NASLAND & SCHUSTER
[2019] FCCA 2
•18 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NASLAND & SCHUSTER | [2019] FCCA 2 |
| Catchwords: FAMILY LAW – Parenting – allegations of unacceptable risk of abuse. |
| Legislation: Evidence Act 1995 (Cth) s.140 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV |
| Cases cited: Chapman & Palmer [1978] FamCA 86 |
| Applicant: | MR NASLAND |
| Respondent: | MS SCHUSTER |
| File Number: | WOC 1033 of 2015 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 7 August 2018 |
| Date of Last Submission: | 10 October 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 18 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Applebaum |
| Solicitors for the Applicant: | Nikolovski Lawyers |
| Counsel for the Respondent: | Mr Lawrence |
| Solicitors for the Respondent: | Kells The Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Reynolds |
| Solicitors for the Independent Children's Lawyer: | DGB Lawyers |
ORDERS
Parental Responsibility
The parents shall have equal shared parental responsibility for [X] born … 2012 (hereinafter referred to as "the Child").
Time
The Child shall live with the Mother.
The Father shall spend the following time with the Child during NSW school terms:
(a)In week 1:
(i)From the conclusion of school or 3:00pm Thursday until the commencement of school or 9:00am on the following Monday.
(b)In week 2:
(i)From the conclusion of school or 3:00pm Thursday until the commencement of school or 9:00am on the following Friday.
The Father shall spend the following time with the Child during NSW school holiday periods:
(a)During the NSW Christmas school holiday periods, from 9:00am Saturday until 9:00am on the following Saturday in weeks 1, 3 and 5 of the school holidays, commencing the first Saturday after the last day of term 4.
(b)During the NSW school holiday periods at the end of terms 1, 2 and 3:
(i)from 9:00am on the first Saturday of such periods until 9:00am on the second Saturday of such periods in all odd numbered years; and
(ii)from 9:00am on the second Saturday of such periods until 9:00am on the last Saturday of such periods in all even numbered years.
The Father shall spend the following time with the Child for special occasions:
(a)9:00am Saturday until 5:00pm Sunday on the weekend encompassing Father’s Day;
(b)4:00pm 23 December until 4:00pm 26 December in all odd numbered years;
(c)5:00pm Holy Thursday until 5:00pm Easter Monday in all even numbered years;
(d)3:00pm until 5:30pm on 6 August if such day falls on a school day and the Child is not already in the Father’s care for this time;
(e)9:00am until 2:00pm on 6 August if such day falls on a non-school day and the Child is not already in the Father’s care for this time.
(f)3:00pm until 5:30pm on 23 August if such day falls on a school day and the Child is not already in the Father’s care for this time;
(g)9:00am until 7:00pm on 23 August if such day falls on a non-school day and the Child is not already in the Father’s care for this time.
The time the Father is to spend with the Child pursuant to these Orders shall be suspended as follows:
(a)9:00am Saturday until 5:00pm Sunday on the weekend encompassing Mother’s Day;
(b)4:00pm 23 December until 4:00pm 26 December in all even numbered years;
(c)5:00pm Holy Thursday until 5:00pm Easter Monday in all odd numbered years;
(d)3:00pm until 5:30pm on 6 August if such day falls on a school day and the Child is not already in the Mother’s care for this time;
(e)2:00 pm until 7:00pm on 6 August if such day falls on a non-school day and the Child is not already in the Mother’s care for this time.
(f)3:00pm until 5:30pm on 15 January if such day falls on a school day and the Child is not already in the Father’s care for this time;
(g)9:00am until 7:00pm on 15 January if such day falls on a non-school day and the Child is not already in the Father’s care for this time.
If Easter falls within a NSW school holiday period the Child shall spend time with the Mother and the Father in accordance with the Orders for Easter time herein and these Orders shall supersede the Orders for school holiday time herein so far as the Orders are inconsistent only and the remainder of the school holiday period, after excluding from 5:00 pm Holy Thursday until 5:00 pm Easter Monday, shall be divided so that the Child spends equal time with each parent for the remainder of the school holiday period.
For the purpose of determining which is week 1 and week 2 for Order 4 hereof week 1 shall always coincide with the odd numbered weeks in each NSW school term and week 2 shall always coincide with the even numbered weeks in each NSW school term.
For the purpose of these Orders each NSW school holiday period shall be deemed to:
(a)commence at the conclusion of school on the last day of the school term requiring student attendance; and
(b)conclude at 5:00 pm on the day immediately preceding the first day of the next school term requiring student attendance.
The time the Father shall spend with the Child pursuant to Order 3 hereof shall be suspended for the duration of each NSW school holiday period.
Communication with the Child
Each parent shall facilitate the Child having flexible and liberal communication with the other parent by telephone, Skype, WeChat or any other agreed communication App, with the parent not spending time with the Child at liberty to communicate with the Child between 5:00pm and 7:00pm each Monday, Wednesday and Friday or at any reasonable time at the request of the Child. If the communication is not answered the parent who missed the call is to facilitate the Child returning the call as soon as possible that same day. If and when the Child has his own device, both parties are to enable Wi-Fi so the Child can contact the other parent at his pleasure.
Changeover
Whenever changeover for the Child does not occur at the Child's school changeover for the Child shall occur with the Mother delivering the Child to the Father's residence at the commencement of the Father's time with the Child and with the Father delivering the Child to the Mother's residence at the conclusion of the Father's time with the Child.
Restraints
Until the Child commences Year 7:
(a)The Father or Ms A or Ms B shall supervise any contact between the Child and [Y] ("[Y]") at all times the Child is spending time with the Father pursuant to these Orders and shall be restrained from leaving the Child and [Y] (together) in the care of any other person.
(b)If the Father or Ms A or Ms B observes that [Y], at any time when the Child is present at his home, demonstrates any form of anti-social behaviour, including inappropriate age-based sexualised behaviours or any form of verbal, physical or emotional violence or presents drug or alcohol effected, the Child shall be immediately removed from that environment until a safe environment can be established.
(c)The Father or Ms A or Ms B shall ensure the Child and [Y] maintain separate bedrooms and do not sleep in the same room.
(d)Ms A and Ms B shall only qualify to supervise contact pursuant to Order 15(a) upon the Father filing and serving on the Mother and the Independent Children’s Lawyer, Undertakings to the Court by those persons stating that they have been provided with a sealed copy of these Orders and agree to be bound by these Orders.
(e)The Mother shall supervise any contact between the Child and Ms C ("Ms C") and shall be restrained from leaving the Child and Ms C (together) in the care of any other person.
(f)If the Mother observes that Ms C, at any time when the Child is present at her home, demonstrates any form of anti-social behaviour, including but not limited to any form of violence either verbal, physical or emotional, or presents drug or alcohol effected or has any form of mental health psychosis, the Child shall be immediately removed from that environment until a safe environment can be established.
(g)The Mother shall ensure the Child and Ms C maintain separate bedrooms at the Mother’s residence and not sleep in the same room.
(h)The Mother shall be restrained from allowing Ms C to spend any more than one (1) night per week in the Mother's home while the Child is spending time with the Mother.
(i)The Father shall be restrained from allowing the Child to come into contact at any time or allowing the Child to communicate at any time with the paternal Grandfather Mr D unless the Father is present with the Child.
International Travel
For the purpose of the Child's Passport:
(a)the parents shall do all acts and sign all documents necessary to ensure the Child maintains a valid Australian Passport with the cost of same to be shared equally between the parties;
(b)the Mother shall hold the Child's passport and provide same to the Father not less than twenty-eight (28) days prior to any proposed travel and the Father shall return same to the Mother within seven (7) days of returning to Australia.
