Miller and Schopenhaur

[2016] FamCA 407

FAMILY COURT OF AUSTRALIA

MILLER & SCHOPENHAUR [2016] FamCA 407

FAMILY LAW – CHILDREN – Parenting order – interim parenting orders – where mother asserts the father poses an unacceptable risk of sexual harm – where father accepts on an interim basis time should be supervised – where family members may be inappropriate supervisors – where briefing or training of family members will ameliorate any difficulties with family members supervising – where greater weight attached s60B than s60CC of the Family Law Act 1975 (Cth) – where father conceded that presumption of equal shared parental responsibility is inappropriate at this stage – where presumption is not applied or rebutted, the Court is at large to consider what arrangements will best promote the child’s best interests having regard to the objects and principles in s 60B and the primary and secondary considerations in s 60CC.

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA(1), 65DAC

Banks & Banks [2015] FamCAFC 36
Goode v Goode (2006) FLC 93-286
Harridge & Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
Mauldera & Orbel (2014) FLC 93-602
N & S & The Separate Representative (1996) FLC 92-655
S v Australian Crime Commission (2005) 144 FCR 431
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Mr Miller

RESPONDENT: Ms Schopenhaur

INDEPENDENT CHILDREN’S LAWYER: Mr Wright

FILE NUMBER: CSC 733 of 2015

DATE DELIVERED: 26 May 2016

PLACE DELIVERED: Townsville

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 28 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Griffith

SOLICITORS FOR THE APPLICANT: Miller Harris

COUNSEL FOR THE RESPONDENT: Mr Victoire

SOLICITORS FOR THE RESPONDENT: Macdonnells Law

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Murray Lyons

ORDERS

Parental responsibility

1. The mother have sole parental responsibility for the children B, born … 2016, C, born … 2010, (“the boys”) and D, born … 2011, (“D”) (collectively, “the children”).

Time with the children

1. The boys will live with the father from the conclusion of school on Thursday until the commencement of school on Monday (or Tuesday if the Monday is a public holiday or a pupil free day) every second week, commencing Thursday 2 June 2016.

2. D will spend time with the father every Sunday from 9:00am until 3:00pm, commencing no earlier than Sunday 5 June 2016, such time to be supervised by two of either Ms E Miller (the paternal grandmother) Ms F Miller (the paternal aunt) or Ms G Miller (the paternal aunt), once the supervisor has completed a training session with Ms H regarding behaviours exhibited by a person who may pose a risk of sexually abusing a child.  In the event that two of those persons are not able to supervise, then supervision is to be undertaken by a person agreeable to the mother, with any costs of such supervisor to be borne by the father.

3. That when the father is spending time with D, other than the two supervisors, he is not to permit more than two other members of his family to also be present at any one time.

4. The children live with the mother at all times other than when they are spending time with or living with the father.

Special occasions

1. On Mother’s Day all the children are to spend time with the mother, if they are not already living or spending time with her, from 9:00am until 5:00pm (unless otherwise agreed).

2. On Father’s Day all the children are to spend time with the father, if they are not already living or spending time with him, from 9:00am until 5:00pm (unless otherwise agreed), with D’s time with the father to be supervised as provided for in these orders.

3. Any changeovers that occur other than at the commencement or conclusion of school, are to occur at the I Town Service Station.

Communication

1. The children will communicate with the father by telephone on the Wednesday and the Sunday in the alternate week, when the boys are not living with the father, with the mother to initiate the Wednesday call to the father’s landline, and the father to initiate the Sunday call to the mother’s mobile, with the call to be initiated between 6:00pm and 6:15pm.

2. The boys will communicate with the mother by telephone on the Friday when they are living with the father, with the father to initiate the call to the mother’s mobile between 6:00pm and 6:15pm.

3. The mother will do all such acts and things necessary to ensure the telephone communication time with the father is devoid of distractions, including but not limited to friends, television, meals and playing in the pool (as recommended by the report writer in paragraph 199 of the Family Report filed 31 March 2016).

4. The mother and father will communicate about the children by way of email, or, in the event of an emergency or when time is critical, by way of text messages.

Specific issues

1. The Independent Children's Lawyer arrange the preparation of a psychiatric report of the mother and the father, noting the commencement under the heading “Future Directions” in the Child Inclusive Conference memorandum dated 15 December 2015 and the recommendation of the Family Report writer at paragraph 194 of the Family Report filed 31 March 2016.

