Lunn and Carpenter

FAMILY COURT OF AUSTRALIA

LUNN & CARPENTER

[2009 ] FamCA 466

FAMILY LAW – CHILDREN – With whom a child lives and spends time

APPLICANT:

Mr Lunn

RESPONDENT:	Ms Carpenter
INDEPENDENT CHILDREN’S LAWYER	Legal Aid Commission of New South Wales

FILE NUMBER:

NCF

889

2005

DATE DELIVERED:

27 February 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

STEVENSON J

HEARING DATE:

27,28,29,30 January 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

The Family Law Firm

COUNSEL FOR THE RESPONDENT:

Ms Goodchild

SOLICITOR FOR THE RESPONDENT:	Neisha Shepherd Solicitors
COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER	Mr Gorton

Orders

That all existing orders in relation to the children:
I born on … November 1995 and
G born on … October 2001 (‘the children’)
be discharged.
That Mr LUNN (‘the father’) and Ms CARPENTER (‘the mother’) have equal shared parental responsibility for the children.
That the children live with the father.
That the children spend time with the mother as follows:
4.1each alternate Saturday from 2:00pm until 5:00pm for a period of 8 weeks, commencing on 8 March 2009
4.2for a further period of 8 weeks on each alternate Saturday from 12:00noon until 5:00pm
4.3thereafter, each alternate Saturday from 9:00am until 5:00pm
4.4on each Mothers Day from 9:00am until 5:00pm
4.5from 1:00pm until 5:00pm on each Christmas Day
4.6on each child’s birthday from 4:00pm until 7:00pm on a weekday or from 10:00am until 1:00pm on a Saturday or a Sunday
4.7at such additional or alternate times as the parties may agree in writing from time to time
That the mother is restrained from having any person, other than her daughter X, accompany her on the first three periods of time prescribed by order 4.1.
That the mother is restrained from discussing with the children, or permitting any person to discuss with them or in their presence, any past allegations of sexual abuse or any matter of a sexual nature.
That, for the purposes of implementation of these orders, the parties meet at an agreed public place at the commencement and conclusion of all periods of time with the mother and, in default of their agreement, the venue shall be nominated by the Independent Children’s Lawyer.
That the mother is at liberty to attend all school events to which parents are invited.
That the mother shall ensure that the children attend any sporting or other extracurricular activities, in which they have been enrolled by the father, when they are in her care pursuant to these orders.
That the parents are at liberty to vary any of the provisions of these orders by written agreement between them from time to time
That pursuant to s.65DA(2) and s.62B, 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.
The all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER:

Mr Lunn

Applicant

And

Ms Carpenter

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

These proceedings concern parenting orders in respect of two children:
I born in November 1995 (13) and
G born in October 2001 (7).
The respondent, Ms Carpenter, is the mother of both children. The applicant, Mr Lunn, is the natural father of G. It was agreed that he has been a long-term psychological parent to I.
I has no relationship with his biological father, Mr R. It was common ground that an order has been made which dispensed with service on Mr R of the competing applications in these proceedings.
The hearing before me was the second trial faced by Mr Lunn and Ms Carpenter. On 19 August 2008 the Full Court allowed Ms Carpenter’s appeal against orders made in March 2007 and remitted the proceedings for re-hearing. The second trial took place before me on 27, 28, 29 and 30 January 2009.

The Proposals of the Parties

In his Amended Application filed on 9 January 2009 the father sought orders that the children live with him and spend such time with their mother as he assessed to be in their best interests from time to time. Alternatively, he proposed that the children spend time with their mother at the Rainbows Children’s Contact Centre each fortnight and on one occasion every four weeks in the presence of a “qualified supervisor”. During final submissions his lawyer indicated that the father had reached a point of acceptance that “things must progress towards unsupervised time”, albeit “with some misgivings”.
In her Amended Response filed on 12 November 2008 the mother sought orders that the children live with her and spend time with their father each alternate weekend; for half of all school holidays and on special occasions. By the time of final submissions her proposal had been amended to provide that the children continue to live with the father and spend unsupervised time with her, on a graduated basis, leading to alternate weekends, half of school holidays and special occasions.
The Independent Children’s Lawyer proposed that the children live with the father and spend time with the mother for up to four hours each alternate weekend at the Rainbows Children’s Contact Service. One suggested order was that the mother and the maternal grandmother embark upon “joint counselling to help them deal with their distorted views about the sexual abuse allegation and their view of the world”. This proposal adopted a recommendation of the court-appointed expert, Dr C. In the event that this counsellor could, in effect, certify that the mother and the maternal grandmother present little risk to the children, the mother’s time with them could then move to six hours each alternate Saturday on an unsupervised basis.

