Leth and Yayathi
[2012] FamCA 1031
FAMILY COURT OF AUSTRALIA
| LETH & YAYATHI | [2012] FamCA 1031 |
| FAMILY LAW – PARENTING – Equal shared parental responsibility – Where the children live primarily with the mother - Allegations of sexual abuse - Where a child is avoidant of any relationship with the father –Best interests - Where it is agreed that the children should have a relationship with both parents - Whether the mother is capable of encouraging and facilitating a relationship between the children and the father - Where a graduated regime of time with the father is recommended by the single expert – Whether interim orders only should be made. |
| McCall & Clark (2009) FLC 93-405); Mazorski & Albright (2007) 37 Fam LR 518; Leighton & Carey [2010] FamCAFC 94 |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA, 65DAA and 65DAC Evidence Act1995 (Cth) s 140 |
| APPLICANT: MOTHER | Ms Leth |
RESPONDENT FATHER: | Mr Yayathi |
FILE NUMBER: | DUC | 28 | of | 2009 |
DATE DELIVERED: | 15 June 2012 |
PLACE DELIVERED: | Sydney |
PLACE HEARD: | Parramatta |
JUDGMENT OF: | Loughnan J |
HEARING DATES: | 14, 15 February & 21, 22, 23 & 24 May 2012 |
REPRESENTATION
COUNSEL FOR THE APPLICANT MOTHER: | Ms. M. Devere |
| SOLICITOR FOR THE APPLICANT MOTHER | Rafton Family Lawyers |
COUNSEL FOR THE RESPONDENT FATHER: | Ms. P. Nash |
| SOLICITOR FOR THE RESPONDENT FATHER | D Hardie Solicitors |
COUNSEL FOR THE ICL: | Ms. S. Leis |
| INDEPENDENT CHILDREN’S LAWYER | Mark Whelan Lawyers |
Orders
The mother shall attend an appointment with Family Consultant Ms D at the Parramatta Registry of the Court on a date nominated by Ms D for the purpose of preparing her to support B’s re-introduction to her father. The mother shall attend upon such other appointments or phone consultations as Ms D determines as necessary, and the mother is to be given forty-eight hours notice.
Parental responsibility
Pending further order the parents shall have equal shared parental responsibility for B born … March 2003 and C born … October 2004.
Residence
Pending further order the children shall live with the mother.
What Time the Children Spend with the Father
Pending further order the children shall spend time with the father as follows:
C – Term Time
a.The Court notes that the existing orders relating to alternate weekend contact between C and the father shall continue. The parties agree that C shall spend time with the father from 5.30 pm Friday to 4.30 pm Sunday of each alternate weekend.
B – Reintroduction
b.On the date nominated by the Independent Children’s Lawyer the mother shall bring B to the Parramatta registry of the Court for a meeting with the Independent Children’s Lawyer and the Family Consultant Ms D and the mother is to be given forty-eight hours notice of such meeting. Following that meeting B may have a brief meeting with the father if in the opinion of Ms D she is up to such a meeting.
c.On up to 3 dates nominated by Family Consultant Mr E the mother shall bring B to the H Town registry of the Court where Family Consultant Mr E will facilitate B spending a period of time with the father, the length of which to be determined by Mr E.
d.On the 2 Sundays after the last session with Mr E, B and C shall spend from 4.00pm to 4.30pm with the father in G Town.
e.On the next 2 Sundays B and C shall spend from 4.00pm to 5.00pm with the father in G Town.
f.On the next Sunday B and C shall spend from 3.00pm to 6.00pm in G Town with the father.
g.On the following Sunday and each alternate Sunday thereafter for 3 Sundays B and C shall spend from 10.00am to 4.00pm Sunday in G Town with the father.
h.On the second weekend following the last Sunday referred to in the previous sub-paragraph, and on each alternate weekend thereafter for 3 weekends, B shall spend from 10.00am Saturday to 4.00pm Sunday with the father in H Town with the mother or her nominee driving B to H Town at the commencement of time and the father or his nominee driving B and C back to G Town at the conclusion of time.
i.Thereafter B shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday such time to coincide with the same weekends C spends with the father.
C – School Holiday Time
j.For half of each school holiday period as agreed and failing agreement for the first half of even ended years (e.g. 2012, 2014, 2016 etc) and the second half in odd numbered years (e.g. 2013, 2015, 2017);
The “first half” of a school holiday period means from 9.00am on the first day following the last day of the school term until 4.00pm, on the Sunday falling closest to the midpoint of the holiday period and the “second half” of a school holiday period means from 4.00pm on the Sunday falling closest to the midpoint of the school holiday period until 4.00pm on the final Saturday of the holiday period.
Other times
k.In the event the children are not otherwise with him, on Father’s Day weekend from 5.30pm Friday to 4.30pm Sunday;
l.At other times as agreed between the parties in writing.
Changeovers
Except where expressly dealt with in these orders, the changeover of the children from the care of one parent to the other shall take place at F Town, NSW.
The periods of time referred to as occurring in G Town shall commence and conclude as agreed or failing agreement at McDonalds in G Town.
The periods of time referred to in Order 2(h) shall commence and conclude as agreed and failing agreement shall commence at McDonalds in H Town and conclude at McDonalds in G Town.
Communication with the Children
Pending further order each parent shall be at liberty to communicate with the children by telephone, text message, email or Skype:
(a) on Tuesdays and Thursdays between 7.00pm and 8.00pm when the children are not in that parties care, and the parties shall be permitted to contact B on her mobile phone; and
(b) on their birthdays, Christmas, and Easter in the event these special occasions are not covered by Order 6(a).
Counselling
Each parent shall do all acts necessary to ensure that B continues with therapeutic counselling with Ms I for so long as recommended by Ms I.
10.The mother shall ensure that B attends for debrief sessions with Ms I after each of the visits she has with the father as set out in Orders 2 (b) to (h) as recommended by Dr J in his single expert report in these proceedings.
11.Each parent shall attend for individual sessions or phone consultations with Ms I as she may direct to assist her in supporting B.
12.The Independent Children’s Lawyer is granted liberty to provide a copy of these orders and any reasons for judgment issued by the Court to Ms I with a request that she assist in their implementation.
13.The Independent Children’s Lawyer shall provide a copy of these orders to Ms D, Mr E and the K School and request their assistance in implementing them.
14.In the event that Ms I forms the view that B is not ready to progress through a particular stage of the re-introduction referred to in Orders 2(b) to (g), she is requested to notify the Independent Children’s Lawyer of her concerns and the Independent Children’s Lawyer is granted liberty to relist the proceedings before Justice Loughnan upon the giving of 72 hours notice.
15.The parties are to pay equally all costs associated with B’s counselling with Ms I.
16.In the event that Ms I becomes unavailable to continue as B’s counsellor then the Independent Children’s Lawyer shall nominate a replacement counsellor after consulting with Ms I and Family Consultant Ms D.
17.Pending further order each party is restrained from taking B to any other counsellor or psychologist without the written consent of the other party and the Independent Children’s Lawyer.
18.Each party shall continue with their individual therapeutic counselling for so long as is recommended by their particular counsellor and shall provide their counsellor with a copy of these orders and with any reasons for judgment issued by the Court.
General Parenting Matters
Pending further order:
19.Notwithstanding any order to the contrary, the father’s time with the children shall conclude at 4:00pm on the day immediately before Mother’s Day each year.
20.The mother shall use her best endeavours to actively encourage B to attend for and enjoy time with her father.
21.The mother is to use her best endeavours to encourage each of the children to call the father “Dad” or “Daddy”.
22.Within 28 days of the making of these orders each parent shall enrol in a Parenting After Separation or equivalent course and shall attend such course until it is completed; each parent shall provide the other and the Independent Children’s Lawyer with evidence of enrolment within 7 days of so enrolling, and of completion within 7 days of completion.
23.Neither parent shall speak badly about the other parent, or any member of the other parent’s family, to or in the presence of the children and shall use their best endeavours to similarly restrain any other person from doing so.
24.Neither parent shall discuss with the children these proceedings, or matters that were raised by the other parent whether in their affidavits or oral evidence in the course of these proceedings, except that the mother shall, in consultation with Family Consultant Ms D, explain to B that she fully supports her re-introduction to the father.
25.Each parent shall keep the other immediately informed of any serious illness or injury the children may suffer whilst in their care and any attendance by the children at any hospital.
26.The mother shall execute all authorities to allow the father to communicate freely with each of the children’s school and to receive information from each child’s school.
27.After B is spending time with her father in accordance with Order 2(h) the father is at liberty to attend any school or sporting event (in and outside of school time) in which the children are involved; to facilitate this occurring the mother shall provide the father’s email address to the school and to any sporting club the children are enrolled with.
28.Each parent is to encourage a positive relationship with the other parent.
29.The father is to administer to the children medication prescribed for them by their treating medical practitioner, and the mother is to provide the father such prescribed medication to administer to the children.
30.Each party is to ensure B has privacy when showering, when in the bathroom and in her bedroom, when changing clothes or when B requests privacy.
31.Each party is to ensure that the other is immediately informed of any change of contact details and residence.
32.Neither party shall include the children in any advertisement or publication without the written consent of the other party.
33.Upon the release of these Orders, the Independent Children’s lawyer, in consultation with the Family Consultants and Ms I and the other parties, shall prepare a calendar of dates which reflect the orders.
34.Liberty is granted to all parties to apply on 72 hours notice to have the proceedings relisted before Justice Loughnan in relation to the wording of these orders or any other matter. In the event that a substantive order is sought, other than one agreed to by all parties, that liberty is to be exercised by filing an Application in a Case.