2. Both parents are permitted to be present at the hospital and in the child’s hospital room before and after any of the children have surgery, noting D is likely to undergo surgery before the commencement of the 2017 school year.

3. Each parent shall:

   (a)Keep the other parent informed of all names and address of any and all treating medical or other health practitioners who may be treating the children and authorise those practitioners to provide the other parent with all such information in their possession relevant to the children and failing the provision of any such authority by either parent, this order shall of itself operate as such an authority; and

   (b)Inform the other parent as soon as practicable of any medical condition, significant health issue or significant illness suffered by the children.

4. Both parents are permitted to speak with the children’s doctors, specialists, teachers and allied health providers.

5. Both parents are permitted to receive all academic reports and school newsletters regarding all three children.

6. Neither parent will consume alcohol to a level that is likely to result in a blood alcohol concentration level of greater then .05, when they have the care of any of the children.

7. The father complete either the online Triple P Program or the P5 Program offered by the J Town Neighbourhood Centre.

8. Both parents are to enrol in and complete the Relationships Australia Focus on Kids Program.

9. Both parents are to enrol in and complete the Circle of Security Course offered by the J Town Neighbourhood Centre.

10. Both parents are to refrain from making derogatory remarks about the other parent or their family and, remove the children when another person is making derogatory remarks about the other parent or their family.

Previous court orders

1. Paragraphs 1 and 2 of the court orders dated 16 December 2015 and paragraph 1 of the court orders dated 8 March 2016 are forthwith discharged.

2. Paragraphs 2 and 3 of the court orders dated 8 March 2016 and paragraphs 4, 5, 10 and 14 of the court orders dated 16 December 2015 remain in force.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Miller & Schopenhaur has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC733/2015

Mr Miller

Applicant

And

Ms Schopenhaur

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. These proceedings concern the appropriate interim parenting orders for the parties’ three children, being B born in 2006, and hence presently 10 years of age, C born in 2010, and hence presently 6 years of age, and D born in 2011, and hence presently 4 years of age (“the children”).  In his Further Amended Initiating Application filed 26 April 2016, Mr Miller (“the father”) seeks interim orders that B and C spend time with him from after school on Wednesday until the commencement of school on Monday (or Tuesday if Monday is a public holiday or pupil free day) each alternate week.  He further seeks interim orders that D spend supervised time with him every Sunday from 9:00am until 5:00pm, with such time to be supervised by either his mother, or one of two of his aunts.  He also seeks orders in relation to the children spending time with him on special occasions, noting that any time with D is to be supervised.  Finally he seeks orders in relation to communication with the children when they are not in his care.

2. Whilst Ms Schopenhaur (“the mother”) has not filed a Response to that Further Amended Initiating Application, by her Response filed 10 December 2015 she sought interim orders that the children spend supervised time with the father one day each alternate weekend at the K Town Contact Centre, until such time as the father provides the mother with a psychologist’s or psychiatrist’s report certifying, in their opinion, that the father has the necessary insight not to perpetrate family violence to, or in the presence of, the mother or children.  In that event, the father would commence to spend unsupervised time with the children, initially during day time only, but ultimately extending to alternate weekend time and school holidays.  It is unlikely that in fact remains the mother’s position, because since then, she has raised allegations that the father has sexually abused D, and it would seem as though her position is likely to remain one of requiring supervision of D, although her position in relation to the two boys is less clear.  Certainly before me, she said that she wished the current position, where all children only see the father once a week at a Contact Centre, to continue.

3. The mother justified her orders in relation to D on the basis that the father presents an unacceptable risk of sexual harm to her, which can only be adequately mitigated by strict supervision, and that the father’s family members were inappropriate supervisors as they would be unlikely to be sufficiently vigilant.  Her justification in relation to the two boys was less clear; ultimately it appeared as though the mother contended that a differential interim regime for the boys might adversely impact on D, and that the effect on the mother of the boys spending unsupervised time with the father would be too great and adverse to the children’s interests at this point of time.

4. The Independent Children's Lawyer substantially supported the father’s position, save that he proposed that the time D spends with the father each Sunday be only until 3:00pm, that the boys’ time with the father commence from after school on Thursday, instead of Wednesday, and further wanted a restriction on the number of members of the fathers’ family who can be present during that supervised time, to two or three.  He also proposed that there should be no orders for special occasions such as birthdays, given the level of conflict between the parties.

