McCarthy and Kaminski & Anor
[2013] FamCA 211
FAMILY COURT OF AUSTRALIA
MCCARTHY & KAMINSKI AND ANOR [2013] FamCA 211
FAMILY LAW – CHILDREN - With whom children live – Allegations of family violence by the Father – Where there is a finding that there was family violence during the relationship – Where the Father’s conduct is exaggerated by the Mother – Where the Father’s conduct was a consequence of the dynamics of the household during the relationship – Where the parents lived with the children and the maternal grandmother at the maternal grandmother’s home –Where there has been significant conflict between the Father and the maternal grandmother –Where the Mother and the maternal grandmother were in an enmeshed relationship – Where the Mother has since left the home of the maternal grandmother following conflict – Where no need for protection exists with respect to the children and either parent in their current environments away from the maternal grandmother – Where the Mother is the children’s primary attachment figure and the balance of considerations leads to the conclusion that remaining in the primary care of the Mother is in the children’s bests interests
FAMILY LAW – CHILDREN – With whom children spend time – Where there have been allegations of sexual abuse by the Father – Where the Mother resiled from maintaining allegations of sexual abuse during the trial – Where the maternal grandmother has advanced the allegations of sexual abuse with the motivation to cause harm to the Father and has influenced the Mother and other members of her family to cause them to reconstruct previous past events into something sinister – Finding made that the allegations of sexual abuse are groundless – Where it is in the children’s bests interests to spend time and communicate with the Father
FAMILY LAW – CHILDREN – With whom children spend time –Where there are concerns the maternal grandmother will seek to persuade the children of her views – Where there are concerns the children will be emotionally abused by the maternal grandmother –Where the eldest child is fearful of the maternal grandmother following her witnessing family violence between the Mother and the maternal grandmother – The maternal grandmother is restrained from spending time or communicating with the childrenFAMILY LAW – CHILDREN – Parental Responsibility – Where the parties are hostile towards each other – Where there has been findings of family violence – Presumption of equal shared parental responsibility does not apply and is rebutted
FAMILY LAW – COSTS – Where the making of allegations of sexual abuse necessitated the appointment of an Independent Children’s Lawyer – Where the maternal grandmother played a pivotal role in making and maintaining those groundless allegations – Where there are justifying circumstances warranting an order for the costs of the Independent Children’s Lawyer to be paid by the maternal grandmother on an indemnity basis
Family Law Act 1975 (Cth)
Donnell v Dovey (2010) FLC 93-428
Henderson & Chopke [2011] FamCA 631
Wen v Thom [2010] FamCAFC 81
APPLICANT: Mr McCarthy
RESPONDENT: Ms Kaminski
INTERVENER: Dr D Kaminski
INDEPENDENT CHILDREN’S LAWYER: Ms Franklin-Bell
FILE NUMBER: SYC 6500 of 2010
DATE DELIVERED: 5 April 2013
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Kent J
HEARING DATE: 6,7,8,9 and 10 February 2012 and 15 and 27 March 2012 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Finch
SOLICITOR FOR THE APPLICANT: DC Legal Pty Ltd
COUNSEL FOR THE RESPONDENT: Ms Carr
SOLICITOR FOR THE RESPONDENT: Batey's Family Law FOR THE INTERVENER: In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lawson SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Franklin Bell Family Lawyers Orders
It is ordered that
Parental Responsibility
(1)It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of B born … June 2008, C born … May 2010, and Z born … May 2010 (the “children”).
(2)Subject to Orders (3) and (15) hereof, the Mother shall have, to the exclusion of the Father, parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the children, save that the Mother shall, prior to making the sole ultimate decision about any such issue:
(a) advise the Father in writing of the decision intended to be made;
(b) seek the Father’s written response in relation thereto;
(c)consider, by reference to the best interests of the child or the children the subject of such declaration, any such response prior to making any such decision;
(d)advise the Father in writing as soon as reasonably practicable of her ultimate decision.
(3)Neither in the exercise of parental responsibility or otherwise shall the Mother:
(a)relocate the permanent residence of the children more than sixty (60) kilometres from the Sydney central business district; or
(b)cause or permit, by herself or by others, the children to come into contact with the maternal grandmother;
without first obtaining the written consent of the Father or further order of a Court exercising jurisdiction under the Act.
(4)The Mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in her care.
(5)The Father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in his care.
Live with, time and communication
(6)The children live with the Mother.
(7)The children spend time with the Father, unless otherwise agreed by the parents, as follows:
(a)commencing Wednesday 10 April 2013 and until B commences primary school each Wednesday from 9:30am until 5:30pm.
(b)commencing on the Wednesday after B commences primary school and each Wednesday thereafter from after school Wednesday until the commencement of school on Thursday morning each week.
(c)commencing Saturday 13 April 2013 and for each of the next three (3) Saturdays following, from 9:30am until 5:30pm.
(d)commencing Saturday 11 May 2013 and for each alternate weekend thereafter until B commences primary school, from 9:30am on Saturday until 3:30pm on Sunday.
(e)commencing Saturday 18 May 2013 and each alternate Saturday thereafter until the last such Saturday in January 2014 from 9:30am until 5:30pm.
(f)commencing Friday 7 February 2014 and on each alternate weekend thereafter from 3:00pm Friday until 4:00pm on Sunday.
(g)commencing with the 2014/2015 Christmas holidays for one half of the school holiday period gazetted in New South Wales being the first half of such periods in even numbered years and the second half in odd numbered years and during such periods the mid-week and weekend times otherwise provided for shall be suspended.
(8)For the purposes of handover:
(a)for weekends, the Mother, or her representative, shall deliver the children to the Father’s residence at the commencement of the Father’s time with the children, and the Father, or his representative, shall return the children to the Mother’s residence at the conclusion of such time save that in respect of the commencement of weekend time commencing on a Friday when B is attending school the Father shall collect the children from B’s school; and
(b)for mid-week periods, the Father shall collect B from her pre-school centre or school (on days when she is attending pre-school or school and otherwise as with Z and C) and Z and C shall be delivered by the Mother, or her representative, to such place as agreed between the parties, and all three children shall be returned by the Father to the Mother’s home at the conclusion of the Father’s time with the children and in respect of Wednesday overnight periods when B is attending school on the Wednesday the Father shall collect the children from B’s school at the conclusion of school on the Wednesday and return them to B’s school the following morning where they shall be collected by the Mother.
(9)The Mother shall not be present during the Father’s time with the children other than for the purpose of handovers and she shall leave promptly upon delivering the children to the Father.
(10)In respect of Christmas, the children shall spend time with the parent with whom they are not then living or spending time as provided for in these Orders, from 2:00pm on Christmas day until 2:00pm on Boxing day.
(11)If Mother’s Day falls on a day when the children would otherwise be spending that day with the Father pursuant to these Orders, the children shall return to the Mother at 10:00am on that day.
(12)If Father’s Day falls on a day when the children would not otherwise be spending time with the Father pursuant to these Orders, they shall spend time with the Father from 10:00am until 4:00pm unless otherwise agreed.
(13)In respect of each of the birthdays of the children, the parent with whom the children are not otherwise spending time on that day pursuant to these Orders shall have time from 3:00pm until 7:00pm if on a school day and on a non-school day from 1:00pm until 6:00pm.
(14)Each parent shall facilitate telephone communication between the children and the other parent on each of Tuesday and Thursday evenings at 6:30pm on those evenings when the children are in the parent’s care.
(15)The Mother be restrained by injunction from taking B to counselling at the F Health Centre, or with any other counsellor or therapist, except with the prior written consent of the Father.
(16)At such times as either parent takes the children on holidays outside the Sydney metropolitan area, that parent shall provide the other parent with the address and contact telephone number of where the children will be staying. For the purposes of this Order, the Sydney metropolitan area is defined as Wollongong in the south, Katoomba in the west and Newcastle in the north.
(17)Within fourteen (14) days of these Orders, the Mother shall provide all necessary authorities and consents to ensure that the Father is authorised to contact any school, pre-school or medical practitioner that the children attend from time to time for the purpose of obtaining information regarding any of the children’s progress, medical diagnosis or medical treatment.
(18)The parents use email as the means of communication in relation to the children.
(19)Each parent immediately notify the other if any child is seriously ill or is to be admitted to hospital on any occasion when the child is in that parent’s care.
(20)The Intervener, Dr D Kaminski, be restrained by injunction by herself and by her servants or agents from communicating or spending any time with the children, or attending any preschool or school or any other activity that any of the children attend absent the prior express written consent of the Mother and the Father, or further order of the Court, to so do.
(21)The parents and maternal grandmother are restrained by injunction from:
(a)speaking or causing or permitting any other person to speak to or about the parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
(b)discussing any proceedings in the presence or hearing of the children or permitting any other person to so do.
(c)discussing the allegations of inappropriate behaviour by the Father towards the child, B, in the presence or hearing of the children or permitting any other person to so do.
(22)Pursuant to s 121(9)(g) of the Act the Court approves the publication of these Orders and/or reasons for judgment by the Father to the Director General of the NSW Department of Family and Community Services.
Costs
(23)Within ninety (90) days of the date of these Orders the Intervener Dr D Kaminski pay to the Legal Aid Commission of New South Wales the costs of the Independent Children’s Lawyer of and incidental to these proceedings on an indemnity basis in an amount agreed or, failing agreement, to be assessed on an indemnity basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McCarthy & Kaminski 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 BRISBANE FILE NUMBER: SYC 6500 of 2010
Mr McCarthy Applicant
And
Ms Kaminski Respondent
REASONS FOR JUDGMENT
Proceedings and Proposals
1.B, born in June 2008 (now almost five years of age) (“B”),and her brothers C (“C”) and Z (“Z”), fraternal twins born in May 2010 (now almost three years of age) are the subject of these parenting proceedings pursuant to part VII of the Family Law Act 1975 (Cth) (“the Act”).
2.The parties seeking competing parenting orders are the children’s father, Mr McCarthy, as Applicant (“the Father”); the children’s mother, Ms Kaminski, as Respondent (“the Mother”); the children’s maternal grandmother, Dr D Kaminski, as intervener (“the maternal grandmother”); and the Independent Children’s Lawyer appointed pursuant to section 68L of the Act to independently represent the children’s interests in the proceedings (“the ICL”).
