Mantell & Mantell
[2021] FamCA 11
•22 January 2021
FAMILY COURT OF AUSTRALIA
Mantell & Mantell [2021] FamCA 11
File number(s): PAC 6162 of 2020 Judgment of: HANNAM J Date of judgment: 22 January 2021 Catchwords: FAMILY LAW – CHILDREN – interim parenting – where the mother contends that the father poses an unacceptable risk of harm to the children primarily relating to sexual abuse – where the Joint Child Protection Response Program have investigated allegations of sexual abuse against the father and not substantiated same – where the Independent Children’s Lawyer (“ICL”) considers that interim orders for time between the children and father be supervised by a professional supervision agency to be in the children’s best interests – orders made as proposed by the ICL. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
SS & AH [2010] FamCAFC 13
Number of paragraphs: 104 Date of hearing: 19 January 2020 Place: Parramatta Solicitor for the Applicant: Ms Ralston Solicitor for the Respondent: Ms Knight Solicitor for the Independent Children's Lawyer: Mr Lennon ORDERS
PAC 6162 of 2020 BETWEEN: MS MANTELL
ApplicantAND: MR MANTELL
Respondent
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
22 JANUARY 2021
THE COURT ORDERS THAT PENDING FURTHER ORDER:
1.X born … 2016 and Y born … 2014 (“the children”) are to live with the mother.
2.The children are to spend time with their father on one occasion each week to be supervised by the supervision service B Services for a period of three hours or such other time as B Services can accommodate.
3.Supervised time is to commence as soon as it can be practicably arranged. To enable supervision to commence the parties are to forthwith do all things required of them by B Services such as completing all intake steps and signing all necessary documents.
4.The costs of supervision by B Services are to be borne by the father.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mantell & Mantell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties (“the mother” and “the father”) are engaged in a dispute in relation to the future parenting of their two daughters aged six and four (“the children”).
Since separation some years ago the children have lived with the mother and spent time with the father as agreed between the parties.
In late 2020 an anonymous report was made to the Department of Communities and Justice (“the Department”) alleging that the father had admitted to the reporter that he had sexually abused the children and another child. The ensuing investigation by the Department into this report did not result in any further action being taken as the allegations of sexual abuse were not substantiated. It also appears that other anonymous complaints of a similar nature against the father in relation to other children have been made to police, though nothing further is known about those complaints or any investigation and the father has not been interviewed in relation to them.
The mother contends that notwithstanding that the complaints have not been substantiated, the father poses an unacceptable risk of harm to the children for various reasons, primarily relating to sexual abuse. It is her contention that this risk is unable to be mitigated by any means including through supervision of the father’s time. The mother seeks orders that the children live with her, spend no time with the father and that the only communication between them be by letters.
Although the father contends that he does not pose any risk of harm to the children on any basis he proposes in this application for interim orders that the children spend time during the day only twice a week with him and that his mother (“the paternal grandmother”) be present during that time.
The Independent Children’s Lawyer (“ICL”) considers that proper interim orders for the children would see weekly time with the father supervised by a professional supervision agency.
The question for me to determine is which of the proposals is proper having regard to the best interests of the children being the paramount consideration.
BACKGROUND
The father aged 35 and the mother aged 32 began living together in 2013. Prior to the commencement of their relationship the father had experienced some difficulties with his mental health and misuse of substances and alcohol.
The parties’ first child, a daughter now aged six, was born in 2014 (“the older child”). From around the time of the birth of the older child the father has been engaged in his own business while the mother has been the principal caregiver.
The parties married in 2015.
Their second child, another daughter (“the younger child”), was born in 2016 and is now four.
There was a physical altercation between the parties in May 2017 in which each allege that the other was the main aggressor. A short time later the father admitted himself to a clinic for three weeks for the purposes of receiving treatment for his substance and alcohol misuse and associated mental health difficulties. The relationship between the parties was intact at this stage and the mother took the children to visit the father during his time at the clinic.
The father contends that he satisfactorily addressed his substance and alcohol misuse difficulties through the clinic admission and his ongoing attendance at Alcoholics Anonymous and later Narcotics Anonymous from the time of his discharge from the clinic to the present. The mother takes issue with the father’s contention that he has overcome his difficulties in relation to substance misuse and associated mental health difficulties and sets out in her affidavit events over many years which raise concern about these matters, many of which are denied by the father. The mother does not adduce any evidence about current incidents of this nature though she maintains that there is risk to the children arising from the father’s past pattern of drug and alcohol misuse and mental health difficulties and associated erratic behaviour.
