MOSS & MASON

[2016] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOSS & MASON [2016] FCCA 2380

Catchwords:
FAMILY LAW – Parenting – children not spent time with father for 5 years – mother’s genuine but unfounded fears of harm to children from father’s brother – orders to facilitate reunification.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Applicant: MR MOSS

Respondent: MS MASON

File Number: ADC 2149 of 2010

Judgment of: Judge Young

Hearing dates: 21 & 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Darwin

Delivered on: 12 September 2016

REPRESENTATION

Counsel for the Applicant: Mr Freer

Solicitors for the Applicant: Affordable Family Lawyers

Counsel for the Respondent: Mr Lewis

Solicitors for the Respondent:	Adelaide Family Law
Counsel for the Independent Children's Lawyer:	Ms Lee
Solicitors for the Independent Children's Lawyer:	Legal Services Commission of South Australia

ORDERS (As amended)

1. That all previous orders be discharged.

2. That the mother have sole parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2007 but subject to the following conditions:

   (a)That she inform the father regarding any issues concerning the children’s welfare including education and medical treatments;

   (b)That the father be at liberty to obtain reports from the children’s school and from their medical and health practitioners.

3. That the said children live with the mother.

4. That the father is restrained and an injunction is granted restraining him from bringing the children into contact with his brother Mr J.

5. That the father’s time with the children is conditional upon his compliance with the injunction in paragraph 4 above.

6. The children are to spend time with the father under the supervision of a qualified therapist as may be recommended by the Independent Children's Lawyer with such therapist to be at first instance Ms B but in the alternative a therapist who specialises in reunification therapy at NADA.

7. That the father is to spend times on such terms and conditions as recommended by the said therapist.

8. That the father is to bear the cost of the therapist and for the travel of the mother and the children from (omitted) to Adelaide for the purposes of the children’s attendance upon the therapist.

9. That the mother is to forthwith obtain a GP Medicare mental health plan for the children should that assist with the cost of therapy.

10. That after 6 months the Independent Children's Lawyer do obtain a report from the said therapist which shall outline the following:

    (a)The parties’ attendance upon therapy;

    (b)The children’s interactions with the father;

    (c)Whether the therapist approves the children moving onto unsupervised time; and

    (d)With such report to be provided to both parties.

11. That subject to the said therapist’s approval the children are to spend time with the father as follows:

    (a)For a period of 2 hours at (omitted) each Sunday from 1.00pm to 3.00pm for a period of 6 weeks;

    (b)For a period of 4 hours at (omitted) each Sunday from 11.00am to 3.00pm for a period of 6 weeks; and

    (c)For a period of 6 hours at (omitted) each Sunday from 11.00am to 5.00pm for a period of 12 weeks.

12. At the conclusion of this time the children are to spend overnight time with the father on alternate fortnights from Friday afterschool to 5.00pm Sunday.

13. That should the children start spending overnight time with the father that they should also spend half of the school term holidays with the father as agreed between the parties but in default of agreement from the conclusion of school on the last day of term until 5.00pm on the Saturday falling midway through the holiday period.

14. That should the children spend overnight time with the father then they shall spend time with the father during the Christmas school holidays with the father having the first 3 weeks in each odd-numbered year and the second 3 weeks in each even-numbered year after the father commences overnight time with the children.

15. In relation to Christmas, being the period of 24 December to 26 December in each year, should the children be spending overnight time with the father, paragraph 14 above be suspended and in lieu thereof:

    (a)The children spend time with the mother:

    (i)From 5.00pm on 24 December until 5.00pm on 25 December in each even-number year;

    (ii)From 5.00pm on 25 December until 5.00pm on 26 December in each odd-numbered year

    (b)The children spend time with the father:

    (i)From 5.00pm on 25 December until 5.00pm on 26 December in each even-number year;

    (ii)From 5.00pm on 24 December until 5.00pm on 25 December in each odd-numbered year

16. That all handovers are to take place at the (omitted) Police Station unless otherwise agreed in writing between the parties.

