Marks and Barton

FAMILY COURT OF AUSTRALIA

MARKS & BARTON

[2016] FamCA 500

FAMILY LAW – Parenting — final orders — heard and determined undefended — mother granted sole parental responsibility.

APPLICANT:

Mr Marks

RESPONDENT:

Ms Barton

INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

FILE NUMBER:

MLC

6399

2013

DATE DELIVERED:

21 June 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

7 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE APPLICANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Ms Bonney

SOLICITOR FOR THE RESPONDENT:

Ms Howe, N Domestic Violence Services

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Kourtis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

IT IS ORDERED THAT:

This matter proceed on an undefended basis.
All previous orders be discharged.
The mother have sole parental responsibility for the children B born … 2008 and C born … 2009 (“the children”).
The mother inform the father and keep him informed of decisions regarding major long term issues affecting the children, including the children’s:-
a)      Education, both current and future;
b)      Religious and cultural upbringing;
c)      Health;
d)      Name; and
e)      Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
The children live with the mother.
For the avoidance of doubt, the mother be permitted to relocate the children to the Melbourne area as soon as housing becomes available.
The father spend time with the children as follows:-
a)      At the supervised contact centre located closest to their residence for a period of three months;
b)      Thereafter, and upon the preparation of a positive report about the progress of contact, as agreed between the parties in writing; and
c)      As otherwise agreed between the parties in writing.
The father communicate with the children by letter and send gifts for special occasions.
The mother do all such acts and things to obtain a referral for the children to be assessed by the Child and Adolescent Mental Health Service and for the purposes of such assessment the mother provide copies of:-
a)      D Region Centre against Sexual Assault report dated 14 July 2013;
b)      The (undated) Department of Human Services Magellan Report;
c)      The affidavit of Dr E filed 26 August 2014;
d)      The Family Report of June 30 2015;
e)      The affidavit of Ms F filed 3 September 2015; and
f)      The reasons for decision of Justice Bennett.
The parties notify and keep each other notified of:-
a) Their contact details, including mobile telephone number and residential address; and
b) Emergencies or other issues affecting the children’s welfare.
The appointment of the independent children’s lawyer be discharged.
All applications be dismissed and this matter be removed from the pending cases list maintained by the Court.
I reserve the publication of my reasons for decision this day to a date to be fixed.

IT IS DIRECTED:

The letter from the independent children’s lawyer to Mr Marks and Ms Howe dated 14 July 2015 be marked Exhibit “ICL 1” and remain on the Court file.
The copy ‘Offender into Custody Report’ dated 19 September 2014 be marked Exhibit “ICL 2” and remain on the Court file.
Upon publication of my reasons for decision this day to the parties the Subpoenaed Documents Clerk of this Registry return any documents produced on subpoena to the owner within 28 days.

IT IS FURTHER ORDERED THAT:

Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Marks & Barton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6399 of 2013

Mr Marks

Applicant

And

Ms Barton

Respondent

REASONS FOR JUDGMENT

Introduction

On 7 September 2015, I made parenting orders in relation to the children B born in 2008 and C born in 2009 (“the children”) and reserved my reasons for judgment to be published at a later date. These are those reasons.
Broadly speaking the dispute is whether the mother should have sole parental responsibility for the children. The mother is also seeking to relocate to Melbourne.
The father’s proposal for the care of the children is not known at the time of this hearing. In the father’s initiating application filed on 18 June 2013 he seeks final orders for equal shared parental responsibility for the children and that they live with him week about. His lawyers filed a Notice of Ceasing to Act on 11 June 2015. The father has not filed any further documents since.
The father has not filed an Amended Application or Trial Affidavit and did not participate in the preparation of the Family Report prepared by Mr G on 30 June 2015.
There was no appearance by the father when he was called at the door of the court at 10.37am.
The mother filed a Further Amended Response on 25 June 2015 seeking sole parental responsibility for the children, that they live with her and spend an initial period of supervised time with the father, and thereafter as agreed between the parties.
Expert opinions of the family consultant, the CASA counsellor and the consultant psychologist differ as to whether the father presents an unacceptable risk to the children, and the orders sought by the independent children’s lawyer are on the basis that this issue remains unresolved.
I am satisfied the that mother should have sole parental responsibility but be obliged to keep the father informed of decisions in relation to major long-term decisions about the girls or either of them.
Pursuant to an order made on 19 September 2013 Ms Maria Kourtis, Solicitor, was appointed as the independent children’s lawyer for the children within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what she believes those best interests to be.[1] Ms Kourtis is not a legal representative retained by the children and she is not bound by any instructions from them.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the Court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[4]
[1] Family Law Act 1975 (Cth) s 68LA(2).
[2] Family Law Act 1975 (Cth) s 68LA(4).
[3] Family Law Act 1975 (Cth) s 68LA(5)(d).
[4] Family Law Act 1975 (Cth) s 68LA(5)(e).
The independent children’s lawyer has not met with the children because in her view they are too young and had already been interviewed by a number of people. She did not want to add herself to the list.[5]
[5] Transcript of Proceeding, 7 September 2015, 22.
Ms Kourtis has provided an excellent summation of the relevant reports and interviews involving the children and I am confident that the children’s interests are well served by her representation.