The parties separated in August 2017 when the younger child was a few months old and the older child about two and a half. The father moved from the family home and initially went to live with his parents (“the paternal grandparents”) while the children remained living with their mother. The father spent time with the children under an informal agreement between the parties though the extent of this time is a matter in dispute. The mother claims that this time was always supervised by herself or the maternal grandmother due to her concerns about the father’s behaviour.
For about six months in 2018 the father rented his own premises but the parties could not reach agreement about the children spending time with him at those premises. Initially in 2018 the parties were in dispute in relation to the children’s time with the father. During one period of about eight weeks the mother withheld the children from the father entirely and on at least one other occasion the mother contacted police in relation to the father’s behaviour but no action was taken by them.
In the early months of 2018 the parties reached agreement following a number of mediation sessions for the father to spend time with the children three times a week supervised by the mother or maternal grandmother. By the end of June 2018 they had reached agreement for this time with the children to be unsupervised and time occurred in accordance with the agreement until October 2020.
In 2018 the father also returned to live with the paternal grandparents together with one of the father’s sisters (“the paternal aunt”) and the paternal aunt’s child, (“the father’s nephew”) then aged nine. In late 2018 the paternal aunt died and the paternal grandparents assumed care of the father’s nephew. As a resident of the home, the father also had some involvement in the care and upbringing of his nephew.
In November 2019 the children first spent time with the father away from Sydney as part of an extended paternal family celebration.
In 2020 the father spent additional time with the children at the mother’s request on occasions to support the mother while she attended funerals of significant family members and for other reasons such as taking the children to medical appointments. On occasions the father took time off work to provide this assistance and on 1 October 2020 the children spent overnight time with him at the paternal grandparents’ home for the first time by agreement with the mother.
Although it was not known by the parties at the time, on 14 September and 29 September 2020 the Department received two notifications described in the Magellan Report[1] dated 4 January 2021 as “pertaining to significant risk of sexual abuse for [the children] from their father”. The Department records that these notifications were determined as “risk of significant harm” reports requiring action from the Department within 24 hours. The Magellan Report does not particularise the details of these reports and although it is recorded that a decision was made that the matters would be investigated by JCPRP (a tri-agency program consisting of police, the Department and New South Wales Health), no action appears to have been taken by any investigators at the time.
[1] A Magellan Report sets out the involvement of the Department of Communities and Justice with the family.
After the occasion on which the children spent time with the father at his home on 1 October 2020 the mother told the father that the older child claimed that he slept in bed with her “without any clothes on”. The father does not dispute sleeping with this child and says that the mother was also aware of this fact but says he was wearing underpants and informed the mother that this was the case. The mother did not ask the father to change his sleeping attire at the time though the father says he would have worn pyjamas if he had known that this was a problem.
The children again spent overnight time with the father on 24 October 2020. The mother claims that prior to this event the older child expressed anxiety to her about the father having slept “without clothes on” on the last occasion.
On 29 October 2020 a further report alleging sexual abuse of the children by the father was made to the Department which was also considered as requiring investigation within 24 hours by JCPRP. According to the Magellan Report, the anonymous reporter (identified as a “partner”) reported that after engaging in oral sex with the father the father said “I’m surprised you couldn’t taste [the older child] on my dick” and that the father had sent a text message stating “I am molesting my daughters”. According to the Magellan Report, on the same day it was also reported (though it is unclear whether this was a separate notification) that the father stated to the reporter that he had “fingered” his 17-month-old niece.
The following day, 30 October 2020, the mother was informed by caseworkers from the Department attached to JCPRP of the investigation after the caseworkers had attended at the older child’s school for the purpose of an interview. In the course of the interview the older child did not make any disclosures pertaining to the father. Three days later, the younger child was interviewed and also did not make any disclosures pertaining to her father.
The mother did not make the children available to spend time with the father when that was next due to occur on 1 November 2020, on the advice of departmental caseworkers. Although the mother did not make the children available to spend time with the father she continued to facilitate video telephone calls between them.
