Lunn and Carpenter
[2007] FamCA 196
•13 March 2007
FAMILY COURT OF AUSTRALIA
| LUNN & CARPENTER | [2007] FamCA 196 |
| FAMILY LAW - CHILDREN - Best interests FAMILY LAW - CHILDREN - Parental responsibility |
| Family Law Act 1975 (Cth) |
C and J (1996) FLC 92-697
H v K [2001] FamCA 687
Rice v Asplund (1979) FLC 90-725
F v H [2003] FamCA 477
W v W [2004] FamCA 1167
RG v JR [2006] FamCA 293
| APPLICANT: | Mr Lunn |
| RESPONDENT: | Ms Carpenter |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Cleary |
| FILE NUMBER: | NCF | 559 | of | 2005 |
| DATE DELIVERED: | 13 March 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 27 and 28 February 2007 and 1 March 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | The Family Law Firm |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms Cleary |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Legal Aid Commission of New South Wales |
Orders
All previous parenting orders be and hereby are discharged.
The Father have sole parental responsibility for the children G born in October 2001 and I born in November 1995.
The children reside with the Father.
The children spend time with the Mother on a supervised basis at the Rainbow Contact Service at B for a period of three hours each alternate weekend in accordance with the arrangements made from time to time between the parents and the director of the Rainbow Contact Service to commence on Saturday 16 March 2007 and the costs of all such supervision be paid by the Mother.
In addition to the time in order 4 hereof and on one occasion in each four week period the children spend time with the Mother on a supervised basis in the presence of a qualified supervisor agreed to by the Father in writing for a period of up to four hours on a day of any weekend when contact is not taking place pursuant to order 4 hereof subject to the following:
5.1The costs of such supervision be paid by the Mother.
5.2The Mother and the supervisor collect the children from the Rainbow Contact Service at the commencement of the time the Mother is to spend with the children and deliver the children to the Rainbow Contact Service at the conclusion of the period of time.
5.3The Mother to supply the Father with written notice in advance of proposed periods of time pursuant to this order and the Father to advise the Mother in writing forthwith of any proposed period, which is unsuitable to him.
After 18 months from the date of these orders the Mother may spend such other and/or additional time with the children as is agreed in writing between the parents.
The maternal grandmother may accompany the Mother to the Rainbow Contact Service on one occasion in each four week period when the Mother is spending time with the children at the service pursuant to order 4 hereof.
Each of the parents and maternal grandmother are restrained from discussing any Court proceedings with or in the hearing or presence of the children or allowing the children to view any documents associated with such proceedings.
Each of the parents and maternal grandmother are restrained from saying anything to or in the presence of the children or allowing any other person to say anything to or in the presence of the children which is in any way derogatory of either of the parents or any member of a parents’ household.
The Independent Children’s Lawyer shall provide a copy of these orders to the Principal of L Public School.
The Mother and maternal grandmother are each restrained from making telephone contact with the children or either of them.
The Mother and the maternal grandmother are each restrained from approaching the children at school except with the written consent of the Father and at the discretion of the principal of the children’s school.
The Father shall:
13.1Keep the Mother advised of the state of the children’s health and of any specialist medical appointments and proposed surgery for either of the children.
13.2Authorise the school, to the extent necessary to release to the Mother information relating to the progress and welfare of the children including but not limited to school reports and assessments.
13.3Keep the Mother advised of his residential address and contact telephone numbers.
13.4Advise the Mother forthwith of any medical emergency or accident involving either of the children.
The Mother shall keep the Father advised in writing of her residential address and contact telephone numbers.
The Father is to forthwith arrange an appointment for the children with the Independent Children’s Lawyer for the purpose of having these orders explained to each of them.
That pursuant to s.65DA(2) and s.62B 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 this judgment for all publication and reporting purposes be referred to as LUNN & CARPENTER
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: NCF 559 of 2005
| Mr Lunn |
Applicant
And
| Ms Carpenter |
Respondent
REASONS FOR JUDGMENT
Introduction
Before me for hearing are applications for final parenting orders. The proceedings were commenced by application filed on 8 September 2005 by the Father. The respondent is the Mother.
The Father seeks the following:
1 PARENTAL RESPONSIBILITY
1.1.The Father shall have sole parental responsibility for the children:-
1.1.1.[I] born in November 1995 (“[I]”); and
1.1.2.[G] born in October 2001 (“[G[”).
2 WITH WHOM THE CHILDREN SHALL LIVE
2.1The children shall live with the father.
3 SPENDING TIME AND COMMUNICATING WITH THE MOTHER
3.1Starting as soon as possible, the children must spend time with [Ms Carpenter] (the “mother”) as follows –
3.1.1such time shall be spent under the direct supervision of an accredited contact centre providing such services in the [local] Area (such entity as shall provide the services from time to time being called the “Centre” and such services being called “supervision”);
3.1.2such time shall extend for three hours each second weekend on such day and between such hours as the Centre shall from time to time in consultation with the father recommend and make available to the mother and the father (the “parents”).
3.1.3the mother must –
3.1.3.1pay all costs and fees and do all things reasonably necessary and comply with all reasonable requirements that the Centre advises are necessary to enable it to provide the supervision;
3.1.3.2provide a copy of this order to any person or contact centre that she shall engage to provide supervision pursuant to any provision of this order.
3.1.4the father must do all things that the Centre shall reasonably require of him for the purpose of implementing this order.
3.2For the purposes of supervision –
3.2.1the father or his agent, being some other responsible adult known to the children and nominated beforehand in writing to the contact centre, must deliver the children to and collect them from the contact centre as necessary to implement this order;
3.2.2the father or his agent must promptly leave the building and its vicinity after and on each occasion when he delivers the children to the contact centre; and
3.2.3the mother must not attend the contact centre or its vicinity before the time contact is to start and she must promptly leave the contact centre and its vicinity immediately her time spent with the children at the contact centre ends.
3.3The period of contact provided in these orders may vary by reason of the closure of the contact centre’s services during school and public holiday periods. Contact shall occur at times when the services can be provided by the contact centre.
3.4If, after making all reasonable efforts the mother is unable to arrange supervision required by this order, she must –
3.4.1approach a family consultant accredited with this court and seek the assistance of that person in securing the services of a contact centre; and
3.4.2if, the mother is still unable to arrange supervision, each party has leave to restore the matter to the list on 14 days written notice to the other parties and to the Court.
3.5Commencing 12 months after the date of this order and PROVIDED THAT AND FOR SO LONG AS the mother shall comply strictly with this order, the children shall commence spending time with their mother without supervision between the hours of 10:00 am and 5:00 pm each second Sunday as follows –
3.5.1at the start of each such period, the mother must collect the children from the home of the father or from such public place in the general vicinity of his home as the father shall from time to time in writing to the mother reasonably nominate; and
3.5.2at the end of each such period, the father must collect the children from the home of the mother or from such public place in the general vicinity of her home as the mother shall from time to time in writing to the father reasonably nominate.
3.6Commencing 24 months after the date of this order and PROVIDED THAT AND FOR SO LONG AS the mother shall comply strictly with this order, the time that the children spend with the mother pursuant to the preceding order shall extend to every second weekend between the hours of 10:00 am Saturday and 5:00 pm each second Sunday.
3.7The parents shall keep each other informed of their respective places of residence and telephone numbers AND they shall each inform the other of any change to those particulars within 48 hours of the relevant change.
3.8NOTWITHSTANDING any other order –
3.8.1if either child shall be regularly attending an organised team sport or school or cultural event on a Saturday when the children are to commence spending time with the father, the time for them to be collected from the father that day shall be delayed so as to commence as soon as possible after the relevant event has ended;
3.8.2the father may, by notice in writing given to the mother at least seven days beforehand, suspend periods of time when the children must spend time with her once during each school holiday each year;
3.8.3the children shall spend time with the mother on an unsupervised basis between 9:00 am and 5:00 pm on Mothers’ Day each year;
3.8.4the children shall not see or spend time with their mother on Fathers’ Day each year;
3.8.5the children shall spend time with their mother between 3:00 pm and 8:00 pm on Christmas Day and between 9:00 am and 1:00 pm on the birthdays of each of them each year.
4 THE SECOND RESPONDENT [THE MATERNAL GRANDMOTHER]
4.1The mother must not at any time permit or allow the maternal grandmother to come into contact with or communicate with the children except for a period not exceeding one hour when the children are spending time with her pursuant to this order and then only in the presence of and under the supervision of a Centre or of a responsible adult third party known to the father who he shall have approved in writing at least 48 hours beforehand.
4.2The maternal grandmother […] must never –
4.2.1telephone or otherwise try to speak or deal with the father; nor
4.2.2approach or come into or remain in the presence of or telephone or otherwise try to speak or deal with the children otherwise than in strict compliance with this order; nor
4.2.3approach or come or remain within 500 metres of the school or schools attended by the children; nor
4.2.4wait or be or remain at any place along the routes from the children’s home to the schools attended by the children between 7:30 am and 9:30 am or between 2:00 pm and 4:30 pm on any school day.
4.3The father’s obligation to implement this order from time to time shall be conditional on strict compliance by the mother and the maternal grandmother with this order.
5 OTHER MATTERS
5.1If during the currency of this order the parents agree in writing to vary these orders, they each have leave to list the proceedings in chambers for consent orders to be made.
5.2The mother must never –
5.2.1approach or come in to or remain the presence of or telephone or otherwise try to speak or deal with the children otherwise than in strict compliance with this order; nor
5.2.2telephone or otherwise try to speak or deal with the father except in emergencies or for purposes essential to the appointment of a supervisor or contact centre or for other purposes essential to the safety or welfare of either child; nor
5.2.3approach or come or remain within 500 metres of the school or schools attended by the children except by prior arrangement with the principal or staff of the school in question and then only at times when the children are not at school; nor
5.2.4wait or be or remain at any place along the routes from the children’s home to the schools attended by the children between 7:30 am and 9:30 am or between 2:00 pm and 4:30 pm on any school day.
6 Neither parent shall denigrate the other in the hearing or presence of either child.
7 Neither parent shall discuss these proceedings in the hearing or presence of either child.
8 SUBJECT TO THIS ORDER the mother shall be entitled to approach and receive information from the children’s schools and from any treating professional or agency regarding the children’s health, welfare and education.] AND the parents shall sign and return any authority tendered to them that any such school, professional or agency shall require for the purpose.
9 Each of the parents must participate in a parenting or similar program or programs if the Centre shall so recommend.
10 The father must cause a copy of this order to be sent by prepaid post to the third respondent at his last address known to the father.
11 The father is at liberty to make informal arrangements for [I] to spend time with his biological father, the THIRD [sic] as and when the father and the fourth respondent shall from time to time agree.
12 The fourth respondent has leave to relist the matter for the purpose of seeking orders that [I] shall spend time with him on 28 days notice to the Court and to the other parties.
The Mother seeks the following:
1 The children live with her.
2 Both children attend [M] Public School or a school nearest to the Mother’s residence.
3 The Father have the children every second weekend and half of the school holidays and on other special occasions such as birthdays as agreed by the parents.
