Leaton and Tuppahige
[2016] FamCA 852
•5 October 2016
FAMILY COURT OF AUSTRALIA
| LEATON & TUPPAHIGE | [2016] FamCA 852 |
| FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to the parenting arrangements of the children – where the father alleges child sexual abuse and considers the children at risk in the mother’s care – where consideration is given to the principles relevant to parenting orders – where the Court does not consider the children to be at risk – where it is ordered that the parties have equal shared parental responsibility – where the mother is required to consult with the father but ultimately she is able to make decisions in respect of health and education – where it is ordered that the children live with the mother and spend substantial and significant time with the father – where the father is restrained from subjecting the children to unnecessary examination and investigation. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZT, 69ZV, 69ZX |
Family Law Rules 2004 (Cth) r 15.13
| Beckham & Desprez [2015] FamCAFC 247 | ||
| APPLICANT: | Ms Leaton | |
| RESPONDENT: | Mr Tuppahige |
| INDEPENDENT CHILDREN’S LAWYER: | Southern Vales Legal |
| FILE NUMBER: | ADC | 865 | of | 2010 |
| DATE DELIVERED: | 5 October 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 18, 19, 20, 21, 22, 27 & 28 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Read |
| SOLICITOR FOR THE APPLICANT: | Southern Community Justice Centre |
| COUNSEL FOR THE RESPONDENT: | Litigant in Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Southern Vales Legal |
Orders
That the parties share parental responsibility for the children C born … 2007 and R born … 2009 (collectively “the children”) subject to paragraph 2 hereunder.
That the mother have parental responsibility in respect of education and health issues affecting the children subject to a requirement that she will advise the father in writing (electronically or otherwise) and provide her views about any major issues affecting the children’s education and health (including dental) and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
The children shall live with the mother.
The children shall spend time with the father as follows:-
(a)During school terms, each alternate weekend from the conclusion of school on Thursday (or 4 pm if a non-school day) until the commencement of school on Monday (or 9 am if a non-school day) PROVIDED that this order shall be suspended during periods of school holidays and shall recommence in its operation on the first weekend of each new term;
(b)During each of the April, July and September/October school holidays from the conclusion of school on the last day of term until 5 pm on the middle Saturday of the said holidays;
(c)During the Christmas school holidays:-
(i)In 2016/2017, for the first half thereof commencing from the conclusion of school on the last day of term until 5 pm on the mid-point of the holidays and for the same period in each alternate year thereafter;
(ii)In 2017/2018, for the second half thereof commencing at 5 pm on the mid-point of the holidays and concluding at 5 pm on the last Sunday of the holidays and for the same period in each alternate year thereafter PROVIDED that paragraph 4(c)(i) of the within order be suspended from 3 pm on 24 December until 3 pm on 26 December in each year;
(d)From 3 pm on Christmas Eve until 3 pm on Christmas Day in 2016 and during the same period in each alternate year thereafter PROVIDED HOWEVER that the children shall spend Christmas with the mother in 2016 and each alternate year thereafter from 3 pm on Christmas Day until 3 pm on Boxing Day;
(e)From 3 pm on Christmas Day until 3 pm on Boxing Day in 2017 and during the same period in each alternate year thereafter PROVIDED HOWEVER that the children shall spend Christmas with the mother in 2017 and each alternate year thereafter from 3pm on Christmas Eve until 3 pm on Christmas Day;
(f)On the children’s birthday being … and … in each year if the children are not in the care of the father:-
(i)If the birthday falls on a school day THEN from the conclusion of school until 6 pm;
(ii)If the birthday falls on a weekend THEN from 9 am until 1 pm PROVIDED THAT in the event either child’s birthday falls on a day when they are in the care of the father THEN the father’s time shall be suspended in each year and the children shall return to the mother’s care as follows:-
A.If a school day, from the conclusion of school until 6 pm on the said child’s birthday;
B.If a non-school day, from 9 am until 1 pm on the said child’s birthday.
(g)On Father’s Day in each year from 4 pm on the Saturday immediately preceding Father’s Day until 6 pm on Father’s Day PROVIDED that in the event that Mother’s Day shall fall on a day that the children are in the care of the father THEN the father’s time shall be suspended and the children shall return to the mother’s care from 4 pm on the Saturday immediately preceding Mother’s Day until 6 pm on Mother’s Day;
(h)That in the event that the said children are to be with the father on the birthday of L Junior born ... 2012 THEN the father’s time shall be suspended and the children returned to the mother’s care from 9 am on L Jnr’s birthday to 9 am the following day.
Whilst the children are in the care of each party they shall have telephone communication or (Skype or Facetime communication if available) with the other party at reasonable times and in the event that the said children do not spend time with either party for a period of seven (7) days, each party shall facilitate such communication on not less than one occasion during that seven (7) day period at times to be agreed between the parties, but in default of agreement at 7 pm on the Tuesday of the said seven (7) day period.
That all handovers that do not take place at the children’s school shall take place at such location as may be agreed between the parties but in default of agreement inside the B Police Station.
That the mother shall be responsible for and arrange all medical appointments with general practitioners and other allied health practitioners in her own time and where those appointments are necessary to be in the father’s time following discussions with the father for appointments to fit in with his schedule where possible, advise the father of all appointments.
In the event that the children are in the care of the father and he considers that they need urgent emergency medical attention he is to make an appointment at Health at Suburb G or the J Hospital only and only on the basis that it is an absolute emergency, that he has notified the mother or attempted to notify the mother and she is not able to attend to collect the children in which circumstances the father is able to take the children for medical attention or treatment.
That each party do advise the other as soon as is practicable of any serious accident or illness suffered by the children including the name of any treating health professional and the details of any diagnosis, prognosis and treatment.
The father be at liberty to obtain direct from the children’s treating health professionals information as to the children’s medical condition including any diagnosis, prognosis and proposed treatment.
The mother will do all things necessary to authorise the children’s school to provide copies of reports, photographs (at the expense of the father), newsletters and any other information in relation to the said child’s progress as they may require from time to time and is consistent with the reasonable obligations of the said school to provide same.
That each party be able to attend all school functions, school and extra-curricular performances and special occasions in which parental involvement is encouraged including sports, parent/teacher interviews and presentations.