The mother first engaged a lawyer in relation to the children’s parenting arrangements in early November 2020. The father first became aware of the allegations of sexual abuse on 5 November 2020 when he was advised by email from the mother’s lawyer to contact “JIRT” (the name by which JCPRP was formerly known). He had not at this stage been contacted by police, the Department or any other government agency in relation to the matter.
The father remained in the dark about the allegations until he was first able to make contact on 18 November 2020 with an investigator who he understood had carriage of the investigation (whose full name and contact details remain unknown to the father). This police officer told him of the nature of the complaint and that the investigation into the allegations could continue for up to 90 days. Following this conversation the father has not been further contacted by police, the Department or any other government agency in relation to any complaint concerning his conduct.
According to an affidavit filed by the paternal grandmother (and there is no other evidence relating to this matter) on the same day, 18 November 2020, the paternal grandmother was also contacted by caseworkers from the Department who informed her that they had interviewed the father’s nephew at school as there had also been a report “regarding [the father’s nephew] and [the father]”.
The caseworkers also subsequently met with the paternal grandparents at their home. Although the caseworkers did not provide the paternal grandmother with any further information in relation to the allegation, she deposes that they informed her that they could remove the father’s nephew from her household if they found “anything that is not right”. The caseworkers carried out an inspection of the home and asked the paternal grandmother some questions in relation to this child’s living arrangements. Nothing further is known about the allegation or investigation by the Department in relation to this child.
According to her affidavit (and again there is no further evidence about the matter) on 21 November 2020 the paternal grandmother received a telephone call from a person claiming to be from the local police asking questions about the names of her other grandchildren and informing her that police “have received an anonymous tip regarding [the father’s 18 month old niece] and [the father]”. This person told the paternal grandmother that she could not elaborate in relation to this tip. The paternal grandmother gave this person the phone number for her daughter (“the father’s sister”), being the mother of the father’s niece and subsequently was told by the father’s sister that a person from the same police station had spoken to her in relation to the allegation.
The paternal grandmother deposes to the father’s sister telling her that the person from the local police “told me that they had received an anonymous tip and suggested that I didn’t see [the father] due to concerns about [the father’s niece] being in his presence”.
The paternal grandmother also deposes that on the afternoon the same day, 21 November 2020, the same “lady” (presumably purportedly from the local police) contacted her again informing her that further anonymous complaints had been received about another of the father’s nephews and another child said to have been connected to the family (who the paternal grandmother deposes is not a family member and that she informed the “lady” of this fact). The paternal grandmother deposes that this person informed her that she would make further contact but that this did not occur.
The paternal grandmother deposes to a further conversation with police on 24 November 2020 which took the matter no further. A police officer assured the paternal grandmother that somebody would make contact with her but no further contact has been made by police.
On 3 December 2020 two people “from JIRT” came to the paternal grandmother’s home and interviewed the paternal grandmother and the father’s sister about the investigation concerning the father’s 18 month old niece. There is no evidence that the nature of the allegations were explained to any person but these officers asked the father’s sister about the father’s interaction with his niece and the paternal grandmother was asked questions about the father’s conduct generally. The paternal grandmother deposes that one of the officers said “we have no adverse reports from the interviews with [the older daughter] or [the father’s nephew] regarding [the father]”, that “off the record these allegations would be unfounded” and “we will be contacting [the father] in due course for an interview”. The father has never been contacted for an interview.
The Magellan Report makes no reference to any complaints made to the Department about the father’s conduct towards any person other than the children and the father’s niece or any other related investigation.
There are no records from police or any other evidence to confirm that complaints about the father’s conduct towards any children have been made or investigated by police.
The Magellan Report records that there were four further reports about the children made to the Department in November and December 2020 but three of those were duplicate reports including a notification by this court of the Notices of Risk filed by the parties. The fourth, dated 24 November 2020, reported historical concerns of physical, verbal and controlling domestic violence in the parties’ relationship and a complaint that the father had slept naked with the older child, causing her to feel anxious and scared and of the father making inappropriate sexual comments to the children. The report does not outline any further details concerning these matters or any investigation in relation to the November and December reports.
THE LAW & DISCUSSION
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286 (“Goode”).
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
Assessment of Risk
Although when considering interim orders, the Court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts, the Court may and in some circumstances must have regard to the matters in dispute. There is a long line of authority to the effect that a court effectively must make an assessment of matters in dispute relating to alleged risks to the children.
