O’NEILL & HAYLEY (No.2)
[2015] FCCA 2219
•21 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| O’NEILL & HAYLEY (No.2) | [2015] FCCA 2219 |
| Catchwords: FAMILY LAW – Parenting – future care arrangements – allegations of drug use – substantial issues of credit – preference given to business records as accurate rather than the mother’s evidence – children’s school attendance and general “neglect” – unsupported allegations of abuse – family violence of a coercive and controlling nature perpetrated by the mother using the children by withholding their time with the father and enmeshing the children in parental conflict – inability of the mother to support the children’s relationship with the father – reversal of children’s primary care arrangements. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 60CC(2A), 60I, 61DA, 65DAA(5), 65DAC, 65F, 67Z, 67ZT, 69ZV |
| Makita & Sprowles (2001) 52 NSWLR 705 Other Articles Cited: Stephen Odgers “Uniform Evidence Law”, 10th edition New South Wales Law Reform Commission, “Evidence (Business Records)” (1973) Report 17 |
| Applicant: | MR O'NEILL |
| Respondent: | MS HAYLEY |
| File Number: | AYC 198 of 2013 |
| Judgment of: | Judge Harman |
| Hearing dates: | 23, 24 July 2015 |
| Date of Last Submission: | 24 July 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 21 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Longworth |
| Solicitors for the Applicant: | Robb & Associates Solicitors |
| The Respondent appeared in person |
ORDERS
The father, Mr O'Neill, shall have parental responsibility for the children, X and Y, born (omitted) 2008.
X and Y shall live with their father.
X and Y shall spend time with their mother as agreed between the parents and, failing agreement, as follows:
(a)Each alternate weekend from the conclusion of school Friday until 5:00pm Sunday (extending to 6:00pm during daylight savings);
(b)Each Wednesday evening from the conclusion of school until 6:00pm;
(c)For the first half of each short Victorian school holiday period (being those following first, second and third terms) from 10:00am on the first Saturday until 6:00pm on the middle Sunday;
(d)For one half of the Christmas holidays in each year, and being:
(i)In 2015/2016 and each alternate year thereafter:
1. From 10:00am on the day after school breaks up until 5:00pm Christmas Day;
2. From 10:00am 9 January until 5:00pm 23 January;
(ii)In 2016/2017 and each alternate year thereafter:
1. From 5:00pm Christmas Day until 5:00pm New Year’s Day;
2. From 5:00pm 16 January until 5:00pm the day before term 1 of the new school year commences;
(e)For a period of time on the children’s birthday in each year ((omitted)) and if a school day, from the conclusion of school until 5:00pm and if not a school day, from 1:00pm until 5:00pm (and provided that the children shall, if in the mother’s care on their birthday, spend the same period of time with their father on their birthday);
(f)Each Mother’s Day weekend from the conclusion of school Friday until 5:00pm Sunday (and provided that the children shall spend the Father’s Day weekend for the entire weekend with their father in each year).
Each parent shall be entitled to telephone and speak with Y and X between 6:00pm and 6:30pm on any day when the children are not and have not been in their care, and with respect to the same:
(a)The parent wishing to speak with the children shall initiate the telephone call;
(b)Each parent shall do all things within their power to assist the children in being present and in answering the telephone and thereafter to speak with their parent without interruption and distraction and with privacy.
Each parent shall, to the extent that they have not already done so, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to ensure that each parent is recorded with any school attended by the children as both a parent and emergency contact person and so as to ensure that each parent can receive advice of any events at the school to which parents are invited or encouraged to attend, to attend such events and to obtain directly from the school all information or reports (whether oral or written) as they may desire.
Each party shall forthwith and contemporaneous with the event, advise the other of any significant illness, injury, specialist medical appointment or hospitalisation relevant to the children and shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and permit each parent to be fully advised and consulted with respect to any treatment provided to the children and to visit the children if hospitalised.
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.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym O'Neill & Hayley (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
AYC 198 of 2013
| MR O'NEILL |
Applicant
And
| MS HAYLEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing Applications for parenting Orders with respect to twins X and Y, born (omitted) 2008. The twins, X and Y, are presently aged seven years.
The parties to the proceedings are the children’s parents, being their father, Mr O'Neill, (otherwise known as “Mr O’Neill”), who is the Applicant, and their mother, Ms Hayley, who is the Respondent.
Other Relevant People
Ms Hayley has two children from prior relationships, A and B. Both are now adults.
A continues to live with Ms Hayley. A has assumed some significance in the evidence principally related to allegations by Ms Hayley that A was mistreated by Mr O'Neill during their relationship together. Mr O'Neill for his part is somewhat dismissive of A. Mr O'Neill suggests that A is a person who is infrequently engaged in employment and who has a predisposition to a number of behaviours suggested to cause concern, including a predilection to viewing pornography.
As the evidence has ultimately fallen, the Court need not make any determination with respect to the above matters. Reference to these allegations is not intended to discredit or create embarrassment for A. It is simply a recitation of matters these parties and each of them have raised.