17. The parties are to communicate via SMS or email in non-urgent cases.

18. That the parties are restrained and injunctions are hereby granted restraining each of them from the following:

    (a)Denigrating the other party in the presence of the children or allowing anybody else from doing so;

    (b)Discussing these proceedings with the said children or allowing anybody else from doing so; and

    (c)Physically disciplining the children or allowing anybody else from doing so.

19. That the mother be restrained and injunctions are hereby granted restraining her from employing a private investigator to keep the father under surveillance.

20. That upon the children commencing overnight time with the father the appointment of the Independent Children's Lawyer be discharged and in the event that there is no recommendation by the therapist for the children to spend no overnight time, the Independent Children's Lawyer will be automatically discharged upon that recommendation.

21. That all extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2149 of 2010

MR MOSS

Applicant

And

MS MASON

Respondent

REASONS FOR JUDGMENT

1. This is a parenting case about 2 boys, X and Y, who are 10 and 9 years old respectively (“the children”). The children currently live with their mother and do not spend any time with their father. They have not spent time with their father for almost 5 years because of the mother’s refusal to allow them to spend time with their father.

2. The father is 41 years old. The mother is 48 years old. They began to live together in 2003 and separated in about September 2008. The mother facilitated the children spending time with their father after separation for about three years until about September 2011. During this time the children spent time with their father at the former matrimonial home. The children did not spend overnight time with their father but the mother was content throughout this period to allow the children to spend unsupervised time with the father at her home. It appears that she was often absent socialising and was content to leave the children in their father’s care.

3. In about September 2011 the mother made a unilateral decision to stop the children spending time with their father. The background to this decision is complex although the precipitating event or events, allegations against the father’s fraternal twin brother appears at least in broad outline, to be straightforward.

4. The mother has 6 older children by other fathers. Those children are Ms T, Ms K and Mr N aged 29, 27 and 24 years respectively, whose father is a Mr H, Mr A, age 22 years, whose father is a Mr B, A, aged 17 years, whose father is a Mr W and B, aged 15 years, whose father is a Mr M.

5. The mother alleges that the father’s brother, Mr J, sexually assaulted B when she was 20 months old. She said that on one occasion she and the father returned from a walk after leaving the children supervised by Mr J. The mother said that she noticed that the child’s vagina was red or inflamed and concluded that Mr J was responsible. She made no report to the police although the father acknowledges that the mother raised her suspicions with him at the time. The mother further alleges that when B was about three years old she became upset when being bathed and indicated fear of being touched on the genitals. The mother concluded that Mr J was again responsible. No report was made to police. Thereafter the mother insisted that Mr J spend no time with the children or at least no time without her or the father being present. The allegations concerning B appear to have been investigated at a later stage following a mandatory report by a psychologist following a consultation with B when she was 6 years old. According to the mother’s trial affidavit the police investigated but B was “very nervous and… did not provide any useful information. She did not even admit she had an uncle named Mr J”.  

6. The mother annexed to her trial affidavit notes made by Department of Families and Communities staff. It appears that the notes made on 11 April 2006 are the first indication of the mother making a formal complaint about Mr J. It appears that there was an interview of the child by the child welfare authorities and it was concluded that there were “no grounds for intervention”. The child was interviewed by a psychologist in February 2007. A note of a telephone call between child welfare authorities and the psychologist is the only evidence of B making an allegation against Mr J. The note seems to indicate that the child disclosed abuse by Mr J. I say “seems” because the name of the alleged abuser has been redacted from the file note. Nevertheless, I infer that the reference is to Mr J. No detail of the alleged abuse is included in the file note. The note said that the “child wasn’t drastically emotional when telling him [the psychologist] about the incident” and he felt that it had not been a “huge impact on her”. He, the psychologist, had asked if it had “hurt” when the abuser had done this and she said “no”. The psychologist said he presumed there was “no penetration”. No further detail is provided but at this point the child would have been almost 6 years old. It is not stated in the note when these events are said to have taken place. If they took place when the mother alleges then the child would referring to matters occurring when she was 3 years old at the latest. The note also indicated that, according to the psychologist, the mother had “tried to ‘take over’” and would “try to sit in on sessions and has very strong views”. As noted above, according to the mother the police subsequently interviewed the child and decided not to pursue the matter. The psychologist was not called by the mother. This is the full extent of the evidence adduced against Mr J. In my view it does not provide a basis for making any finding against him.

