LETH & YAYATHI
[2014] FamCA 4
•9 January 2014
FAMILY COURT OF AUSTRALIA
| LETH & YAYATHI | [2014] FamCA 4 |
| FAMILY LAW – CHILDREN – best interests of the child – allegations of sexual abuse of the daughter by the father – whether there is an unacceptable risk of sexual abuse – where the children live primarily with the mother – where the mother seeks that the children live with her and that only the son spend time with the father – where the father seeks that the children live with him and that he have sole parental responsibility of both children – where the father seeks the mother have no contact with the children for a period of six months – where the father contends that the mother presents an unacceptable risk of psychological harm to both children – where a court ordered reintroduction program between the father and daughter failed – where there is a finding on the balance of probabilities sexual abuse of the daughter has not occurred – where an order is made that the parties have equal shared parental responsibility for the son, but not for the daughter – where an order is made that the mother have sole parental responsibility for the daughter – where a change of residence for the daughter would be traumatic – where no order for equal or substantial and significant time between the son and father is made due to the poor relationship and physical distance between the parents – where it is in the best interests of the children that no change of residence is made – where an order is made that the children continue to live with the mother. | ||
| Evidence Act 1995 (Cth) ss 140 | ||
| ||
| APPLICANT: | Ms Leth |
| RESPONDENT: | Mr Yayathi |
| INDEPENDENT CHILDREN’S LAWYER: | Mark Whelan |
| FILE NUMBER: | DUC | 28 | of | 2009 |
| DATE DELIVERED: | 9 January 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 18 – 20 November 2013, 17 December 2013 |
REPRESENTATION
COUNSEL FOR THE APPLICANT MOTHER: | Mr A Givney |
| SOLICITOR FOR THE APPLICANT MOTHER | Rafton Family Lawyers |
COUNSEL FOR THE RESPONDENT FATHER: | Ms P Nash |
| SOLICITOR FOR THE RESPONDENT FATHER | Kelly Hardie Solicitors |
COUNSEL FOR THE ICL: | Ms S Leis |
| INDEPENDENT CHILDREN’S LAWYER | Mark Whelan |
Orders
All current parenting orders in relation to the child B born … March 2003 and the child C born … October 2004 are discharged.
Ancillary Orders
All previous parenting orders are discharged.
The mother shall attend upon an appointment with Family Consultant Mr E at the Dubbo registry of the Court on a date nominated by Mr E for the purpose of Mr E explaining the orders to the children.
Parental Responsibility
The mother and the father shall have equal shared parental responsibility for C.
The mother have sole parental responsibility for B PROVIDED THAT she consult with the father regarding any significant, non-urgent, decision about B at least 28 days before implementing such a decision.
Where the Children Live
Apart from as specified in these orders, C and B shall live with the Mother.
What Time the Children Spend with the Father
B
Any time that B spends with the father shall be at the sole discretion of the mother.
C
C shall spend time with the father as follows:
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.
School Holiday Time
(b)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
(c)In the event C is not otherwise with the father, C shall spend time with the father on Father's Day weekend from 5.30pm Friday to 4.30pm Sunday; and
(d)At other times as agreed between the parties in writing.
Changeovers
Unless otherwise agreed between the parents, the changeover of C from the care of one parent to the other shall take place at F Town NSW.
Communication with the Children
B
Any time that B communicates with the father shall be at the sole discretion of the mother.
C
Each parent shall be at liberty to communicate with C by telephone, SMS text message, email or Skype when he is not in that parent's care:
(a)On Tuesdays and Thursdays between 7.00pm and 8.00pm when C is not in that parents care; and
(b)On C's birthday, Christmas, and Easter in the event these special occasions are not covered by order 11(a).
Counselling
Each parent shall do all acts necessary to ensure that B continues with therapeutic counselling with an appropriate counsellor, as agreed between the parents and the Independent Children's Lawyer, and in default of agreement as nominated by the Mother, for so long as recommended by the counsellor.
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 B's counsellor with a request that he or she assist in their implementation.
The parties are to pay equally all costs associated with B's counselling.
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.
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 provision herein to the contrary, B and C shall spend time with their Mother on Mother's Day weekend from 5.30pm Friday to 4.30pm Sunday.
The mother shall use her best endeavours to actively encourage C to attend and enjoy time with his father.
The mother is to use her best endeavours to encourage each of the children to call the father "Dad" or "Daddy".
If they have not already done so, within 28 days of the making of these orders each parent shall enrol in the Parenting After Separation course 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.
Neither parent shall speak badly about the other parent, or any member of the other parent's family, to or in the presence of B or C and shall use their best endeavours to similarly restrain any other person from doing so.
Neither parent shall discuss with B or C these proceedings, or matters that were raised by the other parent whether in their affidavits or oral evidence in the course of these proceedings.
Each parent shall keep the other immediately informed of any serious illness or injury either child may suffer whist in their care and any attendance by the children at any hospital.
The mother shall execute all authorities to allow the father to communicate freely with each of B and C's schools and to receive information from each child's school.
Each parent is to encourage a positive relationship with the other parent.
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.
Each party is to ensure that the other is immediately informed of any change of contact details and residence.
Neither parent shall include the children in any advertisement or publication without the written consent of the other parent.
Leave is granted to the parties to relist the matter in relation to the wording of these orders by arrangement made within 28 days or such further time as the parties agree, with the associate to Loughnan J and on 7 days’ notice to the other parties.
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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leth & Yayathi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: DUC28 of 2009
| Ms Leth |
Applicant
and
| Mr Yayathi |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings in relation to the child B who is 10 years of age and the child C who is 9 years of age. They are the children of Ms Leth and Mr Yayathi. B is estranged from the father. An agreed arrangement pursuant to earlier orders to restore the relationship between the father and B proved unsuccessful and the positions of the parties have polarised.
The mother seeks that the children live with her and that only C spend time with his father. The father seeks that the children live with him and that after 6 months, the children spend time with the mother. The Independent Children’s Lawyer generally supports the father’s application.
These reasons for judgment should be read with the reasons for judgment published in these proceedings on 15 June 2012.
Applications
The positions of the parties at trial were as follows:
The mother sought orders in terms of a minute submitted just before final submissions. The main effect of the mother’s proposals would be that:
·the mother have sole parental responsibility for B and that the father spend no time with her; and
·that C continue to spend time with the father in accordance with the current orders.
The father sought orders in terms of annexure A to his Case Outline. The main effect of the father’s proposals would be that:
·the father have sole parental responsibility for both children and that they live with him;
·the children spend no time with the mother for 6 months;
·for a further period of 6 months, the children spend supervised time with the mother for 2 hours every 3 weeks at a contact centre;
·thereafter that the children spend supervised time with the mother on the first weekend of each month, for 5 days in school holidays and on some special days; and
·the mother not communicate with the children when they are in the father’s care.
The option preferred by the Independent Children’s Lawyer was to the following effect:
That the children live with the father and the father have sole parental responsibility for the children. That for a period of 6 months the mother shall have no contact with the children and following this the mother to have supervised time with the children.
The History of the Proceedings
Following earlier proceedings that were resolved by agreement in 2009, these proceedings were commenced by the mother in November 2010. The matter was heard on 14 & 15 February and for 4 days from 21 May 2012. For reasons given at the time and largely in terms agreed by the parties, on 15 June 2012 I made the following orders:
1.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
2.Pending further order the parents shall have equal shared parental responsibility for [B] born … March 2003 and [C] born … October 2004.
