MAGEE & KENNEDY

[2011] FamCA 698

FAMILY COURT OF AUSTRALIA

MAGEE & KENNEDY [2011] FamCA 698

FAMILY LAW - CHILD ABUSE & FAMILY VIOLENCE – eldest child alleges sexual abuse by the father – mother alleges sexual interference with eldest child by half-siblings – mother alleges violence by father against mother and mother’s son and the eldest child – allegations of violence and sexual abuse untested – undefended hearing – father withdraws from proceedings

FAMILY LAW - CHILDREN – parental responsibility – mother is children’s sole carer – father non-compliant with consent orders previously made allowing children to spend supervised time with father – father’s withdrawal from children’s lives over past 3 years – parties estranged – complete absence of parental concord – sole parental responsibility allocated to mother

FAMILY LAW - CHILDREN – with whom a child will live and spend time – children to live with mother

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 60CF, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE
Family Law Rules 2004 (Cth) r 2.05

Goode v Goode [2006] FLC 93-286
MRR v GR (2010) 240 CLR 461

APPLICANT: Ms Magee

RESPONDENT: Mr Kennedy

INDEPENDENT CHILDREN’S LAWYER: Ms Olsen, Boyd Olsen Lawyers

FILE NUMBER: NCC 1303 of 2007

DATE DELIVERED: 5 September 2011

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 24 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Hamilton

SOLICITOR FOR THE APPLICANT: Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Olsen, Boyd Olsen Lawyers

Orders

1. All former parenting orders relating to the children J, born … March 2005, and P, born … March 2008, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

5. Each party is restrained from permitting the children to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.

6. The mother is restrained from causing or permitting the children to refer to the father by any term other than “Dad”.

7. The parties are restrained from causing or permitting the children to be known by any surname other than “[Magee-Kennedy]”.

8. The father is restrained from attending any school at which the children are enrolled without the written consent of the mother.

9. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

10. Each party shall forthwith inform the other, and keep the other informed, in writing of a telephone number or email address by which they are able to contact one another.

11. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

12. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

13. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

14. Costs are reserved for a period of 28 days.

15. Any and all outstanding applications are dismissed.

Notation

(A)No order prescribes the manner or circumstances in which the children may spend time or communicate with the father, which shall be determined by the mother as an incident of her sole parental responsibility for the children.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1303 of 2007

Ms Magee

Applicant

And

Mr Kennedy

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the parenting orders that should be made in the best interests of the two children born to the applicant mother and respondent father.

2. The father withdrew from active participation in the case, leaving the court to determine the issues by reference to the evidence adduced and submissions made by the mother and Independent Children’s Lawyer.

Background

1. The parties met in late 2003 and commenced cohabitation in either July or August 2004.[1]

   [1] Mother’s first affidavit, pars 7, 27.

2. Their relationship was tumultuous, involving several separations and reconciliations. The evidence is unclear as to when the parties finally separated, but on the evidence of the mother it was no earlier than September 2007 and no later than October 2008.[2]

   [2] Mother’s first affidavit, pars 85-87, 118-121.

3. Two children were born to the parties’ relationship. They are:[3]

   a)J, born in March 2005; and

   b)P, born in March 2008.

   [3] Mother’s first affidavit, par 8.

4. The children are presently aged six and three years respectively.

5. Each of the parties had children from prior relationships. The mother’s older son lived with the parties and children sporadically. The father’s older daughters lived with their mother but spent time in the parties’ household. The father’s older son played little or no relevant part in the lives of the parties and children.[4]

   [4] Mother’s first affidavit, pars 9, 15, 16, 18, 20.

6. During April 2007 the parties had a heated dispute which resulted in their separation. The mother then filed proceedings in the Federal Magistrates Court seeking parenting orders in respect of the eldest child, who was then only aged 2 years.[5]

   [5] Mother’s first affidavit, pars 69-75.