35.Unless the Court otherwise orders, the proceedings are listed for mention only before Justice Loughnan at Parramatta on 31 October 2012 at 10.00am.
36.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the attached Fact Sheet.
IT IS NOTED that publication of this judgment under the pseudonym Leth & Yayathi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: DUC 28 of 2009
| Ms Leth |
Applicant
and
| Mr Yayathi |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to B who is 9 years of age and C who is 7 years of age. They are the children of Ms Leth and Mr Yayathi. The parents started living together in early 2002 and separated in June 2008.
The issues crystallised during the hearing and resolved to:
· Whether the mother is capable of promoting a relationship between the father and the children, and in particular, with B;
· If not, whether the residential arrangements should be reversed with the children living mainly with the father and if so, what conditions if any should apply to the mother’s time with the children;
· What timetable and safeguards should regulate the reintroduction of a meaningful relationship between the father and B;
· Whether at this stage, orders should be made on an interim basis only.
Applications
The orders sought by the parties developed during the trial. The ultimate positions of the parties at trial were as follows:
The mother sought orders in terms of a minute submitted just before final submissions, as follows:
1. That the parties forthwith join in and do all such acts and things and provide all authorities and directions necessarily required to have [Ms I] Psychologist commence therapeutic treatment with the child [B] born … March 2003 in order to assist her to overcome her phobia of her father and to facilitate the reintroduction and reinstatement of her relationship with her father in an appropriate and proper manner.
2. That the parties shall be involved in such therapy as may be requested from time to time by [Ms I].
3. In the event that [Ms I] is unable or unwilling to undertake such therapy with B then the parties shall appoint such alternative therapist as may be recommended by [Dr J].
4. That the parties have equal shared parental responsibility for the children [B] born …March 2003 and [C] born … October 2004.
5. That the children live with the mother.
6. That unless otherwise agreed between the parties the children spend time with the father as follows:‑
a. Friday 1st June 2012 at 4.30 pm with [C] until Sunday 3rd June 2012 at 4.30 pm with the father to collect and return [C] to and from the mother's home.
b. Friday 15th June 2012 with [B] from 4.30 pm to 5.00 pm at the [L Park, M Street, G Town] with the mother to facilitate the children's attendance at the park and at the conclusion of such time [B] shall return to the mother and [C] shall spend from 5 pm 15th June 2012 to 4.30 pm Sunday 17th June 2012 with the father. The Father shall return [C] to the mother's home at the conclusion of time.
c. Friday 22nd June 2012 from 4.30 pm to 5.00 pm at the [L Park, M Street, G Town] with the mother to facilitate the children's attendance at the park.
d. Friday 29th June 2012 with [C] and [B] from 4.30 pm to 5.00 pm at the [L Park, M Street, G Town] with the mother to facilitate the children's attendance at the park and at the conclusion of such time [B] shall return to the mother and [C] shall spend from 5 pm 29th June 2012 to 4.30 pm Sunday 1st July 2012 with the father. The Father shall return [C] to the mother's home at the conclusion of time.
e. Friday 6th July 2012 with [C] and [B] from 4.30 pm to 5.30 pm at the McDonalds Family Restaurant [G Town] with the mother to facilitate the children's attendance.
f. Friday 13th July 2012 with [C] and [B] from 4.30 pm to 5.30 pm at the McDonalds Family Restaurant [G Town] with the mother to facilitate the children's attendance. The father's time with [C] shall conclude on Sunday 15th July 2012 with [C] to be returned to the mother's home at the conclusion of time.
g. Friday 20th July 2012 from 4.30 pm to 6.30 pm at the McDonalds Family Restaurant [G Town] with the mother to facilitate the children's attendance
h. Sunday 29th July 2012 from 9 am to 5 pm with the father to collect and return the children to/from the mother's home.
i. Friday 3rd August 2012 to Sunday 5th August 2012 with [C] and with the father to collect and return [C] to and from the mother's home.
j. Sunday 12th August 2012 from 9 am to 5 pm with the father to collect and return the children to/from the mother's home.
k. Friday 17th August 2012 to Sunday 19th August 2012 with [C] and with the father to collect and return [C] to and from the mother's home.
l. Sunday 26th August 2012 from 9 am to 5 pm with the father to collect and return the children to/from the mother's home.
m. Friday 31st August 2012 from 4.30 pm to Sunday 2nd September 2012 at 4.30 pm with [C] and with the father to collect and return [C] to and from the mother's home.
n. Saturday 1st September 2012 at 11 am to Sunday 2nd September 2012 at 4.30 pm with the mother to deliver [B] to the father's home at the commencement of time and the father to return [B] to the mother's home at the conclusion of time.
o. The children's time with the father pursuant to m. and n. above shall thereafter continue each alternate weekend commencing on Friday 14th September 2012 for [C] and Saturday 15th September for [B] for a period of not less than three months or such other time as may be agreed between the parties.
p. With [C] for the first half of the June/July 2012 and the September/October school holiday vacation periods commencing on the last day of the school term at 4 pm and concluding on the 7th day thereafter at 4 pm with the father to collect and return [C] to the mother's home.
q. Commencing with the first weekend of Term 1 in 2013 the children shall spend time with the father from 5.30 pm Friday to 4 pm Sunday with the parties to deliver and collect the children to and from the other parent at [F Town].
r. From 4 pm Christmas Day to 4 pm Boxing Day in 2012 with the children with the parties to deliver and collect the children to and from the other parent at [F Town].
s. From 4 pm Christmas Day to 4 pm on 1st January 2013 with [C] and [B] with the parties to deliver and collect the children to and from the other parent at [F Town].
t. From 4 pm 12th January 2013 to 4 pm 19th January 2013 with [C] and [B] with the parties to deliver and collect the children to and from the other parent at [F Town].
u. From 4 pm Saturday to 4 pm Sunday on the Father's Day weekend each year with the parties to deliver and collect the children to and from the other parent at [F Town].
7. That following [B] spending time with the father as provided for in b. — n. above and at such other times as shall be recommended by [Ms I] the mother shall facilitate [B's] attendance at the earliest available opportunity for a debriefing.
8. That the parties shall share equally in the costs of [B's] attendances upon [Ms I].
9. That the children shall spend one half of each of the New South Wales school holiday vacation periods with the father commencing with the school holidays commencing at the conclusion of the first term in 2013 alternating between the first and second half with the father to spend the second half in 2013 and each alternate year thereafter and the first half in 2014 and each alternate year thereafter. Time at the commencement shall be at 5.30 pm on the last day of term and conclude at 4 pm the day calculated to be one half of such holiday period. Time in the second half shall commence at 4 pm on the day calculated to be one half of such holiday period and conclude at 4 pm on the day prior to the resumption of the new school term.
10. The father's weekend time with the children as provided for in * above shall be suspended during each of the New South Wales School Holiday vacation periods and recommence on the first weekend of the new school term if the father had spent the first half of the preceding holiday period with the children and on the second weekend of the new school term if the father had spent the second half of the preceding holiday period with the children.
11. Unless otherwise provided for in these Orders changeover of the children shall occur at [F Town].
12. In the event that the children are spending time with the father on the Mother's Day weekend time shall conclude at 4 pm Saturday in lieu of 4 pm Sunday.
13. Each parent shall be at liberty to communicate with the children by telephone, sms text message, email or skype at reasonable frequency when the children are not in that parent's care with such communication to include each Tuesday, Thursday and Saturday between 7 pm and 7.30 pm with the parent who does not have the children in their care to initiate the communication with the children.
14. That both parties shall ensure [B] has privacy whilst showering in each of their households.
15. The Independent children's Lawyer is granted liberty to provide a copy of these orders and any reasons for judgment issued by the Court to Ms I with a request that she assist in their implementation.
16. In the event that [Ms I] forms the view that [B] is not ready to progress through a particular stage of the re-introduction referred to in these orders then she is requested to notify the Independent children's Lawyer and the parties of her concerns and the Independent children's Lawyer is granted liberty to relist the proceedings before His Honour Justice Loughnan upon the giving of 72 hours notice.
17. Each party is restrained from taking [B] to any other counsellor or psychologist without the written consent of the other party and the Independent children's Lawyer.
18. Each party shall continue and/or recommence with their individual therapeutic counselling for so long as is recommended by their particular counsellor and shall provide their counsellor with a copy of these orders and with any reasons for Judgment issued by the Court and a copy of Dr J’ report.
19. Neither parent shall speak badly about the other parent, or any member of the other parent's family, to or in the presence or hearing of the children and shall use their best endeavours to ensure that no other person does so.
20. Each parent shall keep the other:
a. immediately informed of any serious illness or injury the children may suffer whilst in their care.
b. Informed of any change to their residential address, land line and/or mobile telephone number, email and skype addresses and advise the other in writing within 48 hours of such change.
21. Each party shall be at liberty to receive copies of all school reports, newsletters and correspondence from each of the children's schools and the mother shall provide all authorities as shall be necessarily required by the school/s to facilitate such receipt.
22. Each party may attend parent/teacher interviews, sports carnivals and other events at the children's schools to which parents are in the usual course of the school's business invited to attend.
23. That each party shall ensure that both children are administered medication as and when prescribed.
The father sought orders in terms of his Response as follows:
1. That Orders made by the Federal Magistrates Court dated 25 September 2009 be discharged.
2. That the Father have the sole parental responsibility of the children namely, [B] born … March 2003 and [C] born … October 2004 (“the children”).
3. That the children live with the Father.
4. That the Mother spend supervised time with the children at an identified Contact Service, such as [H Town] Contact Services.
However, if the Court was not to make those orders, the father sought in the alternative, orders in accordance with a minute submitted just before final submissions, as follows:
Pending further order:
1. All previous parenting orders are discharged.
Parental Responsibility
2. The mother and the father shall continue to have equal shared parental responsibility for [B] born …/3/2003 ("B") and [C] born …/10/2004 ("C"), (collectively "the children").