3.At the outset of the trial, the maternal grandmother sought and obtained leave to intervene in the proceedings, there being no objection by any other party to that.
4.The intervention of the maternal grandmother in the proceedings and her seeking parenting orders in her own right was in the context that from a previously allied position with the Mother, an estrangement between them developed and progressed during 2011 to the point that the maternal grandmother’s role in the children’s lives previously was curtailed by the Mother.
5.Part of the Mother’s case at trial was that orders for time and communication between the maternal grandmother and the children would not be in the children’s best interests. That was a position common also to the respective cases of the Father and the ICL.
6.The parenting proceedings were instituted by the Father by application filed in the Federal Magistrates Court at Sydney on 15 October 2010. Consequent upon the Mother filing a Notice of Child Abuse or Family Violence in Form 4 on 7 December 2010, and the content of that notice containing allegations of sexual abuse of B against the Father, the proceedings were subsequently transferred to this Court; were designated Magellan and an ICL was appointed to represent the interests of the children in the proceedings.
7.As at the outset of the trial, a central issue each of the Mother and the maternal grandmother respectively were agitating were the allegations in support of a conclusion that orders for the Father to have unsupervised time with the children would expose B to an unacceptable risk of sexual abuse by the Father. In response, on his contention that the allegations were groundless, the Father sought orders for the children to live with him and for, in summary, the Mother to spend limited time with the children until she had successfully undertaken counselling for a number of issues.
8.During the trial and only well into her cross-examination, the Mother resiled from her previously maintained allegations concerning sexual abuse. That is, the Mother then no longer pressed reliance upon evidence from the maternal grandmother, her brother Mr J, or her sister Ms V or her own evidence in that context, and no longer contended for a finding that the Father having unsupervised time would pose any unacceptable risk of sexual abuse to B.
9.Somewhat extraordinarily, for reasons which will be discussed, the Mother’s resiling from that case against the Father was accompanied by her raising, apparently for the first time and from the witness box, that the maternal grandmother may be implicated in some inappropriate conduct towards B as would explain her so-called sexualised behaviours, as will be discussed. The Mother provided no articulation or particulars of what it was the maternal grandmother may have done.
10.For her part, the maternal grandmother maintained the allegations against the Father and maintained the case for a finding of unacceptable risk against the Father as regards B.
11.On 10 February 2011 at the conclusion of the five days of evidence taken in the trial to that point, but prior to final submissions, each of the ICL, the Father and the Mother joined in seeking modifications to the then operative interim orders which had imposed, inter alia, the requirement for the Father to have one of three nominated persons present when he was spending time with the children. The maternal grandmother opposed the modification sought.
12.For reasons then given, I ordered the modifications as sought, which allowed the Father’s twice weekly time with the children to be thereafter spent by him on an unsupervised basis.
13.By the time of final submissions in the case on 27 March 2012:
a)each of the Father, the Mother and the ICL opposed orders sought by the maternal grandmother providing for the children to have specified periods of time with the maternal grandmother;
b)central components of the Father’s proposed orders as set out in his detailed minutes of proposed orders included:
i)the parents having equal shared parental responsibility, save in respect of the Father having sole parental responsibility for:
(A)decisions related to changes in living arrangements, making it more difficult for the children to spend time with a parent;
(B)decisions relating to health; and
(C)decisions relating to education
ii)the children living with the Father;
iii)after one month of no time and then for a twelve month period, the Mother having two week-day periods of three hours each and a Sunday period of five hours;
iv)the Mother attending counselling to address several issues as particularised in the minutes of orders;
v)a further report to be obtained from Dr W (psychiatrist appointed as single expert in the case) eight months after orders, then a legal aid conference;
vi)provisions for the parties to file further parenting applications subsequent to the further report of Dr W;
vii)extended periods of the children’s time with the Mother, after the report, including overnight weekend periods;
viii)half-holiday periods from when B commences primary school;
ix)an injunction restraining the children’s residence being altered further than sixty (60) kilometres from the Sydney central business district;
x)an injunction restraining the maternal grandmother spending time or communication with the children absent both parties’ written agreement;
c)central components of the Mother’s proposed orders as set out in her detailed minutes of proposed orders included:
i)the Mother having sole parental responsibility (but in the event of the Court determining to make an order for equal shared parental responsibility, provision for the parties to enrol in and access the “Keeping in Contact” programme conducted at Unifam, Parramatta);
ii)the children live with the Mother;
iii)continuation of the children spending time with the Father for four hours on two occasions per week until 30 June 2013;
iv)from 1 July 2013 to 31 January 2014, extending those periods to six hours each;
v)from 1 February 2014 until 31 January 2016, time on alternate weekends from 9:30am to 5:30pm each day (but from February 2015, one weekend per month including overnight until Sunday morning), plus each Wednesday for six hours;
vi)from 1 February 2016, overnight on alternate weekends until Sunday mornings plus weekly time each Wednesday afternoon;
vii)from 1 July 2016, the overnight alternate weekend time being extended to Sunday afternoons, plus holiday periods;
viii)the Father to complete a course or counselling;
ix)injunctions in relation to the maternal grandmother subject to the mother determining if and when the children are to have any contact with her;
d)central components of the ICL’s proposed orders as set out in the ICL’s detailed minutes of proposed orders included:
i)the parents having equal shared parental responsibility;
ii)the children living with the Mother;
iii)graduated expansion of the time the children would spend with the Father with B commencing overnight periods in June 2012 and the twins in November 2012; culminating in the progression that from May 2013 (the twins turn three years of age on 18 May 2013) the children would be spending from 3:00pm Friday until 4:00pm Sunday each alternate weekend, plus a period on Wednesday each week, with the Father;
iv)from May 2013 until B commences primary school, four additional periods of three days each to be spent with the Father;
v)upon B commencing primary school, additional periods of holiday time with the Father;
vi)a twelve month restraint upon the maternal grandmother spending time or communicating with the children;
vii)therapy of the Mother with a therapist recommended by Dr W;
viii)an order that the maternal grandmother pay the costs of the ICL;
ix)a further report being obtained from Dr W with the parents then being at liberty to file further applications to the Court.
(I interpolate here that in relation to the restraint for twelve months sought by the ICL with respect to the maternal grandmother in the written minutes of order, counsel for the ICL modified the ICL’s position at the time of oral submissions on 27 March 2012 in light of the written and oral submissions made by the maternal grandmother on that day; essentially, counsel for the ICL acknowledged a fundamental concern given the oral submissions of the maternal grandmother as to whether the Court could find that the maternal grandmother is able to “move on” from these proceedings and on that basis, acknowledged that it may be preferable for the court to adopt the more restrictive approaches with respect to the maternal grandmother urged by the parents).
e)for her part, the maternal grandmother sought orders for specified time of two hours per week plus time on special occasions.
Relevant Background and Chronology
14.The Father was born in 1974 and is now 38 years of age. He is self-employed operating a consultancy established during the marriage.
15.The Mother was born in 1979 and is now 33 years of age and engages in home duties full time, although she also is highly qualified academically. The Mother historically gained employment externally but in about 2005 or 2006 commenced working in the Father’s then new businesses. That employment role terminated with the parties’ separation.
16.The parties met whilst they were still studying at university and commenced a relationship in approximately September 2001 and commenced cohabitation in early 2003. They decided to move to live in the maternal grandparents’ home in Suburb H, Sydney. The parties were married in 2005 and separated on a final basis on 31 July 2010. Apart from a brief separation in 2004, both parties remained living in the maternal grandmother’s Suburb H home with the maternal grandmother until the time of their separation on a final basis on 31 July 2010.
17.In about 2006 the Father, it having been discovered that he is infertile as a result of azospermia, agreed with the Mother that they would conceive children via In-Vitro fertilisation with the assistance of a sperm donor (the same donor was used for all three of the parties’ children). As already noted, B was born in June 2008 and the twins C and Z were born in May 2010.
18.It was not in issue that the maternal grandmother and the maternal grandfather had been separated, although not divorced, for several years and that the maternal grandfather now works and resides in X Town, while the maternal grandmother has remained living in their home in Suburb H.
19.The Suburb H home was a property in which the Mother grew up with the Kaminski family. Renovations to the home over the years led to it comprising a seven-bedroom, two level premises. When the parties initially lived together in that home, other siblings of the mother also resided there but within a couple of years, had left home, leaving the Mother, the Father and the maternal grandmother as the residents.
20.A consistent component of the Father’s case is that from early in the relationship, he wished for the parties to live independently and not in the maternal grandmother’s home but could not convince the Mother to sever ties with her mother. It seems this tension was the cause of the parties’ temporary separation in 2004 for a short period. It seems to have remained a simmering source of tension throughout the relationship.
21.The Father accepts that the maternal grandparents’ provision of free accommodation assisted the Mother to conclude her studies and the Father in starting his own business. It is obvious that very significant financial assistance was provided by the maternal grandmother. Indeed it would seem that the Father was essentially financially dependent at the time his business commenced and the maternal grandmother assisted the Father financially throughout the relevant period including by making provision within the home in which he could operate his business which from time to time included other employees and meeting household expenses.
Separation 31 July 2010
22.Both the Father and the Mother agree that there was tension in their relationship over a long period leading up to their separation, which culminated in the events of 31 July 2010.