Conduct of the Proceedings

These parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply.
The principles for conducting child related proceedings, which I observed, are as follows:[6]
(a)The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
(b)The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
(c)The third principle is that the proceedings are to be conducted in a way that will safeguard the child concerned against family violence, child abuse and child neglect and the parties to the proceedings against family violence.
(d)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
(e)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
[6] Family Law Act 1975 (Cth) s 69ZN.
Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence,[7] cross examination,[8] documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, neither s 55 nor s 135 of the Evidence Act are excluded. Therefore it remains the case that:
a)Only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence which if it were accepted, could rationally affect (either directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings; and
b)The Court may exclude or limit the use of evidence which is relevant and thus admissible if the Court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might:-
i)          be unfairly prejudicial to a party;[9] or
ii)        be misleading or confusing;[10] or
iii)       cause or result in undue waste of time.[11]
[7] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).
[8] With the exception of s 41 relating to improper questions.
[9] Evidence Act1995 (Cth) s 135(a).
[10] Evidence Act1995 (Cth) s 135(b).
[11] Evidence Act1995 (Cth) s 135(c).
The general duties[12] and the general duties and powers relating to evidence[13] expand the Court’s role in the regulation of child related proceedings.
[12] Family Law Act 1975 (Cth) s 69ZQ.
[13] Family Law Act 1975 (Cth) s 69ZX.
It has not been possible to include all aspects on which I heard, or on which there was, evidence. Nonetheless I have taken the totality of the evidence into account. Just because I have not mentioned something in these reasons, it does not follow that I did not have regard it.
I am satisfied that the case was conducted in such a way as to promote an outcome which would be in the children’s best interests.

Background and Procedural History

The Applicant father was born in 1973. At the time of filing his affidavit on 18 June 2013 he was unemployed and in receipt of Newstart Allowance. According to the mother’s affidavit sworn 23 June 2015 he is employed at a local retailer.
The Respondent mother was born in 1984. She is not employed outside the home and lives with her two daughters in housing provided by the Department of Human Services (“DHS”) at a subsided rental rate. She has sole responsibility for the day to day care of her two daughters.
The parties met in either 1999 (according to the mother) or 2000 (according to the father), and commenced cohabitation in either 2000 (according to the mother) or 2001 (according to the father).
During the relationship they had multiple separations and reconciliations of varying duration, the first separation commencing in 2008 shortly after their first daughter’s birth, and the final in August 2012. The parents ceased contact or any form of relationship with each other in late 2012. The parties never married.
The parent’s relationship is characterised by significant levels of parental conflict and incidents of family violence resulting on occasion in Police and/or DHS intervention.
The father has a criminal history which includes violence and the use and possession of illegal drugs. He has served terms of imprisonment for these offences.
B and C are the only children of the relationship. The mother has a daughter from a subsequent relationship who is not part of these proceedings.
The children attend H Town School.
The children have resided with their parents in various arrangements including living jointly with both parents, living primarily with one parent, and alternating between the care of each parent pursuant to court orders. Since the parent’s final separation the children have remained in the primary care of the mother.
C was born with serious birth defects and was transferred to the I Hospital for treatment for her heart and kidney related problems and surgery on her trachea and oesophagus. She continues to have treatment and requires frequent medical services.
In March 2010 the mother raised concerns about B’s sexualised behaviour. At this time the children were in the primary care of the father.
In March 2011 the children became the subject of a 12 month supervision order during which they spent a week-about care arrangement with each parent.
The father was charged with assault in October 2012.
The mother took out intervention proceedings against the father in November 2012 however, these were subsequently dismissed.
B attended D Region CASA to receive counselling with Ms L in 2012 and 2013. Following a Specialist Assessment that was requested by Detective J at H Town Sexual Offences Child Abuse Investigation Team (“SOCIT”) no charges were laid and the file was closed.
The current proceedings were commenced on 18 June 2013 by the father in the H Town Magistrates’ Court seeking joint parental responsibility and equal time with the children in addition to parenting orders.
The mother filed a response on 19 July 2013 seeking orders that the children live with her and the father’s time be reserved. She also sought orders to relocate to Melbourne.
On 1 August 2013 the file was transferred from the Magistrates’ Court to the Federal Circuit Court.
The mother filed an amended response on 27 August 2013 and an affidavit on 29 August 2013.
The matter was transferred to this Court by Order of Judge McGuire in the Federal Circuit Court on 11 September 2013. Interim orders made on 19 September 2013 included the appointment of an independent children’s lawyer. The matter was heard in the Magellan List on 30 October 2013.
In October 2013 the mother and the father completed the independent children’s lawyer request for drug screening. No drugs were detected in the mother’s results, the father results showed detection of cannabis and Benzodiazepine.
The Magellan Report was released and interim orders made in November 2013. The Orders included that the father enrol at K Contact Centre and have two hours a week supervised contact, and that the children live with the mother. The parties were ordered to give a urine sample for testing for illicit substances within 48 hours of a request. The parties were also ordered to attend upon Dr E for the preparation of psychiatric assessment reports of the parents and assessment of the children. It was requested that Dr E prepare a risk assessment of the father, which he has done.
In December 2013, in the County Court, the father was sentenced to 12 months imprisonment with a six month non-parole period. Parole was granted in June 2014 and the children commenced spending time with the father at the H Town Children’s Contact Centre on a fortnightly basis.
The father breached his parole in August 2014 and was returned to custody as a result of drug screening which had detected heroin, methadone and cannabis.
The father completed his term of imprisonment in December 2014 and recommenced supervised time with the children.
In March 2015 the I Hospital raised concerns about the younger daughter’s sexualised behaviour and the matter was referred to CASA for investigation.
The H Town Children’s Contact Centre closed the father’s file in April 2015 due to his lack of attendance.
In June 2015 the father’s legal representation ceased to act for him.
The mother filed a final trial affidavit (sworn 23 June 2015) and Further Amended Response to Initiating Application on 25 June 2015. That same day the father failed to attend the appointment with the family consultant.
The parties commenced Family Dispute Resolution mediation processes on 16 July 2015 however the file was closed on 27 August 2015 as the father failed to respond to attempts to initiate the intake assessment and his lack of willingness to participate in mediation. The mother completed an intake assessment.
The father was served by registered post with the Further Response to an Initiating Application and the final two affidavits sworn by the mother, one of which was in response to matters referred to in the Family Report of 30 June 2015 and which were not yet available to the Court.
The father has filed no Amended Application or trial affidavit.
The final hearing was listed for 7 September 2015.

