MANDEL and BLUM
[2014] FCWA 51
•21 AUGUST 2014
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MANDEL and BLUM [2014] FCWA 51
CORAM: DUNCANSON J
HEARD: 31 JULY 2013
1-2 AUGUST 2013
5-9 AUGUST 2013
12-16 AUGUST 2013
21-23 AUGUST 2013
26-30 AUGUST 2013
2-3 SEPTEMBER 2013
4-8 NOVEMBER 2013
11-15 NOVEMBER 2013
18-22 NOVEMBER 2013
27-29 NOVEMBER 2013
9-11 DECEMBER 2013
29 JANUARY 2014
5 MAY 2014
DELIVERED : 21 AUGUST 2014
FILE NO/S: PTW 1028 of 2008
BETWEEN: MS MANDEL
Applicant
AND
MR BLUM
First RespondentAND
MR AND MRS BLUM (SENIOR)
Second Respondents
Catchwords:
CHILDREN - allegations of sexual abuse - finding no unacceptable risk - mother's belief genuinely held - children's disclosures - innocent explanations provided - effects of therapy on children and approach of therapists of Child Protection Unit - expert evidence on reliability of disclosures and on reunification - change of children's living arrangements considered - children's best interests - interim orders made - requirement for monitoring
Legislation:
Family Law Act 1975 (Cth), s 4, s 60B, s 60CA, S 60CA, s60CC, s 61DA, s 65DAA, s 65L
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr D Smith
First Respondent : Ms G Archer SC with Ms P Giles
Second Respondents : Mr R Hooper SC
Independent Childrens Lawyer : Mr S Jones
Solicitors:
Applicant: O'Sullivan Davies
First Respondent : DCH Legal Group
Second Respondents : Kim Wilson & Co
Independent Childrens Lawyer : Legal Aid WA
Case(s) referred to in judgment(s):
Aldridge & Keaton (2009) FLC 93-421
B and B (1993) FLC 92-357
Fox v Percy (2003) 214 CLR 118
Johnson & Page (2007) FLC 93-344
M & F [2006] FCWA 89
M & M (1988) 166 CLR 69
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
N and S (1996) FLC 92-655
Napier and Hepburn [2006] FLC 93-303
Re Andrew (1996) FLC 92-692
Russell & Close (1993) FamCA 62
Sampson & Sampson (1977) FLC 90-253
State of New Jersey v Michaels 642 A.2d 1372 (N.J., 1994)
W and W (2005) FLC 93-235
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
INTRODUCTION
1[Child A] and [Child B] are aged thirteen and nine years respectively. They are the children of [Mr Blum] (“the father”) and [Ms Mandel] (“the mother”). The children live with the mother who, at trial, held an unshakeable belief that the father had sexually abused the children. The father strenuously denies having harmed the children in any way. He asserts that the mother’s actions and beliefs have caused the children to believe that they have been the victims of sexual abuse by him and in that way she has caused them serious psychological harm.
2The paternal grandparents, [Mr and Mrs Blum (senior)] are also parties to the proceedings. They support the father’s position and independently seek orders in relation to the children.
3In June 2010, Child B, then aged five years, made certain disclosures to his mother. The mother contacted the Department for Child Protection (“DCP”) (as it then was). The children were interviewed by workers from DCP and Western Australia Police. Child A made disclosures to the police in August 2010. The father was charged with criminal offences concerning the children. What followed was a landslide of events which separated the children from the father and set the parties and their families firmly apart.
4It was not until the father’s defence counsel opened the father’s case at his criminal trial some 18 months later that it became known to the mother that while the children were on holiday with the father in London in early 2010, he had administered suppositories to Child B to medicate a fever. This was an innocent explanation provided by the father for a disclosure made by Child B.
5By that time the mother had done everything in her power to protect the children from the father who she believed harmed them and her mindset was not capable of change. The children came to believe they had been abused by the father.
6The outcome of the criminal trial was that the father was found not guilty on three counts, he had no case to answer in respect of one and the jury were unable to reach a verdict on the remaining two counts.
7At the time of handing down these reasons, the children have not spent time with or communicated with the father for over four years.
8With the passage of time, beliefs became entrenched. The parties’ actions had consequences which impacted on their lives and those of the children in a way they could not have foreseen.
THE ISSUES FOR DETERMINATION
9Central to these proceedings is a determination of the best interests of Child A and Child B. Within that context I must determine whether the facts of the case raise an unacceptable risk of harm to the children. Ultimately I must make parenting orders which I regard are in the best interests of the children.
THE ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
10It is helpful to set out the orders sought by the Independent Children’s Lawyer (“the ICL”) first because the other parties refer to those orders. The orders sought by the ICL are contained in a Minute of Proposed orders filed 16 December 2013 and are as follows:
1.All previous orders relating to the children CHILD A born [in] 2001 and CHILD B born [in] 2004 (‘the children’) be discharged.
2.The children live with the First Respondent, [THE FATHER] (‘the Respondent’).
3.The Respondent have sole parental responsibility for the children.
4.The issue of the children’s time with the Applicant [THE MOTHER] (‘the Applicant’) be deferred for period of time recommended by the therapist referred to in paragraph 7 [6] below.
5.The paternal grandparents spend time with the children as shall be agreed with the father.
6.The parties and the children to participate in therapy provided by Dr Jenny Neoh or such other therapist as is recommended by the Independent Children’s Lawyer (‘the ICL’) and to give effect to such therapy:
6.1the parties do all things necessary to facilitate such therapy;
6.2the parties comply with all reasonable requests made by the recommended therapist;
6.3there be liberty for the ICL to apply to re-list the matter at short notice; and
6.4the cost of the therapy be shared equally between the Applicant and Respondent.
7.The Applicant, the Respondent and the paternal grandparents attend upon the therapist referred to in paragraph 6 as directed by that person.
8.The ICL be at liberty to provide a copy of all reports prepared by the Single Expert Witness, these orders and the judgment of Her Honour Justice Duncanson to any psychologist, psychiatrist or mental health professional working with the children, any of the parties, the Department for Child Protection and, should any further criminal complaints be made with respect to the children, to the WA Commissioner of Police (if requested by the investigating officer).
10.The ICL be at liberty to provide a copy of the judgment of Her Honour Justice Duncanson to APRHA or the Legal Practice Complaints Committee should any complaint be lodged with either professional body.
11.Within 3 months, the Applicant attend upon a psychiatrist nominated by the ICL for an assessment as to the following:
11.1whether the Applicant has a mental illness or personality disorder;
11.2if so, the nature and extent of the illness or personality disorder and the impact that this may have on her capacity to parent the children and co-parent them with the Respondent; and
11.3whether any, and if so, what treatment is recommended.
12.In the event the Applicant opposes the psychiatrist nominated by the ICL she be at liberty to re-list the proceedings to seek the appointment of a different psychiatrist.
13.The Applicant attend all appointments nominated by the psychiatrist and otherwise comply with all reasonable requests made by the psychiatrist in order to facilitate the completion of the assessment.
14.The psychiatrist be permitted to talk to and/or request information directly from any third parties for the purpose of his/her assessment and if necessary inspect any subpoenaed material in these proceedings.
15.The Applicant be restrained by injunction from providing the psychiatrist with any information in relation to these proceedings unless requested by the psychiatrist.
16.Upon completion of his/her assessment, the psychiatrist forward a copy of it to the Family Court of Western Australia and the ICL.
17.The Applicant meet the costs associated with her psychiatric assessment.
ADDITIONAL COUNSELLING & ASSESSMENT
18.The ICL be at liberty to liaise with and obtain reports from the children’s therapist and any mental health professional working with the parties.
19.Subject to the approval of the ICL the Applicant attend therapeutic counselling with a clinical psychologist of her choice and provide the ICL with the name and contact details of that person prior to her first appointment date/time.
20.In the event that any of the therapists referred to above consider that it would be in the children’s best interests the therapists be permitted to liaise with one another.
SPECIFIC ORDERS
21.The Respondent ensure that the Applicant is kept fully informed as to the children’s progress at school and is to provide her, via an address nominated by her, with a copy of the children’s school reports and, on a three monthly basis, photos of the children.
22.The Respondent ensure the Applicant is informed of all issues in relation to the children’s health and wellbeing and immediately inform her of any serious medical issues.
23.The Applicant be restrained and an injunction be granted restraining her from:
23.1entering upon, remaining upon, loitering near or being within 50 meters of the nearest external boundary of where the Respondent or the paternal grandparents live or the children’s school;
23.2approaching or being within 10 metres of the Respondent or the children save and except as allowed for by these orders or to comply with any other orders of this Court;
23.3contacting or communicating with the children and/or the Respondent, or having any third person do so on her behalf save and except as allowed for by these orders or to comply with any other orders of this Court; and
23.4attending at or contacting the children’s school or attending any sporting events or extra-curricular activities the children are participating in or have any third person do so or attempt to do so on her behalf save and except by order of the Court.
24.The Orders set out in paragraph 23 above are made for the personal protection of the Respondent and the children with the intention that the powers of arrest pursuant to s114AA of the Family Law Act 1975 will apply in the event of any breach of those orders.
25.In the event either of the children return to the Applicant or to any of her agents the Applicant is to:
25.1 forthwith notify the ICL or the Court; and
25.2 forthwith facilitate the children’s return to the Respondent.
