Mephiste and Mephiste

FAMILY COURT OF AUSTRALIA

MEPHISTE & MEPHISTE

[2008] FamCA 444

FAMILY LAW – CHILDREN – With whom a child spends time – Allegations of physical abuse by father dismissed – Possibility of psychological abuse by mother

APPLICANT:

Mr Mephiste

RESPONDENT:

Ms Mephiste

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

PAF

1468

2006

DATE DELIVERED:

23 April 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

STEVENSON J

HEARING DATE:

3 & 4 December 2007
27 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Reynolds

SOLICITOR FOR THE APPLICANT:

McDonnell Schroder

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Georgiadis & Baker

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Clifford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fellowes

Orders

I make the following orders:

That all existing parenting orders in relation to the children
D born … July 1997 and
N born … November 2000
(‘the children’) be discharged.
That the parties have equal shared parental responsibility for the children.
That the children live with the mother at all times other than the periods specified in order 4, during which they will live with the father.
That the children live with the father:
From 25 April 2008:
4.1Each alternate weekend from 3:00pm or the conclusion of school on Friday until 6:00pm on Sunday, with the first such weekend to be 25-27 April 2008.
4.2From 3:00pm or the conclusion of school each Tuesday until 9:00am or the commencement of school on Wednesday.
From 6 June 2008:
4.3Each alternate weekend from 3:00pm or the conclusion of school on Friday until 9:00am or the commencement of school on Monday, with the first such weekend to be 6-9 June 2008.
4.4From 3:00pm or the conclusion of school each Tuesday until 9:00am or the commencement of school on Wednesday.
From 18 July 2008:
4.5From 3:00pm or the conclusion of school on Friday until 9:00am or the commencement of school on Wednesday in each alternate week, with the first such period to be 18-23 July 2008.
That the children spend the period from 9:00am on Christmas Eve until 12:00noon on Christmas Day with the father in 2008 and each alternate year thereafter and with the mother in 2009 and each alternate year thereafter.
6.1 That the father deliver the children to the mother at 9:00am on Mothers Day and collect them at 6:00pm on that day, after 2008, in the event that they are in his care pursuant to these orders.
6.2That the mother deliver the children to the father at 9:00am on Fathers Day and collect them at 6:00pm on that day, in the event that they are in her care pursuant to these orders.
That the children spend a period of 3 hours on each of their (the children’s) birthdays with the parent who is not caring for them pursuant to these orders, between 4:00pm and 7:00pm in default of agreement.
8.1 That the operation of orders 3 and 4 be suspended during school holidays from 1 January 2009.
8.2That the children spend a continuous period of 14 days with the father, commencing on 10 January 2009.
8.3That, subject to orders 5,6 and 7, the children spend one half of all school holidays with the father commencing from the Term 1 2009 holidays, being the first half thereof in default of agreement.
9.1 that each party do all things necessary to ensure that the child D continues to attend upon Dr G for such therapy as she deems appropriate and for such periods as she considers will be of benefit to the child.
9.2That each of the parties pay promptly one half of all the professional fees of Dr G.
That each of the parties enrol in and complete a Parenting After Separation course as nominated by the Independent Children’s Lawyer.
That each of the parties forthwith execute all necessary authorities to enable the other parent to consult with and obtain any information from:
1.Staff of the schools attended by the children from time to time.
2.Any health professional whom the children see from time to time, including Dr G.
That each of the parties keep the other informed at all times of any serious illness or accident suffered by the children and the name and address of any treating health professional.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 1468 of 2006

MR MEPHISTE

Applicant

And

MS MEPHISTE

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr Mephiste (“the father”) and Ms Mephiste (“the mother”) are the parents of two children:
D born … July 1997 (10) and
N born … November 2000 (7)
The parents disagree strongly as to what arrangements should be made for the care of their children. The father sought orders for a graduated regime, leading to a week-about arrangement during school term time. The children would share school holidays and special occasions between their parents.
At the beginning of the hearing the mother proposed that the children spend only day periods with their father. She required that all of their time with him take place in the general presence of his mother or some other adult family member. She also sought sole parental responsibility for the children.
By the end of the hearing the mother’s position had shifted so as to allow the children some overnight time with their father. She proposed a graduated arrangement, leading to alternate weekends from Friday afternoon until Monday morning and from Monday afternoon until Wednesday morning in each other week. She made no proposal for the children to spend block periods with their father during school holidays and she still required that all of their time with the father be in the presence of an adult member of the family. She maintained her application for sole parental responsibility.
The Independent Children’s Lawyer also proposed a graduated regime, leading to alternate weekends from 3.00pm on Friday until 9.00am on Wednesday. This proposal included provision for the children to spend time with each parent on special occasions. The Minute submitted by the Independent Children’s Lawyer contained no provision for the sharing of school holidays between the parents and did not provide for any supervision or monitoring of the children’s time with their father. The Independent Children’s Lawyer proposed that the parties have equal shared parental responsibility.
There was an issue as to whether interim or final orders should be made. The Independent Children’s Lawyer submitted that interim orders, with a review after approximately six months, would be appropriate. This position was supported by the mother and opposed by the father. For reasons which appear below, I propose to make final orders.

BACKGROUND

The father, who is 39, and the mother who is 40, married in October 1996. They separated on 1 or 2 July 2006, when the father went to stay with his sister at E. The mother and the children remained in the former matrimonial home at M. For about three months the father hoped for a reconciliation but, in about October 2006, he realised that the marriage was over and moved into rented accommodation at M.
After the separation the mother allowed the father only very limited time with the children. She permitted him to see them for approximately two hours per week, at the former matrimonial home and in her presence. The father commenced these proceedings on 25 October 2006, after the mother refused a request via his solicitor for a week about arrangement.
The mother filed a Response on 20 November 2006, in which she sought interim orders that the children spend time with their father from 7.00pm to 8.30pm each Monday and Wednesday and from 8:00am until 9:30am each Sunday. On the same date she filed a Notice of Child Abuse in which she alleged:
“1. On many occasions, the last one occurring in or about June 2006, the applicant husband [Mr Mephiste], pinched the child [D] (born […]/7/97) on her bottom and said to her words to the effect ‘That’s my bum’. He also on other occasions pinched the said child on other parts of her body.
2. On many occasions, the last one being in or about June 2006, the applicant husband, [Mr Mephiste], took hold of the penis of the child [N] (born […]/11/00) and said to him words to the effect ‘That’s my bulla’.”
On 7 December 2006 the parties consented to orders, pending an interim hearing on 25 January 2007, that the children spend time with their father each Sunday from 1.00pm until 6.00pm. A condition was that the children’s time with their father be supervised by the paternal grandmother.
On 25 January 2007 interim orders were made after a contested hearing. I ordered that the children spend time with their father each alternate Saturday from 9.00am until 6.00pm; each Sunday from 12.00noon until 6.00pm and each other Monday and Tuesday from after school until 7.00pm. The orders provided that the children spend all such time with their father in the general presence of the paternal grandmother, the father’s sister or any other adult member of the paternal family.
On 23 August 2007 the Independent Children’s Lawyer caused the proceedings to be relisted after a report was received from Dr W, the Court appointed single expert. The Independent Children’s Lawyer applied for a variation of the interim orders, to increase the children’s time with their father and include overnight periods.
The father supported the proposal of the Independent Children’s Lawyer, which was strongly opposed by the mother. I made interim orders to the effect that the children spend time with their father each alternate weekend from Saturday morning to Sunday afternoon and each week from after school on Tuesday until 9.00am on Wednesday.
Dr W had recommended a significant increase in the children’s time with their father, subject to the proviso that there was no material before the court which would show that they were at some form of unacceptable risk of abuse or neglect in his care. Dr W stated in his report that no such risk was evident to him. It should be noted that the mother alleged, from an early stage in the proceedings, that the children are at risk of physical and sexual abuse by their father. Her allegations later expanded to include emotional abuse by the father.
On 28 June 2007 the mother contacted the Department of Community Services and made an allegation that the father had touched D inappropriately. A JIRT team interviewed the child but took no further action. The mother contacted the Department after Dr W had completed his interviews but before his report was released.
The Independent Children’s Lawyer provided to Dr W various documents subpoenaed from the JIRT team and requested an addendum to his report, having regard to this material. In summary, Dr W reported that nothing in these documents caused him to change the views which he had earlier expressed.
Against this background, I decided to increase the children’s time with their father as proposed by the Independent Children’s Lawyer. I continued the requirement for an adult member of the paternal family to be “generally present”, as much for the protection of the father as to safeguard the children.
Unfortunately, D and N’s time with their father has not proceeded smoothly. D seems to have experienced more difficulty than has N in adjusting to this arrangement. I will consider the likely explanations below, as well as the implications for the proposals made by each of the parents and the Independent Children’s Lawyer.

APPROACH TO THESE PROCEEDINGS

The principles which govern the determination of these proceedings are set out in the Family Law Act. In particular, these principles can be found in Part VII of the Act.
In determining whether to make a particular parenting order, the court is required to regard the best interests of the child as the paramount consideration: section 60CA. In determining what is in a child’s best interests, the court is required to consider the matters set out in subsections 60CC(2) and 60CC(3).
Section 60CC(2) contains 2 ‘primary considerations’ which apply to the determination of what is in a child’s best interests. The first consideration is the benefit to a child of having a meaningful relationship with both parents. The second consideration is the need to protect the child from physical or psychological harm resulting from being subjected or exposed to abuse, neglect or family violence. Section 60CC(3) contains 13 ‘additional considerations’ which are relevant to the determination of what is in a child’s best interests.
Section 60CC(4) obliges the court to consider the extent to which each of a child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent. In addition, this subsection requires the court to consider the extent to which each of the child’s parents has facilitated, or failed to facilitate, the other parent spending time and communicating with the child, as well as participating in decisions about major long-term issues in relation to the child. It is also necessary that the court consider the extent to which each parent has fulfilled, or failed to fulfil, the obligation to maintain the child.
Section 60CG requires that the court ensure that any order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration. This section empowers the court to impose any safeguards which it considers necessary to achieve this purpose.
It is necessary also for the court to have regard to the objects of Part VII of the Act as set out in section 60B(1). The court must also have regard to the principles underlying those objects, as expressed in section 60B(2).
Section 61DA creates an obligation on the court to apply a presumption of equal shared parental responsibility, when making a parenting order. This 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 child abuse or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility: section 61DA(4).
It is important to note that the presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent. The term ‘parental responsibility’ is defined in section 61B as ‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.
If an order provides that 2 or more persons are to share parental responsibility for a child, section 65DAC imposes obligations on those persons as to the way in which decisions as to major long-term issues relating to the child are to be approached. These decisions are to be made jointly by the persons who share parental responsibility for the child. Each of these persons is required to consult with the other and make a genuine effort to come to a joint decision. It is not necessary for a person with whom a child is spending time to consult with a person who has parental responsibility, in relation to issues which are not major long-term issues: section 65DAE.
If a parenting order provides that a child’s parents are to have equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent. If an order provides that the parents are to have equal shared parental responsibility but the child is not to spend equal time with each of them, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent: section 65DAA.
In deciding whether to proceed to make an order for a child to spend equal time or substantial and significant time with each parent, the court must regard the child’s best interest as the paramount consideration: section 60CA. The terms ‘substantial and significant time’ and ‘reasonably practicable’ are defined in subsection 65DAA(3) and (5).

THE PRIMARY CONSIDERATIONS

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents; and
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Dr W had a clear view that the children will benefit from a meaningful relationship with each of their parents. He said (page 23 of his report):
“In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.”
Having regard to the whole of the evidence and submissions, I am firmly of the same opinion.
As noted, the mother alleged that the children are at risk of sexual and physical abuse and psychological harm while in the care of their father. The Independent Children’s Lawyer and the father submitted that the children, particularly D, are presently being subjected to emotional abuse by the mother and that there is no real prospect of her desisting from her damaging behaviour in the future.

The Allegations of the Mother

On 19 November 2006 the mother swore an affidavit in support, inter alia, of an application for interim orders that the children spend time with their father each Monday and Wednesday from 7:00pm until 8:30pm and each Sunday from 8:00am until 9:30am, which is a total of four and a half hours per week. All such time would be at the former matrimonial home and supervised either by the mother or the maternal grandparents.
In this affidavit the mother made complaints which can be summarised as follows:
·the father had little or no involvement with the care of the children during the marriage, because he devoted inordinate amounts of time to his work
·the father drank to excess and smoked in the presence of the children
·the father played roughly and unsafely with the children
·the father touched the children inappropriately, particularly as set out in the Notice of Abuse
·in 1999 the father and his brothers played with their niece, aged 13, in a rough manner which included pinching her bottom and tickling her all over her body
·in 1999 the father and his brothers played roughly with their nephew, who was 11, in a way which included putting their hands down his pants
·the father’s sister’s home did not provide proper accommodation for the children
·the father discussed the separation and court proceedings with the children
·the father failed to take up opportunities to spend time with the children and participate in their school events
·neither child was capable of showering alone and it was inappropriate that the father should assist them in this regard
All of these reasons were advanced in support of the mother’s implacable opposition to the children having overnight time with their father.

The allegations contained in the mother’s November 2006 affidavit and the Notice of Abuse differ in one significant respect from the contents of a letter dated 9 October 2006 which her then solicitor sent to the father’s legal representative. This letter set out 10 reasons why the mother refused to allow the children any overnight time with their father, none of which related in any way to inappropriate touching of the children.
When this discrepancy was drawn to the mother’s attention in cross-examination, she said that her solicitor “told [me] to keep it separate”. She added that she was unhappy with this advice and changed solicitors. Ultimately, the mother seemed to resile from her allegation that the father has sexually abused the children. Her case seemed to be that the father has caused psychological harm to the children, particularly D, by his inappropriate behaviour towards them. The written submissions filed on her behalf stated as follows:
“…..there is sufficient evidence before the court to find that the father has, at times, behaved inappropriately towards the children, more so towards [D], and that such behaviour has had an adverse impact on her psychological wellbeing. Such behaviour by the father that he blatantly denies and further, fails to recognise the adverse impact it is having on his daughter and on his relationship with her.
Whilst the behaviour at the present time does not amount to sexual abuse, the behaviour, as viewed by the children and expressed to the various professionals and the ICL, is almost as damaging and the children ought to be protected from such behaviour continuing.”
I had difficulty with this submission, for reasons which appear below.
It seems that the mother became most alarmed and upset about the prospect of a week-about arrangement, after she received this proposal in a letter dated 3 October 2006 from the solicitor for the father. She discussed this prospect with her general practitioner on 23 October 2006 and again on 6 November 2006. Between these two dates she apparently consulted several solicitors, all of whom advised her that “she may well have to accept 50% custody of the children” according to the doctor’s notes (exhibit 6). By 20 November 2006 the allegations of sexual abuse had entered the arena.
D first complained of inappropriate touching by her father in her interview with Dr W on 19 June 2007. He reported:
“She added unprompted that her father was also touching her in all the wrong places. She said that he assured her that it was just for fun but she could see in his eyes that it was not.”
These statements followed complaints by D about her father’s drinking habits during a discussion with Dr W about the separation of her parents. (page 16)
Dr W asked D what she meant by her father touching her in “the wrong places”. He reported:
“She said for instance he had touched and rubbed her ‘down there’. She indicated vaguely in the area of her groin but also indicated she was fully clothed. Indeed she said that his had happened during this rough and tumble activity after her father had come home from work and it was ‘in supposed play’. She said that he would say that he was just playing around and that it usually happened in the playroom. She said that her father would not take any notice when she told him to stop and that his mother, who was also there, had told her father to stop as well.”
Dr W discussed with the mother os her concerns about inappropriate touching of the children by their father. He reported as follows:
“She said on a couple of occasions she saw him touching [D] in her bottom area, although from what she said it sounded as if [D] was clothed. She said that he would make comments like ‘that’s my bum’ and other similar remarks. From what she said, it sounds as though this was said in a joking way, although she regarded them as quite inappropriate. She also said that he would shower [N] behind the closed door of the bathroom and that [N] had informed her that he had showered with his father. She also said that [N] also talked about him having touched his ‘bulla’, which she indicated was a culturally based family name for the penis. She said that she also was quite upset because he was changing down into his underwear in front of the children.
I asked her what meanings she derived from these observations. She told me that from where she came from, it is expected that people have respect for others’ bodies. She felt that he behaved in quite a disrespectful way about these matters. She told me for example that when he got together with his three brothers, even as grownups they used to rumble, part of which involved grabbing at each other’s penises in public. She also felt that they had insensitively made jokes of a sexual or private nature in front of a niece who was known to have been sexually abused and that [the father’s] sister had described her brothers putting a broomstick into her bottom when she was a child. She indicated that her sister-in-law still regarded this as an amusing matter whereas she did not.”
Dr W asked the father about the allegations of inappropriate touching of the children. He reported as follows:
“He said that he used to pat the children on the bottom to hurry them up. On one occasion [D] was draped over his lap while he was on the lounge. He had his hand on her bottom and she asked him to remove it. He said jokingly he told her that he was her father and he could do what he wanted [sic].
He said there had also been an incident involving [N] where he was cleaning [N] up after he had soiled himself and there was some faeces under [N’s] foreskin. He and [N] shared a joke about whose ‘bulla’ it was. He denied that he had ever helped bathe [D] and he said that he had bathed [N] and that sometimes [N] would ask if he could have a shower with him.
He also said that he used to play tackle and roughhouse with the children.”
A notification was made to the Department of Community Services on 28 June 2007. The notifier informed the department that D said that her father touched her genital area over her underwear, at a time when he had been drinking. The DOCS assessment record stated that she told officers that he “rubbed around my rude bits in front”. She asked him to stop and ran to her mother, who was in another room.D then referred to another incident about 12 months earlier and said: “He touches me on the bottom but nowhere else”.
This record noted that D displayed fear and anxiety at the prospect of overnight stays with her father.Statutory protection of the identity of the notifier means that there was no evidence as to the basis of this observation and/or assessment.
D was interviewed by a DOCS caseworker and a police officer on 13 July 2007. There was no transcript of this interview in evidence but a “file note record” prepared by the DOCS officer was tendered.
The DOCS officer recorded that D disclosed that her father touched her on her “rude parts” on two occasions and that use of a diagram established that she was referring to her vaginal area. For the first time D said that her father touched her after a shower before she put on her pants, while saying: “chuzi chuzi chu”. She said that she was 4 or 5 years old at the time.
D also told the JIRT officers that there was another occasion two years earlier which took place in the playroom of the family home. She said that she and N were playing charades when their father came into the room, sat behind her and grabbed her legs. She fell backwards onto him and he “grabbed her on the rude parts”. D said that she told her mother, who in turn spoke to her father about “stepping over boundaries”. D said that N saw what happened and yelled at his father to stop. The father said “I am only playing”.
D also told the JIRT officers that her father was “touching her, pinching her, on the bottom in the context of play”. She referred to an incident, just before her father left the family home in June/July 2006 when her father stretched out his hand as he went to sit on the lounge next to him. She said that she moved to sit on another lounge and he followed her and did the same thing. She had no choice but to sit on his hand and he pinched her bottom, while saying “chuzi chuzi chu”.
D then told the JIRT officers that her father continued to touch her on the bottom, despite her telling him to stop. She said that her mother used to tell him to stop and he responded: “I am only playing – I am her dad I will do what I want”. She said that he touched her on the bottom during contact visits. The file note quoted D as saying that her nanny was “supposed to supervise visits but she was never there – she was always watching TV”.
D said that she felt “okay” about seeing her father again. She then added that she “does not really want to”.
The JIRT officers recommended the closure of the file, on the basis that the allegations of sexual abuse were not substantiated. The Department has taken no further action.
It should be noted that there was no order for the father’s time with the children to be supervised when the JIRT team was involved with the family in July 2007. My orders of 25 January 2007 required that the father’s time with the children be spent in “the general presence of the paternal grandmother, the father’s sister or any other adult member of his family”. As I indicated at the time when I made these orders, this safeguard was as much for the protection of the father as the children. Obviously, however, D had been given a different impression.
It should be noted that the DOCS officer attempted to discuss her interview with D with the father on 13 July 2007. The father attended the meeting accompanied by his solicitor. He elected to say nothing, presumably on legal advice.
The departmental officer attempted to explain to the father the need for him to respect D’s physical boundaries, at her age, and stated that no further action would be taken. I comment that the rudeness apparently directed at the Departmental officer by the father’s solicitor was unwarranted and most unhelpful. An opportunity for the father to gain some understanding of the effect of his behaviour was compromised by the conduct of his solicitor.
D’s complaints about inappropriate touching by her father relate primarily to the period before separation. She did comment to the JIRT team that her father continued to touch her on the bottom during the time which they have since spent together pursuant to various interim orders.
It is curious, to say the least, that the mother simultaneously maintained that she was concerned about the father’s behaviour toward the children before the separation, yet she complained that he spent insufficient time with them. She said words to the effect: “I have always wanted him to spend more time with the children” and “I wanted him to be there to be a husband to me and a father to the children – for us to be a family”. In my view, these two propositions sit awkwardly together.
In cross-examination the mother was taken to the copious diary notes annexed to her affidavit sworn on 28 November 2007. She recorded in minute detail accounts of the children’s time with their father between 10 December 2006 and 20 November 2007. She could only have gained this information by extensive questioning of the children.
The mother said in cross-examination that D told her that her father continues to touch her and pinch her on the bottom. When taken to her diary notes she conceded that, after 9 May 2007, there was no mention of touching other than foot massages given by the father to D on 28 October 2007 and 10 November 2007. She maintained that these foot massages amounted to “inappropriate touching” and “should be investigated”.
It was common ground that the mother’s parents spent large amounts of time in the family home prior to separation. After the marriage broke down the father has not been alone with the children for any length of time. In reality, he has had practically no opportunity to sexually abuse the children either before or after the separation, although the mother apparently believes that he would seize any opportunity to do so.
Concerningly, the mother gave a clear indication of her preparedness to believe that the father may take any opportunity to sexually abuse the children when she was taken to her diary entries for 30 June 2007 and 14 July 2007. She recorded that the father took N out of a movie theatre for 30 minutes on 30 June 2007. In cross-examination she said words to the effect that “quite possibly he could have used the opportunity to sexually abuse [N] when he took him out of the movies for 30 minutes”.
On 14 July 2007 the mother recorded that the father “took [N] to the front gate alone in order for Aunty […] to take him to soccer”. In cross-examination she said that the father may have sexually abused N between the basketball court and the gate, adding that there are a lot of bushes in that area.
I have paid careful attention to all of the evidence in relation to the allegations of sexual abuse of the children by the father. I am satisfied, to the requisite standard, that the father has not sexually abused either child. I am satisfied that he has behaved insensitively towards D and failed to respect her developing physical maturity. He would be wise to think carefully about the way that he interacts with his daughter, in a physical sense, in the future. I am satisfied that he gave an innocent and entirely plausible explanation for any touching of N’s penis.
Of far greater concern, in my view, is the allegation of the father that the children are at an unacceptable risk of psychological harm in the care of the mother. His concerns were shared by the Independent Children’s Lawyer.
The submissions on behalf of the mother attempted to sheet home to the father all responsibility for D’s current emotional problems. These submissions went so far as to suggest that the father’s behaviour puts the children at “unacceptable risk of harm” in his care.In my view, a far greater risk of harm to the children arises from the pathological aspects of their relationship with their mother. The expert evidence of Dr W in this regard is of great concern.
Dr W described D in the following terms (report page 20):
“In my view [D] is an anxious, insecure, emotionally immature child who has an enmeshed relationship with her mother and grandparents. I formed the view that it was relevant that her choice of career at this point is to be a vet who looks after animals when people go overseas. That is, she sees herself as somebody who would look after helpless animals when they are abandoned. Without wanting to take this too literally, I felt that this reflected an important aspect of her emotional makeup in which she sees herself as rather helpless, needing to be taken care of and at risk of abandonment. This is a common psychological consequence of being rather over-protected and it lays the grounds for children continuing to feel vulnerable to abandonment and holding highly subjective fears about the outside world. Thinking such as this could also easily underlay comfort eating. Although there may well be partly a biological basis to [D’s] obesity, in my view there is also an important social reinforcer.”
This passage is a summary of concerns expressed by Dr W as to D’s emotional state and the risk to her of psychological harm, if there is no change to her situation. I refer below in these reasons to additional evidence from Dr W, which is of great concern in this regard.

THE ADDITIONAL CONSIDERATIONS

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

D told Dr W that she wanted to see her father every second Saturday and Sunday. She said that she did not wish to see him during the week and that she wanted no additional time with him during the school holidays. Dr W cautioned against allowing D’s views to carry significant weight, despite her age and at least average level of intelligence. He was of the opinion that D’s views showed almost no evidence of objectivity or of thinking independent of that of her mother. He reported:
“I formed the view that the enmeshed relationship which [D] has with her mother has both led to these circumstances and also runs a significant risk of jeopardising [D’s] psychological development including her capacity for relationships. For reasons of the immaturity of her thinking about this matter and the need for her to emerge from beneath the mother’s quite extreme overprotectiveness, it is my view that her expressed wishes should not be allowed to maintain the direction that her emotional development is taking at the moment.”
I accept this evidence of Dr W. In my opinion, it is quite clear that D is unable to form a view, independent to that of her mother, as to what time she should spend with her father.I do not accept the submission on behalf of the mother that D “has been free of overt influence in expressing such views”. I was not told why I should reject the expert opinion of Dr W to the contrary.
N indicated to Dr W that he would be comfortable with a week-about arrangement and commented on the fairness of such a regime. Dr W was of the opinion N also has been influenced by the mother’s “protective behaviour” but to a lesser degree than has D. He was of the view, however, that N probably has not thought through the implications of a week-about arrangement. Dr W noted that the concept of “fairness” is a typical consideration for children of his age.
For these reasons I do not attach significant weight to the views expressed by D. Her impaired capacity to form views independent of her mother and, to a lesser extent her maternal grandparents, is a matter of substantial concern.
Dr W was inclined to accord significant weight to the views expressed by N, although he was only 6½ years old at the time of the interview. He assessed that N has a balanced view of each of his parents and “even a rather quirky perspective on their failings”. I see no reason to disagree with this assessment of Dr W.
Section 60CC(3)(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);
Historically, the mother has provided most of the children’s care and, no doubt, they have a close relationship with her. There is, however, a pathological aspect to the children’s maternal relationships, particularly in the case of D. I have referred already to Dr W’s description of the mother/child relationships and I should add that Dr W assessed that D has “a highly anxious attachment to her mother”.
As to D’s relationship with her father, Dr W detected a more positive aspect that she was prepared to exhibit publicly. He considered that there was “some evidence of an independent view” but assessed that D was anxious about her mother becoming aware of any affection for her father.
Dr W was of the opinion, however, that the mother does not want D to hate her father and would probably be more accepting of affection for him that she believes. He said in his oral evidence: “I thought I saw a visceral affection for her father, which she could override if she thought about it”.
It appears that N has been spared from the effect of the mother’s overprotectiveness to a much greater extent than has D. He has thus been able to maintain “a reasonably secure attachment” with both of his parents, in the opinion of Dr W.
Both children have a close relationship with their maternal grandparents but they share in the mother’s enmeshed, overprotective manner of relating to them. They embrace the mother’s negative opinions of the father and seem to contribute to D’s difficulties in leaving home to spend time with him.

The maternal grandfather described what typically happens when the father comes to collect the children. He said that he stays inside and his wife goes out of the house with the mother. They say to the children “don’t worry, you will be back tomorrow”. Such words would hardly encourage the children to leave with their father happily.
There has been an interruption to the children’s relationship with their paternal grandparents and extended family for some years. According to the paternal grandmother, they were “excluded” from about November 2002. The submissions on behalf of the mother seek to sheet home all of the blame for this situation to the paternal grandmother and her family. I do not accept that the mother was genuinely concerned to maintain the children’s relationship with their paternal grandparents and extended family. I accept that she did contact the paternal grandfather on a couple of occasions but it appears that she did no more to rectify the situation.
In my opinion, the children are entitled to the benefit of a close, loving relationship with each set of grandparents and both their maternal and paternal extended families. Nothing whatsoever in the evidence persuaded me that any benefit will accrue to the children for a continuing curtailment of their relationship with their paternal grandparents and family.
Section 60CC(3)(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;
At first glance it may appear that the mother has actively sought to undermine the children’s relationship with their father and to isolate them from their paternal family. In my assessment, however, her actions are rooted in her own fears and anxieties about the world in general and the father in particular.
For example, she admitted that she has never allowed the children to have sleepovers at the homes of friends. She gave as justification her fears that a truck or a bus may crash into the house or that an adult in the home may cause a fire with a cigarette. These fears are hardly logical or reasonably based.
Dr W described the father as “not someone who sees something to be frightened of around every corner”, in contrast to the mother.He said that it is “important that [D] spends some family time with people who are not bound up in fear”.
In the opinion of Dr W there is another facet to the mother’s negative attitude to the father, which is her “moral outrage” at what she perceives to be his failings or shortcomings. He commented in his report:
“I formed the view that [the mother] is particularly subjective about [the father’s] parenting abilities. She also takes an extremely moralistic view to [the father] and his family, essentially dismissing them and their motivation while accepting and reinforcing an unusually enmeshed and over-protective family life herself. On one hand she strongly defends her practice of only bathing the children on about four nights per week but on the other hand she accuses her husband of being unhygienic. In addition, she blames him for an alleged significant weight gain by [D], yet [the father] is only responsible for a small minority of the meals that [D] consumes during the week. In addition as I pointed out elsewhere, she seems to build a case for addictive drinking, gambling, smoking et cetera on fairly flimsy evidence and her specific concerns about sexual harm to the children also seem to be based on flimsy evidence. In my view a lot of these complaints are largely based on a very over-protective attitude towards the children and a lack of acceptance that [the father] is able to parent the children in a fashion which would generally be regarded as acceptable.”
For these reasons I am satisfied that the mother has not promoted the children’s relationship with their father to a satisfactory extent. I accept, however, that she has not acted maliciously but has been driven by her own fears, anxieties and elevated sense of morality. She has been reinforced in these attitudes and fears by her parents.
Nothing in the evidence indicated to me that the father lacks willingness or ability to facilitate and encourage the children’s relationship with their mother. The fact is that, so far, he has been given very little opportunity to do so.
Section 60CC(3)(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;
In his report Dr W addressed the likely consequences for D, if the current situation continues. He said:
“[The mother] probably sees herself as an exemplary parent, however in my view while she has provided well for them in a general and intellectual domains, she has been extremely over-protective, particularly with [D], and [D] is suffering psychological and developmental consequences of this including obesity which may well be very difficult to turn around at this point, particularly if the major responsibility for this lies with [the mother] and her parents. I doubt if they accept the validity of this view, however the consequences for [D] could well be that she becomes increasingly isolated, lacking in confidence and socially inhibited, and that she will have difficulty optimising not just her personal life but also her professional life. In my view she is in need of an alternative socialising experience which will encourage age-appropriate separation and individuation from her parents and a greater exposure to normal social experiences.”
In his oral evidence Dr W was somewhat more blunt in his prognosis for D, if there is no change to her situation. He said words to the effect:
“She is the type of child who finds high school difficult – school refusal and significant isolation are a real risk for her” and
“If things remain as they are, there is a high risk of her being emotionally crippled as an adolescent and adult. Her path is pretty clearly mapped out for her if she stays with her mother as things are.”
Dr W said that there is no doubt that D could have considerable difficulty in coping with a week-about arrangement. He was of the view that there were two potential outcomes of a week-about regime. He said words to the effect:
“One outcome is that she becomes more insecure and anxious and it becomes unsupportable. At the other end, she may increasingly develop the capacity for independent views, although she may not express them to her mother.”
Dr W was of the opinion that the outcome for D would depend to some extent on how the father deals with the situation. In my view, he is well motivated to achieve the best for both of the children.
Section 60CC(3)(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;
Both parents live in the suburb of M. No relevant consideration arises pursuant to this subsection.
Section 60CC(3)(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;
and
Section 60CC(3)(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Most of the evidence relevant to these two subsections has already been canvassed and will not be repeated.
The mother raised as an issue the father’s lack of involvement with the children during the marriage. She painted a picture of a man with a strong commitment to work who was away from home for long periods. According to her, he spent his time drinking and watching television when he was at home.
The father’s version was that he felt excluded from the family by the presence of the mother’s parents, which made him reluctant to go home from work. I am inclined to accept that he was marginalised, whether or not the mother intended to put him in that position. In my view the father was denied any real opportunity to participate in the care of the children.
The mother complained that the father lacks insight into the children’s emotional needs, particularly with regard to D. In my opinion there is real substance to this complaint, insofar as it relates to his style of play with her. As I have said, he should refrain from touching her as he has done and he must respect her developing physical maturity.
The mother also complained that the father showed a lack of insight and sensitivity by persisting with overnight stays in circumstances when D obviously became upset. In my view, this submission fails to recognise her role and, to a lesser extent that of her parents, in the creation of distress for D.
The minute level of detail contained in the mother’s diary notes give rise to concern as to her capacity to meet the emotional needs of the children. She painstakingly recorded information concerning all of the children’s time with their father, even to the point of documenting what they ate and the price of food purchased by the father. It seems obvious to me that these details could only be obtained by extensive questioning of the children. I do not accept the mother’s denial that she actively elicits this kind of information from the children. It seems to me to be likely that she has encouraged them to report to her in this way after every single period of time with their father. I find it inconceivable that the children would spontaneously volunteer such detailed information after every occasion of time with their father.
Section 60Cc(3)(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;
The mother levelled criticism at the fatherfor his failure to follow the tenets of the Catholic religion whilst the children are in his care. Apparently this submission was intended to bolster her claim for sole parental responsibility.
Section 60CC(3)(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;
No relevant considerations arise pursuant to this subsection.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family;

Section 60CC(3)(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

There were no allegations of family violence.
Section 60CC(3)(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;
It is difficult to tell whether interim or final orders would be more likely to lead to further litigation. On balance, it seems to me to be more likely that interim orders will result in the matter coming back before the court.
In my opinion it is probable that the mother would seize the opportunity offered by interim orders for another chance to achieve her desired outcome. She would be supported in this endeavour by her parents. The result would be continued questioning of the children and pressure to refuse to leave home with their father.
Of course, there is a risk that arrangements put in place by way of final orders would break down and further litigation would be the result. It seems to me, however, that this scenario is literally a risk, whereas use by the mother of interim orders as another opportunity to achieve her desired result is a virtual certainty. For that reason, I propose to make final orders.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant.
There are no further relevant considerations.

