Newbery and Wolseley
[2015] FCCA 92
•12 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NEWBERY & WOLSELEY | [2015] FCCA 92 |
| Catchwords: FAMILY LAW – Parenting – interim arrangements – court urged to take a cautious approach – consideration of what ‘caution’ means. |
| Legislation: Family Law Act 1975, ss.4AB, 13C, 60B, 60CA, 60CC, 60CC(2), 61C, 61DA, 65DAA(5), 65DAC Evidence Act 1995 (Cth), s.69 |
| B & B (1993) FLC 92-357 Jones & Dunkel (1959) 101 CLR 298 Deacon & Castle [2013] FCCA 691 Stevenson & Hughes (1993) FLC 92-363 Family Violence Best Practice Guidelines 3.1 |
| Applicant: | MR NEWBERY |
| Respondent: | MS WOLSELEY |
| File Number: | PAC 244 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 28 August 2014 |
| Date of Last Submission: | 28 August 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 12 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Harper of Ian Harper & Co |
| Counsel for the Respondent: | Mr Schonell |
| Solicitors for the Respondent: | Cls Legal |
| Independent Children’s Lawyer: | Ms Coady of Louise Coady Family Lawyers Pty Limited |
ORDERS
IT IS NOTED that the material produced on subpoena by the [S] Hospital is released to the legal representatives of the parties.
Leave is granted to the Respondent to file in Court today an Affidavit.
Discharge all and any prior parenting orders with respect to the children [X] born [omitted] 2010 and [Y] born [omitted] 2011.
Pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for [X] and [Y] at such times as they are in their respective care.
Pending further order, the children shall spend time with their mother:
(a)Each weekend from 6pm Saturday until no later than 10am Monday;
(b)From 12noon until 6pm Christmas Day; and
(c)From 10.30am until 6pm each Wednesday;
For the purpose of the above time occurring the mother shall be responsible for causing the children to be collected and returned to either their day care centre (if a day care attendance day) or the father’s home.
Pending further order, the children shall at all times other than when they are spending time with their mother spend time with their father.
The mother’s time with the children shall be subject to the following terms and conditions:
(a)The mother shall at all times continue to attend upon her general practitioner and treating psychologist and psychiatrist with such frequency as they may advise and the mother shall forthwith authorise, direct and instruct each of those persons in writing to disclose and provide to the Independent Children’s Lawyer:
(i)Any information the Independent Children’s Lawyer may request; and
(ii)Advise contemporaneous with the event should the mother terminate her therapeutic relationship with those professionals or decline to accept further treatment from them which those professionals or any of them consider necessary (including through ceasing to take medication prescribed other than when in consultation with the prescriber);
(b)The children shall sleep on each and every night when in their mother’s care at the home of the maternal grandparents and not otherwise and shall be at that home between 8pm and 8am each evening.
Each party shall be and is hereby restrained from consuming alcohol whilst the children are in their care and for 12 hours prior to the children coming into their care.
Each parent shall if they have not already done so, do all things, sign all documents and give all consents and authorities and instructions as are necessary to cause each parent to be recorded with the children’s day care/preschool as a parent and emergency contact person and sufficient to allow each parent to obtain directly from that centre such information or reports as they may desire and so as to allow them to be advised of any events at the centre to which parents are invited or encouraged to participate and each parent shall be entitled to so participate including with members of their family.
Each parent shall forthwith and contemporaneous with the event advise the other of any significant illness, injury or hospitalisation relating to the children and including through provision of sufficient authority and information to enable each parent to consult with and be fully advised by any treating doctor and to visit the children is hospitalised.
Each parent shall be entitled to telephone and speak with the children between 6.00pm and 6.30pm on each day that the children are not and have not been in their care and with respect to same:
(a)The parent wishing to speak with the children shall instigate the telephone call; and
(b)The other parent shall provide such assistance to the children as they may need to answer and operate the telephone but will otherwise allow them to speak without interruption or distraction and with privacy.
Reserve my Reasons with respect to today’s determination.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Newbery & Wolseley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 244 of 2014
| MR NEWBERY |
Applicant
And
| MS WOLSELEY |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings relating to interim parenting arrangements for two children, namely:
[X] born [omitted] 2010; and
[Y] born [omitted] 2011.
The parties to the proceedings are the parents of [X] and [Y] namely, their father Mr Newbery (who is the Applicant) and their mother Ms Wolseley (who is the Respondent).
Material considered
In dealing with the proceedings today I have read and considered each of the following documents:
a)In the case of the Applicant father I have read and considered the following:
i)The Initiating Application filed 21 January 2014;
ii)The Amended Initiating Application filed 27 March 2014;
iii)Minute of Orders proposed by the father;
iv)Affidavit of Mr Newbery affirmed 21 January 2014 and filed the same day;
v)Notice of Child Abuse or Family Violence filed 28 March 2014;
vi)Affidavit of Mr Newbery affirmed 15 August 2014 and filed the same day;
vii)Affidavit of Ms N affirmed 16 May 2014 and purportedly filed (though inconsistent with the attestation date) 15 May 2014.
b)In the case of the Respondent mother I have read and considered each of the following:
i)Response filed 17 April 2014;
ii)Affidavit of Ms Wolseley sworn or affirmed 17 April 2014 and filed the same day;
iii)Affidavit of Ms Wolseley sworn or affirmed 14 August 2014 and filed the same day;
iv)Affidavit of Ms Wolseley (described as “Amended Affidavit”) sworn or affirmed 28 August 2014 and filed in Court the same day. Objection was taken to the Affidavit. However, the document has been admitted notwithstanding such objections as:
1. The most significant portion of the Affidavit (annexing a number of medicolegal reports or correspondence from or between medical practitioners) have previously been introduced into evidence by Ms Wolsely’s Affidavit sworn or affirmed 14 August 2014; and
2. The balance of material contained within the Affidavit responds to fresh evidence introduced by Mr Newbery’s Affidavit 15 August 2014 and Ms Wolseley has responded to that material in a timely fashion;
v)Affidavit of Mr W (the paternal grandfather) sworn 5 June 2014;
vi)Affidavit of Mrs W (the paternal grandmother) sworn 5 June 2014;
vii)Outline of Case Document provided by the mother’s counsel.