26.The matter be reviewed by Her Honour Justice Duncanson in 6 weeks time in relation to monitoring the respective therapy/assessments and to further define these orders as may be necessary.
THE ORDERS SOUGHT BY THE MOTHER
11The orders sought by the mother are contained in a Minute of Proposed Orders by the Applicant filed 31 December 2013. They are as follows:
1All previous Orders relating to the children CHILD A born [in] 2001 and CHILD B born [in] 2004 (“the children”) be discharged.
2The children live with the Applicant, THE MOTHER (“the Applicant”).
3The Applicant have sole parental responsibility for the children.
4The issue of the children’s time with the Respondent THE FATHER, be reserved.
5The children are to attend goal directed therapy with a suitable therapist appointed by the Court and the report of Professor Lipton, dated 6 September 2012, be released to the therapist.
6The issue of the children’s time with the paternal grandparents (“the Second Respondents”) be subject to any terms and conditions determined by the therapist referred to in paragraph 5 above.
7The Respondent be restrained and an injunction be granted restraining him from:
(a) entering upon, remaining upon, loitering near or being within 50 metres of the nearest external boundary of where the Applicant lives or the children’s school;
(b) approaching or being within 10 metres of the Applicant or the children save and except as allowed for by these Orders or to comply with any Orders of this Court;
(c) contacting or communicating with the children and/or the Applicant, or having any third person do so on his behalf save and except as allowed for by these Orders or to comply with any other Orders of this Court; and
(d) attending at or contacting the children’s school or attending any sporting events or extracurricular activities the children are participating in or have any third person do so on his behalf save and except by order of the Court.
8The Orders set out in paragraph 7 above are made for the personal protection of the Applicant and the children with the intention that the powers of arrest pursuant to Section 114AA of the Family Law Act 1975 will apply in the event of any breach of those orders.
THE ORDERS SOUGHT BY THE FATHER
12The orders sought by the father are set out in a Minute of Proposed Orders at pages 61 to 63 of his closing submissions filed December 2013. They are as follows:
Upon:-
the Form 1 Initiating Application filed by the applicant on 22 June 2010;
the Form1A Response filed by the first respondent on 22 June 2010; and
the Form2A Response filed by the second respondent on 26 July 2010.
13The First Respondent father seeks to adopt the Orders proposed by the Independent Children's Lawyer as set out in the Minute of Proposed Orders Proposed by the Independent Children's Lawyer dated 17 December 2013 as follows:-
1.Paragraphs 1 to 26 of the Orders proposed by the Independent Children's Lawyer and dated 17 December 2013 in relation to the children Child A born [in] 2001 ("Child A") and Child B born [in] 2004 ("Child B") (together "the children") be made.
2.Save and except that the father seeks the following Orders in relation to the costs of therapy:-
(a)The costs of therapy for the children shall be met equally by the father and the mother.
(b)The costs of therapy for the father shall be met by the father.
(c)The costs of therapy for the mother shall be met by the mother.
(d)The costs of therapy for the paternal grandparents shall be met by the paternal grandparents.
3.The costs of any report required by the ICL shall be met equally between the mother and the father.
14In addition the First Respondent Father seeks the following Orders be made:-
4.All parties be restrained and an injunction issued restraining all parties from arranging or facilitating through any other person any further counselling for the children with the Child Protection Unit at Princess Margaret Hospital (“The CPU”) or any of the social workers employed by the CPU, including but not limited to [Ms Hackett], [Ms James] and [Dr Hunter].
5.Each of the children’s passports is to be held by the Court. The children may not be taken overseas without the written consent of all parties, or Order of the Court.
6.Within 14 days of the date of these Orders the mother deliver to the ICL all storage discs, drives or devices containing family videos or photos of the children taken by the father and loaned to the mother following the parties separation that are in her possession, and do so regardless of the condition of the storage disk, drive or device.
THE ORDERS SOUGHT BY PATERNAL GRANDPARENTS
15The orders sought by the grandparents are set out at pages 62 to 64 of their closing submissions filed 18 December 2013. They are as follows:
The grandparents have had the opportunity to consider the Minute of Orders proposed by the ICL.
In general terms the grandparents support and agree with the orders proposed by the Independent Children’s Lawyer. The matters dealt with below are by way of observation as to particular aspects of the ICL’s minute which may require further thought or slight amendment.
If the Court is not minded to make Orders in the form proposed by the ICL then the Court should Order that on Until Further Order basis the children live with or spend time with the grandparents whilst the children are given an opportunity to re-establish their close personal relationship with their father and paternal family.
Dealing with the orders proposed by the ICL and adopting the numbering of the ICL’s proposed orders, the grandparents observe as follows:
4.It appears that the reference should be to paragraph 6, not paragraph 7.
5.The grandparents anticipate that for a time (probably short) the children may stay in their home whilst appropriate accommodation is found which would house the children, The father, his wife and their children in the area close by to where they presently live.
8. The ICL should also be able to provide to relevant persons copies of transcript or portions of transcript of relevant evidence.
This would include, for example, provision to the psychiatrist referred to in paragraph 11 of the transcript of the evidence of Professor Lipton or Professor Bruck.
11. The grandparents submit that it would be appropriate for the applicant to attend upon a psychiatrist as soon as possible if the Applicant has not already put that course of action in place following her hearing the evidence of Professor Lipton and prior to delivery of judgment.
23. The grandparents say that the injunctions against the applicant should be subject to a proviso to exempt her communication with children which has been arranged by the therapist or ordered by the Court.
26. The Second Respondents suggest that the timing of any review should be guided by the therapist’s recommendation.
If, for example, these orders are made by the Court in terms similar to that proposed by the ICL in January or February 2014 then the grandparents would say that any review should be after the end of the first school term.
27. The Court may consider that it would be appropriate to give the parties liberty to apply to relist the matter after the effluxion of a period of time (say at least six weeks) and then on written notice and with provision of details of any Orders sought and relevant evidence in support.
313.The discharge of all previous orders made in the proceedings as proposed by the ICL at paragraph 1 of the Minute, would mean the discharge of some existing orders which the Court, on submission of the Second Respondents, should contemplate reinstating.
The children’s passports
314.The grandparents say the children’s passports should be held by the father. However, if it were considered that such a situation would cause the mother unnecessary anxiety then the children’s passports should be delivered up to the Court and held by the Court until further order.
315.Orders were made by consent in relation to the passports of the children on 6 September 2010 (Paragraph 2).
316.The mother was able to uplift Child A’s passport for renewal and has been granted liberty to take Child A to Israel in December 2013/January 2014.
Transcript
317.By orders made 29 July 2013 the parties were restrained from receiving a copy of the transcript of the trial, which transcripts were and are held by their solicitors.
318.The grandparents say the injunction should remain in place insofar as the father and mother are concerned until such time as they have contributed an amount equal to one third of the cost of the transcript to the grandparents (who have met the full costs of the transcript to date). The Court may wish to consider whether any restrictions should be placed on the parties’ access to any written or electronic copies of the transcript.
Children’s counselling
319.Whilst it may be that if orders are made for residence for the children in the terms proposed by the ICL that this issue does not arise, the grandparents say that the Court should make orders ensuring that the children will not be further exposed to the therapists at the Child Protection Unit attached to Princess Margaret Hospital or indeed any other psychologist, psychiatrist or counsellor whose attendance upon has not been previously approved by the therapist appointed by the Court.
General
320.We anticipate that if notice is given of the date on which the Court anticipates handing down its decision, then arrangements may be able to be made for the therapists to be available at the time the decision is handed down to provide immediate support to the parties and assist, if need be, the children’s move to the father’s care.
THE LAW
16These proceedings are determined under Part VII of the Family Law Act1975 (Cth) (‘the Act’) which contains the framework within which parenting orders must be decided. In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.
17Section 60B sets out the objects and the principles underlying them.
18The objects 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.
19The 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).
20In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child’s best interests. I must consider the matters set out in sub-sections (2) and (3) being the primary considerations and the additional considerations respectively. Section 60CC(4) provides that I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and I must have regard in particular, to events that have happened and circumstances that have existed, since separation occurred.
21These proceedings commenced prior to the introduction of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) and accordingly, having regard to the transitional provisions, the amendments made to provisions of the Act are not applicable in this case.
22I shall therefore refer to the provisions under s 60CC(2) and (3) as they were prior to the amendments.
23The definitions of “abuse” and “family violence” in the Act prior to the amendments apply.
24For the purposes of these proceedings, “abuse” in relation to a child, means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is an unequal power in the relationship between the child and the first-mentioned person.
25For the purposes of these proceedings, “family violence” means:
…conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: a person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
Parental Responsibility
26Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child.
27Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are specifically defined in the Act at s 4 as issues about the care, welfare and development of a child of a long-term nature including issues about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
28Pursuant to s 65DAA of the Act, a consequence of making an order for equal shared parental responsibility is that the Court is required to consider whether or not the child spending equal time with each parent would be in the child’s best interests and reasonably practicable. If it is found to be in the child’s best interests and reasonably practicable, the Court must then consider making an order providing for the child to spend equal time with each parent.