Residence
3.Pending further order the children shall live with the mother.
What Time the Children Spend with the Father
4.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 orders of 26 August 2011 relevantly provide that [C] spend time with the father from 5.30 pm Friday to 12 noon Sunday each alternate weekend.
[B] – Reintroduction
a.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.
b.On up to 3 dates nominated by Family Consultant [Mr E] the mother shall bring [B] to the Dubbo 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].
c.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].
d.On the next 2 Sundays [B] and [E] shall spend from 4.00pm to 5.00pm with the father in [G Town]. On the next Sunday [B] and [C] shall spend from 3.00pm to 6.00pm in [G Town] with the father.
e.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.
f.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.
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] spends 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 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
i.In the event the children are not otherwise with him, on Father’s Day weekend from 5.30pm Friday to 4.30pm Sunday;
j.At other times as agreed between the parties in writing.
Changeovers
5.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.
6.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].
7.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
8.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
9.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 [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 whist 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.
35.Unless the Court otherwise orders, the proceedings are listed or 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.
Unfortunately the supervised reintroduction of B to the father was not successful and the final hearing resumed for three days commencing 18 November 2013. An additional half day was allocated for submissions on 17 December 2013. On that date, judgment was reserved.
Written Evidence
In addition to the documents relied on for the first phase of the hearing the parties relied on the following.
The applicant mother:
·Affidavit of the mother filed 17 October 2013; and
·Affidavit of Mr N filed 17 October 2013.
The respondent father:
·Affidavit of the father filed 17 October 2013; and
·Affidavit of Ms O filed 17 October 2013.
Expert Evidence
In addition to the expert evidence given for the first phase of the hearing the following reports were read:
·Report of Mr E dated 11 September 2012; and
·Report of Ms D dated 10 July 2013.
Short History
The mother was born in 1978 and, as at the date of hearing, she was 35 years of age. The father was born in 1978 and, as at the date of hearing, he was also 35 years of age. The parties first cohabited in early 2002 and separated in June 2008. There are two children of the marriage, namely B who was born in March 2003 and as at the date of the hearing was 10 years of age; and C who was born in October 2004 and as at the date of hearing was 9 years of age.
Q is the son of the mother and Mr N. He was born in October 2009 and as at the date of hearing was 4 years of age.
Submissions
The ICL proposed three optional orders:
A: That the children live with the father and the father has sole parental responsibility for the children. That for a period of six months the mother shall have no contact with the children and following this the mother to have supervised time with the children;
B: That the children live with the mother. That the mother and father shall have equal shared parental responsibility for C and the mother have sole parental responsibility for B; or
C: That B shall live with the father and C shall live with the mother. That the mother and father shall have equal shared parental responsibility for C and the mother have sole parental responsibility for B.
Counsel for the ICL submitted that order A should be made and that both children should live with the father. In the alternative, the ICL submitted that the next preferred alternative is order C, being that B lives with the father and C lives with the mother. In support of this position, the ICL submitted that:
·In essence, the real issue is a contest of the primary considerations under section 60CC, which turn on the benefit of having a meaningful relationship with both parents and the need to protect the child from harm.
·While there would be a short term detriment suffered by B when she first moves to the father’s care, that this move would lead to many long term benefits.
·The mother poses a risk of psychological harm to the children as she is unable to facilitate a relationship between the children and their father and continues to encourage the narrative that B has been sexually assaulted by her father. While C has been resilient to date, the mother’s actions present a risk in future to the relationship between C and his Father.
·The father does not pose an unacceptable risk of harm to the children. In terms of the allegation of sexual abuse made by the mother, even if the father had sexually assaulted B in the past, the ICL submitted that he was unlikely to do so in future. This opinion was based on the suggestion that B’s self-protective capacities have increased, that there are structures in place to mitigate the risk and that the father would be unlikely to sexually assault the child in light of the court case.
·In addressing the transition period when moving from the mother to the father’s care, the ICL submitted that B would slowly adjust to this transition, referring to small indications that B would engage with the father. Such indications included that B smiled at the father during a contact session with him, that Ms O will provide an additional form of support to B and that there had been a ‘thawing’ of B to her father during the reintroduction phase.
·The relationship between the father and C would be damaged if the children were to live with the mother as the mother is not capable of facilitating a relationship between the children and the father and that her deficit in capacity to do so will not assist her in future in facilitating that relationship.
·The father’s position had remained consistent over the trial, while the mother’s position continued to change over the course of the trial. The ICL referred to the mother’s position around the time of the 2012 judgment, being concerns around the father’s mental health and issues in the past and contrasted this position to the current position, being that there was potential for the father to sexually assault B.
In relation to the allegation of sexual abuse, the ICL submitted that the father did not sexually abuse B and that a finding to that effect should be made. In support of this position, the ICL referred to the opinion of Dr J’s that sexual assault had not occurred. The ICL submitted that if Dr J’s evidence was not accepted, that the risk the father poses to B cannot be found to amount to an unacceptable risk.
The mother seeks orders in terms of option B of the ICL’s proposals, being that neither of the children live with the father. The mother considers that it would be worthwhile for B to see her previous counsellor and assess whether that counselling relationship should continue. In support of this position, it was submitted on behalf of the mother that:
·In the context of positive school reports, observations by Ms D that B has a circle of friends, plays netball and enjoys school, the effect on B if she was moved to a new school and denied time with her mother, who has been the primary caregiver for the past 4-5 years would be severe and cruel. B is likely to feel that no one is listening to her and such an order would lead to long lasting consequences. No evidence was presented that suggested B would adjust to such a move and the emotional stress this would place on B would be long lasting.
On this point, counsel referred to paragraph 168 of the interim judgment delivered on 15 June 2012: “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.”
·In relation to C, it was submitted that there is no evidence that he would adjust if he was moved to the father’s care. C would have to cope with not seeing the mother and observing his sister in a hysterical state. It was submitted that the mother is capable of facilitating an ongoing relationship between C and the father as the mother has followed orders made regarding time between C and the father since 26 August 2011 and has delivered C to the changeover point as required and will continue to do so.
·There is no certainty of the outcome of the children living with the father. Counsel for the mother referred to his Addendum to Mother’s Submissions, pointing to evidence found in Exhibit 7, being the notes from the counselling sessions at U Health Service between Ms I and B. It was submitted that such counselling sessions provided B with the opportunity to express any desire to see her father and that there is nothing to indicate that B considered seeing her father at all. Further, it was put to Ms D during trial that it is possible that B has made up her own mind about not wanting to see her father and Ms D agreed with this proposition.
·The children have been through a lifetime of unpleasant experiences relating to the relationship of their parents, including, an assault by the father on the mother, alcoholic fuelled violence, the separation of their parents, distance and mistrust between the parents and ongoing litigation. In light of this, it is not possible to look at the children or mother’s position simply in light of the events relating to the alleged showering incident with B. Rather, this case involves looking at the whole circumstances.
·The children would suffer significant loss if separated from their siblings, counsel referenced Ms D’s report dated 10 July 2013 at paragraph 122 where she stated “It is recommended that the Court give consideration to parenting arrangements whereby the children continue to live together, however it is not recommended that the sibling relationship be prioritised over the relationships with their parents or risk of harm to the children.”