Evidence

I have regard to the following evidence and documents from the applicant father:
(a) his affidavit sworn 17 June 2013.
The applicant father submits in his initiating application that he seeks final orders for equal shared parental responsibility for the children and that they live with him on a week about basis. The father has not filed any further documents since his lawyers filed a Notice of Ceasing to Act on 11 June 2015. The father’s proposal for the care of the children is unknown at this time.
At the trial the respondent mother relied upon the following evidence:
a)Her affidavit sworn 23 June 2015;
b)Her Further Amended Response filed 25 June 2015;
c)Her further affidavit sworn 28 July 2015 in response to a request by the independent children’s lawyer which attaches the medical assessment from the I Hospital of the youngest child;
d)Affidavit of mother’s solicitor, Carolyn Joy Howe sworn 2 September 2015; and
e)Affidavit of CASA counsellor, Ms L sworn on 6 October 2014 which attaches a Specialist Assessment of the eldest daughter.
The materials and evidence arranged by the independent children’s lawyer were as follows:
a)Outline of Case document;
b)Report of DHS Magellan Report (undated) (“Magellan Report”);
c)Affidavit of Dr E sworn 25 August 2014;
d)Family Report of Family Consultant, Mr G, dated 30 June 2015;
e)Affidavit of Team Leader, K Children’s Contact Services, Ms F sworn 31 August 2015 which attaches a report of the progress of supervised contact visits between the father and the children at Contact Centre in H Town; and
f)Documents produced under subpoena by:
(i)Victoria Police
(ii)DHS
(iii)I Hospital
(iv)D Region CASA; and
(v)Department of Justice
In addition, the independent children’s lawyer relied on two Exhibits:
(i)A letter from the independent children’s lawyer to Mr Marks and Ms Howe dated 14 July 2015 (“ICL 1”)
(ii)An ‘Offender into Custody Report’ dated 19 September 2014 (“ICL 2”)
The respondent mother accepts the following evidence relied upon by the independent children’s lawyer and does not seek any cross-examination:
a)Affidavit of Dr E sworn 25 August 2014;
b)Affidavit of Ms F sworn 31 August 2015;
c)Affidavit of Ms L sworn on 6 October 2014 which attaches a Specialist Assessment of the eldest daughter.

Proof and findings of fact

Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact is a finding of fact.

Procedural Fairness

The applicant father was not present at the hearing but was given notice of the Orders sought by the mother and the independent Children’s Lawyer.
I am satisfied the father has been accorded procedural fairness.
As outlined in Ms Howe’s affidavit, the father was served by registered post with the mother’s affidavit sworn 23 June 2015 and her Further Amended Response filed on 25 June 2015. The Acknowledgment of Service was not signed by the father however, annexed to Ms Howe’s affidavit is a copy of Australia Post’s tracking record that indicates that these documents had been delivered to the father at his address for service on 26 June 2015.[14]
[14] Affidavit of Carolyn Joy Howe sworn 2 September 2015 [2].
The father was served with the mother’s additional affidavit sworn 28 July 2015 via registered post and confirmation from Australia Post tracking record that it was received 2 September 2015.[15]
[15] Ibid [5].
The independent children’s lawyer provided notice to the father by letter (exhibit ICL 1) which was sent to his address by registered post on 14 July 2015.

Relevant law – parenting issues

These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to the children, I must regard the children’s best interests as the paramount consideration.
Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the 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.
These objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the 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).
Section 60B(4) provides that an additional object is to give effect to the Convention on the Rights of the Child to which Australia became a signatory on 22 August 1990. Amongst other things, the Convention seeks to ensure that signatory states implement laws, so that laws and actions affecting children, put their best interests first and benefit children in the best possible way, that authorities in each state party protect children and help ensure their full development — physically, spiritually, morally and socially — and that children have a right to have their say in decisions that affect them and to have their opinions taken into account.
I do not perceive there to be any conflict between children’s rights as articulated in the Convention on the Rights of the Child and the application of Part VII of the Act to the determination of this matter.
Section 65D provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting order as it thinks proper.

