleges the other has some form or other of psychological infirmity. For her part, the mother asserts that the father suffers from anxiety and depression and has been suicidal in the past.
Police were involved in the incident of 20 April 2018. They directed the father to stay away from the parties’ former family home, presumably as a mechanism to keep the peace. During this period, the mother and children left the home and went to live with the maternal grandparents.
It is the father’s position that he now regrets allowing the children to remain in their mother’s care, as he believes she lacks insight into the responsibilities incumbent in being a parent, particularly in respect of supporting the children to have a meaningful level of relationship with him.
The father commenced the first round of legal proceedings, concerning arrangements for X and Y’s care, three days after the parties’ final separation, on 27 April 2018. At this stage, he sought orders that the children live predominantly with him, and, in the longer term, live with each of their parents, as the court ultimately saw fit.
The mother responded on 15 May 2018, seeking the same sorts of orders, but in her favour. At this early stage, each of the parties asserted that the other had been a violent spouse. The father conceded that X had issues relating to her anxiety and obsessive compulsive disorder traits.
In her affidavit material, the mother asserted that she had been regularly physically assaulted and abused, during the parties’ marriage, often in front of the children. She alleges that she received a black eye and damaged jaw, as a consequence of being assaulted. Her allegations are serious.
The father is a professional aged forty. The mother is an administrative assistant aged thirty-eight. They met in the workplace. It is my impression that each is a sophisticated person in respect of the workings of the legal process. Each presents as an articulate advocate for their cause. The case has created a large number of documents.
It is the mother’s case that she made some reports of family violence to police but ultimately declined to proceed with charges against the father. At the early stage of proceedings, she provided some corroborative affidavit material, from work colleagues and a neighbour, which supported her allegations that she had been the subject of serious family violence emanating from Mr Learmont. None of this evidence has been subject to scrutiny through cross-examination.
As this brief summary indicates, the case presented before the court, in mid-2018, was a complex and multifaceted one, categorised by serious allegations of spousal misconduct, which were difficult for the court to resolve prior to any exhaustive inquiry into the matter, which would only be able to be provided at the final hearing stage.
In addition, the parties were in significant disagreement as to the nature of the children’s relationship with each of their parents. It was the mother’s position that X, in particular, was frightened of her father. On the other hand, it was the father’s position that both children enjoyed a close and loving relationship with him.
At this early stage, the parties moved forward through a graduated process of consent orders, which no doubt were intended to defuse tensions between the parties. Initially, the children spent time with their father, after school each Wednesday, and for a longer period on each Sunday, with handover to be either at their school or at a convenient McDonald’s restaurant.
On 22 June 2018, the parties agreed to commission Ms E to prepare a family assessment report. They also agreed not to discuss the pending police charges against the mother, with either of the children. At the same time, the father promptly inaugurated proceedings to end the parties’ financial relationship with one another.
These proceedings were compromised in August of 2019 and involved the transfer of the former matrimonial home to the mother. It is my understanding that she continues to live in this property with X and Y. The father has recently purchased a home with a swimming pool, which he asserts is appealing to the children concerned. He is engaged to be married.
If Ms E did prepare a family assessment report, it has never been provided to the court. What does seem to have occurred is that the parties agreed to engage in a process of private mediation, in order to resolve the parenting issues outstanding between them.
Given the emphasis – provided by the Family Law Act 1975 – on parents agreeing on arrangements for the care of their children, this was axiomatically a sensible course to adopt and one which the court encouraged. It would be naïve, however, to think that this process inaugurated a period of easy consensus between the parties.