BACKGROUND FACTS

1. The father was born in 1977, and hence is presently 39 years of age.  The mother was born in 1982, and hence is presently 34 years of age.  The parties commenced their relationship and cohabitation in 2001 and during the course the relationship have resided variously in Far North Queensland, South East Queensland and Central Queensland.

2. Both of the parties have extended family members in the L Town district in Far North Queensland.  The preponderance of the parties time appears to have been spent living in that district as well, and certainly the former matrimonial home is there.

3. B was born with a complex congenital heart condition.  That has necessitated numerous surgical interventions; during the second tranche of surgery, he died in ICU and was resuscitated nine times.

4. C appears to enjoy good health.  However D was also born with a complex congenital heart condition, and required open heart surgery within days of her birth.  She is due to have life threatening surgery again later this year.

5. The parties finally separated on Tuesday 6 October 2015.  They had separated for other periods during the course of the relationship, the longest being 14 months.

6. Since separation the children have lived with the mother, and although initially the parties were able to negotiate the father spending unsupervised time with the children, that rapidly ceased, although there was a brief half hour contact between the father and the boys (not D) on 2 December 2015 at their school. 

7. On 3 December 2015 a temporary domestic violence order was made in the Magistrates Court in which the mother was the aggrieved and the father the respondent.  In her application for that order, the mother detailed a litany of violent conduct by the father towards her over many years, including regular rapes, indecent assaults, and serious physical violence including threats to kill her.

8. On 4 December 2015 the father commenced these proceedings.  On 10 December 2015 the parties first appeared in the Federal Circuit Court, and it was on that occasion that the mother first advised the father that, in addition to the domestic violence allegations, she also asserted that the father had sexually abused D, and that the Child Protection Investigation Unit had undertaken an investigation into that.

9. On 16 December 2015 the Federal Circuit Court made orders for the father to spend supervised time with the children, such supervision to be by an approved supervisor, but not at a Contact Centre.  That arrangement saw the father spend time with the children on 19 December, 27 December and 3 January 2016, but thereafter the mother suspended the supervised time and insisted upon Contact Centre time, on the basis that she did not believe the supervision had been sufficiently vigilant.  The matter returned before the Federal Circuit Court again on 8 March 2016, and a notation to the orders made on that occasion records that the father would commence to spend supervised time with the children at the Contact Centre within 14 days of Saturday 12 March 2016.  That has occurred, and was the situation that prevailed as at the time of the hearing before me.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that 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. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that 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 either 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 family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

1. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

2. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [25] the Court said as follows:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[1]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [1] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

Interim parenting proceedings

1. In Goode & Goode (2006) FLC 93-286 at 80,903 the Full Court set out the way in which an interim parenting application should be determined as follows:

   81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

   82. In an interim case that would involve the following:

   (a)identifying the competing proposals of the parties;

   (b)      identifying the issues in dispute in the interim hearing;

   (c)      identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

THE COMPETING PROPOSALS

1. I have already set out at the commencement of these reasons the parties’ competing proposals.  The fundamental issue between the parties is whether the father’s time with all the children requires supervision, and if so, in what circumstances and by whom, noting that the father concedes that on an interim basis, his time with D will require supervision.

THE ISSUES IN DISPUTE IN THE INTERIM HEARING

1. The main question in dispute is whether or not the father poses such a risk of harm to the two boys, that his time with them requires supervision.  Given that the father accepts that his time on an interim basis with D should be supervised, the issue in relation to that is whether it should be undertaken by a relative, or whether it should be undertaken by a supervisor agreeable to the mother, and if that is not possible, whether it then should occur at a Contact Centre.

THE AGREED OR UNCONTESTED RELEVANT FACTS

1. I have already set out at the commencement of these reasons what I understand to be uncontroversial matters.  The most important uncontested facts are:

   ·That up until separation the children lived with both parents and had a meaningful relationship with both;

   ·Both parties reside in the L Town district, which is some 2 hour’s drive from K Town, and it is at K Town that the closest Contact Centre is available for strictly supervised time;

   ·The K Town Contact Centre is likely to be able to only facilitate supervision of the father’s time for about 2 hours each fortnight;

   ·The father has family members willing to supervise his time for up to 8 hours every Sunday.