29If the Court decides that an order for equal time would not be in the child’s best interests or would not be reasonably practicable the Court is required to consider whether or not the child spending substantial and significant time with each parent would be in the child’s best interests and reasonably practicable. If that is found to be in the child’s best interests and reasonably practicable, the Court must then consider making an order for the child to spend substantial and significant time with each parent.
30The presumption does not apply in circumstances where there is abuse or family violence. The presumption may be rebutted by evidence which 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.
31The mother seeks an order for sole parental responsibility for the children. The ICL proposes that the father have sole parental responsibility for them. The father and the paternal grandparents adopt the ICL’s order.
Proceedings involving allegations of abuse
32The Court’s obligation to regard the best interests of the child as the paramount consideration when making parenting orders is not altered because allegations of abuse are made.
33In M & M (1988) 166 CLR 69 (at 76) the High Court said:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
Unacceptable Risk
34In B and B (1993) FLC 92-357 at 79,778, the Full Court referred to principles to be applied in cases involving allegations of sexual abuse of a child:
The High Court in M and M referred to the “imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases. The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.
The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
“that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse” (FLC 77,081).
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Such a conclusion however may be a finding in relation to unsupervised access only. This is demonstrated by the High Court’s further statement in M and M that:-
“In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.”
Thus, a finding that access should not be granted because there is an unacceptable risk to the child of abuse, does not of itself preclude a finding that there is no unacceptable risk to the child if supervised access is ordered. However, the High Court made it clear that an unacceptable risk does not relate exclusively to the risk of sexual abuse occurring. Referring to supervised access, the Court stated:-
“Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.” (emphasis added)
Therefore, if supervised access poses an “unacceptable risk” of harm (or “disturbance”), whether physical, emotional or psychological, it should not be granted.
It should be noted that the M and M “unacceptable risk” test is employed within the context of “resolving the wider issue”, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be “subservient and ancillary”. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pederson (1992) FLC 92-271.
35In N and S (1996) FLC 92-655 Fogarty J discussed the issue of unacceptable risk in sexual abuse cases. He said at 82,713:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
36This has been cited with approval by the Full Court in Napier and Hepburn [2006] FLC 93-303. The questions were described by the Full Court in W and W (2005) FLC 93-235 as providing “a structure or framework which may assist a trial judge to assess future risks to a child”.
The approach to sexual abuse allegations
37The approach adopted in cases involving sexual abuse allegations was enunciated by the Full Court of the Family Court of Australia in B & B (supra) and the High Court of Australia in M v M (supra). The Full Court in B & B outlined the approach at 79,777-79,781:-
The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)the allegation is not proved; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision.
The issue for the court, in our view, is not whether a parent has sexually abused a child but whether in all the circumstances of the case access should or should not take place, following a consideration and evaluation of the various matters referred to in sec. 64(1), including any finding in relation to child sexual abuse, with the overriding principle being the paramountcy of the welfare of the child.
It follows, therefore, that the proper venue for the determination of the guilt or innocence of a parent of a child to an allegation of child sexual abuse is the State criminal courts and not the Family Court.
The law recognises two standards of proof - the criminal standard and the civil standard, although the civil standard may vary according to the gravity of the finding to be made as the following passage from the decision of the High Court in Briginshaw v. Briginshaw & Anor (1938) 60 C.L.R. 336 at p. 362 demonstrates:
‘... The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences ...’
In our view, the finding as to whether a child has or has not been abused and the finding as to whether a child will be at risk in the future if access occurs, must be arrived at following the application of the civil standard of proof, bearing in mind the above test when determining the gravity of the allegation.
38The Honourable John Fogarty AM wrote an article “Unacceptable Risk – A Return to Basics” which appeared in Australian Journal of Family Law (2006) 20 [at page 249] and contained a summary of the principles which emerged from M v M:
The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
The onus of proof in reaching that conclusion is the ordinary civil standard.
But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
39In Johnson & Page (2007) FLC 93-344 the Full Court set out the above extract from the article and generally agreed with it.
THE EVIDENCE
40The hearing of this matter lasted 44 days. There were 505 exhibits, extending to over 3,000 pages. The written submissions of the parties and ICL extended to approximately 745 pages. I viewed the recordings of interviews with the children and other films.
41I have quoted extensively from the transcripts, reports and exhibits. Unless stated, where there are errors, I have not corrected them, they are as original.
42I have considered all of the evidence very carefully. In these reasons I have not referred to all of the evidence as I do not consider it necessary and nor is it practicable to do so. If I do not refer to the evidence of a particular witness or part of it, it should not therefore be assumed that I have ignored or overlooked it.
43The evidence may have demonstrated several instances of a particular course of conduct or the consequences of that conduct. I may have made reference to some but not all of those instances.
44Unless I indicate to the contrary, statements of fact comprise my findings of fact.
FAMILY BACKGROUND
45The father was born in Israel [in] 1979. The mother was born in South Africa [in] 1979. The mother and her family migrated to Australia in 1987.
46The father and his family migrated to Australia in September 1993.
47The mother’s parents are [Mr and Mrs Mandel]. The mother has a twin brother [Baron] and sisters [Lea] and [Cate].
48The father’s parents Mr and Mrs Blum (senior) are the Second Respondents. The father has a sister [Sally] who lives in London.
49The parties began dating in October 1996. They became engaged in 1997 and married in Perth [in] 1998. They began living together [in] January 1999.
50The children of the marriage are Child A born [in] 2001 and Child B born [in] 2004.
51The parties separated for the first time in March 2006. They reconciled and subsequently separated finally in July 2006. They lived separately under the same roof until 24 August 2006 when the father moved to rental accommodation. The parties were divorced in May 2008.
52The mother began a relationship with [Mr L] in early 2007 and they were married [in] 2008. They have two children, [L] born [in] 2009 and [G] born [in] 2012.
53Mr L has a daughter from a previous relationship, [O]. O lives with her mother and Mr L on a week about arrangement.
54[In] 2012 the father married [Ms P]. Ms P has a daughter from a previous marriage, [N] born [in] 2007. The father and Ms P have a daughter [T], who was born [in] 2013.
THE EVIDENCE OF THE PARTIES AND THEIR FAMILY
The mother
55The mother is a highly intelligent woman. She is well educated and literate.
56She gave evidence for 15 days, a lengthy period. She had some experience of giving evidence having been prepared for and participating in the criminal trial. She did not look at senior counsel for the father when being cross-examined. She directed her answers to me. She turned away from senior counsel for the father and arranged volumes of documents as if they were a barrier between them. She fixed her gaze downwards to documents in front of her, straight ahead or occasionally at me. She arranged her hair so that it hung down the side of her face preventing senior counsel from observing her demeanour. She was asked to tie her hair back and did so.
57The mother answered mostly in a flat monosyllabic way. She thought carefully about questions and answers particularly when cross-examined by senior counsel for the father and the paternal grandparents, as if trying to think ahead and anticipate the response to her answers or the next question. Senior counsel asked her not to look at the documents in front of her or to try and anticipate questions or plan answers in advance.
58On many occasions the mother answered “I don’t want to guess” or “I don’t want to speculate”. On 8 August 2013, when questioned about her conversations with health care professionals and hospital staff during Child B’s stay at Princess Margaret Hospital (“PMH”), her answers were almost exclusively “I don’t know”, “I don’t remember” or “I can’t recall”.
59The mother showed little emotion when giving evidence. She responded to questions in a detached, dispassionate way. On occasions she was upset, for example when questioned about Child B talking of suicide. For the most part however, she showed considerable self-control and composure which I found curious given her anxiety and the nature of the evidence which included alleged harm to the children. However, I am mindful of the need for caution in placing reliance on a witness’s appearance (Fox v Percy (2003) 214 CLR 118).
60An occasion when I observed the mother’s obvious distress was when the father was questioned about administering suppositories to Child B. He was asked if anyone else was watching and he made a flippant remark about it being the “best entertainment in town”. It was an ill-considered and inappropriate remark and one for which he apologised after the lunch break. As the remark was made, I watched the mother who was seated towards the back of the court. She put her head down and her distress was unmistakeable.
61To others, particularly those from agencies involved with the family, the mother gave the impression she was a victim of domestic violence at the hands of an abusive husband. Her correspondence to others regarding the father was vitriolic. She also said to those persons that she feared that the father would harm her and/or the children or kidnap the children.
62There is some truth in what the mother said but not because the father is a dangerous man. I do not think the mother feared the father would harm her, but what she was afraid of was that somehow he would take the children away from her.
63The father accepted that during the marriage he threatened to use “whatever legal recourse” he could to keep the children. He also said she was an “unfit mother” because of her mental health. It is likely that this is what she really feared and was in her mind during the marriage and, certainly, after separation. The mother submits that is what is now happening.
64After the parties separated they were in dispute about a number of matters concerning the children. In 2010 the father threatened to commence court proceedings to resolve the issues. The mother’s response was if he commenced court proceedings she would not permit him to take the children to London for Passover.
65Following the children’s return from London, Child B made the first disclosure to the mother, followed by further disclosures. Undoubtedly this was an emotional and stressful time for an already anxious mother.
66The mother used her extensive research skills to learn about the issue of child sexual abuse. She interacted at length with professionals including DCP workers, police, the Office of the Director of Public Prosecutions (“the DPP”) personnel, counsellors, therapists and organisations such as Safe at Home. She provided information, not all of which was accurate or true, and secured their support and protection.