·Weight should be given to Dr J’s views about the impact on B if she were to be removed from the mother’s care. Counsel for the mother referred to Dr J’s report dated 29 October 2010 at:
oParagraph 14: “I believe that had I organised a meeting between [B] and her father it would not have been in her psychological interests”;
oParagraph 33: Referring to the relationship between the mother and father “There is no doubt that the relationship was a poor one… It is obvious that this was a difficult relationship and that the children have as a result been exposed to significant volatility, even if the mother’s allegations of violence are contested.”
oParagraph 69: “It is speculative, but one way of explaining the peculiar intensity of [B’s] feelings may be through her observation of her mother’s feelings about her father, and she has taken the stand of supporting her mother to help the mother cope with her distress.”
oParagraph 71: Referring to his observation of contact with both the mother and Mr N “I had a conversation with [B] prior to the contact occurring. [B] was quite distressed by my interview with her. When she [went into the same] room with her Mum she immediately went to her mother seeking comfort from her.”
oParagraph 73: “I noticed the mother was physically affectionate at times to both children in a natural way.”
oParagraph 78: Referring to what B told Dr J about her friendship group “She told me that [DD] was her best friend… on the whole she reported a close friendship group. She said she had a few sleepovers at their place but mostly her friends had come to her house for sleepovers.”
oParagraph 114: “[The father] alleges that there is a tight and exclusive bond between [the mother] and [B] but he believes that this is too extreme, and as a result of the deliberate alienation of himself.”
oParagraph 142: “I think that there is a genuine risk of significant harm to [B] if the current situation does continue and it may be necessary to consider pre-emptive action if [the mother] is unable to see her daughter’s needs for a reasonable relationship with the father in absence of their being good indicators that such a relationship is harmful to her… I think a process of gradually introducing [B] back into [the father’s] life needs to happen.”
·The mother’s counsel also referred to the interim judgment in this matter delivered on 15 June 2012 at:
oParagraph 126: “In Dr [J’s] opinion, the mother genuinely believes the father has been inappropriate toward [B]. Dr [J] did not agree that the mother has deliberately manipulated the situation because she doesn’t want [B] or [C] to have a relationship with their father. He said that her belief fits with her other beliefs of the father and it is therefore helpful for her to maintain that view.”
oParagraph 127: “It was put to Dr [J] that the only way the mother’s impact on [B] can be eliminated is by placing [B] in the father’s care. Dr [J] said that this would just be “swapping problems”.”
oParagraph 131: “In his report, Dr [J] said it may be necessary to consider pre-emptive action if the mother is unable to see [B’s] need for a reasonable relationship with her father. In cross-examination, Dr [J] clarified this statement. He said that he did not intend for [B] to be removed from her mother. He said that would be “far too confronting” for her. He said the pre-emptive action he had anticipated was some forceful means to allow [B] to have some contact with the father, such as a court order, in addition to the mother seeking assistance to gain the skills necessary to allow that to happen.”
oParagraph 132: “Dr [J] was asked whether [B] should live with the father if orders were made for her to spend time with the father, and the mother remained incapable of ameliorating her behaviour. Dr [J] said he could not see how that would benefit [B]. He said that would amount to significant loss and there would be “absolutely no win whatsoever” for [B] in that situation. The proposition of the mother having only supervised contact with the children was put to Dr [J] as a means of removing the mother’s influence from [B]. In Dr [J’s] opinion, [B] is old enough to have conversations in her head and might develop a concern that her mother is mad at her. Dr [J] said that would be putting [B] in a terrible situation. He said that outcome would be a “huge psychological blow” for her.”
Counsel for the father pressed for the ICL’s option A, being that both children live with the father. In support of this proposal the father submitted that:
·The crux of the issue before the court is that a choice must be made between two households where both have risks. The court must decide which the greater risk is for the children. It was submitted that B should not continue to live in a house where she is psychologically abused and that the father accepts it will be distressing for B to be placed in his care however the risks for B were she remain in the mother’s care outweigh the distress.
·In terms of the adjustment process, counsel suggested that the father has shown great commitment to the children and that B had previously spent 5-10 minutes with the father where she looked at him, made eye contact, answered questions posed by the father, smiled and complied with requests made by him. Further, that B can attend a new school, make a fresh start, and that Ms O will act as a positive support during the transition period. While it was conceded the adjustment period will be difficult, it was submitted that it is in B’s interests to be placed with the father as the long term benefit will outweigh the initial issue. In terms of C, it was also submitted that he yearns for more time with his father[1] and that he should be moved to the mother’s care even if B is not.
[1] Paragraph 33 and 118 of Ms D’s report dated 10 July 2013.
·The father has not sexually abused B and does not pose an unacceptable risk of harm to B. There is no evidence to support this allegation; when allegation was made to police the file was closed[2], Dr J stated in his report that no deliberate sexually harmful event took place[3] and B failed to disclose the issue in the JIRT interview. The washing incident in 2010 was appropriate and should not be elevated to an allegation of sexual abuse. Deliberate distortion by the mother has occurred between the initial allegation and what has happened to B since.
[2] See Exhibit 8.
[3] Paragraph 139 of Dr J’s report dated 29 October 2012.
·It is not in the child’s best interests to live with the mother as she has caused psychological harm to B and poses an unacceptable risk of future psychological harm to the children: s60CC (2)(b). In support of this submission, counsel stated that:
othe mother continues to support a narrative that B has been sexually abused by the father, such narrative has evolved over the past few years where the child has spent very little time with the father;
owhile in her mother’s care B has come to believe she is a victim of sexual abuse perpetrated by her father;[4]
[4] Paragraph 26 and 85 of Ms D’s report dated 10 July 2013.
othe impact of falsely believing oneself to be the victim of sexual abuse is likely to be just as psychologically damaging as having been actually abused; [5]
[5] Paragraph 37 and 129 of Ms D’s report dated 10 July 2013.
othe mother distorts the child’s views which resulted in the allegations made by B about Mr E, including that B had nightmares about Mr E, that Mr E had a “really angry face” and that she was worried Mr E would punch her;
oDr J stated that there was a genuine risk of significant harm to B if B continues to live with the mother and does not see the father; [6]
[6] Paragraph 40 and 142 of Dr J’s report dated 29 October 2010.
oif B remains with the mother there is a significant risk of further psychological harm to her; [7] and
[7] Paragraph 38 and 130 of Ms D’s report dated 10 July 2013.
othe mother did not support the process of reintroduction of B to the father notwithstanding Ms D having told her that if she was not supportive of the process it would be very distressing to B and emotionally damaging to her.
·The mother has no capacity to facilitate and encourage a meaningful relationship between the children and the father and does not have the capacity to provide for the emotional needs of the children: s 60CC (3)(c)(f). It was stated that:
othe mother continues to restrict and undermine the contact between C and the father, the court cannot be satisfied that the mother will continue to comply with orders for the father to see C;
othe mother “genuinely hates” the father, doesn’t want him to spend time with the children and believes he is of no value to the children[8];
othe mother does not give the children “emotional permission” to have a relationship with the father;
othe mother indicated to Ms D that she did not want contact to occur and she is not likely to change this view, the mother wants to be seen to comply with orders but is not supportive of the reintroduction process; and
othe mother told the children’s school that there was an order that the father shouldn’t spend time with the children[9], said to a photographic organisation that the father could not have a photo with B.[10]
·That on the issue of credit, the evidence of the father, Dr J, Ms D and Mr E is to be preferred over that of the mother.
[8] Paragraph 35 and 125 of Ms D’s report dated 10 July 2013; Paragraph 40 and 142 of Dr J’s report dated 29 October 2010.
[9] Exhibit 8.
[10] Exhibit 18.