Ms Hayley’s son B is referred to only briefly in the evidence of the parties. B was included in interviews for preparation of the second Family Report (see paragraphs 6-15 of that Report). B was present at the home of Mr O'Neill at the time of the Family Report interviews. Certain comments are ascribed to B by the Report writer.
B has a relationship (or did at the time of the Report interviews) with both Mr O'Neill and Ms Hayley. B attended Court and remained for the totality of the hearing. B did not, however, swear an Affidavit or give evidence in these proceedings.
At the close of her case Ms Hayley sought to tender certain handwritten notes reportedly prepared by B. The tender was sought to be made to dispute that ascribed to B in the Family Report. Suffice to say that the comments ascribed to B by the Family Report writer were critical of his mother.
Mr O'Neill’s evidence is that B’s relationship with his mother has broken down significantly. Certainly he lives independently of either of these parties and has done so for some little time. B’s attendance at Court was in the company of his mother. That may reflect, although no evidence was led by either party on the issue (and, thus, I do not make any finding nor draw any inference) repair of his relationship with his mother and possibly a corresponding deterioration in the relationship that he has previously enjoyed (and is observed by Mr P as enjoying) with Mr O'Neill.
The tender of material by Ms Hayley (of notes purportedly prepared by or on behalf of B to address that which is contained within the Report) was rejected. I will deal with and address that issue in a discussion of evidential principles and, in particular, Makita & Sprowles (2001) 52 NSWLR 705.
Mr O'Neill also has a child of a previous relationship, Z. Z is presently 10 years of age. Z lives with his father. Sadly, Z’s mother is deceased.
Much reference is made to Z in these proceedings. All of that raised by Ms Hayley is critical. Ms Hayley’s evidence with respect to Z could well be described (and having heard all of the evidence and having considered it advisedly so), as a “demonization” of Z. I am not satisfied that there is any basis for such a view of Z and for reasons that I will discuss hereafter.
All three of the above children (albeit two of them are now adults) have relevance to the proceedings in one respect or another and it will be noted that they are referred to in the chronology of events set out below.
History of Proceedings
These proceedings have a relatively short history before the Court in comparison to other matters in the present climate of lack of resources and consequent delay. However, the matter has, unfortunately, been delayed in its conclusion as a consequence of a number of events.
The proceedings were commenced by an Application Initiating Proceedings filed 11 June 2013. That Application remains largely reflective of the relief sought by the Applicant father.
The Application seeks Orders on a final basis for:
a)The parents to have equal shared parental responsibility;
b)The children to live with their father;
c)The children to spend time with their mother each alternate weekend from 5:00pm Friday until 5:00pm Sunday together with a period of a few hours one evening per week;
d)Restraint upon the mother from taking prescribed medication in excess of or less than their prescribed dosage or using prohibited drugs.
On an interim basis Mr O'Neill sought:
a)To restrain the mother from removing the children’s place of residence beyond 20 kilometres from the (omitted) Post Office;
b)That the parents have equal shared parental responsibility;
c)That the children live with their father;
d)That the children spend time with their mother for the same periods and subject to the same terms and conditions above; and
e)An Order for supervised urinalysis.
At Trial the father has sought an Order for sole parental responsibility. No objection was raised by the mother or her Counsel (for such periods of the hearing as the mother retained Counsel) as to that amendment. The proposed amendment was advised prior to the hearing and I am satisfied that due process has been afforded to the mother in the prosecution of that position by Mr O'Neill.
Ms Hayley by her Response filed 22 August 2013 sought Orders on final basis that:
a)The parents would have equal shared parental responsibility for the twins;
b)The twins live with her; and
c)The twins spend time with their father in relatively similar, though not identical terms, to the Orders proposed by the father as regards the mother. Ms Hayley proposes that the twins spend each alternate weekend from Friday to Sunday with their father together with periods during school holidays from 5:00pm on the last Friday of the term until 5:00pm on the middle Sunday.
Mr O'Neill's Application is silent as to school holiday time. It would appear that school holiday periods are, in fact, proposed by the father, albeit for non-particularised periods.
The interim relief sought by Ms Hayley was in similar terms to that sought by the father, albeit a mirror image of the relief he proposed.
Prior to Ms Hayley filing her Response interim Orders had been made by consent on the first return date of the proceedings namely, 3 July 2013. Those Orders provided for the father to spend time with the children for the majority of weekends being three weekends out of four.
The interim Orders had also contained a restraint upon Ms Hayley, made by consent, that she not relocate the children’s place of residence beyond a radius of 30 kilometres from the (omitted) Post Office.
Following the making of interim Orders on 3 July 2013 the parties attended upon a Family Consultant for the purpose of a Child Dispute Conference. The Memo produced is not part of the evidence at hearing.
The matter then returned to Court for mention and directions 28 August 2013. On that date, a number of procedural and interlocutory Orders were made by consent including an Order for preparation of a Family Report.
By Order made in Chambers 13 January 2014 the first of two Family Reports prepared in these proceedings was released to the parties.