In SS & AH [2010] FamCAFC 13, the Full Court said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiter & Deiter [2011] FamCAFC 82 (“Deiter”) at [61] the Full Court said:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court
The mother contends that there is an unacceptable risk of harm to the children arising from the allegations of sexual abuse against them and other children and from the significant shortcomings in the father’s capacity to care for the children related to his substance and alcohol misuse and associated mental health difficulties.
Having regard to the father’s application which would see the children spend reasonably limited time during the day only with him, the main focus of the mother’s concern about the risks posed by the father in this application relate to the harm arising from sexual abuse if that were to occur including emotional or psychological harm to the children if they were brought into contact with the father and such abuse had occurred in the past or were to occur in the future.
It is contended on the behalf of the mother that the notifications made to the Department and police that the father had sexually abused the children and other children in his extended family and the assessment by the Department that there is a “substantiated risk of sexual abuse from the father” should be given great weight.
It is contended on behalf of the father that he does not pose any unacceptable risk of harm to the children. He submits that little weight should be attached to the complaints themselves and the assessment by JCPRP that these allegations are not substantiated should be considered weighty.
The position of the ICL in relation to the alleged risk of harm posed by the father is somewhat unclear. The tenor of the ICL’s submissions is that the Department’s non- substantiation of the allegations is significant but for other reasons to which I will return it is in the children’s best interests that orders be made for their time with the father to be supervised by a professional agency.
As can be seen in the background set out earlier in these Reasons the evidence in relation to the allegations made against the father of sexual abuse towards his children and other children is most unsatisfactory. The Magellan Report which is the primary source of information about these complaints was not released to the parties in sufficient time for subpoenae to be issued and further information obtained for the purposes of the interim hearing, which had already been adjourned previously due to the unavailability of the Magellan Report.
The Magellan Report gives no information in relation to the first two complaints of sexual abuse made on 14 September and 29 September 2020 and under the heading of “Risk Determination” in relation to these complaints the following only is written:
Reported concerns pertaining to significant risk of sexual abuse for [the children] from their father [named].
As previously noted although the Department regarded these complaints as “relating to allegations that [the children] were at significant risk of sexual abuse from their father”, and an assessment was made that action was required in less than 24 hours with the assessment to be lead by JCPRP, it would appear that no action was taken until a month later when two further reports were received by the Department on 29 October 2020.
The allegations in relation to the father’s conduct made on 29 October are more specific being that the father reported to a “partner” in conversation and in a text message that he was “molesting” his children and had “fingered” his niece then aged 17 months.
It would appear from the Magellan Report that the investigation into these matters consisted only of interviewing the children and the niece’s mother. There is no suggestion that the reporter was interviewed or the incriminating text message found to be in existence. Although the complaint was said to have been anonymous the complainant also claimed to be a “partner” of the father at the time the complaint was made. It is likely in my view that reporter’s identity may have been ascertained without too much difficulty and the person interviewed. There is no suggestion that the alleged text message in which a significant admission was said to have been made has been seen by any investigator. Further, the father was not interviewed by any person associated with the JCPRP. These matters give rise to an inference that the investigators may have considered that there was such little substance to the complaint that it did not warrant a more thorough investigation.
According to the Magellan Report, the older child when interviewed did not make any disclosures in relation to the father. This child stated that she likes it when “daddy gets on his hands and knees and acts like a horse and we jump all over him” and said that she “doesn’t like when daddy doesn’t give her and [the younger child] any ice cream”. When the younger child was interviewed she also did not make any disclosures pertaining to her father and when asked what she liked and what she didn’t like about her father she answered “I don’t know”. The Magellan Report also records that the children had appropriate responses to the female body chart shown to them and to questions about appropriate people touching various parts of their body. The mother was also interviewed by JCPRP case workers and informed them of the father’s behaviour which she considered inappropriate (which is disputed by the father) including the complaints made by the older child which are recorded in the Magellan Report as being “daddy slept naked”.
As previously noted there is no other evidence in relation to the allegations that the father sexually abused the children. In these circumstances the allegations were not substantiated by JCPRP.
The allegations that the father had sexually abused his 17 month old niece and two nephews and another child (previously in some way associated with the paternal family but not related to them) are even more problematic.
