M and M & Anor

[2008] FCWA 25

[2008] FCWA 25

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	M and M & ANOR [2008] FCWA 25
CORAM	:	THACKRAY CJ
HEARD	:	19 & 20 FEBRUARY 2008
DELIVERED	:	20 FEBRUARY 2008
FILE NO/S	:	PT 6929 of 2003
BETWEEN	:	M
Applicant/Father
AND
M First Respondent/Mother
B Second Respondent
Catchwords:

CHILDREN - With whom a child lives - children aged 4 and 5 - children live with their mother - status quo - mental health issues - allegation of sexual abuse - risk of emotional harm

CHILDREN - With whom a child spends time - unacceptable risk of abuse by father - supervision - risk will decrease with time - with whom children live and spend time to be reviewed in future

Legislation:

Nil

[2008] FCWA 25

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Cole
First Respondent	:	Mr M Berry
Second Respondent	:	Self Represented
Independent Children's Lawyer	:	Ms J Taylor

Solicitors:

Applicant	:	Terrace Law
First Respondent	:	Bannerman Solicitors
Second Respondent	:
Independent Children's Lawyer	:	Legal Aid WA

Case(s) referred to in judgment(s):

M and M [2007] FCWA 23

[2008] FCWA 25

1 It is not my usual practice in dealing with matters as important as these to give

what are called ex tempore reasons; however, I am shortly going on an extended period of leave and I have a number of outstanding judgments to complete before I go on leave. It would be difficult for me to prepare detailed reasons in relation to this matter if I were to reserve my decision.

2 I trust it is apparent in any event from the earlier judgment that I have given in

this matter, [M and M [2007] FCWA 23], that I have what I hope is a fairly good appreciation of the dynamics that are involved in this matter. The primary findings that I have had to make concerning the family are of course set out in my judgment delivered on 9 February 2007, following the hearing on 7 to 10 November 2006.

3 That judgment speaks for itself, but paragraph 172 of the judgment, to which

reference has again been made today, really indicated the difficult balancing exercise that is involved in this matter. At that time, I found that, whilst there was no finding that the father had abused the children in the way that the mother feared, because of a combination of factors I had sufficient concerns to make me conclude that at that stage he posed an unacceptable risk of abuse to the children.

4 I also, however, found that the mother's conduct in relation to the children

presented risks to the children. At that stage I concluded that the risks that she posed were of a less serious nature than the risks he posed. Therefore, I made the decision that I did, which involved [Christian], who was born in January 2003 and [Annabelle], who was born in January 2004, living with their mother, but having what was fairly extensive contact with their father, that is, from Saturday morning to Sunday afternoon every week, except every eighth weekend, and for a week of each of the mid-year holidays and half of the Christmas holidays.

5 I concluded at paragraph 172 of my judgment by saying:

“Whilst I have found that [the father] poses an unacceptable risk of abuse to the children at this stage, it may be the case that he will not pose such a risk when the children are much older. Alternatively, the risks he poses to the children may become less than the risks [the mother]’s behaviour poses. From her perspective, it is therefore important she does all within her power to provide the children with a less chaotic home life and she should therefore continue to work closely with DCD. It is also vital that she desists from suggesting to the children that they are being, or have been, sexually abused.”

6 The orders that I made at that time were orders until further order of the Court.

My firm intention in writing my judgment (and concluding it in the way that I did) was that the future in relation to the care of these children very much depended upon the conduct of the mother and, in particular, in relation to the ongoing suggestions to the children that they had been sexually abused.

7 Since then, the matter has been back before the Court on a number of occasions.

Principally, the issues of importance that have arisen since that judgment were that on two separate occasions the children have undergone examinations and investigations arising out of further suggestions of sexual abuse. It is true, as Mr Berry has very

[2008] FCWA 25

properly pointed out on behalf of the mother, that on two of the instances, involving however only the child [Annabelle], there were physical symptoms associated with [Annabelle]'s genitalia giving rise for concerns at least about her health. On those occasions the investigation process was formally set rolling by independent third parties; either the doctor or the day care people.