67The mother dealt with this crisis in her family with a determination borne from her belief that the children had been sexually abused by the father and an intense need to protect them from further harm. As a consequence the mother lost any objectivity when dealing with the allegations. She finally learned at the criminal trial that the father had administered suppositories to Child B and this was his explanation for part of Child B’s disclosures. However, by that time the explanation was unbelievable and unacceptable to her. The mother had by then convinced herself and the children that the father had abused them. She was supported by others in her belief.
68The mother’s conduct in the years between the initial disclosure and this trial were examined in minute detail.
69Cross-examination revealed the mother lied to and misled others. There were discrepancies in her account of events compared with versions of others. On more than one occasion she disagreed with the written report of a professional, saying she was not responsible for that person’s record of events. She exaggerated her evidence. On occasions she was untruthful. This also became apparent from information which she posted on an online [discussion] forum.
70The mother kept a contemporaneous written record of events. It was known as her “to do list”. It was extracted from her computer during the trial. Those notes also differed from parts of her sworn evidence. An example of this can be seen by comparing the mother’s trial affidavit with an extract from her to do list written in May 2011. At paragraph 1575 of her trial affidavit, the mother wrote “After school [Child B] said, ‘When I get home, I’m going straight to the kitchen to get a knife to kill myself.’” In contrast, her to do list provides context around Child B’s statement as follows, “On the way home from school, [Child B] started having a go because [O] wouldn’t carry his jumper. He said, ‘When I get home, I’m going straight to the kitchen, to get a knife to kill myself.’”
71During the trial, a recording from the father’s telephone voicemail was played in court which revealed that Child A telephoned him in 2011 to wish him happy birthday. Against the weight of the evidence the mother steadfastly denied it was Child A’s voice on the recording. In doing so she lied.
72The mother gave incomplete and consequently misleading evidence concerning an allegation that Child B had threatened to kill his friend [Zack]. At paragraph 1114 of her trial affidavit the mother wrote “Exhibit 12 is a copy of two emails I received from [Ms Hope] regarding [Child B]’s behaviour towards her son [Zack] at school.” The email written on 14 October 2010 contained the allegation that Child B had threatened to kill Zack. On 17 October 2010, Ms Hope wrote to the mother to apologise because Zack said he made it up. The mother did not mention the later email in her trial affidavit.
73The mother had a negative attitude towards the paternal grandparents and some of her evidence concerning them was distorted and misleading. For example, she said they had nude photographs in their home which the children could access. In fact, the paternal grandparents had photographs of themselves bathing naked under a waterfall when they were on holiday in their early 20’s. They were innocent photographs in an album, kept in a chest in their home. Although the mother would not agree, it is likely these are the photographs she was referring to.
74During the trial, many aspects of the mother’s parenting were examined in fine detail. What might have been normal parenting of children in other families was exposed as abnormal. The mother’s parenting in terms of her managing the children’s behaviour was questionable. This behaviour included sibling rivalry, Child B’s talk of suicide and his treatment of Child A. While the mother may be open to criticism for the way in which she dealt with some of the children’s behaviour after the disclosures, it is likely her family was not living a normal life, both leading up to the criminal trial and thereafter. At trial it was apparent the mother unremittingly believed the father sexually abused the children and, as I explain below, the children believe they have been abused by the father.
75Professor Lipton reported that in respect of the mother a diagnosis of Generalised Anxiety Disorder might well be appropriate. He said she requires psychiatric treatment.
76To protect her children in the future the mother rewrote the past. I consider her evidence to be unreliable in many respects. Where it differs from that of other witnesses, unless stated otherwise, I prefer the evidence of those witnesses.
The father
77The father gave his evidence calmly and for the most part showed little emotion. He made some concessions against his own interests.
78He was less intense than the mother although he became agitated when asked about the allegations. At times he became angry when answering questions about them.
79As to his own anger he said during arguments with the mother he walked away and slammed doors. He said he did not think he would have pushed the mother away during an argument, although I thought he minimised his behaviour when asked about this. He once poured a jug of water over himself to change an argumentative situation into something comical.
80The father’s description of the mother was insightful. He said she was passive aggressive and very much prone to anger in the written form.
81The father was confident when giving evidence to the point of giving flippant responses to certain questions. On three occasions he gave entirely inappropriate answers to questions asked by counsel for the mother. They were as follows:
•He was asked how he obtained the cannabis he smoked and he responded “Do you want my dealer’s number or---”;
•He was asked why the paternal grandparents came upstairs while he was inserting the suppository into Child B’s anus and he responded “We can’t watch TV on – this was the best entertainment in town”;
•It was put to the father that on a number of occasions he imposed himself on Child A and pressed up against her vagina. The father denied this and said he had never acted out on a sexual interest with his or any children. He said “It’s not my cup of tea”.
82These responses were tasteless and ill considered. They did not arise from awkwardness or nervousness but rather from a confidence which was apparent to me from the way in which he gave his evidence.
83The father showed some emotion when discussing the parties’ dispute prior to the 2010 London trip. His perception was that the mother would change her mind when agreement had nearly been reached and he was frustrated by this. He was aware of the effect his threat of court proceedings had upon the mother.
84The father conceded the mother had provided well for the children prior to 2010 although he had reservations about her provision for their emotional needs. After 2010 he was concerned the conflict between the parties clouded the mother’s ability to put the children first. He was also concerned about the relationship between Child B and the mother which became even more complex and interdependent.
85The father said, and I accept, that the mother was the driving force behind the parties getting married and she was not then disempowered. He said the mother went to university from the beginning of their relationship and he supported her to do this. At the end of their relationship and at the beginning she wanted a greater connection with him than he was prepared to give.
86For the most part I consider the father to be even tempered although there have been times when he has lost his temper. The children have spoken of this. He acknowledged he was angry when he received a call about child support when he thought those matters had been resolved.
87The father was angry concerning an inability to resolve financial matters and his time with the children. He acknowledged he was angry when he perceived the mother interfered in the overseas trip and he reduced communication to a minimum. Things were still “frosty” on their return.
88I prefer the father’s evidence concerning the alleged sexual assaults upon the mother rather than that of the mother.
89When the father was denied time with the children in June 2010 he said he immediately knew the mother was “cooking something”. When he knew the mother had made a complaint to the DCP, he said “I knew enough, it had her fingerprints all over it.” He said “we were heading towards a conflict, suddenly she pulls out this, you know, rabbit from the hat.” He said the allegations had to have been made by the mother because she was his “only nemesis” but he acknowledged she had never done anything as drastic as that before. The father had a reasonable working relationship with Mr L most of the time.
90Professor Lipton reported that he did not feel that the father had a psychiatric disorder nor a significant personality disorder.
91Professor Lipton reported the father had a degree of stubbornness which in at least one or two instances had led to poor decisions. He cited the disagreement between the parties about Child B’s schooling as an example of this.
92Overall I consider the father’s evidence to be mostly reliable.
The paternal grandfather
93The paternal grandfather gave his evidence openly and frankly. I formed the impression he was very much “what you see is what you get”. He was anxious to make a favourable impression and to explain things as he saw them.
94Regarding the mother, the paternal grandfather told [Ms Schmid], who counselled the parties and the paternal grandparents, that the mother “wears the pants” in the family.
95To Professor Lipton he described the mother’s attitude to aspects of parenting as “weird”.
96He described his use of cannabis now as “very infrequent use a few times a year”. He said cannabis has a relaxing and positive effect on him and he gets creative ideas for his thesis.
97When the father was 17 he told the paternal grandfather he wanted to buy cannabis. Rather than the father getting it from “bikies”, the paternal grandfather gave him organic cannabis. He described this as “harm minimisation”, that is no chemicals, not having to meet unscrupulous people and not having to pay for it.
98In answer to a question from the mother’s counsel, the paternal grandfather said if Child A or Child B, at age 17, said they were going to obtain cannabis from a bikie he would provide it, although he hoped by that time he would not be smoking it anymore. The paternal grandfather explained in the 1970’s he lived in Amsterdam and Morocco and cannabis use was part of the culture he was brought up in.
99The paternal grandfather described the father as relaxed and mellow after using cannabis.
100Regarding the mother’s attitude to him and his wife, the paternal grandfather said the mother turned things said innocently in jest into something sinister or real. The mother’s counsel asked about this as follows:
You say at page 16 - your Honour, this is the second paragraph – “She has tended to misinterpret or provide misinterpretations about events in such a way as to be negative about the father and the grandparents.” What do you mean by that?‑‑‑I am changing my name. There’s a big pack of marijuana there. We killed our pets. We have sex pictures in the house. We have sex books in the house. We gave our son a cigarette when he was eight years old. I can go – if you give me her affidavit, I will find for you hundreds of them, because that was – I mean, that’s when the coin dropped, all those misinterpretations of things that are about us and about [the father], which I know are deliberate, or from an unwell mind. But that’s just a few.
101[Rabbi Sokol] said the paternal grandfather had a reputation at [School A] of having the respect of students. The Board thought he was an excellent staff member.