7. Interim orders were then made on 8 May 2007, in the absence of the father, providing for the mother to have sole parental responsibility for the child, the child to live with the mother, and the child to spend time with the father under the supervision of a maternal grandparent. In recognition of the father’s absence, it was noted by the Court that the father had been personally served with the mother’s Application.[6]

   [6] Mother’s first affidavit, par 76; Order 1 made on 8 May 2007.

8. The mother’s Application was removed from the Court’s list of active cases with liberty granted to the mother to re-list the proceedings before the Court on 21 days notice.[7]

   [7] Order 6 made on 8 May 2007.

9. During May and June 2007 the child spent supervised time with the father in the manner prescribed by those orders.[8]

   [8] Mother’s first affidavit, pars 78-79.

10. In late June 2007 the parties reconciled and resumed their cohabitation.[9]

    [9] Mother’s first affidavit, par 80.

11. The mother informed the father she considered the relationship at an end shortly following a heated incident involving the father and an unrelated adult at a social function in September 2007.[10] Nevertheless, it was not until November 2007 that the father vacated the home in which the family lived.[11] Even after then, the father still periodically attended the home occupied by the mother and eldest child, although the mother asserted their association at those times was far from amicable.[12]

    [10] Mother’s first affidavit, pars 85-87.

    [11] Mother’s first affidavit, par 89.

    [12] Mother’s first affidavit, pars 90-100.

12. The youngest child was born in March 2008, and the father stayed at the family home with the mother and two children for a week following the mother’s return home from hospital with the youngest child.[13]

    [13] Mother’s first affidavit, pars 101-103.

13. After that week the father continued to periodically visit the home occupied by the mother and children, sometimes as frequently as weekly.[14]

    [14] Mother’s first affidavit, pars 106-117.

14. On 8 October 2008 the eldest child made a disclosure to the mother from which the mother imputed the father had penetrated the child’s vagina with his fingers.[15]

    [15] Mother’s first affidavit, par 118.

15. The mother took the child to a general practitioner the following day, at which time the child apparently reported the father inserted his finger in her bottom.[16]

    [16] Mother’s first affidavit, par 119.

16. The disclosures were reported to the NSW Department of Family and Community Services and the matter was passed on to the NSW Joint Investigation Response Team (“JIRT”) for investigation. The child was interviewed by JIRT officers in November 2008.[17] There is no evidence before the Court about the content of the interview, nor the outcome of any investigation or prosecution of the father. In the absence of evidence to the contrary, I infer that the child’s disclosures were not verified and the father was not prosecuted.

    [17] Mother’s first affidavit, par 120.

17. In any event, other than for consultation with the Family Consultant in May 2010,[18] neither child has had any interaction of any sort with the father since the eldest child’s disclosures were made in October 2008.[19]

    [18] Mother’s second affidavit, par 6.

    [19] Mother’s first affidavit, par 121; Mother’s second affidavit, pars 7-8.

18. The mother commenced these proceedings by filing an Initiating Application in the Federal Magistrates Court on 28 November 2008. She did not avail herself of the liberty granted in May 2007 to revive the proceedings previously commenced in April 2007.

19. On 17 February 2009, interim orders were made suspending the orders previously made on 8 May 2007 in so far as they provided for the eldest child to spend supervised time with the father.

20. The father subsequently filed his Response on 26 April 2009. He has never since amended the parenting orders he proposed therein, which provided for both children to live with him, for him to have sole parental responsibility for them, and for them to spend time with the mother in the terms determined by the Court.

21. On 31 August 2009 the proceedings were transferred by the Federal Magistrates Court to this Court.

22. After release of the single expert’s report in May 2010, interim parenting orders were agreed between the parties and Independent Children’s Lawyer on 7 June 2010.

23. The proceedings were listed for trial on 10 August 2010, but were adjourned for a lengthy period of months because of the parties’ intention to trial further interim parenting orders made on that day.

24. Unfortunately, the interim orders made on 7 June 2010 and 10 August 2010 were never implemented as the father seemingly lost interest in the proceedings.