8 What has emerged from the evidence, however, in the process of considering

those examinations and investigations is that the mother has continued, notwithstanding what was said in my judgment, to lead family, friends and, more significantly in this context, professionals, doctors, school teachers and people at day care to believe that there is a serious risk that [Christian] and [Annabelle] will be - or have been - abused by their father. Hence, for example, even at the beginning of this year the new school teacher was asked to be hyper-vigilant in relation to the children.

9 The question then becomes whether or not this desire for hyper-vigilance is also

being imparted to the children by the mother, whether consciously or subconsciously. The evidence leads me to infer that they are in fact, either consciously or unconsciously, being led to believe they are at risk in the care of their father. This can be inferred from a number of things:

(a)	firstly, my impression of the mother and her evidence and from what she has been telling third parties;
(b)	secondly, from what I accept the children have been telling their father and [Mrs B] when they are in their home and the way in which they behave when they are in their home; and
(c)	thirdly, evidence of things such as the diary entry of 19 August 2007.

10 In relation to that diary entry, the mother gave evidence in her affidavit that

following a contact visit she observed a mark on one of the children and she then began a process of cross-examination suggesting that the child might have been hit by the father. What the mother had overlooked when she swore her affidavit containing the relevant statement is that the children at that stage had not seen their father since the last weekend in July and that any bruising or marks that might have been evident at the time would have had nothing whatsoever to do with the father. Yet, in her own diary, there is an acknowledgment that a suggestion was made to the child that there may be some connection between the injury to the child and the behaviour of the father.

11 I therefore conclude, notwithstanding what I said in my judgment after the last

trial and what has been said in subsequent court hearings, that the mother continues to instil in the children concerns and fears about their father. I found in the previous judgments that I delivered in the course of 2007 that the mother's belief that the father may have physically interfered with the children after the last trial is without foundation. I won't repeat all that I said on those occasions, but I found that [Mrs B] had been providing an extraordinary degree of supervision of the contact arrangements and I am quite satisfied that there has not been any opportunity for the children to be abused.

[2008] FCWA 25

12 I have seen, however, at least some possibly encouraging signs concerning the

mother. I repeat what I said in the course of the interchange with the Independent Children’s Lawyer that – at least in Court – the mother is now able to present herself in a different fashion than she did on the previous occasion. She is at least able to acknowledge slightly more readily the possibility that there are innocent explanations for things that she observes concerning of the children and the things that she hears from the children. The difficulty, of course, remains that she acknowledges that she is unable to accept that the father poses no risk and I don't blame her for that. I have myself indicated that it is not possible to exclude risk factors in this case and there are aspects of the father's previous history that give rise to concern. But what I am having great difficulty in accepting is:

• the mother’s inability to accept that [Mrs B] is providing the level of supervision that she says she is;

• the mother’s inability to accept that the children are not being physically molested by the father whilst under supervision by [Mrs B]; and

• her apparent inability to refrain from saying things to the children to make them believe that they have or that they are at risk of physical or sexual abuse from their father.

13 The mother has said that she is about to engage on a short course of counselling

with [Ms P] on the recommendation of [a staff member] from DCP to assist her to better manage her own reactions to the children when these sorts of issues arise. [Dr W], the single expert, is somewhat pessimistic about the prospects of the counselling having any impact upon the mother, given the amount of counselling that she has had in the past.

14 I am not convinced that the mother is unable to make some gains from such

counselling. In fact, I think that there is the prospect that she might make some progress, but it is a fairly faint hope and the actions of the mother since the hearing do lead me to have some serious concerns about the likelihood of her turning around the way in which she behaves. That said, one needs also, as Mr Berry has submitted on behalf of the mother, to look at the evidence which is very positive on the mother's side.

15 The children are, and it is not contested, well looked after. The evidence from

the school principal, the teacher and the day care is that these children are not only well looked after but that they fit in well in the school, they socialise well and there are no issues of concern as far as the school is concerned. I accept that [Mrs B] and/or the father are also capable of providing at least as adequate a standard of care as the mother provides, but I can't ignore the fact that these children now have largely been brought up in the care of their mother. Admittedly they have been having regular contact with their father, but I accept the evidence of [the DCD staff member], who has known the family for some time and whose evidence I unquestionably accept, that the mother and the children have a very close and affectionate bond. It would be a serious step indeed to make as substantial a move away from the current position as the father is proposing.