4 The Father have telephone contact with the children as defined by the Mother.
5 The Father not denigrate the Mother in the presence of the children.
6 The Father be restrained from taking the children out of the State of New South Wales or out of Newcastle.
The orders sought by the Mother appear in an amended response filed on her behalf on 5 February 2007.
There was an Independent Child Lawyer who appeared represented by counsel. Before final submissions I was handed a minute of orders sought by the Independent Child Lawyer in which the following was sought:
1. All previous parenting Orders be and hereby are discharged.
2. That the father have sole parental responsibility for the children [G] born in October 2001 ([G]) and [I] born in November 1995 ([I]) (collectively referred to as “the children”).
3. The children shall reside with the Father
4. The children shall spend time with their mother (the mother) as follows:
4.1(a) on a supervised basis.
(b)at the Rainbow Contact Service at [B] (the Rainbow Centre).
(c)for a period of three hours each alternate weekend in accordance with the arrangements made from time to time between the parties and the director of the Rainbow Contact Service (“the Service” and the “director”).
(d)to commence on Saturday 3 March 2007.
4AThe maternal grandmother may have contact with the children at the Service at the discretion of the Director.
4.2(a) on a supervised basis.
(b)in the presence of a qualified supervisor agreed to by the father in writing.
(c)for a period of up to four hours on a day of any weekend when contact is not taking place pursuant to these Orders.
(d)costs of such supervision to be met by the mother.
(e)the mother and the supervisor to collect the children from the Rainbow Centre at the commencement of contact and to deliver the children to the Rainbow Centre at the conclusion of contact.
(f)the mother to supply the father with written notice in advance of proposed periods of contact and the father to advise in writing forthwith of any proposed period, which is unsuitable to him.
4.3(a) The mother shall spend such other and/or additional time with the children as is agreed in writing between the parents after twelve months from the date of these Orders.
5. Each of the parties (including the maternal grandmother) is restrained from discussing the Court proceedings in the hearing or presence of the children or allowing the children to view any documents associated with such proceedings.
6. Each of the parties (including the maternal grandmother) is restrained from denigrating either of the parents or any member of a parents household in the presence or hearing of the children.
7. The Independent Children’s Lawyer shall provide to the Principal of [L] Public School a copy of these Orders.
8. Each of the parents is restrained from changing the enrolment of the children at [L] Primary School without further Order of the Court.
9. The mother and the maternal grandmother are each of them hereby restrained from making telephone contact with the children or either of them.
10. The mother and the maternal grandmother are each of them hereby restrained from approaching the children at school except with the written consent of the father and at the discretion of the principal of the children’s school.
11. The father shall:
(a)Keep the mother advised of the state of the children’s health and of any specialist medical appointments and proposed surgery for either of the children.
(b)Authorise the school, to the extent necessary to release to the mother information relating to the progress and welfare of the children including but not limited to school reports and assessments.
(c)Keep the mother advised of his residential address and contact telephone numbers.
(d)Advise the mother forthwith of any medical emergency or accident involving either of the children.
12. The mother shall keep the father advised in writing of her residential address and contact telephone number.
13. The father is to forthwith arrange an appointment for the children with the Independent Children’s Lawyer for the purpose of having these Orders explained to each of them.
In final submissions the solicitor for the Father said that the Father supported the orders sought by the Independent Child Lawyer except 4A and the restriction on changing the schools.
The Mother appeared without legal representation although she had some assistance from a Friend, Mrs H who is a retired barrister.
I had two reports (Exhibit A) from Ms S who is a senior clinical psychologist. Ms S was a court expert. The reports were very detailed and I will refer to important parts of them. I also had reports (Exhibit B) from Dr W, Consultant Psychiatrist.
The Father was born in February 1973 and the Mother was born in September 1974. The parties commenced to live together in 2000 and separated in March 2005.
There are two children [I] who was born in November 1995 and [G] who was born in October 2001. The biological father of the child [I] is Mr R.
The maternal grandmother was born in January 1942.
The children are presently residing with the Father and have supervised time with the Mother. The children were removed from the Mother’s care pursuant to orders made in May 2006. Ms S said that the Mother and maternal grandmother had previously made allegations that:
·The Father had sexually abused the child [G] on a number of occasions.
·The Father had deliberately burned the child [G] with boiling water when he was 15 months old.
·The Father physically abused both boys.
·The Father was violent to the Mother.
·The Father threatened to kill the Mother and maternal grandmother.
There is an issue as to whether the Mother has emotionally abused the children and if so whether there is a risk of further abuse. Ms S said that the Mother accepted no responsibility for her previous false claims and blames both her previous solicitor and the child [G’s] statements for these. Both the Mother and maternal grandmother now say they are unable to go ahead with these claims because they were not witnesses to the abuse. Both now say they believed what the child [G] told them about the sexual abuse. However, neither can explain why the child [G] would say such things. Ms S said that their explanations for their previous false claims that the Father threatened to murder them all and that he had deliberately burned his son seem fatuous.
Parenting - relevant principles
Section 61C(1) in Pt VII of the Family Law Act 1975 (Cth) provides that each of the parents of a child who has not attained the age of 18 has parental responsibility for that child. The meaning of “parental responsibility” is defined in s 61B of the Act. Parental responsibility means all the duties, powers and authority which by law parents have in relation to a child. It relates to decision-making, not time to be spent with each parent. The presumption relates only to parents, and has no application to orders for parental responsibility in favour of other people. The parents may exercise the responsibility either independently or jointly.
However, by virtue of s 61C(3) the joint parental responsibility is subject to any order I may make. Section 61D(1) provides that a parenting order confers parental responsibility for a child on a person but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
Section 65D(1) of the Act provides, subject to a presumption of equal shared parental responsibility in s 61DA, parenting plans and Div 6 of Pt VII, that I may make such parenting order as I think proper. Section 64B(1) defines the term “parenting order” and s 64B(2) specifies the matters that a parenting order may deal with. This includes the person with whom a child is to live, the time a child is to spend with another person and the allocation of parental responsibility for a child. Section 64B(3) provides that an order may deal with allocation of responsibility for making decisions about long-term issues.
In deciding whether to make a particular parenting order in relation to a child s 60CA requires that I regard the best interests of the child as the paramount consideration: see also s 65AA.
In determining what is in the best interests of a child I must consider the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act. There are two primary considerations and 13 additional considerations. I must also have regard to the objects of Pt VII identified in s 60B(1) and the principles expressed in s 60B(2) underlying the objects.
As to the two primary considerations, the first is the benefit to the child of having a meaningful relationship with both parents. The second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The terms “abuse” and ‘”family violence” are defined in s 4 of the Act.
In an article by John Fogarty Unacceptable risk - A return to basics (2006) 20 AJFL 249 he expressed the view, and I agree, that where there is a clash in their potential application, s 60CC(2)(a) is subservient to s 60CC(2)(b). As he said: “the benefit of a meaningful relationship gives way to the extent that there is a need to protect the child against abuse or risk of abuse”.
The 13 additional considerations include the views of the child, the nature of the relationship of the child with each of the parents, the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.
Section 60CG requires that I ensure that any order I make is consistent with any family violence orders and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the parents to have “equal shared parental responsibility” for the child. It is a presumption that relates solely to the allocation of parental responsibility as defined in s 61B. It is not a presumption about the amount of time a child spends with each parent. The presumption does not apply in certain circumstances.
Section 65DAC deals with the effect of a parenting order that provides for shared parental responsibility and that the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child. Section 65DAC(2) provides that the order is taken to require that the decision is to be made jointly by the persons who have shared parental responsibility. The term “major long term issues” is defined in s 4 and includes issues relating to education and religious upbringing. However, s 65DAE makes clear that a shared parental responsibility order does not require consultation about issues that are not major long term issues.
Section 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence. Further, s 61DA(4) provides that the presumption may be rebutted if I was satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility. In summary, if the presumption does not apply or is rebutted then I must determine, without any presumption, what order relating to parental responsibility, if any, would be in the child’s best interests, applying s 60CC and s 60B.
If I am satisfied that the presumption of equal shared parental responsibility does apply then by s 65DAA(1) I have to consider whether it would be in the best interests of the child to spend equal time with each parent and whether it is reasonably practicable for the child to spend equal time with each parent. If both conditions are satisfied I then must consider making an order for the child to spend equal time with each parent. In determining the first matter, namely whether it would be in the best interests of the child to spend equal time with each parent, I have to apply s 60C and s 60B. In determining the second matter, namely whether it is reasonably practicable, I am required to consider the matters in s 65DAA(5).
If I am satisfied that the presumption of equal shared parental responsibility applied but that an order not be made for the child to spend equal time with each parent then by s 65DAA(2) I have to consider whether it would be in the best interests of the child to spend substantial and significant time with each parent and whether it is reasonably practicable for the child to spend substantial and significant time with each parent. If both conditions are satisfied then I must consider making an order for the child to spend substantial and significant time with each parent. Again, in determining the first matter namely whether it would be in the best interests of the child to spend substantial and significant time with each parent I have to apply s 60C and s 60B In determining the second matter, namely whether it is reasonably practicable I have to consider the matters in s 65DAA(5). Section 65DAA(3) sets out what is meant by substantial and significant time.
For a discussion of the relevant provisions of Pt VII of the Act see Goode and Goode [2006] FamCA 1346.
Background
I will set out what some of the evidence reveals although I caution that at times it is confusing. The Mother was born in a foreign country and came to Australia with her parents in mid 1975. The maternal grandmother was born in the foreign country and she said that her father was a senior figure and her mother [was] of high social standing. She married an Englishman of European descent. Her husband is deceased.
The Mother told Ms S that her father was a builder and died after a year's illness from a heart attack and lung cancer when she was nine. Her mother did not remarry. The Mother said she came from a loving family and did not experience abuse of any kind while she was growing up. The Mother has a sister who lives in Perth, is married to “a Navy man” and has four boys. Ms S reported that the Mother said the maternal grandmother had also "matched up" her sister and husband. The Mother left school in the first month of Year 12. The Mother has had a number of paid positions, including hospitality for a year and telemarketing. The Mother had been working at an entertainment venue in Perth when she first met the Father. The Mother has a trade qualification and at present she has casual employment.
The Father told Ms S that he is the middle of three children of his parents. His father was an Engineer and worked a lot, so the mother and three children formed a close unit. He said he was 17 when his parents separated. They had not been getting along but there was never any domestic violence. The Father said he generally had a happy childhood, with no abuse, but his parents' separation had been difficult and it had "affected my security".
The Father told Ms S that he completed Year 12 but did not do too well, as he was distracted in his final year. He was also doing part-time work. The Father said he has mostly been employed but has several times been on benefits, the longest for 12 months. He completed 12 months of a course at University but had to give it up for financial reasons. He was then unemployed for a year before doing three months of a T.A.F.E.. He then got a position with a tradesman for three years. The Father said that, for the last two years, he has been working with a construction firm. He told me that he is currently unemployed although he proposes to resume working as a contractor in the building industry and he has a position available.