The father is restrained and an injunction is granted restraining him from:
(a)Reporting any allegation of abuse of the said children to any person or organisation SAVE AND EXCEPT:-
(i)South Australian Police (SAPOL);
(ii)Child Protection Services; and
(iii)Families SA;
(b)Personally videotaping or otherwise recording any disclosure of abuse by the children or allowing any third party to do so SAVE AND EXCEPT for any authorised employee or official of SAPOL, Child Protection Services or Families SA if undertaken in the course of an investigation;
(c)Discussing these proceedings or any issue or allegation raised in these proceedings with or in the presence of the said children or from allowing any other person to do so;
(d)Discussing these proceedings or any issue or allegation raised in these proceedings with any other person or entity including but not limited to the said child’s school, staff or care provider to the said children, extra-curricular co-ordinators or teachers;
(e)Allowing any person or permitting the children to attend upon any psychologist, counsellor or any other mental health practitioner or social worker; and
(f)From taking the children or either of them or allowing any third party to take the children or either of them to a general medical practitioner, any health professional, psychologist, counsellor or any other mental health practitioner or social worker or hospital SAVE AND EXCEPT in the case of an absolute emergency in which case the father must notify the mother forthwith of the emergency and the action taken and by whom.
The parties do all things necessary to obtain passports for the children which shall thereafter be held by the mother.
That each party be and are hereby restrained by injunction from removing the said children from the Commonwealth of Australia without the prior written consent of the other party or further order of the Court or from obtaining or causing the issue of a passport for the said children without first obtaining the written consent of the other party SAVE as is permitted by these orders.
That the mother be restrained and an injunction is hereby granted restraining her from allowing the children or either of them to come into contact with Mr V and Mr Leaton or allowing any third party to do so.
That the order appointing the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leaton & Tuppahige has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 865 of 2010
| Ms Leaton |
Applicant
And
| Mr Tuppahige |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Further Amended Initiating Application filed 13 July 2016, Mr Tuppahige (“the father”) seeks parenting orders in respect of C born in 2007 (“the older child”) and R born in 2009 (“the younger child”) (collectively “the children”).
A summary of the orders sought by the father are as follows:-
(1)That the father have sole parental responsibility for the children but with particular focus on their medical and dental needs, education, extra-curricular activities and allied health therapy which includes speech pathology, occupational therapy, physiotherapy, ophthalmology and podiatry.
(2)That the children live with the father and spend limited time with the mother restricted to four hours on each alternate weekend to be supervised by an independent supervisor.
(3)That the mother be restrained from allowing the children to come into contact with a number of specified people, but in particular her current partner Mr L.
(4)That the father be able to apply for a passport for the children.
(5)That the mother is restrained from removing the children from the State of South Australia, the care of the father, their school and from approaching the children’s school, language school, dance classes or sports venue.
By Amended Response filed 4 July 2016, Ms Leaton (“the mother”) opposes the orders sought by the father. A summary of the orders sought by the mother as set out in the written final submissions filed on her behalf are as follows:-
(1)That the parties have shared parental responsibility for the children.
(2)That the mother have sole parental responsibility in respect of matters relating to education and health affecting the children.
(3)That the children live with the mother.
(4)That the children spend time with the father each alternate weekend from the conclusion of school Friday until the commencement of school on the following Monday, for one half of the school holiday periods and on other specified occasions.
(5)That the father be restrained from reporting any allegation of abuse in respect of the said children to any person or organisation other than South Australian Police, Child Protection Services and Families SA.
(6)That the father be restrained from personally videotaping or otherwise recording any alleged disclosure of abuse by the children or allowing any third person to do so, or from discussing any allegation or assertion with the children’s teachers or their school.
(7)That the parties are restrained from removing the children from the Commonwealth of Australia without the prior written consent of the other party.
(8)That the parties exchange information in respect of the children’s health, welfare and development as soon as is reasonably practicable following any significant adverse health event.
The current proceedings must be considered against the background of final parenting orders made by consent on 28 August 2013.
BACKGROUND
The father was born in South Asia in 1979. The mother was born in South Australia in 1980. Both parties are 36 years of age.
The parties met in 2006. At the time the mother was in receipt of a disability support pension. The father had completed qualifications in food processing and was employed at a beverage production business. He thereafter commenced a certificate III in aged care and completed the course in 2007.
Whilst the parties disagree as to the circumstances of the commencement of their relationship, it is not controversial that they soon commenced an intimate relationship.
The older child was born on in 2007 and the parties commenced cohabitation in October 2007.
The birth of the child was difficult for the parties. The mother had assistance from Child and Youth Services. The father was away from the home during the week only being able to assist the mother on weekends.
The child has been diagnosed with congenital medical disorder which has both intellectual and physical consequences in terms of ongoing disabilities. It is likely that she will require intervention and assistance in respect of speech therapy, podiatry, physiotherapy and special schooling.
A variety of health professionals will likely feature heavily in the older child’s management on an ongoing basis. The syndrome substantially affects the child’s intellectual and physical abilities and manifests itself in terms of a restricted ability to communicate.
The parties are in conflict as to who took on the primary care role for the older child. The father alleges that the mother was not able to cope with the requirements necessary to properly manage the child’s condition and that he would wash, dress, feed and care for the child in circumstances where the mother was not able to do so.
The mother asserts that during the relationship the father worked in a nursing home and it was she who attended to the child’s needs including specialist and other appointments.
At about the time of birth of the younger child in 2009 the parties were in high conflict. The father was considering separating from the mother but delayed that decision following the younger child’s birth.
The mother alleges that the father was abusive and violent during the relationship. She asserts that he was quick to temper and would become aggressively physical with both her and the children, in particular the older child because of his impatience and inability to cope with her special needs.
The mother considers that the father was controlling and coercive in his conduct and that she rapidly became isolated and house bound. She was not able to see or speak freely with her parents, nor was she able to leave the home other than with his permission and consent. It is also alleged that the father was controlling in his finances and she considered he began to abuse alcohol. She alleges that the father engaged in extra-marital relations with other women.
The father denies the mother’s allegations and considered that the children were at risk in the mother’s sole care. In summary, he asserts that the mother would not have been able to cope with the care of the children save for the assistance that she received from various organisations. So poor were her coping skills that she was barely able to attend to her own personal hygiene and domestic organisation.
The father formed a belief that the mother was suffering from anxiety and her refusal to take suggested anti-depressant medication only added to the father’s concern.
The parties separated on 22 February 2010 with the father removing the children without warning or advice to the mother.
The mother commenced proceedings in the Family Court in 2010 and following a two day trial orders were made by consent on 28 August 2013.
Unfortunately, the consent orders did little to resolve or ameliorate the conflict and mistrust between the parties with the father filing fresh initiating applications on 23 September 2013, 2 May 2014 and 24 September 2014.
FINAL ORDERS
On 28 August 2013 and following two days of evidence which involved the cross examination of the father, the parties entered into a consent order.
The orders provided for the parties to have equal shared parental responsibility with the children living with each of the parties on a shared care basis.
Agreement was reached that the younger child would be enrolled in the Q kindergarten/primary school and care was taken in the orders to provide for the manner in which each of the parties would provide for the medical treatment of the children, but in particular the older child. The orders nominated G Medical Practice as the surgery to which the children would be taken, Professor A, Ms H (physiotherapist), Ms I (speech pathologist) and Ms S (occupational therapist) or such other health professional as the parties may agree to take care of the children’s medical needs.
Specifically, the mother was restrained “from allowing the children to come into contact with [Mr V] and [Mr Leaton]”.
Order 13 is relevant to the current proceedings and is set out in full:-
That the mother be restrained from bringing the children into contact with [Mr L] unless in her presence and subject to the ongoing attendance of Mr [L] upon [Mr O], psychologist, who shall notify Families South Australia and the mother and the father in the event that he believes the children are in imminent danger from [Mr L] and that the supervised time of [Mr L] with the children by the mother shall continue until such time as [Mr O] advises Families South Australia and the mother and the father that it is his professional opinion that such supervision is no longer required and that in the event of such notification of Mr [O’s] opinion being communicated that this injunction shall lapse and the mother be released from its terms.
The orders were clearly intended to address a number of concerns that each of the parties held relating to the behaviour of each of the parties after separation.
The mother was concerned to see an end to the father having the children medically assessed and treated without reference to her and by medical and other allied health professionals different from those engaged by her.
For his part, the father believed that the children were at risk of sexual assault and abuse by Mr V, Mr Leaton and, in particular, the mother’s current partner Mr L.
Little needs to be said in respect of Mr V and Mr Leaton. The mother agrees that those persons do present a risk to the children and notwithstanding her clear denial that she would ever leave the children alone with or in the presence of either of those men, nonetheless she has readily agreed to injunctive orders.
The circumstances in respect of Mr L are more complex. He formed a relationship with the mother soon after meeting her in September 2010. He advised the mother that he had been accused of sexually molesting his step-daughter of a previous relationship and one of her friends. Notwithstanding the disclosure, the mother and Mr L developed a close relationship.
The father has had a particular focus on Mr L and considers that his “extended history of sexual abuse” presents a risk to the children.
Whilst I do not accept the accuracy or veracity of the matters set out in the father’s trial affidavit in respect of Mr L (see paragraphs 133 to 139), they provide some insight into the father’s concerns and perhaps even an explanation as to the father’s subsequent actions in terms of the children being subjected to unnecessary genital examination.
At paragraph 135 the father summarises his understanding of early history in respect of Mr L:-
In 1994, Mr [L] was accused of rape and indecent assault of his step daughter. He was accused of applying a cream to her vagina and of a digital penetration. A protection order against Mr [L] was granted. In the same year, he was also accused of sexual assault of a ten year old girl in his neighbourhood. He was accused of hugging her and then touching the child’s vagina and breasts.
The father alleges that in 2008 a report was made against Mr L alleging that he stalked and had engaged in sexual relations with a 16 year old girl suffering from an intellectual disability. Whilst Mr L does have a criminal history, it does not appear that he was convicted of any criminal charges involving sexual assault.
Nonetheless, the allegations in respect of Mr L were sufficient to cause an order to be made on 5 December 2011 such that the mother agreed to an order of restraint from allowing Mr L to come into contact with the children notwithstanding that he and the mother were cohabiting. Accordingly, during any time spent between the mother and the children Mr L was required (and did) leave the premises.
The involvement of Mr L became more complex following the birth of L Jnr from the relationship with the mother.
Families SA became involved and Mr L was only permitted supervised time with his son. Apparently by January 2013 Families SA were satisfied that there were no safety issues arising from Mr L having unsupervised time with his son, but he was urged to commence therapy and counselling with Mr O, psychologist, pursuant to a mental health plan. Accordingly, the focus upon the involvement of Mr O in the final orders made on 28 August 2013 is obvious.
Mr L does not accept that he engaged in any sexual abuse of any child, but at paragraph 49 of his trial affidavit the following is recorded:-
I acknowledge that since doing therapy with [Mr O] my earlier behaviour was cause for concern as it was not adult-centred nor was it able to be considered child safe. I have learnt to apply boundaries to my own behaviour to keep me and children safe.
As is evident from the evidence of Mr O, he does not consider that Mr L presents a risk to the children and the injunction in paragraph 13 of the consent orders can be considered to have lapsed.
The father does not accept the mother’s position that Mr L does not pose a risk to the children.
Following separation the father considers that the children’s health generally improved from their pre-separation history of upper-respiratory tract infections, sore throats, diarrhoea and other examples of poor health highlighted by multiple visits by each member of the family to their general practitioner. The implication is that the common cause of the family’s ill-health was the mother, presumably suggesting poor hygiene was the cause.
The father’s allegations in respect of the mother border on the hysterical. At one point it was alleged that the mother had been adding her prescription medication to the food that the father and the children had consumed. Again, it is not to suggest that there was any validity to the father’s allegations, but it highlights the extent of the father’s opposition to the mother and her continued care of the children.
THE PERIOD LEADING UP TO THE CONSENT ORDERS
The parties have been in constant litigation since separation.
In April 2013 the father sought an intervention order against the mother from having any contact with him and the children. This was notwithstanding orders that had been made and were ongoing in the Federal Magistrates Court (as it then was). The application for an intervention order was dismissed and the father lodged an appeal in the Supreme Court of South Australia. That appeal was also dismissed.
The mother alleges that she received a text message in the following terms:-
Ms [Leaton] the children have been medically neglected under your care. There are investigations under authorities who would let you know when that conclude.
On 23 April 2013 the mother filed an application in a case seeking to have the children returned to her care in circumstances where they were allegedly being withheld by the father.
By order made 1 May 2013, Senior Registrar Fitzgibbon ordered that the children be returned to her care together with make-up time.
EVENTS FOLLOWING THE CONSENT ORDERS
It is not controversial that on the day after the consent orders were made the father took the younger child to the J Hospital and sought that the child be examined, alleging that cream had been inappropriately applied to the child’s genitals.
The father’s concerns in respect of the application of cream have been an ongoing feature of the proceedings.
The father sought to change the consent orders but the mother refused to do so. The father retained the children on 21 September 2013 which necessitated the mother bringing an application for contravention of orders on 23 September 2013.
In the affidavit filed in support of her application the mother explained the use of cream in respect of the younger child, but in particular that it was pursuant to the advice of the child’s general practitioner. The father then filed his initiating application and alleged that the mother and Mr L had perpetrated sexual abuse on the children.
On 23 September 2013 the mother attended at the older child’s school but was confronted with Ms K, the father’s partner, who had attended in order to pick up the child.
The mother did not know who she was at the time, but following Ms K’s insistence that the child come with her, the police were called and the children were delivered into the mother’s care.
Thereafter the mother did not send the older child to school for a period of approximately two months. She says that she felt compelled to do so because of a fear that the father would again collect the child from school and refuse to return the child to her care.
On 6 December 2013 the father’s initiating application was dismissed by consent.
On 2 May 2014 the father again filed an initiating application making allegations of sexual abuse.
The children were apparently subjected to an inspection of their genitals and they were taken to the J Hospital for further examination.
Against the background of the father withholding the children and refusing to return them to the mother’s care, an order was made that they live with the mother from 16 May 2014 to 5 June 2014.
On 5 June 2014 I dismissed the initiating application. I also ordered that a substantial quantity of affidavit material filed by the father in support of the application be uplifted on the basis that it was scandalous and offensive.
On 17 August 2014 the mother returned the children to the father pursuant to the orders. The father refused to return the children to the mother’s care and she filed a contravention application on 18 August 2014. On this occasion Families SA attended and intervened in the proceedings advising that an investigation had been commenced in relation to further reports of sexual abuse of the children.
The father filed an initiating application on 24 September 2014 on the basis that the children had been the subject of sexual abuse.
Paragraph 17 of the father’s affidavit in support of his application filed 24 September 2014 summarises the father’s position:-
[The younger child] called out to me from the toilet and said, “Daddy I can’t wee”. “My bottom is hurting something is stuck.” When I checked her I saw that her vaginal area was inflamed that there were what looked like light blue deposits on the inner part of the vaginal area. I suggested she have a salt bath, which she did. She told me she felt much better afterwards. [The child] later told me that, “someone coming into my room when it’s dark and touching my private while I was trying to sleep”. “I don’t know who”.
The mother did not spend time with the children from 13 August 2014 to 4 December 2014 when the orders were reinstated. Families SA withdrew from the proceedings and a further family report was subsequently ordered.
Despite a history of the father retaining the children contrary to orders, the last time that he withheld the children was 7 February 2015. There has been no further withholding of the children.
The ability of the parties to communicate remains poor and notwithstanding the provisions in the consent orders as to matters of education and health, the ongoing management of the children remains problematic.
PROCEDURAL HISTORY
The father relies upon the following documents:-
(1)Amended Initiating Application filed 13 July 2016
(2)Trial Affidavit of father filed 20 May 2016
(3)Affidavit in reply of father filed 13 July 2016
(4)Affidavit of father filed 2 May 2014
(5)Affidavit of father filed 24 September 2014
(6)Affidavit of Ms K filed 20 May 2016
In addition, the father relies upon a Case Outline document provided at trial.
The mother relies upon the following documents:-
(1)Amended Response to Initiating Application filed 4 July 2016
(2)Trial Affidavit of mother filed 4 July 2016
(3)Affidavit of Mr L filed 4 July 2016
(4)Affidavit of Mr O filed 4 July 2016
Counsel for the mother relies upon a Case Outline document provided at trial.
The Independent Children’s Lawyer (“ICL”) relies upon an affidavit of Ms Y filed 15 July 2016 annexing the family assessment reports prepared by Dr N dated 6 April 2015 and 13 July 2016. In addition the Court was assisted by a Case Outline document prepared by counsel for the ICL.
The trial commenced on 18 July 2016 and proceeded for seven days with the evidence concluding on 28 July 2016. Judgment was reserved pending the written submissions being received from the parties and the ICL.
The proceedings were conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles set out therein, I advised the parties of the general duties and powers as set out in s 69ZQ and the ability that I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR.
I consider that I should not deviate from the provisions of s 69ZT and accordingly the parts of the Evidence Act 1995 (Cth) (“the Evidence Act”) as set out in s 69ZT were not the subject of further application.
The parties were reminded of the provisions of s 69ZV which relates to my ability to hear the evidence of children in matters which would ordinarily contravene the orders of hearsay and importantly s 69ZX which relates to my ability to truncate, limit and manage what might be described as the routine aspects of the trial.
Notwithstanding the continued application of s 69ZT, each of the parties sought to object to various paragraphs of the affidavits upon which each of them intended to rely.
I heard and determined a number of objections and generally relied upon r 15.13 of the Family Law Rules and s 135 of the Evidence Act (not affected by s 69ZT) in circumstances where the focus of the objection was that the material was either scandalous, offensive or was prejudicial rather than probative.
PROPOSALS OF THE PARTIES
Each of the parties initially sought sole parental responsibility in respect of the children. They also each initially sought primary care for the children and that at least initially the time to be spent by the other parent should be supervised. The father remains concerned in respect of the involvement of Mr L, whereas the mother does not have similar concerns in respect of Ms K, but she fears that the father will engage the children in unnecessary medical investigation and undermine the mother’s relationship with them by his unwavering focus on his belief that they are at risk of sexual abuse and genital interference by either Mr L or the mother.
The father’s position remains the same. The mother’s position however altered from that which appears in the amended response and her counsel’s case outline document to now reflect a more benign approach as set out in her counsel’s final submissions and orders sought document.
The father’s orders would have the effect of significantly limiting the time that the children would spend with their mother and will impact on her relationship with them. It is not intended by him that she should have any involvement in medical or dental treatment, education or extra-curricular activities and any allied health therapy that may be necessary to assist the children.