The alleged abuse of the father’s infant niece is touched upon in the Magellan Report but not dealt with at great length. There are no details of the investigation of this allegation provided in the Report though it appears from the affidavit of the paternal grandmother that the father’s sister (mother of the infant niece) was interviewed by police and reported nothing untoward. Although this allegation was said to be investigated by the JCPRP the father was also not interviewed in relation to it. It would appear from the Magellan Report that this allegation of sexual abuse has also not been substantiated.
There is no evidence at all in relation to the content of any complaint against the father’s nephew other than that police received an anonymous tip “regarding this child” and the father, that this child was interviewed by police or departmental officers and that the paternal grandmother was also asked questions about this child. Although there is a suggestion that a further anonymous complaint has been made about another nephew in the paternal household there is no further information in relation to this matter. The final allegation is said to relate to a child previously associated with the paternal family who the father deposes he has not ever met.
Although I do not make any findings in relation to these allegations, when weighing the probabilities of those events having occurred as alleged, very little weight, if any, in my view can be attached to the mere making of an allegation. This is particularly so where the content of the allegation is unknown, the reporter is said to be anonymous, and it is based upon admissions said to have been made by the father who has not been questioned in relation to the conduct and denies that it occurred.
In contending that there is an unacceptable risk of harm to the children posed by the father, significant weight is attached by the mother to the JCPRP having “substantiated risk of sexual abuse from the father” (notwithstanding that sexual abuse has not been substantiated). The meaning to be attached to this “substantiated risk” however is unclear.
It goes without saying that even if the JCPRP (or more relevantly for the purposes of this application, the Court) may not be satisfied at final hearing that the father sexually abused the children or other children as alleged, there may nonetheless remain a risk that he may do so in the future. In the circumstances of this case however it appears that the only evidence of any substance in relation to this risk is the suggestion that the father himself has admitted to an anonymous person (describing herself as a partner) that he has in the past “molested” his children and niece.
It is submitted on behalf of the mother in this application that as the father slept naked with the older child on the first occasion of overnight time in October 2020 and this child expressed reluctance and or anxiety about spending further overnight time with him for this reason these are also relevant matters in relation to this domain of risk.
Although I do not make any findings as to this matter I attach some weight to a lack of certainty or clarity about the suggestion that the father slept naked with the older child. Although it is recorded in the Magellan Report that the mother advised case workers that the older child disclosed that her father had slept “naked”, in her affidavit the mother deposes that the older child complained that “daddy didn’t sleep with any clothes on” (sic).
In her affidavit the mother also deposes that she considered it “unusual” that the father chose to sleep with the older child in the same bed and it appears this is another matter she relies upon in relation to risk.
According to the father’s affidavit he wore underwear when the older child slept in his bed on 1 October 2020 as had been his regular practice including when the relationship with the mother was intact. He also deposes that he told the mother he was wearing underpants when she asked him about this matter following the 1 October 2020 visit. The child’s report that the father wasn’t wearing “any clothes” when sleeping may be considered equally consistent with the father’s evidence of wearing only underwear.
The father also deposes that the mother did not ask him to change his sleeping attire, and that she was aware that the older child slept with him and did not raise difficulties in relation to either of these matters when she made the children available to him to stay overnight a few weeks later.
Text messages interchanged between the parties on the first occasion the children slept overnight with the father are consistent with the father informing the mother that he was going to share a bed with the older child and that the mother made no complaint or raised any suggestion that she found this unusual or in any way untoward.
In my view it is unlikely that at final hearing a court would be satisfied to the requisite standard that the father had sexually abused the children or any other children as alleged due to the paucity and unreliable nature of the evidence and where it seems unlikely that any further evidence will be forthcoming given that the investigation appears to have been closed. I am also of the view that while the other issues raised by the mother, even if determined as she seeks, may give rise to a finding of some risk posed by the father, it is not likely to be assessed as an unacceptable risk.
Further, in considering the competing applications for interim orders I do not accept the submission that any risk that may be found to be posed by the father at a future hearing is incapable of being mitigated in any way including by limiting and supervising the father’s time with the children.
The mother concedes that supervision would undoubtedly mitigate the risk of the father sexually or in any other way abusing the children during his time with them. It is submitted that supervision would not provide adequate protection against the emotional harm that would be occasioned to the children if they were to be brought into contact with a father if there was an unacceptable risk that he had sexually abused them in the past or may do so in the future.