Determining the child’s best interests

In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:
(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
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[16]
[16] Family Law Act 1975 (Cth) s 60CC(2)(b).
In this case both of the primary considerations are relevant.
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parents and the children by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of the children’s parents is going to be beneficial and of advantage to the children into the future.
The respondent mother agrees with the Orders outlined in the independent children’s lawyer Outline of Case document.
In the mother’s Further Amended Response filed 25 June 2015, she seeks sole parental responsibility for the children, and that they live with her and spend an initial period of supervised time with the father, and thereafter as agreed by the parties.
The second of the primary considerations recognises the necessity of protecting children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
Both primary considerations are relevant to my determination of this case but I am mandated to accord greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the children’s right to know and experience their father.[17]
[17] Family Law Act 1975 (Cth) s 60CC(2)(b).
This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure by the children to physical or psychological harm and formulate orders which protect them from that harm.
In November 2012, allegations of sexual abuse of the children were made. These allegations arose when the mother took the children to their normal doctor on 19 October 2102 stating that they were exhibiting sexualised behaviours and that she believed the children had been victims of sexual assault by the next door neighbour’s daughter and two male associates. This was reported to the DHS and to SOCIT and the mother informed the father.
On 31 October 2012 the father committed an aggravated burglary on the home of the neighbour and the father of the other child that had reportedly sexually abused the children. The father was charged in relation to the burglary and this is the reason for his jail sentence.
On 6 November 2012, although the parents were separated, the mother and the children were living in the father’s home. The police were called out to an altercation between the parents. The altercation was alleged to have been physical and involved the children. On the evening of 9 November and the morning of 10 November 2012 the children made allegations that they were sexually abused by the father.
These allegations have different interpretations in the evidence presented to the Court.
Victoria Police interviewed the children and were uncertain if there was any evidence in relation to the allegations. B was referred to D Region CASA who were asked to undertake a more detailed investigation. Ms L undertook the investigation. She had five sessions with B and on 14 July 2013 reports: [18]
In general, [she] presented as intelligent, articulate and engaged during sessions. [She] was only unwilling to engage in suggested activities or oppositional in the context of avoidance, and this appeared to be subject-related.
…
The clinical impressions the writer made about [the eldest child’s] overall presentation and the information that she has provided throughout this assessment contribute to the conclusion that it is likely that [she] has been exposed to physical and sexual abuse perpetrated by her father ... It also appears likely that [she] requires protection from a 7 year-old neighbour called [M].
The evidence in support of these conclusions include several disclosures made by [her] during the Specialist Assessment sessions, and clinical observations of [her] non-verbal presentation and behaviours both prior to and during the sessions.
The report also concluded that “[the eldest child] displayed a range of avoidant behaviours during the Specialist Assessment, and this is typical of children’s behaviours in a trauma context”.[19]
[18] Affidavit of Ms L sworn on 6 October 2014, Specialist Assessment Report, 11.
[19] Ibid 12.
In July 2014 at the request of the independent children’s lawyer, a consultant psychologist, Dr E, undertook an assessment of the father and the mother, interviewing them separately. In the Opinions and Recommendations of his report Dr E states:[20]
[10] … Whilst it is often difficult to interpret the clinical findings of clinicians, I can understand why the sessions with [the eldest child] has led the CASA counsellor to draw conclusions that [the father] has likely abused her, but conversely I am unsure if the interpretation of [the eldest child’s] assessment is definitive. I note [the eldest child] has felt unsafe with her father … but I assume much of this relates to the violence in the home, rather than sexually-abusive behaviours. There is also the obvious confounding factor of [the eldest child] being sexually abused by the young boy proximal to the CASA counselling. It would seem reasonable to wonder if there has been a conflation of [the eldest child’s] experience with the boy and [the father].
[11] … There appears to be very limited and scanty evidence to support the possibility that he [the father] sexually abused his children. He does not have a history suggestive of predisposing risk factors for sexual abuse of children, although there is the background history of a family problem relating to childhood sexual abuse, and he admitted to being attracted to young women, hence him forming a relationship with [the mother] when she was aged 16 and he aged 27(28). Based on the information obtainable, I can only draw the conclusion that [the father] presents a very low risk of sexually abusing his children.
[20] Affidavit of Dr E sworn 25 August 2014, 11–12.
Mr G in his Family Report notes:[21]
[55] The children’s primary experience of their father occurred prior to the parental separation in late 2012, when [the eldest child] was aged 4 years and 9 months and [the younger child] aged 3 years and 3 months. Consequently, it cannot be expected that either child would be able to comprehensively recollect their experience of him, or more particularly, identify aspects of life with him that they had either enjoyed or found particularly difficult. Reports from [the mother] and [Ms L] (SWCASA counsellor) would indicate, however, that both children have commented on adverse experiences they have had of their father that may suggest he has acted in a sexually inappropriate manner towards them, and has exposed them to family violence.
[21] Family Report of Family Consultant, Mr G, dated 30 June 2015.
The independent children’s lawyer submits that DHS did not find that it was likely that that there had been any sexual abuse by the father of the children.
The allegations in relation to the sexual abuse are complex, complicated by the children’s ages at the time they were made and the ambiguities surrounding their making. There is divergence of opinion between the experts as to whether there is any substance to them. I am satisfied that I should proceed cautiously.

Treatment of the additional considerations

The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. I propose to have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the children what benefit that may flow from having a meaningful relationship with both parents and so as to ensure that they are protected from harm and exposure to abuse, neglect or family violence.
Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the Court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed.[22]

The child’s views[23]

[22] B and B: Family Law Reform Act (1997) FLC 92-755.

[23] Family Law Act 1975 (Cth) s 60CC(3)(a).

In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.
The requirement to focus on the child’s views, as opposed to wishes, means that I have regard to the child’s perceptions and inclinations without requiring the family consultant or independent children’s lawyer to make specific enquiries or elicit the child’s ultimate preference or wish.
Once a child's views are ascertained, the Court is required to consider them in concert with the primary considerations and such of the other additional considerations relevant to the child's welfare.
The Court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[24] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer[25] and I do so.
[24] Family Law Act 1975 (Cth) ss 60CD(2)(a), 62G(2) and 62G(3A), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[25] Family Law Act 1975 (Cth) ss 60CD(2)(b), 62G(2) and 68LA(5)(b), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the Court.
In this case, Mr G, family consultant, interviewed the children independently of each other and observed them together with their mother during the day.

B, who is 7 years old

B is in Grade 1 at school. In the Family Report she is described as a “generally amiable, pleasant and inquisitive child” who engaged the family consultant. Mr G had some difficulty in understanding her expressive language at times however, found her “nevertheless able to express her views and describe her experiences in a reasonably coherent manner”.[26]
[26] Family Report of Family Consultant, Mr G, dated 30 June 2015, [37].
Mr G reports that “B’s recollection of why her parents separated and the reasons for her not seeing her father were unclear and confusing … [She] was also unable to explain why she originally ceased seeing her father”.[27]
[27] Ibid [38].
In identifying any ways in which her father may have hurt her, or if he had caused her to feel scared, Mr G reports:[28]
[39] … [She] insisted that the “hurt” had only involved her father “tripping over”. In terms of whether she has ever felt “scared” in relation to her father, she responded with, “no. It was a long time ago. I don’t remember”. In regard to why she has not spent recent time with her father, [she] explained it was ‘because he didn’t show up most of the time and because he hurt … he hurt his leg or arm”. [She] was unable to describe how either her mother or father felt about each other, or how her mother perceived those periods when she was not seeing her father.
[28] Ibid [39].
When spending time with her father B insisted she had a “happy face” and a “happy heart”. She was clear that she “had neither felt worried, scared nor angry when doing so. [She] also insisted that she would feel “happy, very happy” if she was able to spend time with her father in the future, as “I love him””.[29]
[29] Ibid [41].
Having regard to staying overnight with her father “she said she would not feel either ‘worried’ or ‘scared’ about this particular issue”.[30]
[30] Ibid [41].