Credit
I observed in the June 2012 judgment that there were few factual issues left to be determined by reference only to the testimony of the parties. That situation has changed. The mother now seeks a finding that the father did sexually abuse B. The father in turn, seeks a finding that he did not sexually abuse B. In material ways, the evidence of the mother and Mr E conflicts and to some extent, so does the evidence of the mother and Ms D. I will deal with the relevant issues below but suffice it to say that I prefer the evidence of Mr E and Ms D, to that of the mother.
Importantly, the mother recorded part of one conversation with Mr E without his permission or any notice to him. Although the accuracy of a record of that conversation was later challenged by Mr E, no application was made to put the recording into evidence. Whatever the other implications might be of the mother’s conduct, I take it that the recording would not have assisted her case.
I have the very strong impression that in seeking to garner support for her view, the mother saw Mr E and his professional reputation as fair game. It needs to be remembered that the parties joined in seeking orders whereby Mr E was to help them reconnect B with her father. In my view the mother’s conduct was completely inappropriate. It was not put to me that I should find that Mr E acted in an unprofessional or improper manner in the course of the reintroduction program he was asked to manage but that is the implication in the mother’s testimony. There is no basis for that implication and I reject it.
Where there is a difference in the evidence of any of the professional witnesses and the mother about events they attended, I reject her evidence.
Background Facts
Unless otherwise stated I incorporate into these reasons, the findings made in the June 2012 judgment.
At the hearing in May 2012, the mother gave evidence during cross-examination 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 said that she had no ongoing concerns in relation to the father being violent, suicidal or otherwise mentally ill. The mother said that she wanted C to continue to spend unsupervised time with the father including overnight and for block holiday periods. She sought that B be re-introduced to the father and spend time with him in accordance with a regime such as that proposed by the single expert clinical psychologist, Dr J. The re-introduction was not successful and for the resumed hearing in November 2013 the mother’s position reverted to seeking no time between the father and B.
On 18 July 2012 during a meeting with the mother, Family Consultant Ms D attempted to assist mother to prepare for the reintroduction of B to the father.
On 1 August 2012, B met with Ms D and the Independent Children’s Lawyer. The orders of 15 June 2012 were explained to her. She then had a brief meeting with the father. Ms D and the father say that the meeting went reasonably well.
The mother reported that on 3 and 4 August 2012, B suffered nightmares and experiencing trouble sleeping.
On 5 August 2012 the mother told B she was to see Mr E, a Family Consultant at the Dubbo Registry, with a view to seeing her father. The mother said that B responded “I’m not going, I hate him”.
On 6 August 2012 B attended the Family Court at Dubbo to meet with the father, in the presence of Mr E. The mother stated that B was “shaking and crying” both prior to and after the visit. The father stated that while B was initially distressed, she was able to interact with and smile and respond to him. B reported that Mr E roused on her.
On 6 August 2012 the mother received a call from Family and Community Services who stated that there had been a serious complaint made by C.
On 7 August 2012 officers from the local Family and Community Services (“FACS”) office visited the mother’s home and stated that “a complaint came in about a week ago. The complaint was about physical and psychological harm towards [C] upon his return from seeing [the father]. [C] did not say anything that would lead to any more investigation and we are closing the case as we realise this is a false complaint”.
On 11 August 2012, Mr E reported on B’s reintroduction to the father and stated “as the interaction progressed [B] was observed to “thaw out” emotionally and she became more relaxed and communicative. [B] smiled at various times, responded to questions and made comments about the difficult activities they engaged in. On several occasions however [B] briefly became distressed and commenced to cry saying things like “I want Mum”.”
On 14 August 2012, the second scheduled visit between B and the father did not occur. The mother asserted that B was suffering from a viral illness.
On 29 August 2012 B attended for a second visit with the father in the presence of Mr E. B refused to see the father. The mother stated that B was “shaking and crying” prior to the meeting. The mother also stated that B left the meeting midway through, crying. The father stated that B stood and yelled “I do not ever want to see you”.
On 7 September 2012 the third scheduled visit between B and the father was cancelled by Mr E. Ms I had advised Mr E that B had earlier presented as “quite distressed… crying, rocking back and forth and [feeling] sick” and that “[B] is quite adamant that she will not go into the room” with her father.
On 11 September 2012, Family Consultant, Mr E prepared a memorandum.
On 31 October 2012 the following orders were made:
1.Leave is granted to the father to file and serve an affidavit in relation to the attempted introduction of the child [B] to him through Counsellor [Mr E] within 7 days from today’s date.
2.That the Independent Children’s Lawyer settle with the assistance of the parties’ legal representatives the terms of an order directing the issue of a Family Report by Family Consultant [Ms D] and submit that order to Justice Loughnan’s associate in chambers for the making of an order in chambers.
3.Leave to the Independent Children’s Lawyer to request the issue of such subpoenas as he may be advised AND that any subpoenas sought to be issued by either of the parties be issued through the Independent Children’s Lawyer.
4.That the proceedings be restored to the list on a date convenient to the parties and to the Independent Children’s Lawyer not earlier than 14 days after the release of Ms [D’s] report.
Between 22 December 2012 and 13 January 2013 the father spent holiday time with C.
On 13 February 2013, orders were made for the preparation of a Family Report by Ms D.
In February 2013, B’s Counsellor, Ms I commenced maternity leave and B began counselling with Ms FF.
On 5 April 2013 the mother attended the Family Court for the preparation of Family Report by Ms D. Ms D interviewed the parties, their partners and the children, B and C.
On 8 April 2013 B reported to her counsellor that she saw Ms D for an interview on 5 April 2013 and she felt very upset by some of the questions she was asked. She said she felt that Ms D was trying to get her to see her father.
On 17 April 2013 the mother said that C told her that his father gets into bed with him with no clothes on.
On 18 April 2013 the mother sent a text message to the father complaining about C’s alleged report of 17 April 2013. The father did not respond to the mother and she made a report to FACS.
On 18 April 2013, the father made a report to the FACS helpline, stating that the mother was abusing C.
On 27 May 2013 the father attended the sports carnival at the children’s school. The mother formed the view that his attendance was contrary to Court Orders. She told Assistant Principal, Mr GG, who advised that the father refused to leave and that he intended to call the police. The Assistant Principal advised that the police would take no action. The father stated that C asked him to attend and that C ran to him and thanked him for being there on the day. On observing the father, the mother collected B and took her to the other side of the oval.
On 27 May 2013 the mother reported B being uncomfortable when she saw the father at the sports carnival.
On 31 May 2013 B reported to her counsellor that she felt angry and unsafe when she saw her father at her school athletics carnival. Her father videoed her at the carnival and this made her feel uncomfortable. B reported that she does not want to see her father.
On 15 June 2013 the father retained C on the Monday of the long weekend. The mother said she was concerned and called the police.
On 17 June 2013 the father received a letter from mother’s solicitor to the effect that he would not spend time with C during the school holidays.
The Family Report by Ms D dated 10 July 2013, provided amongst other things:
a)“Likely to be in the children’s best interests to be able to maintain a relationship with both of their parents” [117];
b)“[C] articulated a clear preference to live with [the father] and spend significant amounts of time with [the mother]” [121];
c)“It is recommended that the Court give consideration to parenting arrangements whereby the children continue to live together, however, it is not recommended that the sibling relationship be prioritised over the children’s relationship with their parents or risk of harm to the children” [122];
d)“it would be a loss for [B] and/or [C] to live separately from their half sibling, [Q]” [123]; and
e)“That [B] and [C’s] living arrangements be the subject of judicial determination” [139].
