Marsh and Denpak

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSH & DENPAK

[2014] FCCA 2388

Catchwords:
FAMILY LAW – Children aged 12 & 11 – arrangements for care of children pending final hearing – final orders made in respect of children in 2005 – pursuant to these orders children live predominantly with mother and spend extensive periods of time with father – parties have poor and mistrustful relationship – in April 2014 father retained children on basis older child at serious risk of psychological harm as a consequence of exposure to abuse by mother and her partner – mother alleges father has frequently made unsubstantiated allegations of abuse against her since parties separated – older child said to have expressed thoughts of suicide – children ordered to be returned to mother – children ordered to be independently represented – family assessment report ordered – family report recommends that children live predominantly with father – mother alleges family report unreliable – father seeks to change arrangements for care of children pending final hearing – application opposed by mother and independent children’s lawyer – nature of interim hearing – best interests – final hearing expedited.

Legislation:

Family Law Act 1975 (Cth), ss.4, 60B, 60CC, 61DA, 65DAA, 68L, 69ZW, 91B

B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
Goode & Goode (2006) FLC 93-286
N & S and the Separate Representative (1996) FLC 92-655

Applicant:

MR MARSH

Respondent:

MS DENPAK

File Number:

ADC 5514 of 2007

Judgment of:

Judge Brown

Hearing date:

14 October 2014

Date of Last Submission:

14 October 2014

Delivered at:

Adelaide

Delivered on:

20 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr M Anderson

Solicitors for the Applicant:

Warmings Solicitors

Counsel for the Respondent:

Mr S Laidlaw

Solicitors for the Respondent:

Matthew Mitchell

Counsel for the Independent Children’s Lawyer:

Mr T Adey

Solicitors for the Independent Children’s Lawyer:

Adey Lawyers

ORDERS

The parties competing applications be fixed for final hearing before Judge Harland in Adelaide on 9, 10 & 11 February 2015.
The applicant file and serve all affidavits of evidence upon which he proposes to rely at final hearing on or before 12 January 2015.
The respondent file and serve all affidavits of evidence upon which she intends to rely on or before 27 January 2015.
On or before 27 January 2015 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the children of the marriage X born (omitted) 2002 and Y born (omitted) 2003.
The children live with each of their parents in accordance with the regime for their care memorialised in the order of the Family Court made on 21 June 2005 namely as follows:
(a)The children live with the father, during school terms, from 10:00am Wednesday until 4:30pm Friday in the first week of each fortnight and from 10:00am Wednesday until 4:30pm Saturday in the following week and with the mother for the remainder of the time; and
(b)During the forthcoming school holidays the children live with the father from 5:00pm on the last day of school until 5:00pm on the middle day of the holidays and with the mother for the remainder of the holiday subject to the arrangements for Christmas contained in order (8) hereunder.
During the Christmas period of 2014 the children spend time with the father from 5:00pm on 24 December 2014 until 5:00pm on 25 December 2014.
The parties be restrained and an injunction issue restraining each of them from denigrating the other party in the presence or hearing of the children or permitting any other person so to do.
An injunction issue and the parties be restrained from removing the children from the State of South Australia and/or the Commonwealth of Australia without the prior written consent of the other party.
Each party inform the other of any serious or significant injury or illness suffered by the children as soon as is practicable following such incident and advise the other of all medical practitioners treating the children.
Without admission the parties be restrained and injunctions be granted restraining them from:
(a)Discussing these proceedings with the children or allowing any third party to do so; and
(b)Physically disciplining the children or allowing any third party to do so.
The child Y’s enrolment be continued at the (omitted) Primary School for the commencement of the 2015 school year.
The mother be authorised by this order to enrol the child X at the High School selected by her for the start of the 2015 academic year unless the parties agree otherwise.
In the event the children cannot be exchanged at their school, the children be exchanged at McDonalds, (omitted) or such other location as the parties agree upon.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 5514 of 2007