[2008] FCWA 25

16 I might just pause there to note the competing applications that are before the

Court. I have firstly the proposal of the mother that is contained in the Papers for the Judge filed on 18 February. Effectively she seeks no change from the current arrangements, other than that the weekend time be re-arranged so that she has the children each alternate weekend and so that the father has each alternate weekend from 5.30 pm on Friday to 5.30 pm on Sunday. Although not noted in her minute, the mother also seeks the discharge of an injunction that was made last year against her close friend, [Ms A].

17 The father's proposals are set out in a document filed on 15 February. He seeks

that the children live with him; that the children spend two out of three weekends with mother from Friday afternoon after school to commencement of school Monday; and there be an equal division of school holidays and various other orders.

18 [Mrs B], who has intervened in the proceedings and whose position in the family

is well-known and documented in my judgment, also seeks orders from the Court. Her position effectively is that in the event the court decides that neither the mother or the father are appropriate persons with whom the children should live primarily, then she would be prepared to have the children live with her on the basis that the father could see the children at her home and that the mother would have whatever contact the Court saw as being appropriate.

19 I might just observe in relation to [Mrs B] that, were it not for her, the

difficulties that the Court, the family and, more particularly, the children face would be insurmountably more difficult than they are. She has provided the basis upon which the children can continue to have an ongoing and satisfactory relationship with their father. The parents should both be exceedingly grateful to her. The children, I'm sure, would be grateful to her for the role that she has performed, the maturity that she brings to bear in relation to these very difficult issues and the fact, as I say, that she has carried out supervision in an absolutely exemplary fashion under what must have been quite difficult circumstances.

20 Those are the competing applications. The Independent Children’s Lawyer, who

has had significant and most helpful ongoing involvement in this matter, proposes a further temporary arrangement where the father's time with the children would be extended from the current Saturday to Sunday arrangement on seven out of eight weekends to Friday afternoon to Monday morning on seven out of eight weekends. Her proposal is for this to continue during school holiday periods, but she has acknowledged that there may be an issue in relation to giving both parents an opportunity to have some more extended time away with the children, which would not be possible if the contact were to be always arranged as she has proposed.

21 The Independent Children's Lawyer proposes that the father immediately, and

without any supervision, be able to take the children to and from school. She proposes that the mother and the father engage in counselling. The counselling she has in mind for the mother at least is that involving [Ms P]. For the father, it would be a form of counselling that does not require him to acknowledge that he has ever sexually interfered with these children, but may address some of the personality issues that have been mentioned in, for example, the earlier report from [Ms C]. She proposes that, once that counselling has concluded, the father's time with the children be

[2008] FCWA 25

unsupervised and that in the interim, rather than that the contact be under supervision, it be called “in the presence of” [Mrs B] - and I think the intent there is to indicate that [Mrs B] would not need to supervise quite as meticulously as she has been.

22 The Independent Children’s Lawyer proposes that after a period of six months

there would be a review of those new arrangements and that the Court at that time would receive a report from whatever counsellor had been engaged to work with the father, a report from the counsellor who had worked with the mother and a further report from the school.

23 The Independent Children’s Lawyer has also made a suggestion that there be

some alternative arrangement concerning the children's medical treatment. Her preference would be that [Mrs B] be given responsibility for organising this, but she acknowledges that there are some logistical problems associated with that. One possible suggestion that has come up in the course of discussion between myself and the Independent Children’s Lawyer is that there be an appointment of a fresh medical practice where the child could be taken without there being file records, for example, suggesting that the father might be a paedophile and a doctor who has formed an opinion that the father may well have abused the child.

24 In relation to [Ms A], the Independent Children’s Lawyer proposes the discharge

of the injunction on the basis that there be an order preventing [Ms A] from questioning the children. Mr Berry, counsel representing the mother, suggests that the more appropriate course would be to obtain an undertaking from [Ms A]. Although I didn't hear from the Independent Children’s Lawyer about that, I'm sure that she would agree that that is an appropriate way to proceed, and I note she nods her head in agreement.