The paternal grandmother
102The paternal grandmother was a credible witness who answered questions with care. In her affidavit she made some general observations and, at times, when asked to provide specific examples to back them up she was unable to do so. I do not however think this was because her observations had no basis, but while in the witness box she simply could not recall specific examples. Rather than making anything up she merely said she could not remember. For example the paternal grandmother described the mother’s behaviour as “controlling” concerning the children but she could not give an example of that and said it was just her “experience”. My assessment of her is that she is sincere and cares deeply for the children.
Mr L
103Mr L is a serious but pleasant man. He was thoughtful and frank. He did not embellish his evidence and made concessions where appropriate. When he could not think of examples of something he said so.
104When the parties were in dispute regarding children’s issues, Mr L endeavoured to assist in their negotiations. He was balanced in his view of the parties with respect to the way they dealt with their dispute.
105When Mr L was asked who “won” the argument about schooling he said “I think [Child B] won”.
106Mr L is a supportive husband to the mother. When asked about the children spending time with the father or the paternal grandparents he said the mother would feel it was not in the best interests of the children and, in his view, it would depend on how they would cope. He would not assist in facilitating orders for the children to spend time with the father if it was against the wishes of the mother or the children.
The maternal grandfather
107Mr Mandel is the maternal grandfather. He firmly believes the father has sexually abused the children. His view is that the children should be believed.
108The maternal grandfather understood that the paternal grandparents wish to see the children. When pressed, he said he would comply with orders for the children to see their paternal grandparents. He acknowledged he would hate to be in their position.
109The maternal grandfather gave honest evidence. He was supportive of the mother although it was suggested there had been difficulties in their relationship in the past, particularly when she and the father separated and she commenced a relationship with Mr L. The maternal grandfather had an opinion on most things and was keen to get that across to me. He said that sadly, sexual abuse was rife in the Jewish community. He did not provide a basis for that opinion.
110Where his evidence was relevant I consider it was truthful.
The maternal grandmother
111Mrs Mandel is the maternal grandmother. She endeavoured to give honest evidence. She was also of the view that the children have been abused by the father. She was supportive of the mother.
112She seemed to minimise the maternal grandfather’s reaction to the mother dating Mr L. I think she endeavoured to put a somewhat rosy glow on family matters which did not always accurately reflect the true position.
113The maternal grandmother initially denied her daughter Cate had received medical or psychological treatment at an institution. She subsequently admitted, in cross-examination that Cate had attended The [M] Institute. She said she had forgotten about this.
114Her firm belief that the children had been abused was apparent when she said she did not accept the administering of suppositories as an innocent explanation for Child B’s disclosures. She said Child B told her this happened to him nearly every time he went to his father’s house and to Suburb R and she did not think he was talking about two suppositories.
115Although the maternal grandmother did not think the paternal grandparents would harm the children, she said they had lost the right to see them because they supported their son.
Ms P
116The father is now married to Ms P. She is a senior [therapist] in a clinical role at [Hospital A].
117Ms P became aware of the allegations after knowing the father for only a few months. She met with the father’s lawyer and asked her questions about the allegations in the father’s presence. She said the father hid nothing and was happy for her to speak to anyone.
118Ms P said the father was a calm, caring, gentle and loving father figure to N, although she said he does not bathe or toilet her. She said “He has had a bad experience, he does not want to go there. That is his position, not mine”.
119She has a good relationship with the father’s parents.
120Ms P said her family were aware of the allegations but her deceased husband’s parents (N’s paternal grandparents) were not. She was careful how much she let them into her life and she had not wanted to worry them.
121When she and the father argue he retreats into his office.
122Ms P is a supportive wife to the father but nevertheless an honest witness who gave her evidence in a straightforward way.
THE PARTIES’ RELATIONSHIP AND EVENTS PRIOR TO THE ALLEGATIONS
Before Child A’s birth
123Both parties are Orthodox Jews and have practiced their faith to varying degrees. The mother’s family were Modern Orthodox. The father was born in Israel and raised in an ultra-Orthodox Jewish sect. In 1996 the parties attended School A together. The mother claimed that until 1996, the father studied in a religious boys only boarding school where he had been forbidden to touch or be alone with females before marriage. She said she dismissed some of his “unusual behaviour” as naivety given his strict upbringing. She did not specify what that unusual behaviour was.
124The parties announced their engagement to marry in 1998. The mother asked the father for a modern version of a “get”. The father refused. He was opposed to it and wanted a traditional contract. [Rabbi Fisher] explained that a “get” is a bill of divorcement. He said the husband has to agree to give it and the wife has to agree to accept it.
125The parties were married [in] 1998.
126The mother said she wanted the marriage to work so she conformed to certain expectations that were contrary to her own beliefs about the equality of sexes as equal partners in a marriage. For example, the mother attended marriage lessons to be taught to be a “good wife”. Additionally, she complied with the father’s requests to cover her hair. She smoked cannabis with him but stopped early in the marriage. The mother disapproved of the father’s continued use of cannabis.
127The mother was not subservient to the father or oppressed by him. She has a strong personality and is an intelligent woman. She attended university in the early years of the marriage, initially studying occupational therapy before deciding to change courses to a Bachelor of Arts (Cultural Studies)
128The marriage was a reasonably happy one.
The mother’s relationship with the paternal grandparents before Child A’s birth
129The mother disapproved of the paternal grandfather supplying the father with cannabis. The mother said prior to Child A’s birth she noticed a large black bin liner at the paternal grandparent’s house which appeared to be filled with straw. The mother claimed the paternal grandfather told her it was cannabis. The paternal grandfather said he jokingly told the mother it was cannabis but in fact it was straw-like material which the paternal grandmother used for her art. He said the mother smiled at the time and knew it was said in jest.
130The paternal grandfather recalled that the mother was one of his students at School A. He described her as manipulative and controlling at that time when, as head of the Judea committee, she reported other students’ infractions of the Jewish ethos of the school.
131The mother became pregnant with Child A in April 2000 and suffered severe nausea and vomiting. The mother said the paternal grandmother accused her of having an eating disorder and came to her home and tried to force feed her. The paternal grandmother explained this incident differently. She said:
In the very early stages of pregnancy (and before I knew she was pregnant) she had lost so much weight I thought she was suffering from anorexia. I recall visiting her at home where she was ill in bed. I brought food to her, and felt I needed to encourage her to eat.
…
In hindsight I recognise [the mother] was upset by what she saw as my interference but which I saw as concern for her welfare.
132The mother became angry about the paternal grandparent’s interference in the parties’ lives. In 2000, the father’s family arranged a Mediterranean cruise to celebrate the father’s grandmother’s 70th birthday. The paternal grandparents arranged travel insurance documents for the parties. As a consequence they found out the mother was pregnant and sought to be congratulated by the parties on becoming grandparents. The mother claimed she was stunned that the paternal grandparents had opened their mail. The paternal grandmother acknowledged that the mother was taken aback that they knew about the pregnancy but said at the time she did not express any criticism of them for finding out in that manner. The paternal grandparents respected the mother’s wishes not to tell anyone about the pregnancy.
133In about July 2000, the parties accompanied the father’s family on the cruise. The mother was in her first trimester of pregnancy and continued to suffer severe vomiting and nausea. The mother’s relationship with the paternal grandparents deteriorated.
The relationship between the parties after the birth of Child A and the involvement of the paternal grandparents
134After Child A’s birth the mother suffered symptoms of postnatal depression, although it was not diagnosed at the time. A later forum post illustrated her own assessment of her condition:
After DD was born I fell apart. She was a fantastic baby, it wasn’t her fault, rather my problem was mostly coping issues (bearing this enormous emotional and physical burden completely alone) and a lack of self-esteem which is the only thing that can get you through it. I also started having panic attacks and it took me a while to realise I was depressed.
135The mother said the father gave her little support when Child A was a baby. He, on the other hand, said he took an active role in caring for her when the mother was unable to cope. Having regard to the mother’s own description of her condition, I consider it more likely than not that the father assisted with the care of Child A and they began to develop a close bond.
136The mother said the paternal grandfather let himself into the parties’ home uninvited to retrieve some cannabis which had been stored there. The mother said she was breastfeeding Child A who was just a couple of months old at the time. The paternal grandfather said he went to the parties’ home to take some cannabis back that he had given to the father.
137In July 2001, the parties travelled to Israel with the paternal grandparents for the wedding of the father’s sister Sally. The mother complained that she was given no help with Child A, who was five months old. The mother said that during this time the paternal grandparents and the father spoke Hebrew. As she does not speak Hebrew, the mother said she felt excluded from conversations. The paternal grandparents recalled speaking Hebrew but did not do so to exclude the mother. The paternal grandfather said the mother told him she felt like jumping out of the window, that Sally hated her and was not paying attention to her.
138In September 2001, the mother sent an email to the paternal grandparents, apologising for her behaviour. It gives some insight into her state of mind at the time. She said she felt alienated and excluded by Sally and later the paternal grandparents, describing them as her “tormentor”.
139In 2002, just before Child A’s first birthday, the mother returned to university. The paternal grandmother cared for Child A one morning a week, as did the maternal grandmother. The mother claimed she ended this arrangement because the paternal grandfather returned home from his teaching work at recess to smoke a joint while she was there collecting Child A. The paternal grandfather denied this.
140The parties argued from time to time. On one occasion the mother told the father it would be easier if she was “a single mother”. He told her his grandparents, had funded the best lawyer in town when his uncle and aunt were each divorced and he would do “whatever was possible” to keep Child A from her.