25. The matter was then listed for trial on 17 August 2011. In view of the mother’s failure to file an update affidavit,[20] and her wish to orally adduce more recent evidence, a further adjournment of the trial was necessary. The trial was adjourned to 24 August 2011 to afford the father procedural fairness by requiring the mother to file and serve an affidavit containing the updating evidence upon which she wished to rely.

    [20] Order 3 made on 24 June 2011.

26. The trial proceeded on 24 August 2011 in the absence of the father.

Proposal and evidence of the mother

1. The mother pressed for the orders set out within her Amended Initiating Application filed on 18 March 2010, which made provision for:

   a)The allocation of sole parental responsibility for the children to the mother (Order 1);

   b)The children to live with the mother (Order 2);

   c)The children to spend supervised time with the father, with the times and circumstances to be agreed between the parties (Order 5);

   d)Restraint of the father from attending the children’s schools (Order 6); and

   e)The obligation of the mother to permit the father’s acquisition of details about the children’s academic and medical progress (Orders 3, 4, 7).

2. In support of her proposal the mother relied upon:

   a)Her affidavit filed on 16 April 2010;

   b)Her affidavit filed on 18 August 2011;

   c)Her affidavit of service filed on 16 August 2011;

   d)The affidavit of service of Ms H filed on 24 August 2011;

   e)The affidavit of Ms G filed on 16 April 2010; and

   f)The report of the single expert witness, Dr R, psychiatrist, dated 25 May 2010.

3. The mother and Ms G were not required for cross-examination by the Independent Children’s Lawyer.

4. The single expert witness was not required for cross-examination by either the mother or the Independent Children’s Lawyer.

Absence of the father

1. The father failed to appear at trial. His appearance was not expected having regard to his apparent withdrawal from the proceedings.

2. The last document filed in the proceedings by the father was his affidavit which was filed well over a year ago on 16 April 2010. At that time the father was legally represented. That affidavit was apparently filed in accordance with procedural orders made on 15 February 2010 in readiness for the final trial fixed for 10 August 2010.

3. On 7 June 2010 the father and his solicitor appeared before the Court when further interim parenting orders were made providing for the children to spend supervised time with the father at a contact centre.

4. The father’s solicitor shortly thereafter filed a Notice of Ceasing to Act on 29 June 2010 and there was no appearance by or on behalf of the father before the Court on 10 August 2010, being the date fixed for trial.

5. On that occasion orders were made with the consent of the mother and Independent Children’s Lawyer, which orders essentially reflected the mother’s proposal for final orders, subject to continuation of the interim regime under which the children could spend supervised time with the father at the contact centre.

6. It was specifically noted by the Court that, in contravention of the interim orders made on 7 June 2010, the father had not registered with the contact centre in the intervening period. Consequently, the children had not spent time with the father as those orders envisaged they would.

7. The matter was then adjourned for a period of nearly a year to 17 June 2011, which date was later administratively changed to 24 June 2011.

8. There was again no appearance by or on behalf of the father before the Court on 24 June 2011. The father was not ignorant of the proceedings. On 6 October 2010 the Court notified the parties in writing that the adjourned date had been changed from 17 June 2011 to 24 June 2011. The letter was sent to the last known address of the father, as disclosed in his former solicitor’s Notice of Ceasing to Act.

9. The matter was then listed for final hearing on 17 August 2011, it being noted the matter would proceed as an undefended hearing if the father failed to appear. It was also noted the father had still not availed himself of the interim orders made in June 2010, and so the children had not seen him over the preceding year, despite the Independent Children’s Lawyer writing to the father inviting him to register with the contact centre.[21]

   [21] Exhibit A tendered on 24 June 2011.

10. The orders and notations made by the Court on 24 June 2011 were served upon the father by post at his last known address, disclosed in his former solicitor’s Notice of Ceasing to Act, on or shortly after 30 June 2011.[22]

    [22] Mother’s affidavit of service filed 16 August 2011.

11. Although the father was aware, from service of those orders, that the trial would proceed on 17 August 2011, there was again no appearance by or on his behalf before the Court on that day.

