Meinhardt and Santos
[2011] FamCA 370
•24 May 2011
FAMILY COURT OF AUSTRALIA
| MEINHARDT & SANTOS | [2011] FamCA 370 |
| FAMILY LAW – CHILDREN – interim orders – with whom a child spends time – where the father seeks the reinstatement of previous orders providing that he spend unsupervised time with the child – where the mother makes allegations of sexual abuse against the father – where the father alleges that the mother has psychologically and emotionally abused the child – where the matter has a long history – best interests – application dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA & 60K |
| Dieter & Dieter [2011] FamCAFC 82 Goode & Goode (2006) FLC 93-286 KN and Child Representative v NN and JN (2006) 35 Fam LR 518 M & M (1988) 166 CLR 69 Reece & Reece [2011] FamCAFC 24 |
| APPLICANT: | Mr Meinhardt |
| RESPONDENT: | Ms Santos |
| INDEPENDENT CHILDREN’S LAWYER: | Bowen Lawyers |
| FILE NUMBER: | DNC | 165 | of | 2007 |
| DATE DELIVERED: | 24 May 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 27 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Smith |
| SOLICITOR FOR THE APPLICANT: | Cecil Black Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Norrington |
| SOLICITOR FOR THE RESPONDENT: | DS Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bowen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bowen Lawyers |
Orders
The interim application by the father for re-instatement of suspended orders being the two paragraphs numbered 5 and paragraph 7 of the Order of 21 March 2007 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Meinhardt & Santos 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 ADELAIDE |
FILE NUMBER: DNC 165 of 2007
| Mr Meinhardt |
Applicant
And
| Ms Santos |
Respondent
REASONS FOR JUDGMENT
Introduction
The father seeks interim orders pending the final hearing of the parties’ applications for parenting orders in relation to the child Y born in August 2004 (“the child”).
By way of amended interim orders sought, the father Mr Meinhardt seeks orders re-instating the paragraphs of the Order of 21 March 2007 which deal with the time the father should spend with the child.
Those orders were suspended on 1 October 2010. The original orders of 21 March 2007 provided that the child was to spend time with the father each alternate week from 6.00 pm on Friday until 6.00 pm on the following Wednesday, half the school holidays and on special occasions.
Hearing
At the hearing of the interim applications on 27 April 2011 the father was represented by Mr Smith, the mother by Mr Norrington and the Independent Children’s Lawyer Ms Bowen.
The parties relied on the affidavit material on the Court file, together with counsel’s submissions.
Mr Smith, Counsel for the father, appeared in the Adelaide Registry. Mr Norrington and Ms Bowen appeared by video-link from the Darwin Court.
Due to the length and complexity of the submissions, particularly those from the applicant father, judgment was reserved.
Issues
The mother maintains that the child has made serious disclosures concerning allegations of sexual abuse. The mother is concerned that such sexual abuse was carried out by the father. On that basis the mother therefore opposes the father spending time with the child other than supervised time.
The father denies any and all allegations of abuse of the child. The father maintains that the mother has taken steps to poison the relationship between the father and the child.
The father seeks that the Court determine at this interim stage that there is no unacceptable risk if the child spends time with the father. On behalf of the father it is maintained that there is no unacceptable risk, that there is a loving and healthy relationship between the father and child and that pending the final hearing the previous orders should be reinstated.
Background
The Court has the assistance of the detailed Reasons for Judgment given by Federal Magistrate Terry on 2 September 2010. Paragraphs 19 to 21 of that judgment states:
19.The mother and father commenced cohabitation in early 2003 when the mother was 19 and the father 23. They married [in] 2003 and [the child], their only child, was born on […] August 2004.
20.Prior to separation the mother was [the child]’s primary carer. The father was employed full time outside the home and supported the family financially.
21.The parties separated on 6 December 2004 when the mother took [the child] and went to live with one of her sisters.
The father commenced proceedings on 12 January 2005 proposing week about shared parenting arrangement on the basis that his mother would help him care for the child whilst he was at work. The mother opposed that order and sought orders which provided that the child live with her and spend supervised time with the father.