7. A few months later, on 10 September 2007, a report was made to police that B was the victim of sexual assault by her half-brother Mr A. The report was specific and involved an allegation that Mr A, who was then 13 years old, had sexually penetrated B on at least two occasions and performed cunnilingus on her on at least one occasion. She was then 6 ½ years old. The dates of the alleged offences were not specified but the police records state that offences took place between 1 January 2004 and 23 September 2007 (this last date is after the report). Mr A was charged with rape as a result. The police referred the matter to Families SA. The police records state that the mother completely denied any wrongdoing by Mr A and refused to assist in any way. The police records say that the mother refused to put in place a protection plan for B. In December 2007 Mr A, in the company of his mother, made detailed admissions. The police records indicate some doubts about Mr A’s mental capacity. He does not appear to have been prosecuted and the police records are silent about how the matter was ultimately resolved.

8. The father is very close to his twin brother. He does not believe, and has never believed, the allegations against his brother. Although there is little in the way of evidence to support the allegations against Mr J the father agrees that the mother genuinely believes in their truth. The mother made another allegation against Mr J. She claimed that it had been reported to her by her friend “Mr S” that Mr J had been discovered sexually assaulting “Mr S’s” grandson in 2003. The mother did not call “Mr S” or provide any evidence to support her claim and offered no explanation for her failure to do so[1]. In short, there is no evidence to support this claim against Mr J. The only evidence that Mr J sexually assaulted B is the second hand hearsay note of a conversation with a psychologist recounting in very general terms what was said to him by the child. As noted above the mother says that during a police forensic interview the child disclosed nothing at all against Mr J.  

   [1] There was no indication to the court of any available material providing a reasonable ground for this allegation: cf Australian Solicitor’s Conduct Rules 21.3.

9. The mother says that she does not want Mr J spending any time with the children and professes to believe he is a risk to them. The father’s case was that, notwithstanding his disbelief in the allegations, he will ensure that the children are not brought into contact with Mr J.  

10. The mother made numerous serious allegations against the father too. She alleges the father was physically violent to her, raped her regularly causing injuries, mistreated her son Mr N and did not pay child support. She also insinuated that the father had a sexual interest in one of the children, X. 

11. The mother alleges the father was physically violent. There are 2 specific instances referred to in her trial affidavit. She says that during an argument the father pushed her to the ground when she was pregnant. She does not say when this happened. She also says he pushed her to the ground in 2007 shortly after separation (in fact separation was in 2008). She says she was holding Y in her arms at the time. The father admitted that there was violence during the relationship. He said this usually consisted of pushing and shoving. He said on occasions both parties were responsible. The father also admitted to violence in the form of punching walls in the former matrimonial home when he was feeling angry and frustrated during arguments with the mother. I find the children were likely exposed to some level of family violence as a result of these matters.

12. The mother also alleged that the father repeatedly raped her. She said the father “raped me quite a few times”. She did not provide any evidence about when these alleged rapes occurred. She said that she showed a friend the bruises she received on one of these occasions. The “friend” was not identified or called to give evidence and no explanation was given for the failure to call the “friend”. The mother said that she did not report any of these occasions of rape to the police because she had no faith in the police after their failure to act in relation to the complaint against Mr J concerning B. I have some difficulty accepting that explanation. The time line is somewhat unclear but the mother first complained to the child welfare authorities in 2006 about Mr J. The child was interviewed by a psychologist in February 2007. The mother does not say when the child was interviewed by police but it would not appear to have been before this time. As mentioned the child apparently made no disclosures to police concerning Mr J. The parties separated in September 2008. I do not accept that the alleged inaction of the police in 2007 was an explanation for the mother’s failure to report multiple alleged rapes during the marriage. Given my misgivings about the mother’s general credibility I do not accept her evidence on this point as true.

13. The mother made other allegations against the father. She said he threw a chainsaw at the child A on one or more occasions at some unspecified time. The father denied doing so but said he injured himself while using a chainsaw on one occasion and threw the chainsaw down. The mother alleged that the father used excessively harsh discipline on the children. The father admitted that on one occasion he had smacked X “hard” after he threw an object at Y’s head. The father conceded that as X was no more than 4 years old at the time that his response was inappropriate.  The mother alleged that the father and Mr J held Mr N, who was then about 8 years old, by the legs over a toilet bowl as “discipline”. The father admitted that this incident occurred but was horseplay rather than discipline. He conceded that it was inappropriate. The mother also alleged, supported by an affidavit from Mr N, that the father dressed Mr N in a dress when he was about 10 or 12 years old “as a joke” and took a photograph. Notwithstanding her initial description she went on to characterise this as “abuse”. The father admitted this incident occurred. He claimed the mother was present and that the mother had actually taken the photograph. The affidavit from Mr N refers to this incident and said he was “extremely upset” at the time. The photograph is annexed to his affidavit. He does not appear distressed in the photograph and appears to be smiling.

14. In general terms, I found the father to be a credible witness who was prepared to make appropriate concessions.

15. Mr N also alleged that he had witnessed the father being violent towards the mother “on many occasions”. Beyond this bald allegation the affidavit provides no more detail of the allegations. On one occasion he said that the father pushed him up against the garage roller door and threatened to punch him. When Mr N was a young adult, around 19 or 20 years old, he was charged with assaulting his girlfriend. He moved out of home and lived with the father and Mr J for about 12 months. The father apparently agreed to provide surety for his bail. He said he left the father’s home because he formed a suspicion that the father had a relationship with his, Mr N’s, former partner. Mr N was not required for cross-examination. Notwithstanding this I feel some misgivings about Mr N’s evidence. His decision to live with the father and Mr J for a year appears to me to be inconsistent with his portrayal of the father as a violent bully and suggests that, at least until he began to suspect a relationship between the father and his former partner, he had a good relationship with the father and Mr J.  

16. These misgivings were reinforced by information in the Family Report that Mr N and the father had continued to communicate with each other. This was revealed by the Family Consultant to the mother during an interview. The mother responded, at the Family Consultant’s rooms, by telephoning Mr N and, according to the Family Consultant who heard the conversation through a wall, berating him in an angry, loud and intimidating manner. More concerning, the Family Consultant was interviewing X at the time and she observed that he heard the conversation and became alert and hypervigilant. She hypothesized that this compounded his evident nervousness in responding openly about his thoughts and feelings to the Family Consultant.  

17. The mother’s allegation that the father did not pay child support was false. The father’s affidavit claimed that he paid child support in the sum of $103 a week and was not in arrears. Although the father was not cross-examined on this claim I asked counsel for the mother if this was denied. It was not.

18. The insinuation that the father had a sexual interest in X is contained in the mother’s trial affidavit. The mother alleges that in about 2007 she found X and the father in another child’s bedroom. X would have been about 2 years old at the time. The father said, according to the mother, that they were cleaning up the room. The mother said she was suspicious because the father did not normally clean up. She said she could hear the father’s heart thumping as he walked past her out of the room. There is nothing more alleged. The allegation is not made squarely but is insinuated. The father was not cross-examined about this.

1. The author of the Family Report examined the Families SA file and referred to an incident in 2008 when the mother claimed that the father perpetrated sexual abuse against the children. The report noted that these claims coincided with a “temporary split” between the parties and that a short time after their reunification “the mother said that she was just upset at [the father] and she did not believe there was any abuse”. It was reported that the mother was upset that the father had left her and the children and it appeared that it was a “malicious complaint”.