(c)should either parent lose the Child's Passport, the cost of a new Passport for the Child shall be the sole expense of the parent who lost the Passport.
Neither parent shall be permitted to travel with the Child overseas without the other parent’s written consent and that consent shall not be unreasonably withheld, except if it interferes with the other parent's time with the Child pursuant to Orders 3-6 hereof.
For the purpose of Orders 14 and 15 hereof, make up time with the Child shall be provided to the non-traveling parent as agreed between the parents and failing agreement between the parents, the make-up time for the Child shall occur in either the fortnight immediately preceding or immediately following the period of international travel for the Child.
Each parent shall provide the other parent with at least three (3) months written notice of any proposed international travel with the Child, including providing the other parent with a copy of airline tickets, a travel itinerary and a contact phone number for where the Child will be staying.
Other Orders
The Child shall hereafter be known as [X] and the Mother shall be at liberty to approach the Registrar of Births, Deaths and Marriages in the State of New South Wales to have such a name recorded on the Child’s birth certificate and that the Mother shall be responsible for any associated fee.
The Father shall sign all documents required to facilitate the Child’s name being recorded as [X] with the Registrar of Births, Deaths and Marriages in the State of New South Wales within seven (7) days of being requested to do so by the Mother.
Should the Child be enrolled and/or registered in any out of school activities, the enrolling parent must advise the other parent of such activity in writing and details of all scheduled times for the relevant activity
Each parent shall be entitled to attend all events involving the Child including but not limited to:
(a)sporting functions;
(b)extra-curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation;
AND the parent who has the Child in their care on the day of such activity will be responsible for the day to day care of the Child at such event including the Child's transportation to and from the event unless otherwise agreed between the parties.
Each parent shall ensure the other parent is kept informed as soon as is reasonably practicable of:
(a)any significant medical problems or illness suffered by the Child;
(b)any medication prescribed for the Child;
(c)any significant social, school or religious functions the Child is to attend;
(d)the parent’s personal email address and telephone contact numbers;
(e)any other significant matter relevant to the welfare of the Child, including, but not limited to, any attendance by police officer(s), ambulance personnel, fire service personnel, and/or Child welfare personnel at the home of a parent.
In the event the Child requires urgent medical treatment the other parent shall be informed by telephone at the earliest possible time.
Without admissions neither parent shall denigrate the other parent, their family or any other person with whom they may live in a bona fide domestic relationship within the presence or hearing of the Child or allow the Child to remain in the presence or hearing of any person who is denigrating either parent, their family or any other person with whom they may be living in a bona fide domestic relationship.
Each parent shall be hereby authorised to receive any information from the Child's school, including but not limited to copies of the Child's school reports along with copies of all school circulars, newsletters, requests for school photographs and invitations to any school activities which parents are invited to attend. If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the Principal of each school attended by the Child to ensure that the school forwards these items to both parents.
Each parent shall be hereby authorised to speak to any of the Child's treating health practitioners/professionals. If authorisation is otherwise required then each parent shall sign any such document necessary and forward this to the medical practitioner/professional attended by the Child to ensure that both parents can speak with such person in relation to the Child.
IT IS NOTED that publication of this judgment under the pseudonym Nasland & Schuster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1033 of 2015
| MR NASLAND |
Applicant
And
| MS SCHUSTER |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X], born … 2012. [X] is 6 years old and is the only son to both the Applicant Father and Respondent Mother. The Court must decide whether [X] should live with his Mother, or Father, and what time he should be spending with the other parent. There are a number of other related issues. These will be identified below.
This is a very sad case about subjective beliefs in relation to the risk of harm to [X] which have little objective basis. Whilst these subjective beliefs have been genuinely held by both of his parents, the adverse impact on [X] and many other people including children has been significant. Regrettably, there are no easy solutions in this case. The human fallibilities of [X]’s parents will become apparent.
Competing Proposals
The Minutes of Orders proposed by the Applicant Father, Respondent Mother, and by [X]’s Independent Children’s Lawyer will be reproduced in the First Schedule to these Reasons for Judgment. The key differences in these proposals will be identified. The Independent Children’s Lawyer and [X]’s father propose that the Court make an order for equal shared parental responsibility, but the Mother asks for sole parental responsibility. The Independent Children’s Lawyer and the Mother propose that [X] remaining living with his mother.
The Father’s main proposal was that [X] live with him, but that in the alternative there be an equal time arrangement or, failing that, there be an order for substantial and significant time in his favour. Both the Independent Children’s Lawyer and the Mother propose that [X] spend time with his father. The Independent Children’s Lawyer proposes, in effect, that there be a substantial and significant time arrangement implemented forthwith, which would result in [X] spending 5 out of 14 nights in his Father’s care.
The Mother proposes that a substantial and significant time be implemented progressively so that after 24 weeks [X] spend 3 nights out of 14 with his Father. The substantial and significant time proposal by the Father, noting that it is his last alternative, was that [X] spend 6 nights out of 14 with his Father.
There is an issue in this case about whether [Y], [X]’s stepsister and one of the Father’s daughters, presents a risk of harm to [X]. The Father believes that there is no such risk and there should be no orders restricting [X]’s time with [Y]. The Mother believes that [Y] is a risk to [X] and so her time with [X] should be supervised. The Independent Children’s Lawyer does not believe that [X] is at risk of harm, but in order to allay the Mother’s substantial anxieties over the issue, an order should be made that [X]’s time with [Y] be supervised.
There was an issue about whether Ms C, the Mother’s oldest daughter from a previous relationship, presented a risk of harm to [X]. All parties agree that any time that [X] spends with Ms C should be supervised.
There is an issue in this case about whether the paternal grandfather presents a risk of harm to [X]. The Mother is convinced that this is the case, and seeks an order that there be no contact or communication between [X] and the paternal grandfather. The Independent Children’s Lawyer believed there is some risk of harm but it can be adequately managed if the time that [X] has with the paternal grandfather is supervised.
The Father’s initial position was that the paternal grandfather presented no risk of harm to [X], and thus no restrictive orders were necessary. However, this is inconsistent with the evidence that he gave in cross-examination (transcript page 118, lines 5-7, page 121, lines 17-18). The evidence before the Court is, in fact, that the Father accepted that any time that [X] has with his grandfather should be supervised.
This Court must act on evidence, and not on proposals that are inconsistent with the evidence of the party who makes that proposal. For all practical purposes, therefore, this Court will treat the Father’s proposal as being consistent with his evidence, i.e., that [X]’s time with the paternal grandfather should be supervised.
The Mother would like to change [X]’s surname to Schuster-Nasland. The Independent Children’s Lawyer supports this. The Father opposes this.
The Evidence before the Court
In the Father’s case he relied on the following documents:
a)Amended Initiating Application of Mr Nasland filed on 11 May 2018;
b)Affidavit of Mr Nasland filed on 10 May 2018;
c)Affidavit of Ms B filed on 22 May 2018;
d)Affidavit of Ms E filed on 17 May 2018;
e)Case outline document prepared on behalf of Mr Nasland filed 15 May 2018;
f)Written submissions prepared on behalf of Mr F filed 9 November 2018
In the Mother’s case she relied on the following documents:
a)Amended Response of Ms Schuster filed on 9 May 2018;
b)Affidavit of Ms Schuster filed on 9 May 2018;
c)Notice of Risk filed on 27 January 2016;
d)Case outline document prepared on behalf of Ms Schuster filed on 14 May 2018; and
e)Written submissions prepared on behalf of Ms Schuster filed on 10 October 2018.