Where the Children Live
3. Apart from as specified in these orders, the children shall live with the Mother.
What Time the Children Spend with the Father
4. The children shall spend time with the father as follows:
[C] - Term Time
a. [C] shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday, the first such weekend to occur on the Friday immediately following the pronouncement of these orders;
[B] - Reintroduction
b. On the 3rd & 4th Friday after the pronouncement of these orders [B] & [C] shall spend half an hour after the conclusion of school with the father in H Town at the Family Court Registry facilitated by Family Consultant [Mr E].
c. On the 5th & 6th Sunday after the pronouncement of these orders [B] & [C] shall spend an hour after the conclusion of school in [G Town] with the father;
d. On the 7th Sunday after the pronouncement of these orders [B] & [C] shall spend 3 hours after the conclusion of the father’s time with [C] in [G Town] with the father;
e. On the 8th, 10th & 12th Sunday after the pronouncement of these orders [B] & [C] shall spend from 10am to 4pm Sunday in [G Town] with the father;
f. On the 13th & 15th weekend after the pronouncement of these orders [B] shall spend from 10am Saturday to 4pm Sunday with the father in [H Town] with the mother or her nominee driving [B] to [H Town] at the commencement and the father or his nominee driving [B] & [C] back to [G Town] at the conclusion of time;
B - Term Time
g. Thereafter [B] shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday such time to coincide with the same weekends [C] is spending with the father;
[C] - School Holiday Time
h. For half of each school holiday period as agreed and failing agreement for the first half of even ended years (e.g. 2012, 2014, 2016 etc) and the second half in order numbered years (e.g. 2013, 2015, 2017);
[B] - School Holiday Time
i. From the conclusion of Term 3, 2012 for half of each school holiday period as agreed and failing agreement for the first half of even ended years (e.g. 2012, 2014, 2016 etc) and the second half in order numbered years (e.g. 2013, 2015, 2017);
In relation to the operation of Orders h and i the first half commences at 10.00am on the day immediately following the last day of school term and concludes at 4.30pm the day closest to the midpoint.
In relation to the operation of Orders h and i the second half commences at 4.30pm on the day closest to the midpoint and concludes 4.30pm on the Saturday previous to the commencement of the school term.
Other times
j. In the event the children are not otherwise with him, on Father's Day weekend as a minimum from 5.30pm Friday to 4.30pm Sunday.
k. At other times as agreed between the parties in writing
Specific Time with the Mother
5. Notwithstanding any provision herein to the contrary, the children shall spend time with their Mother on Mother's Day weekend (if falling on a weekend the father is to spend time with the children this time is to be suspended.)
Changeovers
6. Except where expressly dealt with in these orders, the changeover of the children from the care of one parent to the other shall take place at the McDonalds at [F Town] NSW.
7. The periods of time referred to in orders 4(b)-(4) shall commence and conclude as agreed or failing agreement at McDonalds in [G Town].
8. The periods of time referred to in order 4 (f) shall commence and conclude as agreed and failing agreement shall commence at McDonalds in H Town and concluding at the McDonalds in [G Town].
Communication with the Children
9. Each parent shall be at liberty to communicate with the children when they are not in their care on Tuesday and Thursday between 7.00pm and 7.30pm.
Counselling
10. Each parent shall do all acts necessary to ensure that [B] continues with her therapeutic counselling with Ms I for so long as recommended by [Ms I].
11. The mother shall ensure that [B] attends for debrief sessions with [Ms I] after each of the visits she has with the father as set out in orders 4 (b) — (g) as recommended by [Dr J] in his single expert report in these proceedings.
12. The Independent Children's Lawyer is granted liberty to provide a copy of these orders and any reasons for judgment issued by the Court to [Ms I] with a request that she assist in their implementation.
13. In the event that [Ms I] forms the view that [B] is not ready to progress through a particular stage of the re-introduction referred to in orders 4(b) — (g) then she is requested to notify the Independent Children's Lawyer of her concerns and the Independent Children's Lawyer is granted liberty to relist the proceedings before Justice Loughnan upon the giving of 72 hours notice.
14. The parties are to pay equally all costs associated with [Ms I's] counselling.
15. In the event that [Ms I] becomes unavailable to continue as [B's] counsellor then the Independent Children's Lawyer shall nominate a replacement counsellor after consulting with [Ms I] and Family Consultant [Ms D].
16. Each party is restrained from taking [B] to any other counsellor or psychologist without the written consent of the other party and the Independent Children's Lawyer.
17. Each party shall continue with their individual therapeutic counselling for so long as is recommended by their particular counsellor and shall provide their counsellor with a copy of these orders and with any reasons for Judgment issued by the Court.
General Parenting Matters
18. The mother shall use her best endeavours to actively encourage [B] to attend for and enjoy time with her father.
19. The mother is to use her best endeavours to encourage each of the children to call the father "Dad" or "Daddy".
20. Within 28 days of the making of these orders each parent shall enrol in a Parenting After Separation or equivalent and shall attend such course until it is completed; each parent shall provide the other and the Independent Children's Lawyer with evidence of enrolment within 7 days of so enrolling, and of completion within 7 days of completion.
21. Neither parent shall speak badly about the other parent, or any member of the other parent's family, to or in the presence of the children and shall use their best endeavours to similarly restrain any other person from doing so.
22. Neither parent shall discuss with the children these proceedings, or matters that were raised by the other parent whether in their affidavits or oral evidence in the course of these proceedings.
23. Each parent shall keep the other immediately informed of any serious illness or injury the children may suffer whist in their care.
24. The mother shall execute all authorities to allow the father to communicate freely with each of the children's school and to receive information from each child's school.
Future Conduct of the Proceedings
25. These proceedings are listed for further direction before Justice Loughnan on ……
26. Each party may attend parent/teacher interviews, sports, carnivals and other events at the children’s schools to which parents are in the usual course of the school’s business invited to attend. This will also include sport/social activities outside school time.
27. That both parties shall ensure [B] has privacy whilst showering in each of their households.
The Independent Children’s Lawyer sought orders in terms of a minute submitted just before final submissions, as follows:
Pending further order:
1. All previous parenting orders are discharged.
Parental Responsibility
2. The mother and the father shall continue to have equal shared parental responsibility for [B] born …/3/2003 ("B") and [C] born …/10/2004 ("C"), (collectively "the children").
Where the Children Live
3. Apart from as specified in these orders, the children shall live with the Mother.
What Time the Children Spend with the Father
4. The children shall spend time with the father as follows:
[C] — Term Time
a. [C] shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday, the first such weekend to occur on the Friday immediately following the pronouncement of these orders;
[B] — Reintroduction
b. On the 3rd & 4th Friday after the pronouncement of these orders [B] & [C] shall spend half an hour after the conclusion of school with the father in [G Town];
c. On the 5th & 6th Friday after the pronouncement of these orders [B] & [C] shall spend an hour after the conclusion of school in [G Town] with the father;
d. On the 7th Friday after the pronouncement of these orders [B] & [C] shall spend 3 hours after the conclusion of school in [G Town] with the father;
e. On the 8th, 10th & 12th Saturday after the pronouncement of these orders [B] & [C] shall spend from 10am to 4pm Saturday in [G Town] with the father;
f. On the 13th & 15th weekend after the pronouncement of these orders [B] shall spend from 10am Saturday to 4pm Sunday with the father in [H Town] with the mother or her nominee driving [B] to [H Town] at the commencement and the father or his nominee driving [B] & [C] back to [G Town] at the conclusion of time;
[B] — Term Time
g. Thereafter [B] shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday such time to coincide with the same weekends [C] is spending with the father;
[C] — School Holiday Time
h. For half of each school holiday period as agreed and failing agreement for the first half of even ended years (e.g. 2012, 2014, 2016 etc) and the second half in order numbered years (e/g/ 2013, 2015, 2017);
[B] — School Holiday Time
i. From the conclusion of Term 3, 2012 for half of each school holiday period as agreed and failing agreement for the first half of even ended years (e.g. 2012, 2014, 2016 etc) and the second half in order numbered years (e/g/ 2013, 2015, 2017);
Other times
j. In the event the children are not otherwise with him, on Father's Day as a minimum from 9am to 5pm;
k. At other times as agreed between the parties in writing
Specific Time with the Mother
5. Notwithstanding any provision herein to the contrary, the children shall spend time with their Mother on Mother's Day from 9am to 5pm.
Changeovers
6. Except where expressly dealt with in these orders, the changeover of the children from the care of one parent to the other shall take place at the McDonalds at [F Town] NSW.
7. The periods of time referred to in orders 4(b)-(4) shall commence and conclude as agreed or failing agreement at McDonalds in [G Town].
8. The periods of time referred to in order 4 (f) shall commence and conclude as agreed and failing agreement shall commence at McDonalds in [H Town] and concluding at the McDonalds in [G Town].
Communication with the Children
9. Each parent shall be at liberty to communicate with the children by telephone, sms text message, email or skype at reasonable frequency when the children are not in that parent's care.
Counselling
10. Each parent shall do all acts necessary to ensure that [B] continues with her therapeutic counselling with [Ms I] for so long as recommended by [Ms I].
11. The mother shall ensure that [B] attends for debrief sessions with [Ms I] after each of the visits she has with the father as set out in orders 4 (b) — (g) as recommended by [Dr J] in his single expert report in these proceedings.
12. The Independent Children's Lawyer is granted liberty to provide a copy of these orders and any reasons for judgment issued by the Court to [Ms I] with a request that she assist in their implementation.