Background

The father, who is now 36, and the mother, who is now 34, began to live together in November 2000. I, who was then 5 years old, lived with them and did not have any contact with his biological father. It seems that Mr R displayed no interest in having a relationship with his son. G was born to the parties in October 2001.
In the course of the proceedings the mother made allegations that the father physically and sexually abused G and inflicted violence on I. For reasons which appear below, I am of the view that these allegations have much less significance now than was the case when the proceedings commenced in 2005 and up to the time of the first trial in February/March 2007.
For present purposes I simply record that the mother has alleged at various times that:
·in April 2002 the father kicked I on his testicles
·G suffered a scalding burn in January 2003, in circumstances which cast suspicion on the father
·in February 2004 she observed G sucking the father’s penis and saw that the child had “a clear gel-like substance and a hair near his mouth”
·in 2004 G told both her and the maternal grandmother that he sucked the father’s penis.
The parties married in September 2004 and separated on 25 December 2004, according to the mother, or on 15 March 2005 on the father’s version of events. He left the former matrimonial home in March 2005 and the mother and the boys went to live with the maternal grandmother.
The father commenced these proceedings on 8 September 2005, after his request for time with the boys was refused by a solicitor’s letter dated 28 August 2005. In December 2005 interim orders were made, to the effect that the father spend time with the children under the supervision of his mother and grandmother. In February 2006 further interim orders provided that the father spend time with the children for two hours each alternate weekend, under the supervision of a member of a church attended by both parties.
On 9 May 2006 interim orders were made to the effect that the children live with the father and spend supervised time with the mother at the Rainbows Children’s Contact Centre each alternate weekend. These orders followed the release on 4 May 2005 of the first report of a court-appointed expert, Ms S, dated 1 May 2006. This report of Ms S attracted criticism from the Full Court in a judgment of 19 August 2008.
Since May 2006 the mother has spent time with the children at the contact centre, accompanied on some occasions by the maternal grandmother. These visits have taken place regularly, between 1:00pm and 4:00pm each alternate Saturday.
In October 2005 the mother met her present partner, Mr W. They were friends until September 2007, when they entered into a relationship. They now live together at M with their baby daughter, X, who was born in June 2008. They are expecting another child in August 2009.

Approach to these Proceedings

The principles which govern the determination of these proceedings are substantially set out in Part VII of the Family Law Act. Section 61C provides that each of a child’s parents has parental responsibility until the child attains the age of 18 years, unless the court makes an order which alters the statutory conferral of joint parental responsibility.
If a parenting order is made, a statutory presumption arises that it is in the best interests of a child for each of his or her parents to have equal shared parental responsibility: section 61DA(1). This presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence: sections 61DA(2) and 61DA(3). This presumption may be rebutted if the Court is satisfied that its application would conflict with the best interests of the child: section 61DA(4).
When this presumption is applied, the Court must first consider making an order for the child to spend equal time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent, if such an order is consistent with the best interests of the child and reasonably practicable: section 65DA(1) and 65DA(2).
The concepts of “substantial and significant time” and “reasonable practicability” are addressed in sections 65DAA(3), 65DAA(4) and 65DAA(5). The definition of “substantial and significant time” seems to have the aim of bringing to a child the benefit of major involvement of both parents in his or her life and allowing the child to share events of special significance with each parent. In assessing “reasonable practicability” the Court must have regard to the distance between the parents’ homes and their capacity to communicate and cooperate with each other, as well as the impact on the child of such an arrangement.
If neither equal nor substantial and significant time would promote a child’s best interests, then the outcome is to be determined in accordance with the child’s best interests. The process by which a child’s best interests are ascertained involves a consideration of the objects and principles set out in section 60B and the primary and additional considerations set out in section 60CC.

The Presumption of Equal Shared Parental Responsibility

Both the father and the Independent Children’s Lawyer sought an order that he have sole parental responsibility. This order was opposed by the mother.
The issue, therefore, is whether there are reasonable grounds to believe that the mother has engaged in abuse of the children or family violence or if equal shared parental responsibility would conflict with the children’s best interests. There is no suggestion whatsoever of any family violence on the part of the mother.
It could certainly be argued that the children have been emotionally or psychologically abused by the mother, as a consequence of the allegations of sexual abuse and their aftermath. I am of the view, however, that it would be in the best interests of the children for the presumption to be applied. For reasons which appear below, I am satisfied that the mother at no stage acted out of malice toward the father. Further, it is my assessment that there are reasons for confidence that she will refrain in future from raising past issues or making fresh allegations of sexual abuse.
I can see no reason why I and G should be deprived of the benefits of equal shared parental responsibility. The reality is that everyday decisions will be made by the father, as the children will spend most of their time in his care. It seems to me, however, that they would benefit from the knowledge that they have a devoted, loving mother who is keenly interested in participating in major decisions about their lives. Insofar as it is necessary, I propose to order that the parties have equal shared parental responsibility for the children.
I am then required to consider making an order for equal time with each parent. This concept can be rejected without difficulty. The mother did not seek an order for the children to spend equal time with each of their parents. She has spent only three hours each fortnight with the children on alternate Saturdays, on a supervised basis, since 2005. Her present application recognises the reality that the critical issue now is the point at which supervision is dispensed with and the extent to which the boys’ time with her can be increased. Equal time is simply an unviable proposition at this time, from the perspective of the children’s best interests. The same observations can be made in respect of the consideration of substantial and significant time with each parent. I digress at this point to remark that I give full credit to the mother for her preparedness to amend her proposal by the end of the trial. I am of the view that she was motivated by a realistic consideration of what arrangements would be in the children’s best interests at this point in their lives.
I will now attempt to determine what orders are in the children’s best interests, by reference to the objects and principles set out in section 60B and the considerations contained in section 60CC. I will commence with the primary considerations set out in section 60CC(2).