The mother said that on 24 August 2013, C was unwell and could not spend time with the father. The mother suggested make up time in the school holidays.
In August 2013, C made his first Holy Communion. The father alleged he was not told about the event.
On 4 September 2013 the following orders were made:
1.The proceedings are fixed for conclusion of a part heard hearing over three days commencing 18 November 2013 at Parramatta Registry.
2.Any further affidavit evidence on which any party seeks to rely, and that is to be no more than one affidavit from any one deponent, is to be filed and served not later than 18 October 2013.
3.Leave is granted to the Independent Children’s Lawyer to issue such further subpoenas as he considers appropriate.
4.It is NOTED that the parties agree that Mr [E] can give evidence by electronic means and request that the Independent Children’s Lawyer make arrangements for his evidence and that of the Family Consultant, Ms [D].
5.In the event that any party becomes aware of any matter that would prevent the hearing resuming on 18 November 2013 or continuing to conclusion on 20 November 2013 that party is to forthwith restore the proceedings to the list by arrangement with each other and Justice Loughnan’s associate.
6.Not later than the close of business on 14 November 2013 the parties’ lawyers provide to my associate (…@familycourt.gov.au) and to each other a case outline document setting out the orders sought by that party to the extent that they are different to the orders sought in any application or response, the further documents relied on by that party and a brief summary of the arguments to be made pursuant to Part VIII Family Law Act.
7By close of business on 14 November 2013 the Independent Children’s Lawyer settle an agreed chronology of relevant events subsequent to the hearing in May 2012.
On 15 September 2013 B was admitted to hospital after suffering a seizure while at home with the mother. B was discharged from hospital on 16 September 2013 with a referral for an MRI scan and EEG test and an appointment to see Dr HH on 16 October 2013. The father alleged that the mother did not consent to him attending the pediatric appointment.
B had an MRI scan on 17 September 2013.
The father said that on 5 October 2013 C cuddled Ms O and said that the mother would be angry with him as the mother hates Ms O.
During changeover on 5 October 2013 the father alleged that the mother put her finger up at the father in the presence of the children, as she drove away.
The mother said that on 6 October 2013 she observed scratches on C and that C told her that Ms O scratched him.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B sets out the objects of the Part and the principles underlying those objects. Relevantly the section provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies 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.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
The way in which parenting issues are decided has been discussed in a number of cases. The High Court has provided an outline and some differences of approach have been adopted and have survived intermediate appellate attention. For the purposes of the determination of these proceedings, I will adopt the following approach:
(a)set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
(b)where possible and relevant, consider and make findings about matters set out in s 60CC;
(c)consider and make findings about parental responsibility, including considering the presumption in s 61DA;
(d)apply s 65DAA if relevant and assess the proposals in light of that provision;
(e)if 65DAA is not relevant, assess the proposals against the best interests criterion;
(f)consider and make findings about living arrangements; and
(g)make orders.
The Parties’ Proposals
The mother’s proposals and those of the ICL are significantly different to those made for the earlier phase of the hearing.
The mother seeks that the children live with her and that only C spend time with his father. She seeks sole parental responsibility for B. The father seeks that the children live with him and that for a period of 6 months the children spend no time with the mother. The Independent Children’s Lawyer prefers orders similar to the father’s application. The father and the ICL propose that the father have sole parental responsibility for both children.
Unlike the earlier phase of the hearing there is no significant area of agreement between the parents.
Section 60CC Considerations
(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
Ms D observed that although the mother did not frequently make overtly negative comments about the father during the interview, “she interposed her narrative with negative remarks and indicated that she believed that [the father] was of no value to the children”[11].
[11] Paragraph 125 of the Family Report dated 10 July 2013.
Nevertheless the findings made in June 2012 still apply. In particular I am satisfied that there has been a meaningful relationship between B and the father and there is potential for that relationship to continue or be resumed in the future.
(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. The definitions were changed as of 7 June 2012 but only for new proceedings. As the legislation related to these proceedings, s 4 of the Act included 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.
Unlike her position for the earlier phase of the hearing, the mother now contends that the father sexually assaulted B. I take it that she considers there is an unacceptable risk of abuse to B in the event that she comes into contact with the father. However, the mother continues to seek orders whereby C spends unsupervised time with the father.
For his part, the father contends that the mother presents an unacceptable risk of psychological harm to both children, albeit that the abuse relates more to the mother’s attempts to estrange the children from him, rather than something that might fall within the relevant definition.
In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual 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)
As to the standard of proof, the Evidence Act 1995 (Cth) now incorporates the effect of Briginshaw[12] in s 140.
[12] Briginshaw v Briginshaw (1938) 60 CLR 336,
Section 140 of the Evidence Act 1995 (Cth) provides:
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
As seemed to be the agreed position in the first phase of this hearing, the evidence does not support a finding that B was assaulted by her father. The JIRT investigation was closed. Despite a lengthy interview B did not make a credible disclosure to the JIRT investigators. Apart from the mother’s statements about her discussions with B, there is no other evidence of abuse. The mother did not seek a finding of abuse or of unacceptable risk in the earlier phase of the hearing. Indeed, she sought orders entirely inconsistent with such findings. Importantly and conclusively, it is the unchallenged opinion of Dr J that B was not abused. To labour the point, it is not that Dr J defended that conclusion. It was never put to him that his opinion was incorrect. He was not required for cross-examination in the recent phase of the proceedings.
Turning to the father’s case, there is support for a finding that the father did not sexually abuse B. Notwithstanding the matters raised by the High Court in M v M, where there is no credible foundation for an allegation and there is authoritative and circumstantial evidence to the contrary, the logical finding should be made. I am satisfied that the father did not sexually abuse B.
Additional considerations
(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The evidence about the views of the children is consistent with the evidence referred to in the earlier reasons for judgment. B continues to express implacable opposition to spending time with or coming into contact with the father. The emphasis in C’s views has changed. In the earlier phase of the hearing Dr J, the father and Ms O gave evidence that C expressed a wish to spend more time with the father. Rather than wanting to spend more time with the father, C now expresses a desire to live with him. However, at no time has C expressed a wish not to spend time with his mother. Ms D reported that C spoke positively about the mother and was affectionate and engaged with her on observation[13].
[13] Paragraph 118 of the Family Report dated 10 July 2013.
Ms D reported in July 2013 that C expressed a desire to live with the father and to spend significant time with the mother. However, Ms D said that he was not of an age or stage of development whereby he could provide reasoned explanations for his opinion. She speculated that limits on his time with his father and the breakdown of parenting plans made him yearn for more time with the father. On the other hand she said that his articulated views could be a reflection on his relationship with his mother or a level of distress about living in her household that was unconscious or beyond his capacity to articulate. The father told Ms D that he did not believe that C had the “forward vision” to understand the implications of a change of residence[14]. Given that C’s express view favours his case, the revelation of that concession reflects well on the father.
[14] Paragraph 52 of the Family Report dated 10 July 2013.
Ms D cautioned about placing significant weight on the views articulated by C.
In terms of the proposals before me, neither of the children expressed a wish to be separated from the mother for six months and to have only supervised time with her, thereafter. I should say that I am not critical of the parents or Ms D for not putting that proposition to either of them.
(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Nothing has changed in respect of the matters canvassed in the June 2012 reasons for judgment save that the attempts to reintroduce the father to B at the Dubbo registry were unsuccessful and were abandoned.