13. In the event that [Ms I] forms the view that [B] is not ready to progress through a particular stage of the re-introduction referred to in orders 4(b) — (g) then she is requested to notify the Independent Children's Lawyer of her concerns and the Independent Children's Lawyer is granted liberty to relist the proceedings before Justice Loughnan upon the giving of 72 hours notice.
14. The parties are to pay equally all costs associated with [Ms I's] counselling.
15. In the event that [Ms I] becomes unavailable to continue as [B's] counsellor then the Independent Children's Lawyer shall nominate a replacement counsellor after consulting with [Ms I] and Family Consultant [Ms D].
16. Each party is restrained from taking [B] to any other counsellor or psychologist without the written consent of the other party and the Independent Children's Lawyer.
17. Each party shall continue with their individual therapeutic counselling for so long as is recommended by their particular counsellor and shall provide their counsellor with a copy of these orders and with any reasons for Judgment issued by the Court.
General Parenting Matters
18. The mother shall use her best endeavours to actively encourage [B] to attend for and enjoy time with her father.
19. The mother is to use her best endeavours to encourage each of the children to call the father "Dad" or "Daddy".
20. Within 28 days of the making of these orders each parent shall enrol in a Parenting After Separation or equivalent and shall attend such course until it is completed; each parent shall provide the other and the Independent Children's Lawyer with evidence of enrolment within 7 days of so enrolling, and of completion within 7 days of completion.
21. Neither parent shall speak badly about the other parent, or any member of the other parent's family, to or in the presence of the children and shall use their best endeavours to similarly restrain any other person from doing so.
22. Neither parent shall discuss with the children these proceedings, or matters that were raised by the other parent whether in their affidavits or oral evidence in the course of these proceedings.
23. Each parent shall keep the other immediately informed of any serious illness or injury the children may suffer whist in their care.
24. The mother shall execute all authorities to allow the father to communicate freely with each of the children's school and to receive information from each child's school.
Future Conduct of the Proceedings
25. These proceedings are listed for further direction before Justice Loughnan on ……..
The Independent Children’s Lawyer (ICL) also sought orders in respect of costs in the following terms:
1. That within 7 days each party pay to [Dr J] the sum of $1045 being his Court attendance fee.
2. That subject to any waiver granted by Legal Aid NSW, that each party pay to Legal Aid NSW the sum of $7720 representing their contribution to the costs of the Independent Children's Lawyer.
Although the precise terms of the parties’ proposals differed slightly, by the end of the trial it was common ground that there should be a restoration of [B’s] relationship with her father. As I have referred to above, the father sought that the court go further and order that [B] (and [C]) live with him. I suggested to the parties that given their new positions, rather than wait for judgment to be delivered, the parties could immediately implement a re-introduction program. No opposition was expressed to that course. I told the parties that I would give them a short opportunity to settle an agreed program to restore time between [B] and the father but, without hearing from them again, would impose on them a solution in respect of any issues about which they could not agree.
On 24 May 2012 I made Orders including :
…
2. That within 7 days from today’s date the parties provide to Justice Loughnan’s chambers a Minute of Orders agreed between them in respect of a program to re-introduce [B] and her father.
3. In the event that the parties are unable to reach an agreement they are to provide a Minute of any agreed aspects of the regime and to indicate in the Minute in relation to each issue the competing proposals from the parties.
The ICL sought and obtained an extension of time to lodge the agreed minute. On 7 June 2012 the following document was provided to my chambers by the ICL.
MINUTE OF INTERIM ORDERS
Pending further order:
1. The mother shall attend upon an appointment with Family Consultant [Ms D] at the Parramatta registry of the Court on a date nominated by [Ms D] for the purpose of preparing her to support [B’s] re-introduction to her father. The mother shall attend upon such other appointments or phone consultations as [Ms D] determines as necessary, and the mother is to be given forty-eight hours notice.
What Time the Children Spend with the Father
2. The children shall spend time with the father as follows:
[C] – Term Time
a. The Court notes that the existing orders relating to alternate weekend contact between [C] and the Father shall continue.
[B] – Reintroduction
b. On the date nominated by the Independent Children’s Lawyer the mother shall bring [B] to the Parramatta registry of the Court for a meeting with the Independent Children’s Lawyer and the Family Consultant [Ms D] and the mother is to be given forty-eight hours notice of such meeting. Following that meeting [B] may have a brief meeting with the Father if in the opinion of [Ms D] she is up to such a meeting.
c. On up to 3 dates nominated by Family Consultant [Mr E] the mother shall bring [B] to the [H Town] registry of the Court where Family Consultant [Mr E] will facilitate [B] spending a period time with the Father, the length of which to be determined by [Mr E].
d. On the 2 Sundays after the last session with [Mr E], [B] & [C] shall spend from 4.00pm to 4.30pm with the father in [G Town].
e. On the next 2 Sundays [B] & [C] shall spend from 4.00pm to 5.00pm with the father in [G Town].
f. On the next Sunday [B] & [C] shall spend from 3.00pm to 6.00pm in [G Town] with the father;
g. On the following Sunday and each alternate Sunday thereafter for 3 Sundays [B] & [C] shall spend from 10am to 4pm Sunday in [G Town] with the father;
h. On the 2nd weekend following the last Sunday referred to in the previous sub paragraph, and on each alternate weekend thereafter for 3 weekends, [B] shall spend from 10am Saturday to 4pm Sunday with the father in [H Town] with the mother or her nominee driving [B] to [H Town] at the commencement and the father or his nominee driving [B] & [C] back to [G Town] at the conclusion of time;
i. Thereafter [B] shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday such time to coincide with the same weekends [C] is spending with the father;
[C] – School Holiday Time
j. For half of each school holiday period as agreed and failing agreement for the first half of even ended years (e.g. 2012, 2014, 2016 etc) and the second half in order numbered years (e.g. 2013, 2015, 2017);
The “first half” of a school holiday period means from 9.00am on the first day following the last day of the school term until 4.00pm, on the Sunday falling closest to the midpoint of the holiday period and the “second half” of a school holiday period means from 4.00pm on the Sunday falling closest to the midpoint of the school holiday period until 4.00pm on the final Saturday of the holiday period.
Other times
k. In the event the children are not otherwise with him, on Father’s Day as a minimum from 9am to 5pm;
Father:
In the event the children are not otherwise with him, on Father’s Day weekend from 5.30pm Friday to 4.30pm Sunday.
l. At other times as agreed between the parties in writing
Changeovers
3. Except where expressly dealt with in these orders, the changeover of the children from the care of one parent to the other shall take place at [F Town] NSW.
4. The periods of time referred to as occurring in [G Town] shall commence and conclude as agreed or failing agreement at McDonalds in [G Town].
5. The periods of time referred to in order 2(h) shall commence and conclude as agreed and failing agreement shall commence at McDonalds in [H Town] and conclude at the McDonalds in [G Town].
Communication with the Children
6. (a) Each parent shall be at liberty to communicate with the children by telephone, sms text message, email or skype on Tuesday, Thursday & Saturday between 7pm and 8pm when the children are not in that parent’s care, and the parties shall be permitted to contact [B] on her mobile phone.
Father:
Opposes inclusion of [emboldened] words
(b) The parties may also call the children on their birthdays, Christmas, and Easter in the event these special occasions are not covered by order 6(a).
Counselling
7. Each parent shall do all acts necessary to ensure that [B] continues with her therapeutic counselling with [Ms I] for so long as recommended by [Ms I].
8. The mother shall ensure that [B] attends for debrief sessions with [Ms I] after each of the visits she has with the father as set out in orders 2 (b) – (h) as recommended by [Dr J] in his single expert report in these proceedings.
9. Each parent shall attend for individual sessions or phone consultations with [Ms I] as she may direct to assist her in supporting [B].
10. The Independent Children’s Lawyer is granted liberty to provide a copy of these orders and any reasons for judgment issued by the Court to [Ms I] with a request that she assist in their implementation.
11. The Independent Children’s Lawyer shall provide a copy of these orders to [Ms D], [Mr E] and the [K School] and request their assistance in implementing them.
12. In the event that [Ms I] forms the view that [B] is not ready to progress through a particular stage of the re-introduction referred to in orders 2(b) – (g) then she is requested to notify the Independent Children’s Lawyer of her concerns and the Independent Children’s Lawyer is granted liberty to relist the proceedings before Justice Loughnan upon the giving of 72 hours notice.
13. The parties are to pay equally all costs associated with [Ms I’s] counselling.
14. In the event that [Ms I] becomes unavailable to continue as [B’s] counsellor then the Independent Children’s Lawyer shall nominate a replacement counsellor after consulting with [Ms I] and Family Consultant [Ms D].
15. Each party is restrained from taking [B] to any other counsellor or psychologist without the written consent of the other party and the Independent Children’s Lawyer.
16. Each party shall continue with their individual therapeutic counselling for so long as is recommended by their particular counsellor and shall provide their counsellor with a copy of these orders and with any reasons for Judgment issued by the Court.
General Parenting Matters
Notwithstanding any order to the contrary, the children shall spend mother’s day with the mother on Mother’s Day as a minimum from 9am to 5pm;
Mother proposes an additional order:
In the event the children are to spend time with the father on Mother’s Day in accordance with these Orders, the father’s time will conclude at 4:00pm on the day immediately before Mother’s Day each year.
17. The mother shall use her best endeavours to actively encourage [B] to attend for and enjoy time with her father.
18. The mother is to use her best endeavours to encourage each of the children to call the father “Dad” or “Daddy”.
19. Within 28 days of the making of these orders each parent shall enrol in a Parenting After Separation or equivalent and shall attend such course until it is completed; each parent shall provide the other and the Independent Children’s Lawyer with evidence of enrolment within 7 days of so enrolling, and of completion within 7 days of completion.