2. From the mother’s affidavit material, and a little unusually, the mother apparently concedes that her “desire is that my children are away from [the father] forever.”[2]

   [2]Mother’s affidavit filed 24 December 2015 paragraph 354.

PARENTAL RESPONSIBILITY

1. There are no extant orders in relation to parental responsibility. The father does not, in his interim application, seek any orders in relation to parental responsibility, although the mother seeks sole parental responsibility in her interim orders. In his written outline, counsel for the father conceded that the application of the presumption of equal shared parental responsibility under s 61DA is inappropriate at this stage of the proceedings, given the allegations of domestic violence and sexual assault. I accept that submission, and I am satisfied that the only practical interim order in relation to parental responsibility is that the mother should have sole parental responsibility for all three children.

2. In saying that I am acutely conscious that, in relation to D particularly, critical decisions may need to be made this year.  However it could not possibly be the case that these parties could sensibly jointly negotiate and make decisions in relation to her health, or indeed any issue.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. Given the order I propose to make in relation to parental responsibility, strictly s 65DAA does not require me to consider whether it would be in the children’s best interests and reasonably practicable for them to spend equal time, or if not, then substantial and significant time, with each parent.  I do not in any event do so in this case because in relation to D the father does not seek orders for substantial and significant time, although I accept that what he proposes in relation to the boys would likely qualify as such time.  What I shall do is consider the father’s proposal in relation to those two boys by reference to the children’s best interests, noting that neither party contested that the orders which he proposed be made were not reasonably practicable.

RISK POSED BY THE FATHER

Overview

1. I have already identified that, whilst not conceding he presents any risk of harm to D, the father accepts that until trial, his time with her must be supervised.  The only question is what the nature of that supervision should be, and who should perform it.  As regards the two boys, the father denies that he presents an unacceptable risk of harm to them, such that supervision is required at all.

Risk posed to the boys

1. It is difficult in the extreme to pin down why it is that the mother says that the boys are at any risk of harm in the father’s care.  That is in part because of the vast volume of material in which the mother has set out her various concerns, including a 544 paragraph affidavit filed on 24 December 2015, a 327 paragraph affidavit filed on 15 December 2015 and 1081 paragraph affidavit police filed on her behalf in the domestic violence proceedings.  Unfortunately, frequently that material is poorly cast and constructed, lacks organisation, and is difficult to digest or put into any semblance of order.  It is in the nature of a series of shotgun blasts of allegations, on occasion with some loose temporal link between them, but by no means invariably so.  The fact that the mother’s affidavits in these proceedings were settled by her former solicitor does not appear to have assisted her, or the court.

2. However doing the best that I can, it seems as though the mother has some concerns in relation to one or both of the boys having access to firearms in the father’s possession, the prospect that the father may physically discipline them in an excessive way, and that the boys emulate the father’s behaviour, including using course language and behaving in a somewhat threatening way.  It also appears as though the mother has some concerns about the father’s use of alcohol when the children are in his care, and perhaps marijuana as well. 

3. The father denies that he has acted in any untoward way towards the children, although accepts that he does regularly swear, pointing to the fact that his parents did likewise when he was a young child.

4. However there is no evidence that either of the boys has even been harmed whilst in the father’s care, or that he does not understand the need to be vigilant in relation to the children’s access to firearms.  Any concerns in relation to alcohol or drug use can be accommodated by orders such as those sought by the father at paragraph 4(f) of the proposed minutes of order he handed up.

5. Even taking the mother’s limited allegations in this regard at their highest, there is simply no sound evidentiary basis from which I could conclude that the father poses such a risk of harm to two boys that his time with them needs supervision.  I am not presently satisfied that the father presents an unacceptable risk of harm to them.

D

1. The father concedes that the allegations the mother makes in relation to him having sexually abused D require supervision of his time with her.  Those allegations include that he has permitted the child to manipulate his penis, and that D has disclosed that her father “likes me with my nappy off.[3]”  The mother also says that D has disclosed that she and the father keep secrets[4] and that D misses “my daddy touching me!”[5]  Further D has allegedly demonstrated some concerning sexualised behaviours, for instance playing with her brothers’ penises, and when being encouraged to desist, refusing and saying “I like playing with them and touching it.”[6]

   [3]Mother’s affidavit filed 23 December 2015 paragraph 368.

   [4]For instance ibid paragraph 411.

   [5]Ibid paragraph 430.

   [6]Ibid paragraph 438.

2. True it is that in interview with CPIU officers, D made no disclosures of any such abuse, but in her interview with Ms H, the Family Report writer, D told her that “she did not have a dad; she had a husband.”  This was apparently clarified by the Family Report writer as being innocent, or at least the initial alarm which the writer had appears to have abated by the conclusion of the report.[7]

   [7]Family Report 29 March 2016 paragraph 124.

3. Whilst the evidence does not permit me to conclude that the father is indeed an unacceptable risk of sexual harm to D, I accept that until such time as the allegations are properly investigated before the court, and a more fulsome risk assessment can be undertaken, the court is obliged to act protectively and cautiously.  I am therefore satisfied that the father’s time with D presently requires supervision in order to make it sufficiently safe.

4. I will discuss the nature of the supervision required in due course.

RELEVANT SECTION 60CC FACTORS

1. In discussing the risks which the father poses to the children, I have already traversed one of the two primary considerations, and touched upon some of the additional considerations. Nonetheless by reference to the s 60CC considerations I make the following further observations.

2. So long as they are safe, neither party contended that the children would not benefit from having a meaningful relationship with both parents.  It is plain from Ms H’s observations, that the boys have a strong relationship with their father notwithstanding the mother’s avowed intention to stop them from spending time with him, and her frank concession that she does not shield them from her antipathy and antagonism toward the father.  It likewise appears as though D has a meaningful relationship with both parents.

3. The mother’s exposure of the children to her views of the father apparently causes them some anxiety at the prospect of spending time with him, unless it be with her permission.  Whilst it is too early to say whether this might cause psychological harm to the children, or whether it comprises abuse, neglect or family violence, plainly unless there is some disqualification on the father having a relationship with the children, one means of ensuring of them having a meaningful relationship with him, and to not be unduly influenced by the mother’s views of the father, is to having them spending regular time with him.

4. The two boys, and to a lesser extent D, have expressed views that they wish to spend more time with their father.

5. The children have good relationships with their parents, and their respective sets of grandparents.

6. The mother says that during the relationship the father did not involve himself in family life, but rather spent most of his time operating the family business, and on days off, would go away to pursue his hobbies of shooting and fishing.  The father denies this, and hence I am not able to resolve this dispute at this time.  Plainly however the father is anxious to now maximise the opportunity of spending time with the children, and maintaining his relationship with them.

7. It appears as though the father does not pay any child support.  The reasons for that are not evident before me.

8. There is little evidence as to the likely effect of the children not having a relationship with their father, but I am satisfied that in a broad sense it is likely to be detrimental to them.  The children’s reactions to leaving the father at the time of Family Report interviews was described even by Mr H as “heart wrenching to witness children so distraught and inconsolable.[8]”  She went on to say “from the writer’s perspective, the children are grieving for their father.”

   [8]Family Report paragraph 185.

9. There is a practical difficulty in relation to Contact Centre supervision, in that it requires both parties to travel for two hours from the L Town area to K Town, in order that the father can spend no more than two hours with the children.  That plainly substantially effects the children’s right to maintain personal relations with their father on a regular basis.  There is expense involved in having paid supervisors undertake supervision of the father’s time closer to where the father resides.  In this respect the supervisors proposed by the mother will apparently charge $50.00 per hour to undertake that work, which if I were to accede to the father’s desire for eight hours of time each Sunday with D, would see the cost of contact at $400.00 per week.  The father conducts a business doing contract slashing and mowing in the L Town district, and whilst it appears as though that business is profitable, there is no suggestion on the material that the father could afford something in the order of $20,000.00 per year for supervision costs.

10. Each of the parties assert that the other has diminished capacity to provide for the needs of the children, but that is not a matter that I can make any conclusions on at this point.

11. There appear to be some unusual aspects of the parties’ lifestyle, including frequent nudity, but at this point the relevance and significance of that is unclear.

12. The mother has made an extraordinary swathe of allegations of family violence against the father.  The father denies them entirely, and says that it was the mother who was regularly violent to him.  I cannot make any conclusions in relation to those allegations at this point in time.

13. An interim family violence order has applied, however when those prosecuting the domestic violence proceedings on behalf of the mother were confronted with data produced pursuant to subpoena, they discontinued them on the basis that the father also withdrew his application against the mother.  It is difficult on an interim basis to draw any findings from the fact that the police did not press the mother’s application, but plainly this is a matter which will need to be further investigated at trial.