25 I will deal first with the issue about [Ms A]. The injunction that was made last

year prevented her only from being alone with the children; she was not stopped from seeing the children and her children were not stopped from seeing the children. She is greatly offended by the injunction having been made. I must say [Ms A] made a poor impression upon me in the witness box. She was quite unnecessarily hostile. I think that she is quite narrow-minded in her approach to this matter and has no balance at all. I find her a most unsatisfactory witness. That said, she is a very good friend of the mother. The mother said that she is like a sister to her, she confides in her and she has actually had the children living with her or staying with her, it emerges from her evidence, to a far greater extent than I had previously understood – several occasions of four or five days at a time. It seems on the evidence that the children are fond either of her or her children, or probably both, and that they probably enjoy having sleepovers at her home.

26 The father is concerned about [Ms A] having any unsupervised time with the

children, if I can put it that way, or away from the care of the mother, but the Independent Children’s Lawyer proposes the lifting of the injunctions. I am in two minds in relation to this matter. As I say, I formed a poor opinion of her. I do have some reservations in relation to whether she is in fact likely to desist from questioning the children. It is my conclusion that, whilst I may be prepared to lift the current injunction when this matter comes back for a review, I am not going to lift it at the present time. I am hoping that the mother will, between now and when the matter

[2008] FCWA 25

comes back before the Court, desist from questioning the children and cease putting fear into them about their father being a risk to them. I have concerns at the moment about [Ms A]'s ability to also desist from such behaviour. In my view, if I can use the expression, it may “queer the pitch” to have her thrown back into the mix at this time by once again allowing her to have time alone with the children. The oral application for the discharge of the injunction concerning [Ms A] is adjourned to be relisted at the time the matter comes back before the Court for review.

27 The next issue concerns counselling for the parents. The mother already has an

arrangement for the counselling to commence. I am quite confident, because of her proven capacity to engage with outside agencies, that she will take part in that and take part, I hope, with an open mind with a view to learning new ways to deal with the anxiety that she feels when the children make “disclosures” to her.

28 As far as the father is concerned, he has indicated complete willingness to

engage in any counselling of any sort that falls short of him being required to acknowledge that he has abused the children. I have no criticism of him for his refusal to engage in that sort of counselling given the position that he has put before the Court. He is in a complete bind, needing on the one hand to appear to be doing something to satisfy the Court's concerns, but on the other hand knowing that there are no services available for those accused of sexual abuse who are not prepared to acknowledge that they are indeed abusers. I do think nevertheless that there is the possibility that, like all of us, the father can probably benefit from some professional assistance in dealing with some aspects of his personality functioning. In this regard it is good to hear [Mrs B]'s evidence that at home with the children the father is more warm and empathetic than he presents to strangers, but if he was able to learn ways of relating to others in that same warm fashion, then there may be some advantage to be gained. The father has indicated his preparedness to be involved in such counselling and therefore I am going to make an order along the lines proposed by the Independent Children’s Lawyer.

29 The main question, however, relates to whether there should be changes to the

time that the children spend with each of their parents. I understand the mother's position. The current order involves the father spending what would be perceived to be the great majority of “quality time” with the children and gives her very little opportunity to engage in the sorts of more leisurely and less structured activities that occur outside the school week. Had things panned out differently since the trial, it may have been appropriate for me to give some consideration to extending the length of the weekends, but reducing the number of weekends in the father's care. However, things haven't panned out as might have been hoped. I have ongoing concerns about the mother's influence on the children, intentional or unintentional, leading the children to have fear of their father and concerns about their father. At this stage, in my view the time is not right for a variation of the weekend contact to allow the mother more weekends with the children.

30 In coming to that decision, I appreciate that they spend most of their time at

school, or pre-school or day care, but she has them most mornings, she has them in the afternoons after school and in the evenings, and she has them one full weekend out of eight. In my view, that is sufficient opportunity for the children to continue to enjoy what I have found to be the very close and loving relationship that they have with their

[2008] FCWA 25

mother. So I'm not prepared to make the changes to the orders that the mother
proposes.