The Father has one conviction for driving under the influence. He told Ms S that he could have applied for a diversion course but he "accepted my fate" that he would be punished by losing his licence and that this had "taught me a lesson the hard way". The Father also told Ms S that when he was young and living in Melbourne, he used both marijuana and snorted speed. He said he has not used speed since he left Melbourne in 1992 and now only has an occasional joint about every three months.
In 1993 the Mother was convicted of three criminal charges being an offence of offensive language and two offences of obtaining financial advantage by deception. Ms S said that when asked, the Mother initially denied she had a criminal record. However, later when again asked if she had ever been in trouble with the Police, she said a girlfriend she was with at a shopping mall had stolen something and all the group then got into trouble.
The Mother told Ms S that soon after she left school she met Mr R and “was with him” for four years. The Mother was 17 years of age at the time. The Mother said that it was a violent relationship and that Mr R was “no good”. Mr R had been attending weekend detention every second weekend but the Mother did not know what offence(s) he had committed.
Shortly after the Mother fell pregnant she decided to live in Perth. The Mother asked Mr R to accompany her but he declined. The Mother then commenced to live in Perth where she remained for about five years.
The child [I] was born in November 1995 in Perth. The Mother said that the child only saw his biological father on two occasions being when the child was about three months old and then when he was four years old. The Father said that the Mother told him that the child had never seen his biological father. I am satisfied that the biological father is aware of the current proceedings and has chosen not to participate. The Mother has spoken to the biological father and he told her that he did not want to be involved.
Ms S said that when asked about his own biological father, the child [I] said he had never met him. Further, “he said his father was a fireman and smiled at this (the first time I had seen him smile). He said he did not know why he had never met his father but his mother has told him that one day this will happen. I said he would like this. He said his mother and grandmother like his biological father”. The Father made it clear that he has no issue about the child [I] seeing the biological father.
I note that the maternal grandmother obtained an Apprehended Violence Order against Mr R. I had difficulty understanding why such an order was obtained.
In 2000 the Father commenced to reside at S nearby to the home of the maternal grandmother.
Ms S recorded that the Mother explained that she had been living in Perth for five years with the child [I] while her mother was living in S. The maternal grandmother telephoned the Mother in Perth to tell her about a man who had moved in over the road at S. The Mother told Ms S that her mother knew she wanted to meet a man who would treat her nice and with respect if she moved back to New South Wales and her mother informed her that this was the “right man”. The Mother contended that she and the Father then spoke over the phone, exchanged letters and she also sent “modelling” photos to the Father. The Father then sent the Mother some money to pay for the costs of an airfare for her to travel from Perth to New South Wales to meet him and also to surprise her mother. The Mother contended that she only had telephone contact with the Father for two to three weeks when she travelled to S and on arrival she immediately commenced to live with the Father. When asked how her mother felt about her taking immediate residency with a man she had just met the Mother said that her mother had no objections. The Mother contended that after they arrived back from a holiday the Father asked her to marry him and he arranged for all of her things to be transported over from Perth.
Ms S said that when she asked the maternal grandmother how the Father had first met her daughter, she said "I introduce myself to [the Father]. I said to [the Father], 'You are the one who'll marry my daughter'. And I don't even know the man. Then he asked about photos (of [the Mother]) and I gave it to him". The maternal grandmother said that at the time, the Mother was living in Perth, so, when the Father asked, she gave him the Mother’s address and telephone number. When asked why she would suggest that the Father should marry her daughter when the young people had never met each other and when she did not really know the Father, the maternal grandmother replied, "I am a Christian lady. My way of thinking is, 'He is single man and might be good for my daughter'. He trap us, he's dangerous man. It's all my fault, giving my daughter to him".
In November 2000 the parties commenced living together. I note that the Mother recently said the parties commenced living together in January 2001.
The child [G] was born in October 2001.
On behalf of the Mother an affidavit was sworn on 6 February 2007 by Dr D who is a general practitioner. Dr D said that on 21 April 2002 the Mother bought the child [I] to see him to ensure that the child had not suffered an injury. Dr D recorded that the child had been struck by the Father on 18 April 2002. The Mother advised that as a result the child had fallen against a television knocking his head. Further that the child had then been kicked in the testicles by the Father. Dr D said that examination of the child revealed no injuries and there were no bruises evident.
The Father told Ms S that in 2002 he “kicked [I] in the bum”. The Father told Ms S that he made a mistake and he regrets it and that from that moment he has not touched the child. The Father explained how the incident occurred. The Father said that he did not handle the situation properly and he regretted what he did. He said that it was not his right to strike the child and the child forgave him. The Father said that he spoke to the child about what happened and told him that it was the Father not the child who was at fault. Ms S recorded that the Father’s tone of voice reflected affect consistent with his statements of remorse.
In one piece of evidence the Mother contended that the Father probably started to sexually abuse the child [G] in about mid 2002.
An incident occurred on 18 January 2003 when the child [G] was accidentally burnt. Ms S reported what the Father said about this incident and that when he did so he became quite emotional. The Father put the child’s bottle in a container of boiling water and left it on a change table. The child [G] who had just started to walk came in and grabbed or shook the change table causing the boiling water to tip on him. The child’s arm was injured and he was hospitalised for about a week. The maternal grandmother told the hospital staff that the Father had injured the child on purpose and an investigation was carried out. The Department of Community Services was notified. Ms S recorded that the Department of Community Services was notified because of a verbal argument between family members in the hospital ward with the Mother and the maternal grandmother accusing the Father of causing the injury. Ms S noted that there was no mention in the report from the hospital that the injury was other than accidentally caused.
Ms S said the Father told her that it had been a terrible time for them all but particularly for the child [G] who was in a lot of pain and had to have frequent changes of bandages for many weeks. The Father told Ms S that both he and the Mother were so upset that they attended counselling. The parents were counselled by their Pastor in relation to this incident. As well, the Father told Ms S that in relation to this incident he felt a lot of guilt about it and still does and Ms S noted that “his effect matched these statements”. The Father told Ms S that he has never had any mental health problems and has never seen a Psychiatrist. However, on one occasion he saw Dr I, Child Psychologist to be counselled about the possible effects of the burns on the child [G].
The Father told Ms S that the Mother had not accused him outright of deliberately injuring the child [G] as the maternal grandmother had done. However, the Father explained that the Mother loved her mother and was very supportive of her theories. The Father contended that after this incident the relationship of the parties began to fall apart.
The Mother’s position in relation to what happened is contradictory. On 27 July 2005 the Mother signed a police statement and stated that in January 2003 the Father “burnt [G] … by pouring hot water on his left arm”. The Mother told Ms S that the Father had inflicted second degree burns on the child [G] with boiling water "on purpose". When Ms S asked the Mother why the Father would want to do this, the Mother replied, "To get rid of him. He didn't want the child. He wanted to get married first and then have a child”. In a recent affidavit filed after the first report of Ms S the Mother said that the child [G] “must have pulled it down on himself”. The Mother also said that the parties were questioned by nurses and social workers who were satisfied that it was an accident and “I still believe it was an accident.”
Of particular concern to me is what the child [G] told Ms S. Ms S recorded:
[G] was doing some drawing. I noticed his burn scars on his left forearm and asked him about this. [G] told me:
[G]:"[The Father] burnt me. [He] poured the water on me and I was crying. (Q. Why would he do that?) 'Cause we was separated up that shop - he want to. And that's it!"
In cross examination by counsel for the Independent Child Lawyer the Mother was asked to identify who it was that told the child [G] that the Father had poured water on him given the age of the child at the time of the incident. There was a significant pause and the Mother was asked the same question on more than one occasion. Finally the Mother said that she did not understand the question.
It is then necessary to see what the maternal grandmother said about the burn incident given, amongst other things, what happened at the hospital. In a statement the grandmother made to the police on 9 September 2005 she said that the Father burnt the child [G] “on purpose”. In her first report Ms S said in relation to the interview with the grandmother:
When asked why she believed [the Father] was dangerous, she said, "The way he treat children. He poured hot water on my grandson (cries). Something in him, it's evil. You don't know him".
When asked whether she believed [the Father] had deliberately poured hot water onto [G], [the maternal grandmother] told me, with some intensity, "He did it for (a) purpose. I know he did. (Q. Why would he do this?) I just sense it. I knew. He doesn't want [the Mother] to have a boy, to have it born. (It's) revenge for it Now [the Father] has been exposed, he doesn't like it. W. What do you mean?) The sex abuse (of [G]). All this time he want to hide all this to have a happy marriage".
…
She then added that [the Father] is a strange man and a "smooth talk(er)".
Ms S also said:
When asked to clarify the incident when [G] was burned as a baby, [the maternal grandmother] told me that [G] had gone with [the Mother] to hospital in an Ambulance. [The Father] had come to [the maternal grandmother’s] house and had driven her to the hospital. On the way there, [the grandmother] had said to [the Father], "You did this ([G’s] injury) on purpose". [The Father] had become angry and had driven very fast. When I asked whether she had made such allegations to hospital staff, [the grandmother] told me, "Yes, I told the Social Worker but, because I didn't see it (happen), they can't judge [the Father]. But, because they want to marry, they didn't charge [the Father]". [The maternal grandmother] told me, with some feeling, "I know he did it. I'm a Christian. I can sense (it). He's a murder(er), an evil Satan, a criminal". [The maternal grandmother] continued on, "When all this (court case) cool down, he will get us. He will murder me, 'cause I know him. He doesn't like me. A person like that never forgets. He will do something. 'Cause we expose him".
In a recent affidavit (5 February 2007) [the maternal grandmother] said that she is still not convinced that the accident happened the way the Father stated.
I note that in relation to the interview with the child [I] Ms S said: “When asked why he was seeing me, I said he had to answer questions. When asked if anyone had told him how he should answer my questions, [I] told me, "No-one said anything, except [the Father] burnt [G’s] arms. He had second degree burns" “.
In July-August 2003 the parties separated for approximately a month although during this period the Father would stay over at the matrimonial home each weekend.
There are then the allegations of sexual abuse. The evidence about these allegations is particularly confusing. In an affidavit the Mother swore on 22 November 2005 she contended that in February 2004 the Father sexually abused the child [G]. The Mother contended that she was outside hanging out washing and she went to a window and observed the child [G] was between the Father’s legs “sucking his penis” and as she quickly went into the room the Father pushed the child off him. The Mother asked the Father “why is your fly undone?” The Mother contended that she observed that the child [G] had a clear gel like substance around his mouth and pubic hair on his lips. She contended that the Father then left the house and she attended to the child and she described “the smell from [G] as a sexual smell”.
The parties were married in September 2004 and the question that arises is why the parties would get married given what the Mother contended was the behaviour of the Father prior to September 2004. There probably were difficulties in the relationship of the parties because the Father told Ms S that he thought that if the parties got married that this would fix their problems.