For the reasons given I am of the view that even if a court were find the matters of risk (such as sleeping with the older child “naked” and this child’s anxiety) as she contends, it is unlikely that a court will find that the risk of sexual abuse the children arising from these findings is unacceptable. Accordingly, the risk of emotional abuse as articulated is likewise remote.
As previously explained the other domain of risk identified by the mother is said to arise from her concerns about the erratic and neglectful behaviour of the father associated with his substance and alcohol misuse and associated mental health difficulties. Once again it is not possible to make any findings in relation to these matters at this interim hearing. Although the mother concedes that she has no current evidence that the father is misusing substances or alcohol, she has concern about these matters due to other his alleged evasive and suspicious conduct in regularly changing his mobile phones and not remaining in contact with her when the children are in his care, matters which I understand he disputes. In my view even if such conduct were to be found to be occurring it would not be sufficiently grave as to justify the orders that the mother seeks that the father spend no time with the children and any risk arising from these matters would be likely to be capable of being mitigated through limited and or supervised time with the father.
The law applied to the competing applications
In applying the law to the facts, the Court must uphold the relevant Objects and Principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s 65D(1), subject to certain sections a court may make such parenting order as it thinks proper.
Section 61DA provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the Court considers that it would not be appropriate.
In my view it is inappropriate to apply the presumption to this application. Neither party nor the ICL seek orders in relation to parental responsibility and these proceedings are at a very early state where many relevant factual matters cannot be determined. Further, given the parties’ respective contentions in this application there is no evidence to suggest they currently have the capacity to make decisions jointly in the best interests of the children.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
In Deiter, the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration.
The application for interim orders was made at the early stage in the proceedings. Due to the absence of any information in relation to the serious allegations that had been made against the father the application was unable to be heard when first listed in December 2020. At that stage the children already had experienced a period of about six weeks without contact with the father and by the time this application was heard and judgment delivered the period of non-contact will have extended to three months.
The next stage in the proceedings will take some months during which subpoenae to relevant agencies and a report from an expert is to be obtained. If orders were made as sought by the mother the children would experience a further period of many months without any contact with their father which is a matter of some significance having regard to the previous pattern of care, in which they spent time with him on two or three occasion per week.
If orders are made as sought by the father and a future court were to find that he poses an unacceptable risk of harm to the children, if would be a matter of great significance if the time they spent with him was not formally supervised as her proposes.
The ICL’s proposal balances the two more extreme positions maintained by the parties.
The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.
The primary considerations: s 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant” (see McCall & Clark (2009) FLC 93-405 and Mazorski & Albright (2007) 37 Fam LR 518 at [26]).
If orders are made as sought by the mother, the children will be deprived of having a meaningful relationship with the father as I consider that communication limited to sending and receiving letters and/or gifts is insufficient to sustain that relationship. The only basis upon which it appears to be contended that the children may not receive a benefit from having a meaningful relationship with their father is that it may be found that he poses an unacceptable risk of harm to them arising from sexual abuse and/or abuse or neglect from his parenting shortcomings which is also relevant to the second of the primary considerations.
For the reasons given I consider it unlikely that the father will be found to pose an unacceptable risk of harm to the children and there is no other basis upon which it is contended that they do not receive a benefit from sharing a meaningful relationship with him.
I accept the submission made by the ICL that the orders the ICL proposes if made will provide an appropriate balance between the two primary considerations. An arrangement of professionally supervised time with the father will both foster the children’s meaningful relationships with him while addressing the need to protect the children from harm in circumstances where no findings can be made about these matters.
The additional considerations: s 60CC(3)
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.
Views expressed by the children
The views of the children in relation to this interim parenting application are unknown. Although the mother deposes to the older child expressing some anxiety about spending overnight time with the father, his application does not include an order for overnight time. Further, although the views of these children have not yet been sought in the usual manner, I attach some weight to the fact that when interviewed by JCPRP neither child expressed any concern about the father’s conduct or spending time with him.
The nature of the relationship of the children with each of the children’s parents, and other persons
An expert opinion in relation to this matter has not yet been obtained. For the purposes of the application it can in my view be assumed from the undisputed evidence about the pattern of care of the children following separation that they have an attachment relationship with each of their parents, though it is likely to be stronger and more developed with the mother who has been the primary carer throughout the children’s lives.
Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, spend time with or communicate with the children and the extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the children
Little is known about these matters which are not in any event particularly weighty in this application.
Likely effect of any change in the children’s circumstances
When the mother withheld the children from the father on the advice of the Department when their investigation into the allegations of sexual abuse was in its earliest stages, a significant change in the children’s circumstances was brought about. Prior to this time the children spent time with the father on three occasions per week including a whole day each Sunday. Subsequently all communication between the children and the father was ceased by court order. This arrangement of no time and virtually no communication with the father will continue under the mother’s proposals. In my view such an arrangement is likely to be detrimental to the children given their ages, previous patterns of care by the father and likely relationships with their father and members of the paternal family.
The proposal of the father will bring about a return to the previous parenting arrangement prior to late October 2020 with a slight reduction in the children’s time with him. Given the absence of any evidence concerning a detrimental impact on either child when separated from the mother (other than some anxiety about spending time with the father overnight which does not form part of his proposal) it is unlikely in my view that the children will experience any negative impact from the parenting arrangement proposed by the father.
The regime of time proposed by the ICL will involve a significant reduction in the time the children previously spent with their father prior to the mother withholding them from him and as compared to the father’s proposal. However, this arrangement provides sufficient regularity (being once per week) and duration (three hours each occasion) to support the children’s relationship with the father while not involving lengthy periods of separation from their mother.
Practical difficulty and expense of a children spending time with and communicating with a parent
The father’s proposal entails less practical difficulty and in particular less expense than the proposal of the ICL. Some weight is attached to this matter but given that the father concedes he can afford the expense associated with supervision if required and other matters are more weighty, this matter is of less significance than other considerations.
Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs
The father does not raise any issues of concern in relation to the mother which is consistent with his position that it has been appropriate for the children to be primarily cared for by her since separation.
The mother raises some concerns of significance in relation to alleged impairments in the father’s capacity to provide for the children’s needs arising from his substance and alcohol misuse and associated mental health difficulties which she contends may still be problematic. Although this is clearly a matter which is likely to involve a greater degree of consideration at final hearing (and there is limited evidence currently available) I do not consider it particularly weighty for the reasons given in this interim application.
Maturity, sex, lifestyle, background, including lifestyle, culture and traditions, of the children and of either parent
Attitude to the children and responsibilities of parenthood demonstrated by each parent
In proposing a parenting arrangement that will see the children’s time with the father supervised by a professional agency as opposed to that time occurring in the presence of the paternal grandmother, the ICL attaches particular weight to these considerations.
Although the ICL concedes that the non-substantiation of the child abuse allegations against the father is weighty, I accept his submission that the mother behaved in a responsible manner in withholding the children from the father when she was first aware of the allegations. I also accept that given the limited scope of the investigation and unsatisfactory nature of the material provided by the Department and the Department’s assessment of significant risk of sexual abuse, her concerns about the children spending time with their father are particularly heightened. This is also evident in her application that the children spend no time with the father.
I accept the ICL’s contention that if orders were made as proposed by the father in these circumstances it is likely that the children will be exposed to the parental dispute through questioning about the circumstances when spending time with their father even if such exposure is unintentional. In my view the proposal for professional supervision more properly addresses these matters than the father’s proposal that the paternal grandmother be present during the children’s time with him. In expressing such a view I do not make any finding nor should any inference be drawn about my views concerning the protective capacity of the paternal grandmother.
Family violence
Each of the parents give some evidence of incidents that would fall within the definition of family violence in the Act, though this does not appear to be a particularly salient matter in this interim application as neither contends that the children will be exposed to family violence under the proposals under consideration.
Whether preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
I give some weight to my assessment that it is more likely that further proceedings including in particular contravention proceedings would be instituted if orders were made as proposed by the father than under the alternate proposals. This arises from the mother’s likely heightened anxiety as discussed and concerns about compliance with the order relating to the presence of the paternal grandmother.
CONCLUSION
In coming to a decision about what orders are proper and in the children’s best interests, I must balance the various matters to which I have referred. In my view on the limited material available at this stage it is in the children’s best interest to maintain a relationship with their father from which I consider they receive a benefit and the orders which foster such a relationship and are otherwise in the children’s best interests are those as proposed by the ICL.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 22 January 2021
Key Legal Topics
Areas of Law
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Family Law
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