(3)(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The parties’ attitudes have hardened since the first phase of the hearing. Each of the parents seeks orders that would have at least one child separated from the other parent. Now, in contrast to her position in 2012, the mother is unwilling to facilitate any meaningful relationship between the father and B. The father’s position continues to be that the children should be separated from the mother for 6 months but that on certain conditions, they should then spend time with her.
There is no reason to question the sincerity of the parties in relation to those expressed views.
However, the mother continues to assert that she is willing and able to promote the father to C. The father rejects that assertion.
As I noted in June 2012, whatever the mother did or intended to do, the fact is that C continues to enjoy a strong relationship with the father. That continues to be the case. Indicative of the mother not seeking to demonise the father to C is her statement to Ms D that she has not told C about the reason for the breakdown of B’s relationship with her father. That is corroborated by C’s statement to Ms D[15] to the effect that “no one will tell me ever” why B hates the father. C was left to speculate that his father or mother might have done something wrong. If needed there is further corroboration in the father’s statements to Ms D about C saying to him “I need to know what the secret is”[16].
[15] Paragraph 95 of the Family Report dated 10 July 2013.
[16] Paragraph 66 of the Family Report dated 10 July 2013.
On the other hand, in support of the father’s case and in conflict with her own, is the fact of occasional complaints by the mother about the treatment of C in the father’s household. There was a report about the father being naked in bed with C and an allegation that Ms O scratched C. When she spoke to Ms D, the mother was not clear about whether she wanted C to have less time with the father or not. As I recorded above, Ms D observed that during an interview the mother “interposed her narrative with negative remarks and indicated that she believed that [the father] was of no value to the children”[17]. Ms D also noted that Mr E made an observation in his 2009 report about the mother having an apparent tendency to minimise the nature and importance of the children’s relationship with their father.
[17] Paragraph 125 of the Family Report dated 10 July 2013.
This continues to be a critical aspect of the father’s case. In his view the mother is incapable of promoting his relationship with either child and whatever she might say to the Court, she will seek to interfere with those relationships. As I recorded in June 2012, Dr J was not convinced that the mother set out to manufacture allegations against the father: “In Dr [J’s] opinion, the mother genuinely believes the father has been inappropriate toward [B]. Dr [J] did not agree that the mother has deliberately manipulated the situation because she doesn’t want [B] or [C] to have a relationship with their father. He said that her belief fits with her other beliefs of the father and it is therefore helpful for her to maintain that view.”
Dr J’s opinion is not inconsistent with the mother’s assurances about promoting the father to C.
There is no doubt that the mother has not promoted the father to B. On balance the evidence suggests that whether promoted or not, and whatever her own feelings are, the mother has not demonised the father to C.
Ms D is not entirely optimistic about the father’s ability to promote the mother to the children. She concludes her report with this guarded forecast[18]:
“[The father] and Ms [O] indicated that the children should spend some time with [the mother] if the children were to live with him and, in that sense, appeared to some extent more likely to promote the children’s relationship with [the mother] than she was of promoting their relationships with him.”
(3)(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
[18] Paragraph 138 of the Family Report dated 10 July 2013.
This raises an issue of critical importance for the children.
The father and the ICL propose removing the children from the mother and placing them with the father. Ms D’s report contains no recommendation as to the future living arrangements for the children. However Ms D did recommend that the Court give significant consideration to make an order that C primarily live with the father. She made conditional recommendations that consideration be given to removing B from the mother’s household and placing her with the father. The conditions involved the court finding that:
(a)the mother had maliciously and/or opportunistically permitted or encouraged B to believe or behave in a manner to suggest that she believed she had been sexually abused; and
(b)the mother initially genuinely believed that B had been sexually abused by the father but had been unwilling, due to her own needs, to allow recommendations made by experts who had assessed the allegations to influence her behaviour and this had, in turn, influenced B to perceive herself or act as a victim of sexual abuse.
It is therefore necessary to consider the likely effect on the children of removing one or both from the mother’s household and placing them with the father.
Ms D expressed her significant concern that it will not be possible to make parenting orders that best allow for the children to maintain a relationship with both parents. Ms D expressed the concern that if the living arrangements continue as they are, the children’s polarised positions may impact negatively on their relationships[19]. Nevertheless Ms D recommends that the children continue to live together, provided that such an arrangement should not be prioritised over the children’s relationships with their parents or risk of harm to the children.
[19] Paragraph 122 of the Family Report dated 10 July 2013.
Ms D recommends that the children continue to live with their half sibling, Q, again provided that such an arrangement should not be prioritised over the children’s relationships with their parents or risk of harm to the children.
Dr J also turned his mind to these issues. In the reasons for judgment of June 2012, I referred to the opinions of Dr J as follows:
130.This was a matter of particular concern to Dr [J]. In his opinion, [B] is in a no-win situation. He considered that she has not been permitted by her mother to have a relationship with her father and, should that situation continue, that is likely to lead to psychological problems as she matures. I have referred to those problems above. On the other hand, her father proposes that the children live with him and have only supervised time with their mother, leading to a loss of their relationship with their mother, step-father and [Q] together with a change of school.
131.In his report, Dr [J] said it may be necessary to consider pre-emptive action if the mother is unable to see [B’s] need for a reasonable relationship with her father. In cross-examination, Dr [J] clarified this statement. He said that he did not intend for [B] to be removed from her mother. He said that would be “far too confronting” for her. He said the pre-emptive action he had anticipated was some forceful means to allow [B] to have some contact with the father, such as a court order, in addition to the mother seeking assistance to gain the skills necessary to allow that to happen.
132.Dr [J] was asked whether [B] should live with the father if orders were made for her to spend time with the father, and the mother remained incapable of ameliorating her behaviour. Dr [J] said he could not see how that would benefit [B]. He said that would amount to significant loss and there would be “absolutely no win whatsoever” for [B] in that situation. The proposition of the mother having only supervised contact with the children was put to Dr [J] as a means of removing the mother’s influence from [B]. In Dr [J’s] opinion, [B] is old enough to have conversations in her head and might develop a concern that her mother is mad at her. Dr [J] said that would be putting [B] in a terrible situation. He said that outcome would be a “huge psychological blow” for her.
133.Dr [J] said that the current situation is similarly not acceptable for [B]. If it continues, Dr [J] said there is a real risk that she will not have a relationship with her father.
134.In relation to a change in circumstances for [C], Dr [J] said that, although there would be problems with it, he would expect [C] to be quite happy about living with the father in the short term.
135.Dr [J] could not see a “way out” of this situation without the parents being prepared to make some changes. He said the only way to improve the situation for [B] is for orders to be made that allow for a gradual reintroduction between [B] and her father. In Dr [J’s] opinion, the process of reintroduction should start as soon as possible. He explained that the more entrenched a view is, the harder it is to work with.
The emphasis is added
Dr J clearly foresaw the difficulties of reintroducing B to the father but advised against a change of residence and also against limiting the children to supervised time with their mother. Dr J was not challenged in relation to those opinions.
Ms D does not underestimate the difficulty of giving effect to a change of residence. In relation to B she opined[20]:
The likelihood of [B] being able to adjust to living with [the father] would be heavily reliant on [B] being able to develop a realistic understanding of sexual abuse and (to) understand that she was not the victim of such abuse. It is recommended that [B] would need a high level of specialist support to do this therapeutic work and it would likely involve joint counselling with [B] and [the father].
[20] Paragraph 131 of the Family Report dated 10 July 2013.