2. There was other material that indicated the mother has a tendency to angry vindictiveness. The police records of the parties were produced under subpoena. The father had some convictions for minor traffic offences and nothing more. In 1992 the mother was convicted of common assault. In 1999 she was convicted of common assault and hindering  police. The mother assaulted a child at school by kicking the child in the shin. In cross-examination the mother asserted that the child had been bullying her daughter. She expressed no remorse and blamed the school authorities for failing to take action. The hindering police offence arose because the mother threatened a police officer with a kitchen knife at the time she was interviewed at her home following the incident at school. In 2000 the mother was convicted of disorderly behaviour and fined $100. She swerved her car at the victim, who was a pedestrian and later stopped and abused the victim. In 2002 the mother was interviewed by police after sending an abusive letter to her daughter who was then 13 years old. The daughter is not identified in the police report but may have been Ms K. The police report said that the child was then in the care of Family and Youth Services following an assault on her by her mother. According to the police report the assault consisted of the mother hitting the child on the left ear with a piece of wood. In cross-examination the mother professed to know nothing of this incident and not to know which daughter was involved. In 2005 the police were called to a domestic incident between the mother and the father. The report said that the father had thrown a drawer on the bed breaking it and then pushed past the mother. At the time of the police arrival the mother appeared to be the antagonist and was “continually baiting [the father]”.

3. As noted above, on 10 September 2007 a report was made to police about B. Initially at least, according to the police records, the mother completely denied any wrongdoing by Mr A and refused to assist police in any way although she did accompany Mr A later when admissions were made by him.

4. In 2009 the police records state that the mother made threats against a 12-year-old boy who had allegedly punched her son Mr N earlier in the day. The mother was warned by police. The victim’s family did not wish to pursue the matter. In 2012 the mother attended the school of one of her children after receiving an automated text from the school stating that the child had not arrived. The mother attended at the school, abused the receptionist and created a disturbance. When asked where the child was she replied “I killed him”. The police were called and ascertained that the child was safe. The mother admitted the substance of this incident in cross-examination and blamed the school authorities for sending a text and claimed that her anger was justified because the school should not have sent a text which she considered “impersonal” but ought to have made a telephone call to her.

5. The mother was not a credible witness. Her answers were often unreliable, evasive and self-justifying. Her conduct appeared to show a strong tendency to vindictive anger. She appeared to have little insight into the effect of her behaviour on others, including her children.

6. The mother was cross-examined about the reasons she stopped the children spending time with the father in 2011. The mother’s initial answer was that she stopped the time because she was entering hospital for a gallbladder operation. She then said that she had heard that Mr J had “threatened” her daughter Ms T. The evidence about this was unsatisfactory but the Family Report recorded that Mr J had said to Ms T “I’m going to kill you”. In evidence it was asserted that this followed Mr J lodging a complaint with the authorities because he believed Ms T, who was employed by a (employer omitted) with access to vehicle registration and address details, had improperly accessed those details. The mother did not allege that the father was directly involved in this incident.

7. When the inconsistency of her position was pointed out to her in cross-examination she asserted that the father was involved and “had something to do with it”. She was, however, unable to point to any wrongdoing or involvement by the father. Questioned further about whether this was a proper basis for stopping the children seeing the father the mother alleged that the reason was that the father had raped her “repeatedly”. Even on the mother’s evidence she had permitted the father to see the children for three years after separation in 2008 so I reject that claim. I find that the reason the mother stopped the children spending time with the father was because of her anger at Mr J and she decided that she would take that out on the father. I am satisfied that the mother places no value on the children having a meaningful relationship with their father. None of her children have any relationship with their respective fathers. The mother was generally dismissive of them as violent, drug users or otherwise deficient. The mother herself was placed in the care of child welfare authorities between the age of 8 and 18 years. It appears likely that she does not have any positive memories of a father figure.

8. Notwithstanding the mother’s hostility to the father she told the court that she would comply with orders if orders were made that the children spend time with the father.