Then there is the alleged incident on 4 December 2004. In an affidavit sworn on 4 September 2006 the Mother said, referring to her affidavit of 22 November 2005, that she did not ever say she observed the child [G] sucking the Father’s penis and that she suspected that the child’s face was near the unzipped pants of the Father and she thought she smelt semen and the child had a hair in his mouth. In any event in this affidavit the Mother went on to say that on 4 December 2004 she was feeding the child [G] at the table when the child said to her “[The Father] put his willy in my mouth. I suck [the Father’s] willy”.
[The maternal grandmother] signed a statement on 4 September 2006 and she contended that on 4 December 2004 she was looking after the children while the Mother was shopping and the Father was at work. She said that she and the child [I] were sitting on the lounge when the child [G] came up to her crying and said “[The Father] says he’s my best friend, he’s my best friend. He put willy in my mouth. I suck his willy”. She contended that when the Mother returned she told her what the child [G] had said and she immediately went to the Police Station. In an affidavit sworn by the maternal grandmother on 5 February 2007 she contended that on 4 December 2004 she went to the Mother’s home and the Mother asked her to mind the children while she went shopping. The maternal grandmother contended that she did this and while she and the child [I] were sitting in the lounge room the child [G] came out of a bedroom with his blanket and was crying, hitting her lap and was very upset. The child [G] said “[The Father] is my best friend, my best friend, I suck his willy”.
In her affidavit of 4 September 2006 the Mother contended that on 4 December 2004 when she returned from shopping the maternal grandmother told her what the child [G] had said and that the child had made a similar statement to her that morning. In this affidavit the Mother went on to say that the parties were married in September 2004 and she learnt of the sexual abuse in December 2004. Thus the Mother admitted that what she said about abuse in February 2004 was wrong. In any event, she continued and said that she felt very upset and shocked because “as I thought about things I believed that what [G] had said was true. There were many times when [G] was alone with [the Father] and one particular time when [G] was on the lounge with [the Father], [the Father’s] fly was open. I remember thinking that I smelt semen and [G] had a hair in his mouth. At that time I did not even consider the possibility that [the Father] would abuse his own son”.
In her first report Ms S dealt extensively with her interview with the maternal grandmother. She said that when interviewed the grandmother gave her a document. The grandmother told Ms S that the children were in danger from the Father and when asked about this danger the grandmother told her that one day, which was nominated as 19 October 2004, she was minding the children while the Mother went to the shops and the child [G] began to cry telling her that the Father is his best friend and “I suck his willy and he put his willy in my mouth”. The maternal grandmother told Ms S that this was the first she had heard this. She added that she and the child [I] had gone to the police station to report the disclosure. When asked to clarify whether the child [G] had first made the disclosure to the grandmother or to the Mother, the grandmother told Ms S that the first time was when he told her about it. Ms S said that although the grandmother’s statement claimed that this first disclosure was in October 2004 records from the Department of Community Services record that the disclosure by the child [G] to the maternal grandmother and the Mother was only made in July 2005. In cross-examination the grandmother said that she still believes that the Father sexually abused the child [G].
As to the Mother, in her first report Ms S said that when asked about the separation of the parties so soon after their marriage, the Mother said that she had been suspicious about the Father sexually abusing the child [G] and, when the child [G] told her this, she believed him. The Mother said, "I can't live with a sex offender. It's not healthy for us to be abused all the time". When asked about her "previous suspicions", the Mother said that, when the child [G] was "less than 15 months" [2003], the child and the Father were sitting on a lounge watching a DVD. The Mother had come in and had seen the Father’s fly undone. The Mother told Ms S that she grabbed the child [G] and said to the Father “'Why is your fly down? What have you been doing?” and the Father walked outside. Ms S said she had smelt the child’s mouth "and it smelled of semen". The child also had a pubic hair in his mouth. Ms S sought to clarify this and asked whether the Father had his underpants still on and the Mother replied he had jeans on. When asked if she could see his penis, the Mother looked very confused, as though she had not expected to be questioned about the details of this incident and so was not prepared for it. Ms S said that after a long pause, the Mother replied, "No. He's like a fox. He's very good at it. He's a perpetrator". Ms S said that the Mother said she knew the child [G] had been aged less than 15 months at the time of this incident because it occurred before the burns accident at age 15 months. The burns incident was in January 2003 and on thus according to this version the sexual abuse incident may have occurred in 2002. Ms S said that when asked why she had married the Father knowing that he had physically and sexually abused her child, the Mother told her, "'Cause I had his child". Ms S said, and I agree, that this seemed very different to the account the Mother gave of this alleged sexual abuse incident in her affidavit of 22 November 2005, in which she claimed that, in February 2004, she had observed the child [G] between the Father’s legs sucking his penis.
In her first report Ms S said:
When asked how such a disclosure had come about, [the Mother] said they were sitting at the dinner table when [G] spontaneously came out with these statements. She said the first time he had disclosed this abuse was the same day of the supermarket incident and that [the Father] had sexually abused [G] that morning.
When asked about the number of disclosures [G] has made, [the Mother] told me, "He says it a lot. But only in the last couple of weeks. [G] punched [I] here (points to her own genital area) in his 'private parts'. ([G]) only says it when there is supervised access. (Q.) After access. (Q) He said, 'I don't want to suck [the Father’s] willy any more'".
[The Mother] said G first disclosed sexual abuse in 2004 and has done so about twice a month since then. She told me, "Sometimes, he says, when he plays with [I], 'Suck-a-willy, suck-a-willy'(demonstrates in singing tones). He doesn't know what he's saying".
When asked whether she thought [G] was still being sexually abused on contact visits, [the Mother] told me that, at Christmas, [the Father’s] mother had allowed [the Father] to take [G] to the toilet unsupervised.
As way of explanation, [the Mother] said that [the Father’s] mother and grandmother had "been through this" (child sexual abuse) and that it has happened in their family. When asked for details, [the Mother] told me, "Once, when [the Father’s] mother and stepfather came over and [the stepfather] (stepfather) said, 'Don't hurt [the Father]'. My mother invited [the father’s] mother for coffee and ([the Father’s] mother) said to my mother, '[The Father] has a past with his (biological) father'. My mother said, 'We don't want to know about it. It's the past and [the Father] and [Mother] are getting married for the future!'"
When asked, [the Mother] said she does not really know what happened because [the Father] will not talk about it. However, [the Mother] was convinced that this conversation between the two grandmothers indicated that [the Father] had been sexually abused by his biological father when he was a child.
When asked, [the Mother] said she has no doubts at all that [the Father] has sexually abused [G], because, "My child told me and I believe him".
The maternal grandmother contended that on 4 December 2004, after the statement by the child [G], she went to a police station and spoke into an intercom. The Mother contended that in early January 2005 she made a complaint or notification in relation to what the child [G] had said on 4 December 2004. There was no evidence from any source corroborating what the Mother and maternal grandmother said in relation to these matters. It was submitted by counsel for the Independent Child Lawyer, and I accept, that it is extraordinary that the child would make the same statement to the Mother and grandmother on the same day in the circumstances outlined and yet nothing happened. The Father and the Mother continued to live together until March 2005 and even then they maintained an association until June 2005.
Then there is a further allegation of abuse. In her affidavit of 24 November 2005 the Mother contended that in January 2005 she went into the bedroom of the child [G] and saw the Father in bed with the child. The Mother contended that she observed that the child had been vomiting in the bed. The Mother said that the child had not been sick in the evening and thus she was suspicious as to what was occurring. Then when she approached the child she noticed that a pubic hair was in his mouth. In her first report Ms S said:
[The Mother] then described another alleged incident of sexual abuse of [G] by [the Father] when they were living at [S]. She said she was up at 5.00 a.m. to do some cooking and had checked on the children, who were sleeping. An hour later, she checked them again, as she "sensed something". [G] was not in his bed but was in the marital bed with his father. [The Father] was awake and the child had vomited on the bed. She said, "My suspicion is that [the Father] put his willy in ([G’s]) mouth to make him vomit".
She said she took [G] to the doctor and insisted that [the Father] accompany them. The doctor said [G] was fine. However, [the Mother] said, in retrospect, she should have requested a DNA test "to check his semen".
The Mother then swore an affidavit on 4 September 2006 and in relation to the occasion when she contended the child [G] vomited while he was in bed with the Father she said that she did not really believe or want to believe that the Father would sexually abuse the child and it was only after the child had told her and her mother on the same day that she saw the importance of the other events. Then in an affidavit the Mother swore on 14 November 2006, after the report of Ms S, in which the Mother purported to make corrections to her affidavit of 22 November 2005 which she described as inaccurate in many details, she said that the child was in the parties’ bed and that it did not happen in January 2005 and “it would have been in 2004”. Thus the Mother was maintaining her contention that the incident occurred but was suggesting that it had occurred on an earlier occasion. The Mother was contending that the alleged incident when the child vomited occurred prior to 4 December 2004 but she did not say when.
On 10 March 2005 the maternal grandmother went to Western Australia where she remained until June 2005. Prior to her departure the parties went to the home of the maternal grandmother for an evening meal. The Father told Ms S about strange things that the Mother and the maternal grandmother were saying about him in his presence such as that he had AIDS and that he was having affairs. He then decided that he would leave the relationship. He subsequently took a blood test for HIV which was negative.
The parties separated in March 2005.
The Father told Ms S that even after the parties finally separated they continued to see each other most weekends and that the Father thought the parties should have resolved their problems. The Father also telephoned the Mother every night. The Father had regular and formal contact with the children until 19 June 2005. This was admitted by the Mother although she said that she was also present.
On 1 June 2005 the maternal grandmother returned from Western Australia and resumed living at S.
The Father contended that the Mother suddenly became quite cold towards him and he felt that this change in attitude coincided with the time the maternal grandmother returned from Western Australia.
In a statement dated 4 September 2006 the maternal grandmother contended that on 5 June 2005 the Father arranged to meet the Mother and the children at McDonalds at S but instead of going to the restaurant he came to her house. She said she saw him coming and he looked angry and aggressive. She contended she quickly locked the back door and hid and that he broke the wire screen door and then left.
On 8 June 2005 the Mother swore a Complaint and Summons for an Apprehended Violence Order. The Mother contended that she feared harassment, molestation, intimidation and stalking by the Father. The Mother claimed that she was fearful of the Father because of his verbal abuse of her. This was denied by the Father. What is important is that in part of the Complaint and Summons titled “Circumstances of Complaint” the Mother said nothing about physical or sexual abuse of either herself and any of the children. The Complaint and Summons was not served on the Father until about 7 July 2005.
In her first report Ms S said that the Mother told her that she took out an Apprehended Violence Order against the Father in April 2005 because the Father was "harassing" her. When asked for details of this harassment, the Mother said "He said I didn't know what I wanted and (that) my mind was scattered". The Mother also said she had taken out this Apprehended Violence Order because the Father had wanted to see the child [G]. In a recent affidavit the Mother said that she obtained the Apprehended Violence Order when the Father “Threatened her when I refused to go to his house in [L]”.
The Father continued to see the Mother and the children each weekend until 19 June 2005.