In those proceedings a Family Report was prepared by Ms K after interviewing both of the parties. She also prepared an updated report for what was expected to be the final hearing in those proceedings.
On 4 May 2006, Consent Orders were made which provided for the mother and father to have equal shared parental responsibility for the child, that the child live with the mother and spend time with the father from 6.00 pm Friday to 6.00 pm Sunday each alternate weekend and overnight one night each week, alternating between overnight Thursday to Friday in one week and overnight Tuesday to Wednesday in the other week. Orders were also made for the child to spend half the school holidays with the father once he commenced preschool.
On 21 March 2007 a further Consent Order was made providing for the child to spend time with the father from 6.00 pm Friday until 6.00 pm Wednesday each alternate week and for one half of each school holiday period once he commenced preschool.
In October 2009 the father commenced further proceedings seeking orders discharging the previous parenting orders, that the parents have equal shared parental responsibility and that the child live in a week about shared care arrangement.
The mother sought that the existing parenting orders continue. She also sought specific orders in relation to the child’s schooling and that she be permitted to take the child to South East Asia for a holiday on two occasions of up to two weeks each year. (The mother wished to be able to visit her family in South East Asia).
In her detailed reasons delivered on 2 September 2010, Federal Magistrate Terry ordered that the issues in relation to the child’s passport and travel to South East Asia for holidays be adjourned for further consideration. Otherwise she dismissed all outstanding parenting applications leaving the Consent Orders of 2007 in place.
By Application in a Case filed on 30 September 2010 the mother applied for an urgent hearing. She sought orders suspending the Consent Orders of 21 March 2007 so far as they related to the father spending time with the child (Orders 7, and both Orders numbered 5). She also sought an order that the father be restrained from approaching or contacting the child. Her affidavit in support of that application and the Notice of Child Abuse or Family Violence filed at the same time alleged that the father had inappropriately touched the child on his penis, placed his mouth on the child’s penis and placed his penis in the child’s mouth.
The affidavit of the mother filed on 30 September 2010 sets out the conversations the mother had with the child and steps taken by the mother. It deals with interviews of the child by the police and the Child Psychologist, Ms D.
On 1 October 2010, Federal Magistrate Turner made interim Consent Orders which suspended Orders 7 and the two Orders numbered “5” in the Order of 2007. The order also provided for the child to be separately represented by an Independent Children’s Lawyer, made certain ancillary orders and adjourned the matter to 12 October 2010. On 12 October 2010 a further interim Consent Order was made by Federal Magistrate Turner which provided for the father to spend supervised time with the child for a period of two hours, twice a week, at B Contact Centre, at times available to B Contact Centre and that Ms K be appointed to prepare a report addressing specific issues concerning the sexual abuse allegations.
Federal Magistrate Turner heard further interim proceedings.
On the 18 January 2011, Federal Magistrate Turner transferred the proceedings to the Family Court of Australia.
The father has filed a Further Amended Initiating Application and affidavits, including an affidavit of his mother.
In the Further Amended Initiating Application filed by the father on 28 February 2011 he seeks, inter alia, sole parental responsibility for the child, that the child live with him and that the mother spend time with the child every second weekend from 3.00 pm on Friday after school until 8.00 am the following Monday. He also sought orders for the mother to have school holiday time with the child and other ancillary orders and injunctions.
On 2 February 2011 the father filed a Notice of Child Abuse or Family Violence in which he stated:
It is alleged that the respondent mother, [Ms Santos], engaged in child abuse by coaching the child [Y] born […] August 2004 into making false allegations about the father.
Following the appointment of the Independent Children’s Lawyer, orders were made by His Honour Justice Burr on 7 February 2011 in relation to material produced pursuant to the subpoenas issued to the Northern Territory Police and the Department of Family and Children’s Services (“NTFC”). Thereafter the Independent Children’s Lawyer has filed an affidavit on 17 March 2011 to which is annexed a large number of documents from the Northern Territory Police including notes made of interviews with the mother and the child and the NTFC documents, including the Child Protection Investigation Summary Report for the period 8 February 2005 to 28 October 2010 and the report from Ms D dated 29 September 2010.
The Independent Children’s Lawyer has also filed an affidavit on 27 April 2011 referring to the investigations and reports carried out thus far. The annexures to that affidavit include the progress notes from NTFC and the Department of Children and Families’ history of notifications and reports together with the psychologist, Ms D letter/report dated 29 September 2010 and “Anecdotal Notes” of the School Principal in relation to November 2010.
The current allegations and the high level of dispute between the parties needs to be seen in the context of the history of litigation and earlier allegations made in proceedings prior to the final Consent Orders in 2007 and 2010.
The mother’s affidavit filed on 30 September 2010 and 28 February 2011 set out the particulars of the conversations the mother has had with the child and the investigations which have been carried out by the police and the interviews with the Psychologist, Ms D. They also include the reports received from NTFC and particulars of events subsequent to the allegations of September 2010, including the interviews with Ms K and matters raised in relation to the child’s behaviour at school.
In her second affidavit the mother responds to the allegations raised by the father in his affidavit.
The affidavits of the father, and in particular the affidavit entitled “Amended Affidavit” filed on 28 February 2011 sets out the father’s response to the allegations together with the history of the recent investigations. The father annexes to his amended affidavit the Psychology Report of Ms K dated 6 September 2010, a letter from NTFC Child Protection Services Advanced Practitioner dated 29 October 2010, the letter of 17 January 2011 addressed to “The Presiding Magistrate, Federal Magistrates Court” from Child Protection Services Team Leader, correspondence from the solicitors in the matter, transcript of the hearing before Federal Magistrate Turner of 9 December 2010 and notes apparently relating to a proposal for graduated introduction of the father spending time with the child.
On 19 April 2011 the father filed an affidavit to which was annexed the transcript and audio CD of the conversation which the mother recorded between herself and the child. The Transcript indicates that there is considerable difficulty in completing the transcription task, with references being made frequently to inaudible words, or partially inaudible words and the extremely “poor audibility” of the tape.
The affidavits filed by the mother, father and Independent Children’s Lawyer raise significant issues concerning the welfare of the child. The evidence presented by all of the parties has not been tested. There is very little agreement between the parties about the significant allegations made by the father and mother which relate directly to the need to protect the child from abuse.
Summary of allegations made by each of the parties
The mother alleges that on the evening of 9 September 2010 she had a conversation with the child.
Paragraph 8 of the mother’s affidavits filed on 30 September 2010 is as follows:
8.For the next thirty minutes or so I spoke to [the child] about what his Nanna and Pappa had been doing with him. During this conversation [the child] made the following disclosures:
a) [The father] smacks him on the bum;
b) The paternal grandmother smacks and hurts him;
c) [The father] touches his ‘liliu’ (penis) in the shower;d)[The father] had [the child] put his mouth on his penis. [The father] then put his mouth on [the child]’s penis;
e)The paternal grandmother watches [the father] play with [the child] in bed.
After consulting her solicitor, the mother took the child for interviews with the police.
On 24 September 2010 the mother took the child to the office of Ms D, Psychologist. Ms D’s letter of 29 September 2010 includes:
On the 23 September 2010 I conducted an interview with [the child] during which time he disclosed to me that his father had been touching his ‘willy’ with his hands and his mouth. He stated that this touching occurred at his father’s home and took place in [the child]’s room. His father reportedly pulls his pants down and puts his mouth over [the child]’s ‘willy’ and also touches his ‘willy’ with hands. He informed that he hits his father on the head when this is happening and tells him to stop. He stated that the touching occurs when he and his father are playing a fighting game and that his father uses his ‘sharp teeth and claws to touch his willy’. [The child] was able to demonstrate how this touching occurred using male puppets.
I asked [the child] who he had told about the touching and he informed me that he had reported this to his mother. I asked him whether he had told anyone else and he informed me that he had not. I was aware that he had been interviewed by the Northern Territory Police and had not made any disclosures. I requested that [the child] inform the Police Officers who had interviewed him about the information he had shared with me and he agreed to do this.
I contacted Sergeant A, one of the officers who had interviewed [the child] and informed him of the disclosures that [the child] had made during our interview.
[the child]’s disclosures were made spontaneously and showed no evidence of fabrication. He was able to demonstrate an understanding of truth and lies and informed that he was telling the truth about his father touching him. His demonstration of the touching using puppets supported the verbal account of how the touching occurred.
In my opinion, there are unacceptable risks to this child if he is left in the unsupervised care of his father until this matter is thoroughly investigated.
(Emphasis added)In the further affidavit filed by the mother on 28 February 2011 the mother sets out the history of further interviews by the police of the child and the conversations the mother had with the police. The police records indicate that the child did not make any disclosure indicating sexual abuse, but that the police were concerned about the emotional health of the child.
That affidavit of the mother also sets out the information given to the mother by the child’s school about the child behaving in a sexual way towards another child at school. She also responds to the father’s allegations about her history, family and allegations that she had inappropriately influenced or trained the child to say negative things about his father.
Annexed to that affidavit filed on 28 February 2011 is a letter dated 29 October 2010 which says:
This letter is to advise that NT Families and Children, Child Protection Services have completed the child protection investigation regarding current concern for [the child].
NTFC have substantiated emotional maltreatment perpetrated against [the child] in accordance with the Care and Protection of Children Act 2007; S15(1)(a) ‘that harm to a child is any significant detrimental effect caused by any act, omission or circumstances on the physical, psychological or emotional wellbeing of the child, S15(1)(b) the physical, psychological or emotional development of the child and S15(2)(a) harm can be caused by the following: physical, psychological or emotional abuse or neglect of the child’.
At the time of writing, NTFC have substantiated emotional maltreatment of [the child] by the mother [Ms Santos] and the father [The father], due to the child being exposed to on-going intra-familial conflict between yourself and [the mother].
Subsequently, the current child protection investigation involving [the child] will remain open with NTFC […] to enable NTFC to continue monitor [the child]’s emotional wellbeing. NTFC recommend that the following occur to satisfy NTFC:
1. That the child [Y] receives psychological support through a psychologist chosen by the parents;
2. That the psychological support for the child commence no later than end of November 2010;
3. That the parents commence individual counselling and support to address personal issues to commence no later than end of November 2010;
4. That the parents commence mediation with an appropriate mediation provider to address communication issues between each other no later than the end of November 2010.
(Emphasis added)
Annexure “C” to that affidavit of the mother is the Psychological Report of Ms K dated 6 December 2010. The report followed three interviews with the child in November 2010 at a time when the child was living with the mother and spending supervised time at B Contact Centre with the father. At the beginning of the report the Psychologist refers to information received from the child’s school concerning difficulties the child had in relation to language and earlier diagnosis of developmental delay. This included:
His concepts and ability to follow directions was measured at a severe level of difficulty and his ability to recall sentences was measured at a moderate level of difficulty.
The Psychologist indicated that:
Had this information been known earlier the interviews (with [the child]) would have been conducted slightly differently. Hence the validity of the information gained could be questionable.
Significantly in the report the Psychologist says at page 2:
Due to the complexity of this matter it is recommended that NT Families and Children take carriage of the investigation and determine whether the abuse allegations are substantiated or not.
At the first interview between the Psychologist and the child the following is reported:
…When asked why his Dad was naughty he disclosed that his father ‘kisses me in my bum (pointing to his anus).’ ‘He kisses me in the wee-wee. We call it the balls.’ ([the child] informed that he has three names for his penis. Penis, wee-wee and balls). ‘He kisses me in the boobies’. While relating this information [the child] was laughing. He also added that his father ‘kisses my Nana in the balls.’ [the child] said he felt upset when his Dad does these things. ‘I say stop it but he keeps doing it. My Dad does it all the time and does not stop. He does it a million times.’ [the child] then picked up two dolls and demonstrated this, making one doll kiss the other ([the child] made kissing noises) on the place where the penis would be and on the bum. …
During the second interview it was reported that the child also made comments about his “father pees in his face”.
The last interview included allegations that the child said:
“…his father punches his penis, Nana squeezes his balls and Poppy punches his penis. He said that no-one kisses his penis, no-one sucks his penis and he does not suck anyone’s penis either. This last interview followed an interview he had with the Principal following the alleged sexual abuse and so he may have been defensive about these behaviours.” (See bottom of page 3 of report).
Subsequently the Psychologist discusses the reason why the child would make such disclosures. These were seen in the context that “it is not the report writer’s role to substantiate these allegations”. After discussing the matters raised by the child during the interviews, Ms K concluded:
Thus it seems that [the child] has been told information that may influence his opinion of and relationship with his father in a negative fashion. It is apparent that [the father] is being demonised and the report writer recollects that this tendency was evident during the assessments for the initial Family Report of 16 January 2006. This could lead to alienation if it is not curtailed.
The father was not aware that the mother had made arrangements for the child to be interviewed by Ms D on 23 September 2010. The father maintained that “this was part of [the mother’s] attempt to fabricate a story about me abusing [the child]” (see paragraph 13(a) in the affidavit of the father filed on 28 February 2011).
The father also relies upon the police concluding after interviews of the child that the child “has been told by his mother to say certain things to police about his father” (see paragraph 13(c) of the father’s affidavit file on 28 February 2011).
The father also relies upon the conclusions of Ms K.
Annexed to the father’s Amended Affidavit filed on 28 February 2010 is the NTFC letter to the Federal Magistrates Court of 17 January 2011. Included in that letter is a reference to the investigation carried out by the Child Protection Worker interviewing the child. On page 2 of that report it says:
During the interview with the DCF work (sic) [the child] made a statement to the effect that ‘his father sucks his willy and smacks his bottom at the same time’. This information was given to NT Police. This is standard process when information is provided to DCF, where any potential harm to a child may involve a criminal element.
The outcome of this investigation was that emotional maltreatment was substantiated due to intra-familial conflict between the parents.
Following a further notification in relation to sexualised behaviour by the child, (being a notification made on 18 November 2010) the Department relied upon the assessment of Ms K:
The outcome of DCF’s investigation is that the allegations of sexual abuse could not be substantiated due to concerns regarding the veracity of the allegations. This case is now closed.
The report then refers to an additional Child Protection Notification made on 29 December 2010. At the top of page 3 the following appears:
Pursuant to Section 20 of the Care and Protection of Children Act 2007 (NT) the notification will be recorded as an intake event and no further action is warranted by NTFC”
DCF has been liaising with NT Police in relation to the new information. It is understood by DCF at the present time that NT Police have not reached a decision at this stage regarding any further NT Police involvement or investigation.
DCF will continue to liaise with NT Police regarding any actions from that Department.
The report concludes that it is the Department’s:
…intention to continue to work with the family to address child protection concerns of emotional harm due to the parent’s (sic) conflictual relationship impacting upon [the child].
The documents produced give inconsistent information about the status of the investigations. It appears that neither NTFC nor the police are carrying out any further investigation.
The father also relies upon what he alleges to be the mother’s inconsistent offers to allow him to spend more time unsupervised with the child. The mother objects to the evidence being received on the basis of privileged without prejudice negotiations. Counsel for the mother insisted that the mother’s claim to privilege in relation to these negotiations had not been waived by her simply because the Independent Children’s Lawyer referred to the negotiations and the terms of the proposals of the parties in open Court before Federal Magistrate Turner.
The Independent Children’s Lawyer has filed an affidavit annexed to which is a large amount of material from the Northern Territory Police records and NTFC records.
The affidavit of the Independent Children’s Lawyer filed on 27 April 2011 refers to the evidence from the police and the Department of Children and Families records.
Paragraphs, 10, 11 and 12 of that affidavit are as follows:
10.Ms [K] was engaged to assess whether the child had been subjected to sexual abuse or any other abuse, and to assess ongoing risks of sexual or other abuse to the child by resumption of the parenting orders of 21 March 2007. On page 4 of her report dated 6.12.2010, contained in the father’s amended affidavit as Annexure ‘C’, Ms [K] states that the assessment of any ongoing risk of sexual abuse and resumption of the orders of March 2007 is being investigated by Ms [G] of NT Families and Children. The DCF relied on the Police investigation, which concluded that allegations could not be substantiated, and withdrew from their own process of investigations regarding sexual abuse.
11.Since the commencement of supervised time the child has been spending with the father, the child engaged in sexualised behaviour towards another child, as outlined in the material produced from the child’s school. Annexed hereto and marked with a letter ‘E’ is a true copy of that material.
12.The court cannot, from the materials available to the court, conclude as to whether the child had or had not been exposed to, or may continue to be exposed to sexual abuse or a risk of sexual abuse, until such time, as the evidence is tested at the hearing of this matter, to satisfy the requirements outlined in Part VII of the Act.
The notes from the Contact Centre describe positive interaction between the father and the child. (See Exhibit 4).
The Law
The provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) include the following most relevant to these proceedings.
Section 60B
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out matters which the Court must consider when determining what is in the child’s best interest. The primary considerations are:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Section 60CC(3) provides:
Section 60CC(3)
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect 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;
(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;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
Section 61DA provides:
Section 61DA
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child ) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA (1) to (5) provides;
Section 65DAA
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and (sic)
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1:Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Section 60K provides:
Section 60K
Court to take prompt action in relation to allegations of child abuse or family violence
(1)This section applies if:
(a)an application is made to a court for a Part VII order in relation to a child; and
b)a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and
(c)the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings; and
(d)the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.
(2)The court must:
(a)consider what interim or procedural orders (if any) should be made:
(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b)make such orders of that kind as the court considers appropriate; and
(c)deal with the issues raised by the allegation as expeditiously as possible.
(2A)The court must take the action required by paragraphs (2)(a) and (b):
(a)as soon as practicable after the document is filed; and
(b)if it is appropriate having regard to the circumstances of the case--within 8 weeks after the document is filed.
(3)Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.
(4)Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
(5)A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.
Section 4 of the Act defines abuse as follows:
“… in relation to a child, means:
(a)an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)a person involving the child in a sexual activity with that person or any other person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”
The task to be undertaken by the Court in interim proceedings was discussed in Goode & Goode (2006) FLC 93-286. (See in particular paragraph 82).
In the High Court of Australia decision of M & M (1988) 166 CLR 69 at paragraphs 20 to 25 the High Court discussed the considerations relevant to determining what was in the child’s best interest making reference to the concept of unacceptable risk.
Part of paragraph 25 is:
…In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Counsel for the father referred to the Full Court decision of KN and Child Representative v NN and JN(2006) 35 Fam LR 518 in which reference is made to other decisions including quotations: “risk must have a foundation in the evidence incompatible with the welfare of the child” and to the risk going beyond “mere conjecture” based upon actual evidence “which at least gives rise to the conclusion that behaviour may occur which could have deleterious effects on the child”.
The principles enunciated in Goode & Goode (Supra) were recently discussed in Reece & Reece [2011] FamCAFC 24. Paragraphs 74 and 75 state:
74.As outlined above, the Full Court in Goode and Goode (at paragraph 82) provided a ‘framework’ as to how interim applications for parenting orders are to be determined. This included:
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(Emphasis added by the Appeal Court).
75.In Marvel v Marvel (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), at 375, discussed the difficulties associated with making findings on contested evidence, with reference to the decision of SS & AH[2010] FamCAFC 13 as follows:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121. The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions (see Goode at paragraph 82(d)).
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
‘In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence’.
In the more recent decision of the Full Court (Finn, Thackray and Strickland JJ) in Dieter & Dieter [2011] FamCAFC 82 the Full Court heard an appeal against interim orders made by an Acting Magistrate of the Magistrates Court of Western Australia. The Full Court referred to the difficulties in dealing with matters where the evidence is untested and said at paragraph 77:
“77.Faced with these inconsistencies, there is no doubt his Honour needed to deal with the untested evidence very carefully. However, in our view, it was not open to him just to ignore it, merely because it had not been tested. In our view, the untested evidence should have been considered in light of the uncontested evidence – and the uncontested evidence should itself have been given more weight than it appears to have been given.”
(Emphasis added).
Discussions and Findings
The provisions of s61DA refer to the presumption that equal shared parental responsibility is in the best interests of the child. Sub-section (3) refers to interim matters in which the Court does not consider it would be appropriate to apply the presumption.
In this interim matter it is not appropriate to apply that presumption. This is not only because it is an interim matter, but also because of the untested allegations of sexual abuse, the allegation that the mother has emotionally and psychologically abused the child and the ongoing high level of conflict between the parents.
The provision s of s65DAA apply only to the extent that the order which is already in existence provides for the parents to have equal shared parental responsibility.
It is not in the best interests of the child in these interim proceedings to merely assume that the child should spend substantial and significant time with each of the child’s parents.
The agreed and uncontested facts that are significant in this matter are that:
(1)there has been significant litigation between the parents for most of the child’s life;
(2)there have been serious allegations raised in the past, but nonetheless Consent Orders have been made providing for the child to live with his mother and spend unsupervised alternate weekends and half the school holidays with the father;
(3)the father has consented to orders then later brought proceedings again seeking orders for a shared care arrangement;
(4)the mother wished to obtain permission to travel on holidays to East Timor which has been resisted by the father;
The significant contested matters are:
(a)Whether the child has made statements to the mother and others (Ms D) concerning sexual abuse by the father and members of his family in circumstances which will establish that sexual abuse has taken place or that there is an unacceptable risk of abuse, or
(b)whether the mother has inadvertently, or deliberately, coached or manipulated the child into making the allegations of sexual abuse.
The primary considerations set out in s60CC (2) emphasise the benefit to the child of having a meaningful relationship with each of the parents and the need to protect the child from abuse or harm.
The father strongly denies any and all allegations of abuse and emphasises the benefit to the child of maintaining a meaningful relationship between father and son.
The mother’s case is based upon the need to protect the child from possible harm during any time spent with the father that is not properly supervised. The mother bases her concern upon the conversations she has alleged she has had with the child, the report of Ms D and the concerns about the child’s more recent behaviour at school since supervised time with the father commenced.
The contested evidence therefore puts both primary considerations in conflict with each other.
Counsel for the father highlights some inconsistencies in the evidence relied upon by the mother. He places the uncontested evidence in a context which would support the father’s claim that the mother has been coaching or manipulating the child into making the allegations. However, these conclusions which are drawn by the father’s counsel are matters which have not been tested. The inferences remain highly contested.
The child’s young age, his possible developmental difficulties and the effect of separation from his mother are important matters. Until the significant issues are determined there remains a possibility that there will be an unacceptable risk of abuse to the child if there is unsupervised time with the father. In these circumstances that possibility outweighs the risk of alienation of the child from the father.
An expedited trial will reduce this risk.
The Court has offered to list the matter for final determination in Darwin Sittings in July 2011. There is therefore a short period before the trial during which the father’s time with the child will continue to be supervised at the B Contact Centre. Whilst this may not be the best way of maintaining the meaningful relationship between father and son, it is an arrangement which would protect the child from any possible unacceptable risk of abuse pending the necessary determination of the contested facts in this matter.
As emphasised in the Act and all decided cases, the paramount consideration is the best interests of the child.
Considering the contested evidence and the uncontested evidence and applying the provisions of s60CC, it is in the best interest of the child that pending the trial in this matter the two paragraphs numbered 5 and paragraph 7 of the Order of 21 March 2007 remain suspended and that the father continue to spend time with the child supervised at the B Contact Centre in accordance with the existing interim orders.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 24 May 2011.
Associate:
Date: 24 May 2011
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