23.In his report of 11 July 2011, Dr W, psychiatrist appointed as a single expert, reflected upon the dynamics of the household both historically and at the time of his report, in these terms:
The material available to me suggests that the atmosphere in the [Kaminski] household during the marriage could be quite claustrophobic and tense and that much of this is relevant to the current situation. Not only was [Mr McCarthy] operating a business from home which included having up to two external employees in the home at the time but it appears that [Dr Kaminski] [a reference to the maternal grandmother] exerted a very controlling influence on all the occupants of the house. Indeed I form the view that her daughter has a rather hostile dependent relationship with her and that she has experienced considerable difficulties establishing a more mature level of autonomy. She is still living at home, although I accept that she is closer to leaving than she has ever been in the past. At the time of my assessment, both she and her mother indicated there was considerable tension between them and she described quite clearly to me that she finds her mother intrusive and controlling. [Dr Kaminski] herself described circumstances in the home consistent with this, although I don’t think she has a great deal of insight into it. Indeed she had a somewhat triumphant manner when describing she hovers around the boys’ bedroom door if they wake up crying in the night, until her daughter manages their crying in the way that [Dr Kaminski] endorses. [Dr Kaminski] also seemed to be of the view that since the family were living in her home, she was entitled to dictate the terms of a broad range of private matters between them. This included even treating both of them with antidepressants and making sensitive referrals to other professionals in a way which in my view is beyond reasonably common practice in medical families.
24.Further, Dr W observes:
In my view, [Mr McCarthy’s] decision to operate a business which entailed employing several additional staff members in the home reflects somewhat poor judgment in terms of work/family balance. He is a fairly obsessional person and he probably thought that he could juggle competing responsibilities and expected that others would be able to do the same thing, and also that he would not be distracted by various other things going on around him. However I think that this was quite an unrealistic expectation and it reflects both a lack of empathy for his wife and family and also for his employees. This would have been a difficult enough situation if he and his wife lived away from his mother-in-law but I think it was made more acute when the obvious tensions between his wife and mother-in-law and the developing tensions between he and his mother-in-law are added to the equation.
25.Further, Dr W opines:
I formed the view that the parenting environment in the latter stages of the relationship was quite unsatisfactory for several reasons. Firstly, particularly since the twins’ birth but before that time as well, the maternal grandmother, [Dr Kaminski], had clearly been trying to impose her values and parenting practices on her daughter in particular but probably also on [Mr McCarthy]. This undermined her daughter’s confidence in herself as a parent, probably leading to some disorganisation in her parenting approach which was particularly evident when the twins were born…
…A second important factor which was in my view disruptive to family life and in particular to parenting was that [Mr McCarthy] was running a business from home. This was not an ordinary home based business in several respects. Primarily, he was not a sole practitioner who was able to organise his work hours and duties around family life. He had up to two external staff in the home which in itself imposed significant limitations on home life and parenting, and also his business operation was crammed into one room after the birth of the twins which undoubtedly put pressure on the work place. In addition, twins are inevitably out of synchrony as babies and they almost inevitably put pressure on the home environment, even when there is not a work place present at the same time.
…As I have indicated earlier, I formed the view that [Ms Kaminski] [a reference to the Mother] has a rather hostile dependent relationship with her mother – that is, she finds her hard to live with because she is so dominating and interfering, but she can’t yet live without her and she resents her.
26.Dr W also records in his report the Father’s history of reported frustration consequent upon the parents having discussed and reached a decision, only for the maternal grandmother to impose her views and exert her influence and control over the Mother so that what the Father thought to be a concluded decision was then altered to the will of the maternal grandmother.
27.I accept the accuracy of Dr W’ assessment and opinions concerning the family dynamics in what Dr W describes as the Kaminski household prior to separation.
28.It is perhaps a reflection of the dynamics that operated in that household that the events of the parties’ separation on 31 July 2010 indicate that ultimately, the central protagonists in the conflict were not so much the Father and the Mother, but culminated in conflict between the Father and the maternal grandmother.
29.The parties’ versions of what occurred on the day differ, but it is essentially agreed that initially the Mother requested that the Father take her and the children out to the park and the Father agreed, but then had to later refuse as a business meeting which was to occur later that afternoon was unexpectedly rescheduled.
30.The Mother, on taking issue with the Father not following through with his earlier agreement, complained to the maternal grandmother who then intervened to tell the Father that he ought do what the Mother requested. There would seem to be little doubt that verbal conflict then ensued as between the Father, the Mother and the maternal grandmother.
31.On the evening of that day, when the maternal grandmother returned home, she insisted upon the Father making an apology to her. Notably, for reasons also relevant to the assessment of allegations subsequently made against the Father concerning inappropriate sexual conduct towards B, the maternal grandmother confirmed in her oral evidence before me that had the Father then apologised, she would have permitted him to continue living in her house.
32.However, the Father would not and did not apologise and the conflict ensued to the point that the Father ultimately left the home. Both the Mother and the maternal grandmother principally have alleged that the Father assaulted the maternal grandmother on that occasion by pushing her and “walking her into a cupboard”.
33.Despite that allegation, on the following day, 1 August 2010, the Father attended the home at the Mother’s invitation to bath the babies. He again left late that evening.
34.Again on the following day, 2 August 2010, the Father attended the home and bathed the babies. Again there was a verbal confrontation between the Father and the maternal grandmother and the Father again left that evening.
Communications of 4 August 2010
35.I set out the communication between the parents of 4 August 2010 because these form important background to the events which were to follow.
36.The communications are to be read and understood in the context that at the trial, the Mother acknowledged that communications purporting to be from her were in fact drafted by the maternal grandmother. That is, the maternal grandmother determined what was to be said to the Father by the Mother and she followed the maternal grandmother’s directions in this respect.
37.The communications commence with the Father sending an email to the Mother in the following terms:
[Ms Kaminsky],
It is with great sadness that it has come to this but it is not tenable for me to continue to live in your mother’s house since your mother made it clear that I was no longer welcome. As I have said, I continue to want to have a normal family relationship with you and our children.
I understand that you have chosen separation as the solution to this dilemma. Again, this is very sad for me. I trust that during our separation we will handle things maturely and amicably as possible
For the sake of the children, I want regular access during the separation – for practicality I would like regular access to [B] two days a week from Friday afternoon to Sunday evening. Whilst it will be painful for me, it should not do too much harm to my relationship with the twins [Z and C] as they are too young at the moment. So for that reason, I request merely a chance to see them when I visit to pick up and drop off [B].
I currently [sic] looking for suitable accommodation preferably near my brother [Mr U] and his family so they can give assistance if needed. In the meantime, I am temporarily boarding with [Mr U’s] family as I had no other options on short notice.
As far as finances are concerned – you should be ok for the interim because you are living rent free in your mother’s house and have access to our savings of in excess of $100k in your account.
I would like your feedback on access with [B] as soon as possible as I want as little disruption with my continual contact with her. I would like the access to start this weekend – Friday 6 August.
For the sake of the children, I would like to keep this process calm and rational.
Kind regards
[Mr McCarthy].
38.It can be accepted that the Father’s email was reasonable in that it expressed matters in a calm and measured way and primarily focussed on the Father’s desire to continue his relationship with his children, despite the parties’ separation.
39.I also interpolate here that taken to that email in the course of her cross-examination, the Mother had to concede that her later claims of the Father placing her in economic duress post-separation were unsustainable. As was pointed out about the email, the Father was acknowledging that the Mother could access in excess of $100k in savings in circumstances where she was continuing to live, rent free, in her mother’s home.
40.Following that email, the following sms messages were exchanged between the Father and the Mother that day, again noting that in fact the maternal grandmother determined the content of the Mother’s messages:
Mother to Father, 4/08/2010 at 14:55: [Mr McCarthy] could you call mum urgently to make an appointment to see and speak with her about an urgent matter
Father to Mother, 4/08/2010 at 14:59: I am happy to talk with you [Ms Kaminski] but not with your mother. We are husband and wife. If you are not comfortable talking to me alone we can meet together with a clinical psychologist tonight at 1830. If there is a health emergency call an ambulance.
Mother to Father, 4/08/2010 at 15:04: This is a matter that concerns you and my mother and not me and she hopes that it will never concern me. If you do not speak with her there may be very serious repercussions.
Father to Mother, 4/08/2010 at 17:14: Do not understand what you are talking about. If your mother needs to communicate with me – she can SMS or email me and I will try to resolve it for her.
Mother to Father, 4/08/2010 at 17:20: This matter is for face to face discussion. For your sake we do not want written records. We hope it can be resolved for everyone’s continued wellbeing. [Ms Kaminski as per Dr D Kaminski].
Father to Mother, 4/08/2010 at 17:36: Thank you for your SMS. Rather not talk to your mother. I am quite relaxed about putting anything into writing – and prefer everything to be in writing.
41.When it is understood that it was in fact the maternal grandmother who authored the Mother’s messages, it is clear that she was demanding that the Father attend upon her for a face to face meeting. In her cross-examination at trial, the maternal grandmother confirmed that part of her purpose at that stage was to have the Father apologise to her. As earlier noted, the maternal grandmother gave evidence that if on 31 July 2010, the Father had apologised, he would have been able to, from her point of view, continue to reside in the home.
42.The Father would not cooperate with the demands of the maternal grandmother to meet with her. That seems to have been the catalyst for the maternal grandmother making the first of the reports she was to make to the Department of Community Services on 5 August 2010 alleging inappropriate conduct on the part of the Father as regards B, and making a complaint to the police of assault relating to the events on 31 July 2010 causing the Father to be charged and prosecuted.
43.The prosecution of those charges proceeded to a trial and the charges were ultimately dismissed in early 2011. Between the end of August 2010 and the obtaining of a Court Order in December 2010, the Mother did not facilitate the Father spending time with the children. In the period following 4 August 2010, a number of conditions or demands were placed upon the Father for the purpose of him being able to spend any time with the children, including for example, the requirement that he spend the time at the Suburb H home with a Kaminski family member as supervisor. Unsurprisingly, the conditions were unworkable and the Mother insisted upon a court order being obtained.
44.Apart from the criminal charges, the maternal grandmother obtained a temporary Apprehended Domestic Violence Order against the Father although this too was later dismissed and no permanent order was made.
Events leading to trial
45.As already noted, these proceedings were commenced by the Father on 15 October 2010.
46.The members of the maternal family who gave evidence in support of the Mother on the topic of alleged sexual abuse (the Mother herself, the maternal grandmother, Ms V Kaminski and Mr J Kaminski) all agreed that the maternal family had a “meeting” on 5 November 2010 at which the maternal family purportedly exchanged and discussed their views leading to concerns over the Father’s alleged behaviour towards B. Those discussions purportedly led to the conclusion on the part of all members present that the Father had inappropriately touched B and was therefore a risk to her. Those allegations were then put in affidavit form by those members of the Mother’s family for the purpose of these proceedings. This aspect of the case will be dealt with separately below.