By letter dated 22 June 2005 the solicitor for the Father wrote to the Mother and said that the Father was happy and willing for the children to continue to reside with the Mother however the Father felt that it would be best for the Mother and the children to find a residence of their own and “away from your mother’s influence”. The solicitor also requested that the Father have contact with the children each second weekend from 6.00 pm on Friday until 6.00 pm on Sunday, each Wednesday evening from 4.00 pm until 7.30 pm and arrangements be made for school holidays and special days. At this time the Father and his solicitor were not aware of any allegations of sexual abuse and also not aware of the Complaint and Summons for an Apprehended Violence Order.
Then on 26 June 2005 the Mother told the Father that the arrangement was not working and that he would never see the child [G] again. At no time did the Mother say anything to the Father about having sought an Apprehended Violence Order and the Father was unaware that proceedings had been commenced.
According to Ms S, and it was not disputed, the first notification to the Department of Community Services of sexual abuse of the child [G] was made on 27 June 2005. Ms S said that the claim was refuted by the Joint Investigation Response Team on 30 June 2005.
The Father told Ms S that the Mother would ask him if he had a visit from anyone “yet” but he did not know what she meant. However, a couple of weeks later the Police served him with the application for an Apprehended Violence Order. The Father subsequently spoke to the Mother and brought the coincidence of the return of the maternal grandmother to S from Western Australia and the application for the Apprehended Violence Order to the notice of the Mother. The Mother contended that she had applied for the Apprehended Violence Order before her mother’s return. Ms S correctly noted that in her statement the maternal grandmother said she returned on 1 June 2005 whereas the Mother first approached the Police on 7 June 2005.
On 7 July 2005 the Father was served with the Complaint and Summons taken out on 8 June 2005 and this was when he first became aware of these apprehended violence order proceedings.
By letter dated 14 July 2005 the solicitor for the Father wrote to Senior Sergeant W at M Police Station and advised that the Apprehended Violence Order Complaint and Summons was in the Local Court for the first time on 14 July 2005 and that the solicitor would be unable to appear. However the solicitor advised that the Father intended to defend the proceedings. The solicitor stated that the allegations amounted to nothing more than complaints of insulting language that were denied by the Father “with little prospect of supporting evidence to support each parties’ version of the events in question”. However, on 14 July 2005 an Interim Apprehended Violence Order was made and the proceedings were adjourned to 16 September 2005.
Subsequent to the Apprehended Violence Order the Father ceased telephoning the Mother and contact became difficult but assisted until July 2005 when the Mother informed the Father that there would be no contact. Ms S recorded that the Mother justified this on the grounds that the Father had abused her. At one time the Mother told the Father that she had burned all photographs of the parties’ lives together and destroyed the Father’s clothes.
The Father gave evidence that on 25 July 2005 the Mother telephoned him and during a conversation the Mother said that she had informed “DOCS because [G] has been telling me that he was the victim of mistreatment”.
In her first report Ms S said that in about April 2005 the Mother commenced seeing a social worker at Sexual Assault Services. The Mother told me, and I accept that it was on 25 July 2005. The Mother told Ms S that she was seeing the social worker because of how the Father had treated her and his abuse of the child [I]. Ms S spoke to Ms B of Sexual Assault Services. Ms B had been seeing the Mother for counselling for some time. Ms B told Ms S that she was seeing the Mother in relation to domestic violence issues and as a Mother of a child who had been sexually abused. Ms B did not question the veracity of the allegations and had arranged for the Mother to be linked into other appropriate services.
The Mother also told Ms S that previously a counsellor from First Steps Parenting had made home visits to assist her with management of the children’s behaviour. Elsewhere the Mother contended that this was because the Father had taught the children about “guns and bad things”. In a recent affidavit the Mother said that she needed a Counsellor from First Steps Parenting “to help me because of [G’s] headstrong and aggressive behaviour”. The Mother was obviously having difficulties with the care of the child [G]. At this point I note that in her report Ms S said:
[The Mother] told me that [G] has a temper and that, "He punches into me. He really hurts me. He (also) scratches [I] and punches him".
[The mother] said that [G] punches her with a closed fist and also does this to his grandmother. [G] did not react to this discussion.
On 27 July 2005 the Mother signed a police statement in which she contended that during her relationship with the Father he sexually abused her and sexually abused the child [G] for three years. The Mother said the child [G] had told her that the child was sucking the father’s “willy in the mouth and bottom”. Further, that the Father is “very violent towards us”. Further, the Father “has sexually abused” the child [G] and physically abused the child [I] during 2003 and 2004. The Mother contended that in January 2003 the Father “burnt [G] … by pouring hot water on his left arm”. The Mother contended that in October 2003 the Father had threatened the maternal grandmother with a hammer. Sergeant W obtained this statement from the Mother for the Apprehended Violence Order hearing in September 2005.
The Father had no contact/time with the children between July and December 2005.
A further notification may have been made to the Department of Community Services. On 8 August 2005 the Mother and the child [G] were interviewed by members of the Joint Investigation Response Team.
On 25 August 2005 the solicitors for the Mother wrote to the solicitors for the Father and advised that the Mother wished the Father to have no contact with the children because of “previous offences of a sexual nature” committed by the Father “on the children”. By letter dated 30 August 2005 the solicitors for the Father wrote to the solicitors for the Mother and advised that the Father denied the allegations.
In August 2005 the Father requested a copy of the birth certificate of the child [G] and he ascertained that it referred to the child as [G] and recorded “father unknown”. The child [I] has the same notation on his birth certificate. Ms S said that during her interview, the Father told her about omissions on the child [G’s] birth certificate, which he had recently obtained. Ms S requested to see the birth certificate at the next session and the Father brought it in. The certificate was dated 24 August 2005. It contained details of the "mother" but the 'father's" details were blank. Only the name "[the mother’s surname]" was on the certificate. The Father then showed Ms S the family's Medicare Card which refers to "[G Lunn]".
On 1 September 2005 the Father received through his solicitors a copy of the Brief of Evidence prepared by Sergeant W and the statement dated 27 July 2005 made by the Mother. The Father was not aware of the sexual abuse allegations until he saw these documents. The Father told Ms S that these allegations changed his life.
The Mother telephoned the Father’s employer and reported that the Father was abusing her. The Mother said she contacted the Father’s employer because she felt that she should tell “the Manager what had happened”. The Father contacted a pastor who had previously counselled the parties in 2003.
On 8 September 2005 the current proceedings were commenced when an application was filed by the Father in the Federal Magistrates Court.
On 16 September 2005 the proceedings for an Apprehended Violence Order were adjourned to 19 September 2005. I was informed that on 19 September 2005 the Father consented, on a without admission basis, to an interim order that would be withdrawn and dismissed at the expiration of six months.
The Mother then swore the affidavit of 22 November 2005 and she contended that the Father had sexually abused the child [G]. I have already referred to some parts of this affidavit. In her affidavit sworn on 14 November 2006 the Mother said that her affidavit of 22 November 2005 was inaccurate in many details “due to my own inadvertence and lack of legal experience”. She contended that she gave her solicitor a large amount of information and when the affidavit was prepared she browsed through it and signed it “and trusted that it was correct. It was not”. She went on to say that there were errors throughout the affidavit and the most relevant and important error was what she said about the behaviour of the child [G]. She said that she saw the child’s head on the Father’s lap and the Father’s fly was undone and at the time she did not suspect that the Father had sexually abused the child [G]. The affidavit of 14 November 2006 in which the Mother purported to make corrections to her affidavit of 22 November 2005 was sworn after the first report of Ms S.
On behalf of the Independent Child Lawyer it was submitted that the only explanation given by the Mother is that her solicitor must have got it wrong and that the Mother had not read through the affidavit, she just signed off on it and even that was the solicitor’s fault because he had put it in front of her and she just had to sign it. It was submitted that this was quite an extraordinary piece of evidence given the details that the affidavit provided of what was seen. It was submitted that having seen both the Mother and maternal grandmother I would not accept that if the Mother had seen something like she contended she did then she would have told a great many people. The Mother gave evidence that simply was not true, that she did not see what she first contended she saw and is a matter of great concern that the sole explanation is to blame the solicitor. It was submitted that it casts doubt, it casts doubt upon the Mother’s credit in relation to all her other evidence. I accept the submissions made by counsel for the Independent Child Lawyer that the explanation given by the Mother for what she said in her affidavit of 22 November 2005 namely, blaming her lawyer, was extraordinary and difficult to accept.
On 13 December 2005 orders were made that the Father have contact with the children from 4.00 pm to 6.00 pm on 14 December 2005; from 4.00 pm to 8.00 pm on 15 and 16 December 2005 and from 10.00 am to 6.00 pm on 17 December 2005 and that such contact be supervised by Mrs T and Mrs A being the paternal grandmother and the paternal great-grandmother. In December 2005 the Father had a number of contact visits with his mother and grandmother as supervisors over a period of a week when they came up from Melbourne
On 22 December 2005 the Mother made a report to the Department of Community Services that the Father had sexually abused the child [G].
By letter dated 2 February 2006 members of the Joint Investigation Response Team wrote to the Father and advised him that in relation to a Department of Community Services report of 22 December 2005 after investigation the complaint about sexual abuse of the child [G] by the Father was not substantiated and no further action would be taken. Ms S spoke to Ms F, a member of the Joint Investigation Response Team, who said that she had undertaken a risk of harm assessment in February 2006. The assessment found that there was no evidence to substantiate the sexual abuse claims in relation to the child [G] and that the child was found to be at emotional risk of harm by the Mother in relation to the Mother queuing the child to make claims and the Mother’s repeated reports of abuse to the Department of Community Services.
The Mother swore on 13 February 2006 and she contended that the child [G] had not disclosed the abuse to the Joint Investigation Response Team interviewer because the Father had told the child that if he told the truth the Father would “kill him with a gun”. Ms S recorded that at no time did the Mother tell her that the Father had ever threatened the child with a firearm.
On 14 February 2006 orders were made that the Father have contact with the children on a supervised basis at the Rainbow Contact Service for a period of two hours each alternate weekend to commence on a date to be arranged between the Director of the contact service and the parties. An order was made that pending commencement of the Father’s contact at the contact service he have contact with the children from 10.00 am to 2.00 pm each alternate Saturday to be supervised by either Mr P or Mr G. An order was also made that the Father have telephone contact with the children on Monday and Thursday from 7.00 pm to 7.30 pm. Orders were also made that each party be restrained from discussing the proceedings to or in the presence of the children or either of them and that they prevent the children being present when any other person discusses the proceedings to or in the presence of the children or either of them and further that each of the parties be restrained form denigrating the other party to or in the presence of the children or either of them and remove the children from any situation in which any other person denigrates the parties to or in the presence of the children or either of them.
Ms S said that the Mother said the Father had applied for contact and he had been granted fortnightly supervised contact at the Rainbow Centre. The Mother told Ms S that the boys did not want to go on these visits because they did not like the Father and:
[The Mother] said that [the Father] is "hurting" the children on contact visits. When asked for details, she said that, on 18.3.05, he had taken the boys to his house (with supervisor present). [The Father] gave the boys sandwiches and then squeezed [G’s] neck. When asked how she knew this had happened, [the Mother] said that [I] told her but that he was too afraid to tell the supervisor.