141When Child A was three years old, the parties agreed she should not bathe in front of men and they told their relatives of their decision. The paternal grandfather said he received a letter from the mother saying he should not go into the bath with Child A, as if he was “some kind of pervert”. He recalled the mother looking at him as if he was doing “something nasty” when Child A came into his arms for a hug.
142The mother became pregnant with Child B in January 2004. The paternal grandparents left Perth in May 2004 to live in Israel. They then moved to New South Wales in August 2004. The parties’ relationship improved at this time.
143On 26 August 2004 the mother posted on the forum about her “underlying fear” of bearing the burden of a new baby alone. She wrote:
The first issue I have spent a lot of time talking through with DH so I expect some more empathy from him this time (which has started already with planning to really getting him involved in the labour, and organising a daily schedule of tasks for him when the baby comes).
144Around October 2004, the paternal grandparents visited Perth to attend Child B’s circumcision. The mother said the father insisted on doing peri’ah metsitsah, an ancient Hassidic Jewish ritual. The person performing the circumcision cuts the foreskin around the penis and then sucks off the foreskin either directly by placing the mouth over the penis or via a straw or glass tube. The paternal grandmother said it is customary for the women to stay behind and the men to surround the baby. However the mother went close to the circumcision to watch and later told her she found it an empowering experience to be where the men were standing.
145The parties and the children visited the paternal grandparents on two occasions in NSW. The mother said the father blamed her for “causing issues” with his parents. She said the father’s refusal to confront his parents about their behaviour was a “constant source of argument” in their marriage.
146In January 2006, the paternal grandparents told the parties they intended to return to Perth to live in [Suburb R]. On 24 January 2006 the mother posted on the forum that each time the grandparents came into town her marriage switched from harmonious and loving to frustrated and resentful.
147After the paternal grandparents returned to Perth their relationship with the mother was strained. The paternal grandfather said the mother came to their house holding Child A with an expression as if she was going into a monster’s lair. He said they could do nothing to make her happy or nothing right. The paternal grandmother described it as walking on egg shells with the mother. Initially the paternal grandparents rented a home in the same street as that of the parties and visited their home often. The father’s use of cannabis increased. The parties argued and the mother described it as an extremely stressful period.
The parties attend counselling with Ms Schmid
148Ms Schmid, a psychologist in private practice, counselled the parties and the paternal grandparents. She took notes of her meetings with them and gave oral evidence. Ms Schmid had a rather negative view of the mother and I consider this arose as a consequence of the mother’s later correspondence with her, requesting to sight her notes, challenging their content and a delay in payment. I have therefore treated Ms Schmid’s oral evidence with some caution but I consider her notes to be a reasonably accurate record of the meetings, and consequently, mostly reliable.
149The mother met with Ms Schmid to discuss her concern over the impact the paternal grandparents would have on her family upon their return from NSW.
150The parties met with Ms Schmid separately and together. The mother wanted strategies to cope with the paternal grandparents. The father wanted the mother to recognise his good relationship with his parents and did not want to be in the middle of his wife and his parents.
151The parties showed the grandparents a weekly schedule with the time they wished to dedicate to their own family time.
152The paternal grandparents met with Ms Schmid in late March 2006. They were hopeful the relationship with the mother could improve and were distressed the children were caught in the middle. They felt their son was held back by “a very difficult” woman.
153After observing the parties for a short time with Child A, Ms Schmid described the mother as a “helicopter parent” hovering over Child A. On the other hand she said the father came across as appropriate and concerned.
154Ms Schmid was asked for her opinion on whether the mother had any diagnosable personality disorder. She said it was not her job to assess the mother but she felt she met much of the criteria for borderline personality disorder. In particular, Ms Schmid referred to the mother’s lack of boundaries. Ms Schmid explained the mother found out that her daughter-in-law had done a similar PhD and made contact with her. She said her daughter-in-law found this to be very uncomfortable. Ms Schmid found the mother’s intrusive style of interaction to be very inappropriate. She clearly disapproved of the mother’s actions in this respect.
The assault and first separation
155On 6 March 2006 the paternal grandparents wanted to visit the parties but as the mother was feeling unwell the father asked them not to do so. The paternal grandfather told the father he had received a letter from the mother setting out “guidelines for grandparents” and said he was frustrated the father would not stand up to the mother. The father was upset by this. The father visited his parents and told them he no longer wished to be stuck in the middle. He persuaded them to attend counselling with Ms Schmid to try and resolve some of the issues.
156The father returned home and told the mother about the visit. They were both angry and they argued. The mother then went to the ritual bath.
157The mother deposed:
When I returned home from the bath, [the father] was watching television wearing headphones.
I removed them to speak to him.
I said I felt very sorry for him that his father had threatened to reject him and had expressed his love for [the father] as conditional.
[The father] turned and punched me in the abdomen.
I told [the father] I was leaving him.
[The father] said he did not care if I left but if I did, he would use his family’s money to take me to Court and tell the Judge I was a mentally unfit mother and he “would find a way” to make sure I never saw them again.
I was afraid.
158The father deposed:
We were at home during this conversation and I retreated to the television room. I put headphones on and began to watch television to try to avoid further confrontation with [the mother]. The children were in the house asleep. [The mother] grabbed the headphones from behind me and pulled them off my head, as she wanted to continue our argument. Without averting my eyes from the TV, I swung around to grab the headphones and accidentally hit [the mother] in the abdomen. I did not punch her as she has deposed at paragraph 20 of her affidavit filed 21 July 2010. I immediately apologised to [the mother] and explained that it was an accident. [The mother] did not accept my apology and threatened to leave. I told her I would not stand in her way.
[The mother] threatened to take the children and I told her that I would use whatever legal recourse I could to keep them. [The mother] alleged in her application for a Violence Restraining Order on 18 June 2010 that I said she was an unfit mother (refer to page 7 of the VRO transcript dated 18 June 2010). I accept that I may have said that in the heat of the argument, but I do not actually remember saying that. I recall putting the headphones back on and returning to watch the television to try to avoid further confrontation with [the mother].
[Child B] is a bright, interesting and capable young man with a keen mind. He is a very valued member of our class and is to be admired for his love of learning.
He brings fine contributions to our lessons with his ready knowledge and desire to share.
From time to time he appears a little isolated and I have been concerned that he wasn’t participating socially. Recently though, he seems more settled in this regard and has been playing happily with his friends.
[Child B] needs guidance to get organised at times and is still quite anxious in class, but I am acutely aware of him and strive to give him the help he needs with the kindness he deserves. He finds it difficult when he makes errors and it can be hard to have him accept direction without him feeling the need to excuse the errors.
He has been very happy spending time in [Samantha]’s class during her main lesson time lately and is making new friends quite easily.
[Child B] is a lovely boy who has a bright future. He brings interest to our class through his broad reading and sharing of the knowledge he gleans.
He deserves the best and may that be his blessing.
910As to the mother’s capacity to provide for the children’s emotional needs, as I said above, in cross-examination Professor Lipton was provided with a considerable amount of information about the evidence regarding the mother’s conduct and its impact upon the children’s emotional wellbeing. Professor Lipton’s response to that information included the following:
•he thought there was “a degree of unreliability in the material” when discussing the way in which issues of safety were explained to the children regarding “a very dangerous man”;
•if the children falsely believe their biological father is bad that would create enormous conflict in their minds;
•he explained “enmeshment” by saying anxious mothers being very protective, and believing there is danger, the child becomes anxious and turns to the mother for more protection “and you get that kind of enmeshment”. Professor Lipton went on to say “and the sad thing about it is that, if anything, it strengthens the bonding if there are two people in danger together.
•Professor Lipton described enmeshment as “not a good thing” as it does not allow one to explore one’s own issues and needs and have them met. He described that as “unhealthy”.
•the mother’s fears were not rational;
•Professor Lipton described the picture he had of the mother and the children as an “embattled enclave”;
•Professor Lipton described the mother having a severe anxiety state. He said it is a psychiatric disorder which requires psychiatric treatment;
•he described as “disturbing” Child A’s longing to see her father and that it was not explored or she was told he was a perpetrator which “cuts off the possibility of her exploring her own feelings about her father”;
•he described the “defensive enclave” to be very unhealthy;
•Professor Lipton stated he thought there was a problem with the mother’s insight in that she did not seem to be aware of the effect of her own feelings and behaviour;
•it was undesirable for parents to discuss adult issues, financial issues and court issues with a very young child. This was said in the context of the mother telling the children that the grandparents had paid the father’s court costs, something which Professor Lipton described as “appalling”;
911I have referred to many examples of the mother’s conduct which impacted upon the children in a negative way, earlier in these reasons. I find the mother’s capacity to provide for the children’s emotional needs is compromised by her anxiety and fears about their safety and her belief that they have been sexually abused by the father.
912To address her inability to provide adequately for the children’s emotional needs the mother will require psychiatric treatment as recommended by Professor Lipton. This is linked closely to whether she will support the Court’s orders and whether she has the capability of changing her behaviour and mindset to provide a healthy emotional environment for them.
913Prior to April 2010 the father was capable of providing for the children’s emotional needs. He and the children spent time in the company of his parents who assisted him with the needs of the children. The children have not spent time with the father for four years. They have no shared experiences in that period of time. The children will have grown and changed.