Moreover, the father proposes that the mother’s time will be restricted to four hours on each alternate weekend subject to supervision, with the purpose that it would “maintain a positive relationship with the mother but without compromising the said children’s placement, stability and sense of routine”.
For her part, the orders sought by the mother would not interfere or derogate from the father’s current relationship with the children.
The proposal of the ICL is that the children should live with the mother and that she shall have sole parental responsibility in respect of their health and education, that the children spend significant time with the father, but that he be restrained from taking the children to medical appointments except in the case of an emergency and subject to the mother being given prior warning or advice.
THE EVIDENCE
The father
The father relies upon his trial affidavit material and the affidavit of his partner Ms K.
The father is highly critical of the mother and does not consider that she has much to offer the children either as a parent or indeed a person.
During the course of the relationship the father alleges that she was derelict in all aspects of her parenting and it was only as a result of the significant intervention by external health providers that enabled the mother to avoid the children being considered at risk in her care.
The father was disparaging of the mother’s extended family and considered that various family members presented a serious risk to the children. More importantly, the father asserted that the mother was not able to protect the children from sexual predation. In particular, his focus is upon the risk that he considers Mr L to pose to the children.
The father considered that so lacking was the mother in terms of the discharge of her homemaking duties that both he and the children were continuously unwell with a variety of ailments requiring extensive attendance upon medical practitioners. There is also the added allegation that the mother may have been adding her medication to the family food, thereby poisoning them and exacerbating the parlous health of the children.
At the instigation of the father, proceedings were commenced in May 2011 seeking that the children reside with the father and have supervised time with the mother. The mother’s ability to protect the children and to exercise appropriate parenting skills was the subject of investigation by Families SA and SAPOL and her care of the children was interrupted during the course of the investigation and assessment.
There is some similarity to the more recent events wherein the mother’s time with the children was suspended during an investigation by Families SA and Child Protection Services (“CPS”).
The father also challenges the mother’s “integrity and honesty”. He focusses on documents evidencing the mother’s qualifications, in particular a certificate III – Children’s Services (Home Based/Family Care) and alleges that the “authenticity of this document is highly questionable”.
At paragraph 144 of his trial affidavit, the father records that on 29 August 2013 (the day after the consent orders) the younger child complained of sore and painful genitals and that she was not able to easily urinate.
The child was taken to the J Hospital and by reference to email communication to the mother on 30 August 2013 the following appears:-
[R] was taken to [J] hospital yesterday as she stated it hurt when she wees. [R] stated that someone touched her genitalia in your home. Can you tell me who has been rubbing or touching her genitalia and how long has this been going on.
The father obtained a short summary of attendance from the hospital dated 29 August 2013. The document is addressed to G Medical Practice and records the following:-
[R] presented to the Emergency Department at [J] Hospital
on the 29 August 2013 at 20:25. The presenting problem was FEMALE PELVIS (NON-PREGNANT) – STEP MUM NOTICED RED VAGINA TONIGHT – WAS IN MOTHER’S CARE FOR 5 DAYS – CHILD STATES SHE WAS TOUCHED. HIST OF ABUSE IN FAMILY..
The diagnosis was ACUTE VAGINITIS/VOLVOVAGINITIS NOS
[R] has a mild inflammation of the genital area which is probably irritation rather than infection.
A swab has been collected.
The application of creams should not be necessary.
It is suggested that [R] have twice daily shallow salt water baths and avoid bubble baths, and tight clothing.
The letter is apparently authored by a paediatric consultant.
The mother responded promptly to the father’s accusation and denied that the child had been abused in any way, insisting that the father should stop his ongoing accusations.
Paragraph 145-146 of the father’s trial affidavit summarises his position:-
145.Between 30 August 2013 and 22 September 2013, [the younger child] continued to disclose that the mother was applying cream to her genitalia and that it’s given by daddy [Mr L]. When clarification was sought from the mother on multiple occasions, [the mother] denied applying any cream to [the child]. An Application to the Court was then made regarding this matter.
146.I subsequently retained the children in my care due to these concerns but was forced to return them into the mother’s care on 23 September 2013 at [X] special school.
The mother responded to the father’s ongoing complaint in respect of the purpose for the application of cream to the younger child’s genitals in her affidavit of 27 November 2013 disclosing that the cream was Nilstat and had been applied and prescribed on the advice of the child’s general practitioner.
The father also alleged that in January 2014 the younger child attributed a bruise on her left inner thigh to Mr L occurring when he had given her a cuddle which the father reported that the child found “scary”. The father took the child to a medical practitioner and a child protection notification was apparently made. Further alleged disclosures were made by the child in February 2014 to the effect that Mr L had entered her room at night when it was dark and had been asking her to give him a cuddle.
There then followed a period of significant reluctance on the part of the children to engage with the mother at handover.
On 23 April 2014, the father attributes a further disclosure to the younger child alleging that the mother had been again playing with the child’s genitals. The father was apparently unwell and accordingly he asked his partner Ms K to take the children to their local medical practitioner at U Medical Clinic as opposed to G Medical Practice.
The father records the details of several notifications between 7 July and 22 August 2014, all referring to allegations that the younger child had been interfered with and there were “abnormalities to her vaginal region”.
The tenor of the allegations is that the children were at risk in their mother’s care.
Under cross examination, the father conceded that prior to 28 August 2013 being the date of the consent orders, he was of the view that the mother was able to look after the children. The father was reminded of the provisions of order 7 of the consent orders which restrain the parties from taking the children for medical treatment to any health professional other than those as set out in the order or as may be agreed between the parties save and except in the case of “an absolute emergency” in which case the children could be taken to the J Hospital.
The obvious focus of reminding the father of the provisions of the order relates to the attendance of the younger child at the J Hospital on 29 August 2013. The notes reveal that the father did not attend, but rather the father’s then partner attended and provided the history that appears to have been recorded. The father conceded that in doing so it was contrary to the orders, but that he considered it was an emergency.
The father was challenged as to whether he had made any enquiry of G Medical Practice and it was his considered response that he did not do so because he understood that the surgery may have been closed.
The father was challenged in respect of a chain of emails commencing with a letter from the mother’s solicitor to him dated 20 September 2013 advising the father of the mother’s expectation that the children would be returned to her care on Saturday 21 September 2013 in accordance with the consent orders.