MR MARSH

Applicant

And

MS DENPAK

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Marsh and Ms Denpak are the parents of X born (omitted) 2002 and Y born (omitted) 2003. The parties are in dispute about interim arrangements for the care of the two children, pending a more detailed enquiry into the case, which will occur prior to the final determination of how the interest of the two children concerned can best be served.
As will become apparent, it is a case of significant complexity and where the respective positions of the parties are polarised in the extreme. For that reason, I have elected to provide written reasons in the case. It is also my view that the case needs to be heard as soon as it can be accommodated by the court.
Ms Denpak (“the mother”) wishes the two children to continue to live mainly with her. This has been the situation since at least June 2005, when Dawe J made a final order to this effect, with the consent of each of the parties concerned.
On the other hand, Mr Marsh (“the father”) wishes the two children to live predominantly with him on the basis that both children, but particularly X, are at risk of suffering serious emotional harm, if they remain in the mother’s care.
It is his position that the court cannot, given the moment of the concerns raised by him, allow the status quo to continue any longer, because of the degree of risk to which both children are currently being exposed. It is also Mr Marsh’s view that both children have expressed a strong wish to live with him.
The father was born on (omitted) 1967, in Adelaide. The mother was born on (omitted) 1980 in (country omitted). Accordingly, the parties have a very different cultural background. The mother speaks English, but it is not her native language. It is her position that she is at a disadvantage when she communicates in English, particularly with professional people.
The parties met, in (country omitted), in 2000. The father had come to (country omitted), after a serious motor vehicle accident, in Australia, to pursue a business interest in a (business omitted), which he had acquired with his compensation payment. The mother was a (occupation omitted) in the (business omitted).
They married, in (country omitted), on (omitted) 2000, soon after they had met. They moved to live permanently, in Australia, following the (incident in country omitted) in (omitted) 2002. They are now divorced.
The father met his current wife, Ms C, in (country omitted), in (omitted) 2002. She is also (country omitted) by background. She and Mr Marsh are now married and have two children together, A aged seven and B aged five. Mr Marsh, his wife and two children, all live together in (omitted), in the northern suburbs of Adelaide, with Mr Marsh’s mother.
Mr Marsh and Ms Denpak separated in difficult circumstances, prior to Y’s birth. Mr Marsh alleges that Ms Denpak and her family expropriated monies from the (business omitted). For her part, Ms Denpak alleges that Mr Marsh behaved violently and coercively towards her, both before and after the parties’ separated.
Regardless of the truth or otherwise of these allegations, it is clear that the parties have no history of parenting the children together and currently neither like nor trust one another. Regrettably, they have been engaged in litigation, with one another, in various forms, since soon after they separated until the present time.
Ms Denpak has also re-partnered. Her partner is Mr L, who is 37 years of age. Ms Denpak and Mr L have been involved with one another since 2007, but do not currently live together. They have a child Z, born (omitted) 2008.
Due to the injuries sustained by him in the motor vehicle accident, the father is in receipt of a disability support pension. Ms Denpak is not formally employed. Mr L is a (occupation omitted), employed by (employer omitted).
The mother and the two children live in a rented three bedroom house in (omitted), in the inner northern suburbs of Adelaide. Mr L lives close by in (omitted). He and Ms Denpak (and indeed X and Y) frequently sleep over at one another’s homes. It is about a 25 minute drive between (omitted) and (omitted).
At present, both X and Y attend (omitted) Primary School, where X is in year 7 and Y is in year 6. X will have to start secondary school at the commencement of the 2015 school year. The parties are unable to agree on which school X should attend. The father proposes (omitted) High School, which is a school close to his home; whereas the mother proposes a school close to her home.
Following the parties’ separation, court orders were made in 2003, which saw the children living with their mother and spending regular time with their father. Overnight periods commenced in 2004, which became twice weekly over time.
The final orders of 21 June 2005 saw the children spending time, with their father, from 10.00am on Wednesday until 4.30pm the following Friday, in one week of each fortnight; and from 10.00am Wednesday until 4.30pm the following Saturday in the other week of each fortnight. Orders were made for the division of the school holidays.
This arrangement broke down in October 2007, when the mother commenced proceedings seeking an urgent recovery order in respect of both children. The father had retained the children because he alleged that the mother had attempted a female circumcision of Y with a knife. The father asserted that he had discovered blood in Y’s knickers and X had disclosed to him that Ms Denpak had injured the child “with a knife”.
This obviously serious allegation was investigated by Families SA in August 2007. Both children were interviewed and a forensic examination of Y took place. The medical examiner concerned concluded that the injury to Y did not have the appearance of an incision and could not have been an injury resulting from being cut by a knife. Rather, it was concluded that the injury could have occurred in a number of innocent ways, including her falling astride an object or scratching herself.
On this basis, it was ordered that the father return the two children to the mother’s care. Initially, Mr Marsh’s time with the children was suspended, but it was reinstated on 21 November 2007. The case was referred to the Magellan List of the Family Court and an independent children’s lawyer appointed.
Both before and after the discounted allegation of female circumcision, the father had indicated his concerns that the mother lacked capacity to parent X and Y adequately. He asserted that she was a neglectful parent, who was emotionally unavailable for the children.
It is common ground, between the parties, that Mr Marsh has made many reports to Families SA about his concerns regarding Ms Denpak, which have largely been disregarded by the Department. These notifications have included allegations of excessive physical discipline of the children.[1] I will return to these allegations shortly.
[1] See letter dated 30 June 2014 from Families SA to the Federal Circuit Court
On the other hand, it is the mother’s position that the father has used Families SA and his reports to them to harass and undermine her parenting of the two children concerned. It is her case that Mr Marsh irrationally refused to accept the independent expert opinion, regarding Y’s genital injury in 2007 and remains obsessed with it.
In this context, she asserts that Mr Marsh is preoccupied with what she regards as unsubstantiated claims of her neglectful parenting and is determined, come what may, to assume control of the children. In these circumstances, she submits that it is he, rather than she, who has the compromised parenting capacity and insight.

The current applications

The father commenced the current round of proceedings on 24 April 2014. He prepared his own Application. He sought that the two children live with him and communicate with their mother as “decided by the court and a child psychologist.”
At this stage, he sought the discharge of the orders of 21 June 2005, on the basis that X in particular was in danger of self-harm. His case was allocated a first return date of 20 May 2014.
Mr Marsh deposed, in a brief affidavit prepared by himself, that X’s school had contacted him, by telephone, advising that X had been talking about committing suicide.
In this context, Mr Marsh had consulted his general medical practitioner who had subsequently referred X to a psychologist for further assessment. The doctor, in a very short referral note, diagnosed X as suffering depression and as “having problem with mum and her boyfriend”.
The mother responded to the father’s application promptly and with the assistance of her solicitor. She sought the return of X and Y to her immediately. In support of her submission that the father was not properly focussed on the children’s best interests, she relied on a report, from Families SA, which had been prepared in conjunction with the earlier notification regarding Y and her alleged genital circumcision.
The relevant section of the report read as follows:
“The Child Protection Services raised further concerns regarding the father’s mental health due to his presentations to their service and the children’s mental and emotional health and will be making recommendations that the father have a mental health assessment …”[2]
[2] See Annexure C to the mother’s Affidavit filed 26 May 2014
The mother further deposed that she had been aware of an incident, in which X had been taken to hospital, by the father, as a consequence of reporting suicidal thoughts. This incident had occurred in February 2013. It was the mother’s position that X had removed a significant sum of money from his money box and given some of it to a friend.
When his mother had discovered this, she told him that if he did not return all of the money, “he would be in big trouble and there would be serious consequences”. Following this incident, X did not return home and as a consequence the mother contacted the Police.
The following evening, Mr Marsh took X to the (omitted) Hospital, where he allegedly reported thoughts of self-harm to an Emergency Doctor. Later, X was referred to the Child and Adolescent Mental Health Service (CAMHS). The mother complains that the father did not advise her of this incident, when it occurred.
The mother further alleged that she had been informed, by CAMHS, that X had attempted suicide, at his father’s home, on three separate occasions. She indicated that the father had not advised her of these incidents. She confirmed that she too had been contacted by X’s school, in early April 2014 in respect of the child talking of suicide. She had spoken to the child, who had told her that he had been joking and had no intention to hurt himself.
The mother also asserted that the father was attempting to influence the children so that they would say that they wished to live with him. In her submission, it was this behaviour, on the father’s part, which was exacerbating the emotional pressure on the children concerned. She herself refuted any suggestion that she was not supporting the children emotionally. Rather, she asserted that she supported the children, particularly X, to have an active social and sporting life.
At this stage, it was also the mother’s position that Mr Marsh was fixated on Mr L and had made up attacks on his character. In particular, she asserted that Mr Marsh had fabricated a complaint of assault against him and had later alleged that he had behaved inappropriately towards X and Y. These matters had been apparently reported to the Police but Mr L had not been interviewed, although he had indicated a willingness to be interviewed.
At this stage, the mother’s position can be summarised, from her own Affidavit, as follows:
“I am seeking a change from the previous orders of June 2005 as I believe the father’s constant pressuring of the children to make a choice as to who they live with on a permanent basis and his constant undermining of my authority and relationship with the children is having a significant detriment on the children’s mental health. As such, I am seeking orders that the children live with me and spend time with the father on an alternate weekly basis.”[3]
[3] See mother’s Affidavit filed 26 May 2014 at para.68
When the matter first came before the Court, on 20 May 2014, I determined that the two children concerned should be returned to the mother’s care. The father’s affidavit material was cursory and had been self-prepared. At this stage, there was evidence to indicate that the father had made an earlier and unsubstantiated allegation of child abuse, which had been rejected by Families SA.
By this stage, X and Y had not seen their mother since 19 April 2014, a period of approximately six weeks. Given that the children had lived more with their mother, up to this time, I viewed this as a significant period of time. I was also concerned that Mr Marsh had unilaterally decided to stop the children interacting with their mother.
Initially, having determined that the children’s best interests would be served if they returned to the care of their mother, I suspended the father’s time with the children. This Order was made on the basis that X and Y had not seen their mother for approximately six weeks and it was likely to be helpful to enable them to settle back into her care.
At this stage, I also invited Families SA to intervene in the proceedings, pursuant to the provisions of s.91B of the Family Law Act and for the Department to provide details of all notifications of abuse, received by them in respect of X and Y, pursuant to s.69ZW of the Act.
I appreciate that Mr Marsh did not agree with the decision to return the children to their mother. Following the decision, he has consulted a solicitor and has provided more information regarding his concerns about the two children, whilst in the care of their mother and Mr L. In addition, he has arranged for the subpoena of a number of documents from Families SA and the (omitted) Hospital, which X has attended.
In his further Affidavit, which has been prepared on his behalf by his solicitor, the father indicated that X had “tried to commit suicide three times”. However, Mr Marsh asserted that this had occurred only in the context of the child being returned back to the care of his mother. He alleged that the mother had pinched X, from when he was an infant, and been emotionally insensitive towards X, whom he (Mr Marsh) regarded as a sensitive child.
In addition, the father made other complaints about Mr L, whom he alleged, in concert with the mother, subjected the children to “constant bullying” which had resulted in X’s history of self-harm. In short, it is Mr Marsh’s position that X was making a plea for help, in the only way available to him and, as a concerned parent, he was obliged to pay attention to it.

On 30 June 2014, when the case returned to Court, Families SA indicated to me that it declined to take part in the proceedings. Families SA also indicated to me that between June 2003 and May 2014 it had received 27 notifications of alleged abuse, in respect of X and Y.
The most recent of which related to the reports of X’s suicidal ideation, as a consequence of his mother and Mr L’s threatening behaviour towards him and allegations that the father was “denigrating” the mother and “attempting to turn the children against her”.
In addition, on 30 June 2014, I ordered that X and Y be independently represented in these proceedings. The children’s representative is Mr Timothy Adey, an experienced Adelaide family lawyer. Mr Adey is to be regarded as a party to the proceedings of equal importance to the parents themselves.
Pursuant to the provisions of section 68L of the Family Law Act Mr Adey is required to examine all the evidence available to him, in the case, and thereafter advocate the position, which he believes will best serve the interests of the two children, whom he has been appointed to represent.
Since 30 June 2014, each party has filed a number of additional affidavits. Significantly, these have not included an affidavit from Mr L, of whom Mr Marsh has been very critical. However, the mother denies the allegations of abuse made against her and Mr L. It is her position that, since 20 May 2014, when the children returned to her cares, both have settled down emotionally and are starting to do better at school.
On 30 June 2014, it was ordered that the father spend alternate weekends, with the children, from after school on Friday until 5.00pm the following Sunday. I appreciate that this was less time than he had been spending with the children pursuant to the orders of Dawe J made on 21 June 2005, which amounted to a significant and substantial time sharing arrangement.
On 29 July 2014, following the appointment of Mr Adey, it was ordered that a family report be prepared. Mr Adey has engaged Mr B, a psychologist, to prepare the report in question, which was released to the parties in early September.
In addition, given the concerns raised by Mr Marsh, an Order was made restraining each of the parties from discussing the proceedings with the children or physically disciplining them in any way whatsoever, or permitting any third party to do so.
It is in the light of Mr B’s report that Mr Marsh seeks to re‑agitate his original application that the two children live predominantly with him. It is his position that the court acted too hastily, on the basis of his brief self-prepared application, when it ordered the return of X and Y to their mother’s care.
It is further his position that, since that date, evidence has come to light, which supports his assertion that the children are at a significant degree of risk, if they live predominantly with their mother and are exposed to Mr L and what he characterises as his hectoring and bullying behaviour.
At this stage, it is his position that the children should live with him and spend alternate weekends and one half of each school holiday with their mother. However, he would want the court to make an injunction restraining Ms Denpak from bringing the children into any form of contact whatsoever with Mr L.
The mother opposes this application. It is her view that it is neither justified nor practicable so far as Mr L is concerned. In addition, she has sought an order that would permit her and the children to travel overseas, particularly to (country omitted), so that she, X and Y may spend time with members of their maternal family.
The father vehemently opposes this application. It is his position that the mother and her family are (religion omitted) who support (omitted) behaviour. As a consequence, he asserts that the children are at significant risk, if they travel to (country omitted).
From the mother’s perspective, she alleges that the father’s fears about her alleged association with (religion omitted) are baseless and fabricated. In this context, she asserts that the father is attempting to demean her and her family to the children and unnecessarily frighten them, in order to advance his own agenda.
Accordingly, since the instigation of these proceedings, the situation of the parties, already tense and mistrustful, has become increasingly polarised, with each asserting that the other parent represents a significant psychological threat to the wellbeing of both X and Y.
In all these circumstances, as indicated at the commencement of these reasons, it seems apparent to me, that there should be a full and exhaustive hearing of all the relevant evidence likely to be available in this case sooner rather than later. I will allocate 9, 10 and 11 February 2015 as the dates for this hearing, which is approximately four months away.
It is for this period of time that the court is required to make orders regulating arrangements for the care of both X and Y. The implication of the father’s case being that there is a risk of X resuming his self-harming behaviours, with potentially horrific consequences. The mother asserts that the father is both exaggerating these concerns and encouraging them to secure his own ends in the case.
From Mr Marsh’s point of view, the report of Mr B is central. He submits that the report vindicates his actions in the case to date and the court would be negligent if it disregarded the report’s recommendations. On the other hand, Ms Denpak rejects the report’s conclusions and believes that Mr B has failed to recognise the father’s obvious manipulation of the children.
Mr Adey reminds me that these are interim proceedings and the issues raised in the case are complex and have arisen over many years. He points to the fact Mr B’s report and his methodology are as yet untested.
Therefore, given the long standing status quo in favour of the children living predominantly with their mother, Mr Adey is not in favour of any dramatic change in arrangements for the care of the children at this interim or provisional stage.
This is the issue to be determined at this stage. From the perspective of all concerned, myself included, it has been an emotionally gruelling case. I wished to think carefully about it and review the many documents which have been filed. Given the controversy that my decision will inevitably create, I also elected to provide written reasons to the parties.
I remind the parties that it has now been determined that the final hearing can occur within about four months’ time. At this stage, each will be able to test the evidence of the other through rigorous cross-examination. In addition, the court will have the opportunity to hear the evidence of Mr B directly.

The family report

It is now necessary for me to summarise the contents of the family report. To Mr B, the mother describes herself as a “non-practising (religion omitted)”. As such, she denied that either she or her family were radicalised or involved in any terrorist activities.
The mother was described, by Mr B, as at times demonstrating “poverty of thought”. She gave a mental health history of counselling with some anti-depressant medication being prescribed.
Ms Denpak described her relationship with Mr Marsh as having been acrimonious since separation. She was critical of Mr Marsh for being a permissive parent. She denied that either she or Mr L had ever mistreated X.
Ms Denpak was further concerned that X had been unduly influenced, when attending CAMHS, in respect of his disclosures of suicide. Nonetheless, she described herself as being sick with worry about the possibility of suicide.
Mr Marsh presented to Mr B as being “passionate and concerned” about the children and the risk he perceived Ms Denpak, but particularly Mr L, represented for the children’s care. He described Mr L as being bullying towards X, who had disclosed to him that Mr L has physically hit him in the past.
Like the mother, Mr Marsh confirmed that the parenting relationship, between the parties, was marked by extreme acrimony. In this context, it was his view that the child protection authorities had tended to discount his notifications of mistreatment of X and Y.
To Mr B, Mr Marsh indicated that X had been characterised as being at “high risk” whilst in his mother’s care. In this context, he had arranged for X to have psychological treatment from Mr L. It also seems to be the case that the mother has also arranged psychological counselling, for X and Y, with Dr C.
Mr B did not form a favourable impression of Mr L, describing him as an intense and bombastic person, who at times spoke over the mother. Mr L denied that he had a poor relationship with the children. It was his position that he plays football with X and has never behaved inappropriately towards him.
Given the tense relationship between the parties and their very different views, regarding the nature of the children’s relationships, Mr B’s observations of the children, with each of their parents, assume a high degree of significance. Mr B viewed the children as being “uncomfortable and intense” when interacting with their mother and Mr L. In Mr B’s opinion the children’s degree of “emotional warmth was low to non-existent” for both the mother and Mr L.
On the other hand, when observed with the father, his current partner and the children’s half siblings, a few days later, X and Y were described as being “bright, interactive, talkative and spontaneous”. In this context, Ms Denpak asserts that she was at a disadvantage in the family report process in that Mr B observed the children with her first prior to the seeing them with their father, which enable them to become familiar with the observation process. Mr B does not necessarily accept this to be the case.
Apart from the process of observed interaction, Mr B interviewed each of the children. They presented to him as timid children, but each held consistent and similar views. Their preference, described by Mr B as being “adamant” was to live primarily with their father and have time with their mother.
Both children disclosed, to Mr B, feeling “scared” of Mr L. X disclosed several historical incidents, in which he alleged Mr L had been “physical” towards him. The most recent incident of this arose in connection with the birthday money, which was in February of 2013. X also complained that his mother and Mr L spoke to him in a derogatory fashion, calling him a “sook”.
Mr B was doubtful that X was manufacturing evidence about this mistreat. He also discounted the mother’s suggestion that the children’s presentation was skewed in any way, by their unfamiliarity with the clinical setting. In addition and importantly, he could find no evidence that either child had been coerced or that their thoughts and views were not their own.
In terms of his ultimate recommendations, Mr B gave “considerable weight” to the children’s disclosures. In addition, given their respective ages and his assessment of the children’s maturity, Mr B considered that weight should also attach to the views, as expressed by them to him.
As a consequence, Mr B recommended that the children should primarily reside with their father and spend alternate weekends, with their mother, from afterschool Friday until the commencement of school the following Monday. If the parties agreed, Mr B was open to the possibility of a mid-week sleep over. In addition, Mr B was in favour of the parties sharing school holidays with the children, as well as special occasions.
In the context of these various recommendations, Mr B opined that, if the children came into Mr Marsh’s primary care, his choice of high school for X should be preferred. In addition, he was of the view that “the children should not be forced to have time with Mr L”.
In Mr B’s assessment, X was not currently suffering any form of psychological disorder. However, Mr B was of the view that there was a significant risk that he would become psychologically disabled, if he continued to be exposed to the stresses inherent in his parents’ acrimonious relationship.
In this context, Mr B was concerned about the escalating level of stress, in the lives of all concerned in these proceedings. He was fearful that this would have deleterious consequences for X’s academic performance, in future.

Other information

I have recently been provided with a copy of X's Presentation Notes taken at the (omitted) Hospital on 17 April 2014. The notes indicate that the child presented with suicidal ideas and low mood. He reported emotional and physical abuse, by Mr L.
The father is content to accept Mr B’s recommendations. The mother is not. It is her submission that the assessment process has miscarried and she did not have a proper opportunity to present her case because of her English difficulties. It is also her case that Mr B has improperly discounted, during the family report process, her allegations of having suffering coercive and controlling behaviour, at the instigation of Mr Marsh, during the parties’ relationship and afterwards.
It is also her case that X has improved at school since being returned to her predominant care. In this context, she has obtained a letter from his teacher, dated 25 September 2014, which notes pleasing progress in all areas of X’s studies.
The mother has also provided psychological assessments from Dr C, in respect of both X and Y. These reports recommend that both parents avoid explicit criticism of the other in front of the children. It is Dr C’s opinion that an independent expert should canvas the views of the children in respect of future living arrangements rather than him.
Mr Marsh has indicated that he is willing to continue the children’s enrolment at (omitted) Primary School for the remainder of 2014, but wishes to enrol both in schools closer to his home at the start of 2015. He is also prepared to build a further bedroom, at his home, to accommodate the children, as was recommended by Mr B.
As previously indicated, it is Mr Adey’s position that the court should not embark on any wholesale changes in arrangements for the parenting of the two children concerned until the final hearing stage, when all evidence can be collated and thoroughly assessed, including the evidence of Mr B, which is currently both controversial and untested. It is also Mr Adey’s view that it would be both artificial and impracticable to prevent Mr L coming into physical contact with the children, given the nature of his relationship with the mother.
If the court is not open to his primary submission, Mr Marsh asserts that, in the light of Mr B’s strong recommendations, it is appropriate for the court to reinstate the 2005 orders, which inaugurated a significant and substantial time sharing arrangement, between the parties, for X and Y.
Before making the difficult interim decision, in this matter, it is necessary for me to outline the applicable legal principles and explain, in more detail, the nature of an interim hearing.

The legal principles applicable

These proceedings arise at an interim stage. Accordingly, the court has not seen either party being subject to cross-examination and so cannot make its own direct assessment of their respective level of credibility. In addition, I have no evidence from Mr L, who, for obvious reasons, has the potential to be a significant witness in the case.
Mr B has a significant advantage over me in this case. He has had the opportunity to meet and speak with X and Y and see them interacting with each of their parents. I am unlikely to meet either of them. Accordingly, Mr B’s evidence is important.
However, Mr B is not charged with deciding this case, I am. In this regard, I have an advantage over him, in that I will observe each of the parties giving their evidence and being subject to scrutiny through cross-examination. It is through this mechanism that factual disputes are resolved.
At present, one major dispute centres on the validity of Mr B’s recommendations in the case. At present, I must bear in mind that, just as with all the other witnesses in the case, he has not, as yet, been subject to cross-examination and the methodology of his report exposed to scrutiny.
Interim hearings do not determine long term arrangements for children. That is the function of final hearings. However, the same principles apply at both the interim and final hearing stage. They are contained in Part VII of the Family Law Act 1975, which is the part of the Act dealing with children.
In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the words of the relevant explanatory memorandum published on the promulgation of the amending sections of the Act:
“Where child safety is a concern this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”[4]
[4] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
However, these considerations still need to be considered within the overall framework of Part VII, particularly its underlying principles and the legislatively mandated objects or aspirations of the Act. These are set out in section 60B and are illuminative of the dilemma which this case throws up.
These speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them, regardless of the nature or duration of the relationship between their parents. The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors.
Children also have a right to be safe and to be protected from coming to harm, both in a physical and a psychological, as a consequence of being exposed to neglect, abuse or family violence. It is the fundamental underpinning of the father’s case that the court needs to take urgent action to protect X and Y from being exposed to abuse.
Abuse in respect of a child is defined by Section 4 (1) of the Family Law Act. It means:
(a)    An assault, including a sexual assault, of the child, or
(b)    a person, the first person, involving the child in a sexual activity with the first person or another person in which the child is used directly or indirectly as a sexual object by the first person or the other person and where there is unequal power in the relationship between the child and the first person, or
(c)     causing the child to suffer serious psychological harm including, but not limited to, when that harm is caused by the child being subject to or exposed to family violence, or
(d)    serious neglect of the child.

Clearly, it is the father’s position that X and Y have been exposed to abuse, whilst in the care of their mother and Mr L. He alleges that X, in particular, has been assaulted by Mr L and this has resulted in X’s suicidal behaviour from 2013 onwards, which axiomatically is demonstrative that the child has suffered a level of serious psychological harm.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Amongst these additional considerations are any views expressed by the children concerned and the effect upon them of any change in their circumstances. It is the mother’s position, supported by the independent children’s lawyer that the circumstances of the children, in this case, are highly complicated and have arisen over many years.
As such, the court should be very cautious before embarking on any precipitate change in arrangements for their care, on the basis of untested and uncontroversial evidence, particularly if the case can be finally determined within a reasonable time frame.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[5]
[5] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[6] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[7]
[6] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[7] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[8]
[8] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
In the case of Goode & Goode[9], the Full Court of the Family Court has laid out a pathway for the determination of interim hearings such as this one.
[9] Goode & Goode (2006) FLC 93-286
In determining interim parenting matters, after identifying the competing proposals of the parties, the issues in dispute, and any agreed issues, the court should:
·consider the section 60CC matters relevant and, if possible, make any relevant findings of fact;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or, in interim proceedings only, if it would not be appropriate to apply the presumption.
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.

Section 60CC factors

This is a troubling and concerning case. Any case touching upon a twelve year old child, said to be reporting suicidal thoughts, in respect of which thoughts it is also said he has taken active steps, must be deeply troubling. It is Mr B’s view that X is not currently suffering a psychological disorder. As such, the prospects of him being actively at risk, in this regard, seem to have diminished.
The mother asserts that she remains concerned about X’s psychological health and has taken appropriate steps in regards to them, including engaging Dr C. She asserts that the father has seized on the child’s distress, at getting into trouble over his birthday money, for his own advantage in these proceedings and has either exaggerated or manufactured his concerns about Mr L.
Fundamentally, this is a matter for the trial. However, Mr B does not believe that X has been either been coached or has himself manufactured the claims of abuse. In this context, Mr B, supported by Dr C, asserts that one of the major stressors, in the children’s lives, is the entrenched and conflicted relationship between the parties.
Accordingly, it is not beyond the bounds of possibility that X is reacting to this situation. In such a context, it is likely to be simplistic to attribute all or most fault, for this highly unfortunate situation, to one parent above the other.
There is evidence to indicate that Mr Marsh has played a role in driving the conflict between the parties and he is unlikely to be a completely objective in his narrative of what he perceives to be the mother’s failings as a parent. These are factors which, in my view, behove the court to act cautiously.
The essential task for the court, at this interim or provisional stage, is to assess the degree of risk arising for the children and put in place a response, in the form of orders, which it believes is proportionate to that risk. I acknowledge that this is not an easy task at the interim stage.
For the reasons already outlined, Mr B’s report and recommendations are important. However, it is axiomatic that he has had limited time with the family. As I am pains to point out, the dynamic of this family is extremely complicated.
Not only is there entrenched conflict between the parties, over a significant period of time, but also there are significant cultural difference between them. In addition, the mother asserts that the father is a poor role model, for the children, because of his past controlling behaviour towards her and his essential negative view of her. Certainly, Mr Marsh has displayed a propensity to exercise self-help in the past, although he would say the situation confronting him, most recently in the earlier part of the year, justified his actions.
Accordingly, it is not beyond the bounds of possibility that there may be factors, which either Mr B has under-estimated or of which he is unaware, which may cause him to change his opinion of the family. Whether this is highly probable or utterly improbable is impossible for me to say, other than the mother vociferously asserts that Mr B has totally misunderstood the dynamic of the family and been misled in respect of what she regards as the clear manipulation of the children by their father.
However, the concerns raised by Mr B are significant, on face value, untested though they are. Too a large extent, his report vindicates the stance taken by Mr Marsh in the case to date. The notes made in respect of the presentation of X, at the Emergency Section of the (omitted) Hospital in April of 2014 are also concerning. However, in this context, it is also important to note the CPS elected not to become actively involved in the case.
Both X and Y must have a significant level of relationship with both their father and their mother, as the children have spent significant periods of time with each of their parents since the final consent orders were made in mid-2005. As such, it would seem that both children will benefit if they continue to spend sufficient time with each of their parents to maintain a meaningful level of relationship with both of them.
The children’s views, as expressed to Mr B are also highly significant. Section 60CC(3)(a) requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. In this context, it may be the case that the children are being influenced by the significant conflict between their parents.
Mr B regards the children are being mature enough to express a view. However, they are likely to feel triangulated by the long-standing conflict between their parents. In my view, it is likely to be prudent for the court to wait until final hearing to enable it to determine definitively what weight is to be given to the views of the children and more importantly what has been influencing those views.
The children concerned in this case are at the heart of a complex blended family. They have half-siblings on both their paternal and maternal sides. It also seems likely that they have a significant relationship with their paternal grandmother, with whom they share a residence for at least part of the time.
Both parties asserted that the other has a compromised understanding of the duties and responsibilities arising from being a parent. In particular the mother asserts that the father actively disparages her and her family to the children, fallaciously characterising them as violent (omitted).
Given the children share her (country omitted) background, one potential thread of the mother’s case is that Mr Marsh’s attitudes, in this regard, will undermine the children’s individual senses of identity, as they grow into maturity. In my view, this is yet another example of the degree of complexity arising in the case.
There are few, if any, agreed facts between the parties, particularly in regards to why the children are currently distressed. The mother is highly critical of the father for withholding the children from her in April for what she regards as a spurious reason. It is her case that the children have settled down since they returned to her care.
The father does not agree. It is his case that the return of the children to Ms Denpak has exacerbated the emotional tensions on the children. He is critical of the court for too hastily accepting the mother’s submissions and accepting her assessment that he is a person with a propensity to cry wolf as allegedly occurred in respect of the allegation of the circumcision of Y.
This criticism underlines to me the potential hazards of acting precipitately on the basis of untested evidence. As Fogarty J pointed out in N and S, a case involving allegations of sexual abuse:
“Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith as a result of misperception of information about their child or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[10]
[10] [10]See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 at [ 95]
The mother asserts that X reacted extremely to her justifiable displeasure when he gave away his birthday money. Thereafter she says his allegedly suicidal behaviour has been at his father’s home, rather than at hers. As such, she asserts that she and other members of her household are not necessarily the cause of this behaviour. These are matters which will, no doubt, be thoroughly examined at trial.
My obvious concerns about the well-being of X, in particular, are moderated significantly by the fact that the final hearing in the case can be accommodated in less than four months’ time. In the scheme of things, it is not a long period of time.
In these circumstances, I am not minded to change the arrangements for the care of the children in the dramatic manner sought by the father at this interim stage, given the polarised positions of their parents and the long standing conflict between them. In this context, I must be careful not to pre-empt the final hearing process or render it potentially otiose.
The next question to be considered is whether the serious concerns surrounding X and the other matters delineated in Mr B’s report, un-tested though that report is, justify a change in the current regime, which sees the children living predominantly with their mother, when for the close to nine years preceding there had been a close to shared care regime.
In mid-June of 2005, the parties agreed that they would have joint responsibility for the long term care, welfare and development of X and Y. These orders were made when the children were significantly younger than they are now. They were also made prior to the significant legislative changes to the Family Law Act represented by the Family Law Amendment (Shared Parental Responsibility) Act of 2006.
In this case, regardless of their criticism of one another, it cannot be said that either parent has been absent or disinterested in the lives and care of either X or Y. The regime agreed to from 2005 onwards saw the children living with their father over the course of five nights per fortnight, during school terms. This is a significant and substantial period of time as envisaged by section 65DAA(3) of the Act and is one of the outcomes to be considered when the presumption of equal shared parental responsibility is applied.
In my view, given this history, notwithstanding the serious allegations of abuse and family violence, which the father and the mother have each made respectively, it is appropriate that the presumption should be applied. I reach this conclusion because, as yet, I am unable to determine the strength of these various allegations, which range over long periods of time. At this stage, I do not consider, on the material available to me that I can have reasonable grounds to consider that either family violence or abuse of X and Y has occurred.
In this case, there are many practical impediments to the parties having an equal time arrangements. They communicate poorly, if at all. Their respective homes are some distance apart. They have no facility to focus jointly on the serious parenting issues, as is exemplified most readily by the fact that each of them has engaged their own psychologist for X.
In the past, when a problem has arisen in respect of the children, the father’s reaction has been to withhold the children from their mother and engage the children protection agencies. It is clear to me that he has little respect for the mother, either as a parent or a person. This, of course, is not a one way street. The parties, in my estimation have no capacity for parental dialogue or to problem solve.
However, for the larger proportion of the children’s lives to date, they have shared the parenting of X and Y. In my view, the on-going viability of such a regime and the application of the criteria delineated in section 65DAA(5) is also an issue for final hearing, as is the fundamental issues of whether such an outcome is the children’s best interests.
I have come to the conclusion that, pending the comparatively imminent final hearing, I should make orders restoring the orders made in mid-2005 by Dawe J. In my view, this is a proportionate response to the risks raised by Mr Marsh in respect of both children, but particularly X, given the controversy surrounding the recommendations of Mr B.
I remain concerned regarding the psychological well-being of X. In my assessment, these concerns justify a reinstatement of the previous care arrangements for the children, which sees both parents extensively involved in the lives of the children, pending the final hearing.

However, I am not prepared to place the children in Mr Marsh’s predominant care, pending this hearing, given the long-standing nature of the reinstated regime and the fact that there are so many areas of evidentiary controversy between the parties. These issues are complex and long-standing. In my view, I must be careful not to pre-empt the need to conduct a final hearing.
One of the major areas of controversy surrounds the views of the children, as reported by Mr B. The mother does not accept that this is true reflection of the children’s wishes. She alleges the children have been unduly influenced by their father.
For reasons already expressed, I agree that the court should proceed cautiously in respect of the report, particularly given the imminence of the final hearing, which is the proper place for a careful evaluation of all relevant circumstances surrounding the children, including any views said to be expressed by them.
The father asserts that Mr L represents a serious threat to the children, particularly X. In these circumstances, an injunction is sought preventing the mother bringing the children into contact with him. The mother denies that Mr L has ever behaved inappropriately towards the children, a state of affairs confirmed by Mr L to Mr B, but not as yet on oath by him.
Mr L and Ms Denpak have been involved with one another since 2007. Obviously the relationship between them is a committed one. They have a child together, although they do not currently share the same accommodation. In these circumstances, X and Y must have a significant level of relationship with their half-sibling Z. The children have grown up with one another.
In my view, it would be highly artificial and unwarranted to completely quarantine the children from Mr L pending final hearing. In my view, the existing injunctions represent an appropriate level of protection for the children.
Barring unforeseen events, the hearing will commence on 9 February next year. Obviously, I cannot know when judgment will be delivered. This is a few days after the start of the 2015 academic year, which will be fast upon us.
In these circumstances, it is my view that, pending final determination, Y should progress at the school she is currently attending and in respect of which Mr Marsh indicated he could facilitate her attendance, if there was a change of residence, for at least the remainder of the 2014 school year. In my view, this is likely to be the most stable outcome for her in the short term. No doubt she has friends at her school and is familiar with it.
In my view, pending the outcome of the trial, the decision regarding Y’s schooling dictates the outcome so far as X is concerned. He should attend the school closer to his mother’s home, where he will be spending slightly more time, pending the outcome of the final hearing.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date:20 October 2014

[2014] FCCA 2388

20 October 2014

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