20. Neither parent shall speak badly about the other parent, or any member of the other parent’s family, to or in the presence of the children and shall use their best endeavours to similarly restrain any other person from doing so.
21. Neither parent shall discuss with the children these proceedings, or matters that were raised by the other parent whether in their affidavits or oral evidence in the course of these proceedings, except that the Mother shall, in consultation with Family Consultant [Ms D], explain to [B] that she fully supports her re-introduction to the father.
22. Each parent shall keep the other immediately informed of any serious illness or injury the children may suffer whist in their care and any attendance by the children at any hospital.
23. The mother shall execute all authorities to allow the father to communicate freely with each of the children’s school and to receive information from each child’s school.
24. After [B] is spending time with her father in accordance with order 2(h) the father is at liberty to attend any school or sporting event (in and outside of school time) in which the children are involved; to facilitate this occurring the mother shall provide the father’s email address to the school and any sporting club the children are enrolled with.
25. Each parent is to encourage a positive relationship with the other parent.
26. The father is to administer to the children medication prescribed for them by their treating Doctor, and the mother is to provide the father such prescribed medication to administer to the children.
27. Each party is to ensure [B] has privacy when showering, when in the bathroom and in her bedroom when changing clothes or when [B] requests privacy.
28. Each party is to ensure that the other is immediately informed of any change of contact details and residence.
29. Neither party shall include the children in any advertisement or publication without the written consent of the other party.
30. Upon the release of these orders, the Independent Children’s lawyer, in consultation with the Family Consultants and [Ms I] and the other parties, shall prepare a calendar of dates which reflect the orders.
31. Liberty to all parties to apply on 72 hours notice to have the proceedings relisted before Justice Loughnan.
The Hearing
The matter was listed for hearing over four days commencing 14 February 2012. The father’s affidavit was filed on 10 February 2012. Counsel for the father advised that save for one change and the seven pages of updating material, the document simply repeated the father’s earlier affidavit. In any event, half a day was lost on the first day of the trial while the mother’s counsel obtained instructions on the document. At the request of the mother’s counsel, the court rose at 4.00pm on the first day and at the resumption of the hearing on 15 February 2012, the mother’s solicitor sought that the matter be adjourned for the week due to personal difficulties of the mother’s counsel. The adjournment was not opposed and the matter was listed to resume for a further 4 days from 21 May 2012. Those days were convenient to the father and the ICL but not to the mother’s counsel. Alternate dates were proposed and leave was granted to the parties to bring the matter back by arrangement with my associate in the event that other available dates were agreed to be more suitable. It was noted that the single expert would be interposed on the first day of the resumed hearing as he was only available on that day.
The adjournment occurred after about an hour of cross-examination of the mother on behalf of the father and before the oral evidence of any other lay or expert witnesses. On 21 May 2012 Dr J was cross-examined. By the conclusion of 24 May 2012 the remaining oral evidence and submissions were completed.
As I have said, by the end of the trial it was common ground that there should be a restoration of B’s relationship with her father. The issue of the costs of Dr J’ attendance was pressed. I also discussed with the parties the need for the children to be told about the new arrangements.
On 24 May 2012 I made the following orders:
1. That within 7 days from today’s date each of the parties pay to [Dr J] the sum of $1,045.00 in respect of his fees for attendance at Court.
2. That within 7 days from today’s date the parties provide to Justice Loughnan’s chambers a Minute of Orders agreed between them in respect of a program to re-introduce [B] and her father.
3. In the event that the parties are unable to reach an agreement they are to provide a Minute of any agreed aspects of the regime and to indicate in the Minute in relation to each issue the competing proposals from the parties.
4. That as soon as practicable the parties facilitate the attendance of the children on their representative at a time, date and place advised by the representative for the purpose of the children hearing from the representative, and if available the Family Consultant, the terms of the interim regime and such other matters as the Independent Children's Lawyer and the Family Consultant considers relevant AND the Court requested that as soon as practicable thereafter the Independent Children's Lawyer indicate to the solicitors for the parties the import of those communications.
5. That otherwise judgment is reserved and the parties and their legal representatives and the Independent Children's Lawyer are excused attendance on delivery of judgment.
Written Evidence
The mother relied on the following documents:
a. Initiating Application filed by the mother on 19 November, 2010.
b. Notice of Abuse filed by the mother on 9 December, 2010.
c. Affidavit of the mother filed on 2 February, 2012.
d. Affidavit of Mr N filed on 11 August, 2011.
The father relied on the following documents:
a. Response filed by the father on 23 December 2010.
b. Notice of Abuse filed by the father on 23 December 2010.
c. Affidavit of the father filed on 10 February 2012.
d. Affidavit of Ms O filed on 11 May 2011.
e. Affidavit of Ms P filed on 25 August 2011.
Expert Evidence
The following expert evidence was relied on:
· Child Responsive Program Memorandum by Family Consultant Ms D dated 25 January 2011.
· The Single Expert Report released to the parties on 1 August 2011 and bearing the (inaccurate) date 29 October 2010, authored by Dr J.
Short History
The mother was born in 1978 and as at the conclusion of the hearing she was 33 years of age. The father was born in 1978 and as at the conclusion of the hearing he was also 33 years of age. The parties started living together in early 2002 and separated in June 2008. The mother lives in G Town and the father, 200 kilometres away, in H Town.
The Children
There are two children of the marriage:
Bwho was born in March 2003 and as at the conclusion of the hearing was 9 years of age; and
Cwho was born in October 2004 and as at the conclusion of the hearing was 7 years of age.
The mother also has a child from a subsequent relationship. Namely, Q, who was born in October 2009.
Background Facts
In the course of her cross-examination the mother gave evidence that her ongoing concerns in respect of the father spending time with the children were a residual concern in relation to the potential for him to sexually abuse B. The mother confirmed that she had no ongoing concerns in relation to the father being violent, suicidal or otherwise mentally ill. It was also conceded by the mother that she wanted C to continue to spend unsupervised time with the father including overnight and for block holiday periods. She seeks that B be re-introduced to the father and spend time with him in accordance with a regime such as that proposed by Dr J.
In the course of his cross-examination the father conceded that he struck the mother in April 2008 and that was unacceptable behaviour. The father also conceded that his being actively involved in washing his then 7 year old daughter, B, was inappropriate.
In light of those concessions the relevant background is as follows.
B was born in March 2003.
In March 2004, the parties were married.
C was born in October 2004.
The mother makes a number of allegations against the father in relation to violence and suicidal ideation which the father substantially disputes.
On 19 April 2008, the mother went out for drinks with colleagues at the local club. She said the father was also inside the club and followed her outside when she went to have a cigarette. She said he grabbed her phone and broke it. She said he then dragged her onto the road until they reached railway tracks. She said he then punched her on the side of the head and she fell to the ground. She said she woke up feeling woozy and with ringing in her ear. She said when she stood up, the father punched her again in the head and she fell to the ground. She said she again stood up, the father hit her again and she fell. The mother said he hit her around four times. The father conceded[1] that he hit the mother a few times on one occasion. It is not possible to make a finding about which version of events is to be preferred. Neither version of events does the father any credit. It is an agreed fact that the father was violent to the mother.
[1] Report of Family Consultant D
The parties separated in June 2008. Around this time, the father was hospitalised for mental health issues. The mother said that he told her he was on strong medication to prevent him from having violent outbursts. The father does not agree that he made a statement to that effect. He recalled that he told the mother that he was put on a slow release anti-depressant and was given another medication to take while the first medication took effect. The father said that the hospital admission was only for a matter of hours.
In July 2008, the mother commenced a relationship with Mr N.
On 31 August 2009, Q was born to the mother and Mr N.
In September 2009, the father commenced living with his current partner, Ms O.
On 25 September 2009, final parenting orders were made in the Federal Magistrates Court at H Town. The orders provided for the parents to have equal shared parental responsibility, to live with the mother and to spend alternate weekends with the father as well as school holiday time and other times as agreed. The orders also provided for the party who did not have the children in their care to have telephone communication with the children each Tuesday and Thursday between 6.00pm and 7.30pm.
The mother and father divorced in late 2009.
In 2009, the father did not contact the children by telephone in accordance with the orders made 25 September 2009 for a period of seven months. The father’s explanation relates to his understanding of who was responsible for making contact. Obviously, that he would prefer to maintain the correctness of his interpretation of the orders rather than speak to the children, does the father no credit.
On 17 November 2009, the father said that the mother arranged for C to go to R Health Centre during the father’s time with the children.
On 1 December 2009, the father said the mother made an appointment for the children in G Town to occur during the father’s time with them.
On 4 December 2009, the father said the mother took the children from him and did not allow him to spend time with them.
On 11 December 2009, the father said that the mother refused to allow the children to spend time with him at R Health Centre. In fact the mother proposed that there be an encroachment into the father’s time with the children so that she and they could fly to Sydney. The father would only agree if the mother agreed to make up time in Sydney. The parties did not reach those agreements. The father was able to take part in some activities while the children were at R Health Centre. It appears that the failure of the parents to agree about these arrangements put the children to less comfortable travel (by road rather than air) and caused them to experience disturbances and distress during the visit to R Health Centre. The failure of the parents to co-operate in relation to these arrangements does them no credit.
In the 2009/2010 Christmas school holidays, the children spent the second half of the holidays with the father.
On 11 March 2010, the mother instructed her solicitor to write to the father regarding his failure to telephone the children.
In March 2010, the mother was unable to deliver the children to the father due to her being ill. She said she provided the father with a medical certificate and offered to make up his time with the children. The father said the mother cancelled his time with the children.