The Evidence and Witnesses

The applicant, Mr Lunn, relied on his affidavit sworn on 8 December 2008. I granted leave for him to give further evidence in chief, by way of written proofs which became exhibits 3 and 4.
The respondent, Ms Carpenter, relied on the following affidavits:
1.Ms Carpenter sworn on 9 January 2009
2.The maternal grandmother sworn on 9 January 2009
3.Mr W (the mother’s partner) sworn on 9 January 2009
I granted leave to the mother to give further evidence in chief, by way of a written proof which became exhibit 6.
I had the benefit of a report dated 13 December 2008 and oral evidence from a single expert, Dr C. The Independent Children’s Lawyer attempted to tender extracts from two reports by Ms S, who had previously been appointed as single expert. Ms S’s report attracted criticism from the Full Court, in the judgment which allowed the mother’s appeal.
I rejected the tender of these passages from Ms S’s two reports. Firstly, I was concerned at the prospect of admitting only parts of two lengthy reports. These passages would have been out of context, which I regarded as a potentially dangerous situation. Secondly I had the benefit of a fresh report from Dr C, who had been briefed by the Independent Children’s Lawyer. I could see no advantage in having evidence from a court appointed expert and then receiving incomplete evidence from a previous expert.
The Independent Children’s Lawyer attempted to tender certain records from the Department of Community Services and the Rainbows Children’s Contact Centre. Objection was taken to the tender of these records on behalf of the mother. I admitted these documents into evidence and indicated that I would give my reasons in my judgment. I now find it unnecessary to set out my basis for admitting the DOCS records, for reasons which appear below. It seemed to me to be clear that the notes of the Rainbow Children’s Contact Centre were business records and thus admissible. As appears below, I took the view that these records were far from prejudicial to the mother’s case in any event.

The Primary Considerations: Section 60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents;

Dr C assessed that both children have a “close, loving relationship” with each of their parents. He gained a clear impression from both boys that they wished to spend more time with their mother.
The father said that “he has no doubts” that both children love their mother. Understandably, he was extremely concerned that the mnother may discuss past allegations with the boys or raise fresh claims of sexual abuse. Within these constraints, however, he clearly seemed to appreciate that both children will benefit from having a meaningful relationship with their mother.
The parties agreed that time spent at the Rainbows Children’s Contact Centre is far from an ideal arrangement. It seems that the children, particularly I, quickly become bored and have at times been resistant to these visits. The father readily admitted: “I would not like to go there”.
If the children’s psychological safety can be assured, time with their mother away from the contact centre would seem to be the best way for them to have a meaningful relationship with her. For reasons which appear below, it is my opinion that this prospect can now be realistically considered.
Section 60CC(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.
The father has at all times vehemently denied the allegations of physical and sexual abuse of the children. Before me it was no part of the mother’s case that he has abused either child or that the boys are at an unacceptable risk of abuse in his care. It is inherent in her proposal that she does not believe that such a risk exists. I thus consider it unnecessary to examine the minutiae and contradictions in the mother’s various complaints; the alleged disclosures made by G or the references by I to the allegations concerning his younger brother.
It may be that an examination of the inconsistencies in the mother’s various complaints and allegations would be of considerable assistance in assessing her credit. As set out below, however, I am satisfied that she acted at no time out of malice toward the father. The Court-appointed expert, Dr C, identified a process by which the allegations evolved. His opinion, which I accept, casts the mother as a passive participant in comparison to her mother. The real issue is whether the children are at risk of psychological or emotional abuse by the mother and the maternal grandmother, if there is now a shift to unsupervised time. The potential for such a risk arises from the prospect that they will question the children about past allegations of sexual abuse and encourage fresh complaints.
During cross-examination the mother was asked about an incident in 2003 when G was scalded by boiling water. She said that, at the time the incident occurred, she believed that the father had deliberately injured G. She said, convincingly in my view, that she now believes that G suffered an unfortunate accident.
The mother gave contradictory oral evidence of her current belief as to whether the father sexually abused G and whether the boys are now at any risk of abuse in his care. She said, inter alia,:
·“yes I still believe that [the father] sexually abused [G]”
·“no, I have no reason to believe that they are in any danger with [the father]”
·“yes, he looks after them well”
·“my children have told me the truth since they were born – they are innocent”
·“my children have never told me a lie”
·“I believe it happened that [the father] made [G] suck his penis – but I can’t prove it”
·“there is no other explanation – it is from [G’s] heart”
·“[The father] is lying when he says he didn’t do it”
·“the children are not in any danger with [the father] now because they are getting older. If I have unsupervised time and the boys [make further allegations] I would believe them”
·“I have moved on with my life and I would not bring it up again”
·“if I get unsupervised time and the boys said [the father] did something sexual, I would go to the police”.

The mother’s partner, Mr W, was asked whether he is of the view that she still harbours concerns about the possibility that the father may sexually abuse the boys. He said: “I don’t think she is worried about anything sexual now, because they are older and can look after themselves”.
On the final day of the trial, after all parties had closed their cases, an application was made on behalf of the mother for her to give further evidence. I granted this application, on the basis that notice of this further evidence had been given to the legal representative of the father and the Independent Children’s Lawyer. The mother said, in substance:
“I want to say that I am sorry for making the allegations. I am very sorry [Mr Lunn]. I am very sorry that I hurt our children. I now understand that there may be an innocent explanation.”
When the mother gave this evidence she was crying and seemed to be very sincere. She looked directly at the father while expressing her sorrow for what had happened. There was no request from the legal representative of the father or the Independent Children’s Lawyer to cross-examine the mother on this evidence.
The genesis of this apology seems to have been an exchange between the parties in the presence of Dr C. He reported as follows:
“[The father] said that he wanted to know whether [the mother] could take responsibility for what she had said. ‘I want to know if you are sorry? Do you feel sorry for what you did? You did the wrong thing. You were telling people that [G] had sucked my penis.’
[The mother] said, ‘I believe that [G] said what he said. He came out to the breakfast table and told me’.
[The father] said, ‘He never said that. Do you take responsibility for what you did? I want you to take responsibility’
[The mother] said ‘[G] told me things’.
[The father] said, ‘They weren’t true’”.
In his oral evidence Dr C said words to the following effect:
“I think an apology would be extremely beneficial to the parties and the children. I think he is genuinely holding out an olive branch to her for the sake of the children – many people in his situation would be very bitter and seek revenge. I think he is trying to establish some safety for the future by seeking an apology. I think he is understandably fearful that this whole episode may be repeated.”
Dr C agreed with a suggestion that the length of the litigation has meant that the mother has not had the opportunity “to put these matters behind her”. As noted, the proceedings commenced in September 2005 and have been through one trial, an appeal and a re-hearing. I would respectfully agree with Dr C that the mother has been denied the opportunity to come to terms with these allegations and move on with her life. I certainly hope that her apology indicates that she has embarked upon that journey.
Dr C was of the view that the mother did not act maliciously in making the allegations of sexual abuse. He offered this analysis of the process by which the allegations arose:
“With confirmation from her own mother, I believe that gradually she developed the idea and the belief about [the father] sexually abusing [G]. I don’t believe that she has intentionally lied or fabricated; I believe it was low functioning, over suggestibility and her co-dependency on her mother for her emotional and psychological world view that she has then led to this belief about the sexual abuse. I believe that she has formed the belief and then attempted to support the belief by looking for signs in [G].”
During careful observation of the mother in the witness box, I could recognise these traits of “low functioning, over-suggestibility and co-dependency”. I mean no disrespect to her in making this observation. I also agree with Dr C’s opinion that she did not “intentionally lie or fabricate”. In my view she acted in a manner which she believed, mistakenly, to be in the children’s best interests. The maternal grandmother’s input only aggravated a situation which was damaging to the boys.
In terms of protection of the children from harm, a crucial issue is the mother’s present belief as to past sexual abuse and her receptiveness to fresh material which might suggest improper conduct on the part of the father. As noted, she gave conflicting evidence as to whether she believes that the father has perpetrated sexual abuse in the past and is capable of doing so in the future.
Overall, my impression was that the mother still harbours a belief that the father behaved in a sexually inappropriate manner with [G]. This belief, unfortunately, is shared by her mother. On the other hand, I consider that her apology to the father was sincere and that she genuinely regrets the consequences of her allegations for the children, the father and herself. In my opinion, she sincerely wishes to put the past behind her and move ahead with her life. She placed considerable store on the fact that the boys are now older, in coming to the view that they are at no risk in the care of the father.
I is now 13 years old and was described by Dr C as “a robust and sensible boy”. As set out below, he made it very clear to Dr C that he firmly believes that the father perpetrated no abuse on G. In my opinion, I would strongly resist any future attempts by his mother or grandmother to draw him into suggestions of sexual abuse. G is now 7 years old and, with the support of his older brother, also is now more capable of reality-checking and resisting any attempts to elicit allegations of sexual abuse from him.

The Additional Considerations: Section 60CC(3)

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

Dr C described I as “a sensible and serious young boy” and reported:
“He said that he was happy where he was living. He liked to see his mother every second weekend”.
Dr C described G as “a happy chirpy boy of 7” and reported:
“He said he likes school and he was in Year 1. He was happy with his friends. His ambition was to be a fireman. I asked what else he enjoyed doing. He said that he likes seeing his mum. He said there were no problems. I asked him about his father. He said that he loved his father and got on well with him. He liked being with his father.”
Dr C assessed the weight to be given to the stated views of the boys as follows:
“Both children are clearly comfortable and happy living with [the father]. I believe that [I] in particular has now grown very close to [the father] and supports him and understands why [the father] is the more stable of the two parents. He does still love his mother and wants to see more of her. [G] is still extremely young and immature. He is very happy living with his father but wants to spend more time with his mother and he would like to spend some time at home with her.”
There would thus seem to be no doubt that both I and G have expressed a clear wish to continue to live with their father but to spend more time with their mother. At the age of 13 years, I’s views must carry very substantial weight. G’s views must also be respected.
Section 60CC(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);
At the beginning of the trial I was informed by counsel for the mother that “it was not[her] case that the children are afraid of their father or have other than a good relationship with him”. Dr C had no reservations about the quality of the children’s relationship with their father. He assessed that “[The father] is an outstanding parent and the children have an excellent relationship with him”.
Dr C assessed that the children regard the mother as “a caring, loving figure in their lives”. He had no doubt that the children enjoy spending time with her and wish to see her more frequently. He formed the view that the mother “functioned at a low level” but is able to “function with physical and low nurturing needs which the children respond to very well”.
In the opinion of Dr C the mother has a strong dependency on others, particularly the maternal grandmother, which has led to “a strong set of shared beliefs with regard to the sexual abuse. Whilst neither [the mother] or [the maternal grandmother] has a psychiatric illness, their shared reality and belief system is clearly out of step with the more objective and professional assessment of the situation and has led to a folie-a-deux. This is not a psychiatric condition, however, it is well recognised in the literature as a psychological phenomenon which can explain abnormal beliefs and over-valued ideas such as in this case.” It was Dr C’s view that this unfortunate dynamic has “significantly impacted on the children”.
Dr C assessed that the children have a “close, loving relationship” with the maternal grandmother. Of course, her participation in the folie-a-deux dynamic gives rise to concerns as to the healthiness of her relationship with the children.
The boys have met Mr W only on one or possibly two occasions. An incident which took place at Dr C’s office, on 27 November 2008, would hardly have disposed them to think favourably of him.
I will set out Mr W’s own version of this incident, as described in his affidavit:
“26. After lunch, we walked into the waiting room and [the father] said ‘Are you happy with what you have done? Do you take full responsibility for what you did to the boys? I said ‘No she didn’t do this to her boys courts did this. She borne the children.’ This discussion got heated and the lady in the office said ‘You can stop now. The discussion is getting heated. Sort it out elsewhere.’ I then got up and walked outside the waiting room.
27. I came back into the waiting room shortly after and [I] and [G] were there. I got photos of [G], [I] and [X]. We talked about the scooter [the mother] and I got for [I] for his birthday. I said to [I] ‘I’ve got a drum kit at home and motorcycles. I’ve got four of them.’ I said ‘Me and your mum want to get married in America. We would love you both there with us when we get married.’
[I] said ‘[The father] is taking me there anyway. [The father’s] solicitor’s family own a mansion over there in America and I play golf with the solicitor’s son every weekend.”
28. We were all leaving the doctors’ rooms from the 9^th floor and all got into the lift together. On the way down to ground, I spoke to [I]. I said ‘You are 13 years old. You can live with whoever you like.’ He said ‘I know’. I said ‘Would you like to live with your mum and visit [the father] or live with [the father] and visit Mum’. [I] said ‘Live with [the father] and visit Mum’. I said to [I] ‘Okay mate’.
29. The lift opened the boys walked out ahead of us all. [The father] and I were together and I said to him ‘You are buying [I] promising him everything; trip to America holidays, everything. You are just buying them’.
30. I then pointed at [G] who was ahead of [the father] and me and said in a low voice ‘I know what you done to him’. [The father] took offence at the comment and said ‘Are you calling me a paedophile?’ I said ‘No I am not’. [The father] was out the front with his finger pointing at the ground saying ‘Do you want to sort it out here?’. Then [the mother] said ‘Not in front of my children’. I said ‘You better watch out’. [The father] said ‘Are you threatening me?’ I said ‘No,’ then I said ‘The police will lock you up and put you in gaol’.
There can be no account of this incident which is more favourable to Mr W than his own evidence. On any view of Mr W’s own account of this incident, he acted presumptuously and irresponsibly. He barely knew the boys, yet he took it upon himself to discuss a major life decision with I. He showed no insight into the boys’ sensitivities on this occasion.
It is extraordinary that Mr W would take it upon himself to confront the father about the mother’s allegations in this setting or, indeed, at all. There was no justification whatsoever for his threats to the father. If he is to develop a positive relationship with the children in future, Mr W will need to be alive to their sensitivities and respectful of their father’s role in their lives.
Section 60CC(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;
There can be no doubt as to the father’s willingness and ability to encourage a relationship between the boys and their mother. They have regularly attended the contact centre, despite occasional reluctance or preference to participate in other activities on their part. The father said that he has never acceded to their wish to do something else on the days scheduled to time with their mother. He says things like “there will be other parties” to them.
In my view, much credit is due to the father for the fact that time with the mother at the contact centre has proceeded without interruption. As noted, the physical environment is far from conducive to an enjoyable experience. In addition, I is approaching an age where he can be expected to make autonomous decisions as to how he spends his time. Of course, there were strong indications in the evidence that the boys want to spend time with their mother.
Historically the mother has not displayed a willingness and ability to encourage the children’s relationship with their father. She has sought to eliminate or drastically curtail the boys’ time with him. On the other hand I do not consider that she has been motivated by malice toward the father. I agree with Dr C’s assessment that “…..it was low functioning, over-suggestibility and her co-dependency on her mother for her emotional and psychological world view that she has then led to this belief about the sexual abuse”, hence her opposition to the boys’ spending time with their father.
The present position, however, is that the mother concedes that the children should continue to live with the father. Her past difficulties in encouraging their relationship with their father are, therefore, of markedly less current significance and should not now be the focus of attention.
Section 60CC(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
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The change proposed which is of most substance is the mother’s application to introduce unsupervised time with the children, leading to alternate weekends and block school holiday periods. Otherwise, residence with the father is a continuation of an arrangement which has been in existence since May 2006. As noted, the boys are doing extremely well in the care of their father in the opinion of Dr C.
The artificiality of supervised time creates difficulties which were illustrated clearly by the records of the Rainbows Children’s Contact Service (exhibit 18). Although objection was taken on behalf of the mother to the tender of certain of these records by the Independent Children’s Lawyer, in my view, their contents were of more assistance than harm to her case.
The notes of the visit on 23 December 2006 describe an attempt by the mother and her mother to have a Christmas celebration with the boys at the contact centre. It is clear that they tried very hard to make the occasion enjoyable, in very stressful circumstances. For example, they brought a baked dinner which they had prepared at home and served a Christmas meal for the four of them. It can only have been upsetting and unnatural for the children’s former primary carer to have to spend this important occasion with the children in such a restricted environment.
The notes on the visit of 16 August 2008 record that G spent 45 minutes watching television, while I played games on the mother’s laptop computer. G did not interact with anyone while watching television. I had some interaction with his mother while playing computer games but she was occupied with caring for her baby.
The boys began to argue when they went outside to play ball games. G “threw a tantrum” when staff asked them to tidy up the inside area. The notes suggest that the mother did not handle the boys’ behaviour effectively but, more significantly, the artificiality and constraints of the situation were very obvious from the account of this supervisor.
I’s frustration with the time with his mother at the contact centre was illustrated starkly by the notes of the visit of 30 August 2008. On arrival I was described as “relaxed and cheerful” but he became angry as the visit progressed. When the mother asked him to come inside he shouted “no it’s boring”. G was described as “grumpy” when he arrived and he “threw a tantrum” when the mother insisted that he eat lasagne before a piece of cake.
It seems to me to be very likely that the relationship between the boys and their mother will suffer if their time together continues to be confined to the contact centre. It may be that I will refuse to attend the visits, as more attractive options involving his peer group present themselves. The mother has a young baby and will soon have another child. In my view it would assist her and the boys if they have more freedom and a wider range of available activities. Of course, the mother will have the assistance of Mr W with the care of their two very young children outside the contact centre. She would thus have a greater opportunity to focus her attention on G and I.
I have reservations about an increase in time to three nights per fortnight and half of all school holidays for several reasons. One of my concerns is whether I would accept the imposition of such a regime upon him. On the mother’s proposal, he will be 14 years old by the time of commencement of alternate weekends from Monday to Friday. I cannot predict how he would react to such a regulation of his leisure time. On the other hand, it would be difficult for the father to stop I from spending time with his mother, according to his wishes.
Another of my concerns is the boys have no relationship with Mr W, in whose home they would stay overnight. This household will contain two babies by the time that the mother’s ultimate proposal comes into effect. There is no way to predict how the boys would react to sharing their mother with Mr W, X and the new baby. Equally, there is no guarantee that the mother would be able to manage the four children together for three nights per fortnight and half of all school holidays.
Section 60CC(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 live in relatively close proximity to each other. No issues thus arise pursuant to this consideration.
Section 60CC(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;
I have dealt already with much of the evidence relevant to the respective capacities of the parties to provide for the children’s needs. I share Dr C’s opinion that the father is a very capable, child-focussed parent.
Some criticism was levelled at the father on account of the boys’ academic progress. It is true that they are both experiencing some educational difficulties. The father is aware of their problems and does what he can to assist them. He helps I with his homework and has spoken to G’s teachers and school principal.