914To live with the father or spend time with him will be a significant change to the children’s way of life. Even with therapy it is a change that these anxious children will have to cope with. Their emotional needs may be considerable when this occurs. The father is not accustomed to providing for their current needs and this may present many challenges for him.
915However I am mindful that Professor Lipton discussed the father’s capacity to recognise and provide adequately for the needs of the children. He recorded the father’s sensitivity to the issues of reunification and his understanding that it might take a long time. Professor Lipton described the father as empathic and found nothing negative about his parenting qualities.
916At the time Professor Lipton met the father and discussed these issues, the father’s position was not that the children should be removed from the mother’s care to live with him and so the above comments were made in a different context to the father’s present position.
917Notwithstanding, I am satisfied the father would be sensitive to the children’s emotional needs. I find that with the appropriate support he will provide for their emotional needs to the best of his ability in what may be very difficult circumstances.
918I find the paternal grandparents will also do their best to provide for the children’s emotional needs. Although both were upset and disappointed by the mother’s conduct towards them I consider that they are sufficiently child focussed to put this aside and they will not undermine the children’s relationship with their mother. They too may need supportive therapy as they face similar difficulties to the father by reason of the children’s belief and the passage of time.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
919Both parents have done their best to fulfil their responsibilities as parents.
920The mother’s attitude to the children and the responsibilities of parenthood has been affected by her anxiety and her belief that the children were sexually abused by the father and her need to protect them. In other respects she has shown a proper attitude to the children and to the responsibilities of parenthood. She is a devoted mother to the children.
921The father played a lesser role in the children’s upbringing after separation but he is a responsible parent and wishes to resume that role in the children’s lives.
922The father submitted he is aware of his obligations to financially support the children and will do so. The father accepted that prior to the allegations he used child support as leverage in negotiations with the mother.
Any family violence involving the child or a member of the child’s family
923There was one incident of family violence. It occurred on 6 March 2006 when the father struck the mother as described above.
924There is no family violence involving the paternal grandparents.
Any family violence order that applies to the child or a member of the child’s family if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
925In April 2013, the parties agreed to and signed a Mutual Undertaking as a consequence of which the mother’s applications to extend the VROs were dismissed.
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
926It is preferable to make an order least likely to lead to the institution of further proceedings. Having regard to the uncertainty and complexity with respect to the children’s future arrangements only interim orders can be made at this time. The process of reunification will take some time. The children’s developing relationship with the father and paternal grandparents will have to be monitored as will the mother’s conduct and effects of treatment.
Any other fact or circumstance that the Court considers relevant
927I refer here to s 60CC considerations which do not apply to the paternal grandparents and record further findings.
928Prior to the allegations the children had a meaningful relationship with the paternal grandparents and it would be to the benefit of the children to have such a relationship with them in the future. I consider the paternal grandparents will do their best to facilitate and encourage a close and continuing relationship between the children and the mother. There is no practical difficulty and expense involved in the children spending time with and communicating with the grandparents. The children would be able to follow their Jewish faith with the paternal grandparents who are also Jewish.
Section 60CC(4)
It is necessary to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and in particular the extent to which each of the children’s parents:
(a) has taken or failed to take the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the children; and
(ii) to spend time with and communicate with the children; and
(b)has facilitated or failed to facilitate the other parent:
(i) participating in making decisions about major long-term issues in relation to the children; and
(ii)spending time with and spending time with and communicating with the children; and
(c)has fulfilled or failed to fulfil the parental obligation to maintain the children.
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
929I have discussed these matters sufficiently elsewhere in these reasons. Since June 2010 the father has had no opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with or communicate with them.
930The mother has not facilitated the father in the above, again, for reasons discussed herein.
Parental Responsibility
931The mother and father each seek an order that they have sole parental responsibility for the children. The paternal grandparents and the ICL support the order sought by the father.
932The presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility does not apply if there are reasonable grounds to believe that either of the parents or a person who lives with them has engaged in abuse of the child or family violence.
933There has been family violence between the parties and therefore the presumption does not apply. Even if the presumption did apply I consider that it has been rebutted by evidence which satisfies me, it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them. The circumstances in the last four years have, as I said at the outset of these reasons, set the parties far apart. The mother may never change her beliefs. The father said he would not be able to negotiate with the mother to reach parenting decisions together in the short to medium term and he explained that to mean a few years. In these circumstances I am satisfied that the parties will not have the kind of relationship which enables them to fulfil the requirements of an order for equal shared parental responsibility, namely to consult as to major long term issues regarding the children and to make a genuine effort to come to a joint decision about those issues. The determination as to which parent should have parental responsibility for the children is linked to the determination as to the children’s living arrangements.
The children’s living arrangements
934As I do not intend to make an order for equal shared parental responsibility it is not necessary for me to consider the specific outcomes referred to in s 65DAA of the Act with respect to the children spending equal time with each parent or substantial and significant time with each parent.
935It is necessary for me to determine the living arrangements for the children which I consider to be in their best interests informed by my findings with respect to the matters which I have considered under s 60CC of the Act.
THE SUBMISSIONS
936The ICL submitted that the Court is confronted with a “stark choice” in this matter. He said the options for the Court are either to leave the children where they are, that is in the care of the mother, or to reunify them with the father.
937The ICL sets out factors supporting the approach of leaving the children where they are, which I summarise as follows:
•the children’s ages;
•their entrenched beliefs;
•the possible improvement in their lives without the paternal family.
938The ICL submitted against that approach is the considerable risk there will be problems for the children as they mature as the maternal family will continue to be reactive to the father and the paternal grandparents and the children will continue to be exposed to the mother’s anxiety.
939In favour of reunification is the likelihood that the children will experience less anxiety with the father, although there is the possibility of problems with their future relationship with the mother and maternal family.
940The ICL sets out factors supporting reunification which I summarise as follows:
•the children’s wishes;
•the real possibility their beliefs can be addressed.
941The ICL submitted as follows. “Ultimately it is submitted that the Court should consider that it is in the best interests of the children to move from a dysfunctional household or one that has experienced a high level of dysfunction in the recent past characterised by [the mother]’s extreme anxiety to a household that is likely to be functional and much less anxious where [Child A] and [Child B] are free to be themselves”.
942In his submissions the father acknowledged the decision is not an easy one. He submitted that in theory there are three options open to the Court as follows:
Option 1:To leave the situation unchanged.
Option 2:To leave the children in [the mother]’s home, and to provide therapy to the children and [the mother] with an aim of being able to re-introduce the children to their father and grandparents;
Option 3:To order a change of residence. After the change of residence, [the mother] would receive therapy to assist her to change her behaviours so that she could resume contact with the children without causing them distress, and without hindering the reunification. It is hoped that at some point in the future there would be sufficient confidence that [the mother] had sufficient insight and motivation to not engage in determining behaviours, so that the children could split their place of residence between both houses.
943The father submitted Option 1 should be rejected and pointed out that both Professor Lipton and Dr Neoh were opposed to that situation.
944The father submitted Option 2 is likely to cause intense short term stress for the children and prolong long term stress. In essence, the submission was that the children would continue to live in an “embattled enclave” and will be under intense pressure not to enjoy their father and to give no sign of having done so. The mother will undermine the reunification process and it is unlikely this option would succeed.
945The father submitted that Option 3 is the most likely to succeed. It gives the mother an opportunity of addressing her behaviours. He submitted if Option 3 is adopted the children would have a healthy relationship with both parents instead of an unhealthy relationship with one parent and no relationship with the other.
946It is apparent from the paternal grandparent’s submissions that they support Option 3. They submit on all of the evidence the third option of a change of residence is the only one which is likely to promote the best interests of the children.
947The mother submits the children should remain in her care as proposed by her and describes the removal of the children from their mother and their settled family home as “potentially catastrophic”.
DISCUSSION AND CONCLUSION
948I have found that the father and the paternal grandparents do not pose an unacceptable risk of harm to the children if orders are made that the children spend time with them or if they live with them.
949I have found that the mother’s capacity to provide for the children’s emotional needs is compromised and that aspect of their relationship with her is unhealthy.
950Neither of these findings are determinative of the orders which are in the best interests of the children. To be considered, are my findings with respect to the primary and additional considerations. These findings point in different directions as to the orders I should make which are in the best interests of the children. I have found:
•it would be to the benefit of the children to have a meaningful relationship with both of their parents and their paternal grandparents;
•there is not a need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence in the care of either party or the paternal grandparents, having regard to the definition of abuse applicable to these proceedings;
•at times the children have expressed a view or made statements indicative of their view that they wish to see the father and paternal grandparents;
•the children have a close and loving relationship with the mother, but it is also an enmeshed one. They have a loving relationship with their step-father and half siblings. Their relationship with each other has improved;
•at this time, and absent psychiatric treatment, the mother is unwilling and unable to facilitate and encourage a close and continuing relationship between the children and the father. The father and the paternal grandparents will facilitate and encourage a close and continuing relationship between the children and the mother to the best of their ability, consistent with the best interests of the children;
•the removal of the children from the care of the mother, to whom they are closely bonded, to the care of the father who they believe has abused them, is likely to cause significant stress to the children in the short term and the long term effects are unknown;
•the parties and the paternal grandparents live in Perth and there are no practical difficulties involved in the children spending time or communicating with them. There may be expense associated with the requirement for therapy and psychiatric treatment;
•the parties and the paternal grandparents are able to provide for the physical and intellectual needs of the children. The father and the paternal grandparents are capable of providing for the emotional needs of the children. If however there is a change in the children’s living arrangements, their emotional needs are likely to be significant and the capacity of the father and the paternal grandparents in those circumstances is not known. The mother’s capacity to provide for the children’s emotional needs is compromised by her anxiety, her belief that they have been sexually abused by the father and her need to protect them. The mother requires psychiatric treatment and therapy will be required to facilitate the children’s reunification with the father;
•the parties are responsible parents;
•there has been family violence between the parties;
•there is no family violence order in effect;
•the children are currently aged 13 and nine years. Their stage of development is relevant to the proposed change in their living arrangements;
•it is likely there will be further proceedings as the children’s reunification with the father and the paternal grandparents will require monitoring and possibly review.