C, who is 5 years old

C is in Preparatory Year at the same school as her sister. In the Family Report she is described as a “generally happy and bright child who also engaged the writer”. Mr G notes that she provided clear and consistent information for her age and developmental stage.[31]
[31] Ibid [42].
Mr G reports that: [32]
[44] In terms of her father, [she] stated that she had a “so happy” face when she had been spending time with him, “because I like daddy. I love daddy and mummy.” She insisted that she had neither felt sad, scared, worried nor angry when doing so. In addition, she explained that her father had not done anything to cause her to feel sad, scared, or worried, and that he had not “hurt” her. [She] was clear that she would feel “happy, always happy to see daddy”. Her presentation when making this comment clearly indicated that she was excited at such a prospect. Although she acknowledged that she had not really remembered her father during the period when she was not spending time with him, she was clear she now does remember him. From her perspective, she could not identify how either her mother or father felt about each other, and stated that her mother had had a “no face” when she was seeing her father. Her comments about these matters were inconclusive.
[32] Ibid [44].
In consideration of the weight that should be given to the views of the children, Mr G reports:
[56] The writer does not believe that any substantial weight can be attached to the current views expressed by the children about; their experiences of their father, their relationship with him, or the time they should spend with him in the future. Whilst it was apparent that they do not feel concerned about spending time with him, their recollections of him were minimal and their experience of him has been significantly limited. The writer would therefore respectfully suggest that decisions about the time they spend with their father should be primarily determined by factors other than their specific views.[33]
[33] Ibid [56].
In consideration of the sexual abuse allegations, Mr G reports as follows:[34]
[60] The dynamics surrounding sexual abuse and disclosures made by children about their experiences of abuse are complex. … [W]ith children of a similar age to [the children], a thorough exploration of their world often requires multiple sessions that are matched to what the child is capable of and willing to reveal at the time. In cases where abuse has occurred, children will often take some time to develop the language and ability to describe their ‘narrative’ in a manner that makes ‘sense’ to adults, as sexual abuse is outside the realm of normal childhood experiences. In addition, children require time to develop the level of trust in others to disclose their confusing and difficult emotional states and responses to the abusive experience. These dynamics often mean that the information obtained from counsellors who have undertaken multiple interviews with a child in the context of a trusting therapeutic relationship, proves to be more helpful than a single and time constrained interview with a stranger.
[61] In the writer’s experience, children who have been abused by a parent often display a level of ambivalence towards this person and may even display a desire to see him/her. They may also oscillate between holding contrasting views in respect of the perpetrating parent. At times they will emotionally ‘hold onto’ unrealistic views of the parent’s ability to change, or will express a desire to see a parent because they are hopeful that their relationship with the parent can be restored to what the child wants and hopes it can be. If this occurs, the child’s views will often not be focussed on their own safety considerations. The writer believes that the views expressed by [the children] about spending time with their father need to be viewed and understood in the context of these dynamics.

The nature of the children’s relationships[35]

[34] Ibid [60]–[61].

[35] Family Law Act 1975 (Cth) s 60CC(3)(b).

I consider the nature of the children’s relationship with each of the parents and other persons inclusive of grandparents and other relatives.
The mother has been the primary carer of the children since 2012. The independent children’s lawyer submits this is possibly the longest period of stability that the children have had and that none of the experts’ opinions have raised reasons for there to be an interruption to this continuity of care.
Mr G observed the mother’s interactions with the children during the assessment. He notes that their interactions were “predominantly positive” and he believes “the children felt comfortable and happy in their mother’s presence”. The mother appeared attentive and responded appropriately to their needs. She brought items for them to play with and food for them whilst in the child play room.[36]
[36] Family Report of Family Consultant, Mr G, dated 30 June 2015, [45].
Time spent with the father has been inconsistent for the children. Following the father’s release from prison the children commenced spending fortnightly supervised time with him in June 2014. This time was suspended following his re-incarceration for breaching his parole conditions in August or September 2014. Supervised time recommenced in December 2014. On numerous occasions he cancelled appointments, was unwell or failed to advise the Contact Centre of his non-attendance.
Mr G notes, “it was apparent from the descriptions provided by both Ms F and [the mother] that the children’s time with their father has been inconsistent and limited since it commenced in mid-2014”.[37] Nonetheless, Ms F, Team Leader at the Centre informed Mr G that “the children enjoyed spending time with their father when it had occurred”.[38]

The extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the children and to communicate with the children[39] and the extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the child[40]

[37] Ibid [47].

[38] Ibid [47].

[39] Family Law Act 1975 (Cth) s 60CC(3)(c).

[40] Family Law Act 1975 (Cth) s 60CC(ca).

The children resided with the father for substantial and consistent periods prior to the parental separation in late 2012. However, the father had little contact with the children from September 2012 to 2014. His time with the children was curtailed for a significant period in 2013 because a Special Assessment was being conducted by CASA into allegations of possible sexual abuse; and in 2014 the father was incarcerated for four months.
Following his release on parole in June 2014 the father commenced spending supervised time with the children at the K Children’s Contact Centre.
According to Ms F’s affidavit sworn 31 August 2015, 17 visits were scheduled, 10 were attended and five were cancelled. The father failed to appear at the Centre twice — the most recent being 6 June 2015.
Initially these visits proceeded on a consistent basis between July and September 2014. They stopped after this for a period following a breach of the father’s parole conditions and his return to custody to serve the remainder of his sentence. Following his subsequent release from prison in late December 2014, fortnightly supervised contact time with the children and the father resumed.
Between March and June 2015 the father had little contact with the children due to inconsistency of his attendance at the scheduled visits. In cross-examination the mother confirmed that the father was not back in prison and had been seen around town.
In the Family Report, Mr G states that
[52] [t]he reported history of the parental relationship was characterised by heightened conflict and incidents of physical and verbal aggression. It was apparent that the relationship was significantly dysfunctional and exposed the children to family violence. In light of these factors and the reality that [the mother and the father] have effectively not communicated with each other since November 2012, the writer believes it is unlikely that they will now be able to form a constructive parental relationship that will enable them to effectively communicate with each other about the children’s needs and share parental responsibility for them.
[53] On that basis, and in light of the children’s young ages and heightened levels of dependency on their parents for their physical and emotional needs, the writer believes it would be more appropriate if the Court gave consideration to vesting parental responsibility in one parent. This issue is particularly important as [the younger child] has a range of special medical needs that require ongoing monitoring and a coordinated response from those who have responsibility for her. The writer does not believe [the mother and the father] would be able to jointly achieve this task.
The mother, as the primary carer, lives with the children in subsidised housing provided by DHS. She is unemployed outside the home. The father has been unable to contribute financially to the maintenance of the children during his period in prison, however, he is currently working. It does not appear that he has contributed financial support to the mother’s household, in line with his statutory obligation to do so, as the mother has not had contact with him in recent months.