As I have said, I accept that the mother at no stage acted out of malice towards the father. I am persuaded by Dr C’s analysis of the way in which the allegations of sexual abuse of G arose and of the significant role played in this process by the maternal grandmother.
It seems to me to be far from useful now to enter into a comparison of the form of the mother’s various complaints to the Department of Community Services and the Joint Investigation Response Team. The DOCS records (exhibit 17), together with the contents of the mother’s various affidavits, show obvious inconsistencies in the reports which she has made at various times.
Before me the mother’s case was not that it is more probable than not that the father sexually abused G, nor that he poses an unacceptable risk to the boys. Accordingly, the potential relevance of the DOCS material is confined to an assessment of the level of risk that the mother will further question the boys about the sexual assault allegations or start the process afresh.
In my opinion these records offer little assistance in that exercise. There is no issue that the mother made allegations of sexual abuse. Further, there is no issue that the Department of Community Services and the Joint Investigation Response Team took no action in respect of these allegations. The crucial issue, it seems to me, is the mother’s present belief as to past sexual abuse and her receptiveness to fresh material which may suggest inappropriate behaviour on the part of the father.
The tender of the records of the Department of Community Services by the Independent Children’s Lawyer was objected to on behalf of the mother. I do not propose to take the time to indicate my reasons for admitting these documents into evidence, as this material has played no determinative role in my reasoning process or my ultimate decision.
I have some concerns as to the capacity of Mr W, as the mother’s partner, to meet the children’s needs. As I have said already, he displayed remarkable presumptuousness when he confronted the father over the allegations of sexual abuse at Dr C’s office. He can hardly be considered to have shown sensitivity or insight into the boys’ emotional needs on this occasion. He did concede, however, that he had behaved “like an idiot” and “possibly, it was not [his] place to enter into this conversation with [I]”.
There is also a concern as to Mr W’s capacity to meet the children’s needs because of his extensive criminal history, hence his suitability as a role model. His first offence occurred when he was 17 years old and his most recent conviction was in 2007. He has served at least two terms of imprisonment, the last of which was in 2007. His numerous convictions include motor vehicle offences, stealing, sexual intercourse without consent, malicious damage and assault.
Mr W’s most recent conviction for assault was in 2007 and involved an ex-partner. The Local Court imposed a prison sentence of three months, which was confirmed on appeal by the District Court. As a result of a string of driving offences, Mr W is currently disqualified from holding a licence until 2013.
Mr W said that he stopped using illegal drugs in 2002. He started to use marihuana and speed at 18 or 19 years of age. At one point he was admitted to a psychiatric facility following a drug induced psychosis.
There was nothing to contradict Mr W’s evidence that he has been drug-free since 2002. He said, “I like to go to church because it keeps me away from drug people”. I accept that Mr W is not presently a user of illegal drugs and that he has strong motivation to refrain from reverting to substance abuse.
I am left with real concerns as to the capacity of the maternal grandmother to shield the boys from her negative view of the father and her suspicions of sexual abuse. She gave clear evidence that she still believes the truth of G’s statement to her: “[The father] is my best friend, he put his willy in my mouth and I sucked his willy”.
These concerns are ameliorated, however, for three reasons. First, the orders which I propose to make will afford the maternal grandmother only a limited opportunity to spend time with the boys. Second, the boys are now significantly older and less susceptible to her influence and pressure. Third, she said in cross-examination “all this is past”, in a manner which suggested to me that she genuinely wishes to concentrate on the future.
Section 60CC(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;
The children have Melanesian heritage, through the maternal grandmother. The mother’s father was an Englishman of European descent.
The mother’s parents settled in Australia in 1975 with their two children. There was no evidence as to any ongoing connection of the maternal grandmother with Melanesia or the extent to which the mother identifies with the culture of that country.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
No relevant considerations arise pursuant to this subsection.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I am satisfied that both parties have a proper attitude to children and the responsibilities of parenthood. In my view the mother has been misguided and influenced by her mother but she has acted without malice towards the father. I am of the view that she did what she thought was best for the children. She has now seen the disastrous results of her allegations for everyone in the family.
I agree with Dr C’s favourable assessment of the father’s parenting ability and his child-focus. The evidence contained examples of his sensitivity, particularly his attempt to arrange for I to meet his biological father. Mr Lunn deserves much credit for recognising the potential benefit to I of a meeting with his biological father. He also deserves credit for helping I to deal with the consequences of Mr R’s failure to honour this commitment.
In her affidavit the mother raised allegations that the father was violent toward her prior to their separation. These allegations did not seem to feature in the case conducted on her behalf before me.
I have referred already to the mother’s allegation that the father directed physical violence at I prior to the separation. The father conceded that he behaved inappropriately on this occasion. He said, sincerely in my view, that he very much regretted his conduct. I also accept that his main method of discipline of the children is “to give them chores”, as he said.
Section 60CC(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 are no current family violence orders. As I understood the evidence, there have only ever been interim orders.
Section 60CC(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;
In my view orders that the boys spend day periods only with their mother would be least likely to lead to the institution of further proceedings. There are two main reasons why I have reached this conclusion.
I is now 13 years and 3 months old. I am concerned that he may resent having his weekends and school holidays overly regulated by court orders. He is entering a stage of his life where his peer group will assume great importance for him and activities with his friends will become very important and attractive to him. I would not wish to see a situation where I refuses to go to his mother for extended periods and contravention proceedings are initiated.

Conclusion

I am mindful of the evidence of Dr C, to the effect that identical orders should be made in respect of both boys’ time with their mother. In cross-examination he said:
“A different regime is a dangerous precedent because it would create differences in everybody’s mind about the children. I think it is better to maintain consistency at this stage”.
I am of the clear view that I and G should spend time with their mother in each other’s presence and for identical periods. I am mindful of Dr C’s evidence in this regard. I am also conscious that I is now 13 years old and in a position to ward off any attempts by his mother and grandmother to raise past allegations of sexual abuse or to embroil the boys in fresh complaints.
It is my assessment that day periods with their mother will best meet the children’s needs at this stage. I have referred to my concern that I may come to resent Court regulation of his leisure time. I am also mindful of Dr C’s reaction to a scenario of alternate weekends, one night in each other week and half of school holidays. He said:
“There would have to be a relatively good level of cooperation between the parents. We would need a year of successful unsupervised contact before we move on.”
It may be that the level of cooperation between the mother and the father will improve, if there are no further allegations of improper conduct. At this stage, the father needs an opportunity to develop trust in the mother and she must prove to him that she can refrain from raising further allegations. In my opinion, it is too soon to embark upon extended, overnight periods of time in the mother’s care.
I am confident that the father would facilitate an expansion of the boys’ time with their mother, if there are no further allegations and they express such a wish. I is of an age where he will make his views clear, as time progresses, and it would be difficult for the father to stop him from seeing his mother when he wishes to do so. I do not believe that the father would be obstructive, in any event.
I propose to make an order to restrain the mother from discussing past allegations or any matter of a sexual nature with the boys. The Minute submitted on behalf of the mother contained broadly based proposed orders, which would indicate her consent to that course.
The Independent Children’s Lawyer proposed that the maternal grandmother be joined as a party to the proceedings, so that orders can be made to regulate her conduct and to compel her to attend counselling as recommended by Dr C. No notice of this proposal was given to the maternal grandmother and she has had no opportunity to obtain independent legal advice. I will not make the proposed orders in these circumstances.
The mother opposed any order that she attend counselling. On her behalf it was submitted that “there is no purpose in counselling”, as she “has finally gained insight”, as demonstrated by her apology. It would be futile for me to order her to attend counselling against her opposition.
The father sought an order to restrain the mother from bringing the children into the presence of Mr W. The two suggested bases for this proposed order were “his remarkable criminal record” and his behaviour at Dr C’s office.
The reality is that Mr W is the mother’s live-in partner. Although there is justification for the father’s concern, I do not consider that the evidence warrants the proposed injunction. It is difficult to envisage what adverse effects would flow to the children by the limited exposure to him which my orders will permit.
It seems to me that it would be best for the boys if the mother spends time with them without her mother or Mr W for the first three occasions. She can then give them her undivided attention and the maternal grandmother will not be able to influence the direction of their conversation. They will not have to deal with the presence of Mr W, who is effectively a stranger to them. Obviously, I will not restrain the mother from caring for her baby while spending time with the boys. It will be a matter for her and Mr W to organise the care of their daughter on these occasions. I would comment only that the boys would benefit from their mother’s undivided attention.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 27 February 2009

[2009] FamCA 466

27 February 2009

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Family Law

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Procedural Fairness

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