951I have balanced the relevant factors. Of importance, on one hand is the benefit to the children of having a meaningful relationship with both of their parents and the paternal grandparents and the requirement for reunification with the father to achieve that outcome. On the other hand of concern to me is the likely effect upon the children of a separation from their mother and their family network into the care of the father whom they believe has abused them. Furthermore, if the children are removed from their primary carer to the untested care of the father there is potential for significant stress to the children, particularly if the reunification process is unsuccessful or is a lengthy and difficult process.
952I am mindful that the children’s current environment is an unhealthy one and if they do not have a relationship with their father there may be serious long term consequences detrimental and adverse to their future well-being. If however the mother receives psychiatric treatment and the “goal directed therapy” referred to by Professor Lipton is implemented, reunification may succeed without the children’s separation from the mother and her family.
953The prospect of the removal of the children from their primary carer, to place them with the person they believe has abused them, and to have the physical presence of their mother eliminated from their lives, causes me great concern. I am not persuaded it is an outcome which is in the best interests of these children. It is however important that the children have the benefit of a meaningful relationship with the father and the paternal grandparents in the future. When I consider all of the evidence and balance the matters to which I have referred above I am of the view that it is in the best interests of the children to live with the mother.
954I consider it is in the best interests of the children to spend time with the father and the paternal grandparents. That time will be introduced with appropriate therapy, the objective of which is to reunify the children with the father and the paternal grandparents. Subject to the advice of those providing therapy there may be a need for supervision, not because the children are at risk of harm in the care of the father and paternal grandparents, but to ease the transition for the children and to independently monitor the process.
955I remain concerned that the mother will continue to be unwilling and or unable to facilitate and encourage a close and continuing relationship between the children and the father. She will have to have psychiatric treatment. She will have to participate in therapy. She may never change her beliefs but she will have to change her mindset and her behaviours. It remains to be seen if she will do this or is able to do so. Significant therapy is required for the children and all parties. The position will have to be monitored. It is for that reason that the orders I will make are interim orders as opposed to final orders. The mother will consequently be aware that the parties’ respective applications that the children live with each of them or the paternal grandparents remain in abeyance and that those applications will not be finally determined until the reunification process has been undertaken.
956It follows that the mother will have sole parental responsibility for the children while they live with her and until final orders are made. It is important that the father has input into decisions concerning long-term issues and the mother will have to keep him informed of decisions and consider his response. My order in this respect is intended to be a clear message to the mother that the children are to have the benefit of both of their parents having a meaningful involvement in their lives. I consider such an order to be in the best interests of the children.
957These orders give the mother an opportunity to receive treatment, reflect and change. There will be on-going scrutiny by the Court. In the event that she does not comply with the orders and the directions of those professionals involved including a psychiatrist and therapists, that will be a clear indication to me that the children’s living environment remains an unhealthy one. In that event it will be necessary for me to review the interim living arrangements for the children having regard to findings I have already made and such further evidence as may be necessary to determine the issue at that time.
958I have already said it is not in the best interests of the children to attend the CPU for further therapy and I shall order accordingly.
959It is not in the best interests of the children to be taken overseas by any party while their reunification with the father and the paternal grandparents is on-going. I shall therefore order that the children’s passports are held by the Court.
THE PROPOSED ORDERS
960Subject to hearing from counsel the orders I propose to make are as follows:
1All previous parenting orders relating to the children [CHILD A] born in 2001 and [CHILD B] born in 2004 (“the children”) be discharged.
UNTIL FURTHER ORDER
Parental Responsibility
2The mother have sole parental responsibility for all major long-term issues in respect of the children, save that the mother shall, prior to making the ultimate decision about any issue:
a)use her best endeavours to advise the father in writing of the decision intended to be made;
b) seek the father’s written response in relation thereto;
c)consider, by reference to the best interests of the children, any such response prior to making any such decision; and
d)advise the father in writing as soon as reasonably practicable of her ultimate decision.
Live with, spend time and communication
3The children live with the mother.
4The children spend time with the father as recommended by the therapist referred to in paragraph 6 below.
5The children spend time with the paternal grandparents as recommended by the therapist referred to in paragraph 6 below.
6The parties and the children to participate in therapy provided by such therapist as is recommended by the Independent Children’s Lawyer (‘the ICL’) and to give effect to such therapy:
a) the parties do all things necessary to facilitate such therapy;
b)the parties comply with all reasonable requests made by the recommended therapist;
c)there be liberty for the ICL to apply to re-list the matter at short notice.
7The mother, the father and the paternal grandparents attend upon the therapist referred to in paragraph 6 as directed by that person.
8The costs of therapy:
a)for the children shall be met equally by the father and the mother;
b)for the mother shall be met by the mother;
c)for the father shall be met by the father;
d)for the paternal grandparents shall be met by the paternal grandparents.
9The ICL be at liberty to provide a copy of all reports prepared by the Single Expert Witness, these orders and these reasons for judgment to any psychologist, psychiatrist or mental health professional working with the children or any of the parties, the Department for Child Protection and Family Support and, should any further criminal complaints be made with respect to the children, to the WA Commissioner of Police (if requested by the investigating officer).
10Within 6 weeks, the mother attend upon a psychiatrist nominated by the ICL for an assessment as to the following:
a) whether the mother has a mental illness or personality disorder;
b)if so, the nature and extent of the illness or personality disorder and the impact that this may have on her capacity to parent the children and co-parent them with the father; and
c) whether any, and if so, what treatment is recommended.
11In the event:
a) the mother opposes the psychiatrist nominated by the ICL she be at liberty to re-list the proceedings to seek the appointment of a different psychiatrist;
b)a party opposes the therapist recommended by the ICL that party be at liberty to relist the proceedings to seek the appointment of a different therapist.
12The mother attend all appointments nominated by the psychiatrist and otherwise comply with all reasonable requests made by the psychiatrist in order to facilitate the completion of the assessment.
13The psychiatrist be permitted to talk to and/or request information directly from any third parties for the purpose of his/her assessment and if necessary inspect any subpoenaed material in these proceedings.
14Upon completion of his/her assessment, the psychiatrist forward a copy of it to the Family Court of Western Australia and the ICL.
15The mother meet the costs associated with her psychiatric assessment.
Additional Counselling & Assessment
16The ICL be at liberty to liaise with and obtain reports from the children’s therapist and any mental health professional working with the parties.
17Subject to the approval of the ICL the mother attend therapeutic counselling with a clinical psychologist of her choice and provide the ICL with the name and contact details of that person prior to her first appointment date/time.
18In the event that any of the therapists referred to above consider that it would be in the children’s best interests, the therapists be permitted to liaise with one another.
Provision of Information
19This order is authority for the children’s school to provide to the father, at his expense, such reports or information as may be requested about the children, copies of the children’s school reports, any school newsletters and other notices issued from time to time.
20The mother shall keep the father informed of:
a) all issues in relation to the children’s health and wellbeing and as soon as practicable inform him of any serious medical issue concerning the children;
b)keep the father informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and she shall authorise those practitioners to provide the father with information they are lawfully able to provide about the child.
21The mother and father shall keep each other informed:
a)at all times of their residential address and contact telephone number;
b) of an emergency contact telephone number.
Miscellaneous orders
22All parties be restrained and an injunction issued restraining all parties from arranging or facilitating through any other person any further counselling for the children with the Child Protection Unit at Princess Margaret Hospital (“The CPU”) or any of the social workers employed by the CPU, including but not limited to [Ms Hackett], [Ms James] and [Dr Hunter].
23Each of children’s passports is to be held by the Court. The children may not be taken overseas without the written consent of all parties, or Order of the Court.
Additional orders
24The father and the paternal grandfather each be restrained and an injunction granted restraining each of them from consuming any illicit substance while the children are in their care or 24 hours beforehand.
25Pursuant to s 65 L of the Family Law Act 1975 (“the Act”) the Manager of the Family Court Consultancy Services nominate a Family Consultant or Consultants to:
a)supervise, as far as practicable, the parties’ compliance with these orders; and
b)provide to any party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of these orders.
Procedural
26The matter be listed before Justice Duncanson in relation to monitoring the respective therapy/assessments and to further define these orders as may be necessary.
I certify that the preceding [960] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Legal Associate
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