However, the process of mediation led to a final consent order being made, on 13 November 2018. Pursuant to these orders, it was agreed as follows:
·X and Y would live with their mother;
·No formal order was made in respect of the conferral of parental responsibility in respect of either child;
·The parties were each to inform the other in the event of any serious illness, injury or medical emergency involving the children;
·The children would spend gradually increasing periods of time with their father, until January 2019, when they would spend time with him on alternate weeks from the conclusion of school Thursday until the commencement of school the following Friday and in the other week of each fortnight from the conclusion of school on Friday until 5:00pm the following Sunday;
·As well as for one week of the July and September/October school term holidays;
·Otherwise, the father’s school holiday time would continue during other school holiday periods, but be extended by two additional days;
·Other orders provided for the children to spend time on special occasions, particularly at Christmas, Easter and birthdays, with their father.
However, as indicated above, it seems improbable that these orders led to any great rapprochement between the parties and it is apparent that many issues, particularly those relating to family violence, remained unresolved between them.
In this context, I have not been advised as to what the outcome was of the police charges against the mother or whether there are any relevant ongoing family violence orders. Inquiries made of the embedded SAPOL court liaison officer indicate that they were withdrawn on 24 July 2018. There is currently no family violence order in place.
The father recommenced the proceedings on 21 August 2020. At this stage, it was his position that X had not spent time with him since 12 January 2020; whilst Y had not spent time with him since 11 July 2020. Both children attend F School.
As required by section 67Z of the Family Law Act 1975 the father filed a formal notice, concurrently with his application, in which he set out all allegations of child abuse and family violence, which he asserted were relevant to these proceedings.
This notice made reference to the following matters:
·The incident of April 2018, when he alleged the mother had physically attacked him, in the presence of the children, who had further witnessed their mother’s arrest;
·An incident which had occurred on 16 January 2020, at McDonald’s Suburb C, when the mother had reversed her motor vehicle at the father and Y, at a handover.
The father further deposed that following this incident, he had attempted to collect X and Y from their school, however X had “become adamant that she [did] not want to transition into my care [and] would scream, run away from me, or ignore me and sit in the school office reading a book and refusing to make eye contact.”[1]
[1] See father’s affidavit filed 21 August 2020 at [21]
It was the father’s further evidence that he had no wish to stress X and did not therefore force the issue, although he does not consider that the child had any proper reason for not wanting to spend time with him. However, it is his evidence that Y easily transitioned into his care and was happy to spend time with him.
However, the father deposed that the regime, so far as Y was concerned, broke down on 11 July 2020. This followed allegations, apparently relating to something which had occurred earlier in 2020, that Y had suffered some bruising in suspicious circumstances, which were alleged to emanate from him.
In addition, the father deposed that Y herself had disclosed to him that she was being subject to constant scrutiny, by her mother, after spending time with her father, which caused her emotional distress. This scrutiny involved being photographed and questioned by her mother.
In this context, it is the father’s position that, since the final orders were made, the mother has subjected him to a rolling series of allegations that he has physically abused the children or engaged in other forms of misconduct, which has resulted in the involvement of police and child protection services.
It is his position that none of the allegations, in question, have been substantiated, but the exposure of the children to them, by their mother, is, in itself, a matter of child abuse, as it amounts to systems abuse. Essentially, it is abusive for a parent to continue to seek out evidence of abuse and attempt to co-opt or influence a child against a parent. Mr Learmont has deposed that he has presented himself to police, in an attempt to clear his name, but has been informed that the authorities have no interest in him.
In light of the failure of Y to spend time with him, the father has also commenced contravention proceedings, against the mother, in tandem with his primary proceedings. As such, it is my impression that the relationship between the parties, already fraught with difficulties, has become even more polarised.
This in turn has led to the proceedings between the parties becoming more and more adversarial. As such, both the mother and father have filed multiple affidavits, in which allegations meet denials and counter-allegations in response.
In these circumstances, it is extremely difficult, if not impossible, for the court to reach any concluded position as to what has occurred in the past. However, this state of affairs cannot be helpful in providing a predictable and calm environment in which to parent the two children concerned, one of whom is apparently a highly anxious one.
The mother responded to the father’s application on 1 October 2020. She has since changed her solicitor. As required, she too filed a notice of risk, in which she provided the allegations relating to child abuse.