14. There is another matter that is relevant here, and that is the mother’s assertion that she would be adversely affected by the prospect of the two boys spending unsupervised time with the father.  That is not directly said by her in any affidavit, but I infer that the mother would indeed suffer some distress.  I am not presently able to conclude that would, however, adversely impact upon her parenting capacity of the children in any material or substantial way.

SUPERVISION OF TIME

1. I am not satisfied that the father’s time with the two boys requires supervision, or that the prospect of them spending unsupervised time with the father would in any material or substantial way impair the mother’s parenting capacity.  Moreover, I am not satisfied that allowing the boys to spend more (and unsupervised) time with the father than D, would adversely affect her to any substantial degree.  On the other hand, both boys are plainly missing their father and the benefits which their experience of him afford them, and I am satisfied that they are grieving for him.  Moreover, two hours per fortnight in a Contact Centre is clearly insufficient for these two children: it is conceded that they are country children used to doing outdoor things with their father, such as fishing and riding motor cycles.  Contact Centre time is wholly inadequate, and I am well satisfied that the amount of time which the Independent Children's Lawyer proposes is adequate to allow the boys to restore their relationship with him, and for them to derive significant benefits from it.

2. I prefer the Independent Children's Lawyer’s position, namely that the boys’ time with the father commence on Thursday rather than Wednesday afternoon, as recommended by the Family Report writer.  I do so because otherwise there would be merit in the argument raised by the mother that five nights per fortnight would require some incremental progression from the current situation; as it is, the four nights proposed by the Independent Children's Lawyer really is only 3 days, and I am not persuaded any incremental progression to that level is warranted.

3. There will therefore be orders in relation to the two boys in terms as sought by the Independent Children's Lawyer.

4. That then only leaves the question of supervision of D.  The father seeks eight hours of time each Sunday with her, to be supervised by family members.  The Independent Children's Lawyer does not oppose family members, but suggests a period of six hours.  The mother opposes family members and has suggested two supervisors, albeit that she did not apparently forewarn them that the amount of time they may need to spend undertaking that task would be up to eight hours (they appeared to think it was only for a couple of hours).  Whether they are willing to supervise for more than 2 hours at a time is unclear.

5. It may be taken that, generally speaking, it is undesirable to have family members supervising, particularly so when those family members have already filed affidavits in support of the father.  That is because if they do not believe the allegations made by the mother, then they may not have the necessary level of vigilance, despite their best intentions.

6. Ultimately I am satisfied that the father should be able to spend regular time with D, and that the period of six hours as preferred by the Independent Children's Lawyer is indeed appropriate.  I am further satisfied that it should be on a weekly basis, so as to maintain regular and meaningful time between the father and D.

7. The only question then is who should supervise it.  If it is to be a paid independent supervisor, then it will cost the father something in the order of $300.00 per week.  The mother does not offer to make any contribution towards that cost.  That would be a substantial impost upon the father’s financial circumstances, and may practically preclude the full six hours being enjoyed, or it being enjoyed on a weekly basis.

8. There are of course inevitable difficulties with family members supervising as I have discussed above.  However in my view that can be, to a sufficient degree, ameliorated by firstly, them being briefed or trained by Ms H as to how to supervise the father, and secondly, requiring there to be more than one family member simultaneously undertaking supervision of the father’s time.  I am therefore satisfied that, whilst there should be an order permitting supervision of the father’s time to be undertaken by his mother or one of his two aunts, that supervision should be undertaken by two of those persons at any given time, and only after they have been appropriately trained.  In the event that the father cannot arrange for two of those supervisors to be present, then he will have to arrange paid supervision by one of the persons identified by the mother.

CONCLUSION

1. For these reasons there will be orders as sought by the Independent Children's Lawyer in relation to the father spending time and communicating with the two boys, and there will be orders permitting the father to spend from 9:00am until 3:00pm each Sunday with D, such time to be supervised by two persons, being either his mother, or either of his two identified aunts, or if that cannot be arranged, by one paid supervisor who the mother agrees is suitable.

2. Otherwise there will be orders as proposed by the Independent Children's Lawyer during his submissions, as set out at the commencement of this judgment.      

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 May 2016.

Associate: 

Date:  26 May 2016