12. The trial was again adjourned for a week until 24 August 2011. Again the father failed to appear before the Court on that day, despite being served with the mother’s most recent affidavit and being forewarned of the fresh trial date.[23]

    [23] Affidavit of service of Ms H.

13. I am satisfied on the evidence that the father was aware of the trial dates, aware of his entitlement to participate in the proceedings, and aware the matter would proceed in his absence if necessary. I draw the conclusion that he voluntarily decided to take no further part in the proceedings and did not wish to be heard about the outcome of the proceedings.

Proposal of the independent children’s lawyer

1. The Independent Children’s Lawyer supported the orders proposed by the mother.

2. Similarly, the Independent Children’s Lawyer relied upon the evidence of the single expert witness and did not adduce any other evidence.

Summary of parenting law

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought to properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

5. However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode v Goode [2006] FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child – primary considerations

1. The children have meaningful relationships with the mother, who was their primary carer before the parties’ final separation and who has been their sole carer since October 2008. Their relationships with her must obviously be preserved.

1. The relationship of the eldest child with the father is much less important than the one she enjoys with the mother, but it still apparently retained significance for her at the time of her consultation with the single expert in May 2010. The youngest child really has no relationship with the father at all.

2. The mother caused the eldest child to undertake some form of therapy with a person described by the single expert as a “rural family worker” following the child’s disclosure of sexual assault by the father.[24] The single expert consulted with that worker, who revealed that the eldest child referred to the father as “cranky [the father’s first name]”, but confirmed the child made no disclosures to her of abuse at the hands of the father. The child reported to her being fearful about seeing the father.[25]

   [24] Mother’s first affidavit, pars 127-128.

   [25] Single expert report, pages 14-15.

3. At the time the children conferred with the single expert in May 2010, neither of them had experienced any interaction with the father over the preceding 18 months.

4. When asked about the father the eldest child simply said “don’t know” and recited the allegation that “he hurt me…he stuck his finger in my bottom”,[26] which allegation was again later repeated.[27] The eldest child told the single expert “I don’t want to see [the father]”, but that was in the presence of the mother and said in immediate response to the mother’s comment that “[The father] would like to see her [the child]”.[28] The single expert noted the eldest child to be anxious, which she believed was explained by the mother having informed the child that the father could be at the single expert’s office that day. The child professed not wanting to see the father and complained of feeling sick and scared.[29]

   [26] Single expert report, page 3.

   [27] Single expert report, page 4.

   [28] Single expert report, page 3.

   [29] Single expert report, page 4.

5. The maternal grandparents described the eldest child as “not an anxious child”, of which the single expert made particular note,[30] suggesting the child was only anxious about the prospect of interaction with the father.[31]

   [30] Single expert report, page 13.

   [31] Single expert report, page 16.

6. When the father was introduced to the child in the presence of the single expert she was reserved but watched as the father interacted with the youngest child. The reservation of the eldest child soon dissipated. She reverted to referring to him as “Dad” and eventually sought his attention and admiration. At the conclusion of the session the eldest child told the single expert she desired to see the father again.[32]

   [32] Single expert report, pages 4-5.

7. The manner in which the eldest child quickly warmed to the father, despite her initial apprehension, tends to bear out the single expert’s opinion that her fear and anxiety were influenced by the concerns of the mother and maternal grandparents about the father,[33] which concerns must have been impressed upon the child either intentionally or inadvertently.

   [33] Single expert report, page 16.

8. The youngest child interacted with the father unremarkably in the presence of the single expert, at which time he was barely two years of age. The single expert stated the youngest child has no relationship with the father,[34] which stands to reason given that he ceased seeing the father when he was aged only six months.

   [34] Single expert report, page 16.

9. At the time of her report in May 2010 the single expert saw merit in the children spending time with the father, under certain restrictive conditions. No doubt that was the reason for the parties and Independent Children’s Lawyer reaching agreement about trialling interim orders that reflected the single expert’s opinion. Interim orders were made by the Court ratifying that agreement on 7 June 2010, and again on 10 August 2010 in the father’s absence. Regrettably, the father has simply ignored the orders and they have never been implemented. The mother established contact with staff of the contact centre, as the orders required of her, but the father failed to do so. The mother’s intermittent enquiries of the contact centre reveal that the father’s non-compliance with the orders continues.[35]

   [35] Mother’s second affidavit, pars 18-20.

10. Accordingly, notwithstanding their relative short lives, the children have not had any interaction of any sort with the father for nearly three years, other than the brief interaction with him in the company of the single expert in May 2010.

11. The circumstances suggest there is little point to be served in making orders that attempt to establish or reinvigorate the relationships between the children and the father at any point in the immediate future.

12. It may be the children could derive benefit in the mid to long term by restoration of their relationships with the father, but that objective must be considered in the context of the mother’s assertion of the need to protect the children from harm through exposure or subjection to abuse and family violence at the hands of the father.

13. The principal issue of controversy between the parties was the eldest child’s allegation of her sexual abuse by the father, made in October 2008. It was that event which caused the mother to terminate the children’s interaction with the father.

14. When conferring with the single expert, the mother complained about the father kissing and showering with his own daughters and the eldest child in the past, which she said caused her “skin [to] crawl”. In all probability, the mother’s belief in the sexual assault allegation made by the eldest child against the father caused her to retrospectively imbue the father’s practice of bathing the child and putting her to bed with sinister connotations, because she told the single expert it did not “click” with her until after the disclosure was made.[36]

    [36] Single expert report, page 7.

15. The father denied to the single expert he had sexually molested the eldest child. He expressed, or at least implied, that the mother fabricated the allegations of sexual assault to frustrate his stated intention to bring parenting proceedings before the Court because of the mother’s obstruction of the children spending time with him. The single expert described the father’s demeanour to fluctuate between tearfulness and agitation.[37]

    [37] Single expert report, page 10.

16. There are some curiosities about the child’s sexual assault allegations against the father. The mother inferred from the child’s disclosure that the child’s vagina had been penetrated by the father, but the child told the doctor who examined her the following day that it was her “bottom” that was penetrated. Some months later, around New Years Eve 2008, the child announced in the presence of the mother’s friends that the father penetrated her “pee pee”.[38] When the child conferred with the single expert in May 2010 she again said it was her “bottom” that was penetrated.

    [38] Affidavit of Ms G, par 6.

17. It is clear that the child differentiates between her “pee pee” and “bottom”. What is far from clear is whether or not the child alleged or inferred that her sexual abuse occurred more than once. If only once, then the child’s references to different parts of her anatomy when relating the allegation is worryingly inconsistent. If it occurred more than once then it is plausible both her vagina and anus were penetrated at different times.

18. It must also be remembered the child apparently made no disclosure at all to JIRT when formally interviewed in November 2008 about the allegation. Why she would not be able to explain the event to specially trained officers despite speaking freely of it to strangers both before and after her JIRT interview is perplexing.

19. The evidence adduced about the alleged sexual assault falls considerably short of establishing the child actually was sexually abused by the father, at least by reference to the standard of proof contemplated by s 140(2)(c) of the Evidence Act 1995 (Cth). The evidence that was adduced remained untested due to the father’s withdrawal from the proceedings. I draw no inference that his withdrawal was motivated by a consciousness of guilt. His motivation might simply have been exasperation with undue difficulty he perceived in seeing the children, or lack of funds to contest the litigation, or lack of interest in the outcome, or a myriad of other reasons.

20. It is inapposite to reach any conclusion about the magnitude of risk to the child of sexual abuse at the hands of the father because of the lack of precision in the evidence and the absence of thorough evaluation of that evidence. In any event, in final submissions, the mother essentially contended there should be no orders prescribing the time to be spent by the children with the father because of the father’s voluntary severance of the relationships, not because of any unacceptable risk of sexual abuse.

21. Nevertheless, by reason of the statements made by the eldest child about her sexual abuse by the father to various people, including the single expert, she seems to believe in the allegations, irrespective of the truth of the allegations. The child has been instilled with a sense of wariness about the father, which must influence any arrangements made for the child’s future interaction with the father. Her belief in the occurrence of her sexual abuse needs to be handled as sensitively as if she has been sexually abused.

22. Apart from the allegation of sexual abuse of the eldest child, the mother made serious allegations about the commission of abuse and family violence by the father, in both her affidavit evidence and in comments to the single expert. Her allegations were florid and puzzlingly inconsistent.

23. In evidence the mother alleged the father’s gross physical abuse of her,[39] her son,[40] and her son’s school teacher.[41] The mother alleged the father threatened her on different occasions that he would cut both her throat and that of the eldest child,[42] and bury her in a hole.[43] The mother also alleged that on another occasion the father said he would kill himself.[44]

    [39] Mother’s first affidavit, pars 36-38, 95-97.

    [40] Mother’s first affidavit, pars 28, 33-34, 36, 99.

    [41] Mother’s first affidavit, par 32.

    [42] Mother’s first affidavit, par 69.

    [43] Mother’s first affidavit, par 107.

    [44] Mother’s first affidavit, par 74.

24. When conferring with the single expert, the mother complained about the father’s physical abuse of the eldest child, which she described as “flogging”, and which allegedly caused more than transient physical injury to the child in the form of “welts”.[45] The mother also alleged the father was cruel to the family pets by hitting and kicking them.[46] The mother also alleged the father threatened, separately to both her and the eldest child, that he would shoot the mother’s entire family.[47] The mother also alleged the father had twice tried to run her off the road and made gestures to her of cutting her throat and shooting her.[48] None, or at least few, of those allegations were made by the mother in the affidavit she filed in April 2010, only weeks before her consultation with the single expert.

    [45] Single expert report, page 7.

    [46] Single expert report, page 7.

    [47] Single expert report, pages 7, 9.

    [48] Single expert report, page 9.

25. The mother’s allegations were flatly denied by the father to the single expert.[49] The single expert had “concerns” about the “accuracy” of the mother’s allegations and concluded the mother was afflicted by “DSM type B…maladaptive personality traits”.[50] Nonetheless, the single expert formed the view that the father “minimised his behaviours”, which had been serious enough to warrant two of his ex-partners to obtain family violence orders against him restraining his behaviour.[51]

    [49] Single expert report, page 11.

    [50] Single expert report, page 16.

    [51] Single expert report, page 17.

26. None of the mother’s allegations of violence have been tested and no corroborative evidence has been adduced or tendered. Nor has the father been tested on his denials. The evidence is therefore necessarily in a raw state. Even so, given the state of the evidence, I consider it likely the father did act violently at times, but that the mother’s allegations were exaggerated to some extent.

27. There clearly remains a need to be mindful of the children’s exposure to family violence in the event the parties interact with one another, but I have real reservations that the children are genuinely exposed to the risk of physical abuse by the father.

Best interests of the child – additional considerations

1. There were family violence orders made in the past against the father for the protection of the mother, but I infer they have long since expired.[52] No party filed any family violence order in these proceedings, which they were obliged to do if any such order was current (s 60CF; Family Law Rules 2004 (Cth) r 2.05).

   [52] Mother’s first affidavit, pars 38, 51, 107-108.

2. As for their relationships with extended family members, the children are very familiar with the maternal grandparents, but not the paternal grandparents.[53]

   [53] Single expert report, page 4.

3. The father’s decision to withdraw from the children’s lives is a significant issue in these proceedings. The mother alleged, not only did the father fail to implement the interim parenting orders made in June 2010 and August 2010 so as to enable the children to spend time with him, but the father has shown so little interest in the children he has not even sent them cards or gifts on any occasion since October 2008.[54]

   [54] Mother’s second affidavit, par 22.

4. The father conceded to the single expert he had not sent cards or gifts to the children, but his exculpatory explanation was that he did not know where the mother lived, and even if he did, he believed the mother would have him “locked up if he had gone to her place”.[55] The mother conversely alleged the father was well aware how he might contact the maternal grandparents, but the father has not utilised them as a conduit to the children.[56]

   [55] Single expert report, page 11.