9. Criticism was made of the father for not commencing proceedings sooner. The father said that he could not afford to commence proceedings. Nevertheless, on at least four occasions he sought mediation with the mother about the issue. The mother dismissed these attempts at mediation. The father eventually commenced proceedings in July 2014.

The Family Report

1. The Family Report is replete with the mother’s allegations against the father including the allegations referred to about and, in addition, that he was a sexual deviant, a “user and a schemer” and generally unfit. She alleged she had found him apparently masturbating her dog (an allegation not contained in her trial affidavit) and was a drug user. The father denied these allegations. He admitted to smoking cannabis when he was younger but said he no longer smoked. He asserted the mother was a compulsive liar and was controlling and emotionally abusive.

2. The family consultant interviewed both children. X was a shy and nervous child. He avoided responding to questions in detail. He had a large cut or scab on the bridge of his nose which, according to the family consultant, appeared recent. X denied recalling how it occurred. Asked about family violence X said he had witnessed Ms K punching the mother. He had no recollection of his parents prior to separation but remembered his father bringing presents to him after separation. X said he had only positive memories of his father. He had no memory of Mr J. X wanted to see his father but did not think his mother would support that which made him “sad”.

3. Y was a quietly spoken child. He also had witnessed Ms K assaulting the mother. He had no recollection of his parents prior to separation. His opinion of his father, based on what his mother had said, was that he was “not that great”. According to him his mother had told him that the father “smashed X in the face really hard 10 times” and that the father had “tried to cut someone in our family’s head”. Neither of these allegations was made by the mother in the trial. Y also said that his mother had told him that the father had “dumped Mr N’s head down the toilet”. 

4. Y said that he did not want to see his father. He had been told by A that his father had only “baby toys”. He said that when he and his brother fought the mother threatened to send them to the father which made him feel scared.

5. The family consultant also interviewed A and B. A appeared “sad” to the family consultant and potentially depressed. He described the father as “abusive”. He said the father had hit him across the face “really hard”. He also described an incident where the father pinned him against a roller door and threatened to punch him. Curiously, this allegation is in almost identical terms to an allegation made by Mr N against the father.

6. B stated that Mr J had sexually abused her as a child and expressed a fear that the father and Mr J may sexually abuse the children.

7. The mother refused to permit observation of the father and the children, stating to the family consultant that it was “not a reunification case”. She said that her lawyer fully supported her position.

8. While I find that the children have been exposed to family violence during the relationship of the parties, I am satisfied that the father does not constitute a risk to them. I am not satisfied that the children have not been and will not be exposed to family violence in the mother’s household.

9. I do not accept the mother’s allegations that the father is a sexual deviant or drug user.

10. The family consultant accepted that the father genuinely wishes to reconnect with the children but had concerns about his degree of insight into the difficulties involved.

11. The family consultant expressed the opinion that if there was substance in the claim against Mr J, the father’s refusal to accept the claim would indicate that the father had put his interests before those of his children. The allegation has been investigated by police and not pursued. I am satisfied that there is no reliable evidence that Mr J sexually abused B. Nevertheless, the father accepts that the mother’s beliefs about Mr J are genuine and will agree to an injunction that he will not permit the children to come into contact with Mr J.

12. The family consultant considered that the mother’s anxiety about the children spending time with the father and her concerns about Mr J, in particular, would place a considerable strain on her. She thought this may in turn affect the children’s “sense of safety and well-being” and there was a risk to them from further exposure to conflict.

13. She observed, and I agree, that there is no significant independent evidence that the children are at risk of physical or sexual abuse in their father’s care. In principle, she saw no reason not to start supervised contact but doubted whether that would be viable given that she would expect the process to be undermined by the mother’s anxiety. Her report recommended that the mother have sole parental responsibility and that there be no order for the children to spend time with the father. She also recommended that the mother be restrained from employing a private detective to investigate the father. Apparently the mother had indicated an intention to do so to the family consultant.