CONCLUSION

The Presumption of Equal Shared Parental Responsibility

On behalf of the mother it was submitted that this presumption has been rebutted and that she should have sole parental responsibility for the children. Section 61DA provides as follows:
Presumption of equal shared parent responsibility when making parenting orders
(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’s parents to have equal shared parental responsibility for the child.
There was no submission on behalf of the mother that the father has engaged in family violence. She urged a finding that his behaviour places the children at unacceptable risk of harm while in his care. I have rejected this submission in relation to her allegations of sexual abuse. As already indicated, I regard the father’s behaviour as foolish and insensitive but not abusive of the children.
The details of the mother’s allegations of physical abuse of the children by the father were never spelled out, beyond the material contained in her Notice of Abuse. I have little hesitation in finding that the father has not physically abused the children.
I have referred to the mother’s allegations that the father has emotionally abused the children, particularly D. In my opinion, there are far greater concerns about the psychological damage which the mother is inflicting on D. The father’s foolishness and insensitivity to D’s feelings pale into relative insignificance, compared to the effect of the mother’s behaviour as assessed by Dr W.
The arguments advanced on behalf of the mother in support of her claim for sole parental responsibility can be summarised as follows:
·Historically, she has made most if not all decisions about major issues relating to the children, for example, their education, religious upbringing and medical treatment.
·The parties are unable to communicate on issues relating to the children.
·The father “could not be dissatisfied with such an order given his lack of interest and participation in the past”.
These submissions ignore the persuasive evidence that the father was excluded from participation in the care of the children by the mother and her parents. As well, these propositions completely overlook the expert evidence of Dr W to the effect that the children need input from a parent with a more balanced view of the world. An order giving sole parental responsibility to the mother would only bolster her prospects of instilling fears into the children and deprive them of an opportunity to individuate from their parents. The parents inability to communicate is most regrettable but, in the circumstances, not fatal to equal shared parental responsibility.
I regard the mother’s claim for sole parental responsibility as merely a continuation of her attempts to minimise the father’s role in the children’s lives. In simple terms, the children need significant input from their father to counterbalance the damage which flows to them, particularly D, from their mother’s fearful world view and overprotectiveness. I have no hesitation in rejecting the submission on behalf of the mother that the presumption of equal shared parental responsibility has been rebutted.
In my view, the evidence warrants a finding to the contrary. I am satisfied that the children’s best interests dictate that the parties have equal shared parental responsibility. It follows that I am required to consider whether it is in the children’s best interests, and reasonably practicable, for them to spend equal or substantial and significant time with each of their parents.

Equal Time or Substantial and Significant Time

It is reasonably practicable for the children to spend equal time or substantial and significant time with each of their parents. The parents live in the same suburb in western Sydney.
It is important to bear in mind that Dr W was firmly of the opinion that it would “be an error to use [D] as a barometer”. In other words, D’s difficulty with and resistance to longer and overnight periods with her father should not be the pivotal factor to a determination of the time which the children spend with their father.
I found the expert evidence of Dr W to be compelling and very concerning. Essentially, he predicted a bleak future for D if she remains with her mother and does not have a meaningful input into her life from her father.
Ultimately, the effect of Dr W’s evidence was that D has some prospect of overcoming her present problems and enjoying a normal, fulfilling life if the influence of her mother and maternal grandparents is ameliorated. He did not minimise the difficulties which D is likely to encounter if her time with her father is increased and becomes unmonitored. Fundamentally, it is a question of balancing these difficulties against a pressing need to try to address D’s emotional problems.
Although I agree with Dr W that D should not be the “barometer”, her needs are a powerful indicator of a proper outcome to these proceedings. Put simply, her psychological wellbeing is currently in jeopardy but she has the chance of a more balanced life with the input of her father and paternal extended family. I propose to give her that opportunity.
N, too, needs a counterbalance to the influence of his mother and maternal grandparents. It will be much easier for him than for D to adjust to longer periods in the care of his father.
I will make orders generally as proposed by the Independent Children’s Lawyer but on a final basis. I propose to discharge the injunctions, made without admission, in relation to the father on 25 January 2007. I am persuaded by the submissions on his behalf that the continuation of such orders will provide fertile ground for questioning of the children by the mother so as to detect “breaches”.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:

Date: 23 April 2008

[2008] FamCA 444

23 April 2008

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Family Law

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Procedural Fairness

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