The likely effect of any changes in the children’s circumstances[41]

[41] Family Law Act 1975 (Cth) s 60CC(3)(d).

In determining what is in the best interests of the children I am required to consider the likely effect of any change in the children’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
In the Family Report, Mr G notes that
[58] [w]hilst cognisant that the current assessment is constrained by [the father’s] non-attendance, there was nothing arising from information provided during the current assessment to suggest that the current primary living arrangements for the children with their mother should not continue. Recent assessments by DHS in 2013, appeared to reflect positive shifts in [the mother’s] parenting of the children, and did not conclude that there was any risk to them if they remained in her care. As previously mentioned, [the mother] will need to ensure she not only remains connected with her professional and personal supports, but also effectively addresses issues with her functioning that have previously created significant difficulties for her parenting role. If she fails to do so, there is an identifiable risk of DHHS becoming involved and the children being placed in alternative care. Such a scenario would be unfortunate for both her and the children.
The mother seeks to relocate to an eastern suburb of Melbourne; to an area where her family live and who will be able to provide her and the children with the emotional and practical support they require.
Moving to Melbourne will enable the youngest child to have easier access to hospitals and the health care practitioners she needs to see on a regular and ongoing basis.
In her affidavit sworn 23 June 2015, the mother deposes at [49], “[t]he move to my family area will assist me to better parent the children given I will have moved away from the violence perpetrated by the Applicant to a safe and supported environment to start fresh”.
The mother further deposes at [50]–[51]:
I will be able to walk within the local area without fear of running into the Applicant or his associates. I will be safe and not under the control of the Applicant as I have been in the past …
The move will allow us to leave the neighbourhood where the Applicant committed his most recent crimes. There is a stigma attached to being the ex-partner of the Applicant in this neighbourhood as everyone knows what happened to my neighbours and their children. Whilst it may not be a wealthy neighbourhood it is still not acceptable to invade some ones (sic) home, assault them and totally disregard the safety of the young children.
I assess the appropriateness of the mother’s proposed move to Melbourne as consistent with the children’s best interests.
The children have expressed that they would like to see their father. There is nothing in the facts before me that suggest that the mother is not capable of being able to facilitate a relationship with the father and the children if he makes a commitment to supervised contact first and is able to recast himself as a committed parent. The father will need to demonstrate his commitment though regular attendance at the Contact Centre, and by organising attendance at a contact centre in close proximity to wherever the mother relocates.

Practical difficulty and expense associated with face to face time and/or communication with the other parent[42]

[42] Family Law Act 1975 (Cth) s 60CC(3)(e).

I consider the practical difficulty and expense of the children spending time with and communicating with the parent with whom the children will not be living and whether this will affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The father currently has supervised contact through the H Town K Children’s Contact Service. If the mother relocates to Melbourne with the children the father will need to schedule visits with a new contact service located closest to the children’s residence. I take this into account but accord the difficulties to be faced by the father lesser weight than the advantages which will flow to the mother and , through her, to the children from the increased support from her family.

Capacity of the parents to meet the children’s needs[43] and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents[44]

[43] Family Law Act 1975 (Cth) s 60CC(3)(f).

[44] Family Law Act 1975 (Cth) s 60CC(3)(i).

In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs.
This is a complex case in which each parent is challenged.
The independent children’s lawyer submitted that there have been a number of different changes to the children’s care arrangements. At a very young age they were in the equal care of the parents; at times they were in the sole care of the father; and at other times in the sole care of the mother. However, since November 2012, the children have been in the sole care of the mother which appears to be the longest period of stability they have experienced. There seems to be no evidence from the reports presented that there should be any interruption to this continuity of care.[45]
[45] Transcript of proceedings, 7 September 2015, 18.

The mother

Mr G notes in the Family Report that the Magellan Report and Dr E’s assessment indicate the mother’s troubled personal history which includes her having experienced “periods of disrupted and dysfunctional parenting, homelessness and DHS involvement during her adolescence, and child sex abuse by her mother’s partner”.[46]
[46] Family Report of Family Consultant, Mr G, dated 30 June 2015, 30 June 2015 [20].
During the mother’s relationship with the father she exhibited “physical aggression and violence, use of illicit substances, compromised parenting towards the children, suicide attempts, and concerns about her mental health”.[47] The mother acknowledged that these events took place and attributed this behaviour to her exposure to the father’s treatment of her.[48]
[47] Ibid [20].
[48] Ibid [21].
Mr G notes that according to the mother “there have not been any further mental health crises and she has not been using illicit substances. She currently attends a counsellor to assist her with her personal parenting issues, remains connected with ‘N Domestic Violence Service’, and is supported by family members and a friendship network”.[49]
[49] Ibid [21].
Mr G reports as follows:
[52] The reported history of the parental relationship was characterised by heightened conflict and incidents of physical and verbal aggression. It was apparent that the relationship was significantly dysfunctional and exposed the children to family violence. In light of these factors and the reality that [the parents] have effectively not communicated with each other since November 2012, the writer believes it is unlikely that they will now be able to form a constructive parental relationship that will enable them to effectively communicate with each other about the children’s needs and share parental responsibility for them.
The mother has obviously engendered positive relationships with her children and the assessment by DHS in 2013 “reflect positive shifts in [the mother’s] parenting of the children, and did not conclude that there was any risk to them if they remained in her care”.[50]
[50] Ibid [58].