31 I am also not prepared to make the changes the father proposes. I accept

Mr Berry's submission that there really isn't anything other than the passage of time to change the risk assessment that I made on the last occasion. Passage of time ultimately will be important because, as I've said in my previous judgment, the risks, such as they are, will become less and less as the children mature, improve their verbal skills and are able to protect themselves to a greater extent than they can now. But at the present time, apart from the risk factors that really haven't changed, the strength of the bond between the mother and the children is such that to make the orders that the father understandably proposes would be to take matters too far at this time.

32 I stress, however, that the comments just made related to matters as they stand

“at this time”. I accept the submission of the Independent Children’s Lawyer to the effect that if matters in the children’s lives persist as they have been, then it will become necessary for the Court to consider a wholesale change in arrangements for the care of the children, involving them either living with the father and [Mrs B], or [Mrs B] alone. This may become necessary in order to ensure that the children do not continue to live in an environment where they are persistently exposed to concerns about their safety and about potential abuse.

33 In my view, what has occurred since the last hearing warrants some variation in

the arrangements for the children so that they do in fact spend greater periods of time with the father. By this means, if the time does come when it is appropriate for the children to move into the father's care on a full-time basis because the mother fails to desist from her conduct, then it will not be as big a step as it would have been if the contact arrangements were to be left as they currently are. The issue, however, is whether or not the increased contact which I intend to order, should be “in the presence” of [Mrs B] until the father's counselling has finished and then unsupervised, as the Independent Children’s Lawyer has proposed.

34 I am troubled about the burden – these are not her words - that [Mrs B] feels has

been imposed upon when supervising contact. It is a matter of concern that she can't even go to the toilet without feeling the anxiety she expressed today. I am not satisfied that such a strict level of supervision as she has imposed upon herself is required. On the other hand, I am not satisfied that it is appropriate yet to make an order that would allow the contact to become unsupervised because, as I have said, the risk factors as far as the father is concerned have not changed sufficiently to make it appropriate to depart from the reasons I expressed on the last occasion. But I think that it is appropriate to make an order that the contact between the father and the children be “in the presence” of [Mrs B], rather than under her supervision. The difference between the two is probably not great. She will still need to be there when the children are with their father. By changing the form of words, I want to convey to [Mrs B] the message that she does not have to be as hyper-vigilant as she has been to date in undertaking supervision of the contact.

35 I also bear in mind that if the contact arrangements were to become unsupervised

straight away (or after what may be a period of fairly short counselling), the mother's anxieties would be increased. This would make it less likely that the mother would be

[2008] FCWA 25

able to desist from questioning the children and encouraging them to be hyper-
vigilant.

36 Whilst I appreciate the inconvenience that supervision imposes on both the

father and [Mrs B], I am not yet persuaded that it is time to remove the supervision. In coming to that decision, I do take into account that it is a blessing that [Mrs B] and the father have a good association. I hope that the father now understands [Mrs B]'s position in putting forward her proposal for residence; that she was not in any way suggesting she had any concerns about the father, but simply providing the Court with an alternative. I have taken into account that he has lived with [Mrs B] in the past and that the children have a good relationship with her. Whilst it is an imposition upon the father it is not an intolerable imposition to require [Mrs B] to be present.

37 As far as the proposed review in six months' time is concerned, I think it will be

helpful for the Court to continue to monitor the matter. I have got to stress to you [the mother] that I am unimpressed and I'm disappointed that you have not been able to get “the message” that I gave on the last occasion, but I have seen at least a few signs during this hearing that you are now better able to get “the message”. I will be watching very carefully because I think that the orders that I am making today demonstrate I am quite serious in what I am saying. I have done it in other cases. I will do it in this case. If the children continue to be led to believe that their father is going to abuse them, led to believe that he is a person to be worried about, I will have little alternative, as Mr Berry has acknowledged in his submissions, than to go the next step. I am not wanting to go there. I won't go there unless I am satisfied that it is necessary to go there. But I can assure you, I will if it becomes necessary.