In March 2010, the parties attempted to negotiate an alternate arrangement for the father to spend time with the children but were unable to come to an agreement.
In April 2010, the mother alleges that B said to her “tell Daddy to stop washing me”.
On 20 April 2010, the mother said she had a conversation with the father and told him that B was capable of washing herself. The father told her B had a sore bottom so he put cream on it.
In mid 2010, C told the father that he was going to shoot the mother.
In the mid year school holidays, the father said the mother telephoned the children and said among other things: “Is Daddy hurting you?” and “Don’t worry you will be with Mummy soon”.
On 20 August 2010, the father asserts that B said she wanted to spend more time with him.
On 1 September 2010, the mother and B were waiting in the car while C was at tutoring. The mother said B told her that the father washes her “down there”, that she keeps telling him to stop and that the father told her not to tell the mother. The mother made many attempts to telephone the father immediately and his partner, Ms O, but was unable to contact either of them. The mother later received a phone call from H Town Police Station after the father made a complaint about the mother telephoning him. The mother said she explained why she had attempted to contact the father. She then attended upon G Town Police Station with B. A JIRT officer at G Town Police Station spoke with B and advised the mother that somebody would contact her. B said she no longer wanted to call the father “Dad” and has since referred to the father by his Christian name.
On 2 September 2010, the mother received a telephone call from G Town JIRT. An interview was requested with B.
On 3 September 2010, the mother attended upon the JIRT office with B, where B was interviewed. JIRT were unable to make a finding and the mother said she felt she had to send B to the father in compliance with the orders.
From 3 September 2010 to 5 September 2010, the children spent time with the father.
On 6 September 2010, the mother said B told her “Daddy didn’t wash me this weekend but he used to wash me and put his finger in and out of my hole and it hurt”. The mother telephoned JIRT officer, Ms S and left a message for her. She said B told her she no longer wanted to see the father or anybody from H Town again.
On 8 September 2010, the mother had a conversation with JIRT officer Ms S and requested that B be interviewed again. The JIRT officer proposed that B attend sexual assault counselling but advised that she could not be interviewed unless she made a disclosure to JIRT officers.
On 10 September 2010, the father said he attended the children’s school and was told that the mother said he was not allowed to see the children.
On 23 September 2010, the mother informed the father that B would be having sexual assault counselling and that she would be seeking to vary the orders.
On 24 September 2010, the mother took B to counsellor, Ms T, at U Health Service in G Town upon the referral by Ms S. The mother said the counsellor advised her that the father’s behaviour was concerning. Ms T made a mandatory report to the Department of Community Services.
In October 2010, JIRT requested that B be interviewed again. The mother and Ms T determined that this would further distress B and decided against having her re-interviewed.
On 19 November 2010, the father filed a Contravention Application regarding the incident in March 2010. The mother filed the Application for Final Orders that commenced these proceedings, seeking that the father spend no time with either child.
On 9 December 2010, the mother filed a Notice of Child Abuse or Family Violence alleging that the father had sexually abused B.
On 13 December 2010, I made the following orders:
By consent and pending further order:
(1) That the Federal Magistrate Court orders made 25 September 2009 are hereby suspended.
(2) That the children [B] born … March 2003 and [C] born … October 2004 live with the mother.
(3) That pursuant to Section 68L of the Family Law Act 1975 an Independent Children's Lawyer be appointed to represent the children’s interest.
(4) That all therapy/counselling for [B] is suspended until such time as otherwise determined by the Independent Children's Lawyer or Court order.
(5) That the parties forthwith attend upon the [contact centre] at [V Town] and [the contact centre] at H Town for the purposes of Intake/Initial consult only.
(6) That the child [C] communicate with the father by telephone each Saturday with the father telephoning [C] on the mother’s mobile number between 8.30 am and 9.30 am and the mother will facilitate this by keeping her mobile phone on.
(7) That the Independent Children's Lawyer has leave to inspect all subpoena material produced to date.
On 23 December 2010, the father filed a Response and Notice of Child Abuse or Family Violence alleging that the mother had coached the children, had verbally abused the children and had exposed the children to sexual abuse in her household.
On 5 March 2011, the mother said she overheard the father say to C “I have two pillows and kiss and cuddle them and pretend that they were you and B”.
On 21 March 2011, consent orders were made that provided for the father to spend time with C for 2 hours per fortnight at the Contact Centre, V Town.
On 8 May 2011, C spent time with the father at the Contact Centre, V Town. The centre could not arrange for fortnightly visits and so C continued to see the father on a monthly basis.
In May 2011, the parties were interviewed by the single expert, Dr J.
On 1 August 2011, Dr J’s expert report was released to the parties.
On 26 August 2011, Johnston J made the following orders:
1. That all parties are given leave to approach the Judicial Services Manager today and request 4 hearing days before a Judge as soon as possible.
2. That the Court notes that all affidavits in chief have been filed and served.
3. That by consent orders are made in accordance with the Terms of Settlement filed in Court today signed by the parents and their respective counsel, by the Independent Children’s Lawyer and by Justice Johnston and placed with the Court papers as set out hereunder:-
By Consent it is this day ordered:-
1. That Order 2 of the Orders made on 21 March 2011 and Order 1.6 of the Orders made on 13 December 2010 be and are hereby discharged.
2. That the father spend time with [C] born …October 2004 as follows:-
a. from 10 am to 4 pm on Sunday 4th September 2011
b. from 10 am to 4 pm on Sunday 11th September 2011
c. from 5.30 pm Friday to 12 noon Sunday each alternate weekend commencing on Friday 25th September 2011
d. from 5.30 pm Friday 30th December 2011 to 5.30 pm Friday 6th January 2012
e. from 5.30 pm Friday 20th January 2012 to 5.30 pm Friday 27th January 2012
3. That the father's time in 2.a. and 2.b. shall occur in [G Town] and changeover shall occur at the McDonalds Family Restaurant in [G Town]. For the purposes of changeover the father shall wait near the children's play area inside McDonalds at the commencement of time and the mother shall deliver [C] to the front door and the mother shall wait near the children's play area inside McDonalds at the commencement of time and the father shall deliver [C] to the front door at the conclusion of time and the father shall then immediately leave the vicinity of the McDonalds Restaurant.
4. That for the purposes of the father's time with [C] in 2.c. - e. the parties shall cause [C] to be delivered to the other parent at the commencement and conclusion of time at the W Park at F Town opposite the Police Station.
5. That the parties be and are hereby restrained from approaching or speaking to the other parent at changeover.
6. That the father shall ensure that [C] is administered his medication at the time and in the dosages as prescribed by his treating medical practitioner and shall otherwise ensure that [C] receives his occupational therapy during all times that he is in his care.
7. That the mother shall ensure that she provides to the father a copy of [C's] occupational therapy exercises in writing and otherwise ensure that [C's] medication is provided at the times that he is with the father.
8. That within seven days of the date of the making of these Orders the mother shall do all acts and things as shall be necessarily required to contact and arrange the first available appointment and thereafter to attend upon a psychologist at X Centre, G Town and at the same time cause an appointment to be made for [B] to also attend upon psychologist [Ms I]
9. It is noted that the psychologist attended by the mother shall not be the same psychologist as [B] is to attend save and except as provided for in 10. below.
10. That the parties or either of them shall attend upon [B's] psychologist as shall be requested by such psychologist
11. That the costs of [B's] attendance upon [X Centre] shall be borne equally by the parties.
12. That the Family Consultant [Ms D] may contact [B's] psychologist to provide the relevant background information prior to [B's] first attendance and otherwise the Independent Children's Lawyer shall provide a copy of the report of [Dr J] to the mother's, the father's and [B's] psychologists.
13. That within seven days of the date of the making of these Orders the father shall do all acts and things as shall be necessarily required to contact and arrange the first available appointment and thereafter to attend upon psychologist in the [H Town] area.
14. It is noted the mother will cease taking [B] to her sexual assault counsellor at the time of commencement of [B's] attendance upon the psychologist.
15. That in the event that [C] suffers any illness or injury requiring medical attention or hospitalisation during any period he is in their care, they shall immediately notify the other of such illness and the name of the treating medical practitioner or hospital to which the child has been taken.
At some point after the release of Dr J’s report, the mother prepared a critique[2] of the report. The critique runs to 8 typed pages and is critical of alleged factual inaccuracies and some of the opinions expressed in the report. A copy of the critique came into the records of Ms Y who was a counsellor consulted by the mother in G Town, pursuant to order 8 above.
[2] Exhibit 5.
Notwithstanding the notation made by the Court on 26 August 2011, the mother continued to take B to the sexual assault counsellor even after the interviews with Ms I commenced. The mother contends that she was told that the ICL approved that course. There is no evidence that the ICL agreed to that arrangement.
On 9 October 2011 and 23 October 2011, the mother said C returned from the father’s care and disclosed that he did not take his medication while in the father’s care. It is the father’s evidence that he ensures that prescribed medication is administered to C in his household.
In November 2011, the mother says C said to her “I don’t want to go to H Town, I am sick of travelling”.
On 30 December 2011, C said to the mother “I am going to get rid of guns in Daddy’s house. They are toy guns that look real. I have a special hiding place at Daddy’s behind the gate”.
Credibility
As this case was presented for trial, it involved contested allegations that the father assaulted B. There was and remains a dispute as to the extent of the father’s violence to the mother. Dr J observed that both parents were terrible when it came to dates and timelines. For example, the mother initially told Dr J that B’s first disclosure of the assault in the shower was made to the school and that the school made the notification. The COPS records suggest that the initial disclosure was to the mother directly and the mother subsequently corrected her earlier statement and agreed that the first disclosure was to her.
As the issues developed and resolved during the trial, there were few factual issues left to be determined by reference only to the testimony of the parties.
It is very apparent that each of the parties recalls events from their own perspective. In particular the mother did not display a good recollection of events. Whatever were her previous concerns, as at the conclusion of the oral trial the only concerns expressed by the mother in relation to the father were residual concerns in relation to the father sexually abusing B.
The Expert Evidence
The Single Expert
Dr J is a clinical psychologist. His report was incorrectly dated 29 October 2010 but was prepared on 23 or 24 July 2011. It was released on 1 August 2011. The report was not provided under cover of an affidavit but no issue was taken with that fact and Dr J adopted the report at the commencement of his cross-examination.
Dr J was awarded a Masters Degree in Clinical Psychology and a Ph.D was in 1995. Dr J is a member of the Clinical and Forensic Colleges of the Australian Psychological Society, the Australian and New Zealand Association of Psychiatry, Psychology and the Law; and the Australian and New Zealand Association for the Treatment of Sex Abusers. Dr J commenced his clinical experience as a psychologist, treatment manager in 1978. He subsequently worked as child psychologist with the and later as a team leader in adult mental health, child and family mental health and school mental health. In 1987 he was appointed Senior Clinical Psychologist, specialising in working with young offenders. In 1988 Dr J commenced teaching, at various universities. He is now a Director of a forensic and clinical private psychology practice. His forensic work includes providing reports and assessments in Children’s Court and family court matters. He has provided reports to the Family Court of Australia since 1999.
The Child and Parent Issues Assessment
A Children and Parents Issues Assessment was provided by Ms D, a Family Consultant. Ms D was not required for cross-examination and her opinions are not challenged.
The Legislation
Parenting proceedings are determined on the basis of s 60CA of the Family Law Act1975 (Cth) (“the Act”). It provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The task of identifying appropriate parenting orders starts with parental responsibility.
Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply and if it does apply, it can be rebutted. Depending on whether an order will be made for equal shared parental responsibility or not, s 65DAA requires that the court consider orders for equal time or substantial and significant time.
Findings are made by reference to what is in the child’s best interests. The Act specifies in s 60CC the matters that are relevant to the determination of what is in a child’s best interests.
Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
Turning to the matters in s 60CC as they relate to these proceedings:
Primary Considerations:
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
The court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents but depending upon factual circumstances, the present relationship may also be relevant (McCall & Clark (2009) FLC 93-405).
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child (Mazorski & Albright (2007) 37 Fam LR 518).
In his written submissions, the father said that it is appropriate that the children have a relationship with each of the parents. As I understand his case he considers that the mother will not be able to promote him to B and that it will be necessary for an indefinite period, to limit the mother’s time with the children to supervised time only.
The mother supported the proposals of the ICL that would have physical contact between the children and both parents and each other.
Dr J said that the long-term likely effect of B not having a relationship with her father is that she will grow up with a distorted belief about fathers and men and that will impact upon her ability to form and enjoy relationships in future. If B maintains a view of herself as a victim of sexual abuse, Dr J said that could impact upon her capacity for intimacy with partners as she matures. Dr J was concerned about this outcome for B. Those opinions are founded on Dr J’s analysis of records going to the mother’s allegations.
The background facts and the concessions made during the trial suggest that the children have had meaningful relationships with each of their parents in the past. The background facts also suggest that a meaningful relationship might be available in the future.
Dr J’s recommendation supports the view that the children will benefit from having a meaningful relationship with both of their parents.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
‘Abuse’ and ‘family violence’ are defined terms.
Section 4 of the Act includes the following definitions:
"abuse", in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Allegations in relation to B
During the course of her cross-examination the mother said that of her previously expressed concerns arising out of the father’s violence, mental health, suicidal ideations and sexual abuse of B, her only remaining concern was in relation to the last mentioned issue. Despite that concern, the mother said that she was very much affected by Dr J’s opinion that very serious psychological harm is in prospect for B if she is not reconciled to her father and she now supports his recommendations. Therefore, it is no longer the mother’s case that the court could find that the father abused B, nor that there is an unacceptable risk to B from the father.
The father concedes that he was actively engaged in washing B on occasions when she visited him, up to and including at age 7. He has undertaken courses and received advice to the effect that this was unnecessary and, in any event, inappropriate. By way of explanation he offered that he came from a family of boys and simply did not appreciate the boundaries in relation to parenting young girls.
It is the mother’s evidence[3] that:
[3] Paragraph 13 of the mother’s affidavit.
13. On Wednesday 1 September, 2010 B and I were sitting in my car whilst my son [C] was having tutoring. [B] and I had a conversation to the following effect:
B: "1 have bad secret about daddy".
Me: 'What?"
B: "At school we were talking about good and bad secrets and how bad secrets can give you bad butterflies in your tummy. Dad still showers me".
Me: "What do you mean?"
B: "Daddy washes me down there ([B] at this point pointed to her vagina area)".
Me: "Your [CC]? ([CC] is a term we use to describe [B's] vagina)".
B: "Yes".
Me: "Did you tell Daddy that he doesn't need to do that?"
B "I told daddy that he doesn't need to wash me but he keeps washing me for a long time and it hurts. I keep telling him to stop. Daddy told me not to tell you".
Conclusion
In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about abuse in the following terms:
Principles relevant to findings of sexual abuse
28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)that the allegation is not proved; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
29. In M v M (1988) 166 CLR 69 the High Court said at 76:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. …
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
Dr J had no concerns about the either parent’s mental health as a factor reducing their capacity to parent in the future.
(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
As is set out earlier, Dr J interviewed the family members in May 2011, when B was 8 years of age. He was told that B was generally a sensible and well behaved child, perhaps somewhat pseudo-mature. The mother told his that when B is with her girlfriends she “acts age appropriate”. Dr J noted that B had a comforter, called Z, which she appeared to be quite reliant on when he observed her. The mother reported that B did reasonably well at school although she has struggled a bit. Her performance was said to be within the normal range and she was said to have good friends at school.
Dr J was told that C reached his milestones in the normal time, although perhaps a little slower than B. The first problem that presented was when he began to stutter. He was impulsive at pre-school and was assessed at the pre-school as immature for his age. He was diagnosed with ADHD in late 2010, but has no other medical problems. He was prescribed Ritalin when Dr J saw him. He is currently taking Concerta. Dr J noted that the Kindergarten report for C dated December 2010 appeared to be at odds with the mother’s report. There, he was reported to be a pleasant and cooperative child, generally performing between basic and high in various areas. The bulk of his marks were in the ‘basic’ range but none were ‘limited’. C did require assistance in some areas of schoolwork. In cross-examination, Dr J said he did not dispute the diagnoses reported by the mother nor does he criticise C’s treatment.
The mother reported that C had a teacher’s aid and is probably performing at below average level in his class work, but that he is improving. She said his current treatment regime is monitored by a paediatrician. C attends upon a speech therapist fortnightly and his stutter has improved. He attends occupational therapy at school and privately.
(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This does not apply.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Dr J described the relationship between the parents as poisonous. He said that the children are in this very difficult situation “because the parents can’t get it together”.
As referred to above, the mother expressed her change of heart in relation to B having a relationship with the father. She said that she thinks it is very important for B to grow up to be healthy and happy. She said that if B’s best interests are served by her having a relationship with the father, then she would support that. She said she still holds “huge concerns” and believes what B disclosed to her. However, because not having a relationship with her father would prevent B from having a fulfilling, loving relationship in the future, then the mother said she believes Dr J’s recommendations should be followed. She explained that, after listening to Dr J’s evidence, her concerns about the father posing a risk to B were somewhat relieved.
The father has not been able to insulate the children from his dispute with the mother or from his emotional response to situations. It was his evidence that in around May 2010 he told the mother he wanted her to tell the children she was going to “do the right thing” and let them see their father. The father said he thought this was sensible because the children were asking him about it. The father said he thought the mother needed to demonstrate that she could do what she’s told. In September 2010, on the weekend following B’s initial interview with JIRT, the father said B was withdrawn and seemed worried. He reprimanded her for something minor that had happened with a pencil case and she reacted disproportionately; she ran into her room and cried under a blanket. The father said he went into her bedroom to talk to her. B then told the father about her interview with the police and he and B cried together on the floor.
Through her concession that she could have done things differently in the past, the mother demonstrated some insight into her own behaviour. She said she could have taken things less personally and worked on ways to better communicate with the father.
(3)(j) any family violence involving the child or a member of the child's family;
It is the mother’s evidence that the father was physically violent toward her throughout their relationship. The father conceded that he struck the mother several times in April 2008. The mother gave evidence[9] of an event on or about 18 April 2008 as follows:
89. ….
I went out for some drinks with people I work with as I run my own business. We went to … the local pub and I went outside to have a cigarette and was speaking on the phone. [Mr Yayathi] came out and we had a conversation to the following effect:
[Mr Yayathi]: Who are you talking to?
Me: None of your business.
[Mr Yayathi] then became very angry and tried to grab my phone off me and broke it. [Mr Yayathi] then dragged me onto the road just before we reached some railway tracks. [Mr Yayathi] then looked at me and then punched me on the side of the head. I recall that I fell to the ground. When I woke up I remember hearing a ringing in my ear and felt very woozy. I then stood up. [Mr Yayathi] then punched me in the head again. I fell down to the ground. I again stood up and [Mr Yayathi] hit me again and I fell to the ground. I stood up and [Mr Yayathi] hit me approximately four times that I can remember.
[9] Paragraph 89 of the mother’s affidavit.