The Independent Children’s Lawyer relied on the following document:
a)Final written submissions filed on 27 August 2018.
Three tender bundles prepared by the Independent Children’s Lawyer, Applicant Father and Respondent Mother respectively, were tendered as evidence during the proceedings.
Background and overview of the Court’s findings
Schedule Two to these Reasons for Judgment reproduces a chronology that was prepared jointly by the parties in accordance with Order 5 made by the Court on 18 January 2018. This part of the Judgment is based on that document but contains a number of further observations and findings that the Court is able to make having regard to the totality of the evidence, and the submissions made. These are findings of fact, unless otherwise indicated by the context.
The Applicant Father is 43 years old, and the Respondent Mother is 42 years old. The Mother has one child from a previous relationship, Ms C, who is 22 years old. Ms C has a child, i.e., the Mother’s grandchild, [Z], born … 2016. [Z] is 2 years old. [Z] lives with the Mother, Ms C does not, but spends time with [Z] under the Mother’s supervision.
The Father has three children from a previous relationship; Ms A, 20, [Y] 17, and [W] 14. Until comparatively recently, all three children lived with their Father, but Ms A moved to Darwin in April this year for work purposes.
The parents met in … 2007, commenced cohabitation in … 2007, and married in … 2008. They were a blended family and, it seems from the evidence of both parents, that they experienced some of the issues that blended families quite often encounter, from this Court’s experience. They, as a family, engaged with Ms H of Family Psychology.
Ms H’s engagement may have commenced as early as the date of cohabitation in 2007, but is more likely to have commenced no later than early 2009 after the parties married. Nothing turns on when, precisely, Ms H engaged with the family. Ms H remained engaged with the family, or members thereof, until 2015. All of the family members in this blended family unit engaged with Ms H at some time during that relatively long period.
The precise number of attendances that each had with Ms H is not a fact that is necessary for the Court to determine. It is more likely than not that the parents had more attendances than the children, and the Mother appears to have had more attendances than anyone else. Ms H’s evidence is quite important. This Court finds that where the evidence of the Mother, and Ms H, conflicts, Ms H’s evidence is more reliable. This finding is made despite the Court having some concern over Ms H’s recordkeeping, and despite the fact that the Mother made a complaint to the Psychology Council.
Ms H’s evidence was presented factually, and devoid of emotion, or any pre-conception that is caused by having a subjective belief with no objective basis. Ms H’s evidence was not overshadowed by any concerns about her mental health. By contrast, the Court has serious concerns in relation to the matters referred to in the case of the Mother.
It seems that in 2010 – 2011 [Y] said something to Ms H about an act that had allegedly happened to her over a number of years and commencing when she was 2 years old. [Y] was probably 9 or 10 at the time. The Court finds that Ms H in fact told both parents this, in separate sessions. The details of this will need to be discussed below. The disclosures related to something that was allegedly done by one of [Y]’s grandfathers, and by process elimination it could only have been the paternal grandfather.
This is the genesis of the issue that the Court has to decide about; whether there should be any restrictions on [X]’s time with the paternal grandfather even though, it should be noted in the clearest terms, there is no evidence at all to suggest that the paternal grandfather has acted in any manner inappropriate so far as [X] is concerned. [X] was not, in fact, born until 2012, several years after the rest of the family became engaged with Ms H, and the concerns arose about the paternal grandfather.
Shortly after [X] was born, the Mother suffered post-natal depression. It is quite possible that the Mother’s mental health issues pre-dated [X]’s birth, but nothing turns on that. What is clear from the totality of the evidence, and especially the Mother’s own evidence, is that since [X]’s birth she has suffered with depression and anxiety that has manifested itself in many different ways which included stress, physical manifestations of anxiety including sickness in the stomach, shaking, her heart “beating out of control” and over-thinking issues. The Court finds that this resulted in the Mother reacting to what might otherwise be understandably stressful events in a totally disproportionate manner.
On 15 October 2014 [X], who was just over 2 years old, complained of a sore bottom. The Mother asked him why it was sore, and [X]’s response was, “Coz … bite my bottom.” The events surrounding this disclosure, and later events, will need to be examined in detail. Unsurprisingly, the disclosure triggered a number of things, including an investigation by the Joint Investigative Response Team (JIRT), extensive involvement with Ms H, and ultimately the separation of the parents.
The issue for the Court is whether there is an unacceptable risk of abuse to [X] if he spends time with [Y]. This Court finds that there is no such unacceptable risk of abuse to [X] and, whilst it will ultimately accept the Independent Children’s Lawyer’s submission that any time between [X] and [Y] should be supervised, the Court will find that this is necessary only because it is the only way of managing the Mother’s implacable anxiety and her firm belief, wrong as it is, that [Y] sexually abused [X].
What is clear to the Court is that, in the Mother’s mind, she linked [Y]’s disclosures about the paternal grandfather to [X]’s disclosures about [Y]. There is no discernible link between those two events on the evidence before the Court. It is clear, however, that in the Mother’s mind the link was direct and irrefutable.
By November 2014, after JIRT had interviewed [Y] who denied that she had touched [X] inappropriately, and also stated that she could not remember what her grandfather did, the JIRT team decided to close its file. This took place by January 2015.
Throughout this period Ms H continued to be involved with the parents, but there is a clear divergence between the Mother’s evidence and Ms H’s evidence about what was said in these interactions. For reasons previously stated, the Court prefers the evidence of Ms H.
In or about January 2015 the Father accessed the Mother’s Facebook Messenger account. He probably did so without the Mother’s consent. Nothing turns on this. The Mother had engaged in wide-ranging, but private, communications with other persons about [Y]’s sexual abuse of [X]. She spoke, for example, with parents of children attending [X] and [Y]’s school. In all of these communications she treated the disclosure as entirely accurate. There was no reasonable basis for the Mother to have done so.
The Court accepts that she clearly believed certain matters to be true, but there was no objective basis for holding such a belief. The Mother acted appallingly in these communications. In cross-examination she contended that she acted protectively so far as [X] was concerned. It is not clear to the Court how these disclosures were protecting [X]. Even the Mother acknowledged the detrimental effect that her communication might have had on [Y].
By this time, the Court finds, the Mother had convinced herself that [Y] was a risk to [X] and that she had sexually abused him. In cross-examination she said, for example, words to the effect: “I can’t get it out of my mind that her mouth was on his genitals.” There was absolutely no basis for the Mother’s belief. There were no physical signs consistent with her belief. Her belief was not based on what [Y] disclosed.
There was an incident at the Father’s home on 19 January 2015 when the Mother attended in the Father’s absence and, in effect, verbally abused [Y]. The Court accepts the evidence of the Father in relation to this incident as well as the evidence of Ms E, his sister, contained in her Affidavit made 16 May 2018. This Court finds that the purpose of the visit was unnecessary and the Mother’s actions wholly inappropriate.
Ms E’s response to having received a call from [Y], who she described as “hysterically crying on the phone”, was appropriately protective. The Court does not accept the submission the Mother made, through her Counsel, that Ms E’s response was, in effect, an overreaction. This characterisation is based on the written submission that Ms E’s “own actions may have exacerbated fears of the children ... there was a sense of dramatisation in her account of events.” (Paragraph 11, written submissions prepared on behalf of the Respondent Mother filed 10 October 2018.)
The Court accepts Ms E’s evidence about this event. It is possible that Counsel for the Mother may have missed the not so subtle irony of the Mother contending that someone else was overreacting to events. Nothing more need be said about the evidence of Ms E.