14. In evidence, the family consultant altered her position significantly about the children spending time with their father. When advised that the mother had given evidence that she would comply with court orders for the children to spend time with the father should such orders be made the family consultant indicated some surprise. She said that she considered this an important change of position by the mother and considered, on that basis, that there should be an order for time under strict conditions directed towards attempting a reunification.

15. Counsel for the mother emphasised that the mother’s fears about the children being subjected to family violence at the hands of the father were genuine. She submitted that the mother’s anxiety would be likely to affect her caregiving capacity. While I accept that the mother’s concerns about Mr J are likely to be genuine I am not satisfied that the mother’s fears that the children will be harmed by the father are of the same nature. I consider that many of the mother’s allegations against the father are motivated by an irrational sense of anger and resentment. Some of her allegations were plainly false. I am sceptical about the genuineness of her belief in most of her allegations against the father.

16. Counsel for the father emphasised the weakness of the evidence against Mr J, a submission I accept but said that the father would agree that the children not have any contact with him. It was submitted that this was recognition of the mother’s anxiety and a genuine attempt to address it.

17. Counsel for the independent children’s lawyer acknowledged that there were question marks about the viability of any reunification. Nevertheless, she said that there was no evidence that the father brought the children into contact with Mr J after separation and that the father had respected the mother’s prohibition on such contact from that time. I accept that submission.

18. Counsel for the independent children’s lawyer pointed to the concessions by the father about family violence including that he had admitted punching walls and admitted to pushing and shoving the mother. She pointed to a Families SA report raising concerns about excessive discipline by both parents. That information predated separation in 2008. She pointed out that the evidence indicated that the mother and father had continued communication after separation and that that communication had taken place as recently as April 2016. She pointed out there was no evidence of any ongoing violence.

19. The independent children’s lawyer, reflecting the recommendations of the family consultant, supported a reunification attempt extending over about one year. Her specific submission was as follows:

    (1)The mother should have sole parental responsibility but subject to a condition that she inform the father of any major issues concerning the children’s welfare including education and medical treatment and that the father be at liberty to obtain reports from the children’s school and from their medical and health practitioners.

    (2)The children are to spend time with the father under supervision of a qualified therapist such as may be recommended by the independent children’s lawyer (Ms B was recommended by the family consultant) and on such terms and conditions as is recommended by such therapist.

    (3)The father is to bear the cost of the therapist and of travel for the mother and children from (omitted) to Adelaide.

    (4)After six months the independent children’s lawyer is to obtain a report from the therapist and, subject to the therapist’s approval, the children are to spend time with the father as follows:

    (a)For a period of two hours at (omitted) each Sunday from 1.00pm to 3.00pm for a period of six weeks.

    (b)For a period of four hours at (omitted) each Sunday from 11.00am to 3.00pm for a period of six weeks.

    (c)For a period of six hours at (omitted) each Sunday from 11.00am to 5.00pm for a period of 12 weeks.

    (5)At the end of this period the children spend overnight with the father at his home on alternate fortnights from Friday after school to Sunday.

    (6)The children should spend holiday time with the father.

    (7)Handovers to take place at (omitted) Police Station.

    (8)The parties to communicate by SMS or e-mail in non-urgent cases.

    (9)Injunctive orders concerning non-denigration, against physical discipline and preventing the mother employing a private investigator.

The legislative pathway

1. I have reached the general factual conclusions set out above. The Family Law Act 1975 requires me to follow a decision making pathway and, against the background of the general conclusions set out above, I set out my conclusions along that pathway below.

The child’s best interests

1. According to section 60CC(2) of the Family Law Act1975, in determining what is in the child’s best interests, the primary considerations are:

   (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   I am satisfied that the children will benefit from a meaningful relationship with their father and that it is in their best interests that an attempt be made to foster such a relationship notwithstanding the risks described above.

2. Although I have made findings that the children were exposed to family violence during their parent’s relationship there is no evidence of family violence between the parties since separation in 2008. I am satisfied that the children are not at risk of harm in their father’s care. I am not satisfied that there is a real risk of harm to the children from the mother’s parenting capacity being diminished because of her anxiety about the children spending time with the father. I am satisfied that the mother’s genuine fears about Mr J can be addressed by an injunction preventing the father from bringing the children into contact with him.

3. According to section 60CC(3) the court must consider additional factors. I have set these out below with my conclusions about those factors.

Section 60CC(3)(a) – any views expressed by the child.

1. The child X expressed a wish to see his father based on positive memories of him. Y did not wish to see his father but I am satisfied those views are reflective of views expressed to Y by others rather than his own genuinely held views.

Section 60CC(3)(b) – the nature of the child’s relationship with the child’s parents and other persons (including grandparent or other relative of the child).

1. The children appear to have a solid relationship with their mother. Nevertheless, I have doubts about whether the mother has been able to place the interests of the children before her own. The children’s relationship with their father has been interrupted by the mother as a result of her hostility to the father and Mr J and in important respects I find her hostility to the father has been irrational and detrimental to the children’s best interests.  

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i)    to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and to communicate with the child.

1. The mother has taken responsibility for decisions about major long-term issues in relation to the children since separation. The father has been prevented from spending time with and communicating with the children since 2011. In my view, it is impractical to expect the parents to cooperate in long-term decision-making about the children.

2. Both the mother and the independent children’s lawyer submitted that the mother should have sole parental responsibility.   

Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child.

1. The father pays child support.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from:

(i)    either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living.

1. It is not proposed that the children be separated from either parent.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

1. The father is employed and will bear the expense of the children travelling to Adelaide and of him travelling to spend time with them in (omitted).

Section 60CC(3)(f) – the capacity of:

(i)    each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs.

1. I am satisfied that both parents have the capacity to provide for the basic physical needs of the children. However, given the evidence I have doubts about the degree of insight into the emotional and intellectual needs of the children held by each parent. In particular, I consider that the mother’s conduct in severing the relationship between the children and the father shows a serious lack of insight into the children’s needs.   

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions, of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

1. I do not consider this is relevant. 

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right.

1. The children are not Aboriginal or Torres Strait Islander children.

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. See the remarks at paragraph 58.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.

1. I have found that the children were exposed to family violence but that there has been no family violence between the mother and father since separation. I find that the children are not at risk of family violence in the father’s care.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inference that can be drawn from the order taking into account the following:

(i)       the nature of the order;

(ii)    the circumstances in which the order was made;

(iii)   any evidence admitted in proceedings for the order;

(iv)   any findings made by the court in, or proceedings for, the    order;

(v)    any other relevant matter.

1. There have been no family violence orders.  

Section 60CC(3)(l) - whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child.

1. I have considered whether the matter should be brought back before me in some months to consider the success or otherwise of the reunification process but no party suggested that I do other than make final orders and I will do so.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

1. There are no other facts or circumstances that I consider to be relevant.

Parental responsibility and spending time

1. Section 61DA provides:

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child from the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in :

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family(or that other person’s family); or

   (b)family violence.

   (3)    [not relevant]

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child

2. The author of the family report recommended that the mother should have sole parental responsibility given the high level of conflict between the parties. This recommendation was echoed in the submissions of the independent children’s lawyer with the proviso that the mother be obliged to inform the father about long-term issues affecting the children including their health and education. I am satisfied that it is not in the best interests of the children for the parties to have shared parental responsibility. I am satisfied that it would be likely to lead to further conflict.

3. I accept the revised recommendations of the family consultant and the submissions of the independent children’s lawyer that there is a proper basis for attempting a process of reunification of the children and their father. Undoubtedly there are risks associated with that course but those risks are, on balance, worth undertaking in the best interests of the children. I accept the submissions of the independent children’s lawyer as to the content and timing of that process. 

4. The independent children’s lawyer should bring in a minute of orders within 14 days reflecting these reasons for judgment.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 12 September 2016

CORRECTIONS

1. Order (1) “That the Independent Children’s lawyer send in a draft Minute of Order reflecting the reasons for judgment within 14 days” has been deleted and replaced with orders 1 to 21.