The father

In his Initiating Application dated June 2013, the father proposed equal shared parental responsibility for the children; that the children reside with each parent on an alternating weekly basis from Friday to Friday; the children be permitted to telephone the other parent when not in their care; and that changeovers occur at the Children’s Contact Service.[51]
[51] Ibid [14].
The independent children’s lawyer referred to the inconsistency in contact the father has had with the children since November 2012 when the first allegations of sexual abuse were made. Since that time the father had no contact with the children for almost two years, until July 2014. He then had supervised contact between July and September 2014 after which contact ceased until January 2015. He then had contact between January 2015 until May 2015 and none since.[52]
[52] Transcript of proceedings, 7 September 2015, 18.
The independent children’s lawyer noted that
the children have consistently stated that they want to spend time with the father, and that they miss and (sic) they haven’t spent time with him, but there has been a real issue with consistency, even over the time that this matter has been in the Family Court.[53]
[53] Ibid.
The father seems to have limited insight in relation to his drug use and the impact this has on himself and his relationship with the children.
In exhibit ICL 2 it appears that the father’s breach of parole is a result of non-compliance in relation to drug testing, and that positive drug screens were returned on 19 and 26 August 2014.[54]
[54] Offender Into Custody Report dated 19 September 2014, 2.
Dr E’s report states that
[the father] reported that he experienced a precipitous decline in his wellbeing following the ending of a relationship at age 27. He rapidly spiralled into a prolonged period of illicit drug use. He used cannabis, amphetamine and heroin. He reported to cease all drug use a few years ago. [The father] also acquired a prolific criminal history, as detailed in his criminal history report. [The father] appeared to minimise his criminal past, simply labelling it as “drug related”. Whilst illicit drugs were likely to be at the core of his criminal conduct, he also likely developed significant antisocial behaviours consistent with the formation of an antisocial personality. His criminal history includes a range of offences, including thefts, burglaries and driving offences. He was also convicted of a serious violent offence leading to his recent period of incarceration”.[55]
[55] Affidavit of Dr E sworn 25 August 2014 [2] 11.
The Magellan Report concludes that[56]
[d]uring the history of Child Protection involvement both parents have demonstrated the capacity to provide appropriate care for their children individually. Their ability to maintain safe care was undermined by their relationship issues, drugs and alcohol and domestic violence.
…
[The children] have a history of being substantially in the care of their father; no concerns were identified with his care of the children. The children were observed to have a positive relationship with their father prior to separation in November 2012. Ongoing separation from their father can have a significant impact on their emotional and physiological development, and negatively impact on their own self image given their current belief that their father is ‘naughty’.
It is assessed to be in the best interests of [the children] for them to be supported to commence fully supervised contact with their father to support the redevelopment of their relationship with him.

The children’s maturity, sex, background and other characteristics[57]

[56] Report of DHS Magellan Report (undated) 14–15.

[57] Family Law Act 1975(Cth) s 60CC(3)(g).

I will consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents.
Both the children are young, aged 7 and 5 years.
The eldest child has good health. She suffered speech delays at an early age, but worked consistently with a speech therapist in 2013. She is now progressing above expectations at school and despite initial concerns, was able to move into Preparatory Year with her kindergarten cohort.[58]
[58] Mother’s affidavit, sworn 23 June 2015 [29].
She is currently in Grade 1, has been developing her social skills and achieving the majority of her developmental milestones. She does not require an Integration Aide and appears to be constantly improving her academic level.[59]
[59] Mother’s affidavit, sworn 23 June 2015 [30]–[33].
The younger child was diagnosed with VACTERL Syndrome which encompasses a range of birth defects. Born prematurely, she has substantial health issues and has some delayed developmental progress associated with defects acquired at birth which include a hole in her heart, a single low-functioning kidney, and a fused oesophagus.[60] Nevertheless she is also progressing well in primary school and she appears to be quickly developing her social skills.[61]
[60] Ibid [37]–[42].
[61] Mother’s affidavit, sworn 23 June 2015 [35]–[36].
The younger child has undergone surgery for her fused oesophagus which requires ongoing maintenance surgery every 9 months. She had heart surgery in March 2014 and will need to see the cardiologist again in five years. At present, her kidney functions at approximately 30 per cent capacity, however, the mother deposes that at this stage a kidney transplant is not required. The younger child was on daily medication to avoid urinary tract infections as result of her kidney function however, she ceased her prescription medicine in December 2014. She currently takes Sustagen, a muscle building protein powder to assist with her energy levels and weight gain.[62]

Any family violence involving the children or any member of the children’s family and family violence orders[63]

[62] Ibid [44]–[46].

[63] Family Law Act (Cth) ss 60CC(3)(j) and (k).

As noted above, the definition of family violence provided in s 4 of the Act is broad and may include threatened or actual violence toward a person, members of their family or their property.
There are no extant family violence orders.
The expert opinion suggests a divergence of views in relation to whether the father was involved in sexual abuse of the eldest daughter.
On the evening of 9 November 2012 and the morning of 10 November 2012 the children reportedly made allegations of sexual abuse by the father. This information is not provided in detail in the affidavit material but were submitted by the independent children’s lawyer that they were reported in the subpoena documentation. The independent children’s lawyer submitted that there was a lot taking place in the facts of the case at the time that these allegations were made including physical and verbal altercations between the parents.[64]
[64] Transcript of Proceedings, 7 September 2015, 19.