In cross-examination, the mother was taken to a statement she made to the police on 19 September 2010, about that incident. She conceded that her statement said she was in AA Town with a business associate at the local hotel and no one was particularly drunk. The effect of her statement was that she was texting on her phone, that the father became upset about that and a fight broke out between them, during which the father slapped the mother and she fell down. The statement went on to the effect that the mother then got up and said sorry to the father. There was an altercation between them and the father walked off, followed by the mother saying sorry. The father then started crying. In cross-examination, the mother did not remember all the details but she conceded that the contents of the statement must be true. It was put to the mother that the 18 April 2008 incident was the only occasion on which the father was violent to her and she rejected that proposition. The mother said that the 19 September 2010 was the only time she made any report to the police (about violence from the father).
The father told Dr J that on the occasion in question he took the mother’s phone and read a lewd message from Mr N on it. The father told Dr J that he confronted the mother about the message and he hit the mother two or three times in sheer anger and frustration. The mother told Dr J that there was no message from Mr N on the phone, let alone a lewd one but that the father broke her phone.
In any event the father conceded that he struck the mother on that occasion and during cross-examination said something like “it was the stupidest thing I have done.” I took that to mean that the father concedes that his conduct was inappropriate and unacceptable.
(3)(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no relevant order.
(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The ICL and the father seek that the Court make orders on an interim basis. Only the mother proposes that final orders be made.
I cannot confidently make orders on a final basis. The agreed task of restoring a relationship between B and the father could be very difficult. The mother, who harbours huge concerns about the father abusing B will need to significantly change her attitude about the father and her presentation to the children. B has a phobic reaction to the father. In these circumstances, final orders are likely to lead to further proceedings. There is a risk that there would be enforcement or contravention issues or that the parties would be subjected to the formalities involved in re-opening the concluded proceedings.
(3)(m) any other fact or circumstance that the court thinks is relevant.
Nothing comes to attention here.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
The father was violent to the mother. Therefore the s 61DA presumption of equal shared parental responsibility does not apply.
The ICL and the mother propose that the parents retain equal shared parental responsibility for the children. The father’s primary application is that he have sole parental responsibility. However, if his primary application for a change of residence of the children is not granted, he too seeks albeit on an interim basis, that the parents continue to have equal shared parental responsibility.
Conclusion
The current orders give the parties equal shared parental responsibility. The presumption that the parents having equal shared parental responsibility would be in the children’s best interests, does not apply. In the event that the father’s application for a change of residence for B and C is not granted, the parties agree that equal shared parental responsibility should be retained, at least for the time being. I will so order.
Living Arrangements
The father seeks an order that the children live with him and that they have only supervised time with the mother. As I understand his case, he seeks those orders because, as she conceded, the mother deliberately set out to prevent the children from having a relationship with the father and he is not confident that she will be able to effectively support a restoration of his relationship with B. The father is doubtful about the sincerity of the mother’s dramatic change of attitude. I share his concerns.
Supporting the father’s case for a change of residence is the suddenness of the mother’s change of position. The mother’s evidence is that she believed B when she made disclosures to her in late 2010 and even after JIRT found the claims to be unsubstantiated and Dr J cast doubt on them in his report, she retained, until Dr J was cross-examined, a belief that B was abused by the father. The mother was asked in cross-examination about her changed position and said that she was affected by Dr J’s evidence emphasising the possible impact on B of not having a relationship with her father. She said that she realised she needed to move forward to enable B to develop properly. She said she would seek advice from a counsellor about how she can reassure B and manage her phobia of the father. The mother was asked about how she will be able to facilitate B’s relationship with the father. She said she would be conscious of how she is feeling and behave as though spending time with the father is a positive thing. She said she would say nothing negative about the father. She reiterated that she would see a counsellor and “do whatever [she] has to do for B”. The father remains highly sceptical of the mother’s ability to promote his relationship with B.
I retain concerns about the mother’s attitude. The orders she now seeks are inconsistent with a belief that the father sexually abused B or that there is an unacceptable risk that he would do so in the future. It cannot be that a loving parent would risk sexual abuse of a child just so that the victim could maintain a relationship with the abusive parent and thereby have a healthy relationship with other men. Logically, her change of heart must have been prompted by the doubts expressed by Dr J about the sexual abuse allegations.
I put to the mother during cross-examination that sometimes parties say that they have had a change of heart because they fear something worse happening. In this case something worse would be the children being removed from the mother. The mother rejected that suggestion.
With the best will in the world it will be difficult for the parties to reconcile B to her father. Dr J did not observe B with her father because he assessed there to be no likelihood that he could undertake such observation without causing extreme distress to B. The parties have some work to do to rebuild the father daughter relationship. The father’s worry is that there will not be ‘the best will in the world’ from the mother.
However, there are also strong arguments against a reversal of residence, at least at this stage. It is likely that B and C have a substantial, if not primary attachment to their mother. Dr J expressed a real concern about the impact on the children and particularly B, if they are peremptorily removed from their mother’s care and from substantial contact with her. I took his evidence to be that the sudden removal of B from the care of the mother at this stage would expose B to an unacceptable risk. I have referred to his evidence on this point above.
The father concedes that he acted inappropriately in being actively engaged in washing his daughter up to and including age 7. The father conceded that it was unacceptable for him to assault the mother.
The father’s concessions provide a logical foundation for the mother’s initial fears. Provided those initial concerns about B’s disclosure were honestly held, as Dr J believed them to be, then it was a rational reaction to seek to distance the potential victims of abuse from the perpetrator. Given the apparent strength of those concerns, the mother’s sudden ‘epiphany’ during the oral evidence of Dr J stretches credulity but that is not to say that she has not changed her views.
On balance, I cannot justify orders at this stage that not only reverse the existing orders but effectively exclude the mother from the lives of the children for the indefinite future. Not only is it of no comfort that the same thing happened to the relationship between the children and the father, greater damage could be done to the children by this proposed step because of the damage already done to their relationship with their father. That is to say, where the only intact relationship for both children is with their mother, excluding the children from her could place them in a very vulnerable position.
To say the least, there is a risk that the children and importantly, B, will be very confused by the revived reputation of their father and the removal of all barriers to their relationship with him.
Therefore I will not at this time make a final order changing residence.
That leaves the unanimously pressed restoration of time between B and her father. In large part because I share the concerns about the magnitude of the task, the impact on the children and particularly on B and the mother’s willingness and or capacity to wholeheartedly support that restoration, the orders should be interim.
I turn then to the Minute of Interim Orders[10] settled by the parties. The remaining issues are in relation to the weekends of Mothers’ Day and Fathers’ Day and telephone communication.
[10] Paragraph 11 of these reasons
It is to the credit of the parents that they were able to settle this document. The remaining issues are relatively minor and not really susceptible to the application of principle. There would seem no reason not to ensure that the children substantially spend the Mothers’ Day and Fathers’ Day weekends with the appropriate parent. I will made the order sought by the father in respect o Fathers’ Day and by the mother in respect of Mothers’ Day. As to telephone calls, while the children are with the other parent, there was evidence of disruption and distress caused to the children by telephone calls from their mother while they were in their father’s household. While the parties are looking forward to a very new environment of co-operative parenting, no harm would be done by not extending those arrangements to Saturdays.
There have been a number of orders and interim orders, including orders suspending other orders. So that the terms are substantially contained in one document and for the avoidance of doubt, in addition to the agreed terms, I will make orders on an interim basis that the children otherwise live with the mother and that the parents have equal shared parental responsibility. In the latter regard the presumption in s 61DA would not apply but for the interim that is an appropriate order. I am somewhat confused about the intention of the parties in relation to the time C will spend with the father on alternate weekends. At 2 a of the agreed minute the parties ask that the Court note:
a) The Court notes that the existing orders relating to alternate weekend contact between [C] and the Father shall continue.
It was my understanding that the current orders were those of 26 August 2011 and that they relevantly provided at order 3(2)(c) that C spend:
c. from 5.30 pm Friday to 12 noon Sunday each alternate weekend commencing on Friday 25th September 2011
However, at 2 a of the agreed minute the parties ask that the Court note:
i) Thereafter [B] shall spend each alternate weekend with the father from 5.30pm Friday to 4.30pm Sunday such time to coincide with the same weekends [C] is spending with the father;
I may have failed to record an amendment to the existing order. Whatever the situation, I take it from the terms of the agreed minute that the parties now agree that weekend time for C, and when it becomes relevant, for B should be on alternate weekends from 5.40 pm Friday to 4.30 pm Sunday. Again, so that all of the relevant provisions appear in one order, I will include in the order, that arrangement for C.
I will provide for the parties to bring the matter back before me if I have failed to adequately reflect the terms of their agreement.
Conclusion
It seems to me that there is no alternative to making orders only on an interim basis at this stage. The circumstances do not justify the father’s primary application and his alternate proposal substantially agrees with the regime proposed by the mother and the ICL. The mother seeks orders on a final basis but she is not in a position to argue against the same type of orders being made on an interim basis. Interim orders are proposed on behalf of the children and the father because there is a concern that the restoration of time between B and the father may not be effective. From the mother’s point of view, if the interim orders are effective then no harm is done and after a period they can simply be confirmed on a final basis. If however, the interim orders are not effective then there is no resolution to the substantive dispute and the matter will have to be further considered.
The risk with making the orders now proposed but on a final basis is that there will be enforcement/contravention issues and or the parties will be put to the formalities about re-opening the concluded proceedings.
I have adopted the substance of the joint proposal of the parents and the ICL for interim orders.
So as to ensure that the proceedings can be brought to conclusion I will bring the matter back before me on 31 October 2012 for mention. Hopefully, by that time the parties’ timetable will have been completed and final orders can be made by agreement. If not, directions will then be made for the conclusion of the trial.
I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan dated 15 June 2012.
Associate:
Date: 15 June 2012
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