The father responded on 21 September 2013 by advising the mother’s solicitor that he had received legal advice to file an urgent application and that as such he would not be complying with the order and returning the children to the mother’s care. The father was asked why he withheld the children and his response was that the younger child had continued to disclose that someone was touching her. The father did not consider that the mother had made an appropriate response and until that occurred he intended to retain the children.
The mother responded sensibly, but her answer was not accepted by the father.
The email communication raises no issue in respect of an allegation in respect of inappropriate application of cream.
It was revealed that the father had forwarded a voice recording of a conversation that he had with the younger child in September 2013.
It appears that this voice recording had not been previously considered, but fortunately it had been retained.
A transcription of the voice recording was made and the father was given an opportunity to consider whether the transcription was an accurate reflection of the voice recording. The father properly conceded that it was.
The father denied that he had engaged the child in a form of interview or question and answer approach. It was his evidence that the conversation was spontaneous, free flowing and ultimately unexpected.
The transcription is important and is set out in full:-
F How many times mummy put cream on for you?
R Two times
F Who gave, gave the cream to mummy?
R Daddy [Mr L]
F Mmm and then what mummy did?
RShe put it on already and then she hand (pause) then she did it wad (?) it right here and sh (pause) and it was and it was hurt. And mummy, and mummy get Daddy [Mr L] to bring the blanket mummy and she put it on.
F Put it on you?
R Yeah
F What time has this happened?
R Two times
F Is that in the morning or evening?
R Umm morning
F Morning
R Ahh yep
F Yep. Did they put the cream on for sister too?
R No just me cos she, cos [C] hit my body with a helicopter
FMm and eh wha what else they put in it? Where were you at the time?
R They put it in nothing else
F Whe where were you at the time when they put the cream on?
R Two, they put it on two times daddy.
F Yeah, were you in the home? In the house?
R Huh?
F Aree you in the house?
R Yeah I’m in the house.
F Whereabouts (pause) in the bedroom or bathroom?
R In the lounge room
F The lounge room
R MmHmm
F Okay, we’re you in the couch?
R Yes
F Mm
R Was in mummy’s bedroom
F Was in mummy’s bedroom?
R MmHmmm
F Okay, so who else is in the bedroom at the time?
R I was in the bedroom
F And?
R And mummy wasn’t in the bedroom
F Mm (pause) And then?
R Daddy we’re (or where or was) aah ahh can’t remember now.
F Mm okay.
R Dad
What can be readily seen from the transcription is that it provides no basis for any allegation or assertion of inappropriate touching by either the mother or Mr L of the child’s genitals, or the application of cream in circumstance where its purpose was to mask sexual abuse rather than to treat a genuine complaint.
The father was asked to read the transcript and carefully reflect upon its contents.
The father appeared to be surprised by the contents of the transcript and when asked whether he considered that the transcript was supportive of any allegation of inappropriate touching or the misapplication of cream to the child’s genitals, the father agreed that it did not support such a contention. Furthermore, the father agreed that the transcription was nonsense and was not capable of a sinister interpretation.
He had difficulty in accepting that the transcription could not have in any way supported the numerous notifications, allegations and purported disclosures of sexual abuse and interference of the younger child by the mother and Mr L.
In effect, the father was pulling himself up by his own bootstraps where it was clear that any suggestion of inappropriate application of cream and thereby genital touching and abuse was lacking in any foundation.
For a brief moment in the father’s evidence it appeared that he came to the startling realisation that the litigation that has flowed without pause and all that has happened including numerous investigations, the children being withheld from each of the parties, the invasive genital examination conducted on the younger child and the countless allegations and counter-allegations may have been based on a false and misleading allegation.
After the father had recovered his composure, it was still his position that if the children have any concern in respect of their genitals then he will continue to examine them and more relevantly, he still considers that the children are at risk in the care of the mother.
The father has a child from a former relationship namely Z. The child Z is six years of age. The father and Z’s mother were engaged in litigation in action number ADC…/2013.
Z spends time with the father on a regular basis pursuant to an order of the Federal Circuit Court. The father was asked to produce a copy of the order so that the father’s arrangements in respect of Z could be considered in terms of the orders being sought by him in relation to R and C.
The father’s initial response was that he did not have a copy of the order and that he would make appropriate enquiries (presumably from the Registry).
Notwithstanding the submissions of the father, it was revealed that at all times the father had a copy of the order in his possession. It is difficult to understand the basis of his reluctance to produce what can only be considered an uncontroversial document. There was no basis or substance to the father’s submissions that he did not have a copy of the order and that he would need to obtain it. The father’s conduct is difficult to understand in respect of an issue that whilst relevant could not be considered as central to the proceedings.
Following a hearing on 6 December 2013, orders were made dismissing the initiating application of the father filed 23 September 2013 and the mother’s response filed on 23 November 2013.
The father filed a further initiating application on 2 May 2014 seeking to suspend all time between the children and the mother on the basis that the children have been the subject of sexual abuse.
In support of the father’s contention, he relied upon his affidavit filed 2 May 2014. That document annexed short reports evidencing the children’s attendance at the J Hospital whilst in the father’s care on 10 and 11 January 2015 and 13 March 2015.
Given the resolution of the previous proceedings and orders made on 6 December 2013, the father was challenged as to why it was necessary for the children to further attend upon the J Hospital less than one month later.
Annexure “C” to the father’s affidavit filed 2 May 2014 annexes a short report from the J Hospital in respect of the presentation of the older child. The presenting problem as described by the father was “FEMALE PELVIS (NON-PREGNANT) – OTHER SEXUAL PLAY WHILST IN BATH FATHER CONCERNED HX [MEDICAL DISORDER] SYNDROME”.
The diagnosis was that “NO ILLNESS DETECTED DESPITE PATIENT OR PARENT CONCERN”.
The more expansive diagnosis provided that:-
[C] was brought in by her father who was concerned that she and her sister had irritation around the vagina. The girls’ care is shared with their mother. Previously their father has alleged that their mother was applying cream to the girls’ genitals inappropriately.
On examination there was minor redness of the labia but no evidence of injuty (sic). There were no haematomas, abrasions or discharge.
Their case was discussed with the Child Protection Unit.
I have explained that there are no injuries that require treatment or investigation today. Father will contact CARL to discuss his concerns and organise further management.