Indeed the difficulty of that task was what led Ms D to recommend that B have no contact with the mother for six months. Ms D notes that a protective factor for B and or C in adjusting to primarily living with their father would be the capacity of the father and Ms O to support the adjustment[21]. Ms D reported that the father and Ms O are alive to the need for professional help for the children but notes that they would need to partake in the majority of the support and therapeutic work to focus on how to support the children rather than the burden of the majority of that work being on the children. Ms D goes on:
If the children did have a change of residence, it would not be in the children’s best interests if [the father] and Ms [O] were not motivated to try to assist the children’s adjustment even if it became very difficult. In such circumstances, if children are returned to the parent with whom they were previously living after difficulties adjusting to the new household this can reinforce a child’s appraisal that the household or parent was unsafe or “bad”, this is particularly relevant for [B]. [The father] and Ms [O] appeared to be realistic about how difficult a change of residence may be and appeared to be motivation (sic) to proceed through a possibly difficult period.
[21] Paragraph 133 of the Family Report dated 10 July 2013.
Ms D was comforted in relation to the father’s capacity to manage this process by his responses to her in interview and by his management of the brief interaction with B on 1 August 2012 and of the first session with Mr E in September of that year. However, Ms D also opined[22]:
Unfortunately, the apparent necessity to discontinue the re-introduction program is likely to have reinforced to [B] any negative perceptions and apprehension she had about [the father] and also given her the message that if she demonstrated distress in particular settings, Orders can be discontinued. It is possible this may influence, to some extent, the success of a change of residence for [B].
[22] Paragraph 136 of the Family Report dated 10 July 2013.
As I have recorded above, Ms D considers that the father and Ms O appeared to some extent more likely to promote the children’s relationship with the mother than she was of promoting their relationships with him.
It seems to me that there are two serious problems with the proposal of the father and the ICL. First, it might not be possible to safely and successfully change B’s residence. A recommended careful and supervised reintroduction program was abandoned in B’s best interests. Dr J did not countenance the course now proposed by the father and the ICL and he was not challenged on that opinion. Ms D has not unconditionally recommended such a course. Her opinions on the issue are couched in very qualified terms – the “likelihood of [B] being able to adjust to living with [the father]”, “after difficulties adjusting to the new household”, “this may influence, to some extent, the success of a change of residence for [B]” etc. It is an agreed fact that the process would be traumatic for B and that she will need professional help as well as support from the father and Ms O.
Secondly and importantly, the proposed change of residence does more than remove the children from the perceived negative influence of the mother. They would be removed from their brother, Q, their school, their sport, their friends and from Mr N. Under the alternate proposal, they would be removed from each other.
Given that he rejected the removal of the children from the mother, Dr J did not canvas those matters. Ms D turned her mind to some of those matters and did recommend, provided the conditional findings she identified were made, that priority be given to the relationships with the father rather than with the children’s siblings.
In my view this factor argues against a change of residence for the children.
(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The parties’ living arrangements are unchanged from 2012.
(3)(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
In my view the parents, with the assistance of their partners, continue to be capable of providing for the needs of the children.
It is the father’s case, presumably supported by the ICL that the mother is not capable of providing for the psychological needs of the children because she is bent on estranging him from them or is in any event likely to do that. That said, in each case they seek orders that will have the children in contact with the mother 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;
B and C are two years older than when Dr J saw them.
On 15 September 2013 B was admitted to hospital after suffering a seizure while at home with the mother. B was discharged from hospital on 16 September 2013 with a referral for an MRI scan and EEG test and an appointment to see Dr HH on 16 October 2013. B had an MRI scan on 17 September 2013.
As to the outcome of such investigations, in the subpoenaed documents produced by X Centre, psychologist Ms FF recorded that the mother had reported: “[B] saw [the] Paediatrician yesterday. Her EEG + MRI results were good. No medication for epilepsy required at this stage. [B] had febrile convoltions as a baby. [B] has had two subsequent seizures. [The mother] has been told to watch and wait. No Diagnosis of epilepsy made as yet.”
B’s Year 5 report[23] has B making high levels of effort in all areas, with her social development and work habits being mainly rated at the highest level. In the various scholastic areas B is generally assessed as having a sound knowledge and understanding of the main areas of content and has achieved an adequate level of competence in the processes and skills.
[23] Exhibit 3 – K School
Dr J’s report made references to B’s friends and about a few sleepovers. During her cross-examination, Ms D said that B spoke positively about her school and netball team. She reported that B spoke positively about her friend JJ, who Ms D thought was a close friend.
C was in Year 3 at K School in 2013. Ms KK prepared a speech pathology report in respect of C, based on assessments made in January and February 2013. The mother told Ms KK that C was making good progress in reading development but said that in other areas he required support. He was said to be completing Year 2 tasks at the start of Year 3. Ms KK reported that C presented with a severe receptive and a mild expressive delay when assessed with a standardised language assessment tool and when compared to his peers. His scores indicated that he had difficulties in concentrating on and comprehending verbal information. He showed greater strengths in expressive language tests.
(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I refer to the earlier reasons for judgment. The fact of the change in the mother’s case is of concern.
(3)(j) any family violence involving the child or a member of the child's family;
I refer to the earlier reasons for judgment.
The mother has made many allegations against the father and most are disputed. However, they agree about one incident. The father conceded that he struck the mother in April 2008 and that that was unacceptable behaviour. In relation to that occasion he told Family Consultant Ms D that he hit the mother a few times on one occasion. In the course of the cross-examination in November 2013 the father provided more detail of the incident. He said that the assault occurred in a public place in AA Town, near a 400 metre stretch of railway line. He said that he had the mother’s mobile telephone (a flip phone) in his hand and it was broken when the mother grabbed it back from him. He said that he struck the mother 3 or 4 times with the back of his hand. He recalled her standing up when he first struck her. She fell to the ground with one of his blows and got back to her feet again before he hit her again.
There are differences in the versions of the event but they are not significant. Whether the father hit the mother or punched her, it is an agreed fact that the father violently assaulted the mother. During cross-examination in the November 2013 phase of the hearing the father agreed that his conduct during that assault in 2008 was disrespectful and would have humiliated the mother. He agreed that the mother would have lost respect for him as a result of the assault. He agreed with the description that he made a vicious attack on a woman. The father agreed that his behaviour was not appropriate.
It is not possible to make findings about the other allegations. The mother’s allegations are vague in relation to the date and context of the incidents, there is no corroborative evidence and I have found that in some other respects at least, the mother is not a reliable witness. In my view that in no way detracts from the significance of the violent assault of April 2008.
(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 concerns flagged under this heading in my earlier judgment, were realised.
The proposals now before the Court are not likely to increase the potential for further proceedings. Under either proposal, for the first 6 months there would be little scope for further proceedings in relation to B. Thereafter, under the father’s proposal the mother would have some contact with B and that could give rise to further proceedings. Ultimately the parties both propose that C spend time with each parent. If the past is any guide, that is likely to invite further proceedings.
Sadly, the arrangements least likely to lead to further proceedings would avoid the children having to cope with two households. Whether they lived together or apart, if the children lived with only one parent and did not have contact with the other, that would minimise the risk of further litigation.
(3)(m) any other fact or circumstance that the court thinks is relevant.
I gather that the parties are not people of substantial means. They commenced litigating about their children in 2009 and have funded proceedings in a superior court of record for much of the time since. It must be the case that the financial and emotional resources put into the parents’ dispute would have been better applied to securing the future of the children and their families.
Otherwise 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”.
An order for shared parental responsibility has the following effect:
SECT 65DAC
Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Presumably that must also apply to equal shared parental responsibility.