On 28 January 2015 Interim Orders were made by consent that provided for the Father to spend limited daytime contact with [X]. However, the Court finds that before then the Father’s time with [X] was limited by the Mother. After the making of the Order, [X] commenced regular time with his Father consistent with the Orders.
Late in … 2015 the Mother’s daughter, Ms C, moved in with her and [X]. [Z] was born on … 2016.
In 2016 the Father’s time with [X] continued and, in fact, extended to overnight time on those occasions when [Y] was not with her father.
In … 2016 the Father commenced a relationship with Ms B, who moved into his home a few weeks later. Ms B is now the Father’s partner. She is 41 years old and is originally from Country A. She is both studying and working in a business. She has become integrally involved, it seems, in the Father’s home life including supporting him in caring for his children, including [X]. She appears to have a good relationship with [X], and in the Mother’s evidence she seemed to express few, if any, concerns about Ms B.
What became apparent in the cross-examination of Ms B, however, is that she is not familiar with the detailed allegation as regards [Y] and the paternal grandfather, and as regards [X] and [Y]. Her evidence, therefore, did not assist the Court in determining some of the key issues for decision, but the Court can be reassured that she will play a supportive role in the Father’s parenting of [X]. There will be no need to further refer to the evidence of Ms B in this Judgment.
There is an issue in this case about [X]’s surname. On 11 April 2017 the Father received a copy of [X]’s school photos, which referred to him as [X] Nasland-Schuster. The Mother contends that this was the name she used for the purposes of the school photo only, and that she had not changed [X]’s name at school or otherwise. That is probably the case, at that time.
The Court finds that as at late April 2017 the Mother had certainly, by her actions, foreshadowed her preference to change [X]’s surname to Nasland-Schuster. The Court further finds that by 1 September 2017 she had signed an application to enrol [X] into kindergarten at School 1. These documents show that [X]’s full name was recorded as [X] Nasland-Schuster. Incidentally, the Father is not noted at all as an emergency contact for [X], the Mother preferring to refer to two of her friends.
The Mother’s surreptitious attempts to change [X]’s surname, and then enrol him without any reference to the Father, is part of the reason why the Court will decline to make the order for sole parental responsibility that she has sought. Quite apart from the legal obstacle that the Mother faced; establishing that the statutory presumption of equal shared parental responsibility should be rebutted or otherwise not apply, the overwhelming impression formed about the Mother is that she could not be trusted with sole parental responsibility, and would use it in a manner that would exclude the Father’s involvement in [X]’s life. The issue of the name change, however, will be discussed separately below.
In 2017 both parents brought contravention applications against the other. Those issues were resolved by the way of making further Interim Orders in August 2017. It is not necessary to further refer to the contravention applications.
In 2017, whilst Ms C and [Z] were in the Mother’s care, a number of significant events occurred in the household that created a risk of harm to [X]. Ms C was involved in a violent relationship. An AVO was granted against her former partner. Ms C and [Z] moved out, and then moved back into the Mother’s home. Ms C bit [Z], in fact it would appear several times. This was, unquestionably, an assault.
[Z] was taken by the Mother to hospital. Ms C was interviewed by Town A Police and confessed to biting [Z] because [Z] would not stop crying whilst she was changing her nappy. An Apprehended Violence Order was taken against Ms C by the Police, [Z] remained in the Mother’s care, and the Department of Family and Community Services became involved. Ms C, unfortunately, had a stillbirth in … 2017, after 29 weeks. Ms C returned to live with the Mother.
The Mother, who had always had concerns about Ms C’s consumption of drugs and alcohol and mental health, experienced Ms C’s concerns to deteriorate. In cross-examination the Mother agreed, albeit reluctantly, that throughout this period there was a risk of harm to [X] because of Ms C’s presence in the household. She also agreed that at no time did she tell the Father about this risk. Indeed the Court is satisfied from the cross-examination of the Mother on this issue that she was, for the most part, minimising the risk issues.
Unsurprisingly, Counsel for the Father challenged the Mother on her protective capacity for [X] during this period when Ms C was in the home and had clearly abused [Z]. She was invited to reconcile what the Court will describe as the curious dissonance between her insensitivity to the risk issues presented by Ms C in the Mother’s household and her hypersensitivity to the alleged risk issues presented by [Y]. She reconciled this by saying words to the effect: “I am the protective parent, and the Father is not.”
The Court finds that throughout the period that Ms C was in the Mother’s household, and while she, that is the Mother, was caring for [Z], the Mother failed to act protectively of the other member in the household, namely [X]. Moreover, she should have told the Father about the risk to [X] coming from Ms C, but failed to do so. The glaring hypocrisy in the Mother’s perception about protectiveness is surely self-evident. Nothing more needs to be said about Ms C and [Z], and the risks to [X] during this period.
The Hearing of this matter took place over 5 days, initially between 21 – 23 May 2018, and then 6 – 7 August 2018. After Day 3, Interim Orders were made by consent. Those Orders are reproduced in the Third Schedule to these Reasons for Judgment. They provide for an increase in the Father’s time with [X] and a number of restraints at Orders 7 and 8. The Court accepts that even though the Orders do not say so, from the Father’s perspective, the restraints set out at Orders 7 and 8 were made on a without admissions basis.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the 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
(iii) to communicate with the child;
(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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences 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 in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
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) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 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.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘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.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the Independent Children’s Lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
[Y] and the paternal grandfather
The allegation that the paternal grandfather presents a risk of harm to [Y] is found in the evidence in a number of different places. In the Mother’s trial Affidavit sworn 9 May 2018 it is dealt with at paragraphs 17 – 21. The Mother explains that during a personal session with Ms H in 2010/2011, Ms H told her that [Y] had made a disclosure to her about having been touched inappropriately. The Mother alleges that Ms H said words to the effect: “I have been speaking with [Y] about good touch and bad touch. After quite a few sessions, [Y] has marked out on a picture of a naked girl that I gave her, where she has been touched.”
The Mother was then shown the drawing, and deposes to observing that the breast and vaginal areas had been marked on the drawing, by [Y]. The conversation that ensued is set out at paragraph 18:
Ms H said:
I asked [Y] when did this happen, and her response was do you mean when did it start? I replied yes that’s what I mean, when did it start? [Y]’s response was when I was 2 maybe.
I said:
She has been abused sense she was 2?
Ms H said:
By [Y] saying from age 2, she is likely meaning that the abuse has been occurring for as long as she can remember, she also told me that she couldn’t tell me who had abused her, and said ‘I can’t say cos Dad will get real angry’
It is common ground that the Mother did not discuss this with the Father at the time and indeed not until 2014.
In the Father’s trial Affidavit of 10 May 2018, he does not depose to the above matter, but in cross-examination he agreed that in 2010 or 2011 Ms H told him that [Y] had said to her that she had been touched inappropriately. He agreed that Ms H had referred to a drawing of a girl. He had not seen this document. The Father agreed that he too did not discuss it with the Mother until about 2014.
In cross-examination the Father explained his response to the conversation he had with Ms H. This is found at transcript page 108, lines 1-10:
Mr Lawrence
So you become aware that [Y] has made these disclosures to Ms H in around 2010 or 2011. What did you do? What was your response to hearing from Ms H that [Y] had made these disclosures? Were you concerned about them?
Mr Nasland
Of course. I was shocked. I was taken aback and trying to think how that would be possible and as a – the word used in this – in this at the moment is, as a protective behaviour, the – what I done to prevent any further allegation or potential of risk, I stopped any overnight contact, overnight stays. There were always instigated by the children between – at my parents’ place.