In addition to the material filed by the parties there have been a number of tenders comprising:
a)Exhibit F1 a letter from Dr I 28 November 2013.
b)Exhibit F2 a letter from Dr H 18 July 2013 regarding Ms Wolseley’s treatment.
c)Exhibit F3 material produced by [omitted] Area Health Service ([C] Hospital)
d)Exhibit F4 a staff/nursing report regarding Ms Wolseley’s admission to hospital.
e)Exhibit F5 a tagged COPS event entry 12 July 2014 and relating to Ms Wolseley.
f)Exhibit M1 material produced by [I] Psychology.
g)Exhibit M2 material produced by the Department of Family and Community Services.
h)Exhibit M3 Material produced by [S] Hospital relating to the mother’s treatment.
I have also had the benefit of submissions made by counsel for each of the parties and the Independent Children’s Lawyer.
The proposals of each party
By his Initiating Application the father sought interim orders that the children live with him and spend time with their mother each Sunday for a few hours with such time to be supervised by the father or “such other persons as are mutually agreed”. On a final basis the father proposed that the children live with him and spend time with their mother each alternate weekend from Saturday to Sunday.
By his Amended Initiating Application the father sought interim orders that the children spend time with their mother each Sunday from 9am until 5pm such time to be supervised by the father or such persons as are mutually agreed.
On a final basis the father sought identical relief. This is so notwithstanding the difficulties that would be faced as regards the granting of such relief by reference to authorities such as B & B (1993) FLC 92-357 and M & M [1988] HCA 68.
By her Response the mother sought orders, on an interim basis, that the children spend time with their mother each weekend from Saturday morning until Tuesday morning and for other periods and specific times, such time to be supervised by the mother’s parents or a third party allocated by the Court.
On a final basis the mother sought orders that the parents have equal shared parental responsibility and that the children spend time with their mother from Saturday morning until Tuesday morning each week the only difference between final and interim relief being the absence of supervision of such time. In essence, the mother seeks orders for a shared care arrangement.
The evidence
The parties do not agree about many things. This is particularly problematic in light of both the seriousness of the allegations the parties and each of them make with respect to the other as well as the relief that is proposed by each.
The matter involves competing (or “duelling”) allegations of serious and unacceptable risk to the children whilst in the unsupervised care of each parent. Accordingly, the Court is urged by each of the parties and the Independent Children’s Lawyer to adopt a “cautious approach”. I propose to briefly address, for the benefit of the parties, the difficulties that arise for the Court especially at interim hearing when evidence is contested but untested, in determining arrangements that are in the best interests of children and in determining what “caution” might mean in those circumstances.
What does “caution” mean?
As these are interim proceedings and virtually the totality of evidence is contested the Court must exercise some caution in making concluded findings of fact. That is not to say that the Court cannot make a finding of fact at interim hearing (see for example paragraph 68 of Goode & Goode (2006) FLC 93-286). However, absent concession, overwhelming and irresistible corroboration or similar circumstance the best that the Court can generally do is to evaluate the evidence of the parties and that available from other sources and proceed to determine the child’s best interests based upon agreed or uncontroversial evidence.
In the case of allegations of risk the Court must approach the evidence suggested to support or found such allegations in a similar manner to the approach taken towards evidence in an interlocutory determination such as an application for leave to apply out of time. The evidence, subject to it being plausible and internally consistent, must be taken at its highest.
In dealing with these proceedings I propose to address each issue of concern through the following matrix or process, namely:
a)What allegation is raised and what risk does it pose to the child?
b)What evidence is led in support of the allegation?
c)Is the allegation or the evidence advanced in support of the allegation admitted or denied?
d)Is the evidence led plausible and internally consistent?
e)Is there reliable third-party documentary evidence which would allow the Court to assess plausibility and internal consistency of the evidence led and which tends to either corroborate or refute the evidence of the parties?
f)If a risk can, on an acceptance of evidence as led (being evidence which is plausible and internally consistent and/or corroborated or tending to be refuted by independent, objective evidence), be suggested or inferred then is there countervailing or opposing risk? This might be, for example, an evaluation of the need to protect a child from suggested harm versus the need to consider the potential harm to the child of interference with an otherwise healthy and ongoing relationship in the event that the allegation is ultimately not proven.
g)What are the risks of each allegation and how might they be weighed against each other having regard to the probability and the seriousness of the consequence of the risk? This would involve application of the unacceptable risk test as discussed by the full court in Johnson & Page [2007] FamCA 1235 and treating the evidence of each party, for the purpose of the exercise, as being “more probably correct”.
h)What safeguards, if any, might exist or might be applied to protect against the risk alleged or its consequences and how successful are those safeguards likely to be in obviating, averting or minimising the consequence of the alleged risk?
i)What action have the parties taken to address the risk that they suggest? This would involve a consideration of the extent to which each party has acted “protectively” in response to the risk that they alleged. Thus, a parent who alleges serious risk but does not take any action which would correspond with that concern being valid or genuine might give some guidance as to the concern that the Court should exercise towards that risk. For example, parents who allege that there is a serious risk of harm to a child but who have facilitated a substantial and significant time arrangement might be taken as suggesting to the Court that their action does not correspond with their stated concern.
j)How do the parties propose to address the risk in the future and is that party’s proposal consistent with their expressed concern and/or consistent with concerns expressed by the other parent? This potentially has some real relevance in the circumstances of this case wherein the father suggests (indeed each parent suggests as regards the other) that the children’s time with their mother requires supervision. The father’s initial proposal had been (and the arrangement between the parties had, for some months, been) that time be supervised by the father. This would, on its face, be consistent with the concerns expressed by the father. It may also be consistent with the concerns expressed by the mother that the father has engaged in a pattern of coercive and controlling behaviour towards her.
Ultimately, the Court must, doing the best that it can with limited and untested evidence, seek to apply the unacceptable risk test and balancing, with respect to each allegation, the proposition “what if it is true and what if it is not?”
Conservatism must, in this context, weigh and balance the risks that arise for children in both exposure to and withdrawal, from a parent as well as the additional risk, in this case, of the parties exposure to each other in light of the allegations that each raises with respect to the other.
The Court must be equally cautious with respect to each parent. The father proposes supervision on the basis of the Court being “cautious” as regards the mother’s time with the children in light of the allegations the father raises. However, the father is also the subject of serious and significant allegations and thus one must be equally cautious as regards the children’s exposure to risk in his care. These are two equally concerning sets of allegations.
Chronology of events
The parties are in relative agreement as to the chronology of events even if not the evidence which relates to or arises from those events. The relatively agreed facts are as follows:
[omitted] 1981 The father is born. At the date of hearing Mr Newbery is 32 years of age.
[omitted] 1989 The mother is born. At the date of hearing Ms Wolseley is 24 years of age.
Late 2009The parties meet on Internet dating website.
December 2009 Ms Wolseley is prescribed antidepressants. Ms Wolseley has a conceded childhood and adolescent history of anorexia or similar eating disorder.
March – May 2010 The parties commence cohabitation.
[omitted] 2010 The child [X] is born. At interim hearing [X] is four years of age. Following [X]’s birth Ms Wolseley remains home on a full-time basis, Mr Newbery is engaged in full-time employment.
October 2010 The mother’s antidepressant medication is increased.
May 2011The mother’s antidepressant medication is again increased.
[omitted] 2011 The child [Y] is born. At interim hearing [Y] is two years and nine months of age.
June 2012The mother’s antidepressant medication is again increased.
[omitted] 2012 The funeral and wake for the father’s father is held. Each of the parties gives evidence of some significance with respect to this event.
December 2012 The parties separate. Ms Wolseley commences to live with [X] and [Y] at the home of her parents and [X] and [Y] spend each weekend with their father.
January 2013 The parties reconcile for approximately one week before again separating. Ms Wolseley again returns to live at the home of her parents and the children spend each weekend with their father.
March 2013The mother changes doctors and medication.
June 2013The mother overdoses on prescribed antidepressant medication and is admitted to hospital for a period of approximately 5 weeks. For the first two weeks of the admission the children are cared for by the maternal grandparents and the children then pass into the care of their father.
August 2013 The children begin to spend time with their mother for brief periods each Sunday that time being supervised by the father. Time arrangements break down in September/October 2013 and do not resume until late January 2014.
21 January 2014 These proceedings are commenced by the father.
23 April 2014 Interim consent orders are made by consent providing for the children to spend time with their mother each Sunday supervised by their father as well as orders for telephone communication.
12 June 2014 Further interim consent orders are made by consent providing for the mother to spend supervised time with the children for some hours each week such time supervised by the maternal grandparents. The proceedings are adjourned for interim hearing following appointment of an Independent Children’s Lawyer.
Evidential issues and allegations
As indicated above each of the parties raise serious allegations with respect to the other.
Mr Newbery makes allegations of Ms Wolseley that she:
a)Consumes alcohol to excess (quantified on specific occasions as being in excess of one bottle of Bacardi Rum per sitting).
b)Has a history of mental illness or mental disorder including a (conceded and agreed) history of eating disorders and, in addition, depression, anxiety and a possible diagnosis (the only evidence of which is wholly unsatisfactory both as to form and absence of corroboration) of Bipolar I.
c)Self-harm and suicidality and including at least two active attempts at suicide together with a suggested history of cutting as a form of anxiety relieving or soothing behaviour. A specific allegation is raised by Mr Newbery that Ms Wolseley had, on 11 December 2012 and whilst heavily intoxicated, stabbed herself in her upper leg with a kitchen knife.
d)Has a history of Department of Family and Community Services involvement.
Ms Wolseley for her part makes allegations of Mr Newbery that he:
a)Has been dominating, coercive and controlling throughout their relationship and post separation.
b)Has a history of depression and anxiety which Ms Wolseley alleges he is medicated for but has failed to disclose.
c)Consumes alcohol to excess (particularised as the consumption of at least six bottles, of unknown size or volume, of beer per day and bottles of bourbon on weekends).
In light of the significant controversy regarding the above allegations, I propose to canvass three aspects of the evidence in some detail.
Medical and psychological evidence
The mother has annexed to her Affidavits (those 14 and 28 August 2014) three reports from persons or agencies with whom she is involved being:
a)Ms S, psychologist at [I] Psychology;
b)Ms O psychologist at [S] Hospital; and
c)Dr H consultant psychiatrist at [O] Medical Centre.
Whilst the report of Ms S is, on its face, addressed to Ms Wolseley’s general practitioner it is clearly a document prepared at the request of Ms Wolseley for the purpose of or in anticipation of this litigation. That much is clear from documents produced on subpoena by [I] Psychology and the notes tendered therefrom constituting exhibit M1. Ms S’s letter is dated 8 August 2014 and the notes which are tendered refer to a telephone call from Ms Wolseley “requesting a change of wording in her progress letter to the Court”. It is also clear from the opening paragraph of the letter that “the purpose of this letter is to recommend that Ms Wolseley with supportive allied health and medical treatment be able to have shared custody of her children”.
The report of Ms O is addressed “to whom it may concern” and would again appear to have been clearly prepared at the request of Ms Wolseley and with a view to supporting her position in these proceedings.
The report of Dr H is the only document of the three which would appear to fall within the description of a “business record” for the purpose of section 69 of the Evidence Act 1995 (Cth), It is addressed to Ms Wolseley’s treating general practitioner. It is also the only document of the three which confines itself to that which a treating medical practitioner should address or speak to, namely a discussion of past history, diagnosis and treatment.
The reports of Ms S and Ms O are not objected to and it is on that basis alone that they have been admitted. If an objection had been raised the reports would have been excluded as:
a)They are clearly not business records; and
b)The authors offer opinion (particularly Ms S) that they demonstrate no qualification to express nor any factual basis to support the opinion expressed.
Each of the reports, to some extent, go beyond relation of treatment and diagnosis and purport to “champion” on behalf of Ms Wolseley. None could properly offer any opinion as to her parenting and parenting capacity as they have not observed her parenting (let alone have qualification for the opinion expressed).
Issue also arises regarding the reports (and especially the first two reports) in that to the extent that the reports offer opinion as to Ms Wolseley’s present functioning and capacity, such opinions are somewhat at odds with that which is produced and tendered from the services at which the authors are employed. For example, to the extent that Ms S offers support for Ms Wolseley as a parent no reference is made by the author to matters of some significance as disclosed in the author’s documents which are tendered comprising exhibit M1. The notes include reference, as recently as January-March 2014, to the mother’s disclosure of “past use of alcohol” and “medication compliance/abuse” together with “emotional issues of anger outbursts resulting in property damage, impulsive issues (use of money to go to [omitted] to see a male she met on Facebook), attempts at communication with parents… risk-taking behaviour (cutting wrists, drinking, meeting up with random follows, punching herself in the face, getting tattooed, getting pregnant)”. None of this is referred to in the report.
There is considerable tension and conflict arising from the issue of subpoena for production of documents addressed to treating psychiatrists, psychologists, counsellors and other therapists. The subpoena of such records are seen or perceived by clinicians as an intrusion into the therapeutic relationship between patient and provider and as undermining the therapeutic basis of treatment founded in confidentiality. Reports of this nature do little to assist in resolution of those tensions and conflicts.
Whilst I need not turn my mind to or determine any issue regarding the impact upon the therapeutic relationship between Ms Wolseley and those who treat her (as none is raised and no objection is made to the production of material on subpoena or its inspection) they are matters which require serious and considered attention and dialogue not only in individual cases but more broadly. That dialogue and the resolution of such “tensions” is not assisted by reports such as those above wherein a psychologist or counsellor, otherwise engaged in a therapeutic relationship with the mother based upon confidentiality, waives that confidentiality and “enters the arena” to offer support neither founded in their qualification or experience, nor reflective of material available to them and, presumably, either not considered or disregarded.
The material is admitted without objection and it represents the best evidence that is available as to the mother’s past and present treatment and diagnosis. However, the value of that “evidence” is undermined by the failure of the authors of such reports to adhere to that which would be professionally expected of them both as to the provision of factual material and opinion expressed within the author’s qualification and by reference thereto and through their implied if not express waiver of any confidentiality regarding their engagement with their patient.
Jones & Dunkel issues
A particular incident of significance which arises on the evidence is the suggested events on [date omitted] 2012. On that date Mr Newbery buried his father and a wake was held after the funeral. Mr Newbery suggests (corroborated by the evidence of his sister) that Ms Wolseley had left the wake with [Y] and had returned after a short absence, then apparently affected by alcohol and drinking Bacardi Rum from a bottle in the child’s bag. It is suggested that [Y] was badly affected by the heat that day and as a consequence of Ms Wolseley having left her in the car whilst she had gone to procure alcohol having then consumed it prior to and/or whilst driving with [Y].
Mr Newbery suggests further that as a consequence of Ms Wolseley’s drinking on this occasion that they left the wake and returned to their home whereupon there was an argument, Mr Newbery telephoned Ms Wolseley’s parents for assistance and requested that they attend at the home (which they did). Mr Newbery suggests that whilst they were at the home that Ms Wolseley took a kitchen knife and stabbed herself in the leg causing significant bleeding.
All five involved have or would be in a position to give evidence with respect to the events as they are suggested to have occurred [date omitted] 2012.
Mr Newbery gives evidence (as above) and his evidence is, to the extent that it is capable of being so, corroborated by his sister. Their evidence is disputed and untested.
Ms Wolseley gives evidence with respect to the above events. She suggests that events did not play out as suggested by Mr Newbery. She goes so far as to suggest that Mr Newbery was, in fact, the one who was drunk on this occasion, that she telephoned her parents and asked them to come and provide assistance to her and that the suggested stabbing of her leg simply did not occur.
If that were where matters ended then the Court would be left with the all too familiar scenario of the allegation and counter allegation and no means of testing evidence to form an objective, independent view or finding. I am satisfied that the Court is still left in that position.
What is of concern is the fact that each of Ms Wolseley’s parents (Mr W and Mrs W) have sworn affidavits in these proceedings. One can only assume that Ms Wolseley had made them aware of the allegations raised regarding events [date omitted] 2012. Whether they were made aware of the allegations or not, each is entirely silent as to their attendance at the home on that day. That is problematic to say the least. Mr and Mrs W neither corroborate Ms Wolseley’s version of events (that Mr Newbery was drunk and abusive) nor seek to refute Mr Newbery’s version of events (that Ms Wolseley was drunk and self-harming).
As was observed by the High Court in Brandi v Mingot (1976) 12 ALR 551:
“… If a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party that failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn”.
It was clearly possible for Mr and Mrs W to give evidence with respect to the events which they were present for. They have sworn affidavits and offered themselves, if required, as supervisors of their daughter’s time.
It would be open to the Court to draw each of the above inferences. I do not propose to do so on this occasion purely as the matter is dealt with on an interim basis and it is unclear whether the drafter of their affidavits, Ms Wolseley’s solicitor, has sought to elicit that information from them. The inferences will most surely be drawn at final hearing absent remedy of the evidential deficiency.
It is also relevant to note that Mr Newbery suggests that he was contacted by Ms Wolseley’s psychologist (Ms S) in or about June/July, 2013 (when Ms Wolseley had been admitted to [C] Hospital for five weeks) and advised by her:
I am Ms Wolseley’s psychologist and I have rung you to tell you how bad Ms Wolseley’s condition is. She has rapid changing bipolar type I changing from mania to depression in hours not days or weeks… I advise that Ms Wolseley is not capable of looking after her children and I’m going to notify the Department of Family and Community Services of Ms Wolseley’s condition.
Notwithstanding that Ms S’s file is produced under subpoena as are records of the Department of Family and Community Services and records from various health providers for Ms Wolseley, including, Ms S’s file, Mr Newbery has not sought to tender any document that would corroborate the above allegation as to communication between he and Ms S, notification by Ms S to the Department of Family and Community Services, or the diagnosis suggested by Mr Newbery to have been communicated to him. That is also a serious evidential defect which would potentially attract and warrant Jones & Dunkel inferences as above.
Material produced on subpoena and exhibits
A number of aspects of the evidence are specifically addressed by that which is tendered from material produced on subpoena. I propose, thus, to canvass that material briefly.
[C] Hospital
The records produced by [C] Hospital relate to the five week admission of Ms Wolseley during June and July 2013. What is noteworthy with respect to those records, (consistent with the approach suggested by the New South Wales Law Reform Commission regarding business records (i.e. to assume and treat them as more likely accurate in the absence of any evidence which would demonstrate the contrary)) is that no reference is contained within those records as to any drug or alcohol issue relating to Ms Wolseley.
The documents do assist in confirming a number of the allegations made by Mr Newbery including the suggestion that Ms Wolseley had caused bruising to her eyes and face from punching herself, was being overly and inappropriately promiscuous and was significantly depressed at the time of admission.
The records also suggest that shortly after the five week admission that Ms Wolseley had sought re-admission and at that time was demonstrating considerable anger towards hospital staff who did not agree with a proposal she was putting to them. At that time hospital staff contacted the maternal grandmother who acted entirely appropriately in the circumstances. Thus the Court can have some confidence that the maternal grandmother has some insight into the mother’s illness and symptomology and would be protective of the children if acting as a supervisor in the future. That is also consistent with the evidence of the grandparents that they have cared for the children for various periods in the past, including, whilst the parents undertook their honeymoon and for the first two weeks of the mother’s admission.
[I] Psychology
As indicated above the notes produced by Ms S trading as [I] Psychology provide some corroboration, without particularisation but as an admission against interests by Ms Wolseley, of Mr Newbery’s allegations of past excessive use of alcohol and self-harming and “risky” behaviours.
Ms S’s notes also provide corroboration, on the same basis, for Ms Wolseley’s allegations as to the abusive and coercive and controlling behaviours of Mr Newbery towards her.
Department of Family and Community Services
No record is tendered which would support Mr Newbery’s contention (as above) as to concerns raised with him or the Department by Ms S.
The records tendered from the Department suggest notifications in November 2011 and January 2012. The reporter’s identity is not known. This notification significantly predates the suggested conversations between Ms S and Mr Newbery (leaving aside its inadmissibility as to form) and, perhaps more importantly, predates Ms S’s engagement with Ms Wolseley.
The Departmental records suggest that the reports made in November 2011 and January 2012 related concerns that both parents were consuming alcohol to excess. The reports also clearly suggest that the “mother had disclosed fleeting thoughts of self-harm and binge drinking whilst breastfeeding” and that the mother had, presumably with the reporter, discussed and agreed to engagement with mental health and drug and alcohol counselling services. The mother had subsequently withdrawn her consent.
Whilst the Departmental records as tendered provide some support for the concerns raised by Mr Newbery of Ms Wolseley, they also raise concerns regarding Mr Newbery’s drinking at dangerous and unhealthy levels. This provides some corroboration of the mother’s allegations with respect to the father as to which allegation Mr Newbery is silent.
[S] Hospital
The primary document tendered from these records is a report from a psychiatrist Dr I (addressed to the mother’s general practitioner) dated 28 November 2013. This report suggests that the mother has been diagnosed with a “borderline personality disorder” and based upon suggested “consistent pattern of impulsivity, mood labality (sic) and recurrent self-harm”. The report also contains disclosures by Ms Wolseley of ongoing eating disorder related thoughts and heavy drinking (although expressed as historical).
The report does provide some corroboration as regards Ms Wolseley’s contemporaneous report to her psychiatrist at that time, of her allegations regarding Mr Newbery’s coercive and controlling behaviour, Mr Newbery’s allegations of her as to impulse buying, overtly promiscuous behaviour and Ms Wolseley’s overdose on prescribed antidepressant medication in November 2013.
New South Wales Police
A COPS event entry 12 July 2014 is tendered. The report refers to the police attending upon the premises of a friend of Ms Wolseley’s at 1:49am and upon attending discovering Ms Wolseley heavily affected by alcohol and emotionally distressed. As a consequence of concerns held by police officers an ambulance was called and the mother was conveyed by ambulance, to hospital for assessment.
Ms Wolseley’s evidence is that she is now and has, since the separation of these parties, been largely alcohol abstinent and has not engaged in any serious binge drinking. At about this time (8 July 2014) Mr Newbery suggests that he was contacted by the mother by telephone and that her voice was unintelligible, her speech slurred and he formed the belief that she was drunk.
Whilst the two events do not directly correlate (being four days apart), I would have some concern as to the mother’s denials of alcohol use during this period when the police record discloses her being affected by alcohol to the point that an ambulance was considered necessary. Thus, I have some concerns and reservations as to the veracity of the mother’s denials of alcohol use both as to frequency and amount.
Conclusion of evidence
I do not propose to canvass the evidence in any more detail at this time. Suffice to say that the totality of evidence has been taken into account by me and whilst not specifically referred to above, I have had regard to all that has been placed before the Court. I will refer to specific portions of the evidence, whether that discussed above or otherwise contained within the material filed or tendered, in a discussion of the legislative pathway to which I now turn.
Legislative pathway
I must commence with section 60CA of the Act which requires that I treat the children’s best interests as the paramount consideration at all times.
I must then turn to the objects and principles set out in section 60B and which I incorporate herein as follows:
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.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Whilst the objects and principles do not form part of the substantive law to be applied to the facts of the case they do guide the application and interpretation of the substantive provisions. They also provide guidance as to the outcome which should be achieved by orders made and in meeting and treating as paramount the best interests of children. Accordingly I propose to consider them briefly.
The first two objects are in similar terms to the primary considerations in section 60CC(2).
The proposals of each parent will not see a significant involvement of these children with the other. That proposed by each is offered, however, on the basis of that what they suggest is required for the children’s protection. Some attention must thus be given to the issues of unacceptable risk that are raised by the parties and each of them.
I incorporate into these reasons the relevant portions of my discussion of the unacceptable risk test set out in Deacon & Castle [2013] FCCA 691 as follows:
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
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. But that is not the issue in this case.
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] (1986) 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.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
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.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
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.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘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’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. 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. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
Based on the evidence set out above I have some concern as to the children being at risk in the care of either parent. On balance, however, the risk, both as to consequence and plausibility, would appear greater as regards Ms Wolseley.
The above is not intended to suggest that Mr Newbery’s evidence is preferred to Ms Wolseley’s. It is intended to suggest that the allegations by each and the evidence in support of those allegations is plausible and internally consistent. I am not in a position, on the basis of the evidence as it stands, to form any concluded view or make finding as to the allegations raised by each parent.
There is no suggestion that the children are not presently well cared for by Mr Newbery. Mr Newbery, on his own evidence, receives substantial assistance from his family in meeting the children’s needs. That is not a criticism of him. It does, however, represent a safeguard which, I am satisfied permits me to continue the primacy of placement with Mr Newbery.
The allegations that are raised with respect to Ms Wolseley and particularly when viewed in the context of Ms Wolseley’s denial of certain aspects thereof (particularly recent alcohol binging) and the material tendered which would cause some doubt as to the complete veracity of those denials, compels that I exercise some caution as to the children’s unsupervised arrangements with the mother. Those concerns would also obviate against the immediate passage of the children into her primary care.
I am satisfied that the supervision of Mr and Mrs W, notwithstanding the evidential defects (as regards events [date omitted] 2012), would provide a sufficient safeguard for the children. That being said I am conscious that “supervision” in its full and complete sense (i.e. constant attention and vigilance) cannot occur around the clock.
The totality of the evidence, including that specifically referred to above, would suggest that Mrs W, in particular, is focused upon the children’s needs and best interests and able to act contrary to her daughter’s desires such as to satisfy me as to her appropriateness as a supervisor. Mr and Mrs W had the full-time care of these children for two block periods (the parties’ honeymoon and the first two weeks of Ms Wolseley’s hospital admission) and accordingly the children are well settled with them, well acquainted with them and comfortable and familiar with the care that they provide.
I am satisfied that the general presence of Mr and Mrs W and the children’s sleeping at their home, combined with other restraints which I propose to put in place regarding Ms Wolseley’s ongoing engagement with her medical practitioners and a restraint upon both parties as to consumption of alcohol whilst the children are in their care, is sufficient to provide some assurance of the children’s care and safeguards against the concerns raised with respect to Ms Wolseley.
I am conscious that the above conditions and prohibitions will, for the interim and until a Family Report can be completed and the matter then advanced to conclusion, meet and serve the children’s needs and interests, including their safety, and best facilitate the children’s meaningful involvement with each parent.
The Court must also ensure that children receive adequate and proper parenting. Each parent raises significant issue as to the capacity of the other to provide such parenting. I am satisfied, that the children will be adequately parented with the intervention and supervision, as a practical and pragmatic reality for each parent, of each set of grandparents. In light of the competing allegations by each parent that the other is incapable this is the only safeguard that could provide such comfort to the Court.
The principles provide a number of rights to be enjoyed by these children including the right to know and be cared for by both parents and a right to spend time and communicate on a regular basis with each parent.
It is concerning that the father suggests that he is unable to have these children and, in particular, the eldest child [X] speak with the mother on each occasion that she telephones. The parties have each been reminded of the obligations imposed by the making of an order and as discussed by their Honours Fogarty and Nygh in Stevenson & Hughes (1993) FLC 92-363. Notwithstanding this the father asserts that he is powerless to have the four-year-old [X] come to the telephone and speak with the mother when she telephones. The mother complains that the father does not take any active step to support her relationship with the children and, further, that he actively interferes in that relationship by allowing the children’s favourite television programs to be on the television at the time that she telephones.
These parents should be aware that the obligation created by any order made by this Court (indeed the obligation created by the principles set out in section 60B) require that they do all things to actively promote and encourage the children’s relationship with the other and do all things necessary to ensure that any order made by the Court is properly and fully complied with not only as to its terms but its spirit.
To the extent that the principles create for these children a right to have their parents agree about future parenting and share duties and responsibilities there is little that the Court can do at this time to procure this outcome. All that the Court can do is to make orders of the nature that have already been made to direct the parties towards family dispute resolution and family counselling by orders made pursuant to section 13C of the Act.
I must then turn to section 61DA and determine whether the presumption of equal shared parental responsibility applies and, if it applies, determine whether it is rebutted.
The presumption does not apply when the Court is satisfied that there are reasonable grounds to believe there is or has been family violence or abuse of the child.
Whilst the father has filed a Form 4 there is no such document filed by the mother. She does, however, make allegations of family violence which fall squarely within the section 4AB definition of family violence and particularly alleging “coercive and controlling” family violence.
I am not satisfied that I am in a position to make any finding of fact that would allow the presumption to not apply. However, I am satisfied that subsection (3) of section 61DA should apply as the presumption would be inappropriate to apply at this point. Each party raises allegations which, if ultimately found to be supported by fact, would suggest that the presumption could not apply or, if it applied, that it should be rebutted.
On that basis I am satisfied that an order should be made pursuant to section 61C that each parent have parental responsibility at such times as the children are in their respective care.
That being so I am not obliged to consider equal or substantial and significant time (see section 65DAA(1)-(3)). I propose to consider all time arrangements at large by reference to section 60CC and incorporating therein section 65DAA(5).
Primary considerations
Section 60CC(2) requires that I consider:
a)The benefit to the child of having a meaningful relationship with both parents; and,
b)The need to protect the child from physical or psychological harm.
As indicated above I am satisfied that each party raises concerns that would, if ultimately established, satisfy the Court that an unacceptable risk of harm exists as regards the children’s care by the other parent. However, as already indicated, I am satisfied that the children’s best interests would be met by orders which ensure that appropriate safeguards are in place, whether as a consequence of orders of this Court or informally, which address those concerns. For the reasons addressed above, I am satisfied that this would be best met by the children continuing to have a primacy of care provided by their father and spending time with their mother each weekend, and for other periods, provided she remains resident at the home of her parents.
The above is not intended to be a pre-determination of issues as regards the final outcome of these proceedings. It is, however, intended to reflect the best determination that can be made by the Court at this time based upon available evidence.
As there is a significant correlation between the objects and the primary considerations I am satisfied that the discussion above addresses the primary considerations. The primary considerations would support the children’s continued primary residence with their father (with support and assistance and, to a significant extent, the vigilance and “safeguard” of his parents and extended family) and the children’s time with their mother on a regular, frequent and overnight basis (again with the support, assistance, vigilance and supervision of her parents).
Additional considerations
Views
There is no evidence led as to the views of these children regarding their future care arrangements. Indeed, at their ages (four and two respectively) such evidence would be so far from dispositive or determinative as to be, in effect, meaningless.
Nature of the children’s relationship with each parent and other persons, including grandparents
I am conscious that there is no controversy that from the birth of [X] and until the separation of these parties (indeed until June 2013) that the children lived primarily with their mother and were cared for primarily by her. That, however, cannot be the end of the issue.
On the basis of the father’s evidence (and there is some tacit corroboration of the father’s evidence by that tendered and set out above) there is some real concern as to the care provided for the children by the mother during the period prior to separation and, following separation and until June 2013, provided by the mother and the maternal grandparents. Serious issue is raised as to the mother’s sobriety and mental health and functioning.
With respect to the above period it must be noted that the mother alleges, and the father either does not respond or concedes that:
a)She was not engaged in paid employment (although engaged in some study) and cared for the children for the majority of this period;
b)The father was in full-time paid employment throughout this period;
c)The father was engaged in significant and excessive use of alcohol and significant absences from the home and thus the children’s care.
The evidence in its totality, untested as it is, would suggest that there is some real issue as to the children’s primary bond or attachment, let alone the adequacy or appropriateness of the children’s care arrangements prior to separation.
Following separation there is no issue that, until June 2013, the children were primarily in the mother’s care. There is, however, significant issue as to the mother’s capacity to provide for the children and thus her capacity to form an appropriate bond and attachment with the children during this period. What is not in issue is the engagement and involvement of the maternal grandparents during this period.
Following separation there is little, if any disagreement that the father had the children in his care, at least during the period from December 2012 until June 2013, each weekend. To the extent that the mother raises concerns as to the father’s capacity to care for the children, I have the clear and unequivocal evidence, supported by material tendered in the mother’s case, that the children spent these periods with their father with the mother’s consent and without complaint raised by her.
The mother cannot be heard to vociferously complain that the father was incompetent or incapable of caring for the children as a consequence of the complaints and allegations that she now raises when she was, during that the period from December 2012 until June 2013, content for him to have the children in his care each and every weekend from Friday until Sunday/Monday.
Whilst I cannot discount the concerns that the mother raises, based upon her action in response thereto I have some concern.
I also have some concern as to the father’s approach towards the children’s relationship with the mother following their coming into his care June 2013. For some 10 months (June 2013 and until April 2014) the only time that the children spent with their mother was on a supervised basis and supervised by the father.
In light of the allegations raised by the mother as to the father’s conduct and general attitude towards her, of a coercive and controlling nature, this would appear to have been an entirely inappropriate arrangement. Further, it would appear to have been an arrangement which would have had the effect of significantly impacting upon the mother’s mental health and the mother’s ability to interact with the children (as well as her ability to attend and participate in such periods of time).
I am satisfied that each parent has as good a relationship with these children as does the other. Further, I am satisfied that the maternal grandparents have a good relationship with the children and have, in all probability (although the evidence is silent as to the issue) a comparable relationship with the extended paternal family.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making or spend time with the children
The father is highly critical of the mother in this regard. The father’s evidence is resplendent with complaint that the mother has failed to telephone the children or attend to periods of time with them when time has been offered.
The above criticism must be viewed within the context of:
a)The father’s evidence that [X] has “refused” to speak with the mother on occasions when she has telephoned. The mother complains that the child is distracted by the television and his favourite programmes at times when she calls. Irrespective of this complaint it is somewhat curious that the father suggests that a four-year-old child has “refused” to speak to a parent and that he has been powerless to have the child speak with his mother. Again, both parents should have regard to the discussion of their honours Fogarty and Nygh in Stevenson & Hughes. Mr Newbery’s evidence in this regards speaks ill of his insight and capacity; and
b)The mother has certainly failed to attend all periods of time that have been available to her. There is sufficient evidence to suggest that, at least on some of the occasions, this has been based upon the mother suffering from the sequalae or consequence of alcohol consumption. I need not make any finding that it is so. However, the evidence would plausibly support the father’s contention.
Prior to the June 2012 amendments to the Act, the Court was also directed to consider the extent to which each parent had interfered in the capacity of the other to engage with the children through communicating or spending time with them.
The mother raises this as a significant complaint as regards the father. I need not make any finding as to whether this is so or not. However, suffice to observe, that both the mother’s complaints and those of the father are entirely plausible.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
The father is highly critical of the mother for her failure to contribute towards the children’s financial support. However, the most significant evidence regarding this factor is contained in the mother’s evidence. The mother does pay child support as assessed being approximately $190 per fortnight.
The mother’s evidence suggests that the father has raised with her, in an entirely inappropriate, dictatorial and aggressive fashion, concerns that he holds regarding the mother’s employment, income and contribution to the children’s expenses. The emails or text messages which are attached to the mother’s material are the basis for some serious concern as to the father’s attitude towards the mother and co-parenting generally.
I am satisfied that the mother, whom the parties agree provides child support in accordance with an administrative assessment, makes an adequate and sufficient contribution to the children’s support albeit that the majority of financial support devolves to the father.
Practical difficulty and expense
I incorporate herein section 65DAA(5).
(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.
These parents do not live any significant distance apart from each other. They both live within the Sydney metropolitan area and are approximately one hour apart from each other by car (having regard to traffic).
The parents have a capacity to implement any arrangement as to time between the children and each parent as they desire. The father has some practical impediments as a consequence of his employment. However, the parents and each of them are abundantly capable of meeting and complying with any order as might be made by the Court. Each asserts that it is so.
The parents have limited communication with each other at present and limited capacity to resolve issues in dispute. One would hope that family counselling services would assist in improvement of this. However, at present the parents are unable to appropriately or fully communicate with each other.
The capacity of these parents to communicate does not obviate against unsupervised time. Neither parent leads evidence that suggests that they would be incapable of providing for the children or complying with any arrangement if it were ordered against their will. Accordingly, I am satisfied that arrangements that would see the children spend regular and frequent time with each parent would be beneficial to the children and would be capable of compliance by the parents.
I am satisfied that the impact of any arrangement upon these children is appropriately discussed and addressed above.
Capacity of each parent to meet the children’s emotional and intellectual needs
Each parent is highly critical of the other as regards this factor. There is some merit to the criticism that each raises of the other at least from the perspective of that which is alleged by each.
I am satisfied that each parent, particularly with supports and safeguards in place from their extended family, is capable of meeting the children’s needs emotionally, financially, practically and physically for such periods as the children will spend in their care.
The maturity, sex, lifestyle and background of the children
These are very young children aged four and two years respectively.
On an acceptance of the evidence of each party, taken at its highest, these parents have not provided ideal care to the children since birth. If the evidence of each parent is to be believed then these children have, since birth, had a significant deficit in emotional, practical and sober parenting.
These children at their ages require the most sober and abundant parenting that is available. On an interim basis and taking the evidence of each party on its face I am satisfied that this could best be met by a continuation of the present primary care arrangement subject to the children being permitted the opportunity of a far more expansive relationship with their mother to enable them to enjoy the benefit of the care and nurture and development offered by not only their mother but the maternal grandparents to care for them and develop relationships with them. Those care arrangements would be a substantial benefit to these children.
Aboriginality
Neither parent identifies as an Aboriginal or Torres Strait Islander and neither do these children.
The attitude to the children and responsibilities of parenthood demonstrated by each parent
I am satisfied that this consideration is addressed by the above discussion.
Family violence
The mother suggests that she has been the victim of coercive controlling family violence throughout the relationship the parties.
Family violence is defined in an expensive and illustrative fashion by section 4AB of the act which provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The mother’s evidence taken at its highest would suggest that there are significant issues with respect to family violence to explore in this case. They will be fully and properly explored at final hearing and with the benefit of the Family Report and full and complete evidence of the parties tested by cross-examination.
The father denies any wrongdoing as regards family violence. I am not ignorant of the father’s denial. However, there are portions of the subpoenaed material, tendered and marked as exhibits, that would provide some tacit corroboration for the mother’s allegations, and thus the mother’s allegations cannot be disregarded. It is part of what must be approached cautiously.
Doing the best that I can and having regard to the Family Violence Best Practice Guidelines 3.1 and the cases discussed therein, I am conscious that balancing those factors against all others, including the potential need for the children’s protection from harm in the care of either parent, that the orders proposed by me, that the children live primarily with their father and spend regular “monitored” or “supervised” time with their mother are the best that can be achieved for the limited period until a final hearing can occur.
Family violence orders
There are none.
Whether it is preferable to make orders that would least likely lead to the institution of future proceedings
I am satisfied the future proceedings are unavoidable. It is open to these parties to engage in discourse, dialogue and negotiation through such means as they may desire.
The parties have not attended family dispute resolution. I would propose that prior to any final hearing of the proceedings that family dispute resolution and family counselling would occur. However, I have no desire to see the parties “overstretched” or engaged in processes which would be unhelpful to them.
Assessment for the suitability of such services will occur during the adjourned period and will afford to these parties, subject to assessment of suitability, real benefit in seeking to discuss and resolve issues between them and/or develop communication and “parental alliance” skills and strategies that will aid these parents in co-parenting.
Other facts or circumstances
I am satisfied that the above sufficiently addresses the issues of concern between these parties and sufficiently supports the orders which will be made.
I propose to make orders that will allocate parental responsibility jointly and severally between the parents. What is clear is that at this point the parents are unable to cooperate with each other and make joint and consensual decisions. Accordingly, any order for equal shared parental responsibility would ultimately be a fallacy. The parties are not able, by reference to the obligations created by section 65DAC of the Act, to negotiate and make a genuine effort to resolve issues between them. This situation may well change and one would hope that it will. However, at present, an order for joint and several parental responsibility is the best that can be achieved.
I propose to make an order, as would be apparent from the above, that these children live primarily with their father. However, I am satisfied the children should spend regular, weekly time with their mother. I propose to make an order that will see a sharing of the children’s week between the parents. I am conscious that neither parent will have an uninterrupted weekend as I propose to make orders for time to occur from Saturday evening until Monday morning each week (in favour of the mother). This will give the children the benefit of a settled base with their father and with the supports and safeguards in place through the assistance of his extended family. It will afford the children the opportunity to spend time and continue a relationship with their mother with the supports and safeguards offered by the maternal family.
I propose to make orders that will impose terms and conditions upon the mother’s time and as already addressed above. Whilst it may be said that such orders are difficult to “police” I am concerned that an order of the Court must, at some point, have some meaning and validity. Accordingly, an order for the mother to do certain things should be taken by her seriously. Should the mother fail to comply with the terms and conditions imposed upon her time with the children then the proceedings, if relisted, may take a very different turn.
I otherwise propose to make orders that will see each parent sharing in decision-making regarding the children’s day care, preschool and future school decisions.
Future case management
Orders have already been made by me to commission a Family Report. That Report should be available by early 2015.
On the basis that the Family Report will be available in the New Year it is probable that the proceedings will be listed for hearing August-October 2015. Whilst this is a delay that would ideally be avoided in present circumstances and having regard to present resources, it cannot. The matter will reach hearing as quickly as can be achieved in all circumstances and as quickly as is possible having regard to the significant delay that has already occurred as a consequence of the repeated desire of the parties for adjournment (to enable discussion and negotiation which has not lead to a resolution of the matter or any limiting of issues) and the appointment of the Independent Children’s Lawyer (at least one adjournment of some months having arisen as a consequence of the Independent Children’s Lawyer having been appointed less than promptly after an order was made by this Court).
In all of the above circumstances I am satisfied that orders which will see the children live primarily with their father and spend regular, weekly monitored time with their mother will best serve the objects and principles of the legislation and best address the children’s best interests.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 12 February 2015
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Civil Procedure
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Administrative Law
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Standing
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