The father was challenged as to why the children were not taken to G Medical Practice being the nominated surgery, rather than the J Hospital which was a designated option in circumstances of an emergency.
Annexure “D” to the affidavit compounds the difficulty that arises from the father’s seeming refusal to comply with the clear orders. On 11 January 2014, the father took the older child to the J Hospital with a presenting problem namely “SYSTEMIC-FEBRILE ILLNESS. DEVELOPED FEVER LAST NIGHT AT 2100. STILL HAVING WET NAPPIES. DEC ORAL INTAKE.”
The diagnosis undertaken by the resident medical officer was of fever. The expanded diagnosis and prognosis was of a child who presented as been grizzly and with some other abdominal softness and “mild epigastric tenderness” with “no other focal findings”.
The father was advised to administer paracetamol/Nurofen and to make an appointment for the child to see the “GP early next week”.
The reference to and reliance upon the J Hospital reports are used by the father as being part of the events that he says led to him having concerns that the older child had been the subject of inappropriate sexual misconduct in the mother’s care.
On 10 January 2014, the father forwarded a request to the mother for information relating to the prescription and/or the administration of cream to the younger child’s genitals. The enquiry was apparently based upon a report by the child that the mother had been applying cream to her genitals. The mother responded promptly in the following terms:-
[R] has not had any cremes (sic) applied to her genitalia since August, and far as I know there is no current need for any application of creme to her on any part of her body.
She was seen by Professor [A] on Wednesday just gone and she was fine then. [C] had a sore that has had Mecurochrome applied to it as you have already been told.
I have an appointment at the Drs tomorrow I can get the Dr to examine her and have a copy forwarded to you of the result.
The children were again presented by the father to the J Hospital on 13 March 2014. Annexure “E” to the affidavit notes that the presenting problem was “FEMALE PELVIS (NON-PREGNANT) – OTHER PAIN ON MICTURITION.”
It is recorded that genital swabs were taken and the notes record as follows:-
Presented with father who reported he noted white vaginal discharge and pain on urination after visit with mother. Father concerned regarding abuse by mother’s partner. Previous abuse allegation. Children previously removed from mother for 2 ½ months for similar accusations.
Examination of external genitalia – clear discharge noted, likely physiological. No evidence of trauma. No other evidence injury.
Swab of discharge sent. Advised to follow up with GP. Advised to notify CARL. CARL notified by MO.
The father was challenged in respect of the attendance by the children at the hospital and in particular noting that the time of initial attendance was 22.03 and the specimen sample collected by genital swab took place at 3.52 am.
The father was not prepared to accept that there was no basis that justified him taking the older child to the hospital on 13 March 2014, nor indeed that the lateness of the hour and that the invasive nature of the examination was entirely unnecessary.
The father appeared incapable of accepting that his conduct had the effect of involving the children in unnecessary genital examination and invasive procedures.
Clearly the father considers that the reports from the J Hospital in some way support his contention that the children are either at risk or have been the subject of sexual abuse. I do not consider that the evidence supports such a contention. If anything, the evidence supports a strong finding that the father’s conduct appears to be without boundary and restraint. The clear provisions of the consent orders are ignored by the father without any regard to their purpose. The very nature of the orders was to ensure that the children would not be subjected to unnecessary medical intervention.
On 28 April 2014, the father caused Ms K to take the children to the U Medical Clinic for examination. The short report of Dr W is annexure “B” to the father’s affidavit. It was recorded that the child complained that when with her mother she was touched by her on her private parts and that she did not like what she did, but that her mother continued to touch her genitals.
The examination appeared to be normal. However, later that day the father returned with the children and as a result the doctor reported the matter to the relevant child abuse report authority.
Under cross examination it was put to the father that the history that was given to the doctor occurred in the presence of the children. The father considered that proposition and did not agree with that interpretation of the doctor’s report suggesting that he remembered a nurse may have looked after the children whilst he had consulted with the doctor.
The father’s response was unconvincing.
The children’s attendance at the U Medical Clinic on 28 April 2014 has further relevance in that it took place the day after a refusal by the children to go with the mother at a handover arranged to occur at a children’s contact service. The father had told the service that the younger child had disclosed sexual abuse.
His explanation for the children attending the U Medical Clinic as opposed to G Medical Practice was that he did not tell Ms K where to go and it was her decision to take the children to the nearest clinic.
I do not accept the father’s explanation. It was incumbent upon the father to ensure that there was compliance with the orders. It is difficult to accept that Ms K did not enquire as to the identity of the children’s general practitioner. Where the children attended for medical treatment was not a matter that could or should have been left to the father’s partner.
The father’s explanation does not accord with the evidence and I consider his presentation to be entirely disingenuous. At all times the father was aware that he was in breach of the consent orders in taking the children either to the U Medical Clinic or to the J Hospital. It was the father’s unending pursuit of support for his contention that the mother and her partner were sexually abusing the children that motivated him.
On 5 June 2014 orders were again made dismissing the father’s initiating application filed 2 May 2014. That appeared to conclude the proceedings.
Soon thereafter the father reported that the younger child had made disclosures that the mother and her partner were still touching her and her sister’s genitals. The younger child is alleged to have refused to see the mother and when pressed, the father denied that he had in any way forced the children to make disclosures.
The father retained the children which prompted the mother to file an application for contravention of orders. On 9 September 2014 the application was adjourned to 12 September 2014 for hearing.
On that date leave was given for the father to proceed on an oral application seeking to suspend the consent orders.
Leave was also given for the intervention by the Minister for the Department of Education and Child Development (Families SA).
Based upon submissions made by counsel for the father and the Minister, the proceedings were adjourned to 1 October 2014 with provision made for the children to live with the father and the operation of paragraph 2 of the orders made 28 August 2013 suspended.
A request was also made to Families SA pursuant to s 69ZW(1) of the Act and an order was made for the re-appointment of an ICL.
On 4 December 2014 judgment was delivered which provided for the children to recommence spending time with the mother, initially in the absence of her partner but not thereafter.
On 30 April 2015 the order of 4 December 2014 was discharged with the effective reinstatement of the consent orders of 28 August 2013.
Between 8 June 2014 and 23 August 2014 the mother spent supervised time with the children at a children’s contact service.