Victoria Police interviewed the children and were uncertain of any evidence. B was referred to D Region CASA. Consequently, Ms L undertook a detailed investigation. Ms L had five sessions with B.[65] Her findings were that B had been sexually abused by her father. However, the independent children’s lawyer noted that the report did
not indicate whether, and to what extent, other explanations may be available for the children’s behaviour, for their reticence around the issue of the father. It is not known whether they were taken into account and simply not reported, or whether they were not taken into account at all.[66]
[65] Ibid.
[66] Ibid 20.
Dr E in his affidavit reports at [10] on page 12:
Whilst it’s often difficult to interpret the clinical findings of clinicians, I can understand why the sessions with [the child] has lead the CASA counsellor to draw conclusions that [the father] has likely abused her, but conversely I am unsure if the interpretation of [the child’s] assessment is definitive. I note [the child] has felt unsafe with her father … but I assume much of this relates to the violence in the home, rather than sexually abusive behaviours. There is also the obvious confounding factor of [the child] being sexually abused by the young boy proximal to the CASA counselling. It would seem reasonable to wonder if there has been a conflation of [the child’s] experience with the boy and [the father].
Dr E goes on to conclude that
[t]here appears to be very limited and scanty evidence to support the possibility that he [the father] has sexually abused his children. He does not have a history suggestive of predisposing risk factors for sexual abuse of children, although there is the background history of a family problem relating to childhood sexual abuse, and he admitted to being attracted to young woman, hence him forming a relationship with [the mother] when she was aged 16 and he aged 27(28).
Mr G in his Family Report expresses his views as follows:
[55] The children’s primary experience of their father occurs prior to separation in late 2012 when [the eldest child] was aged four years and nine months, and [her sister] three years and three months. Consequently, it cannot be expected that either child would be able to comprehensively recollect their experience of him or, more particularly, identify aspects of life with him that they had either enjoyed or found particularly difficult. Reports from [the mother] and [Ms L] would indicate, however, that both children have commented on adverse experiences they have had of their father that may suggest he has acted in a sexually inappropriate manner towards them and exposed them to family violence.
…
[60] … [W]ith children of a similar age to [the children], a thorough exploration of their world, often requires multiple sessions that are matched to what the child is capable of and willing to reveal at the time. In cases where abuse has occurred, children will often take some time to develop the language and ability to describe their narrative in a manner that makes sense to adults, as sexual abuse is outside the realm of normal childhood experiences. In addition, children require time to develop a level of trust in others to disclose their confusing and difficult emotional states and responses to the abusive experience. These dynamics often mean that the information obtained from counsellors who have undertaken multiple interviews with the child in the context of a trusting therapeutic relationship proves to be more helpful than a single and time-constrained interview with a stranger.
DHS did not find that it was likely that there had been sexual abuse by the father of the children.
The sexual abuse allegations towards the father are complex, complicated by the ages of the children and the divergence of opinion between the experts. Had the father been present in these proceedings there would have been opportunity for cross-examination by both parties. However, I am being asked to consider these matters in relation to orders for contact. The independent children’s lawyer submits that “it is important to look at some of the ambiguities in the allegations and the different views that have been adopted”.[67] I do so.

Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[68]

[67] Ibid 22.

[68] Family Law Act (Cth) s 60CC(3)(l).

Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally courts should make parenting orders that minimise the prospects of future litigation.
Parents are at liberty to modify court orders by subsequently entering into parenting plans, which have the effect of varying existing orders.
The independent children’s lawyer submitted that a supervised-contact arrangement will necessitate an application to participate in an intake process which will require a demonstrated commitment on behalf of the father.

Parental responsibility

Section 61DA provides that when making a parenting order,[69] I must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children.
[69] Family Law Act (Cth) s 64B(2)-(4A) defines “a parenting order” and what a parenting order may provide.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[70] Equal shared parental responsibility relates to decision making about “major long term issues”, which is defined in s 4 of the Act as follows:
[70] Family Law Act 1975 (Cth) s 61B.
… issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature 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 children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[71] The concept of shared parental responsibility carries with it the requirements to “consult the other parent in relation to the decision to be made about that issue”[72] and to “make a genuine effort to come to a joint decision about that issue”.[73] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[71] Family Law Act 1975 (Cth) s 65DAC(2).
[72] Family Law Act 1975 (Cth) s 65DAC(3)(a).
[73] Family Law Act 1975 (Cth) s 65DAC(3)(b).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:
a)If the Court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[74] or abuse of the child or another child who is a member of the parent’s family;[75]
b)If, at an interim hearing, the Court considers it is inappropriate for the presumption to apply[76] or;
c)Where evidence is adduced, upon which the Court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[77]
[74] Family Law Act 1975 (Cth) s 61DA(2)(b).
[75] Family Law Act 1975 (Cth) s 61DA(2)(a).
[76] Family Law Act 1975 (Cth) s 61DA(3).
[77] Family Law Act 1975 (Cth) s 61DA(4).
In this case, expert opinion of whether the sexual abuse allegations are factual is in dispute amongst the experts — clinicians and practitioners alike. Nevertheless, the evidence is that the father has demonstrated drug abuse and violent behaviour in front of the children towards the mother and against the neighbours.
Whereas the mother has also demonstrated drug abuse and violent behaviour, expert evidence indicates she has shown significant improvement and taken positive actions to enhance her parenting skills and support of the children. The children have been in the mother’s sole care since the parental separation in November 2012. This has enabled her to provide the stability the children need.
The father did not see the children for almost two years following the relationship break up, due in part to the sexual abuse allegations as well as serving out his prison sentence. He has shown periods of sporadic and inconsistent behaviour in attending supervised contact with the children and provided little or no explanation for the significant breaks in his attendance.
The mother wishes to relocate from H Town to Melbourne to be closer to her family. This move will have many benefits for the mother and the children including significant maternal familial and child care support which will provide the mother with an opportunity to find employment, in addition to having easier access to the health care practitioners and the hospitals the younger child needs. It will also remove the mother and the children from an environment where they will come into contact with the current neighbours and distance the children from the young boy, M.
Taking all of the above considerations into account I am satisfied that it is not in the best interests for the parents to have equal share parental responsibility. It is not feasible that the mother will be able to consult or discuss child related decisions with the father. It is too onerous to expert her to do so.

Consideration of equal time or substantial and significant time with both parents

By virtue of having previously determined that it is not in the children’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether it is in the best interest of the children or reasonably practicable for children to spend equal or substantial and significant time with each of the parents.

Conclusion

For the above reasons, I am satisfied that the Order set at the commencement of these reasons is in the best interests of each of the children.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Legal Associate:

Date: 21 June 2016

[2016] FamCA 500

21 June 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness