MICHAELS & TALBOT
[2014] FamCA 953
•7 November 2014
FAMILY COURT OF AUSTRALIA
| MICHAELS & TALBOT | [2014] FamCA 953 |
| FAMILY LAW – CHILDREN – Final parenting orders – Undefended hearing – Where sibling sexual abuse – Where previous final orders by consent – Where significant change in children’s circumstances – Where consideration to appropriate protective orders to be made – Consideration of the best interests of the children. |
| Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA |
| Goode & Goode [2006] FamCA 1346 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Ms Michaels |
| RESPONDENT: | Mr Talbot |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | PAC | 4644 | of | 2010 |
| DATE DELIVERED: | 7 November 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 September 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Claremont Legal |
| THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
All previous parenting orders in respect of C Talbot, born … 2000 and K Talbot, born … 1997.
That the mother have sole parental responsibility for the child C.
That the father have sole parental responsibility for the child K.
That C live with the mother.
That K live with the father.
That the mother and father be prohibited from allowing C and K to come into contact with each other, or to spend any time together, including in particular overnight time in the same house unless:
(a) Such time to occur supervised by the mother; and
(b) The mother to ensure that C and K do not at any time stay overnight or reside at the same premises
That each parent is to have liberal telephone contact with the non-resident child at any time prior to 9:30 pm New South Wales time.
The father will use his best endeavours to ensure that K’s mobile phone is charged and that he has credit on his phone to make calls or send text messages, or there is another telephone available for his use and the same applies for the mother in relation to C.
The mother and father be restrained from discussing the proceedings or nay issues arising out of the proceedings with either of the children
That the mother and father not denigrate the other within the presence or hearing of the children, so far as is reasonably practicable, not permit any third person to do so including via Facebook or nay other social networking sites
The mother and father mail to the other parent all school reports, medical reports and all other documents concerning the children the child living with that parent
The mother and father be permitted to contact schools, counsellors and any health or other professional person involved with the child not living with that parent
IT IS NOTED that publication of this judgment by this Court under the pseudonym Michaels & Talbot 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 PARRAMATTA |
FILE NUMBER: PAC 4644 of 2010
| Ms Michaels |
Applicant
And
| Mr Talbot |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are the second set of parenting proceedings in relation to the two children, K, who is currently 17 years old and C, who is currently 14 years old (“the children”). These are the two children of Ms Michaels (“the mother”) and Mr Talbot (“the father”).
The proceedings were first initiated by the mother in September 2010 in the Federal Magistrates Court, with the matter being transferred to the Family Court of Australia in December 2010. The Department of Families and Community Services (“The Department”) intervened in these proceedings and as a result the child C was taken into the care of the Department in 2011.
Final orders were made by consent on 20 February 2013. These orders required K and C not to spend any unsupervised time together, C was to live with the father and K was to live with the mother. They were to spend time with the other parent during school holidays, and supervised time together had to be approved by the children’s counselling services and to be supervised by one of the parents.
These proceedings commenced by the mother filing an Initiating Application on 1 October 2013, following both children spending time with the non-resident parent. C returned home to Queensland on 7 July 2013, but K never returned to Sydney to be with his mother. The mother believed that the two children were living in the same house with the father.
The father filed a response and an affidavit on 13 January 2014. The father sought orders:
a)That the father have sole parental responsibility of both K and C.
b)That both children live with the father.
c)That the father or adult supervise the children, so not to be alone.
d)That both children attend appointments at B Counselling Service when required.
e)That the mother and any relatives have liberal telephone contact before 9:20 pm on school nights and 11 pm on weekends, Queensland time.
f)That the father uses his best endeavours to make sure the children’s phones are charged for the mother or any relative to contact the children.
g)That nobody except for the Independent Children’s Lawyer is to discuss the proceedings with the children.
h)That nobody is to denigrate the mother or father at all, especially when the children are near.
i)The father will mail a copy of all report cards and relevant documents to the mother when available or needed.
j)The mother will not be permitted to contact schools, counsellors or any professional involved with the children.
The matter was before the court on 4 October 2013 and was adjourned as the application was not yet served. On 10 October 2013 the matter was before the Magellan Registrar for the first Magellan Directions Hearing, and leave was granted for the father to attend by phone. On this day the father appeared by phone. On 24 October 2013 when it was again before the Magellan Registrar, the father appeared in person.
On 9 December 2013 the matter was before a Registrar and the father appeared by phone. Later that day when the matter was before the Magellan Registrar the mother’s legal representative mentioned the matter by consent.
On 14 January 2014 the father appeared and the matter was adjourned to a date to be fixed, the Magellan report was released and a Family Report was ordered.
The court was at hearing informed by the Independent Children’s Lawyer that the father by email informed the Independent Children’s Lawyer on 12 March 2014 that “[The child C] has informed me she is happy where she is and that is all that matters to me.”
On 30 May 2014 there was no appearance by the father and the matter was listed for an undefended hearing on 15 September 2014. The father was notified of these orders and the consequences for his non-attendance. The matter was confirmed to be undefended at the compliance check on 11 September 2014. The matter proceeded on an undefended basis on 15 September 2014.
The mother seeks to formalise the current living arrangements.
Background
The Department were involved in the initial proceedings in 2011 as a result of the father informing the Department of the alleged abuse perpetrated by K on C, and this lead to C’s removal from the mother’s care. C had made disclosures to the father while she spent time with him over Christmas in 2010. In January 2011, when the father and C spoke on the phone, C told him that her mother and grandmother both knew, but were not addressing the situation. The father then reported this to Police and the Department.
The abuse has been substantiated by JIRT (Joint Investigation Responsive Team who act on a referral basis from the Department of Community and Family Services) and K had made admissions, including to his mother.
The mother decided that K would not cope well in a foster home and therefore it was determined that C had to be removed from the home. This was for several reasons including that the mother had minimalized the abuse and also because there had been a history of the mother minimalizing sexual abuse on herself by her stepfather. C was placed into a foster home. The mother was allowed one hour supervised contact with C, twice a week. C was in foster care for a period of approximately three months. Subsequently she lived with her maternal great grandmother.
Interim parenting orders were made on 30 March 2012. Collier J made orders providing:
a)That the Department have joint parental responsibility with the father for all long term issues relating to C.
b)That the Department have joint parental responsibility with the mother for all long term issues relating to K.
c)That C live with the father.
d)That K live with the mother.
e)That the father spend time with K:
i)From 31 March 2012 to 7 April 2012.
ii)For the whole of the June/July Queensland school holiday period.
iii)For the whole of the October Queensland school holiday period.
f)That the mother spend time with C:
i)From 31 March 2012 to 7 April 2012
ii)For the whole of the June/July Queensland school holiday period.
iii)For the whole of the October Queensland school holiday period.
g)That the father do all things to ensure that C commence counselling with B Counselling Service.
h)That the father ensure that C attend all appointments made with B Counselling Service.
i)That each parent have liberal telephone contact with the child not in their current care.
j)That the father and mother comply with all directions and requests for information in relation to the children from the Department.
k)That B Counselling Service be permitted access to all court reports, affidavits and orders filed in the current proceedings.
On the seventh day of hearing before Justice Collier, consent orders were made on 20 February 2013. The orders provided:
a)That the father have sole parental responsibility for C.
b)That the mother have sole parental responsibility for K.
c)That C live with the father.
d)That K live with the mother.
e)That the mother and father be prohibited from allowing C and K to come into contact with each other, or to spend any time together, including in particular overnight time in the same house unless:
i)Such time is supervised by either the mother or the father and;
ii)The prior approval of B Counselling Service and N Adolescent Services has been obtained
f)That K and C spend time with the mother and father as agreed between them or otherwise:
i)In School holidays which completely coincide or overlap, the father to deliver C to the mother, the father to collect K, and the mother to arrange the children’s flights home to the resident parent.
g)That each parent have liberal telephone contact before 9:20 pm on weekdays and 11 pm on weekends, New South Wales time, with the child not in his or her current care.
h)That the father will use his best endeavours to ensure that C’s mobile phone is charged and available for her use, or there is another available telephone for her use, and the same applies for the mother in relation to K.
i)That the mother and father be restrained from discussing the proceedings or any issues arising out of the proceedings with either of the children.
j)That the mother and father not denigrate the other within the presence of the children and, so far is reasonably practicable, not permit any third person to do so including via Facebook or any other social networking sites.
k)That the mother and father be restrained from physically disciplining the children and, so far as is reasonable practicable, permitting any third person to do so.
l)That each parent keep the other advised of any significant medical, health and psychological issue in respect of either C or K whilst that child is in that parent’s care.
m)That the father ensure that C continue to attend all appointments made with B Counselling Service, or like service, until such time as counsellors at B Counselling Service indicate that the counselling should cease.
n)That the mother ensure that K continue to attend all appointments made with N Adolescent Service, or like service, until such time as counsellors at N Adolescent Service indicate that the counselling should cease.
o)The father and the mother continue to engage with B Counselling Service and N Adolescent Services respectively as recommended by each service.
p)The mother and the father mail to the other parent all school reports, medical reports and all other document concerning the child living with that parent.
q)The mother and the father be permitted to contact schools, counsellors and any health or other professional person involved with the child not living with that parent.
The orders included two notations:
a)That neither child were to be left unsupervised in the care of the maternal step-grandfather.
b)That all time either child spent with either child is to be in accordance with the wishes of that child.
The current proceedings
The current proceedings arose from the non-returning of K to Sydney following his spending time with his father in City X, Queensland, in accordance with the final parenting orders made by consent.
In accordance with the 20 February 2013 orders, the father dropped C to the mother’s home in Sydney on 22 June 2013, and later that evening collected K to drive together to City X. Following C’s two weeks with the mother, she returned home to City X on a flight on 7 July 2013.
The mother booked K’s return flight to Sydney for 15 July 2013. During this time, K was to stay at the paternal grandmother’s home, Ms T, so the children did not come into contact with each other.
On 15 July 2013, the mother was informed that K was not on the flight because the car broke down on the way to the airport. The mother then booked a flight for the next day.
On 16 July 2013, the mother was informed by the father that K was “chucking a wobbly” and that he did not want to get on the plane to Sydney. That afternoon the mother rang K who threatened to hurt or kill the mother or kill himself if he was made to return home to Sydney; he insisted on staying in Queensland with his father.
K is prescribed medication for ADHD, anxiety and OCD. When K rang the mother later on 16 July 2013, he restated he wanted to live in City X with his father. The mother than asked if he was taking his medication, and he replied that he hadn’t taken any since he had been with his father, he having been with his father for approximately two weeks at this stage.
On 19 July 2013, the mother contacted Brian Samuels, the Independent Children’s Lawyer from the previous proceedings, via email. The mother informed him that she had received distressing phone calls from C, that K was refusing to come home, and that C wished to live in Sydney with her. She continued that the children were living together, despite the orders and asked Mr Samuels to contact her as soon as possible.
On the same day Mr Samuels responded via email. He informed the mother that he had been discharged from the matter at the conclusion of the hearing, that he had received a phone call from the father advising that K was refusing to return home and that the children were residing separately, with C living with another relative in City X. He further informed the mother that he had advised the father to contact the Department of Family and Community Services and also gave the same advice to the mother, he also urged both parties to gain independent legal advice, as he was not in a position to provide this. He also noted that since the children were both in Queensland that it was outside the Department’s jurisdiction.
Following Mr Samuels’ advice, the mother then contacted Queensland Child Services and spoke to Mr W.
Later that evening Mr W phoned the mother and said that he had attended the father’s property and confirmed that both children were living there. He told the mother that he saw K’s clothes and a sleeping bag in a car that was on the property. A police officer spoke to K who said he was sleeping in the car since he arrived in Queensland on 23 June 2013 and that K had said he was supposed to be staying at his grandmother’s house but his father had told him he didn’t have to if he didn’t want to.
On 23 July 2013 the mother received a text message from C saying that she wanted to kill her stepmother and that she had not allowed C to use her phone to call her mother and therefore was only able to text her mother.
On 4 August 2013 the mother received a text message from C saying that she wanted to live with her mother and that she was sick of living in Queensland, “its torture”.
On 5 August 2013 the mother received a similar text message from C.
The mother contacted N Adolescent Service to advise them of the present arrangements, where both children were living with the father. The service responded in a letter stating that they did not support the current arrangement and did not support any increase in time the children were to spend with each other. The service expressed the view that the arrangements should go back to those under the orders; that is, K to return to Sydney, and C to remain in City X.
On 21 September 2013 the father drove both children to Sydney to drop C at the mother’s residence so she could spend time with her mother over the school holidays. The father left both children in the mother’s care that evening and said he would return early the next morning to take K home to City X. That evening C slept in the same bed as the mother, and K slept on the lounge.
On 22 September 2013 the father returned to collect K early in the morning. They packed up the rest of K’s things into the trailer attached to the car and left for City X.
On 1 October 2013 the mother filed this application in the Family Court of Australia.
On 4 October 2013, C rang her father and told him that she did not wish to return to City X. The father responded aggressively and insisted that she get on the plane to return home or that he would drag her up there himself.
On 5 October 2013 C again rang her father and reiterated to the father that she was not getting on the plane and that she wanted to stay in Sydney with her mother.
On 6 October 2013 when C was due to catch the plane to be with her father, she did not.
The mother did not want to return C to her father because she feared that this would expose her to risk of sexual harm by K.
The child C’s current progress
C has been attending a local public school since 14 October 2013. This was the high school she had previously attended in 2012 before the final parenting orders were made.
C appears to have settled into her school well and has made new friends as well as rekindling a lot of her previous friendships from both primary and high school.
C has also been reunited with many of the mother’s family and friends. This includes the mother’s brother, Mr M, and his three sons aged 23, 18 and 17, as well as the mother’s sister, Ms M, and her three daughters aged 18, 11 and 10.
Since C spoke to her father on 6 October 2013, she has tried calling him but he has not answered.
Since the father collected K on 22 September 2013 and returned to Queensland, he has not spent any time with C.
The child K’s current progress
As far as the mother is aware, since K began living with the father, he has not been attending school, and is also not participating in any ongoing counselling.
K continued to reside with his father and his half-siblings, the children of his father and stepmother. The father has now separated from Ms G and she has moved out.
The mother communicates with K via telephone at least every two days.
At the end of May 2014, K came to Sydney and visited the mother. K stayed with the maternal grandparents and the mother visited him while C was at school. K and C did not spend any time together during this period.
The maternal grandmother
The maternal grandmother and her husband, the maternal step-grandfather have two spare bedrooms. They live only five kilometres away from the mother, and she says she already helps out in taking C to and from work.
In May 2014 K stayed at the maternal grandmother’s home and the mother came and visited him there. K and C did not spend any time together during this period but did have some telephone communication. The maternal grandmother also says that she continues to talk to K via telephone a few times each week.
The mother’s proposal
The mother seeks orders to reflect the current position of the children and their residences. They are:
a)That the mother have sole parental responsibility for C.
b)That the father have sole parental responsibility for K.
c)That C live with the mother.
d)That K live with the father.
e)That the parents are prohibited from allowing the children to come into contact with each other, or to spending any time together, including in particular overnight time in the same house unless, Such time is supervised by the mother ad that they do not spend overnight time in the same premises.
f)That each parent have liberal telephone contact with the non-resident child prior to 9:30 pm New South Wales time.
g)That the father will use his best endeavours to ensure that K’s phone is charged and has credit to make phone calls or send text messages, or that there is another telephone available for his use, and the same applies for the mother in respect of C.
h)That the mother and father shall not denigrate the other within the presence or hearing of the children, so far as is reasonably practicable, not permit any third person to do so including via Facebook or any other social networking sites.
i)The mother and father mail to the other parent all school reports, medical reports and all other documents concerning the child living with that parent.
j)That mother and father shall be permitted to contact schools, counsellors and any health or other professional person involved with the child not living with that parent.
The Independent Children’s Lawyer supports the orders sought by the mother. He also raises some concerns that neither child nor parent are presently undergoing any form of therapy or counselling as recommended by Dr Q.
The mother seeks no orders in respect of C spending time with the father or K spending time with the mother but she does seek an order for the children to be able to communicate with the non-resident parent.
Dr Q’s Expert Report
A single expert psychiatric report was prepared previously for the court’s assistance in August 2011 by Dr Q. It provides a useful insight into the previously complex dynamics of the family. The report is based on interviews with and observations of the parties, the children, the maternal grandparents, the maternal great grandmother, the father’s new wife and the mother’s sister Ms MM in May 201. The expert also had reference to documents filed in the proceedings, including documents filed by the Department and previous orders relating to the children’s care. The expert also had reference to further documents including Police and health records of the parties and also the Department file.
At the time of these interviews, C was aged 11 and K was aged 14. The Department was involved in the proceedings, and C was living with the maternal great-grandmother, following her time in foster care. The father’s wife Mrs G was also in the advanced stages of pregnancy with their second child together.
Observations in relation to C
The expert found that C is attached to both parents, to the maternal grandparents and to K, and that she clearly wished to be with them. The expert noted observations during the interviews of the C, the mother, the maternal grandmother and maternal great-grandmother; that C immediately moved to sit between her mother and grandmother and “cuddled up with them as they spoke.” She noted that it was “obvious that she has a close and loving relationship with both of them and that she is missing them.”
The expert found that C was very distressed having been separated from her family and that she wishes to return home to live with her mother and K. Dr Q observed that K appears to be dependent on C, indicating that despite C being younger than K that she is acting as the older sibling.
Dr Q found that C perceives that she has been punished for making a disclosure but identified the concerns of restoring her care to the mother and living with K. The expert noted that C did consider living with her father but seemed ambivalent about it. There were significant concerns in relation to C moving to live with her father, including the younger two children from the father’s new relationship living there, and that this would further entrench C in an older sibling role.
Observations in relation to K
The expert found that K has “complex academic, behavioural and social problems and this is a typical profile in situations of sibling sexual abuse.” She thought it is likely that K has an autistic spectrum disorder, and noted the need for further expert and ongoing assessment in this regard.
The expert noted K’s wish to remain at home and to continue living with his mother and with C.
Further observations
Dr Q raised concerns in relation to the mother’s parenting given how she had responded to the risk of harm to C initially but that it reflected a protective nature towards K as a child with special needs. She noted that if the mother was abused by her stepfather that it were likely to add to her minimising the abuse and risk to C from K.
The expert also noted the father’s inconsistent commitment to his children and that his wife Mrs G had moved interstate, and that she was now trying to have her children live with her. The father and Mrs G now wish to take on the care of all six children, both K and C, Mrs G’s two children from her previous relationship and the father and Mrs G’s two children. She noted that the family report of Mrs G’s family in Tasmania was not favourable to them and suggested that it would helpful to have further information about that assessment.
She would have considerable concerns if the reports that the father had been violent towards K or that the children witnessed sexual activity while in the father’s care were true.
The mother’s failure to appropriately deal with C’s risk of harm by K was noted as a serious issue as a result of the considerable psychological harm caused to C in being removed from the home. The father was highly frustrated with this situation and he said he regretted reported the abuse. The expert noted that he was “angry about his rights being respected as much as concerned about the children’s feelings and needs”, which may raise concerns about his capacity for empathic responsiveness.
Dr Q identified that the father had injured his shoulder several years ago. He needed extensive treatment and he became depressed about his situation and he saw a doctor who prescribed him medication including an antipsychotic and two mood stabilisers. The father said the illness lasted 12 months and that he also saw a psychologist, at the same office, and that both were very helpful. He is still currently on a mood stabiliser and he believed it makes him think clearer as he still has trouble concentrating.
Dr Q stated that although it was difficult to be certain of the father’s past psychiatric problems that he did not present with any apparent psychotic symptom. She also raised concerns as to his proper diagnosis as ADHD, she believed he may show symptoms of a cluster B disturbance but in any event, features of ADHD were not presently an issue. Further, the father denies that he has ever suffered from schizophrenia, despite telling police this in 2002. Also, the mother and stepfather have deposed that the father has never suffered from any mental health problems, but this is contrary to the years of seeing a psychiatrist and in light of the medication he took.
The mother reported that the father was violent to her during their relationship and also violent towards K. The expert’s opinion was that she was concerned that both the father and the stepmother, having violent backgrounds, have to some extent normalised this and therefore do not appreciate the seriousness.
Dr Q was of the view that the information C initially provided to JIRT was quite compelling and that she has partially recanted is also not unusual, especially in light of the perpetrator being a close family member. She noted that C is protective of her family and in particular K, and that she is quite distressed at being separated at them currently. Dr Q was of the view that C’s initial disclosures were likely to be a reliable indicator of what occurred.
The expert specified that with sibling abuse matters reunification of the siblings is often the goal of treatment. She said that the necessary process of therapy required in the meantime would take time and in the meantime they should not spend any time together, except possibly limited and supervised contact. She noted that although K is remorseful and is cooperating with treatment, given his developmental difficulties he may have continual problems with boundaries.
On whether there is a greater risk of harm in either household, the expert concluded that the risk of sexual harm was greater in the maternal household. This was largely due to the fact that the mother failed to react when C disclosed the abuse to her and the historic issues concerns the mother and the stepfather.
Dr Q further identified characteristics of sibling sexual abuse cases. Most notably being that the parents of these children often have a history of similar abuse so that “intergenerational transmission of abusive patterns occurs.”
The expert raised concerns about the stability of the children if they were both to be in the primary care of the father and the stepmother. Further with possibly up to four younger children in the same household as these children, there would be concerns of risk of harm to those younger children if K was to live with them. Concerns were also raised as to C’s role as big sister with young siblings and that it may occur at expense of her own developmental needs.
The mother’s sexual abuse
Dr Q had reference to a historical file of the Department in relation to the mother, Ms Michaels. When the mother was aged 16 she was removed from the care of her mother, Mrs MM and her stepfather, Mr MM. This was as a result of the mother’s compelling allegations of repeated rape and sexual abuse perpetrated by her stepfather. The file noted that the maternal grandmother was aware but was “powerless to stop it” and that the mother was also confident that the stepfather was also sexually abusing her younger sister and other cousins. The mother also made comment that the stepfather’s son, from a prior relationship, was now sexually abusing his own children. The maternal grandmother signed undertakings that the stepfather would leave the family home, and when the matter went before the Court, the mother chose to return home.
The expert noted that the disclosures made to the Department by the mother in relation to her own sexual abuse were quite compelling.
When the mother was questioned about this in the interview alone, she said, “That wasn’t true; it was a very foolish thing I did.” The mother said that she had made it up because she was from a strict family and that her friend who was actually molested at home and who had been removed by the Department enjoyed more freedom, “I thought that would be a good thing, to get away from my strict parents.” The mother confessed to the Department that it was a lie and was able to return home. The mother says that there have never been any difficulties with her stepfather.
The father’s sexual abuse
The father was sexually abused over a period of time when he was seven by a baby sitter. He said that this had not affected him much however it had influenced him in that “he is very protective towards the children and is quite sensitive to issues of child abuse.”
Recommendations
The expert therefore made the following recommendations, in summary:
a)That reunification should be the aim of the children’s treatment.
ii)If reunification of the siblings is the goal of treatment, during the meantime that they do not spend any time together except possibility some limited and supervised contact. However this decision needs to be informed by the children’s respective progress in treatments.
iii)The maternal grandparents are not suitable supervisors.
iv)The mother may be an appropriate supervisor if she is free from being pressured by her parents and is no longer protecting them.
v)The parents will need to have been properly educated and informed about the risks and need for supervision.
b)That the children spend time with their father separately during school holidays. It would be essential that the father has attended a counselling and education program to better understand these issues.
c)The children should continue their appropriate counselling. The mother is also attending counselling and this should continue.
d)The father needs to engage with therapeutic services and also Mrs G so that they can understand the highly complex situation and to be educated on risks and optimal intervention.
The addendum report of Dr Q
Dr Q was asked to provide an addendum report on 2 November 2011 by the Crown Solicitor. The further instructions included a recent affidavit from the caseworker and Dr Q carried out a further interview with C on 3 November 2011.
The caseworker revealed that K had disclosed in counselling that the sexual contact with C involved penetration and occurred on several occasions. It stated that K had made significant progress in that he was able to take responsibility for his actions, but it was estimated that reunification would still be at least a further 12 months away. The affidavit also included that as a result of C having a recent holiday with her father that she expressed a wish for a change of residence to reside with him.
During the interview, C agreed that after the holiday with her father she wanted to live with him, but since then she had changed her mind again. She now wished to see her father regularly, but not to live with him. She had now settled back into Sydney.
C was not attending counselling at this stage; she did not want to talk to anybody. She identified that she felt she was being ‘punished’ rather than assisted, and that she just wanted to go back to her previous routines.
At that time, C felt she was managing adequately and that she was not depressed. She said she was leading a ‘double life’ in that her school friends did not know what happened or that she was no longer living at home. She stated that she was unhappy, as she wasn’t socialising after school or on the weekends with these friends.
Dr Q noted that C felt she could cope at home and that she was confident in K. C does not think that the abuse will occur again, but if it did she says she would be able to deal with it and that she also wouldn’t hide it as she previously had done.
Dr Q’s conclusions in her addendum report are:
a)C did not appear to be depressed or impeded in understanding the situation and her capacity to express her wishes
b)C’s wish to return to live with her father reflected a short term reaction to the sadness of saying goodbye following a holiday. She has since worked through this and prefers to remain in Sydney.
c)C now wishes to live with her mother in Sydney. If choice of residence did not involve relocation, the choice may be more of a dilemma for her. Dr Q recommends a maintenance of the status quo in that moving to live with her father would result in a decrease in contact with her mother and also the upheaval of relocation and a change of schools.
d)Although it is of concern that the sexual activity was more extensive than previously known, it is encouraging to see K’s progress to accepting responsibility.
e)Dr Q maintained her recommendations in her original report that reunification is recommended within a set time frame which is set by the treating persons involved in the family.
The issues for determination
The primary issue in this case is what orders are now in the best interests of the children, given their ages and the relevant issues.
The relevant principles in relation to parenting proceedings are well settled: see Goode & Goode [2006] FamCA 1346. The Full Court in Goode (supra) provided a “framework” as to how applications for parenting orders are to be determined.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) outlines the objects and principles underlying Part VII of the Act.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order, the Court is to have regard to the best interests of the child as the paramount consideration. Section 60CC then outlines the primary (subsection (2)) and additional (subsection (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
The presumption of equal shared parental responsibility
Section 61DA of the Act provides that when making a parenting order, 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.
The presumption does not apply in respect of final proceedings where:
a)there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence [s 61DA(2)];
b)if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
The Independent Children’s Lawyer has identified the previous allegations of domestic violence on the mother by the father have been denied by him. Further that the parties have had significant difficult in reaching an agreement on many issues in relation to the children. The Independent Children’s Lawyer submits that each party should have sole parental responsibility in respect to the child in their respective full time care.
Section 60CC considerations
The primary considerations: S 60CC(2)
Benefit of a meaningful relationship with both parents
In Mazorski & Albright [2007] FamCA 520, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relation or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative (sic) one. Quantitive (sic) concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
The Full Court in McCall & Clark (2009) FLC 93-405, approved the approach of Justice Brown in Mazorski & Albright (supra).
It is clear that C would benefit from having a meaningful relationship with her father. Therefore the question is, can orders be framed to ensure that C can enjoy the benefit of a meaningful relationship with both parents.
The Independent Children’s Lawyer has identified that the high level of conflict and geographical distance between the parents may give rise to some difficulties in maintaining a meaningful relationship, and also the risk of sexual abuse.
The Independent Children’s Lawyer submits that both parents need to be vigilant in respect of any contact that the children have.
According to Dr Q’s 2011 recommendations the children should not spend any time together until they have both been able to progress through the required counselling and therapeutic services. She does note that if they are to have any contact in the meantime that it is to be limited and supervised.
Under the orders sought by the mother, C would still be able to maintain a meaningful relationship with her father via telephone communication, if he were to be open to this. The evidence is that C has tried repeatedly to call her father and he has not answered.
The mother’s evidence is that she speaks regularly over the telephone with K. They were speaking everyday but have reduced the calls to every second day. The maternal grandmother also says that K calls her regularly, at about three times per week.
The need to protect the child from harm
The Magellan report of 28 November 2013 outlines the Department’s view that there is no longer a risk of harm to C by K if they are living separately. The Department noted that following their assessment, when they were previously involved in the proceeding, it was concluded that K and C should not reside together, and that the Department does not currently hold concerns that C is at risk of sexual harm from K. However, they did state that if the two of them were to reside together in the future that there would be a clear risk of sexual harm to C from K.
Additional considerations: S 60CC(3)
Views and maturity of the child
C is now aged 14 and has settled in well to her High School. C appears to understand the issues at play and told Dr Q that she felt she was coping well, despite not continuing with counselling in November 2011.
Presently C has expressed the view that she wishes to remain living with her mother in Sydney. This is as a result of her brother not wanting to leave being with their father in Queensland. As submitted by the Independent Children’s Lawyer her views should be given significant weight.
K will turn 18 in mid 2015 and has been diagnosed with ADHD. Although Dr Q doubted this as the correct diagnosis, he does suffer from some behavioural and development problems.