It is common ground between the parents that, in fact, from that point on the children did not have overnight time with the paternal grandparents and, indeed, the Father was always present when the children were with the grandparents. The Father also gave evidence in cross-examination that he, in effect, confronted his parents about the allegations, specifically that the paternal grandfather had inappropriately touched [Y].
He described his father’s response to the allegation as follows: “He was pretty much a broken, gutted man” (22 May 2018 transcript page 112, line 24). The Father also clarified that the restriction on overnight and unsupervised time applied not just to his children, but to [X] as well after he was born. Indeed, it would seem that [X] had no, or very little contact at all with the paternal grandparents. The Father explained that this was because: “...Ms Schuster assumed the position of hate towards my parents.” (22 May 2018 transcript page 113, lines 19 – 20).
Ms H was cross-examined about the events referred to above. She agreed that in or about 2010 or 2011 she had been seeing [Y] in a number of sessions, and had been speaking to her about good touch and bad touch. In one of those sessions, during that period, [Y] indicated that she had been inappropriately touched. Ms H explained: “It wasn’t a black and white disclosure” (22 May 2018 transcript page 54, lines 14 – 15).
Indeed, at lines 22 – 24 she further explained: “I don’t remember the exact words, but I remember, you know, getting the impression that that had occurred.” She further explained at lines 31 – 32: “I wouldn’t say ... I was exactly sure at that point.” She explained that she explored it further with [Y], as much as she could at the time without distressing her, but there were not facts or information that she could really ask more about.
Counsel asked whether, after hearing the disclosure from [Y], Ms H gave her a drawing and asked her to mark on the drawing what she was referring to in terms of having been touched. Ms H explained that that was not the case, and that the touching conversation was more of an education and safety conversation. Nonetheless, she agreed that she spoke to the Mother first, and then the Father later, about the disclosures.
Ms H agreed that it was concerning enough to raise with the Mother at about the point in time of the disclosure, but not concerning enough to discuss with the Father at that time. The following exchange takes place at transcript page 55, line 46, through to page 56, line 4:
Mr Lawrence
Were these disclosures something that you continued to speak to her about during your sessions, after the initial disclosure to you?
Ms H
There were occasions where I did, probably mostly because Ms or Mrs Nasland had requested I do that.
Mr Lawrence
Do you remember who it was that requested that you do that?
Ms H
Ms Schuster
According to Ms H, [Y]’s disclosure referred to above was not then discussed with either parent. This is, in fact, consistent with the evidence of the parents.
Later in cross-examination Ms H was asked how, exactly, did the issue of touching come up during the session with [Y]. Counsel for the Independent Children’s Lawyer asked: “Do you have any recollection of whether the Mother asked you to explore that with [Y]?” Ms H responded: “I think, at that time, yes. Mother may have brought it up as a concern or a possibility” (22 May 2018 transcript page 94, lines 23 – 25).
Ms H’s assertion that the Mother may have brought it up as a concern or a possibility, is in fact corroborated by the letter dated 28 February 2016 sent by Ms H to the Health Care Complaints Commission in the course of the latter’s investigation of the complaint that the Mother had made against Ms H. The relevant extract commences on the third page:
I worked with [Y] on anxiety management using resources from the “Cool Kids” anxiety management program, teaching CBT skills and anxiety management. It was at this time that Ms Schuster raised the issue of the children ([W] and [Y]) being sexually abused by Mr Nasland’s father, whom they referred to as “pop”. I was very careful to explain to Ms Schuster at this point that it is not okay to accuse anyone of such a serious crime without evidence. Ms Schuster expressed significant worry about the children. I explained that I couldn’t directly ask the children about this as my job wasn’t to investigate, but I could provide them with some protective behaviours, psycho-education, that would give them clearer boundaries and systems to assist them if they were at risk or ever became at risk.
Ms H goes on to explain that the naked girl picture was part of the protective behaviours education that she did with [Y]. They discussed healthy as opposed to unhealthy touch, as well as parts of the body that were private and the concept of privacy.
In the letter Ms H states: “To clarify, at no point did I ask [Y] to ‘mark out where she had been touched’. At no point during this session did [Y] make a disclosure or name anyone as an abuser.”
Later in the letter Ms H explained that she did not make a report to the Department as nothing had been disclosed to her that could be reported. She reiterates “...Ms Schuster says that I said that [Y] had reported being touched when I gave her a naked picture, but this is not what happened...”
The Court believes that the most likely scenario is that recorded by the Family Consultant, Ms J, in the Family Report dated 15 January 2018 at paragraph 27:
Ms Schuster reflected that she had held concerns for many years about the paternal grandfather and about the behaviours of Ms A, [Y] and [W] but that Mr Nasland was unwilling to address these. She said that she told Mr Nasland of her concerns about Mr Nasland Snr prior to any disclosures by the children, telling him of her suspicion that the paternal grandfather had sexually abused the children, based on her impression of him and her discomfort with his interactions with the children. She cited examples of his trapping the children in his legs or holding them upside down until they were crying and his comment that he would sleep in the car if his grandchildren stayed overnight to avoid false accusations. Ms Schuster said that her relationships with the paternal grandparents were strained and, during her marriage with Mr Nasland, they had little contact with them. She said that she raised her suspicions about possible sexual abuse with Ms H who subsequently explored these themes with the children in counselling, discussing “good touch” and “bad touch” which eventually led to [Y]’s apparent disclosure. Ms Schuster said that, when [Y] spoke of having been touched but not recalling who had done this, Ms Schuster was certain it was the paternal grandfather but was reportedly urged by Ms H not to discuss this with Mr Nasland, leading to a long period where this was not discussed or addressed within the family.
The Family Consultant records above what the Mother told her, and there is a clear admission by the Mother, consistent with Ms H’s evidence in cross-examination, that the Mother had first raised these issues with Ms H, who subsequently explored these themes with the children in counselling, and which eventually led to [Y]’s apparent disclosure.
At paragraph 63 of the Family Consultant’s Report she refers to the: “...vague and unspecified disclosures from [Y] about being inappropriately touched by the paternal Father.” At paragraph 64 the Family Consultant observed that it was neither possible, nor appropriate, for her to comment on the risk posed by the paternal grandfather without further information. She noted, however, that the Father agreed to act protectively and to be on the safe side, after the disclosure became known. The Family Consultant then concludes at paragraph 64:
The Court may need to make a decision about the appropriateness of continuing the order that [X] have no time with Mr Nasland Snr. Based on the subpoena information available, it appears that [Y] may have been “scared” during past contact with her grandfather and, it seems, experienced him as intrusive and invasive of her personal boundaries. It is unclear whether there was an isolated occasion of inadvertent touching (as suggested by Mr Nasland) or a pattern of grooming behaviour (as alleged by Ms Schuster), whatever occurred, it seems that it has caused some discomfort and distress to [Y].
There is further evidence about [Y]’s alleged disclosures about the paternal grandfather, but this arises after [X]’s disclosures about [Y]. This will be discussed below. For present purposes, the Court concludes that as at 2010 or 2011 when [Y] first made this alleged disclosure any risk of harm that existed to her was quite properly managed by the Father’s initiative to confront the paternal grandfather with the allegation, and implement a system to ensure that the children did not spend overnight time with the paternal grandparents, and were never left alone with him.
The Father acted appropriately. Judged at this point in time, but without reference to the later evidence, there was no unacceptable risk of harm to [Y] having regard to the protective measures that the Father undertook. The Mother’s proposal, that there be no contact or communication with the paternal grandfather at all, is baseless, having regard to the evidence that has been reviewed so far. Indeed, the Court will conclude that nothing that [Y] later disclosed, in the context of the allegations against her made in connection with [X], changes this assessment of the evidence and conclusion by the Court. In reality, the Mother did not enjoy a good relationship with the paternal grandparent and she distrusted them.
There was never, on the evidence before the Court, any objective basis for the Mother’s concerns that the paternal grandfather had acted inappropriately, let alone sexually abused, the Father’s children. The Mother acted irrationally in raising it with Ms H, and then resisting Ms H’s attempts to temper the Mother’s beliefs that something sinister had occurred.
| 14 August 2017 | …Children’s Centre contacts NSW Police and FACS regarding [Z] and the bite marks they observed. | Agreed. [Z] is placed in the care of Ms Schuster whilst marks are investigated | |
| 15 August 2017 | Forensic medical was conducted on [Z]. Two human bite like marks were observed. One on her left forearm area and the other on the left inner thigh area. There was also a bluish bruise located on the rear hamstring area of the right leg. | Agreed. Ms Schuster takes [Z] to the hospital for this assessment. | The mother says that she takes [Z] to Town A Hospital for a forensic medical assessment the results of which identified two marked like human bite marks on [Z]’s left forearm area and the other on the left inner thigh area. The mother says that there was also a bluish bruise located on the rear hamstring of [Z]’s right leg. The mother says that she was extremely distraught. S [113] |
| 17 August 2017 | Ms C interviewed by Town A Police. Police notes are made as follows: ‘At the conclusion of the interview the accused became extremely emotional and confessed to biting [Z]. The interview was subsequently recommenced and the accused adopted her previous admissions stating that she had bit [Z] once on the arm and once on the leg when she was changing her nappy last Saturday being 12 August 2017 as she would not stop crying’. | Agreed | S [114] |
| 17 August 2017 | Ms Schuster is advised by Officer Mr T that an Interim AVO would be made stating Ms C can see [Z] whilst with Ms Schuster, Ms Schuster’s mother or her sister's supervision. However errors are made when AVO produced and Ms Schuster contacts Mr T to have this rectified. Mr T admits errors were made and takes steps to have AVO re-issued. | S [115] | |
| 23 August 2017 | AVO issued against Ms C stating either Ms Schuster or Ms Schuster’s mother to care for [Z] and Ms C not to attend Ms Schuster’s home or be in the presence of [Z] | Not agreed. AVO issued against Ms C. States Ms C must not approach or have contact with the protected persons except under the supervision of Ms Schuster, being the maternal grandmother of the protected person. Ms Schuster is advised by Detective Mr T that the initial AVO issued is incorrect, and arranges for the order to be amended so as to allow Ms C to live with Ms Schuster. Further amendments are made to include Ms E or Ms U as other supervisors for any contact between Ms C and [Z]. | N [131c] S [115-116] |
| 24 August 2017 | Reported to FACS that Ms C breached AVO by having contact with [Z] and living with Ms Schuster | Agreed. This occurs prior to AVO being corrected. Ms C is not living with Ms Schuster at this time. | |
| … 2017 | Ms C gives birth to stillborn after miscarriage at 29 weeks | Ms C gives birth to … , who was stillborn due to placental abruption. | N [131d] S [118] |
| … 2017 | Ms C returns to live with Ms Schuster after losing her son. FACS confirm their agreement with this arrangement. | ||
| Late August/early September 2017 | Mother says that she observes Ms C’s mental health to be declining. The mother says that she enforced house rules to ensure the safety of [X] and [Z] whilst Ms C was in the home and was present at all times to supervise the children. S [119] | ||
| 1 September 2017 | Mother signs Application to enrol [X] into kindergarten at School 1. [X]’s family name is stated as “Nasland-Schuster”. [X]’s full name is recorded as being “[X] Nasland-Schuster”. ICL [1] The name of parents/carers to contact first in relation to the child listed as Ms Schuster then Ms V. The father’s details are recorded as parent/carer not living with the student. The additional emergency contacts at Part E of the form are Ms W (friend of mother) and Ms C. (The whole form is marked ICL [1]) | ||
| 6 September 2017 | Ms C charged with Offence of Driving with Illicit Drugs present in Oral Fluid after being pulled over for PBT & RDT (positive detection of cannabis/methamphetamines) | Agreed | N [131d] S [120] |
| 7 September 2017 | Ms Schuster reports to police of concern relating to Ms C’s mental health. At 12:45pm Ms C has an argument with Ms Schuster and threatens to drive car off … | Agreed | N [131e] S [120] |
| 17 September 2017 | [X] reports to Ms Schuster that he doesn’t like Ms B kissing him. Ms Schuster requests that Mr Nasland speak to Ms B about refraining from kissing [X]. | ||
| 18 September 2017 | Mr Nasland becomes aware that Ms Schuster has enrolled [X] into … Child Care and out of … Child Care | Agreed | N [120.3.5] |
| 19 September 2017 | Mr Nasland attempts to get access to [X]’s preschool information/newsletters/app. Centre advised they had spoken to Ms Schuster and would need a Subpoena to access the information. | Not Known | |
| October 2017 | Mother says she moves to reside at a new rental property. Mother says that when she moved it was agreed between Ms C and the mother that they would both sign the Lease and Ms C would remain responsible for paying a half share of the rent in exchange for the mother’s care of [Z]. S [122] | ||
| 11 October 2017 | Further … Children’s Centre Incident and illness report for [Z]. ‘On 11/10/17 an observation whilst changing [Z]’s nappy Ms X discovered a bite mark on the inside elbow on [Z]’s right arm. [Z] was effectively supervised by Ms S and Ms Y over the course of the morning and displayed no signs of being bitten or getting bitten by her peers. [Z] also displayed no signs of biting herself.’ | Agreed. Child care worker/reporter subsequently provides Ms Schuster with letter that confirms the bite was of an unknown origin and later the mark was gone after a short period of time. | S [121] |
| 17 October 2017 | … Children’s Centre writes to FACS about incident on 11 October. | Not Known | |
| 20 October 2017 | regarding concerns held for [Z] and [X] including’: ‘Ms C and Mr R attending Mothers home on a regular basis’; ‘Significant behavioural changes in both [Z] and [X].’ | Not Known. Whilst Ms C is residing with Ms Schuster at this time, Mr R has not been permitted to attend to Ms Schuster’s home since June 2017. | |
| 26 October 2017 | Ms C’s AVO against [Z] amended to allow contact under supervision - Expires 23/1/18 Must not assault, etc. [Z] Most not approach any school, childcare centre, specifically … Children's Centre. Can only have contact under supervision of Ms Schuster , Ms U or Ms E | Agreed | |
| November 2017 | Ms Schuster requests that Ms C move out of the home. Ms C returns to the home in the mornings to assist in readying [Z] ready for school, and then again in the afternoons to feed and ready [Z] for bed. | S [123] | |
| 3 November 2017 | Ms Schuster advises Mr Nasland that [X] requires a sleep study and the cost of same is $200 out of pocket. Ms Schuster requests that Mr Nasland pay half but Mr Nasland declines to pay anything. | S [176] | |
| 13 November 2017 | Email from Ms Schuster to … Children’s Centre stating she will be on holidays from 16/11/17 to 21/11/17 and Ms U and Ms E have authorisation to pick up/drop off [Z] | Agreed but date not known | S [92] |
| 16 November 2017 to 24 November 2017 | Ms Schuster on holidays in Country 2 | Agreed. As is [X]. | |
| 16 November 2017 to 17 November 2017 | [Z] signed in/out of school by ‘Ms Schuster’ | Agreed. The school requires all days to be signed including absent days. These are signed by Ms Schuster upon returning from holidays to acknowledge [Z] has been absent. | |
| 20 November 2017 to 24 November 2017 | [Z] absent from pre-school this week, however, the sign in sheet has ‘Ms Schuster’ for the sing in/out Monday to Friday | Agreed. As above. | |
| 24 November 2017 | The other and [X] return from a holiday to Country 2. S [124] | ||
| 24 November 2017 to May 2018 | Mother says that Ms C continues to return to the mother’s home in the mornings to assist in readying [Z] for school and then again in the afternoon to feed and ready [Z] for bed. The mother says that on each occasion Ms C visits the home she is present and supervises any interactions Ms C has with the children. S [124] (But compare this with what the mother says in S [125].) | ||
| 5 December 2017 | Parties are interviewed by the Family Consultant Ms J for the Family Report. | Agreed | N [133] |
| December 2017 | Ms Schuster offers Mr Nasland overnight time with [X] from Christmas Day 3pm to Boxing Day provided [Y] is not present at night. Offer rejected by Mr Nasland . | S [94] | |
| 24 December 2017 | Mr Nasland/Ms B post pictures on Instagram of Mr Nasland’s father with Mr Nasland’s children | ||
| 1 January 2018 | Mr Nasland is informed for the first time that Ms C and [Z] are living at Ms Schuster’s home. That [Z]’s pre school reported to the police that [Z] had bite marks on her. That there is an AVO in place that Ms C not be left alone with [Z], which Ms Schuster is breaching. | Not agreed. [Z] has been living with Ms Schuster in her full time care since 14 August 2017. Ms C lived with Ms Schuster from 28 August 2017 to November 2017. When Ms Schuster moves residence, it was agreed between Ms C and Ms Schuster that they would both sign the lease as Ms C was responsible for paying half Ms Schuster’s rent in exchange for her caring for [Z]. Ms C lived between friends homes and was in hotel accommodation from November 2017 to February 2018 at which time she secured a rental which she shares with two other people. Ms Schuster has never left [Z] with Ms C on her own since 14 August 2017. | |
| 8 January 2018 | Mr Nasland files Subpoenas to … Early Learning Centre, Department of Family and Community Services, … Children’s Centre, NSW Police Force | Agreed | |
| 15th January 2018 | Family Report is released to the parties | ||
| 23 January 2018 | Ms C attends Court regarding biting incident on 14 August 2017. Pleads guilty. Sanctioned under s10(b), issued a 12 month good behaviour bond and final AVO for 12 months. | Agreed | Mother says that Ms C’s licence was suspended for a period of three months. The mother says that after losing her licence Ms C ceases attending at the home in the mornings but would visit on some afternoons to spend time with [Z] when the mother was able to collect her and drop her back to her home after dinner. S [125] |
| 25 January 2018 | E-mail from the father to the mother. S [126], Annexure [N] | ||
| 31 January 2018 | Correspondence from Kells to Nikolovski Lawyers. S [127], Annexure [O] | ||
| February 2018 | Ms C commences living in share accommodation | S [123] | |
| 5 February 2018 | Mr Nasland requests that [X] live with him until the hearing. Ms Schuster subsequently rejects request. | Agreed. | |
| 8 February 2018 | Mother says that after receiving the father’s e-mail she meets with FACS case workers and requests that they provide her with some written confirmation of their findings in relation to the safety of both [X] and [Z] in the mother’s home. S [128], Annexure [P] | ||
| 13 February 2018 | Correspondence from FACS to the mother. S [128], Annexure [P] | ||
| 14 February 2018 | FACS provide letters to Ms Schuster that confirm their belief that [X] and [Z] are both safe in her care and they hold no concerns for them. | ||
| 27 February 2018 | Mother says that she observes a red mark on [X]’s leg. The mother says that given his previous infections she decides to monitor it over the next few days. By 2 March 2018 when the sore had not gotten any better the mother says she contacted [X]’s GP to make an appointment to have it checked out but was unable to book him in. S [130] | ||
| 1 March 2018 | Mr Nasland observes wound on [X]’s leg which is examined at hospital | Not agreed. | In the father’s Affidavit he says that this occurs on 28 February 2018. N [134] |
| 3 March 2018 | Ms Schuster requests that Mr Nasland take [X] to the doctor on 3 March 2018 to get antibiotics for a sore on [X]'s leg. Mr Nasland is referred to the hospital and the parties meet there for further assessment. [X] is provided with a script for Bactroban. | S [131] | |
| 3 March 2018 | Father says that he takes [X] to Town C Medical Centre to have the wound examined by a doctor. N [135-136] | ||
| Approximately 10 March 2018 | Mr Nasland observes a further wound on [X]’s leg. | Agreed however this occurs on 7 March 2018. Mr Nasland asks Ms Schuster what the new mark on [X]'s leg is and Ms Schuster replies “Mozzie Bite”. | |
| 14 March 2018 | Mr Nasland accuses Ms Schuster through correspondence of burning [X] with a car cigarette lighter and seeks that [X] live with him. This is despite Mr Nasland attending the hospital with Ms Schuster when [X] is diagnosed and provided a prescription for Bactroban for mosquito bites. | Correspondence from Nikolovski Lawyers to Kells. S [133], Annexure [Q] | |
| 16 March 2018 | Correspondence from Kells to Nikolosvki Lawyers. S [134], Annexure [R] | ||
| 4 April 2018 | Mr Nasland requests [X] attend a farewell dinner for Ms A on 9 April 2018 as she is moving to Darwin on the 10 April. Confirms his father will be present. | ||
| 5 April 2018 | Ms Schuster decline Mr Nasland’s request for visit on 10 April due to his father being present and therefore being a breach of the Orders. | ||
| 6 April 2018 | Ms Schuster arranges and attends a dinner with Ms A, herself and [X] so that [X] has an opportunity to say farewell to Ms A. | ||
| 10 April 2018 | Ms A moves to Darwin. | ||
| 19 April 2018 | Parties participate in Legal Aid Mediation |
Schedule Three
Consent Orders made 23 May 2018
FAMILY LAW ACT 1975
MINUTE OF CONSENT ORDERS
IN THE FEDERAL CIRCUIT COURT
OF AUSTRALIA File No: WOC1033/2015
BETWEEN: MR NASLAND
(Applicant - Father)
AND: MS SCHUSTER
(Respondent - Mother)
AND: INDEPENDENT CHILDREN'S LAWYER
BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED:
That the child [X], born … 2012 ("the child") live with the mother.
That the child spend time with the father as follows:
2.1
2.1.1For a period of 12 weeks from the date of these Orders:
2.1.1.1In Week 1:
(iii) From the conclusion of school or 3pm Wednesday until 6.30pm on Wednesday.
(iv) From 9am Saturday until 5pm Sunday, commencing Saturday 26 May 2018.
2.1.1.2In Week 2, from the conclusion of school or 3pm Wednesday until 6.30pm on Wednesday.
2.1.2Following the conclusion of the time in Order 2.1.1 above and for a further period of 12 weeks as follows:
2.1.2.1In Week 1:
(iv) From the conclusion of school or 3pm Wednesday until 6.30pm on Wednesday.
(v) From the conclusion of school or 3pm Friday until 5pm Sunday.
2.1.2.2In Week 2, from the conclusion of school or 3pm Wednesday until 6.30pm on Wednesday.
2.1.3Following the conclusion of the time in Order 2.1.2 above and thereafter as follows:
2.1.3.1In Week 1:
(iii) From the conclusion of school or 3pm Wednesday until 6.30pm on Wednesday.
(iv) From the conclusion of school or 3pm Friday until the commencement of school or 9am Monday.
2.1.3.2In Week 2, from the conclusion of school or 3pm Wednesday until 6.30pm on Wednesday.
2.2During the school holidays, to commence from 2019:
2.2.1During the first week of the Term 1 and Term 2 school holidays in 2019:
2.2.1.1From 7.30am until 5pm on Monday.
2.2.1.2From 7.30am until 5pm on Tuesday.
2.2.1.3From 7.30am until 5pm on Wednesday.
2.2.1.4From 7.30am until 5pm on Thursday.
2.2.1.5From 7.30am Friday until 7.30am Monday.
2.2.2During the first week of the Term 3 school holidays in 2019:
2.2.2.1From 7.30am until 5pm on Monday.
2.2.2.2From 7.30am until 5pm on Tuesday.
2.2.2.3From 7.30am until 5pm on Wednesday.
2.2.2.4From 7.30am Thursday until 7.30am Monday.
2.2.3During the Christmas school holidays in 2019, from 9am Saturday until 5pm Thursday in Week 1, Week 3 and Week 5 of the school holidays, commencing the first Saturday after the last day of the school term.
2.2.4During the first week of the Term 1 school holidays in 2020:
2.2.4.1From 7.30am until 5pm on Monday.
2.2.4.2From 7.30am Tuesday until 7.30am the following Monday.
2.2.5During the mid-year school holidays commencing Term 2 in 2020 and thereafter:
2.2.5.1From 9am on the first Saturday of such periods until 9am on the second Saturday of such periods in odd numbered years.
2.2.5.2From 9am on the second Saturday of such periods until 9am on the last Saturday of such periods in even numbered years.
2.2.6During the Christmas school holidays commencing 2020 and thereafter, from 9am Saturday until 9am the following Saturday in Week 1, Week 3 and Week 5 of the school holidays, commencing the first Saturday after the last day of the school term.
2.2.7That the father's time with the child pursuant to Order 2.2 is contingent on the father being on annual leave and personally available to care for the child.
2.3On the Father’s Day weekend from 9am Saturday until 5pm Sunday.
2.4At Christmas, in odd numbered years, from 4pm 23 December until 4pm 26 December.
2.5At Easter, from 5pm Holy Thursday until 5pm Easter Monday in even numbered years.
2.6On the child’s birthday if the child is not already in the father’s care:
2.6.1From 3.00pm to 5.30pm if such day falls on a school day; or
2.6.2From 9am until 2pm if such day falls on a non-school day.
2.7On the father's birthday if the child is not already in the father’s care:
2.7.1From 3.00pm to 5.30pm if such day falls on a school day; or
2.7.2From 9am until 7pm if such day falls on a non-school day.
That the father's time with the child pursuant to these Orders be suspended as follows:
3.1On the Mother's Day weekend from 9am Saturday until 5pm Sunday.
3.2At Christmas, in even numbered years, from 4pm 23 December until 4pm 26 December.
3.3At Easter, from 5pm Holy Thursday until 5pm Easter Monday in odd numbered years.
3.4On the child’s birthday if the child is not already in the mother's care:
3.4.1From 3.00pm to 5.30pm if such day falls on a school day; or
3.4.2From 2pm until 7pm if such day falls on a non-school day.
3.5On the mother's birthday if the child is not already in the mother's care:
3.5.1From 3.00pm to 5.30pm if such day falls on a school day; or
3.5.2From 9am until 7pm if such day falls on a non-school day.
Communication with the Child
That the parties facilitate the child having flexible and liberal communication with the other party by telephone, Skype, WeChat or any other agreed communication App, with the parent not spending time with the child being at liberty to communicate with the child between 5pm and 7pm each Monday, Wednesday and Friday or at any reasonable time at the request of the child. If the contact is not answered the party who missed the call is to facilitate the child returning the call as soon as possible that same day. If and when the child has his own device, both parties are to enable Wifi so the child can contact the other party at his pleasure.
Changeover
For the purpose of the father's time with the child on Wednesdays, referred to in Orders 2.1, 2.2 and 2.3 above, the father is to provide the child with dinner and a bath and return the child to the mother's residence at the conclusion of such time.
Subject to Order 5 above, and where changeover does not occur at the child's school, to facilitate these orders changeover is to occur at an agreed location and failing agreement, the mother shall deliver the child to the father's residence at the commencement of the father's time with the child and the father shall deliver the child to the mother's residence at the conclusion of the father's time with the child.
Restraints
Until [X] commences Year 7, and without admissions:
7.1The father or Ms A or Ms B is to supervise any contact between the child and [Y] ("[Y]") at all times the child is spending time with him pursuant to these Orders and is restrained from leaving the child and [Y] (together) in the care of any other person.
7.2If the father or Ms A or Ms B observes that [Y], at any time when the child is present at his home, demonstrates any form of anti-social behaviour, including inappropriate age-based sexualised behaviours or any form of verbal, physical or emotional violence or presents drug or alcohol effected, the child is to be immediately removed by the father from that environment until a safe environment can be established.
7.3The father or Ms A or Ms B is to ensure the child and [Y] maintain separate bedrooms and do not sleep in the same room.
7.4Ms A and Ms B shall only qualify to supervise contact pursuant to Order 7.1 upon the father filing and serving on the mother and the ICL, Undertakings to the Court by those persons stating that they have been provided with a sealed copy of these Orders and agree to be bound by these Orders.
7.5The mother is to supervise any contact between the child and Ms C ("Ms C") and is restrained from leaving the child and Ms C (together) in the care of any other person.
7.6If the mother observes that Ms C, at any time when the child is present at her home, demonstrates any form of anti-social behaviour, including but not limited to any form of violence either verbal, physical or emotional, or presents drug or alcohol effected or has any form of mental health psychosis, [X] is to be immediately removed from that environment and delivered to the father until a safe environment can be established.
7.7The mother is to ensure [X] and Ms C maintains separate bedrooms at her residence and not sleep in the same room.
7.8The mother is to restrain from allowing Ms C to spend any more than one night per week in the mother's house whilst [X] is spending time with the mother.
The father is restrained from allowing the child to come into contact at any time or allowing the child to communicate at any time with the paternal grandfather Mr D.
The parties are restrained from posting (and shall use their best endeavours to ensure any other person does not post) any photo or video of the child to social media without the consent of the other parent.
International Travel
That for the purpose of the child's Passport:
10.1the parties do all acts and sign all documents necessary to ensure the child maintains a valid Australian Passport with the cost of same to be shared equally between the parties.
10.2the mother shall hold the child's passport and provide same to the father not less than 28 days prior to any proposed travel and the father shall return same to the mother within 7 days of return.
10.3should either parent lose the child's Passport, the cost of a new Passport is to be the sole expense of the parent who lost the Passport.
That neither party be permitted to take the child overseas or interstate without the other party’s written consent and that consent to such travel not be unreasonably withheld, except during each parent's time with the child pursuant to Orders 2.3 – 2.7 (inclusive) and Order 3.
For the purpose of Orders 10 and 11, that make up time be provided to the non-traveling parent as agreed between the parties and failing agreement, in either the fortnight immediately preceding or immediately following the proposed travel.
Each parent must provide the other parent with at least 3 months notice of any proposed international travel with the child, including providing the other parent with a copy of airline tickets, a travel itinerary and a contact phone number for where the child will be staying.
NOTATION:
A.The Court notes that the time that child is to spend with the father pursuant to Order 2.1 hereof shall continue through the NSW school holiday periods up to the commencement of the NSW school holidays in April 2019 whereupon Order 2.2 shall take effect.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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