[The Mother] said that [the Father] argues with her in front of the children "every Saturday" during these visits. She said she has this on tape to prove how [the Father] speaks to her. When asked whether [the Father] knew he was being taped, she said he did not and neither did the supervisor. However, [I] has told [the Mother] that [the Father] is also taping them and that he has a "soundproof tape" under his truck.
[The Mother] said that [the Father] has phone contact with the children twice a week - Monday and Thursday 7.00 p.m. to 7.30 p.m. Sometimes, [the Father] does not call. When he does, [I] tells him he does not want to speak to him, so now [the Father] only asks to speak to [G]. [The Mother] said that once [G] had passed the phone to her and [the Father] had said he did not need supervision and that they could sort it out. [The Mother] claimed that [the Father] had admitted to her over the phone on this occasion that he had sexually abused [G].
[[The Mother’s] notes indicated that she reported this alleged admission to Police on 27.3.06 - see Appendix 4.]
There were no documents from the Police Service however I was given a bundle of documents that related to various Apprehended Violence Orders proceedings. On 16 March 2006 an interim apprehended violence order may have been made against the Father in favour of the maternal grandmother. This was the day on which the interim without prejudice order made on 16 September 2005 was treated as withdrawn and dismissed.
On 30 March 2006 the Father was served with a further Apprehended Violence Order application issued on behalf of the maternal grandmother.
On 2 April 2006 the Mother took the child [G] to an “after hours” medical practitioner alleging that the child sustained sore ribs and a sore chest from being thrown in the air and then caught by the Father during an access visit the previous day. Ms S said that the Mother did not inform her at the time of the interview on 6 April 2006 that on 2 April 2006 the Mother had taken the child [G] to an After Hours General Practitioner alleging that the child had sustained sore ribs and a sore chest from being thrown in the air and then caught by the Father, during an access visit the previous day. The Mother gave the doctor's report to Ms S on 14 April 2006 along with a number of other documents. On this report, the Mother had hand-written that this incident had been reported to the Department of Community Services on 2 April 2006. Ms S said that the doctor's report indicated that, although the Mother claimed the child [G] had sore ribs and chest, when the child was asked by the doctor where he was sore, the child pointed to his abdomen. The doctor reported that the child [I] was also present during this consultation and told the doctor that the child [G] had been thrown in the air 10 times. The Mother gave no evidence in chief about these events.
Ms S interviewed the parents, the children and the maternal grandmother on 6 April 2006 and 14 April 2006.
At this time the Father said that he would like shared parenting of the boys - one week on and one week off. He told Ms S that he could do this because of his flexible working hours. At this time the attitude of the Mother was that the Father should spend no time with the children. Ms S said that when asked what she wanted to happen, the Mother said, "For the (Family) Court to protect the children and for [the Father] to have no contact, 'cause he'll hurt them and get rid of them 'cause the truth is now out, what [G] said". When asked what she meant by the Father wanting to "get rid" of the children, the Mother told Ms S, "Because the truth has come out, he'll get rid of us one by one. (Q) He'll murder us one by one. Even my mother. He called her an evil witch. After court, he tried to throw a punch at my mother". When asked what made her think the Father wanted to kill them, the Mother said, "Because of all the stuff he said to us. (Q.) That he'd hammer my mother. And he had a drill at me when he hugged me. And, on tape, he says, 'You'll pay for this". Ms S reported that the Mother said that, despite these fears, she had no Apprehended Violence Order to protect her and because the Father had not actually punched her, the case had been dismissed. When the Mother was asked how she thought the children would react to contact with the Father being stopped, the Mother said they would be "much happier in themselves". When asked whether she thought the children loved the Father, the Mother said they did not.
In relation to her observations of the children with the Mother and maternal grandmother, Ms S said:
[I] presented as a quiet, well behaved child, "parentified" in his manner. He was very vigilant of and attuned to our (adult) conversation. He would often fill in "gaps" in [G’s] history, when his mother was unable to do so. He was overly-accepting (for a sibling) of [G’s] aggressive play towards him and accepted [G] snatching things he had in his possession.
[G], on the other hand, presented in quite a chaotic manner, even for a 4-1/2 year old. His play was quite aimless and disorganised. He sat for a period on the lounge, with his feet in the toy box, then began kicking the box rhythmically for no apparent reason. It was noted during this session that:
· [G] was quite volatile in his mood, which alternated abruptly between frenetic activity and withdrawal;
· [G’s] play and interaction were quite aggressive;
· [G] had several prolonged periods of blank staring, which seemed like dissociative episodes;
· [G] did not laugh or smile much and often seemed irritable and oppositional;
· [G] was quite dominating (controlling) of both his mother and brother.
At no time did the Mother attempt to become involved in any play with the children. She seemed very focused on talking to me and rather intense and humourless in her manner.
What is important but disturbing is what Ms S then reported:
[The Mother] then spontaneously said that, when she talked to [I] about today's interviews, he had said he did not want to see [the Father] any more. [The Mother] had told him that he had to do it, because the court had said so. She added that [I] will not let her mention [the Father’s] name. [I] did not respond to this discussion. The following conversation then took place in front of the children:
Grandmother: "They (children) don't want this access. They don't like it".
Mother:"But I have to do what the court tells me".
Grandmother: "We protect the boys. We don't like this man to have them, 'cause he hurt them. They are in danger. We don't want access or contact. They are in danger".
[The Mother] did not reassure the children about their safety but angrily went on to tell me about an incident when [G] was 2 and they had visited [the Father’s] mother, [Mrs T], in Melbourne. She said [the father’s mother] had a Rottweiler dog, at which [I] gently corrected her, saying it was a Poodle. [The mother] ignored [I] and told me that the dog had gone up to [G’s] face and growled. [The Mother] said she was "furious" that, even after this, [the father’s mother] did not take the dog out of the house, telling me, "That big dog could rip his whole face out". [The maternal grandmother] added, "He ([the Father]) couldn't care less".
[The maternal grandmother] then began to tell me, quite spontaneously:
Grandmother: "When […]....this man had them, every time they came home, they are sick. But now no contact and they are healthy. Maybe he throws them in the air. We don't want him to have them and take them away and hurt them. He'll say it's an accident. But, no, it's not. He'll get rid of them. We are scared when the children go off with [the Father]".
Mother:"Sometimes, we go to the beach. [The Father] says to climb the rocks. [The Father] has ([G]) on his back. But, if he drops him, he'll kill him". Grandmother: "This man is dangerous" and we don't trust him. He can put the children in front of a car and say it's an accident".
Mother:"When I see [the Father] walking with [G], they are not holding hands".
Assessor:"It is not good to talk about these things in front of the children. It will frighten them".
Grandmother: "No, we don't say it".
Assessor:"But I have just heard you say these things here in front of the children".
Grandmother: "No, we are just telling you".
The children did not overtly react to such conversation, although it was apparent that [I] was listening intently.
Easter was approaching at the time of this interview and I was told that [G] will be getting Easter eggs, whereas [I] will be getting a walkie-talkie, so he is able to communicate with [the maternal grandmother] when she is at her house. (It was not appropriate for me to discuss the reasons for this in front of the children but I did wonder whether this had been purchased as a "safety" gadget for the grandmother. If this is the case, [I’s] role in this is concerning.)
I am also of the view that there is a very significant risk of further abuse of the children if they spend time with the Mother.
The second primary consideration in s 60CC(2) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The term “family violence” is also referred to in two of the additional considerations being s 60CC(3)(j) and s 60CC(3)(i). Then s 61DA(2) provides that the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The term “neglect” does not appear in s 61DA(2).
The term “abuse” is defined in s 4 and the definition suggests that it is confined to assaults, including a sexual assault or sexual activity. The term “family violence” is also defined in s 4 and the definition refers to conduct, whether actual or threatened, that causes someone to reasonably fear for or reasonably be apprehensive about his or her personal well being or safety. In summary, the words “abuse” and “family violence” have been given a special meaning for the purposes of the legislation. The term “neglect” is not defined in s 4. The ordinary meaning of “neglect” includes “to pay no attention to; disregard; to be remiss in care for or treatment of; to omit (doing something), through indifference or carelessness; to fail to carry out or perform (orders, duties ,etc); to fail to take or use; the act or fact of neglecting, disregard; the fact or state of being neglected, negligence”: The Macquarie Dictionary, Second Edition.
The ordinary meaning of abuse includes “to use wrongly or improperly; misuse; to do wrong to; act injuriously towards; to revile; malign; to deceive; wrong or improper use; misuse; insulting language; ill treatment of a person”: The Macquarie Dictionary, Second Edition. The Mother’s conduct clearly falls within the ordinary meaning of abuse. However, it may be that given the definitions of “abuse” and “family violence” in s 4 that the conduct by the Mother which has been described by Ms S and the Independent Child Lawyer as emotional abuse is not abuse or family violence as defined for the purposes of s 60CC(2) and s 61DA(2). If this is so then in my view this would be an unfortunate outcome given the harm that the Mother’s conduct has caused the children and the significant risk of further psychological harm that the Mother’s conduct may continue to cause the children. The Mother’s conduct would fall within the ordinary meaning of “neglect”.
In conclusion, if the Mother’s conduct does not fall for consideration within the second primary consideration then it is relevant when considering the first primary consideration in s 60CC(2)(a) and the additional considerations in paragraphs (b), (c), (e), (f), (i) and (m) of s 60CC(2).
Additional considerations
I am required to consider any views expressed by each child and any factors, such as the maturity or level of understanding of each child, that I think are relevant to the weight I should give to the views of each child. Section 60CD sets out how I may inform myself of views expressed by a child. However, I am not permitted to require a child to express views in relation to any matter: see s 60CE.
In her second report Ms S said that the child [I] expressed a view that he would like his parents to live together but if that could not happen he would like to see the Mother every weekend at the Rainbow Contact Service for more than two hours. He also said that he wanted the visits to occur at the Centre because there was a supervisor present. When asked why there was a supervisor present he said “So they don’t whisper anything. Mum keeps saying every week, ‘You’re coming home” and “It [sic] don’t like her saying this ‘cause it’s not going to happen”. On behalf of the Independent Child Lawyer it was submitted, and I accept, that the child [I] loves the Mother very much and was probably distressed when he was removed from her care and that he has continued to miss her and would like to see her more often.
In relation to the child [G], Ms S said that when the child was asked about the matter to the extent that, given his age, he was able to comment on it, he was asked what he felt about living with the Father and he replied “Only my dad”. When asked “what he meant” the child replied “To live with my Dad”. When asked about the Mother the child [G] said “I want to see Mum and talk to her”. On behalf of the Independent Child Lawyer it was submitted, and I accept, that it is also abundantly clear that the child [G] loves the Mother and that the child would like to continue to spend time with the Mother.
I am satisfied that both children have expressed a view that they would like to continue to live with the Father but also spend time with the Mother.
I am required to consider the nature of the relationship of each child with each of the parents and other persons including any grandparent or other relative of each child.
I am satisfied that the children have a close and loving relationship with the Mother. The children love the Mother and she loves them. However, it became an abusive relationship. There is also a very significant risk that it may continue to be an abusive relationship.
I am also of the view that the children probably have a good relationship with the maternal grandmother and that she loves them. However, it also became an abusive relationship.
I am also of the view that the children have a close and loving relationship with the Father. The relationship between the children and the Father has developed significantly and positively since May 2006 when the children commenced to live with the Father. The child [I] has gone through the process of being totally fearful of the Father to being totally at ease with the Father and enjoying being a member of the household. It is significant that Ms S in her second report spoke about “[t]he most striking feature” of her interview with the child [I] being what she described as the dramatic improvement in the child’s presentation. I also refer to what Ms S said in both reports about the interaction of the Father and the child [G].
I am required to consider the willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between each child and the other parent. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to the child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated. This is an important matter.
On behalf of the Independent Child Lawyer it was submitted that there is no willingness by the Mother to facilitate and encourage a close and continuing relationship between the children and the Father. Until recently, her application was that the child [I] not see the Father at all and that there be very limited supervised contact between the child [G] and the Father. It was submitted that there was never really a compelling explanation given for why the relationship should entirely cease between the child [I] and the only father that he is able to remember. I agree with these submissions.
On behalf of the Independent Child Lawyer it was submitted that there were various matters dealt with in the Mother’s cross-examination which are of concern. As I have already said the Mother gave evidence that although she can not prove that the Father abused the child [G] she still believes that the Father did molest the child and whilst living with her she would feel compelled to warn the child if he was going to be in the Father’s care, and to tell him that if the Father hurt him in any way, he was to come straight to the Mother. It was submitted, and I agree, that this kind of approach, especially given the history, where the child [G] is said to be parroting stories of physical abuse, is very likely to fuel further allegations by the child [G] if not both children. It was submitted, and I agree, that there does not seem to be any real understanding by the Mother. The Mother is distressed in having lost the children but is unable to separate her distress from the children’s needs.
I am of the view that the Mother does not have the appropriate willingness and ability to facilitate, and encourage, a close and continuing relationship between each child and the Father. I am of the opinion that the Mother has failed to fulfil her responsibilities as a parent.
As to the maternal grandmother the position can be dealt with by simply referring to what Ms S said in her first report as to the grandmother: “When asked whether she thought the boys loved [the Father], [the grandmother] shook her head and told me, "I don't think so. [G] calls him '[by his given name]', not 'Dad'. [The Father] is not a good Dad. They don't know him. He abused my grandson. That's the kind of man he is. I am a Christian. There is some kind of Satan in [the Father]".
Ms S in her first report said that the Father presented as a personable young man of normal intelligence. The Father seemed overly-trusting. His narrative was organised and to the point. He was quite undefended in his manner and was able to take some blame for what had happened in the breakdown of his marriage. Despite the allegations made against him, he did not seem overly-negative towards his ex-partner. He seemed more bemused than angry about the allegations, which he denied. The Father’s narrative was very child focused. He spoke warmly about both children and showed good insight into their behaviour/needs.
On behalf of the Independent Child Lawyer it was submitted that the orders the Father puts forward to progress to unsupervised time the children spend with the Mother, and his evidence about his ability to separate his own feelings about what has happened to him, and his own understanding of the needs of the children to have more time with the Mother, was quite impressive. I agree.
I am of the view that the Father does have the appropriate willingness and ability to facilitate, and encourage, a close and continuing relationship between each child and the Mother. I am of the opinion that the Father has appropriately fulfilled his responsibilities as a parent.
I am required to consider the likely effect of any changes in the circumstances of each child including the likely effect on each child of any separation from either parent or any other child or other person including any grandparent or other relative of the child with whom each child has been living.
On behalf of the Independent Child Lawyer it was submitted that the children have already been affected by an overwhelming change in circumstances being removed without notice from their Mother’s household and made a member of the Father’s household. However, the evidence is that the change has been positive for the children, that their emotional health and the child [G’s] physical health has improved. The principal of the children’s school gave evidence that the child [I] is doing better socially, that he at first kept company with children who were not doing him much good but he has now made good friendships and has been given responsibilities in the school. It was submitted that the child [I] has done remarkably well considering the disruptions and the emotional pressure that has been on him right up until the present. I accept these submissions.
On behalf of the Independent Child Lawyer it was submitted that it would be disastrous to change the children’s arrangements again and put them back in the Mother’s household, mostly because they would then be reassured that they have escaped from a dangerous situation. It would also be disastrous because of other parenting aspects including the imposition of routine and bedtimes and mealtimes and the kinds of meals and dental care and all the rest of what evidence was given about. In circumstances it would be entirely detrimental to the children if there was further major changes. I accept these submissions. I am of the view that the father is better able to provide for the needs of each child including their physical and intellectual needs.
I am required to consider the practical difficulty and expense of each child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the right of each child to maintain personal relations and direct contact with both parents on a regular basis.
On behalf of the Independent Child Lawyer it was submitted that there is a little practical difficulty and expense involved in the Mother having additional time with the children in the event that I made the orders sought by the Independent Child Lawyer. The Mother did give evidence that she is in part time work and could be in full time work. Four hours time at the Rainbow Contact Service would cost $160 every second weekend and I accept that this would be an expensive exercise for the Mother having regard to what she earns. However, it was submitted that there is no doubt that if that is what the Mother had to do then that is what she would do because of her concern about the children. I accept these submissions.
I have no doubt that if the children resided with the Mother there would be significant practical difficulties and expense of each child spending time with and communicating with the Father, amongst other things, because there would be further proceedings.
I am required to consider the capacity of each of the parents and any other person including any grandparent or other relative to provide for the needs of each child, including emotional and intellectual needs. This is an important matter.
On behalf of the Independent Child Lawyer it was submitted that each of the parents has the capacity to provide for the intellectual needs of the children. The Father appears to be doing well in terms of his contact with the school and attention to homework. It was submitted that it is probably the case that the Mother could assist in the same way. I do not share the same confidence in the Mother’s capacity given, amongst other things, the evidence in the letter dated 7 June 2006 from the principal of N School in relation to the child [I’s] school attendance. I have already said that in my opinion, the Father is better able to provide for the physical and intellectual needs of each child.
On behalf of the Independent Child Lawyer it was submitted that it is the capacity of the parents to meet the children’s emotional needs that is most significant in these proceedings. I have already found that the Mother has emotionally abused the children. It was submitted that the Mother’s intense emotional need to have the children back in her household has led to her persuading them at every opportunity to fall into line with that and despite reading what they had to say about what they wanted and despite hearing the expert evidence about their progress she has been unable to retreat from that position at all. I agree. It was submitted that it may be that the maternal grandmother’s strong support for opposition to the children having a real relationship with the Father is partly the reason for that as the Mother and grandmother are united and close. I have no doubt that the situation has been made worse by what the grandmother has said and done.
Ms S said that in her view both the Mother and grandmother would be unable to cease putting pressure on the children both about past allegations and about the need for them to come back into the Mother’s household. In particular, Ms S said that the child [I] because of his nature and personality would not be able to withstand that pressure and would not, despite the fact that he will be at high school next year, be able to develop. He would not become self protective. He is anxious, compliant and obedient to the Mother and his grandmother. Ms S suggested that the kind of thing that was happening prior to May 2006 would continue at some level as soon as their was unsupervised time spent with the Mother. There is a significant risk of emotional abuse of the children if they spent time with the Mother.
I am satisfied that the Father has the capacity to provide for the needs of each child, including their emotional and intellectual needs.
I am not satisfied that the Mother has the capacity to provide for the physical and intellectual needs of each child as well as the Father can. I am satisfied that the Mother does not have the capacity to provide for the emotional needs of each child.
I am required to consider the maturity, sex, lifestyle and background including lifestyle, culture and traditions of each child and of either of the parents and any other characteristics of each child that I think are relevant.
On behalf of the Independent Child Lawyer it was submitted that the Court consider the age of these children being eleven and five. The child [I] has the special circumstance where he has been removed from the care of both his biological parents. The child is living in a sole parent household with a man who he knows as his father although he has the knowledge that he is not his biological father and he apparently has some knowledge about who that man is. The child told Ms S that he believed his father was a fireman and that he would like to get to know him. Ms S particularly noted that throughout all the interviews that was the only occasion when the child smiled. The Father’s evidence was that he thought it would be of benefit to the child [I] to know who his father was and far from making him insecure would assist him to understand who he was. On behalf of the Independent Child Lawyer it was submitted that this was an impressive piece of evidence by the Father who might have been competitive in this situation but clearly was not and he has been thinking about the next stage of the child [I’s] development. I accept these submissions.
On behalf of the Independent Child Lawyer it was submitted that the child [G] is a much more robust boy and some of what has happened seems to have passed over the child’s head. On the other hand, according to Ms S he was so annoyed or irritated with being questioned yet again that he was making up silly answers because he could hardly tolerate the subject of whether or not he had been abused and how he felt about his family. It was submitted that he did not have some special sensitivity given what has gone on but it does seem that he is a resilient child and has benefited from having some of his natural ebullience regulated in the Father’s household. I agree. By contrast, I refer to what I previously stated in relation to the difficulties the Mother has had with the care of the child [G] and the Mother’s need to have assistance from First Steps Parenting.
I am required to consider the attitude to each child and to the responsibilities of parenthood demonstrated by each of the parents. In this context, I must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, the extent to which each of the parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to each child and to spend time with each child and to communicate with each child. I also have to consider the extent to which each of the parents has facilitated or failed to facilitate the other parent participating in making decisions about major long term issues in relation to each child and spending time with each child and communicating with each child. I am also required to consider the extent to which each of the parents has fulfilled or failed to fulfil his or her obligation to maintain each child. If the parents have separated I must also have regard in particular to events that have happened and circumstances that have existed since the parties separated.
On behalf of the Independent Child Lawyer it was submitted that the Father has taken on the task of fatherhood in a way that, on his own evidence he never contemplated doing for both the children and there is nothing to suggest that he has not treated them equally as his own. He has paid attention to their overall needs especially at school. Ms S in her second report described how the children presented and that they were much happier children and are doing well at school.
On behalf of the Independent Child Lawyer it was submitted that the Mother has not accepted that for a period of time she was not going to be a full-time parent, find some full-time work and make a financial contribution to the care of the children. The Mother has continued to think of herself as the person who will have the children living full time in her household. In the event that the children do not return to her care, on her evidence, it is her intention to work and to assist in the support of the children.
I am satisfied that the Father has demonstrated an appropriate attitude to each child and to the responsibilities of parenthood. He has adequately fulfilled his responsibilities as a parent.
For reasons which are apparent from what I have already said in relation to other matters, I am not satisfied that the Mother has demonstrated an appropriate attitude to each child and to the responsibilities of parenthood. In my view, she has failed to adequately fulfil her responsibilities as a parent.
I am required to consider any family violence involving each child or a member of each child's family. I am also required to consider any family violence order that applies to each child or a member of each child's family if the order is a final order or the making of the order was contested by a person. The term "family violence order" is defined in s 4 of the Act to mean an order including an interim order made under a prescribed law of a State or Territory to protect a person from family violence. The parties to the proceedings must inform me of any family violence order if they are aware that a family violence order applies to each child or a member of the child's family. In considering what order to make I must to the extent that it is possible to do so consistently with the best interests of each child being the paramount consideration ensure that any parenting order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence: s 60CG(1). I may also include in any order any safeguards that I consider necessary for the safety of those affected by the order; s 60CG(2).
There are no current family violence orders that involve the parties or the children.
On behalf of the Independent Child Lawyer it was submitted that there has been a considerable number of family violence orders involving the parties being an application brought by the Mother against the Father and applications brought by the maternal grandmother against the Father. It was submitted that the Apprehended Violence Order that was sought by the grandmother in 2006 has a pattern to it. On 27 February 2006 an order was made by consent that Ms S would prepare a report and that the family was to be interviewed. On 9 March 2006 a Complaint and Summons for an Apprehended Violence Order was taken out by the grandmother. The parties were interviewed on two occasions in April 2006. There is a statement handed to Ms S by the grandmother on 12 April 2006 saying that she was still very fearful of the Father despite the Mother and the children having moved out and then on 21 April 2006 undertakings were given and the summons was withdrawn. The grandmother’s evidence was that she was not fearful of the Father anymore. It was submitted, and I accept, that it does have the look of convenience.
I am required to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to each child.
On behalf of the Independent Child Lawyer it was submitted that if there was no supervision of time spent by the children with the Mother it is entirely likely that there would be further applications for the children to be removed from the Father’s care on the basis of allegations of abuse of the children in one way or another. It was submitted that supervision would have the secondary effect of protecting the Father in that situation from such further allegations. I accept these submissions.
I accept that there is the possibility of further proceedings if I made the orders sought by the Independent Child Lawyer and the time the children spend with the Mother was supervised and there was no provision for this time to become unsupervised or review mechanism or what is described as a “sunset clause”.
I am required to consider any other fact or circumstance that I think is relevant. There is nothing I want to say about this consideration beyond what I have said elsewhere.
Conclusion – parenting
I am of the view that the presumption of equal shared parental responsibility does not apply as I am satisfied that the Mother has engaged in child abuse and neglect. However, given what I have said above in relation to the special meaning of abuse and family violence, if I am in error in relation to that finding then the presumption has been rebutted because, in all the circumstances, having regard to the findings that I have made in relation to the primary and additional considerations, I am satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
I am of the opinion, that in all the circumstances, it is in the best interests of each child that they live with the Father and that he has sole responsibility for their long term care, welfare and development. This is also the opinion of Ms S.
The important questions that remain are whether the children should spend time with the Mother and if so should such time be supervised and if supervised then for how long should the supervision occur.
I am satisfied that it is in the best interests of the children that they spend some time with the Mother. The children have a close and loving relationship with the Mother and they each want to spend time with her. This is supported by the Father. As well, Ms S was of the opinion that the children need to continue to have some contact with their mother.
The next question is whether the time the children spend with the Mother is supervised and if so whether I should order that at some point in the future it be reviewed or become unsupervised.
The orders first sought by the Father provided for a progression from supervised time to unsupervised time. On behalf of the Independent Child Lawyer it was submitted that long term supervision is not something that is ever regarded as ideal or a solution to conflict between people. However the orders sought by the Independent Child Lawyer do not provide for a progression from supervised time to unsupervised time.
Re C and J (1996) FLC 92-697 Fogarty and May JJ said at 83,341-342:
We do not consider that his Honour is correct in saying that supervised access is “never an appropriate measure in relation to final access orders”. It is unduly restrictive of his discretion in relation to children to approach the matter in that way.
The Court is given a wide range of powers in relation to children both under the previous legislation and the Reform Act. Ultimately the determinant is the best interests of the child. That discretion should not be circumscribed by absolute rules which appear to exclude one of the otherwise available possibilities. In addition, access orders are never “final”. No doubt his Honour was fully aware of that and intended by that comment to indicate that there must be a practical end to litigation and that he was determining the matter at that point for the foreseeable future. But access orders need to be moulded to the particular circumstances of the case and it may be unavoidable in a particular case to make orders for a limited period of time or orders which provide a graduated process and the potential for review depending upon developments. This is especially so in a case of this sort.
…
The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option.
Kay J did not add anything to the discussion for present purposes.
In H v K [2001] FamCA 687 (per Nicholson CJ, Kay and Mullane JJ) there were allegations that the father sexually abused his child which caused the mother deep distress. Although the trial judge was not convinced the accusations were true, he nevertheless ordered that the father have ongoing supervised contact with the child as to do otherwise would upset the mother too greatly and affect her parenting ability and even the child’s relationship with the father. On appeal the father argued the trial judge erred in finding that a change from supervised to unsupervised contact would cause the mother and the child distress, that his Honour failed to give weight to the submission that the trial process would be a cathartic experience for the mother, and that his Honour erred in elevating the mother’s parental anxiety above the other relevant factors. The Full Court allowed the appeal in part. Relevant for the current purpose, the Full Court noted that the “open-ended nature of the supervision order was somewhat unsatisfactory”. The orders left the parties with no mechanism for moving forward. In order to overcome any problems created by Rice v Asplund (1979) FLC 90-725 the orders were amended to grant liberty to apply to vary the orders.
In F v H [2003] FamCA 477 Dessau J said at [123]: “Supervised contact has obvious limitations. It will frequently be inappropriate or untenable on an on-going basis. But in C and J (1996) FLC 92-697 the Full Court emphasised that the court’s discretion should not be circumscribed by absolute rules, excluding, for example, one of the available possibilities, namely on-going supervised contact.” In W v W [2004] FamCA 1167 Dessau J found that the father had sexually abused his four year old daughter but thought supervised contact was appropriate in the circumstances. Her Honour took into account the consideration of making an order that would not lead to the institution of further proceedings in relation to the child and with this in mind, rather than order indefinite supervised contact inserted a review mechanism into the order in light of H v K. The father appealed this decision on the grounds that he did not pose an unacceptable risk to his child and did not indecently assault her. The Full Court dismissed his appeal.
In the recent decision of RG v JR [2006] FamCA 293 the Full Court ordered indefinite supervised contact in the context of a father with mental illness. No general principles were laid down in that case for when such an order may be appropriate, however the Full Court did implicitly accept the trial judge’s considerations of what made such an order suitable in those circumstances. The Full Court also emphasised the value of inserting a review mechanism or “sunset clause” in orders as in the case of H v K. The Full Court said at [107]: “We accept that in many cases the effect on children of indefinite, long term, supervised contact, particularly if such contact is to continuously occur in a children’s contact centre, may not be in a child’s best interests”.
In my opinion, what has been said in the Full Court decisions I have identified above can only be considered as guidelines and that I have the widest discretion to make whatever orders are appropriate in the best interests of the children in relation to time the children spend with the Mother and that supervision without any review mechanism or “sunset clause” is one option.
Ms S was of the opinion that any time the Mother spends with the children should not take place unless it can be supervised by a professional. She said that the deception by the Mother and maternal grandmother at one level is so skilful that untrained supervisors would be “quite out of their depth, with little capacity to set limits”.
I am satisfied that any time the Mother spends with the children should be supervised and that the supervision should be by a professional. This is a very tragic case in which I am satisfied that there has been significant emotional abuse of the children by their mother and grandmother which has caused them considerable harm. If something had not been done then these children could have suffered irreparable long term harm.
I am satisfied that the attitude of the Mother and also the maternal grandmother towards the Father and his relationship with the children has not abated in any meaningful way. The Mother and grandmother wrongly embroiled the children in their campaign against the Father with damaging consequences. Even after May 2006 the Mother and grandmother have continued to place the children under pressure and the children would be at significant risk of further harm if any time they spent with the Mother was not supervised.
There was discussion during the hearing about the possibility of the parties involving themselves in some kind of therapeutic counselling to recover from the litigation and also improve their capacity to be able to communicate about matters affecting the children. However, Ms S was of the view that any “work” that had to be done in that sense is by the Mother and maternal grandmother in coming to terms with the fact that no-one other than the two of them believes that the child [G] has been abused. As counsel for the Independent Child Lawyer submitted, there is little point in forcing people into a situation which is unlikely to lead to a productive result. Importantly, Ms S made clear that for this and other reasons she did not agree with a specific time frame for progression from supervised time to unsupervised time. In all the circumstances I have come to the conclusion that there should not be such a progression and I do not propose to insert any type of review mechanism or “sunset” provision. It may take some years before the situation is overcome.
As to the time the Mother may spend with the children I am going to make the orders proposed by the Independent Child Lawyer subject to one variation. The proposal whereby the Mother may have supervised time away from the Rainbow Contact Service will only take place on one weekend in each four week period. The children should have the opportunity to have an uninterrupted weekend in the care of the Father.
The Independent Child Lawyer sought an order that the Mother shall spend such other and/or additional time with the children as is agreed in writing between the parents after twelve months from the date of the Orders. I had some concerns about this proposal, however I will make such an order on the basis that it will be after eighteen months and next on the clear understanding that it is not a review mechanism and will occur solely at the discretion of the Father. Ms S was pessimistic about anything happening in 12 months. The Father should be able to assess the suitability for the children of any agreement and I have confidence that he would only do what was in the best interests of the children.
The Independent Child Lawyer sought an order that the maternal grandmother may have contact with the children at the contact centre at the discretion of the Director. This was opposed by the Father. I am going to make an order that the grandmother may accompany the Mother on one weekend in each four week period. The Mother should spend time with the children in the absence of the grandmother.
The Independent Child Lawyer sought an order restraining the Father from removing the children from L school without further order of the Court. It was submitted that the child [I] in particular had already been at two schools before he moved to L. Further, that this child needs to finish his primary school education where he is. This was opposed by the Father. I accept that it is very important for the child [I] that he complete his primary school education where he is and I accept that the Father would ensure that this happens. However, I am not going to restrict the discretion of the Father as I am of the opinion that any decision he makes in relation to schooling would be motivated by the best interests of each child.
The Independent Child Lawyer sought an order that the children be brought in to see the Independent Child Lawyer with whom they have had a few encounters to have the orders made explained to them. I propose to make this order.
I am not going to make any orders in relation to the child I spending time with his biological father. I simply note that the Father may make arrangements for the child I to see his biological father.
I urge upon the Mother to seek appropriate professional assistance. The future of her relationship with the children lies in her hands. Given the relationship of the Mother and the children it would be a tragedy if the Mother did nothing.
I certify that the preceding 221 paragraphs are
a true copy of the reasons for judgment
of the Honourable Justice O’Ryan
………………………………………………………..
Associate:
Date: 13 March 2007
Key Legal Topics
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Family Law
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Costs
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Injunction
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Remedies
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