38 So there will be a review and I would like to hear then from both parties’

counsellors about what gains they have made. I would like to hear from the school and anybody else that the Independent Children’s Lawyer thinks may be able to provide me with some assistance to keep an eye on what is happening at the expiration of say six or nine months from now.

39 As far as the medical issue is concerned, for a number of reasons, I don't think it

is practicable for [Mrs B] to take on the role suggested by the Independent Children's Lawyer. However, I do consider it is time for the children to have a new doctor, somebody presumably in the area of the mother's new home, and somebody who has not been told anything about the matters that have been discussed in these proceedings. There is no need for the doctor to know anything other than that the children live with the mother and that they visit their father. So I will be ordering that there be an appointment of a new doctor - I will say a doctor acceptable to the Independent Children’s Lawyer. So I would suggest that the mother finds somebody that is convenient and nice and that their name is then conveyed to Ms Taylor and she can confirm that the person is an acceptable person.

40 As far as the continuation of contact arrangements during the school holidays is

concerned, I think that [Mrs B] and the father should have the chance to take the children away on a holiday, as they were planning to do last holidays. This needs to be built into the arrangements. The mother needs a similar opportunity, although she does have that chance by the way in which the weekends fall because there is one

[2008] FCWA 25

period in every two months in which there is no contact effectively between one
weekend and the one weekend two weeks later.

41 Although I do think it is appropriate that the form of orders include the

opportunity for both parents to be able to take the children away for a holiday, I otherwise consider that there is merit in the proposal made by the Independent Children’s Lawyer to simply continue the regular care arrangements for the children during holiday periods. Apart from anything else, this may reduce disputation of the sort that occurred during the last Christmas school holidays.

42 One other proposition that was put by the Independent Children’s Lawyer

concerned the possibility of the father being able to take the children to and from school without [Mrs B] being present. Notwithstanding what I have said concerning risk factors, I accept that that is an appropriate outcome. It will give the father some brief opportunity to be with the children alone. By definition both children are going to be with him together, which of itself, in my view, is a reduction of the risk factors. The fact that they will be leaving from the home of [Mrs B], going to school and then coming from school and going immediately to the home of [Mrs B] is a further reduction in risk. In my view it is perhaps the first small step towards normalisation of the arrangements between the father and the children. The other advantage of that proposal is that it gives the father the opportunity to commence being involved in the children's school, getting to meet other parents and getting to meet the teachers.

43 Now, for understandable reasons I don’t have a Minute of proposed orders from

the Independent Children’s Lawyer. That being the case, I will ask her to prepare a minute arising out of the orders that I've foreshadowed and submit it to me (noting that I have already made the order concerning [Ms A]). To assist with preparation of the Minute, I will ask that a transcript of my reasons be prepared as soon as possible.

44 Although my long-service leave is meant to begin next Friday, it's not going to –

I will be “round”. So if you don't have the Minute by then, don't worry, I will be here for some time. But you will no doubt provide it to the other counsel and they will confirm, I trust, that what you've proposed is in accordance with the reasons. If there's any dispute, then the matter will need to be relisted before me, which means of course that it would be desirable, if possible, that you get it done by next week.

45 I just want to say, [to the father], I know that you are again disappointed by what

I've done. I know you don't agree with what I've done and I cannot be certain whether what I've done is right, but I just ask that you accept that my fundamental obligation is to try and look after the children. I have to act in accordance with the evidence and what I think is right. So I regret very much if I've got it wrong because it would be a pretty awful position to be in your position if I have got it wrong.

46 To you, [to the mother], I repeat what I said. You have to be really careful.

We've talked about “last chances” and so on. Can I assure you this is a “last chance”. I was really impressed by the way you presented in Court, which was quite different from how you were last year. I do think there are some signs that you're getting your act together and I appreciate it has been difficult for you as well. It's not very nice for either of you to have these legal proceedings hanging over your head, but you've got to

[2008] FCWA 25

try and stop saying even little things that make the kids think there's something wrong
with the father.

47 And to you, [Mrs B], I repeat, thank you very much for everything that you've

done in assisting the Court and assisting this family. And thank you, counsel, for your
assistance. The court will adjourn.

I certify that the preceding [47] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate