FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALAVE & RATCLIFFE (No.2) | [2017] FCCA 1074 |
| Catchwords: FAMILY LAW – Parenting – allegations of alienation – the court having previously made findings that this was a hybrid case of realistic estrangement, enmeshment and alienation – whether a change of residence should be ordered at this stage – whether one final effort should be made for child to spend time with mother. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Pavli & Beffa [2013] FamCA 144; (2013) 48 Fam LR 677 |
| Applicant: | MS MALAVE |
| Respondent: | MR RATCLIFFE |
| File Number: | MLC 5843 of 2012 |
| Judgment of: | Judge Riley |
| Hearing dates: | 19, 20 and 21 December 2016 and 1 and 2 May 2017 |
| Date of last submission: | 2 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 24 May 2017 |
REPRESENTATION
| Counsel for the applicant: | Mr Williams |
| Solicitors for the applicant: | Pearsons Lawyers Pty Ltd |
| Advocate for the respondent: | In person |
| Solicitors for the respondent: | None |
| Counsel for the independent children’s lawyer: | Mr Marchetti |
| Solicitors for the independent children’s lawyer: | Victoria Legal Aid |
UPON THE UNDERTAKING of Ms L of (omitted), in the State of Victoria (“Ms L”) until 2 November 2017 to supervise and facilitate X born on (omitted) 2004 (“X”) spending two hours per fortnight with her mother, or arrange for Ms M of (omitted), in the State of Victoria (“Ms M”) to do so,
AND UPON THE UNDERTAKING of Ms M until 2 November 2017 to supervise and facilitate X spending two hours per fortnight with her mother, or arrange for Ms L to do so,
THE COURT ORDERS THAT:
The mother post letters of apology to Ms L and Ms M.
Until further order, X spend two hours per fortnight with her mother under the supervision of Ms L or Ms M commencing on the fourth Sunday after the mother posts the letters of apology to Ms L and Ms M.
Until further order, X’s time with her mother be spent (hobby omitted) or engaged in such other activity as Ms L or Ms M reasonably chooses.
Until further order, the father facilitate X spending time with her mother pursuant to these orders, including by ensuring that suitable times and places are arranged, and by genuinely encouraging X to attend the sessions with her mother.
Each party have liberty to apply on short notice.
The matter be adjourned for final hearing on 1 November 2017 at 10am.
IT IS NOTED that publication of this judgment under the pseudonym Malave & Ratcliffe (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5843 of 2012
| MS MALAVE |
Applicant
And
| MR RATCLIFFE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders in respect of X, who was born on (omitted) 2004 (“X”) and Y born on (omitted) 2001 (“Y”). However, ultimately, no orders were sought in respect of Y.
The first proceeding
The court has previously given a very long final judgment in relation to X and Y in Malave & Ratcliffe [2015] FCCA 201, which was handed down on 5 February 2015 (“the 2015 judgment”) following eight days of hearing in December 2014. The 2015 judgment sets out the history of the matter, which I adopt for the purposes of these reasons.
At this point, it is sufficient to note only a few things from the 2015 judgment. The matter has a very long history. The parents physically separated on 26 June 2012, when the mother moved out of the family home. After separation, the five children of the relationship remained living in the family home with their father, and became estranged from their mother.
The mother commenced proceedings on 29 June 2012, when the matter was docketed to Judge F Turner (“the first proceedings”). The first proceedings were redocketed to me in about November 2014.
When the mother filed her first application, X was seven years old. She will soon be 13 years old. X is the youngest of five children, namely, Ms L, who was born in (omitted) 1993, and who is now 24, Ms M, who was born in (omitted) 1994, and who is now 23 years old, Mr L, who was born in (omitted) 1997, and who is now 19 years old, and Y, who was born in (omitted) 2001, and who is now 16 years old.
There were two family reports written in the first proceedings. They were prepared by Ms B and Ms J.
Ms K’s report was dated 24 September 2012. It was ordered by Judge Turner and prepared for an interim hearing. Ms K noted:
During the appointment for this report, [the mother] presented as calm and coherent, but with a level of limited insight about the welfare of the children. [The mother] emphasised [the father’s] role in purportedly alienating the children from her. Instead of discussing their development with a focus on their needs, [the mother] emphasised the children’s relationship with her and focussed on attributing [the father’s] role as the cause of the difficulties. For example, in relation to Ms M, [the mother] said ‘I had a good relationship with her until 3 years ago. [The father] undermines my authority with her … she says she doesn’t want to see me again.’ (emphasis added)
…
During the report appointment, [the father] presented as calm, rational and coherent. He discussed the children’s needs in detail and interacted warmly with each of them. All five children interacted equally warmly with [their father], and during the observation, the atmosphere was warm, co-operative and playful.
…
All five children present as healthy and well cared for. They were co-operative, articulate and forthright in expressing their views about the family relationships. All expressed positive views about [the father’s] parenting and conveyed a wish to remain living with him.
…
Ms L said that she would continue to be in contact with her mother, but would remain living with [her father]. Ms M said ‘I won’t talk to mum again … she shouldn’t have the children … life with Dad is better, there is no fighting’. Mr L said ‘I’m not stressed any more, it was all her yelling. She’s aggressive … I don’t want to talk to Mum. She just walks away; she can’t be bothered. I’m not trying to be mean, but there’s nothing I like about her’. Y said ‘I’m only going to see Mum because of X. I don’t trust her because of what she’s done … some days I want to see Mum, but other days I hate going.’ Y said that he would choose to see his mother ‘every one or two weeks’. X said that she would choose to see her mother ‘every second Sunday, but I’m not fussed about Wednesday’.
…
While [the mother] denies the claims [of neglectful, abusive and inappropriate parenting], she also acknowledges that the children’s relationships with her - particularly Ms M, Mr L and Y – [are] in need of repair. However, instead of assuming some responsibility for the difficulties with the children, [the mother] seems to accuse [the father] of alienation. It was noted in the Department of Human Services documents that [the mother] declined the offer of professional family support. [The mother’s] own family history suggests ruptured relationships with significant caregivers, as well as sexual abuse that seems to have been inconclusively addressed. …
… the assessment of statutory authorities, [and] reports by [the father] and all five children at interview for this report, suggest that [the mother’s] ability to provide competent parenting has not always been consistent.
…
[The mother] did not demonstrate symptoms of psychiatric dysfunction. She was rational and coherent, despite her focus on [the father] as the cause of the difficulties with the children. …
It is more likely that [the mother] has enduring personality features that might compromise her functioning in intimate relationships such as marriage and parenting. If this is so, then professional input that provides skill development in communication and behaviour management around parenting may benefit [the mother] and facilitate the repair of her relationships with the children. Professionals such as Ms Z … and Ms B … who have experience in family law matters, would be appropriate. (emphasis added)
…
It is unfortunate that it was not until the Department of Human Services threatened intervention - as recently as 2012 - that [the father] seems to have been more proactive in the children’s care. Nevertheless, at the time of the appointment for this report, [the father] demonstrated not only willingness but ability to care for the children’s development, welfare and safety, given the children’s positive response to his assumption of primary parenting, reported not only to me by each child, but from my observations of the children interacting with [their father].
Ms K made no recommendations about Ms L and Ms M, due to their ages, but recommended that:
a)Mr L, Y and X live with their father;
b)Mr L spend time with his mother in accordance with his wishes;
c)Y and X spend time with their mother each Sunday from 10am until 6pm, and the additional three hours they had been spending with their mother be suspended; and
d)after the property proceedings had been resolved and after the mother had commenced parenting counselling, consideration be given to Y and X spending alternate Saturdays and Sundays with their mother.
Judge F Turner made interim orders in accordance with Ms K’s recommendations on 5 October 2012, but they were not substantially complied with. Indeed, Y and X spent virtually no time with their mother following the orders of 5 October 2012, notwithstanding various attempts at therapeutic counselling with Ms I. The substantive application remained on foot.
The first contravention application: 20 September 2013
The mother filed a contravention application on 20 September 2013, alleging that the father had not facilitated X spending time with her mother. Judge F Turner found that the father had contravened the orders but that he had a reasonable excuse, being the need to protect X’s health as she was very stressed at the prospect of seeing her mother.
Application for interim change of residence: 7 October 2014
On 7 October 2014, the independent children’s lawyer filed an application for a change of residence on an interim basis. That application came before me on 25 November 2014 and was supported by the mother. I made orders for an urgent family report, listed the matter before me for final hearing on 3 December 2014 and arranged for the matter to be redocketed to me.
Ms J’s evidence
Ms J prepared a family report dated 2 December 2014. Ms J considered that the mother had been abusive towards the older children and that this was not a case of severe alienation. Ms J was opposed to a change of residence. She recommended that X continue to live with her father, but participate in a reunification program with her mother. More particularly, Ms J said in her report:
90.It is my view that X is confused and suffering anxiety which would be expected under the circumstances in this matter. For the last almost three years, X has been very caught in the middle of her parent’s conflict and disputes. There has been no let up. In addition, X lives with her four older siblings who alleged that [the mother] was abusive to them and as a result they have completely cut [the mother] off from their lives and their relationships with her. X lives in a household which is hostile toward [the mother] so it would not be surprising that X would suffer nightmares and feel highly anxious about spending time with [the mother]. These effects would prevail with or without specific alienation [by the father]. The impacts suffered by X may be as a result of alienation by [the father], or may be as a result of the hostility from her four older siblings toward [the mother] or may be a combination of both. On the other hand, it may be that [the mother] has physically, emotionally and sexually abused all four older siblings or some of these siblings and as a result [the father] has been genuinely protective of X. [The father] also maintains that he was suffering ill health and hospitalised in March 2014 as well as in July/August 2014 which prevented him from facilitating X spending time with [the mother] and from participating in the PEP.
91.[The father] maintained that X suffered greatly prior to participating in the PEP while Ms I observed X to take time to start some engagement with [the mother] and that she slowly made some progress with this but X continued to request a third party be present so she could feel safe.
92.It is my view that Ms L was not convincing that as a child she had been abused by [the mother] and in fact said when asked about her relationship as a child with [the mother], “I wouldn’t say it was bad, the house was a pig sty...” Ms L said that [the mother] did not abuse her but she did abuse Ms M. It is my view that Ms L feels caught in the middle of the conflict between [the mother] and [the father] but that she has chosen to align with [the father] and support his position against [the mother] but at the same time Ms L witnessed abuse and she may have genuine concerns about X.
93.It is my view that Ms M had a conflictual and troubled relationship with [the mother] through her childhood and that she more than likely suffered abuse from [the mother] which has left her feeling hurt and angry toward [the mother]. Ms M has no trust of [the mother] and she is fearful that [the mother] may treat X the same way that she was treated.
94.It is my view that Mr L was not an abused child to the extent that Ms M was but he would have been exposed to the abuse of Ms M which has left him with confused, sad and angry feelings toward [the mother]. Mr L has aligned with [the father] as well as with his siblings and having observed Ms M being abused by [the mother] would feel genuinely protective of X.
95.It is my view that Y has suffered abuse by [the mother] which was post separation, he was also allegedly abused by the maternal grandmother and maternal uncle in front of [the mother] which has left him with a cut off relationship with [the mother] and again contributed toward him feeling genuinely concerned about X spending time with [the mother] and fearing that X may be abused.
96.As can be seen it is not a black and white situation amongst the children. The five children are not just repeating the same allegations in rote form and they do cite individual stories which would not be expected if this was just a matter of alienation. In addition, the five children range in age from ten to twenty-one which would also be a major task to alienate five children to such an extent. At the same time one must wonder where [the father] was all through the children’s childhoods for the children to have suffered to the extent that is now alleged. While [the father] claimed that he was busy working in my view it is not acceptable that abuse such as has been claimed was happening under the same roof which included [the father] living there. It is my view that it is highly possible the allegations have taken on their own life and may have grown out of proportion including the allegations of child abuse and violence (alleged by each parent about the other). The life of the allegations (some of which in my view may be based on fact as mentioned above) has spiralled out of control to the point where it has become difficult to reverse. It has reached the point where the four older children would not participate in any interventions for the reunification with [the mother]. It is my view that it is not just [the father] who may be alienating X from [the mother] but that it may also be the projection by the four older children into X of their perceived views of [the mother]. It must also be taken into account [the mother’s] behaviour, parenting and attitude toward the children. There is in my view a combination of factors that influence X to reject [the mother], some may be based on fact and actual experiences of some of the older siblings but some may have been taken out of proportion and/or exaggerated so that X has reached a stage where she feels genuine fear of [the mother].
97.I note that at the time of the family report prepared by Ms K dated 24 September 2012, X said that she would feel ‘happy’ spending time with [the mother] every second Sunday so clearly since that time the dynamics have changed greatly to the extent X now rejects [the mother]. Ms I was of the view that a little progress was being made through the PEP but then [the father] sabotaged this. Whether [the father] deliberately set out to sabotage X spending time with [the mother] is in my view a matter to be tested in Court. Clearly from Ms I’s view [the father] became unco-operative and disrupted the process of reunification that had been started. In my view [the father’s] claims now need to be tested in Court.
98.If it is found that [the father] has alienated X from [the mother] then there needs to be a resolution to this. There would need to be a weighing up as to whether there is a risk that X may suffer more damage if removed from the care of [the father] and from her siblings who she has lived with all her life as opposed to the risk of emotional damage to X if she is unable to re-establish her relationship with [the mother]. Given that it is highly likely that Ms M was abused through her childhood and that Y also suffered some abuse post separation then some of the fears held by the children and by [the father] about X being with [the mother] may be based on fact so rather than being unrealistic (delusional) fears there is some basis to some of the fear felt by the four older children. It is my view that X may suffer a great deal of emotional damage if she was separated from her siblings. At the current time X suffers anxiety (regardless of how this came about) so to remove her from her siblings would in my view result in X’s anxiety greatly increasing. She would find herself without sibling support so she would have a sense of isolation and despair. In addition, nothing is known about [the mother’s] partner Mr J who X has not even met.
99.It is my view … on balance that some abuse of some children has happened but it is difficult to establish the extent. Taking into account that X has not lived with [the mother] for two and a half years, she is currently rejecting [the mother] and she has not met [the mother’s] partner Mr J and there may be a risk to X based on some of the claims made by the older siblings, X’s anxiety may increase drastically and X would be separated from her four older siblings who she has some dependence on including support. X would be separated from the parent she has been dependent on for the past two and a half years.
100.It is my view that at this time X should live with [the father]. This must be on condition that X continues to attend the PEP at the Family Law Centre with Ms I.
In her oral evidence, Ms J said, among other things:
… I actually have an excellent article … about how to work with families such as this. And it doesn’t mean it would be successful, just as it doesn’t mean it would be successful if X [were] to go and live with her mother. Either way, there’s certainly no guarantee that it will work effectively. I think in the article that I mentioned the other day there was mention of maybe about 60 per cent of children are able to re-establish their relationships with their other parent, if they’re not removed, if they’re given the opportunity to continue to work at re-establishing without having the drastic step of removing them from the home that they are living … in at that time.[1]
[1] Page 573 of transcript of the first proceedings – the reference to an article was to Saini M, Johnston J R, Fidler B J and Bala N, Chapter 13, ‘Empirical Studies of Alienation’ in Kathryn Kuehnle and Leslie Drozd (eds), Parenting Plan Evaluations: Applied Research for the Family Court (Oxford University Press 2012) 399.
In her cross examination by the father’s counsel, the following exchanges occurred:
What do you say would be the immediate effect upon X and her psychological state should she be removed from her family unit, even on a temporary basis?‑‑‑Look, I think that there would be a very high risk of X’s emotional wellbeing suffering. There would be a risk that she could detach herself, that she could withdraw. There would be a risk that X would see that as a punishment, and so a very real risk of X suffering long-term emotional damage.[2]
[2] Page 573 of transcript of the first proceedings.
…
If there was abuse and if there is a continued denial of that abuse, doesn’t that exacerbate the risk of that abuse continuing in the future?‑‑‑Well, it would be a very sad state of affairs if there was abuse, if the person wasn’t taking responsibility for that abuse, because that would hinder any therapy, any therapy at all from working.[3]
[3] Page 574 of transcript of the first proceedings.
In the 2015 judgment, the court rephrased that last item of evidence rather more bluntly as follows:
526.From the mother’s side, things also need to change. Ms J said very clearly that, if the mother does not accept responsibility for her actions, any therapeutic process would be doomed. The mother must acknowledge that she has been violent and abusive for there to be any hope of improvement in her relationships with her children. The mother ought to apologise to her children for her behaviour. Unlike her apology about cutting off the services, her apology needs to be genuine. As Ms B noted very early on, the mother lacked insight. She will probably need professional assistance to understand the impact of her actions on the children and to properly word any apology.
Conclusion of the first proceeding
Ultimately, the court concluded that this was a hybrid case of some realistic estrangement, some enmeshment and some alienation.[4] The mother and the independent children’s lawyer submitted that there should be a change of residence on a final basis, contrary to the recommendations of Ms J. However, the court preferred Ms J’s view and made the following final parenting orders (“the final orders”):
[4] [515] of the 2015 judgment.
(1)The mother and father have equal shared parental responsibility for X, born on (omitted) 2004 (“X”) in relation to major long term issues about:
(a)X’s name; and
(b)changes to the X’s living arrangements that make it significantly more difficult for X to spend time with a parent.
(2)The father have sole parental responsibility for X in relation to all other major long term issues including:
(a)X’s education (both current and future);
(b)X’s religious and cultural upbringing; and
(c)X’s health;
on the conditions that:
(d)the father contact the mother in writing and provide his views about any such issue;
(e)the father consult with the mother with regard to any such issue;
(f)the father and mother make a genuine effort to come to a joint decision about any such issue; and
(g)if no agreement is reached between the parents, then within 14 days the father make the final decision and advise the mother in writing of the decision about any such issue.
(3)X live with her father.
(4)Within seven days:
(a)the independent children’s lawyer provide a copy of these orders and reasons to Ms B; and
(b)the mother and father take all steps necessary to engage the services of Ms B to assist them to reunify X with her mother.
(5)The mother, the father, X, Mr L, born on (omitted) 1997 (“Mr L”), and Y, born on (omitted) 2001 (“Y”), and, if they wish, Ms L, born on (omitted) 1993 (“Ms L”), and Ms M, born on (omitted) 1994 (“Ms M”), attend upon Ms B as she directs.
(6)The mother, the father, X, Mr L and Y and, if they wish, Ms L and Ms M attend such courses or counsellors as Ms B directs.
(7)Each parent provide a copy of these orders and reasons to any counsellor if Ms B so directs.
(8)The mother and father pay in equal shares the costs of their and any of the children’s attendances on Ms B, and any course or counsellor she directs any of the children to attend.
(9)The mother pay the costs of any course or counsellor Ms B directs her to attend individually.
(10)The father pay the costs of any course or counsellor Ms B directs him to attend individually.
(11)The father be restrained from allowing X to attend upon Ms S unless Ms B recommends otherwise.
(12)X spend time with her mother:
(a)between 2pm and 4pm each Saturday commencing on 8 August 2015;
(b)between 1pm and 6pm each Saturday commencing on 5 September 2015;
(c)between 10am and 6pm each Saturday commencing on 3 October 2015;
(d)between 10am each alternate Saturday to 6pm the immediately following Sunday commencing 31 October 2015; and
(e)such other or additional times as the parents may agree.
(13)Changeover occur outside Coles at the (omitted) Shopping Centre or otherwise as the parents may agree.
(14)Until further order, the father be restrained from abusing, insulting, belittling, rebuking or criticising the mother to or in the presence or hearing of X and from permitting any other person to do so.
(15)Until further order, the mother be restrained from abusing, insulting, belittling, rebuking or criticising the father to or in the presence or hearing of X and from permitting any other person to do so.
(16)The mother be restrained from hitting X or using any form of corporal punishment against her.
(17)The mother be restrained from verbally abusing X.
(18)The appointment of the independent children’s lawyer be discharged on 5 February 2016.
Aftermath of the first proceeding
The parents did not follow the final orders. Although the appointment of the independent children’s lawyer was not discharged until 5 February 2016, being one year after the date of the 2015 judgment, the independent children’s lawyer did not oversee compliance with the orders.
Instead of undertaking family therapy with Ms B as ordered, the parents entered into a parenting plan on 1 May 2015. The effect of the parenting plan was to remove the requirement to undertake family therapy with Ms B. The parenting plan said:
We, Ms Malave and Mr Ratcliffe, agree as follows:
1.That the orders made on 5 February 2015, in the Federal Circuit Court of Australia, at Melbourne, remain in full force and effect, other than the agreed amendments and additions to those orders which are outlined below.
2.Ms Malave and Mr Ratcliffe agree that they will both receive copies of school reports for X and Y.
3.Ms Malave and Mr Ratcliffe agree that X and Y will be encouraged, but not forced, to attend (omitted)’s birthday celebration in (omitted) and that the older children will be invited to attend.
4.Mr Ratcliffe and Ms Malave agree that X and Y will be encouraged, but not forced, to reunify with their extended maternal family.
5.Mr Ratcliffe and Ms Malave agree that a birthday celebration dinner will occur on (omitted) 2015 and a Mother’s Day celebration will also occur (which may coincide with the celebration referred to in paragraph 3) and that X and Y will attend, and the older children will be invited to attend.
6.Ms Malave and Mr Ratcliffe agree that special occasions including birthdays, Mother’s Day, Father’s Day, Christmas and other special days will be acknowledged by the children and Ms Malave and Mr Ratcliffe.
7.Ms Malave and Mr Ratcliffe agree that if Mr Ratcliffe is not able to care for the children, due to death or illness, then Ms Malave will be the parent with the care of the children.
8.Mr Ratcliffe and Ms Malave agree and acknowledge that in no way does order 2 of the orders made 5 February 2015, distract from the importance of Ms Malave’s role.
9.Mr Ratcliffe and Ms Malave agree that the children will not attend upon Ms B, and therefore agree that orders 4, 5, 6, 7, 8, 9 and 10 no longer apply.
Ms Malave and Mr Ratcliffe understand that whilst the agreements contained in this parenting plan are not legally enforceable, they have been agreed upon a basis of goodwill with the intention of upholding them in the best interests of X and Y.
This parenting plan has been developed through the process of family dispute resolution with Ms A and Ms K.
In addition to the time spent with the mother specified in the parenting plan, for some months, the mother, the father, X and Y went (hobby omitted) each Friday evening and later each Sunday evening. Y attended the (hobby omitted) evenings from February to April 2015. X attended the (hobby omitted) evenings from February to August 2015. The mother claimed that she spent other times with X and Y as well. The mother also claimed that she made dinner for the family once a week between February and August of 2015 and delivered the meals to the father’s workplace.
The mother said that Y stopped attending the (hobby omitted) evenings in April 2015 because the father told him that it was the mother’s fault that the family home was being sold. The mother said that X stopped attending the (hobby omitted) evenings in August 2015 after the father said that the mother had physically and sexually assaulted Y some years prior to separation.
On 25 June 2015, Y participated in a videoed interview with the (omitted) Sexual Offences and Child Abuse Unit. The video was played to the court. [5] Y said in the interview that his mother had sometimes watched him in the shower and had twice put her hand on his groin when he was 10 or 11 years old.
[5] Exhibit 6.
In July 2015, Y attempted suicide by overdosing on tranquilizers. He was subsequently admitted to a psychiatric facility on multiple occasions.
On 11 May 2016, the police decided not to authorise charges due to insufficient evidence.[6] The police record relating to this issue is as follows:
[6] Exhibit 7.
1.I have noted the reports from DLSC (omitted) and yourself in the attached brief regarding the circumstances surrounding the alleged sexual assault (Indecent Act Child Under 16 Years) incidents involving the complainant, Y and the accused, MS MALAVE (his natural but estranged mother). I note the reasons that [have] been included in the reports to support the recommendation that the proposed charges be ‘not authorised’.
2.After due consideration of the evidence, I concur with the recommendations that the charges should not be proceeded with. The following factors support this,
·No independent eye-witnesses to the incidents in support of the charges;
·No forensic or medical evidence in support of the allegations;
·Nil physical evidence in support of the allegations;
·No real evidence of Recent Complaint. The witness, MR RATCLIFFE (father) was not actually told any information about the alleged sexual assaults. He provides background information about the complainant’s relationship with the accused but no evidence of sexual assaults;
·Witness MR L indicates in his evidence (VARE) that he has not been sexually assaulted by the accused. Neither has he seen the accused sexually assault his brother (Y). He does state that he found it suspicious that she was giving Y back massages, but he didn’t see any sexual assaults taking place;
·The complainant’s evidence (recall of the incidents) as described in the VARE is not clear and detailed. His evidence is likely to be rigorously tested in court proceedings. Whilst he appears to be able to comprehend most questions and answer accordingly, his inability to clearly particularise each incident is likely to cast some doubt over the entirety of his evidence;
·The complainant presents as a very fragile person. This is evident during his VARE evidence and recent mental health history of self-harm;
·The recorded evidence of conflict within the family relationships;
·The accused has made a no comment interview.
3.I have considered whether there is sufficient evidence to proceed. I must be satisfied that there is a reasonable prospect of a conviction prior to assessing whether it is in the public interest to commence proceedings.
4.I have noted that the complainant has indicated that with the availability of witness support services he feels that [he] will be able to cope with the rigors of a contested court hearing. Given his known recent mental health history and that the prosecution case will largely fall on the credibility and reliability of his account, that proposition is questionable at best.
5.In this case, there is little likelihood of the prosecution meeting the required elements of the proposed charges (Indecent Act Child Under 16 Years). There is a lack of corroborative evidence to support the charges. There is a very low chance of securing a successful outcome at court. The charges are marked ‘Not Authorised’.
6.Notify all parties of my determination; Update LEAP & Victim Notification/s (if applicable); Dispose of all property lawfully; Return brief for filing.
Meanwhile, in October 2015, the mother engaged with Ms B and tried to persuade the father to attend an intake session with Ms B. The father refused saying that the mother was a child sex offender.
The second contravention application: 1 April 2016
On 1 April 2016, the mother filed a contravention application and an application in a case. She sought orders that X live with her. The matter was heard on 25 May 2016. An independent children’s lawyer was appointed, and the parents entered into consent orders that:
1.The mother and father forthwith do all acts and things to recommence non reportable therapeutic counselling with Ms B commencing on the 1st day of June 2016 at 5:00pm with the children X born (omitted) 2004 and Y born (omitted) 2001 at (omitted).
2.The cost of such counselling be paid by each party on an individual basis and jointly for joint sessions.
3.The father pay within 48 hours the fees presently outstanding in his name to Ms B.
4.The father pay any fees due to Ms B by him at least 24 hours prior to his appointment attendance.
5.The father and mother comply with the reasonable directions of Ms B in respect to the process including attending upon her, the frequency of such attendance and who should participate with such attendance.
6.The mother commence spending time with X in accordance with order 12 of the orders of 5 February 2015 in accordance with Ms B’s recommendations.
7.The mother’s contravention application be withdrawn with no order as to costs.
Notwithstanding those consent orders, X did not commence spending time with her mother.
The current proceedings
The mother filed an initiating application on 24 August 2016, which instigated the current proceedings. It came on for final hearing on 19, 20 and 21 December 2016.
The mother relied on her own affidavit evidence as well as an affidavit sworn by her new partner, Mr J. The mother was cross-examined but Mr J was not required for cross-examination. His affidavit only dealt with the family report process, and did not divulge anything of significance about himself.
The father relied on his own affidavit evidence and was cross-examined.
The independent children’s lawyer “relied” on the family report prepared by Dr J. She was cross-examined. Dr J’s family report was dated 23 November 2016. Dr J did not say in her report that she had interviewed Mr J and did not express any opinions about him. X refused to see her mother. Dr J did not observe X and her mother together.
Dr J said the following in her family report:
38.Similarly, X … is a psychologically vulnerable adolescent. She presented with a high-level of anxiety. She has, however, made significant academic gains over the past twelve months (which appears to coincide with her having no contact with her mother). Whilst she would clearly benefit from the knowledge that her mother [cares] about her, at present she is adamant that she does not wish to see her mother, or engage in any therapeutic services to rebuild the relationship at this stage in her life. At 12 years of age, she has experienced court involvement for the past four years – one third of her life! X’s anger and frustration at adversarial processes was palpable – and she has lost trust in the process. She feels confused that she is consistently stating that she does not want a relationship with her mother, and feels that people are not listening to her or taking action to protect her and prioritise her voice. The adversarial processes are clearly exacerbating her distress.
39.She is currently at a critical period in her development, where she is about to embark on high-school. Research shows that how children engage with school is indicative of future success, and her first year is imperative to this process. What X requires now is for her development to be prioritised. She requires the freedom to embark on high school with certainty about her living and family relationships, without the ongoing chaos, hostility and acrimony that comes with court processes and the distress of a forced relationship with her mother. It is the role of trusted adults in X’s life to help her feel valued, heard, and validated, and we need to prioritise her voice amongst the chaos of court involvement, and take steps to provide her with the freedom to focus on things important to her and her current stage of life. X needs to be removed from exposure to ongoing conflict between her parents about her living and family relationships. She needs certainty, routine, and predictability.
40.It is highly unlikely that the mother will agree with these recommendations, but the costs to the mental health of Y and X are far too great to continue to force a relationship between the adolescents and their mother at this stage of their development. And, unfortunately, whilst unlikely to be mal-intended, the current court proceedings have only served to further damage her relationship with Y and X, with any court proceedings exacerbating their distress. Whilst the mother’s position is understandable, where she wishes to maintain a connection with her children, she is strongly encouraged to desist from adversarial processes.
41.As the children mature and age, they will be able to make decisions about relationships and contact outside the influence of adults in their lives. A positive mother-child relationship will most likely be best fostered when the mother is able to continually show care and love for the children and respect their expressed views and preferences, regardless of any time spent and regardless of her own preferences. To this end, the mother is encouraged to communicate with the children via indirect means – such as the giving of birthday presents, cards or letters. Into the future, the children, in consultation with their therapists, can then make the decision about how they manage and respond to her attempts to nurture their relationship – but the knowledge that their mother still [cares] about them will most likely have a positive impact on their relationship with her, and their self-esteem into the future.
42.The current recommendations will no doubt be heartbreaking for Ms Malave to hear, and the writer has little doubt that this report will likely result in anger, frustration, and complaints about the process and the assessment. Ms Malave has fought long and hard for her children, and has gone to extraordinary lengths to have her children returned to her care, no doubt at huge personal and financial costs to herself. It is unlikely that Ms Malave will be satisfied with any assessment that does not result in the recommendation that the children return to her care. Hopefully, Ms Malave can take solace in the fact that the current assessment has focused only on prioritising the children’s development, where both Y and X are about to enter critical periods of their development. Given the mother’s training in the (employment omitted) field, with ongoing professional support, and as she continues to process and integrate the information, this should become more understandable over time.
In her family report, Dr J recommended that:
43.Equal shared parental responsibilities (ESPR) are recommended, however, in the absence of agreement, the father should have the ultimate say.
44.Y should not be the subject of any current court orders.
45.X should not be ordered to spend time with her mother. Both X and Y should spend time with their mother as per their wishes, with the support of therapists, outside the court arena.
46.The mother should be able to communicate with the children via indirect means (e.g., sending via post letters, cards, birthday presents etc).
In her oral evidence, Dr J said:
X entered my office with the first thing that she said was that, “You’re all lying, back-stabbing arseholes because” – and when I explored that with her, she said that she has continually stated that she doesn’t want contact with her mother and no one is listening. If I was to read through my notes, your Honour, it would be comment after comment after comment about how no one is listening. She’s a 12 year old girl and the court has a responsibility to prioritise her voice. And, as I said, regardless of the strengths or deficits of either parent, that is her view at this point in time. And I feel that it’s important for me to project that – that voice and – and make it heard within this arena.[7] (emphasis added)
[7] Transcript pages 170 to 171.
The mother’s counsel seized upon Dr J’s statement that “the court had a responsibility to prioritise [X’s] voice”. Counsel said that, in fact, under the Family Law Act 1975 (“the Act”), the court’s obligation was to ensure a relationship. The court said that the family consultant and counsel were both wrong, and that the court’s obligation was to make orders in the best interests of the child. The court noted that s.60B of the Act says that the objects of the Act include:
to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence… . (emphasis added)
More specifically, s.60CC of the Act provides that, in ascertaining a child’s best interests:
(2) The primary consideration are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3) The additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; …
By force of s.60CC(2A) of the Act, the court is to give greater weight to the need to protect a child from physical or psychological harm from being subjected to abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of her or his parents. Because the views of the child are one of the additional considerations, they are generally not as significant as either of the primary considerations set out in s.60CC(2) of the Act.
In any event, the mother’s counsel made an application to the court that the family report of Dr J be struck out and removed from the court file, and, in the alternative, that the court have no regard to the family report or oral evidence of Dr J. That application was largely on the basis that Dr J had said that the court’s role was to prioritise X’s voice, and had therefore misapprehended her own role, and the concept of the best interests of the child.
The mother’s counsel said that the mother would be prepared to fund a private family report from Dr K. The court said that obtaining a further family report from a new professional would subject X to additional stress.
The independent children’s lawyer supported the mother’s application.
The court said words to the effect that the best interests of X appeared to be that she be spared any further court processes, which can in themselves cause damage, and that she be permitted to concentrate on the tasks of adolescence.
The mother’s counsel said that, if the court relied on Dr J’s report in any way, the mother could be expected to appeal, there would be a retrial and there would be more delay and court and professional involvement with family.
After some discussion, including about a negotiated settlement involving therapeutic counselling, the father said he was happy to have a further family report.[8]
[8] Transcript page 187.
Given that Dr J did appear to misapprehend the weight to be given to X’s wishes, the court accepted that Dr J’s recommendations could not be relied upon and that another family report needed to be prepared. Orders were made by consent for the preparation of a further family report by Dr K. Dr J’s report was not struck out, as such, and it remains on the court file. That was the course that the independent children’s lawyer argued for, and that the mother apparently accepted. The further hearing of the matter was listed for 1 May 2017 to permit Dr K to prepare a family report, which was dated 20 April 2017.
Dr K interviewed and assessed the mother, the father and all of the children. Mr J attended the interviews but Dr K did not assess him or interview him. X refused to see her mother during the interview process. Dr K did not to observe them together.
Dr K noted that, in his interview with X, she said that, if anyone forced her to see her mother, she would run away.[9]
[9] Paragraph 27.
In his conclusions, Dr K said:
83.The previous evaluations undertaken including the report of Ms B dated 24 September 2012. She has raised concerns about the mother’s insight regarding the welfare of the children. Statements of the children quoted by Ms K are similar to those statements made by the children in the current evaluation. A further family report was undertaken by Ms Z. Broadly speaking she has supported the previous findings, with concerns regarding the mother’s parenting and also indication of the difficulties in the relationships between the children and the mother. There has been a subsequent report by Ms I dated 25 August 2014. She has raised concerns regarding the father when he is dealing with the children, particularly in relation to the mother, effectively raising concerns about his boundaries and tendency to denigrate the mother with the children.
To summarise the results of the current family evaluation:
(i)Although the referral in this family report relates to the family functioning in general, the central matter before the Court is the care and custody of X aged 12 years and Y aged 15 years. Specifically, this report assessed the extent to which the care of X and Y should be assumed by either parent, with the question of the possibility of time with the mother reoccurring.
(ii)The evaluation did not raise the mother’s personality or mental health functioning as markedly dysfunctional or as causal to the maintenance of refusal. This does not exclude the possibility that her parenting in relation to the children in the past has been problematic. She presented with a defensive picture within the personality evaluation, although not markedly so. The mother’s evaluation did not in itself raise questions about her propensity for neglect, abuse or sexual abuse of the children.
(iii)The father’s evaluation, while not raising concerns about mental health functioning, did raise issues regarding his personality functioning, and highlighted the likelihood that his highly negative opinion regarding the mother almost inevitably will have been conveyed to the children in a variety of different ways over a long period of time.
(iv)The evaluation with the children was indicative of accounts by the older children that suggested some concerns about the mother’s parenting, however it is also likely that the children were exposed to the parents’ poor marital functioning. It has not been until the separation, in the context of the mother having had a least one or more relationships in the marriage, that allegations of sexual abuse by the mother of Y and possibly Mr L have evolved. As indicated, these matters have not been confirmed by legal processes. Y’s mental health has been poor. There has been a link between alleged sexual abuse and Y’s mental health problems, although causality presents as unclear. The accounts of Ms L and Ms M regarding their mother, while generally negative, appeared more balanced. X’s account presents as influenced by others more than by her own experiences, raising the likelihood that there has been influence in this domain.
(v)It has been previously found in court proceedings that the mother has been somewhat neglectful and abusive of the children, and that the father has filled the responsibility of a parent, except the responsibility of ensuring the children have a relationship with their mother. Prior to the separation, the father left too much of a burden of childcare to the mother. In the current matter, there appears to be current alignment and enmeshment, and some realistic estrangement. There has been intervention at various different levels, with experienced practitioners, but no positive outcome.
(vi)In this matter, the mother’s faults both as a parent and in the marriage, which may well be significant, have come to have been demonised by the father and ultimately the children. Ultimately this process is damaging to the children and to the parents.
(vii)There has been a broad range of research in the domain of refusal and alienation, although the research is of variable quality. Nevertheless, it should be recognised that there are matters where there is clear evidence of alienation, refusal for sound reasons such as where there has been abuse, and there are also hybrid cases. It is likely the current matter is a hybrid case, where it is likely that there have been parental difficulties, but that since there has been also alienation.
(viii)As such, this matter presents as a hybrid process, where there has been a combination of realistic estrangement and alienation following the parental separation. The literature is clear regarding the effects of alienation and highlights the negative consequences long-term for children with respect to mental health functioning. Hybrid matters are more complex, less described, and the outcomes are less clear, however similar principals apply, in that the alienation identified is damaging for children’s mental health and personality functioning in the long term.
(ix)In this matter, despite the perceived difficulties that the children have reported in relation to their mother, redevelopment of relationships that are appropriate to each child, with the mother, would be appropriate for the development of the children in the future, with the caveat that mental health issues in Y in particular need to be given the highest priority.
(x)Appendix 1 outlines research in relation to the effects of alienation. The literature does not direct clinicians or the court regarding matters similar to the current matter.
(xi)At question in this matter would be whether reintroduction of the relationships between the mother and the children, in particular X, would lead to exacerbation of mental health difficulties in others in the family. I would suggest Y, may be inappropriately placed to restore time at present with his mother, due to his mental health difficulties.
(xii)In this matter, however, the family processes are sufficiently established that it is reasonable to be pessimistic that the Court ordering time will lead to re-establishing the relationship between X and her mother. I would not consider it is appropriate for the Court to order time in relation to Y, apart from the possibility of an order that suggests that time could occur if his mental health improves, based on the opinion of his treating practitioners.
84.Based on the current evaluation, with X in particular, but the family more generally, it is unlikely that further intervention will make a difference. The children present as psychologically vulnerable, and despite the risks associated with the maintenance of the current arrangement, which essentially supports refusal of the children and some aspects of alienation from the mother, it is unlikely that a change of residence or forcing time between the children and the mother would be appropriate. Similarly, further intervention, as indicated, is unlikely to make a difference with the children in the short term.
85.If the court saw it as appropriate to order time, in relation to X, time could be ordered by the Court on a limited basis, such as two hours every fortnight, over a period of six months. Supervision would be appropriate and re-evaluation in six months. The family could be assisted by a parent coordinator such as Ms B (Tel: (omitted)). As indicated, I am pessimistic about this outcome, however. X could be supported in this process by a clinician such as Ms B, Psychologist, who has worked with the family previously.
It can be seen that, in his written family report, Dr K did not support a change of residence. Indeed, Dr K did not consider, in his written report, that any intervention was likely to make a difference. In his oral evidence, Dr K explained that, by “any intervention”, he meant any orders for X to spend time with her mother. He also confirmed that he was very pessimistic that anything could be done to restore the relationship between X and her mother.
However, counsel for the mother read to Dr K various extracts from the 2015 judgment about the importance to X of having a relationship with her mother. The mother’s counsel then asked Dr K about the possibility of X living with her mother for a period of time. Dr K said he was aware of cases in the Family Court where that type of intervention had been successful. Dr K later said:
I think if the court regards the central issue in this matter [as] being that the child needs to re-establish a relationship for the purposes of prevention of mental health or prevention of psychosocial problems, then I think [a change of residence is] the only option, based on what we have available to us. There may be other intervention programs overseas and so on, but I don’t think I can see anything apart from this which makes a difference. There are dilemmas and I think one of the dilemmas is that if, in fact, X … is not able to maintain her relationships with her siblings, that that has significant consequences as well, and that’s one of the downsides of the intervention.[10]
[10] Transcript page 222.
Dr K also spoke of the long-term psychological risks to X if she did not have a relationship with her mother, as well as the short-term risks if X were forced to live with her mother. Dr K said that the risks if X were forced to live with her mother included the stress of being separated from her father and siblings, and the risk that she may come to harm if she ran away from her mother’s home.
The court put to Dr K a low-risk scenario whereby X would, at least initially, spend two hours per fortnight with her mother doing an activity such as (hobby omitted) under the supervision of either Ms L or Ms M, and, rather than disposing of the matter on a final basis, the court would keep the proceeding on foot, so that the matter could be brought back to court at short notice if need be. The court explained that the matter could be brought back on a contravention application, or as an urgent interim hearing, at which time the court could order a change of residence.
Dr K said in response to this option:
The advantage with that – if we’re looking at pros and cons is – is obviously it’s much less disruptive to everybody and that it allows the normal kind of development of a relationship rather than a – all at one type relationship or a sort of intense period of time. The difficulty, of course, is what we outlined yesterday, really, which is that the nature of the relationships may not alter. However, as you’re saying, it’s a low-risk option, these sort of things like (hobby omitted) or activities such as that. What I’m wondering with that is if we were going to put in that kind of low-risk option that that could be coordinated and managed to some degree by someone like Ms B who could assist the family to develop that. … [11]
… And that may include, of course, Ms L and Ms M in that process because it sounds to me like – and certainly that was my clinical impression that they were … the ..... most supportive of X having that relationship with the mother.[12]
…
… So I’m still pessimistic but that doesn’t mean that such a proposal wouldn’t work. I – if the court was seeing this as a – in a sense, the less dramatic or the less risky option and that it still allows for the potential for a change of residence, then I would consider that that’s probably appropriate. But I think that that change of residence – to me, if this didn’t occur – if this development of the relationship didn’t occur in the period of time – or that it was – in particular if it was stymied or if it was identified that there were major problems, then I think a change of residence then would be appropriate.[13]
…
… what I was trying to reflect is that there has been extensive intervention; nothing has worked. And so as I said yesterday, I think that further intervention has low likelihood of making a difference and I would suggest that that remains the same. That would be – I mean, you have to look at it historically and say, well, there has been a series of forms of intervention, what’s going to be different this time? Even though I think that this is a low-risk option and at that level it makes sense, but I’m still of the view that the chances of this working are very low because in a sense what we’re doing with a low-risk option like this is replicating the previous models. Perhaps if there is a greater chance that the matter can be brought back to court if there is no progress on this and that it would immediately then move over to a change of residence, well, that then might change the state of affairs.[14]
…
I think the difficulty is that if you put off making a decision for change of residence for a year, it is much more difficult to implement that for those developmental reasons. So if it is accepted by the court that the chances of this intervention working are relatively low, then I think the Court is faced with the potential of do nothing, put in an intervention like this that is unlikely to work based on the fact that effectively the same intervention hasn’t worked before, or move to something more risky but potentially would have an effect over a period of about three months.[15]
…
… all the standard interventions have been proposed, and you’ve had very experienced people involved with the family to assist them. I think that at this point – and that’s why I’ve indicated really in the report what I have. I think at this point the chances of those interventions working again are very low, and that includes these kind of low risk approaches, because irrespective of what is being proposed today, I am convinced that the father’s view is that the child is appropriately making a choice of their own to not see the mother. And that he considers that that’s the appropriate choice because he believes the mother is not only a bad parent but a bad person.[16]
[11] Transcript page 287.
[12] Transcript page 288.
[13] Transcript page 289.
[14] Transcript page 290.
[15] Transcript page 290.
[16] Transcript page 292.
…
… If the circumstances somehow are changed in the family, then – or there was a different form of treatment or something like that, then we could consider there is going to be potentially a different outcome. But I don’t consider that to be the case. Even though it is the low-risk approach, and it is effectively what I was suggesting as a possibility, but realistically the chances of it working are zero. And so the court is then left with the possibility of do nothing, you know, use an intervention which is unlikely to work or go for a change of residence at least on a temporary basis to determine whether or not that makes a difference.[17]
… I think that [a change of residence] has greater possibilities… than any of the other options [namely, doing nothing and ordering two hours per fortnight]. I think the other two options really hold no hope for the re-establishment of the relationship, whereas I think that a change of residence on a temporary basis at least allows X the potential for the development of a relationship.[18]
[17] Transcript page 292.
[18] Transcript page 292.
Ms M was in court throughout the proceedings. She indicated to the court her willingness to give an undertaking to the court to supervise and facilitate X spending two hours per fortnight with her mother, provided that Ms L could fulfil that function if Ms M happened to be busy. The father indicated that he expected that Ms L would be willing to give the court an appropriate undertaking in that regard. He also indicated that he would be supportive of that plan.
The proposals of the parties
After some discussion, the mother proposed orders as follows:
(1)All previous parenting orders in respect to the child X born (omitted) 2004 be discharged (the child).
(2)The child be delivered to Ms B at 6:15pm this day at the practise address (omitted), to enable Ms B to explain these orders to the child.
(3)The child live with the mother from 6.15pm this day for a period of 3 months until 5.00pm on the 2nd of August 2017, during which time the mother have sole parental responsibility for X, provided that she communicates with the father about any major decisions in accordance with Pavli & Beffa [2013] FamCA 144; (2013) 48 Fam LR 677.
(4)Pursuant to s.68B of the Family Law Act 1975, the father be and is hereby restrained by himself, his servants and agents from communicating directly or indirectly, approaching or removing or attempting to remove the child from the mother’s care or the care of any other person with whom she has placed her, such restrained to include any form of electronic, telephone, email or sms communication.
(5)Pursuant to section 68C of the Family Law Act the child be deemed a protected person and the father be deemed the Respondent.
(5)The mother ensure that the child sees Ms B for therapeutic counselling at least once per week for a month and [then] with such frequency as directed by Ms B at the mother’s expense
(6)Prior to the 2nd of August 2017 the Father [and] Mother attend upon Dr K with the child for an updated family report for delivery to the court 5 days prior [to] the next return date at the equal cost of the Mother and Father.
(7)The further hearing of all extant applications be adjourned to the [blank] day of [blank] 2017.
(8)Each party be at liberty to file a further affidavit 7 days prior to the next return date.
(9)The independent children’s lawyer and Ms B be permitted to exchange information in relation to X.
(10)Dr K and Ms B be permitted to exchange information in relation to X.
The independent children’s lawyer adopted the mother’s proposals, as amended.
The father proposed that:
a)he have sole parental responsibility for X;
b)X live with him;
c)the mother communicate with X via letters, cards and gifts; and
d)the mother refrain from further litigation.
However, during discussion, the father also indicated that he would be agreeable to X spending two hours a fortnight with her mother at (hobby omitted) or some other suitable activity under the supervision of Ms L or Ms M. The mother and the independent children’s lawyer did not agree to that proposal.
During the hearing on 2 May 2017, Ms M provided a written undertaking to the court to:
supervise and facilitate up to 2 hours per fortnight between X and Ms Malave, if ordered by the court, or arrange for Ms L to do so.
A little later, Ms L provided a written undertaking to the court in the same terms, except that Ms M was to be the alternate supervisor.
As can be seen, the proposal of the mother and the independent children’s lawyer involved the court making interim orders, notwithstanding that the court had conducted a final hearing. The plan was that, after X had lived with her mother for three months, the matter could return to court, and final or further interim orders could be made then. A similar approach was taken by MacMillan J in Matthews & Bender (No. 2) [2013] FamCA 740.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Note:The text of the Convention is set out in Australian Treaty Series 1991 No.4 ([1991] ATS 4). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the website (>
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
For the reasons discussed in the 2015 judgment, there would be a substantial benefit in X having a meaningful relationship with her mother. In particular, it would assist in X’s sound psychological development.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As discussed in the 2015 judgment, the mother has been involved in some abuse and neglect of her children, albeit of a fairly low level.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X is vehement that she does not wish to see her mother at all. Under cross-examination from the mother’s counsel, Dr K agreed that X is not particularly mature for her age.[19] In any event, being just on 13 years of age, and in circumstances where there has been a degree of alienation, it is not appropriate to give X’s views great weight.
[19] Transcript page 220.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
X appears to have a solid relationship with her father and her siblings. Her relationship with her mother, and the maternal side of her family, is virtually non-existent at present.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Prior to separation, the father was not as involved with the children as he might have been. However, since then, he has almost single-handedly made major, long-term decisions about X and spent time and communicated with her.
Since separation, the mother has made strenuous efforts to be able to participate in making major, long-term decisions about X, and to be able to spend time and communicate with her. However, those efforts have been largely unsuccessful.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
X is largely supported by her father, though I understand from the 2015 judgment that the mother is paying child support as assessed, which is a modest amount.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Separating X from her father and siblings, even for a few months, could be expected to cause X a great deal of distress. It is possible that X would attempt to run away from her mother, and this could result in further distress, for example, through a recovery order being executed. It is also possible that X, knowing that a recovery order could be executed if she returned to her father, would go into hiding.
Nevertheless, it is possible that, if X were required to live with her mother for three months, they might develop a reasonable relationship.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This does not appear to be a significant factor in this case.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The father appears to be well able to care for X’s emotional, intellectual and other needs, except her need for a relationship with her mother.
The mother has certain deficits as a parent, as discussed in the 2015 judgment.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
As noted above, X is not particularly mature for her age. Otherwise, this factor does not appear to have any particular relevance in this case.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I adopt what was said in the 2015 judgement in relation to this factor.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
I adopt what was said in the 2015 judgment in relation to this factor.
In addition, in relation to the alleged sexual assault by the mother of Y, I consider that there is too little evidence to support that allegation, whether on the balance of probabilities or when considering the issue of unacceptable risk. Dr K watched the VARE tape of Y’s interview with the police. Dr K did not consider that X was at risk of sexual abuse in the mother’s care. Dr K said he had assessed the mother and found her to be “very low” in terms of psychosexual risk.[20]
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
[20] Transcript page 255.
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
I adopt what was said in the 2015 judgment in relation to this factor.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I adopt what was said in the 2015 judgment in relation to this factor.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The other relevant factors are discussed elsewhere in this judgment and in the 2015 judgment.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As found in the 2015 judgment, the mother has engaged in some abuse of her children. Consequently, the presumption does not apply. Moreover, the parents in this case are almost completely unable to communicate with each other in a constructive and child-focussed manner. Equal shared parental responsibility is not a viable option in this case.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. As there will not be an order for equal shared parental responsibility in this case, it is unnecessary for the court to consider whether there should be equal or substantial and significant time. In any event, it is obvious that such an arrangement would not be workable at present.
What is in X’s best interests?
In my view, X’s best interests require that one further attempt be made for her to spend time with her mother without there being an order for a change of residence. I consider that it is in X’s best interests for her to continue, at this stage, to live with her father and siblings, but to spend two hours per fortnight with her mother in the company of Ms M or Ms L, doing (hobby omitted) or some other activity, until further order of the court. If this arrangement works, it will spare X the very considerable distress of being separated from her father and siblings for the three months that the mother and the independent children’s lawyer propose.
I acknowledge that the window of opportunity for a change of residence is closing, as submitted by the independent children’s lawyer. However, it seems to me that all options must be exhausted, before subjecting X to the undoubted distress of a change of residence.
I also acknowledge that Dr K thought that this option had very little prospect of success, as similar plans in the past have failed, even with the assistance of skilled family counsellors.
However, there are some differences between previous plans and the present plan. The first difference is that the orders will be made as interim orders, with liberty to apply at short notice in the event that there is non-compliance. This will mean that, in the event of non-compliance for any reason, there will be a very real prospect of orders being made for an immediate change of residence.
A second difference is that it is not proposed to involve a family counsellor, but to simply leave the mother and X, under the supervision of Ms L or Ms M, to forge a relationship. Although Dr K expressly supported the idea of a family counsellor being involved in the process, history shows that the (hobby omitted) evenings, where there was no family counsellor involved, actually worked better than the interventions of Ms I or Ms B in this particular case.
A third difference is that the time between X and her mother will not be required to start until four weeks after the mother has written a letter of apology to each of Ms L and Ms M. Ms J made it clear that there was very little prospect of reunification until the mother took responsibility for her behaviour towards her daughters. I understand “taking responsibility” to mean apologising. The mother did not dispute that interpretation of Ms J’s evidence.
During the last day of the hearing, counsel for the mother said that the mother had not had an opportunity to apologise. Counsel for the mother said that the mother had discussed the issue at length with Ms B, and the mother would apologise to the children when they were in a session convened by Ms B. It is completely unrealistic to think that the children will ever participate in a session with the mother and Ms B. In the circumstances of this case, the only viable way for the mother to apologise is by letter. She would do well to seek Ms B’s assistance with the wording of any letters she writes.
The court made findings in the 2015 judgment about what the mother had done to Ms L and Ms M that might warrant an apology. The court may or may not have been correct in those findings. However, the mother knows exactly what she did, and so do Ms L and Ms M, because they were there. The mother should apologise to Ms L and Ms M for what she has done. Whether her apology covers everything will be a test of her insight.
It does not seem to me to be appropriate at this point to make orders conditional on the mother apologising to Mr L and Y. Although I consider that it is very unlikely that the mother did sexually abuse Mr L or Y, a thorough apology to them could potentially raise issues of self-incrimination. They are complications that are best put to one side for the time being. Having said that, if the mother wishes to also write letters of apology to Mr L and Y, she is obviously free to do so.
I consider that it would be in X’s best interests to start spending time with her mother, under the supervision of Ms L or Ms M, within about four weeks of the mother posting to them letters of apology. She should be in a position to prove that she has sent the letters on a particular date. Four weeks would allow time for Ms L and Ms M to absorb what the mother had said in her letters and to at least start to process it.
The father will be required to facilitate X spending time with her mother under the supervision of Ms L or Ms M. If he fails to do so, he could expect to be served with a contravention application, or the matter could be brought on for further hearing at short notice. The final decision will be reserved and the matter will be brought back for final hearing in six months, if it is not brought back earlier.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 24 May 2017
- AGLC
- Malave and Ratcliffe (No.2) [2017] FCCA 1074
- Case
- [2017] FCCA 1074
- Decision Date
CaseChat Overview and Summary
The court was required to determine the terms of supervised contact between X and her mother, including the frequency, duration, and nature of these contact sessions. Furthermore, the court needed to address the father's role in facilitating this contact and the specific activities X and her mother should engage in during their time together.
Judge Riley ordered that the mother send letters of apology to Ms L and Ms M. Subsequently, X was to spend two hours per fortnight with her mother under the supervision of Ms L or Ms M. The supervised time was to be dedicated to specific activities, or others as reasonably chosen by the supervisors, and the father was directed to facilitate these arrangements by ensuring suitable times and places were organised and by encouraging X's attendance. The matter was adjourned for a final hearing.
Orders
Orders of the court
1.
The mother post letters of apology to Ms L and Ms M.
2.
Until further order, X spend two hours per fortnight with her mother under the supervision of Ms L or Ms M commencing on the fourth Sunday after the mother posts the letters of apology to Ms L and Ms M.
3.
Until further order, X’s time with her mother be spent (hobby omitted) or engaged in such other activity as Ms L or Ms M reasonably chooses.
4.
Until further order, the father facilitate X spending time with her mother pursuant to these orders, including by ensuring that suitable times and places are arranged, and by genuinely encouraging X to attend the sessions with her mother.
5.
Each party have liberty to apply on short notice.
6.
The matter be adjourned for final hearing on 1 November 2017 at 10am.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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