The current orders give the parties equal shared parental responsibility. The mother seeks sole parental responsibility for B. I take it she intends that the parties retain equal shared parental responsibility for C. The father seeks sole parental responsibility for both children and that is the option favoured by the ICL.
The father was violent to the mother. Therefore the s 61DA presumption of equal shared parental responsibility does not apply.
Conclusion
It is common ground that the order for shared parental responsibility for B must be changed in favour of sole parental responsibility. The parents agree that for at least 6 months B should live with only one parent and have no contact with the other. They agree that thereafter, she will have no time or contact with the other parent or that her time and contact be restricted and supervised. Logically, parental responsibility for B should vest in the parent with whom she will live.
For the reasons set out below, in these proceedings, that will be the mother. In her Option B, the ICL proposes that the father be consulted and advised and I will make that provision. I have not recorded what order the father would seek if C continues to live mainly with the mother. In that event the mother and the ICL propose that equal shared parental responsibility for C be retained. I will so order.
Living Arrangements
The Court will make an order that the parties have equal shared parental responsibility for C but not for B.
Where the Court will make an order that the parties have equal shared parental responsibility, s 65DAA provides for the compulsory, sequential consideration of equal time and substantial and significant time for that child will each parent. The conditions for those orders to be considered are unremarkable. It is an obvious pre-condition for any parenting order that it be both in the child’s best interests and reasonably practicable.
From the judgment of the High Court in MRR v GR (2010) 240 CLR 461 at [371] the majority said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
14. His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour “did not expressly address the issue of whether an equal time arrangement would be ‘reasonably practicable’”. However, the court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child’s best interests.14 But those matters could be relevant only to the question posed by para (a) of s 65DAA(1), not the question in para (b), which required consideration of other, different matters.
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
First, I must consider whether C spending equal time with each of the parents would be in their best interests. Here neither parent nor the ICL proposes such an arrangement. None of the experts recommended equal time. However, it appears from the legislation that this consideration is not limited to the proposals before the court.
Discussion
The parents enjoy a very poor relationship. It is difficult to imagine them co-operating to the extent necessary to make an equal time arrangement work. More importantly, such an arrangement would not be reasonably practicable because the parents live three hours apart. The mother lives in G Town and the father in H Town. The parties have been coping with the distance between their homes for some years, with mixed success. During cross-examination in the first phase of the hearing the parties were each asked whether they might consider moving closer to the other and for what seemed to me to be proper reasons to do with work and family, each said they had no plans to move. Travelling 3 hours to or from school with any regular frequency would be unpleasant and dangerous. Further, the parties’ communication is poor and they have not been able to resolve any significant difficulties without Court action.
It would not be practicable to put in place an arrangement that provides for C to have equal time with each of his parents.
Next, I must consider whether C having substantial and significant time with each of the parents would be in his best interests. Substantial and significant time is time that meets the requirements of s 65DAA(3).
Neither of the parents proposes such an arrangement. Again, the provision does not seem limited to the parties’ proposals. The problem is that the distance between the parties’ residences precludes the non- resident parent having any significant connection with C’s school week.
In my view it would be in the best interests of C if he was able to have substantial and significant time with each parent. However, for obvious reasons, it is not practicable.
There will be no order for equal or substantial and significant time for C.
Those specific arrangements not being appropriate, I must identify living arrangements that would be in the best interests of the children.
Since the June 2012 interim orders, the proposals of the parties have become polarised. The father’s proposal is consistent with his primary application throughout the proceedings and is understandable. He has become estranged from his daughter when he knows there is no truth in the stated reason for that estrangement. He believes that the mother has played a part in that situation. He believes and Ms D agrees, that his relationship with B is unlikely to be restored unless B is removed from the mother’s influence. Although it has not occurred to date, the father is very worried that the same fate could befall his relationship with C. I share those concerns.
Therefore a change of residence for both children and their isolation from the mother for a period is a logical proposal. The problem is that it might not work and significant trauma will be occasioned to B, if not C, in the attempt.
The measured attempt to reintroduce B to the father through Ms D, the ICL and Mr E had to be abandoned because it was too traumatic for B. The more draconian approach proposed by the father and canvassed by Ms D was rejected by Dr J. Among other things he said it would place B “in a no win situation”. Dr J was not challenged about his opinion. Ms D did not express any confidence that the father’s proposal would safely achieve a restoration of the father’s relationship with B. Ms D expressed concern about the impact on the children if the proposal failed.
Whether the aim of restoring B’s relationship with her father was achieved or not, it would come at a considerable cost. In addition to entirely severing her contact with her primary attachment figure for 6 months and restricting it thereafter, the father’s proposal would have B substantially if not entirely removed from her brother, Q, her school, her sporting activities, her friends and Mr N.
In relation to C, there is no evidence that the proposed orders (including the option of him alone moving to live with the father) will improve things for him. They would involve separating C from his mother, Mr N, his brother, Q, his school, and his friends. For the reasons given above, on the father and the ICL’s alternate proposal, he would also be separated from B. The risks associated with a change of primary residence are not as great for C as, unlike B, he has consistently expressed a desire to spend more time with his father. However he has been observed to have a loving relationship with his mother and has not expressed a wish to be separated from her.
Conclusion
These proceedings revolve around one of the primary considerations in s 60CC – the importance of restoring and maintaining a meaningful relationship between B and her father. There will be no mechanism to support that relationship under the mother’s proposals. That will mean, for the indefinite future, B will lose the benefits of that relationship. Dr J identified the long term risks for B if she has no connection with her father.
A measured and facilitated attempt to restore the relationship failed. The father and the ICL propose the removal of both children from any contact with the mother for six months, followed by a restoration of some contact on certain conditions. The mother proposes a continuation of the current arrangements.
I have found:
·It would benefit the children if they have meaningful relationships with their parents. The children have in the past had meaningful relationships with both parents and C continues to do so. B cannot have any contact with the father if she lives with the mother. C and B will be separated from their mother for a period and then will have restrictions on their time with her under the father’s proposals.
·B was not sexually abused by her father. The father violently assaulted the mother in 2008.
·For several years B has expressed a strong wish not to see her father. C says he wants to spend time with both parents but to live mainly with his father. Ms D and the father agree that his views should not be given great weight. Neither child expressed a wish to be isolated from their mother for any significant period.
·C has loving relationships with both parents, their partners, his sister and half-brother. B has a good relationship with her mother, her partner, her brother and her half-brother.
·The mother is unwilling and unable to facilitate and encourage a continuing relationship between B and the father. The father may be better able to support the relationships between B and C and their mother. It is not clear whether the mother is able to support the relationship between C and his father.
·Importantly, it is not clear that B’s relationship with her father can be restored by removing her from her mother’s household and the cost of trying is too high.
·The parties live three hours apart, however their respective household arrangements are stable and appropriate.
·The parents are capable of providing for the general needs of the children. There remains a doubt about the mother’s capacity to support the psychological health of the children, because of her attitude to the father.
·There are risks of further proceedings if either of the children moves between the two households.
In my view B will be disadvantaged by the orders proposed by the mother but a significant risk of greater harm would come with the proposals of the father and the ICL. I will make orders in the form sought by the mother.
Although the least favoured by the ICL, I will make orders substantially in the form of those in the ICL’s option B.
The parties may bring the matter back in relation to any agreed changes or any changes to the wording, rather than the substance of the orders.
I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 January 2014
Associate:
Date: 9 January 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Jurisdiction
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Remedies
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