47.The Mother did not respond to the Father’s application for some two months, filing a Response and an affidavit on 6 December 2010 and a Notice of Child Abuse or Family Violence on 7 December 2010. This Notice (and the 6 December 2010 affidavit) raised the following issues of concern:
a)That the maternal grandmother, maternal aunt and maternal uncle had all witnessed the father inappropriately touching B by drawing unnecessary attention to her genital area during nappy changes and bathing;
b)That there was a history of aggression and verbal abuse by the Father towards the Mother and that the Father had physically assaulted the maternal grandmother;
c)That the Mother was concerned the Father would not be able to control his aggression if left to care for the three children alone.
48.On 8 December 2010, following a mediation with Mr K, the parties entered into consent orders which provided for the children to live with the Mother but spend three hours, three times per week with the Father which was to be supervised by either of the Father’s sisters (Ms L McCarthy or Ms M McCarthy) or another person as agreed by the parties.
49.However, these orders did not operate as planned as the Mother refused to leave the children alone with the Father during the contact visits or to be out of the children’s sight. The Mother contended that this was because the children could not cope without her, while the Father deposed that he saw this as the Mother intentionally interfering with his time with the children. The Mother also decided that three visits per week was too much for both herself and the children and refused to comply with the consent orders. These disagreements about the need for the Mother to comply with the consent orders led to verbal disputes between the parties in front of the children and to the police service being called to visits on several occasions.
50.The Mother raised concerns not only over the children’s inability to be separated from her, but also regarding the appropriateness of the nominated supervisors, and in particular Ms M McCarthy. The basis of the Mother’s objections to Ms M McCarthy are not entirely clear, but appear to be based upon her alleged failure to constantly supervise the Father (when the Father was in a public place or separated from her by a glass partition) and her alleged monopolisation of the twins, Z and C, such that the Mother deposes that the Father did not spend sufficient time with them. The Mother also alleged that Ms M McCarthy created a, “…hostile environment…” at the visits. How she did not see her own presence doing so, contrary to orders, is mystifying. Having observed Ms M McCarthy give evidence and be cross-examined I am satisfied there is no substance to the Mother’s criticism of her. Ms M McCarthy presented as capable and reasonable whose focus was upon the interests of the Father and the children in a difficult context.
51.On 7 February 2011, the Father and the Mother entered into further consent orders. Apart from providing for the report of an expert to be obtained (that being the report of Dr W ultimately obtained) the Father agreed to his then application for contempt against the Mother which he had filed on 21 December 2010 being dismissed and orders were consented to facilitating the Father’s time with the children on three occasions per week at nominated venues with another person to be present as identified in the order.
52.Further interim orders were made by the Principal Registrar on 30 November 2011 in advance of the trial, again providing for the Father to spend supervised time with the children.
Breakdown of relationship between the Mother and the maternal grandmother
53.I have already made reference to the observations of Dr W, which I accept, regarding the nature of the relationship between the Mother and the maternal grandmother.
54.Historically, and notwithstanding that the Mother is obviously highly intelligent, it is clear that the maternal grandmother was able to control, influence and manipulate the Mother to act in accordance with the needs, wishes and desires of the maternal grandmother.
55.As the Mother explained in her affidavit material, historically she trusted her mother and regarded her as the most important person in her life. The Mother felt that her mother had superior knowledge and understanding given her life experience and the fact that she was medically qualified.
56.Obviously enough, the provision by the maternal grandmother of accommodation on a rent-free basis and financial assistance to the Mother and the simple fact that the Mother remained living in the home of the maternal grandmother all provided a context for the dynamics referred to. Moreover, undoubtedly in many respects the maternal grandmother was of assistance to the Mother when B was born and also when the Mother confronted the challenge presented by the birth of the twins and thereafter.
57.An obvious example of the extent of the maternal grandmother’s influence is the post-separation communication between the Mother and the Father already referred to. For the Mother to have communicated with the Father, her former partner, in the context of their separation in terms dictated by the maternal grandmother speaks volumes as to the extent of influence that the maternal grandmother was able to exert over the Mother.
58.Even the Father, no shrinking violet himself in the sense of, as Dr W puts it, having the capacity to be a strong-willed and controlling person and to have an “overbearing nature” found himself subjected to the will of the maternal grandmother from time to time. For example, he accepted her diagnosis that he needed to take anti-depressants for his “violence” as he reported it to Dr W and he also attended other medical professionals, for example Dr N, at the instigation of the maternal grandmother.
59.From early 2011, there commenced to be a change in the Mother’s apparent preparedness prior to then of accepting the maternal grandmother’s views.
60.In her affidavit evidence, the Mother refers to having an “awakening” in 2011 as to the maternal grandmother’s “methods”. She deposes to that “awakening” as being initiated by the maternal grandmother’s challenges to the Mother as to the latter’s mental health. The Mother deposes, and I accept, that the maternal grandmother told the Mother that she was “dissociating due to psychosis”. The Mother deposes that in February 2011, the maternal grandmother commenced telling her she was “psychotic” and later that she was “suffering from a paranoid psychosis”. Whilst the Mother deposes that she did not believe that she was in fact psychotic, she was very distressed, embarrassed, ashamed, humiliated, and degraded by those assertions by the maternal grandmother made to the Mother and others and I accept her evidence in this respect.
61.Notably, it was also in February 2011 when the criminal assault charges caused to be brought by the maternal grandmother against the Father were dismissed. In her oral evidence at trial, the Mother expressed that the fact of the dismissal of the charges and the maternal grandmother’s apparent inability or unwillingness to accept that outcome caused the Mother to commence to doubt the maternal grandmother. I accept that evidence.
62.In April 2011, the Mother took the children and herself to reside for five days in the residential care programme of the organisation O residential care. The Mother had not told the maternal grandmother that she was planning to attend O residential care but the Mother deposes that when the maternal grandmother discovered that this was occurring through finding paperwork at the home, the maternal grandmother left a note for the Mother containing words to the effect “Babies sleeping through the night will result in [Mr McCarthy] getting custody of the children.” Understandably, the Mother felt threatened by that conduct which I accept occurred.
63.I accept the Mother’s evidence that when she and the children returned from the O residential care, the maternal grandmother announced to her to the effect “there would be no [O residential care] practices in my house, I am the Grandmother and I would not allow crying for more than half an hour.”
64.The evidence establishes that the Mother found the O residential care methods greatly helped her in developing a routine for the twins with which she could cope in terms of their overnight feeding and sleeping patterns; but equally, the evidence establishes that the maternal grandmother did all that she could to undermine the Mother in employing those methods.
65.The maternal grandmother’s interventions to undermine the routine the Mother sought to employ included feeding the twins in the middle of the night contrary to the Mother’s wishes and ignoring the controlled crying approach that the Mother had sought to adopt. This fiasco reached the point that the Mother would lock herself in the babies’ room at night time, with the maternal grandmother outside the door attempting to get in or singing or saying derogatory statements to the Mother, for example that she (the Mother) was “the devil”.
66.So determined was the maternal grandmother to impose her will, that on 17 May 2011, she had a locksmith attend the home to remove the internal locks of the babies’ bedroom door.
67.I accept the Mother’s evidence that the maternal grandmother would undermine the routine the Mother was attempting to impose on the twins by feeding them in the middle of the night, and when the Mother objected, the maternal grandmother would physically push past the Mother into the children’s room. The maternal grandmother accepted under cross-examination that she would feed the children at night contrary to the Mother’s wishes. When the Mother intervened and locked herself in the twins’ bedroom and the maternal grandmother out of the bedroom, the Mother alleges, and the maternal grandmother accepted under cross-examination, that the maternal grandmother “sung” through the door to the twins and B that the Mother was acting as if she was, “…possessed by the devil.” The maternal grandmother maintained under cross-examination that this was not an inappropriate thing to have said in front of the children. The maternal grandmother also accepted the Mother’s allegation that, following this incident, she had removed the locks on the children’s bedroom.
68.I note that Dr W records the maternal grandmother’s reporting of these incidents as follows:
At the time of my assessment, both she [the Mother] and her mother indicated there was considerable tension between them and she described quite clearly to me that she finds her mother intrusive and controlling. [Dr Kaminski] herself described circumstances in the home consistent with this, although I don’t think she has a great deal of insight into it. Indeed she had a somewhat triumphant manner when describing to me how she hovers around the boys’ bedroom door if they wake up crying in the night, until her daughter manages their crying in the way that [Dr Kaminski] endorses. [Dr Kaminski] also seemed to be of the view that since the family was were (sic) living in her home, she was entitled to dictate the terms of a broad range of private matters between them. …
69.The fact that the maternal grandmother saw nothing wrong in her undermining the Mother’s parenting, and in fact saw it as some sort of triumph, is of great concern in terms of the effect this can have on the Mother as an effective and emotionally available parent to the three children when under her mother’s roof or influence.
70.I accept the Mother’s evidence that in this period, the maternal grandmother threatened to report her to the Department of Community Services and that she told the Mother that she was going to contact Mr K, the family consultant involved, by writing Mr K a letter asserting that the Mother was abusing the children.
71.It seems that by June/July 2011, confrontations between the Mother and the maternal grandmother escalated to the point of physical pushing and the attendance of the police on about 10 July 2011 at the request of the Mother. B was subjected to the experience of waking up with police officers in her room. The maternal grandmother also acted to summons the mental health team with respect to the Mother.
72.The Mother deposes in her 15 December 2011 affidavit to the incident at the maternal grandmother’s home on 10 July 2011 in some detail. C had commenced crying at approximately 9.45 pm. The Mother deposes that the maternal grandmother went to C’s room (the Mother was standing outside) and began to lecture her on letting C cry (the Mother deposes this was part of the controlled crying techniques she had learned at O residential care). The Mother deposes that the maternal grandmother then began pushing the Mother in an attempt to enter the children’s room and attempted to bite the Mother before pushing into the children’s room. The Mother deposes that she then called the police who came to the house to intervene, while the maternal grandmother called the Mental Health Team to assess the Mother on the allegation that she had some form of mental illness. Given the maternal grandmother’s other concessions which support the Mother’s evidence almost in its totality as to the behaviour of the maternal grandmother in relation to the Mother, I accept the Mother’s evidence as to this incident.
73.I accept the Mother’s evidence that at about this time B received statements from the maternal grandmother to the effect that “Mummy is possessed by the Devil” and “when you are older, you will realise how sick Mummy is” and “Mummy is living in hell”. I also accept that B witnessed the Mother telling the maternal grandmother “you are an evil witch”.
74.The maternal grandmother, thus in my opinion, represents a significant danger to the wellbeing of the children, not in the least because the maternal grandmother appears willing to resort to physical violence in front of the children should the Mother not exactly follow the maternal grandmother’s instructions.
75.Importantly, Dr W gave evidence under cross-examination that unless there was a, “…fundamental change…” in the relationship between the Mother and the maternal grandmother, the maternal grandmother would continue to undermine the Mother and the Mother’s happiness. In my view, such an undermining of the Mother’s happiness can only impair her ability to parent these children and will cause distress in the Mother’s household by which these children will no doubt be negatively affected. The fundamental change required is unlikely to occur in the future if the maternal grandmother is able to maintain regular contact with the Mother and the subject children absent any insight or reflection by her upon her capacity to exert control.
76.Unsurprisingly, given what she had witnessed transpiring between the Mother and the maternal grandmother over the period, it seems that by 28 July 2011, B was anxious and concerned on any occasion when the maternal grandmother and the Mother were to interact. In this respect, I accept the Mother’s deposition of what occurred in July 2011 as follows:
On Thursday 20 Jul [sic] 2011, I was at the granny flat at the family holiday house at [P Town]. I was not expecting anybody and I was in the middle of bathing the children. My Mother arrived at about 6:15pm. [B] was in the bath at the time and when she heard my Mother, [B] got out of the bath without washing her hair and ran around in a panic. [B] went to the door and tried to stop my Mother from coming into the granny flat. Then [B] began screaming and running between the two entrances to the granny flat. I rang my Father and then rang a hotel. I was finishing the baths for [Z and C] and getting them ready. At the same time I was trying to ask [B] to get dressed. She was very distressed/ hysterical and would not respond to my instructions. She kept screaming and running between the two entrances, sitting at base of the door trying to stop my Mother from entering the granny flat. Once I settled [Z and C], I dressed [B] and packed some things for the children and put them all in the car. My Mother was following me and saying to the children “…Mummy is crazy…” and “…grandma doesn’t want you to leave…”; “…Mummy is leaving….
77.I also accept the Mother’s evidence that on Tuesday 2 August 2011, in yet another verbal confrontation with the maternal grandmother, the maternal grandmother said:
I hadn’t decided but they have asked who should the children live with and now I have decided that I will help [Mr McCarthy] get custody of the children.
78.In August 2011, the Mother finally moved out of the maternal grandmother’s home to live in independent rental accommodation. Surprisingly, given all that had occurred before, the accommodation taken up by the Mother was only several doors away from the maternal grandmother’s home in Suburb H.
79.The Mother filed an affidavit on 6 February 2012 containing detailed particulars of the extent to which the maternal grandmother has continued to drive past the Mother’s house.
80.At the time of his July 2011 report based upon June 2011 interviews (when the Mother had not yet left the maternal grandmother’s home), Dr W opined:
…Indeed I formed the view that her daughter has a rather hostile dependent relationship with her and that she has experienced considerable difficulties establishing a more mature level of autonomy. She is still living at home, although I accept that she is closer to leaving than she has ever been in the past…
81.In his evidence at trial, Dr W had reservations about the feature that in choosing to live independently, the Mother selected accommodation so proximate to that of the maternal grandmother. Whilst the Mother would have it that this is where her community supports lie, I accept Dr W’ observations to the effect that it is indicative that the Mother had some way to go in overcoming the enmeshed relationship she has historically had with the maternal grandmother.
82.In his report, Dr W expressed the opinion that the Mother had significant dependent personality traits “and it is possible that she has a Dependent Personality Disorder”. At trial, Dr W gave evidence to the effect that these traits had resulted in a highly dysfunctional relationship between the maternal grandmother and the Mother which resembled that of “…a cult leader and cult follower…”
83.Dr W indicated that the Mother moving out of the maternal grandmother’s house in 2011 was a positive step for the Mother in terms of cutting her ties to the maternal grandmother, but he raised concerns about the fact that the Mother had moved to live close to the home of the maternal grandmother. This, Dr W indicated, demonstrated that the Mother still felt unable to completely cut ties with the maternal grandmother although he considered that it could also reflect the Mother remaining in the locale which was in her comfort zone, being where she had resided for many years.
84.There is an abundance of evidence showing the maternal grandmother’s influence, and her capacity and willingness to exert that influence, which pervaded many aspects of the parties’ relationship and marriage. There are many examples of the Father and the Mother respectively seeking to enlist the support of the maternal grandmother in disputes as between the parties during the relationship in the hope of securing their desired outcome.
85.One clear example surrounds the evidence concerning burning off at the Q Town property in September 2009. The Father, the Mother and B went to the Q Town property on a weekend. Mr J Kaminski was also present. The Father commenced burning off by starting fires near the house to reduce the availability of fuel during bushfires. The Mother asked the Father to stop doing so. He refused. An argument ensued. When the Mother could not gain the Father’s agreement to desisting, she telephoned the maternal grandmother and caused the maternal grandmother to speak to the Father by telephone and in turn, they apparently argued. The point is, the maternal grandmother was not even present but the Mother enlisted her by telephone to seek to have the Father act as she wished.
86.A further clear example is in the events of the parties separation itself on 31 July 2010. Again, when conflict ensued between the Mother and the Father, the support of the maternal grandmother was enlisted by the Mother. As already noted, this went both ways during the parties’ relationship. The Father was likewise prone to enlist the support of the maternal grandmother to his cause from time to time in disputes between he and the Mother.
87.A central aspect of the Father’s case was the level of enmeshment between the maternal grandmother and the Mother and the level of control the maternal grandmother had over the Mother. This control, on the Father’s case, manifested in the maternal grandmother forcing her own, he alleges, irrational and baseless beliefs, upon the Mother regarding the Father and the appropriate way in which to care for the children. That exponentially increased the conflict between the Father and the Mother and subsequently created situations which distressed the children. I accept the Father’s evidence in this respect. The capacity of the maternal grandmother to force her own views and beliefs upon the Mother is important to the topic of alleged sexual abuse.
88.The Father also highlighted the issue of the maternal grandmother inappropriately using her position as general practitioner in medicine to manipulate the parties and to inappropriately prescribe treatments and medication.
89.I find there is abundant evidence to conclude as to the maternal grandmother’s tendency and propensity to abuse her position as a general medical practitioner to ensure her wishes are followed in every respect and to give spurious allegations a gloss of medical authority.
90.This pattern is demonstrated by the Mother’s evidence that, when the Mother enrolled in the O residential care facility in early 2011 to learn techniques to manage the behaviours of the twins (including controlled crying and so forth), techniques with which the maternal grandmother did not agree, the grandmother informed the Mother that she was “psychotic” and, “…dissociating due to psychosis.”
91.I find that the maternal grandmother was prone to use her position as a medical practitioner to diagnose people who disagree with her as mentally ill. Even more concerning is the fact that the maternal grandmother took this alleged diagnosis to the next level and gave the Mother Lexapro to take for what the maternal grandmother had diagnosed as the Mother’s mental health issues.
92.This pattern appears to have repeated itself in the case of the Father. The maternal grandmother gave evidence that she engaged herself as the Father’s professional counsellor for his alleged anger management issues and decided to refer the Father to a psychologist (Dr N) for what she told the Father was anxiety and what she told the psychologist was anger management. The maternal grandmother conceded under cross-examination that the information she gave to the Father about the referral and the information she gave to Dr N as to the reasons for the Father’s referral were different, which I find is highly unprofessional, even putting to one side the fact that the maternal grandmother was treating her son-in-law. The maternal grandmother has also alleged to Dr W and to Dr N that the Father suffers from Bipolar Disorder and in the referral to Dr N, diagnosed the Father with “Addictive Personality Disorder”. The maternal grandmother herself prescribed the Father with Lexapro (an antidepressant) to treat these alleged conditions. Dr N, a clinical psychologist, disagreed strongly with the maternal grandmother’s diagnoses of the Father, as did Dr W in both his report and his oral evidence. Dr N stated in relation to the maternal grandmother’s diagnosis of Addictive Personality Disorder that her only basis for this diagnosis was the Father’s habit of drinking several cans of Diet Coke per day the following:
Secondly, one would not diagnose an Addictive Personality Disorder based on consumption of diet coke. Rather it is not unusual for some individuals within the normal population to drink 5 or more diet cokes and/or other caffeine beverages such as coffee, often to help keep them awake.
93.Dr N specifically raised, in his report dated 31 August 2010 on the Father attached as Annexure “C” to the Father’s affidavit filed 11 October 2010, his concern with the maternal grandmother treating her son-in-law.
94.Dr W specifically had this to say of the maternal grandmother’s “diagnoses” of the Father:
I did not form the view that [Mr McCarthy] [the Father] suffers from any major mental illness or personality disorder. In particular, there seems to be no evidence to support a diagnosis of Bipolar Disorder, Major Depressive Disorder or anything which [Dr Kaminski] has described akin to “Addictive Personality Disorder”. However I did form the view that he has suffered anxiety symptoms which probably met the criteria for an Adjustment Disorder when he first saw [Dr N] in 2006 although I doubt whether the adjustment difficulties that he had after the separation were as substantial. …
95.Dr W gave oral evidence, which I accept, that the maternal grandmother finds problems and dresses them up as a medical diagnosis when she is really just being, “…bossy.” Dr W also gave evidence, which, again, I accept, that the maternal grandmother confuses her role as a grandmother and as a medical practitioner. The maternal grandmother openly accepted under cross-examination that not only had she treated the Mother and the Father, but that she had also treated the three children, including giving B her vaccinations.
96.I note that the “Guideline for self-treatment and treating relatives” published by the Medical Council of New South Wales specifically recommends against medical practitioners treating family members except in emergency situations or where it is a continuation of existing treatment prescribed by an independent practitioner. Dr N made in his report critical observations of the maternal grandmother in this respect.
97.In those circumstances, I find that the maternal grandmother uses her position as a medical practitioner to label those who oppose her wishes as mentally ill, and that this poses a grave risk of harm to the children should they be in her unsupervised care, particularly as they become older and may become oppositional or defiant towards the maternal grandmother.
98.This tendency in the maternal grandmother to always believe that her own opinions are correct also reached a concerning extreme as regards the Mother’s attempts to apply techniques she learned at the O residential care clinic regarding management of the twins’ behaviours.
Allegations of sexual abuse
99.At paragraph 42 of her affidavit filed 1 February 2012, the maternal grandmother deposed:
… I once observed him [a reference to the Father] lying on a bean bag, B lying on his front with his hand half in and half out of B’s nappy. I gave him the benefit of the doubt, explaining to myself that he may not know that nappies are designed to stay dry on the inside. He screamed at me on the 31.7.10 “and you interfere with my private bath time with my daughter!” I wondered why he needed “private” bath times? The children’s bath times were usually very social occasions with lots of splashing, bubble blowing and bath toys when grandma or Uncle Marty was in charge.
100.The evidence establishes that it was in June 2010 that the maternal grandmother allegedly made the observation which she deposed to. The maternal grandmother gave oral evidence that this was the central event forming the basis of her concerns about the Father having sexually abused B. However, under cross examination, the maternal grandmother admitted that at the time, she did not believe that B was at a significant risk of harm or even a risk of harm and believed that it was possible that the Father was simply checking B’s nappy. Specifically, the maternal grandmother gave oral evidence that “…at the time, I didn’t consider that risky touching…” The maternal grandmother gave oral evidence that she only decided retrospectively that this had been inappropriate when the Father yelled at her for interfering with his bathing of B during the dispute which ended the Mother and Father’s relationship on 31 July 2010. The maternal grandmother deposed in her affidavit filed 1 February 2012 that it was the Father’s reference to his bath time with B being “private” that most concerned her. I note that this concern was despite the fact that the Father bathed B in an area of the house in full view of anyone who cared to walk past.
101.In part of her oral evidence, the maternal grandmother said that following the June 2010 event referred to, she decided to be more vigilant. That is, that she was at least suspicious concerning the Father’s behaviour. However, it was established in her oral evidence that she said nothing at all at the time to the Mother. The maternal grandmother also continued working full time and was thus absent from the home for significant periods. There is also clear evidence that apart from periods at home, the Father from time to time took B on outings for coffee or to visit the Bunnings store and would be alone with B during these periods.
102.In my view, the maternal grandmother’s evidence as a whole, and the internal inconsistencies in her evidence on this topic, can only be understood because of the obvious dilemma that, on the one hand, she sought to advance the June 2010 episode as evidence of sexual abuse yet well knows that there is no corroborative evidence in the respects referred to that demonstrate she was concerned at the time about this. That is, the maternal grandmother well knows that it is inexplicable, that if she truly believed that she had observed an episode of sexual abuse in June 2010, that she said nothing at the time to the Mother and did nothing to protect B from further such exposure. I find that it is unlikely there was any such event as the Father denied it and I accept his denial. Even if the maternal grandmother made such an observation I find that she has invented the concept of a gradual realisation or hindsight view in an attempt to explain why she did or said nothing at the time.
103.I find that the maternal grandmother, on or after 31 July 2010, deliberately placed a sinister construct upon the Father’s conduct towards B as part of a concerted effort to portray the Father as posing a risk of sexual abuse to B.
104.I find that the maternal grandmother’s motivation for this was only in part to support the Mother’s case on the parenting issues. At least a significant part, if not the dominant part of the maternal grandmother’s motivation, was her concerted effort to wreak vengeance upon the Father (the “serious repercussions” identified in the 4 August 2010 message earlier referred to) starting with his defiance of the maternal grandmother on 31 July 2010 and his refusal to meet with her as was her demand.
105.The maternal grandmother gave evidence that not only did she not tell any authorities anything in June 2010, but that she did not even tell the Mother about any concerns at any point prior to notifying the authorities on about 5 August 2010 as she felt that this was, “…a confidential issue…” between herself and the Father and wanted to talk with him about it. This, to my mind, defies belief. If the maternal grandmother truly suspected that the Father had been sexually abusing B, then no reasonable person would have waited to notify the authorities, let alone not notifying the Mother immediately.
106.Most telling is that the maternal grandmother gave oral evidence that she wanted to discuss three things with the Father following her forming the belief that he had abused B; first, his state of mind; second, to give him the chance to apologise to her; and third, to see his reaction to her allegations about the nappy-checking incident. The fact that the maternal grandmother listed the issues she wanted to talk with the Father in this order indicates that she really was not concerned about the Father being a risk to B at all, and was instead mostly concerned with the fact that the Father had disobeyed her instructions to take the Mother and the children to the park on the morning of Saturday 31 July 2010 and had failed to apologise to her in respect of events that day.
107.Furthermore, when cross-examined about why these allegations were not included in her report to the Police Service about the incident on 31 July 2010 (as a result of which the maternal grandmother obtained an Apprehended Violence Order against the Father), the maternal grandmother gave oral evidence that the Father, “…had enough on his plate…” without adding sexual abuse claims. I do not accept her attempted explanations.
108.All this was despite her allegations in her affidavit filed 1 February 2012 that the Father, “… ‘sexually initiated’ [B] before the age of two!” and that:
42 (a) [Mr McCarthy] has never admitted that he was in the habit of sexually stimulating [B]. He was observed by [Mr J Kaminski] and [Ms V Kaminski] at different times to be doing so. He was intending to make his daughter ‘a more sexually responsive woman’, his words. …
109.These allegations are despite both Mr J Kaminski and Ms V Kaminski not deposing to seeing the Father, “…sexually stimulating [B],” but rather made allegations that the Father examined or drew attention to B’s genital region in an inappropriate or excessively lengthy way. I accept the Father’s denial under cross-examination of ever having told the maternal grandmother that he wanted B to be, “…a more sexually responsive woman…” Of most concern is that in her affidavit material, the maternal grandmother dresses up her claims in medical language and cites medical research to support her claims, lending them an air of authority when in fact, as Dr W suggested under cross-examination, the maternal grandmother is simply being, “…bossy.”
110.To my mind, evidence which fortifies the conclusion that the maternal grandmother’s allegations of sexual abuse were spurious and were made to punish the Father for his defiance of the maternal grandmother as she perceived it were the following, extraordinary, allegations made by the maternal grandmother to Dr W and recorded in his report of 11 July 2011 as follows:
She [the maternal grandmother] told me [Dr W] that he [the Father] had two cats and that he had a particular way of stroking the dominant cat around the perineal (bottom) area to establish his dominance over the cats in general. She said that he used to lay the cat on its back across his lap in order to do this. She said that he seemed to do the same thing with [B] as well in the form of laying her on her back and stroking in her perineal (groin) area. She indicated that this happened over the top of [B’s] nappy.
111.Dr W assessed the maternal grandmother’s allegations of sexual abuse (including the allegations regarding the Father’s cats) as follows:
In the rarefied and claustrophobic atmosphere of the [Kaminski] home, there seems to have been an intensity of observation which has perhaps led to a whole range of behaviours being overvalued and exaggerated. The material available to me suggests that the allegations of sexual abuse share in this quality as well. Not only was [Mr McCarthy’s] handing of his pets perceive (in retrospect) as excessively sensual, but so was the way in which he applied cream and oil to his daughter at bath time in public areas of the house in full view of anyone who wished to observe. The descriptions by [Dr Kaminski] and her two children [Mr J Kaminski] and [Ms V Kaminski] do not in my view constitute a pattern of such activities which go beyond a normal range of such behaviours. Indeed the inclusion of the cat stroking as misconduct underscores the relative lack of discrimination in these allegations. Similarly the descriptions of [B] displaying herself probably also fall within a normal range, both as normal exploration and also as a self-stimulating and attention grabbing device under the stress of separation from, and later reunion with, her father.
I accept Dr W’ assessment.
112.Given that evidence, in addition to the circumstances I have referred to above, I find that the maternal grandmother’s allegations that the Father had sexually abused B are without evidentiary foundation and were made dishonestly by the maternal grandmother with the intent to punish the Father.
113.This is of concern as it is the allegations by the grandmother which, on the Mother’s oral evidence, instigated the allegations of sexual abuse by the Mother, leading to B being taken to counselling for sexually abused children as well as being prevented from seeing her father in an unsupervised environment. These repercussions were only to B’s detriment if they were not, in fact, protecting her from any real risk of sexual abuse. They exposed the Father to profound ramifications. In addition, these allegations have exacerbated the conflict between the Mother and the Father and resulted in, both the Mother and the Father accept, confrontations between them in front of all three children which have caused the children distress.
114.The Mother admitted under cross-examination that the possibility of the Father sexually abusing B had not occurred to her until the maternal grandmother alleged in a conversation on 5 August 2010 that she had witnessed the Father sexually abusing B. The Mother said that following the maternal grandmother’s revelations, it, “…all made sense.” I infer this to mean that the Mother adopted the maternal grandmother’s views and saw all the Father’s prior actions in the light of those views.
115.Apart from not saying anything to the Mother or any other family member in June 2010, or altering her work hours, the maternal grandmother said nothing to the Father. On her evidence, if on 31 July 2010 the Father had apologised to her as she demanded, the Father would, from her point of view, not have been required to leave the Suburb H home.
116.It beggars belief that if the maternal grandmother even remotely suspected that the Father was guilty of sexually abusing B that she would act as she did or permit the Father’s continued occupation under her (and B’s) roof. That is, if she had “…conned on to his little ‘secret’…” as she colourfully puts it in her affidavit, she does not explain how any of the events referred to can be reconciled.
223.For his part, although there has been little opportunity for him to do otherwise given that he has only spent supervised time with the children essentially since the parties’ separated, the Father has not undermined the relationship between the children and their Mother. In fact, he appears to have attempted to accommodate some of the Mother’s requests by acceding to a supervisor and allowing the Mother to be present at the first few visits between the children and the Father as was agreed in the original consent orders. The Father’s later verbal conflicts with the Mother in the presence of the children are, I find, more an expression of his understandable frustration than an attempt to undermine the Mother’s relationship with the children.
224.In essence, the Father’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the Mother, if the children were primarily residing with him, is untested.
225.In that context his proposed orders give cause for concern. On his proposal not only would the children be removed from living with their primary attachment figure but they would be expected to assimilate that change with no time with the Mother for one month from orders and then for a period of some twelve months having fairly limited, relevant to their experience to date, time with the Mother. That time would not include overnight periods.
226.Those proposals were put forward even in light of the evidence of K, family consultant, already referred to and that of Dr W.
227.In my view the Father’s proposed orders reflect either a profound lack of insight into the needs of the children; or a lack of acceptance of expert views; or an indication that the Father is not sufficiently willing to facilitate and promote the children’s relationship with the Mother commensurate with their best interests that would be particularly significant if the children were placed in his primary care.
228.I can well understand the Father’s resentment, anger and frustration about his post-separation role with the children having been unreasonably limited by, mainly, the allegations of sexual abuse which I have found to be groundless. However, the Father’s proposals give cause for concern in the respects identified relevant to this consideration.
(d) The likely effect of any changes in the child’s circumstances, including the likely affect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living
229.On the proposal of the Mother and the ICL that the orders provide for the children to continue living primarily with the Mother the children will experience a continuation of the Mother’s primary care from the Mother as their primary attachment figure. On the Father’s proposal there would be profound and fundamental change to that.
230.As at trial and for the foreseeable future the Mother had been available and would continue to be available to provide her full time care and attention to the needs of the children.
231.In relation to the likely effect of changes to the children’s circumstances, I note that the children are still quite young and have only known the Mother as their primary carer for their entire lives. I also note that the Father works full-time in his own business, a role which has, the Father accepts, required him to work long hours in the past. Although the Father gave evidence that he would be willing to employ a nanny to assist him with the care of the children as well as employing the assistance of his sister-in-law, Ms M McCarthy, this would cause a massive upheaval in the children’s lives and separate them from their primary attachment figure.
232.Dr W, in his 11 July 2011 report, recommended against even overnight visits by the twins at that stage given their ages and stages and developments, and noted that even overnight visits by B could be distressing for her. Rather, Dr W proposed a gradual increase in the time spent by the twins and B with the Father (without the Mother being present) that would build up to eventual overnight time by the end of 12 months from then. Dr W also recommended that by the time B commenced school, a regime of alternate weekends and one overnight in the off-week would be appropriate and by the end of her first school year (in 2014) half holiday time.
233.Mr K, family consultant, with particular interest in the area described by social scientists as “attachment theory” expressed an opinion to the effect that removal of the children from the Mother’s primary care and into the care of the Father carried the risk of potentially “catastrophic” adverse effects for the children. Whilst Dr W considered that “catastrophic” may be over stating the position he too acknowledged the very serious nature and potential consequences for these young children of being removed from the Mother’s primary care.
234.Whatever be the actual effect of such a change as between “catastrophic” on Mr K’s assessment and something less than that on the assessment of Dr W I find that such a change could only be justified if the overwhelming balance of relevant considerations dictated that result as being in the children’s best interests. Obviously the true effects of such a change could not be known until some time in the future but whatever is the risk for the children of such a change there would need to be satisfaction that such risk is justified in all the circumstances. I am not satisfied that such justification exists.
235.Prior to the trial and during 2011 the Mother had already effected the change in the children’s circumstances referable to the discontinuation of her relationship with the maternal grandmother and the consequent termination of the relationship between the children and the maternal grandmother that previously existed. That termination is supported by the Father and indeed he seeks to ensure that such termination is enduring. I have already noted my reasons for concluding there is substance in that position.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
236.As at trial the parents lived approximately 50 minutes apart in terms of car travel between their respective residences.
237.There is evidence that at one point the Mother contemplated moving to the T Town area. That seems to be the reason why the Father seeks a specific order in relation to the location of the children.
238.I accept that were the Mother to move from, and far away from, the Sydney CBD significant practical difficulties might attend time and communication and the maintenance of the children’s personal relationships with the Father.
239.I therefore propose to accede to the Father’s contention in terms of an order restricting changes to the location of the children’s residence without further agreement or court order.
240.The distance between the parties’ respective residences at trial had caused some concerns with thrice weekly visits previously, reduced to twice weekly. I am satisfied that appropriate parenting orders can accommodate any relevant practical difficulties and expenses.
(f) The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
241.Both parents present as reasonably affluent and as already noted well educated. There would seem to be little doubt that both parents can provide for the children’s physical and intellectual needs and indeed it would seem likely, given their own personal experiences, that the parents would place some emphasis on educational and intellectual issues.
242.In terms of emotional needs Dr W addresses some concerns in relation to the parallels between the Mother’s relationship with the children and that of her experience of the mother-daughter relationship with the maternal grandmother.
243.Whilst the Father sought an order that the Mother attends counselling to address such issues and the nature of her enmeshed relationship with the maternal grandmother I am satisfied that the Mother has set herself on a path of addressing such issues by seeking professional assistance. I am satisfied she has the intelligence to absorb the assessment made by Dr W and with the experience of the trial to address those issues given also that Dr W did not put the Mother in quite the same category as the maternal grandmother in terms of intensity concerning these dynamics.
244.I am satisfied that both parents are devoted to their children and that each of them have the capacity to provide for the needs of their children, including their emotional needs. I am satisfied that each of them, despite the views they may hold of the other parent, can assimilate the damage they will do to their children should they expose the children to any denigration of the other parent.
245.In particular, I consider it more likely than not that as the Mother continues to navigate her way past her previous enmeshed relationship with the maternal grandmother she will have an enhanced capacity to deal with co-parenting of these children without the negative influence of the maternal grandmother. I am satisfied, as already noted, that in the case of the Father he has shown a willingness to address issues when needed such as his attendances upon Dr N and his undertaking of the courses referred to.
246.Fundamentally I am satisfied that parenting orders that see both parents playing a significant role in these children’s lives ensures that all their relevant needs will be met.
247.Whilst I am satisfied that the maternal grandmother has a demonstrated capacity to provide for the children’s physical and intellectual needs my fundamental reservations have already been expressed about her capacity to damage them emotionally, and thus act contrary to their emotional needs, in imposing her views of the parents and of the Father in particular, upon them.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
248.This consideration has largely been dealt with in the preceding discussion and findings.
249.I am satisfied that these children have the advantage of two loving and committed parents and the limitations upon the children’s experience of the parenting provided has been brought about only by the conflict between the parents that existed prior to separation and by reason of the areas of conflict marked out in the post-separation period. I have noted the historical role of the maternal grandmother in that.
250.I am satisfied that with the conclusion of these proceedings it is more likely than not those such limitations will be removed.
(j) any family violence involving the child or a member of the child’s family
251.I have already dealt with the issue of family violence as regards the father. In summary, whilst I am satisfied that there was family violence as defined during the relationship I am equally satisfied that in terms of risk for the future the risk is not present given the removal of the dynamics that previously operated.
252.At least B was also exposed to family violence in witnessing the confrontations between the Mother and the maternal grandmother during 2011. Likewise, the severance of that relationship ought mean that B and the twins are not further exposed to any such risk in that form in future.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
253.Whilst there was discussion at the submissions stage as to whether the Court ought make interim or final orders I am satisfied that it is in the interests of all concerned, most particularly the subject children, for orders in final form to be made albeit with the recognition that given the ages and stages of development of these children there may need to be further consideration of their parenting arrangements in the future.
254.I propose to formulate final orders but I record that there is considerable scope for changes in circumstances, in particular the continuing development of these still very young children and that their parents’ circumstances may change. In particular I note the prospect of the Mother returning to employment as but one potential change. Fundamentally because of the children’s tender years there may well be a material change in circumstances by the time the twins commence school.
255.I consider that it is in the best interests of these children that final orders be made now and that they be in the normal course reviewable by further applications if a material change in circumstances is demonstrated. I do not propose to make orders mandating such a review but neither should it be concluded from anything in these reasons that the bar to review is higher than a material change in circumstances being demonstrated.
S 60CC(4)
256.Again, the considerations expressed in this subsection have largely been dealt with in the preceding discussion and the findings already recorded.
257.The Father, understandably in my view, agitates concerns that as a consequence of the sexual abuse allegations the Mother, without reference to him, decided to involve B in counselling and obviously agitated a case that the Mother maliciously engaged in conduct designed to reduce his participation in the children’s lives and decision-making for them.
258.As I have already noted, I am not prepared to find that the Mother deliberately and maliciously engaged in fabricating allegations against the Father. I have set out my findings already in this respect. In the circumstances confronting the Mother I am satisfied that it was reasonable for her to have sought expert assistance particularly in circumstances where, as the Mother explained herself during cross-examination, the focus for the Mother was upon addressing B’s so-called sexualised behaviours and to develop techniques or methods designed to eliminate or reduce those behaviours in the context of B attending preschool. That is, I find that the Mother reasonably sought expert assistance designed to address actual behaviours of B rather than compounding the effects of sexual abuse allegations in the circumstances.
Balancing of best interests considerations
259.I have not addressed some particular subparagraphs of s 60CC(3) of the Act on the basis that those have no particular relevance to this case further than that which has already been addressed.
260.On balance I am satisfied that overall consideration of the statutory considerations leads to the conclusion that the children’s best interests are best served by continuation of them remaining in the primary care of the Mother but with expanded opportunities for time and communication with the Father.
261.I am satisfied that it is in the children’s best interests that their time and communication with the Father be expanded upon and that is made more possible now than in the circumstances at the time assessed by Mr K and Dr W given the more advanced ages and stages of development of the children given the period that has elapsed since those assessments.
262.The twins, Z and C, will soon turn three years of age. I note that when she was interviewed by Dr W the Mother then contemplated that she may resume some employment once the twins were three years of age. Whether she does or not, it seems to me in the light also of the expert evidence that the twins attaining the age of three is a significant time in terms of assessing the extent of time and communication with the Father they can more readily assimilate. In this context I reiterate the final recommendations of Dr W and note also that in his oral evidence Mr K referred to the age of three at the bottom end of the range he referred to in terms of the children adjusting to more extensive periods away from their primary attachment figure.
Parental Responsibility
263.S 65DAC of the Act sets out the effect of a parenting orders that provides for shared parental responsibility in terms of decision making about major long-term issues.
264.Subsection (3) of that section provides:
The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
265.Notably, the section does not provide any mechanism for resolving any deadlocks. That is, if the parties are unable to come to a joint decision about an issue, being a major long-term issue as defined in the Act, then resort must be had, ultimately, to the Court to resolve the issue.
266.It is abundantly clear in this case that the parents are hostile to each other and are not able to effectively communicate nor discuss or resolve issues. That might change in future but the history does not augur well for that and I consider an order now for equal shared parental responsibility, given the effect of such an order, would currently be unworkable and a triumph of hope over reality.
267.As already noted, Dr W has assessed the personal characteristics of each of the parents (assessments which I accept). This produces a dynamic of the Father’s strong willed and controlling aspects and overbearing nature producing resentment in the Mother taking into account also her possible Dependent Personality Disorder as assessed by Dr W. Add to that mix the extent of conflict and hostility resulting from this litigation.
268.In short, I consider that an order for equal shared parental responsibility would more likely than not produce further conflict between the parents. I consider that in circumstances where the Mother is to remain the primary carer she should have sole parental responsibility for major long-term issues albeit that an obligation is imposed upon her to obtain input from the Father and to consider those inputs before any decision is made. In particular, given the reservations Dr W expressed as to the Mother completing her disentanglement from the maternal grandmother and also my concerns about the maternal grandmother, it should not be left to the Mother to determine when and whether the children again have time and communication with the maternal grandmother.
269.In my view having regard to the best interests of these children an order for equal shared parental responsibility would not be in their best interests.
270.Given that conclusion, and my findings on family violence, the presumption in s 61DA of the Act does not apply and is rebutted.
Determination of parenting orders
271.I regret that it has taken the time it has taken from final submissions for me to complete my reasons and to formulate orders and I record my apology to the parties for that. However, orders made now must reflect the reality that B is now approaching five (5) years of age and the twins, C and Z, will soon turn three (3) years of age. Those respective ages and levels of development are particularly relevant in light of the evidence and recommendations of the experts, Dr W and Mr K, family consultant.
272.Moreover, as already noted, Dr W records in his report that at the time of his interview the Mother had it in mind that the twins turning three years of age might herald a change for her in terms of resuming some employment and for his part Mr K placed some emphasis on the twins reaching three years of age, albeit at the lower end of the age range he spoke of, in terms of their capacity to assimilate changes in their care involving extended periods away from the Mother as their primary attachment figure.
273.I also acknowledge that Mr K noted as at the time of trial that the twins’ attachment to the Father “has developed quite nicely over time and would continue to develop…” and as a matter of common sense and experience it can be inferred that this has occurred in the period that has elapsed since the trial.
274.I have reflected upon the merits of making interim rather than final orders. Likewise, I have reflected upon the merits of orders including an order for a future report to be obtained from Dr W.
275.In the end, including for reasons already outlined, I have resolved that the best interests of the children are met by final orders and by orders which do not impose a potentially self-defeating mechanism of the parties being in a sense “on trial” with the very real prospect of further extensive litigation at the end of the period.
276.Whilst parenting orders can never be “final” in the true sense in that parents may choose to enliven the Court’s jurisdiction to make further parenting orders I have resolved that as far as possible finality is in the best interests of these children. That is not to say that recognising their still very tender years there could not be some legitimate basis for either party to seek different or further parenting orders in the future but to my mind it would far better serve the best interests of these children, if either parent does seek to modify the operative parenting orders, that they first resort to alternate means than litigation in this Court to achieve such an outcome. If litigation is ultimately necessary then obviously if a material change in circumstances can be demonstrated no artificial or unreasonable hurdle will be placed in the way of the Court again exercising its jurisdiction under Part VII.
277.I have carefully considered the detailed proposals in each set of proposed orders submitted by the Father, the Mother and the ICL respectively. I do not propose to exhaustively set out the differences in the details of the orders nor do I consider that detailed explanation of my adoption of one proposal in preference to another is required in each and every minute detail.
278.In summary, I am satisfied that the best interests of the children demand that in circumstances where they will continue to reside with the Mother an extension of time with the Father including overnight time more in line with the ICL’s proposal than that of the Mother is required.
279.Whilst the Mother sought specific orders for the Father’s attendance at nominated courses I have already referred to the feature of his attendance at courses post-separation. Otherwise I am satisfied he is intelligent enough and has the interests of his children sufficiently at heart to seek assistance in future where he identifies the need for that. He has done so historically and I have no reason to doubt that he will not do so in future.
280.Likewise, for the Mother, I accept the submissions on her behalf that she has sought professional assistance and I am satisfied, for similar reasons as expressed with respect to the Father, that she will do so in future.
281.I am satisfied for the reasons already expressed that the Court should exercise its powers to order an injunction, including pursuant to s 68B of the Act, in the relevant respects concerning the maternal grandmother. Whilst the Mother proposed that it should be left to her to determine if and when the children resume communication or time with the maternal grandmother I am not satisfied that this should be left solely to the Mother. In all the circumstances the Father is entitled to have an equal say with the Mother concerning the maternal grandmother given also in particular my concern about her capacity to focus her attention on the Father in any future interactions with the children.
282.I am satisfied that it is legitimate for the Court to exercise its power pursuant to s 121(9)(g) of the Act to authorise the Father publishing these Orders and reasons to the relevant Department but I do not extend that order in respect of the Health Commission as sought by the Father as I am not satisfied as to a proper basis for that.
283.I therefore make Orders as set out at the commencement of these reasons.
Costs
284.The interests of the children in these proceedings were capably represented by the ICL and by the ICL’s Counsel, Ms Lawson.
285.The ICL sought an order that the Intervener pay the costs incurred of the Legal Aid Commission of NSW in respect of the ICL’s costs of these proceedings. The amount identified in the ICL’s proposed orders was $16,433 but it was confirmed in final oral submissions that the proper figure is $12,746.70 as per a scheduled break up of the ICL’s costs.
286.The essential contention of the ICL is that the need for the appointment of the ICL arose only because of the allegations of sexual abuse and that costs ought be paid by the maternal grandmother on the basis of her pivotal role in the making of those allegations.
287.I am satisfied that it was the making of allegations of sexual abuse that necessitated the appointment of an ICL. I have found the allegations to be groundless. I have made findings as to the maternal grandmother’s pivotal role in the making of the allegations, their legitimacy; and the legitimacy of the maternal grandmother’s pivotal role as described. The maternal grandmother maintained the allegations to the bitter end despite the Mother herself resiling from them and despite having the benefit of the exposition of the allegations throughout the trial as well as the expert assessments in relation to those allegations.
288.In the circumstances I am satisfied that there are justifying circumstances within the meaning of s 117(2) of the Act and thus circumstances justifying the making of an order for costs.
289.With respect to the considerations in s 117(2A) the NSW Legal Aid Commission is publicly funded and it is notorious that the resources available for the funding of an ICL are finite and scarce. The maternal grandmother has a practice as a general medical practitioner and whilst the evidence did not descend into details of her financial circumstances there is ample evidence of financial capacity on her part. She owns with the maternal grandfather the Suburb H property and she has had sufficient financial resources to provide considerable financial assistance to her children, including the Mother, from time to time. She was able to provide considerable financial assistance to the parties throughout their relationship and marriage. There is evidence that she was contemplating providing further financial assistance to the Mother in terms of the rural property owned by the Mother in funding improvements to that property prior to their estrangement.
290.Since the Mother’s departure from her home in mid 2011 the maternal grandmother has been relieved of any financial burden with respect to support of the Mother or the children. There is also evidence as to the holiday home presumably owned by the maternal grandparents.
291.I am satisfied that the maternal grandmother has sufficient financial resources to meet a costs order in an amount as sought by the ICL.
292.The maternal grandmother is not in receipt of assistance by way of legal aid and chose to represent herself in the proceedings. Obviously, the ICL is funded by the Legal Aid Commission.
293.The maternal grandmother has been wholly unsuccessful in the proceedings in the sense of making out the case maintained throughout that a finding ought be made that the Father posed an unacceptable risk of sexual abuse to B.
294.I consider that the fundamental relevant matter is the gravity of the allegations advanced and persisted in by the maternal grandmother to the conclusion of these proceedings and the consequent necessity for the involvement of the ICL.
295.In my opinion the maternal grandmother ought be responsible for the costs of the ICL. I am satisfied that such responsibility extends to costs on an indemnity basis conscious as I am of the considerations informing the discretion as to whether or not costs should be ordered on a party and party basis as opposed to an indemnity basis.[2]
[2] Munday & Bowman (1997) FLC 92-784; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1998) 81 ALR 397; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187 (3 May 1991).
296.Whilst it would achieve finalisation to fix the costs in the sum sought ultimately on behalf of the ICL, which appear to me to be reasonable, conscious that the maternal grandmother is self-represented she ought have the opportunity to consider the quantum of the costs and to seek an assessment of costs if she is dissatisfied with the amount claimed.
297.I therefore order that within ninety (90) days the maternal grandmother pay to the Legal Aid Commission of NSW the costs of the ICL in an amount agreed or, failing agreement, to be assessed on the indemnity basis.
I certify that the preceding two-hundred and ninety-seven (297) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 April 2013.
Associate:
Date: 5 April 2013
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