K expressed strong views in July 2013 when he did not want to return to his mother in Sydney. K “chucked a wobbly” and refused to go to the airport to catch the flight to Sydney, despite the mother rescheduling from the previous day. At this time K was living in a car on the property of his father and he also informed the mother that he had not been taking his ADHD medication since he came to spend time with the father, approximately two weeks earlier.
In light of the children’s respective ages and view that the children have effectively self-placed, the Independent Children’s Lawyer is of the view that the children’s respective views and wishes should be given significant weight. He notes that this is subject to any risk of harm issues relating to unsupervised contact.
Nature of the children’s relationship with their parents and other significant persons
Dr Q identified that C had a strong attachment to the maternal family, including her grandmother and great-grandmother. She made observations that C moved and sat between her mother and grandmother and cuddled up with them as they spoke to the expert. Although there were no issues with C living with her great-grandmother, at that time she wanted to go home.
Dr Q observed that C and the father had a very affectionate reunion and that she was pleased to see him. She also maintained close physical contact with him during the interview. Dr Q noted in her addendum report that C had a good relationship with her father, as she initially wanted to reside with him. Even though she changed her mind, she still wanted to see him regularly.
The Independent Children’s Lawyer submits that C and the father’s relationship is now tenuous given that they have not spent any time together since October 2013.
Since C has been residing in Sydney and going to school, she has been reunited with the extended maternal family, including the mother’s brother and sister and their children. C now regularly sees her cousins and even babysits her cousin’s twin children.
The extent to which each of the parents has failed to take opportunities to communicate with the child
The mother says that since C has been in her care, since October 2013, that C has tried to call her father several times, but he has not answered his phone.
C has not spent any face-to-face time with her father since October 2013.
K came to Sydney at the end of May 2014 and stayed with the maternal grandmother. The mother visited K while C was at school. K and C did not spend any time together.
The capacity and willingness of each of the parents to encourage the children’s relationship with the other parent is problematic.
The likely effects of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person
This consideration is not as relevant given that C began living with the mother in October 2013, because K refused to return to Sydney.
C commenced attending a High School in Sydney in October 2013, and has settled in well. At this school she has made new friends and also rekindled friendships from primary school and also her previous time at that High School.
The Independent Children’s Lawyer was informed by the father by email, as noted above, that “[The child C] has informed me she is happy where she is and that is all that matters to me.” This consideration is thus of no significance.
The practical difficulty or expense of a child spending time with and communicating with a parent
The expense of interstate travel is apparent if each child is to spend time with the non-resident parent. At this stage the prospect of this occurring is a matter of conjecture as the father has failed to engage with C. It is expected that the Mother will continue to spend time with K as arranged between her and the child.
Otherwise regular telephone communication is available to both parents should they wish.
Capacity of each of the child’s parents
Since C has been in the mother’s care, since October 2013, she has shown to be able to provide for C’s physical and emotional needs. It is noted that C has settled in well at school.
The Independent Children’s Lawyer does have some concerns in relation to the father’s ability to adequately provide for K, especially his emotional needs, but the child will be 18 in a few months so this issue is of little significance.
Maturity, sex, lifestyle and background of the children and of either parent
K has some developmental problems and these will need to be further addressed as he moved into adulthood.
Attitude to the child and responsibilities of parenthood
Having regard to the circumstances of this matter, this consideration is of little significance.
Family violence
These parties have been separated for quite some years now and thus this factor has little significant relevance.
Whether it would be preferable to make an order that would least likely lead to the institution of further proceedings in relation to the children
In light of the children’s ages, K is nearly 18 and C almost 15, and the father’s disengagement from the present proceedings; it is unlikely that further proceedings would be commenced. Proceedings could be recommenced however, if either parent felt C was at risk of sexual harm.
The Independent Children’s Lawyer supports the substance of the Orders as sought by the mother, as in her amended initiating application filed on 30 June 2014.
The court is satisfied that the orders sought by the mother are in all of the circumstances in the best interests of the children.
Orders will be made accordingly.
I certify that the preceding one hundred and twenty six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 November 2014.
Legal Associate:
Date: 7 November 2014
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Consent
-
Natural Justice
-
Procedural Fairness
-
Remedies
0
2
1