   [56] Mother’s second affidavit, par 23.

5. The father’s apparent disinterest in the children is also manifest from the small amounts of child support he has paid for them. In the 2009 financial year the father paid a total amount of $2,033, notwithstanding his employment. However, since July 2009 the child support payments made by the father have totalled little more than a few hundred dollars at most.[57]

   [57] Mother’s first affidavit, pars 134-135; Mother’s second affidavit, par 9.

6. When the mother conferred with the single expert in May 2010 she reported the eldest child felt the need to hide from the father for fear the father would find her.[58] Following her session with the single expert and the father at that time, the child felt the necessity to inform the mother, with a sense of relief, that the father had not hurt her.[59]

   [58] Single expert report, pages 2, 6.

   [59] Single expert report, page 5.

7. The children are apparently known publicly by the surname “[Magee]”,[60] rather than the surname “[Magee-Kennedy]”, by which name they are described in both the mother’s Amended Application and the father’s Response. The mother explained to the single expert that the eldest child made the decision about the change of surname. I do not accept that evidence, even though the mother was not challenged about it. It is inherently unlikely that a child, then barely five years of age, decided to change her surname of her own volition. It is probable the mother orchestrated the change of surname for the children. In the absence of her cross-examination, the honour of her motives can only be the subject of speculation.

   [60] Single expert report, page 3.

8. The circumstances of the eldest child’s fear of the father and her use of a new surname omitting the father’s surname permit an inference that the mother is not desirous of promoting the children’s relationships with the father. Presumably the mother would say she has good reason for such an attitude, given the eldest child’s allegation of her sexual abuse by the father, but that of course is not an established fact. It is plausible the father’s apparent disinterest in the children is a response to what he perceives to be alienation of the children from him, caused by the attitude of the maternal family members. The state of the evidence does not permit any reliable conclusions to be reached. However, it is clear the excision of the father from the children’s lives is now entrenched and the mother sees no benefit in the reversal of that state of affairs.

9. The mother adduced evidence about the father’s use of illicit drugs during their relationship years ago, presumably to prove his lifestyle is incompatible with that of a responsible parent, but the evidence was so historical it is really now of no forensic use.[61]

   [61] Mother’s first affidavit, pars 24-26, 64-66.

10. The residence of the mother and children has not been particularly settled. According to the maternal grandparents’ report to the single expert, the mother and children have moved residence six times.[62] Clearly that is undesirable. It would be preferable for the mother to find secure accommodation, if she has not already done so, and permit the children to form stable friendship groups.

    [62] Single expert report, page 14.

11. The mother also alleged the father’s daughters had sexually interfered with the eldest child on two occasions, about which the mother was concerned, but about which the father was dismissive.[63] The father denied to the single expert that he had ever witnessed his own daughters playing with the eldest child in a sexualised manner.[64] The evidence is now of little probative value. The incidents are alleged by the mother to have occurred in 2006 and the father’s daughters are now, or nearly, adolescent. The prospect of their molestation of either child in the future seems quite remote, even if they were likely to spend time together, which is highly improbable.

    [63] Single expert report, page 6; Mother’s first affidavit, pars 53-61, 67.

    [64] Single expert report, page 10.

Parenting orders

1. The finding of the father’s past commission of some form of family violence precludes operation of the presumption that equal shared parental responsibility for the children should be allocated to the parties.

2. Even if the presumption did apply, it would be rebutted by the evidence which unassailably establishes the complete absence of any parental concord between the parties. They are utterly estranged, such that the prospect of them conferring over an issue of importance to the children is non-existent. I accept the submissions of the mother and Independent Children’s Lawyer to that effect.

3. Parental responsibility must be allocated solely to one parent, which decision is necessarily bound to the decision about with whom the children will live.

4. In light of the history, it is inexorable the children must live with the mother, but it is as well to acknowledge that the single expert supported that outcome. The single expert professed “significant welfare concerns” about any change to the children’s residence with the mother.[65] The single expert did not regard the father as possessing the stability necessary to handle the role of primary carer for the children.[66] The opinion of the single expert is compatible with the proposal of the mother and Independent Children’s Lawyer about the children’s residence.

   [65] Single expert report, page 17.

   [66] Single expert report, page 17.

5. That leaves for consideration the issue as to the children’s interaction with the father.

6. The single expert concluded that by reason of the sexual assault allegations and the eldest child’s fears of him, the time spent by the children with the father should be supervised.[67] The single expert’s recommendation was that the children should spend restricted and supervised time with the father every 3-4 weeks for a period of 12 months at a contact centre in order to achieve two outcomes – firstly, the de-sensitisation of the eldest child to her fears about the father, and secondly, to permit the development of a relationship between the youngest child and the father.[68] The single expert proposed a review assessment of the situation in 12 months.[69]

   [67] Single expert report, page 17.

   [68] Single expert report, page 18.

   [69] Single expert report, page 18.

1. That opinion was expressed by the single expert in May 2010. Interim parenting orders were made in June 2010 and August 2010 conformably with the single expert’s recommendation, but a period of more than a year has since past, during which time neither child has had any interaction of any sort with the father.

2. Given the father’s disinclination to avail himself of the orders made in June and August 2010 providing for the children to spend supervised time with him, the mother submitted it would be a pointless exercise for the Court to formulate final orders making similar provision, because the father’s attitude would likely remain unchanged. I am persuaded by that submission. But for the brief consultation with the single expert in May 2010, the children have not spent time with the father for nearly three years. The father has done nothing to remedy that situation. He has not arranged for them to see him at the contact centre under orders permitting him to do so. Nor has he even taken steps to communicate with them. The litigation has now been pending since November 2008. It needs to be concluded with final orders.

3. The mother, with the support of the Independent Children’s Lawyer, previously proposed the Court make orders specifying that the children spend supervised time with the father at times agreed between the parties.[70] But that proposal must be regarded as superseded by the final oral submission by the mother that no specific order should be made.

   [70] Amended Application filed 18 March 2010, Order 5.

4. I decline to make any order making provision for when, or the circumstances under which, the children spend time and communicate with the father. It may be that in time the father will revive his interest in the children, or the children will develop an interest in seeking out the father. If and when that time arrives the mother will decide, as an incident of her sole parental responsibility for the children, whether and how that interaction occurs. Of course, once the children are adults they can decide for themselves what relationships they pursue.

5. I accept the logic of the mother’s proposal that the father be restrained from attending the children’s schools.[71] Such an outcome follows from the determination that the mother should decide when and how the children spend time with the father. An order is made to that effect, but conditional upon the mother’s provision of written consent, rather than in the form of an unconditional injunction.

   [71] Amended Application filed 18 March 2010, Order 6.

6. In the event the current situation remains unchanged, the orders require the mother to take steps to ensure the father may remain informed about the children’s medical and academic progress. The mother proposed orders in similar terms.[72]

   [72] Amended Application filed 18 March 2010, Orders 3, 4, 7.

7. The orders also require the parties to keep one another informed of an avenue by which they are able to retain contact with one another for the purposes of implementing the orders. The mother is desirous of keeping her residential address confidential,[73] so the orders require mutual provision of a telephone number or email address.

   [73] Mother’s second affidavit, par 10.

8. Whether or not the children or father revive interest in one another, it is important the children remain conscious of their paternity. To that end the orders require that the children refer to the father by the name “Dad” rather than by his first name “[…]” in conversation and continue to use the hyphenated surname by which they were known, and continue to be known by the parties themselves. The retention of those names may make the restoration of the children’s relationships with the father easier should the need arise in the future.

9. Finally, an order is made requiring the parties to avoid circumstances in which the children will be exposed to denigration of the parties. Such an order could hardly be the subject of rational opposition.

10. I am satisfied for those reasons that the orders reflect the best interests of the children.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on Monday, 5 September 2011

Associate: 

Date:  5 September 2011.