The particulars of alleged abuse provided by the mother are as follows:
“On several occasions the younger child, Y, has returned from visits with her father bruised and remarking that the father had squeezed her and that he had hurt her. There have also been instances of Y being smacked by the father. Both of the children have returned from visits visibly dishevelled and ungroomed, with it being noted that neither have their hair washed or brushed. This has resulted in both children's hair being severely matted, and in the instance of Y, having a hairdresser cut out a large chunk of hair. Both girls have also been noted as returning from a visit with their father visibly sunburnt on their face and body. Y at one point suffered a urinary tract infection, which the consulting doctor attributed to her being put in nappies at night time, which the mother notes should not have taken place and had not been used for the child for quite some time. There has been repeated psychological abuse directed at the children, particularly X, who has now refused to go with her father for the designated weekend visits. The father has harassed X at her school whilst collecting Y.
As a result of the incidents listed and the father's ongoing behaviour, both girls experience severe anxiety and fear when the topic of their father is brought up, or when it comes time for a visit with him, with X in particular remaining fearful and entirely apprehensive of any contact with her father. For example, on 30/01/2020, X woke crying, and had an anxiety attack, stating that she didn't want to go to school knowing that she would be staying at the father's that night. Y has said on numerous occasions that she does what the father says and asks, as she is scared of him and he gets angry if she does not comply. She has stated this to numerous police, psychologists, doctors.”

Essentially, the mother asserts that the father is not able to care for the children properly and is oblivious to both their physical and emotional needs. The mother further alleged that Y had been bruised as recently as 11 July 2020 and X continued to be subject to extreme levels of anxiety. She further asserted that the father was psychiatrically unstable.
In support of her allegation that Y had been assaulted by her father, Ms Learmont provided a photograph, which was said to indicate bruising in the form of an adult hand print on Y’s bottom. The photograph was taken in July of 2020. It would seem to be the case that this photograph has been provided to child protection authorities.
The mother also provided a psychological report from Ms G, dated 30 September 2020. Ms G indicated that both children had been referred to her by their general medical practitioner as a consequence of exhibiting symptoms of anxiety.
Ms G deposed that both children had made disclosures of having been subjected to violence and abuse by their father, which included Y being hit “very very hard” by her father, when he was angry. Ms G further indicated that she had been shown the photographs of the hand marks allegedly left on Y by her father.
It is Mr Learmont’s view that Ms G’s report is biased and therefore unreliable. He asserts that she has been told that the police believe he has assaulted Y, when they have made no such finding and believe the photograph in question is equivocal, as are statements made by Y herself. In these circumstances, his lawyer submits that it would be grossly imprudent for the court to place any great weight on her assessment of the children, which has had no input from Mr Learmont himself.
In addition, it is the father’s evidence that Y has told him that “her mummy” speaks to the psychologist first and she (Y) feels that she is not brave enough to tell the psychologist that she wants to see her father because mummy will get angry with me. The father relies on these statements to support his contention that the mother is placing pressure on the children to make complaints against him.
In addition, as previously indicated, the father asserts that the police have indicated that they do not wish to interview him as they do not consider the evidence available indicates that any offence has been committed involving the children.
Finally, the father asserts that Y revealed to him that she fell off the trampoline at her mother’s house and had “really hurt” herself. In this context, the father deposes that Y disclosed to him that her mother made her take her clothes of and took further photographs of the child, which were something that she did, “all the time”.
Essentially, it is the father’s position that the mother has fabricated the allegations of child abuse against him and has actively engaged a professional person and the authorities to pursue false claims against him. In addition, she has attempted to co-opt the children against their father, with whom they otherwise have a normal and loving relationship.
The father asserts that the mother’s motivation, in making these fabrications against him, is likely to be a financial one, relating to child support or conceivably stems from her inability to accept that he has formed a relationship with another person, and is engaged to be married.
On 6 October 2020, when the parties’ competing applications first came into court, I made an injunction restraining the mother from taking the children to further consult with Ms G. In addition, I made an order pursuant to section 69ZW of the Act requiring the Department for Child Protection to provide information to the court in respect of all allegations of abuse received in respect of the two children concerned.
In this context, the father’s solicitor, Ms Nikoloudakis has recently sworn an affidavit, in which she has deposed that she has examined the material produced to the court by the Department of Child Protection. Thereafter, she has identified some of the documents as being germane to these proceedings and annexed them to her affidavit.
The content of these documents is utilised by counsel for Mr Learmont, Ms Lewis, to add further weight to her submission that Ms G was provided with misleading information in respect of the outcome of the Department’s involvement with the family and therefore the court should approach her recommendations with extreme caution.
In particular, a case note dated 14 February 2020, indicates that police had watched video footage of the contested handover, which had occurred earlier that year. X is reported as being unwilling to leave the car for handover, however the father is described as not appearing agitated or angry.
Y is reported as appearing unconcerned. Clearly, these records do not support the mother’s allegation that the father was gripped by a violent rage at the time and subjected her to some level of intimidation. It is implicit that the police considered that there were no grounds for them to become involved.
In addition, it is reported that the police had indicated a view that the mother had a past history of making multiple claims, which the police had found to be inaccurate after investigation. In addition, the Department notes that there were no other witnesses available to corroborate the mother’s accounts in this regard.
A further case note dated 11 July 2020 refers to the attendance of the mother and Y at the Region H Hospital in respect of bruising sighted on Y’s back. When spoken to, Y is reported to have said the following: “We’re not sure where the marks came from, but they look like fingerprints and the fingerprints are too big to come from mummy’s hands.”
Y is then reported as having stated that her father had smacked her twice the previous night but she herself did not present as either upset or distressed. The hospital did not apparently substantiate any suspicious injury and cleared the child to leave the hospital without any further medical follow up. However, following this incident, the mother withheld Y from spending time with her father.
The parties’ competing interim applications were fixed for hearing on 26 October 2020 at 9:00am. This day was a Monday. At approximately 10:30am the previous Friday, Mr Learmont filed a further affidavit, to which the mother had not responded. Her counsel, Mr Boehm, sought that the proceedings be adjourned so she could reply. In these circumstances, with some reluctance, the proceedings were further adjourned until 4 November 2020.
Accordingly, as at the date of the interim hearing, each party had filed multiple affidavits, which follow the common practice of indicating denials to particular paragraphs of opposing affidavits. As a consequence, it is difficult to form a clear narrative of what has occurred, up to this point. Axiomatically, however, the parenting relationship between the parties concerned is one mired in mistrust and hostility.
The most significant thing, which has occurred recently, was that on 16 October 2020, Mr Learmont arrived at the children’s school, shortly prior to the time for student dismissal. He collected both X and Y from school and took them to his sister’s home where they played with their cousins. X was returned via their maternal grandmother, at 7:30pm that evening, at the Suburb C McDonalds. Y stayed longer over the weekend.
A similar arrangement ensued on the following Thursday, 22 October 2020. Once again, the children left the school with their father, although the father’s fiancée, who is apparently a teacher, was involved in the transition. It is the father’s case that he behaved calmly and rationally. This forms the basis of his contention that, if the mother is not present, the children are able to transition relatively easy to his care.
The mother has a different view of what occurred. In respect of the visit commencing on 16 October 2020, it is her evidence that the school authorities indicate that X left with her father with some reluctance and only on the proviso that she would be returned at 7:30pm that evening.
Y stayed longer but on her return to her mother’s care, the following Sunday, she indicated that her father had made derogatory comments about the mother to her. The father disputes this allegation. It is his position the children swam in the pool and attended normal excursions with him. It is his view that it is the mother who is placing X under emotional pressure rather than him.
From her perspective (although she does not appear to have been there), the mother refutes the father’s assertion that X was persuaded to leave the school with him on 22 October 2020 without any great difficulty.
To the contrary, it is the mother’s evidence that it took the father and his partner approximately an hour to persuade X to leave and when she returned home that evening she was clingy and anxious. This forms the basis of the mother’s assertion that X’s relationship with her father is fractured and warrants the professional intervention of Dr D.

The legal principles applicable

These proceedings arise at an interim stage. Interim hearings occur in a truncated form relying on the court’s examination of affidavits. As such, controversies arising in the affidavit material cannot be resolved as the restricted nature of the hearing available precludes cross-examination and findings of credit.
This is the chief drawback of interim hearings, which very often arise in periods of acute crisis and family conflict, which necessitate the court’s urgent involvement notwithstanding that it is unable to conduct an exhaustive examination of all potential evidence available.
These problems all arise in the current matter. X and Y’s family is obviously in a state of crisis but their parents fundamentally disagree as to what is the aetiology of that crisis. Decisions need to be made notwithstanding that the central issue arising in the case – are the children at risk from either of their parents – cannot be definitively resolved.
Although there are a lot of affidavits in the case, my impression is that these have been hastily prepared and are largely reactive in nature. In addition, there is a dearth of independent and expert evidence regarding the nature of the relationship between the children concerned and each of their parents. There would seem to be a pressing need for such a report, which has the joint imprimatur of both parents.
Such a report is likely to be of vital importance in the current matter and may throw light on the current status of the relationship between X and her father and explore whether it is or is not fractured, as the mother would have it, and whether it is or is not in need of some sort of therapeutic intervention.
In the context of the current proceedings, it is not possible for the court to make any definitive finding as to whether either of the children has been subjected to abuse as defined by section 4 of the Family Law Act or been exposed to family violence, as defined by section 4AB of the Act.
Rather, at this stage, the function of the court is to assess the degree of risk arising for the children from being subjected to either abuse or family violence in the future. In addition, the court cannot ignore the risk of a child being deprived of an otherwise meaningful relationship, with a loved parent, on the basis of uncertain allegations or untested evidence.
In making this assessment of risk, the court is required to assess the degree of possibility that a harmful event will occur in future and what will be its level of severity, to any individual, particularly any child, who will be potentially affected by it.[2]
[2] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess the risk arising for any child, on the material currently before it, and cannot defer that assessment, until a later stage, on account of deficiencies in the evidence available.
Rather, the court must, as best it can, assess the nature and quality of the risk arising and put in place a response, which it considers to be proportionate to the degree of risk so assessed.
Given the limited nature of evidence available at the interim stage, which has not been tested through cross-examination, this is often an extremely difficult task. However, it cannot be deferred.
Obviously, in carrying out such an assessment, the best interests of the child concerned remain paramount. The court must look at the evidence and consider what is the likelihood of some deleterious outcome occurring – with or without precautions.
For obvious reasons, highly conflicted parenting relationships provide fertile ground for allegations of abuse to arise, which cannot be easily neutralised by the parties concerned discussing them openly and candidly.
As was evident in the initial round of proceedings, notwithstanding their prompt resolution, the parties do not trust each other. As a consequence, it would be unrealistic to expect the parties to talk frankly to one other about why X is anxious and what has caused the injuries to Y. In addition, neither is likely to be able to approach these issues with any degree of dispassionate objectivity.
There must always be a possibility that a parent, either acting in good faith or as a result of a misperception of information, erroneously believes that a child has been subject to abuse. In addition, it is not unknown for a parent to deliberately fabricate allegations in order to gain an advantage in proceedings. Ambiguous events can have an innocent explanation.[3]
[3] See N & S and the Separate Representative (1996) FLC 92-655
The father’s position is that that the police and child protection authorities are not concerned about any future interaction he may have with the children., and that there is an explanation for Y’s bruising, which is not consistent with him intentionally or punitively assaulting the child.
Further, he maintains that there has been an independent examination of what occurred at the disputed handover and this has not cast any aspersions onto his bona fides as a parent. He concedes that X is an anxious child but contends that his behaviour since earlier this year demonstrates that he is sensitive to her needs in this regard. His evidence is that, if she is supported appropriately, she can separate from her mother and spend meaningful periods of time with him.
The mother’s position is that the father is a coercive and controlling person with a violent and unpredictable temper, which has caused X in particular to be frightened of him. In this context, she points to the essential nature of family violence, which invariably happens in private, rendering its independent verification extraordinarily difficult.
However, it is her case that just because she cannot definitively establish the father has behaved in a consistently violent and controlling manner, this does not neutralise the risk which Mr Learmont presents to these two young children. In this context, she asserts the court must give very significant weight to what has been reported by Ms G.
Although the nature of an interim hearing is different in its scope to that provided by a final hearing, the same legal principles apply. In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In this case, the parties have diametrically opposing views as to how Y came to sustain bruising and whether the children concerned have been exposed to coercive and controlling violence emanating from their father, which has occasioned them significant psychological distress.
The court is required, in assessing risk, to subject the various allegations concerned to some level of scrutiny, bearing in mind the consequences of making a wrong assessment which may, on the one hand, compromise the children’s level of relationship, with their father, for a significant period of time or on the other hand, expose them to a risk of coming to harm, in either a physical or emotional sense.
The court should not countenance an outcome which presents an unacceptable level of risk that a child or children will come to harm. In making this assessment, the court is not required to determine definitively whether a person actually harmed a child – this may be impossible, particularly if the abusive incident occurred in the absence of witnesses and the child concerned is of tender years and so unable to provide a clear narrative of what happened.
Nor should the court attempt to completely neutralise a nebulous degree of risk. This may be unrealistic, particularly if its consequence is that a child is deprived of spending time and maintaining a proper degree of relationship with a person who is significant to him or her. The test is a balancing one, which must be exercised carefully and judicially.
In W & W (abuse allegations: unacceptable risk) the Full Court summarised a number of authorities dealing with abuse allegations and provided guidelines to the assessment of unacceptable risk, which can be summarised as follows:
·The unacceptable risk test requires the court to give real and substantial consideration to the facts of the case concerned in determining whether there is or is not an unacceptable risk of harm befalling a child;
·In so doing, the sorts of questions, which the court should pose for itself, in respect of the allegations concerned, include the following:
oWhat is the nature of the events alleged to have taken place?
oWho has made the allegations?
oTo whom have the allegations been made?
oWhat level of detail do they involve?
oOver what period of time are the events alleged to have occurred?
oWhat are the effects exhibited by the child?
oWhat is the basis of the allegations?
oAre the allegations reasonably based?
oAre the allegations genuinely believed by the person making them?
oWhat expert evidence has been provided?
oAre there satisfactory explanations for the allegations apart from abuse?
oWhat are the likely future effects on the child concerned?
·The weight to be attached to the answers arising from these questions will vary from case to case.
The objects and principles which underline Part VII of the Act, which deal with the making of orders in respect of children, emphasise the fact that parents share duties and responsibilities for their children, who in turn have an entitlement to have their parents actively involved in caring for them, provided that such care is commensurate with their safety.
As a consequence of these objectives, there is a presumption that parents should be conferred with equal shared parental responsibility for their children [section 61DA].

However, this presumption is rebutted if there are reasonable grounds for believing that a child has been subject to either abuse or family violence or it would not be reasonable for it to be applied at the interim stage.
Given the polarised positions of the parties, which each involve allegations of parental misconduct, in my view, it would clearly be inappropriate for the presumption to be applied in this particular case.
Rather, against the background of conflicted evidence, the court must do its best to fashion the outcome, which it believes will best serve X and Y’s best interests, until further evidence is to hand.

Discussion

I accept that X and Y have a significant level of relationship with their father. He has been a constant presence in their lives since the date of their respective births. This state of affairs is implicit in the orders on which the parties agreed in November 2018.
There is extremely limited evidence available to me to explain why X is an anxious child. It may conceivably be part of her innate makeup; a response to her violent father; a response to her hyper-vigilant mother; or a combination of all these factors. In addition, it may be the case that she is either consciously or unconsciously influenced by her mother, who has a significant degree of antipathy for Mr Learmont.
It would seem to be the case that Y sustained some degree of bruising to her buttocks and torso. These injuries did not require specific medical intervention and I have not been provided with any medical report in respect of them. Children do sustain cuts and bruises, from time to time, for innocent reasons, particularly when playing. They do fall off trampolines.
The relevant authorities have been alerted to Y’s bruising and have not elected to take any specific action. Y herself has apparently given an equivocal explanation for her injuries. Ms G is incorrect when she reports that the children have been forensically interviewed and that the photographs are unequivocal in their content. The gloss Ms G provides that Y has been regarded as an unreliable witness merely because of her age is not soundly based.
In all these circumstances, I approach Ms G’s report with a high degree of caution and do not regard it as being definitive. The significant level of conflict between the parties has the potential for any independent expert to be misled because he or she has not been apprised of all relevant facts and circumstances and has heard accounts from only one party.
The thought that a parent would strike a child is horrific to most reasonable individuals and one’s natural inclination is to dismiss it. However, parents do assault their children. In addition, it is not unknown for parents to influence their children to make unwarranted complaints of abuse for tactical reasons, or out of malice, or simply because they are mistaken or misguided.
At this stage, in my assessment, it would be both premature and unwarranted to restrict X and Y from having the significant degree of relationship, with their father, envisaged in the arrangements on which the parties agreed as recently as November of 2018.
The question remaining being whether X’s time with her father should be more restricted than that of her younger sibling as occurred for the first portion of 2020 with Mr Learmont’s tacit, if uneasy, agreement. It is Ms Learmont’s position that there should be a different regime for the two children.
On the other hand, Mr Learmont asserts that it would not be beneficial for the children to be subjected, in a formal sense, to two different regimes. It is also his position, as I understand it, that he is sensitive to X’s particularly emotional susceptibilities as evident by the fact that he has returned her early.
I do not consider that the continuance of the current regime would expose either child to a degree of risk, which would be unacceptable for the court to countenance at this stage. Rather, I consider that there is an appreciable risk that the children will lose the potential to benefit from knowing their father to the degree recognised by the Act as being optimal for children.
That is to a meaningful degree. The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[4] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[4] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
The regime inaugurated by the November 2018 orders saw the children spending time with their father during the school week and on weekends and holidays. It provided a mix of relaxed and more formal time. Quality – what is done with time – and quantity – the amount of time in question – are both relevant to the assessment of whether a regime of time is meaningful and so beneficial for the child concerned.
If X spends no time with her father or only artificially truncated time with him, it does not seem to me that such an outcome will allow her to derive the benefits she is likely to derive from her interacting with a person of such central importance to her on-going sense of identity.
In my view, it would be in her overall best interests to be able to interact with him in a variety of contexts and settings for a reasonably lengthy, rather than token periods of time. This is certainly my view in the absence of any independent family assessment regarding the nature of X’s relationship with her father.
One of the implicit features of Ms Learmont’s case is that X does not wish to spend time with her father. What is the specific basis of this wish, which is highly controversial, is also unclear. The underpinning of the mother’s case would appear to be that X has passed some form of judgment on him because of his past conduct towards her or her mother.
The court is required to give credence to a child’s view. However, it must also be mindful of the maturity of the child concerned and the existence of any other factors which may be impacting on that child. X will shortly be ten years of age. She cannot be regarded as being any way near her full maturity, either in cognitive or emotional terms.
One of the central issues, in this case, is the source of X’s anxiety. To his credit, Mr Learmont acknowledges that she is an anxious child, although he disputes that he is the root cause of her anxiety. Emblematic of this dispute is the disagreement currently arising between the parties as to how easily or otherwise he was able to persuade her to leave with him from her school, in the absence of her mother.
For the reasons already provided, I am unable to resolve this dispute in the context of this truncated interim hearing. It encapsulates the problem confronting the court; how to balance the need for X to maintain a meaningful level of relationship with her father and all the benefits that it entails whilst not subjecting her to an unacceptable level of anxiety or distress.
In my view, the best way to achieve this balance is to adopt the proposal advocated by Mr Learmont – that is remove the mother from the delivery process as much as possible. Until the school holidays begin, the father can collect the children from their school; return should be comparatively easy.
I will make an injunction restraining the parties from utilising physical means to discipline the children. I make this injunction not on the basis of any finding of fact but to underline protective concerns so far as the children are concerned.
In addition, I will order that Mr Learmont is to return X, to her mother’s care, in the event she becomes emotionally upset. I appreciate that this is a difficult order to enforce but again its purpose is to engender some degree of trust between the parties, particularly in circumstances in which the father has indeed returned X early and has indicated his sensitivity to her anxiety in the past.
Otherwise, it is my view that the existing orders should continue in the short to medium term, until further evidence is to hand. These orders were agreed upon by the parties and make provision for special occasions. It is better that, in the event school is not available, that McDonalds be used as a handover venue rather than a police station.
In this context, I note that there are presently no family violence orders currently and the police do not consider that Mr Learmont behaved inappropriately at the controversial handover at Suburb C McDonalds.
Mr Learmont has instituted contravention proceedings against Ms Learmont. A person bound by a parenting order is required to adhere to such an order unless there exists a reasonable excuse for not abiding by the order, which relates to the health and safety of the child or on some other objectively reasonable basis.
Such excuses are to be objectively assessed. The law is clear on what are the obligations of a parent, who is subject to a time spending order.
In Stevenson v Hughes[5] Fogarty J expressed the duty as follows:
“It is important…that custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or passive resistance.”
Rather the duty concerned involves active obligations incumbent on a parent to encourage a child to spend ordered time with the parent and if necessary direct the child to attend in compliance with the relevant court order. Positive encouragement and support are what is required not token efforts or the subliminal conveyance to a child that they have a choice to make about time spending and what that choice should be.
[5] Stevenson v Hughes (1993) FLC 92-363 at 79,816
In my view, there is an urgent need for the court to have access to an expert and independent assessment of the family dynamic in this case and its implications for the children. Such an assessment will necessarily involve an assessment of the nature of the relationship the children hold with each of their parents, as well as some form of canvassing of their views, subject to an assessment of their overall maturity and willingness to provide them.
Given the crisis surrounding the matter most recently coming back to court, this is not an issue which has been thoroughly traversed with the parties. I fear that if the parties wish for someone like Ms E to undertake the process there will be a delay of some months. However, for largely axiomatic reasons, such a report is essential sooner or later.
In addition, given the prominence, in the case, to issues pertaining to family violence and child abuse, which are overlayed upon a significantly dysfunctional co-parenting relationship, it is appropriate that an order be made for X and Y to be independently represented in these proceedings.
The precise aetiology of X’s distress and anxiety is controversial. In these circumstances, any therapeutic approach to its treatment also has the potential to be controversial, particularly if any such professional is subsequently called upon to give evidence in the case.
Mr Learmont was not consulted in respect of the possible involvement of Dr D in this case. He has no personal knowledge of her expertise or how she will approach his involvement with X. As such, he is not likely to have confidence in her.
In my view, in all these circumstances, in the absence of agreement between the parents, I am not persuaded that it would be in X’s best interests to undergo the therapy advocated by Ms Learmont so far as Dr D is concerned.
I am fortified in this view when I consider the overarching principles of Part VII of the Act contained in section 60B.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate:

Date: 17 November 2020

[2020] FCCA 3131

17 November 2020

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Consent

Injunction

Procedural Fairness