Notwithstanding the father’s evidence that the children were constantly distressed when confronted with their mother and displayed significant reluctance in engaging with her, the observational report annexed to his affidavit of 24 September 2014 suggested that the only date upon which the children did not engage and go to their mother was on 9 August 2014. The father gave evidence that he had not fully read the observational report. It is difficult to accept that the father would annex the report to his affidavit in order to substantiate his claim that because the children were distressed and refused to engage with the mother, he had not taken the children to the contact centre for handover since 23 August 2014.
He records that following further disclosures made to him by the children on 12 August 2014, the children were then the subject of an ongoing police investigation.
The detail of the observational reports does not support the father’s evidence. For him to suggest that he has not fully read the report and is therefore surprised that it was only on one occasion that the children did not wish to see their mother, is either errant nonsense or the father is not being truthful.
The parties are also not able to agree the appropriate arrangements in respect of dental treatment for the children, but in particular the older child.
It is the father’s evidence that the parties agreed that the children would attend AA Dental. The mother disagrees with the father’s proposition and continues to take the children to Dr T who has always had their dental care. The mother contends that she has never been advised of an intention by the father to take the children to AA Dental.
CONCLUSION
The mother and the ICL consider that the children’s interests would be best served residing in the primary care of the mother, but that they should spend significant and substantial time with the father.
The father considers that the children should spend only limited and supervised time with the mother.
The common factor underpinning the proposals of the ICL and the mother is a recognition that she is able to support and promote the relationship with the father.
The ICL argues that the father has not demonstrated either an understanding of the benefits to the children of maintaining a relationship with the mother and is clearly unwilling or unlikely to promote such a relationship.
In circumstances where I have not found that the children are at risk in the care of the mother either in respect of her ability to provide adequately for them and that they are not at any physical risk from either the mother or Mr L, I consider that the children should live primarily with the mother and spend significant and substantial time with the father.
The mother seeks that the children spend each alternate weekend from Friday to Monday with the father, but I consider that three days per fortnight is inadequate to enable the father to properly support the children and their needs. Dr N recommends that four days should be ordered and accordingly I consider there is merit in that recommendation properly founded in the evidence.
The balance of the orders as proposed by the mother and supported by the ICL are consistent with the children maintaining a meaningful relationship with each of the parties.
I also propose to adopt the proposals of the mother and the ICL that she should have the ability to make a final decision in respect of the education and health issues that affect the children from time to time.
In the recent decision of the Full Court in Doherty & Doherty [2016] FamCAFC 182, the Full Court considered the interrelationship between the concept of equal shared parental responsibility and the application of s 65DAA. In that decision counsel for the father submitted that because an order provided for the parties to have equal shared parental responsibility “in relation to the child’s name and any change of living arrangements that would make it significantly more difficult for the child to spend time with either parent”, s 65DAA was triggered.
The Full Court was required to consider whether it is permissible for there to be an order for equal shared parental responsibility directed to an aspect of parental responsibility or whether it is “an absolute concept”. The Full Court concluded that an order can be made in relation to a discreet aspect of parental responsibility and as such an order that the child’s parents have equal shared parental responsibility for some but not all aspects of parental responsibility would not trigger s 65DAA.
In a separate judgment Kent J considered that a parenting order which deals with parental responsibility but which does not have the effect of conferring on both parents an equal share of all of the duties, responsibilities and authority which, by law, parents have in relation to children, cannot be characterized as an order fulfilling the application of the presumption pursuant to s 61DA and therefore not a parenting order which provides that a child’s parents are to have “equal shared parental responsibility” within the meaning of s 65DAA.
In Newlands & Newlands (2007) 37 Fam LR 103 the trial judge made an order that “except in matters of education in which the mother will have sole parental responsibility the parties will have joint parental responsibility”.
The Full Court considered that the Act does not refer to “joint parental responsibility” but rather, to “parental responsibility” and “equal shared parental responsibility”. The Full Court found that the trial judge had not adequately followed the legislation and had therefore created an uncertainty. Their Honours were satisfied that it is permissible for an aspect of parental responsibility to be allocated to one parent and for all other aspects to be the subject of an order for equal shared parental responsibility.
The issue was again considered in Chappell & Chappell (2008) FLC 93-382. The trial judge made orders that the parties have equal shared parental responsibility, but that the mother have sole parental responsibility for the “management of” health and education. The issue in contention was the use by her Honour of the word “management”. The focus of the Full Court was again upon the clarity of the order and its nexus with the Act. The Court found that it was imperative that orders relating to parental responsibility be accompanied by as little ambiguity as practicable.
Words not mandated by the legislation should be avoided when allocating parental responsibility.
In the first appeal in Doherty & Doherty (2014) FLC 93-571 it was argued that an order for the parties to have equal shared parental responsibility for some major long term decisions and that otherwise the mother have sole parental responsibility in relation to which conditions concerning consultation and the like were attached, could not be construed as an order for equal shared parental responsibility. The asserted error was that the orders made by her Honour were inconsistent and together did not constitute an order for equal shared parental responsibility.
The Full Court at [42] found that parental responsibility for some long term issues may be shared while others may not and, additionally, that parental responsibility for some issues might be shared equally whilst others are not shared equally or not shared at all.
The Full Court considered that even though the presumption of equal shared parental responsibility may be rebutted by a consideration of the evidence and therefore s 65DAA was not required to be considered, nonetheless this did not mean that the quantity and quality of the time to be spent between the child and her parents had no place in her considerations.
In summary and having considered the approach in Chappell (supra), Newlands (supra) and the recent Doherty (supra) it is permissible that an order can be made for equal shared parental responsibility which will not trigger s 65DAA considerations in circumstances where the order is made in relation to a discreet aspect of parental responsibility.
I have found that the presumption in respect of equal shared parental responsibility pursuant to s 61DA should not apply.
The mother alone should exercise parental responsibility in respect of the health and education needs of the children without the hindrance of the father subject to a requirement that she initially consult with him.
I consider that I should order that the parties to share parental responsibility for the children, but that the mother have parental responsibility for the children’s health and education.
Dr N considers that the history of the children being subject to genital and medical examination, interview and investigation is not in their best interests when it is considered that there is no substance to the allegations made by the father.
I propose to put in place orders that will restrain the father from subjecting the children to unnecessary examination and investigation other than by relevant child protection authorities.
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and ninety four (394) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 October 2016.
Associate:
Date: 5 October 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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