The matter then returned before the Court for mention and directions 24 February 2014. At that time the matter was adjourned at the request of the parties to enable them to pursue Family Dispute Resolution and explore settlement.
The matter was again before the Court on 13 March 2014. On that date hearing dates were allocated to the matter on the basis that it would be heard in Wagga Wagga (the Albury and Wagga Wagga circuits then being combined). The matter was listed for hearing at Wagga Wagga as dates were available for hearing at that location whereas no hearing dates were available in Albury for the remainder of 2014. The hearing dates allocated to the matter in Wagga Wagga were subsequently vacated and the file returned to the Albury circuit.
Following return from the Wagga Wagga circuit, the matter was listed for hearing 25 and 26 September 2014 at Albury. The matter was listed on those dates notwithstanding that the Albury circuit was already 500 per cent over-listed. The matter was listed with optimism that it might be accommodated. The matter could not proceed on those dates and the matter was adjourned to fresh hearing dates 23 and 24 July 2015. An updated Family Report was ordered in light of matters that had been raised by the mother in her Trial Affidavit. The second Family Report was released to the parties by order made in Chambers 18 March 2015.
The hearing of the matter has been contained within the two days fixed. That is so notwithstanding that during the course of the trial there were a number of interruptions, some from other business before the Court and one arising from an Application made by Ms Hayley’s then attorneys that they be granted leave to withdraw. That Application was determined and leave granted.
A separate Judgment was delivered with respect to that Application and on the morning of the second day of Trial, 24 July 2015. Those reasons are not directly connected with the determination of the substantive issues between these parents, although, for the purpose of findings of credit, some reference will be made to those reasons.
Orders sought at trial
As indicated, the father seeks relief substantially in accordance with the Application filed by him. The only variance is a plea for sole parental responsibility as outlined by his Counsel in a Case Outline document filed prior to Trial.
The mother, during the course of the second day of Trial, tendered a Minute of the Orders sought by her. That Minute is marked Exhibit M2. That document was prepared on behalf of the mother by her then attorneys and based upon her instructions. The mother personally tendered the document following the withdrawal of her legal representatives. In her cross-examination, the mother affirmed that she sought Orders in accordance with that document and that the document set out the totality of relief sought by her. That also is an issue that must be touched upon briefly as regards issues of credit.
The third proposal in the proceedings, if it might be so described, arises from the recommendations of the Family Report writer. The Reports each contained identical recommendations being that X and Y spend equal time with each parent over the period of a fortnight with such time to occur in blocks of five nights or two nights respectively and including a weekend for each parent.
The parents in these proceedings do not agree on very much at all. One thing they do agree on is that “the Family Report writer’s recommendation is wrong”. Neither supports the recommendation of the Family Report writer.
What is clear from the second Report is that each of the parents were somewhat disaffected, expressing that they were “disappointed”, by the first Report both as to its recommendations and its methodology.
Since release of the second Report, Ms Hayley has also expressed her disquiet as to certain portions of that recorded within the second Family Report and, in particular, a portion of the Report (paragraphs 22-24) which purport to record a conversation between the Report writer and the Vice Principal of the school attended by the children, (omitted) Primary School, being a Ms M.
Following release of the second Report to these parties, and on 14 April 2015, Ms Hayley attended upon the children’s school insistent that she speak with Ms M for the purpose of expressing her disquiet as to that reported of her. In particular, Ms Hayley was angered by one portion of the Report wherein Ms M is suggested to have commented upon the possible involvement of Ms Hayley’s eldest son in certain events with the Police.
The notes produced by the school and tendered (which I will touch upon in later portions of these reasons) suggests that Ms Hayley had initially attended at the school insistent upon speaking to Ms M, and subsequently returned to the school with a photocopied portion of the Report to provide to Ms M and upon speaking with Ms M insisted that she retract the comment failing which Ms Hayley indicated that she would “commence proceedings for slander” and contact the Department of Education to “have” Ms M’s job. As indicated, those issues will be touched upon further in relation to credit and a discussion of the evidence generally.
Evidence considered
In dealing with the proceedings, I have read and considered the following material.
In the case of the father I have read the following documents:
a)His Initiating Application filed 11 June 2013;
b)An Affidavit sworn or affirmed by Mr O'Neill 11 August 2014, filed 12 August 2014;
c)An Affidavit of Mr O'Neill, sworn or affirmed 9 July 2015 and filed the same date;
d)An Affidavit of Mr O'Neill (the paternal grandfather) sworn or affirmed 12 August 2014 and filed the same date;
e)A Case Outline document provided by Counsel for Mr O'Neill.
In the case of Ms Hayley, I have read and considered each of the documents:
a)The Response filed 22 August 2013;
b)Ms Hayley's Affidavit, sworn or affirmed 18 September 2014, filed 19 September 2014;
c)The Affidavit of Ms Hayley, sworn or affirmed 22 July 2015 and filed the same date;
d)The Case Outline document provided by Ms Hayley's Counsel.
In the proceedings, I have also received a number of Exhibits comprising:
a)Exhibit A, the first Family report prepared by Mr P and dated 7 January 2014;
b)Exhibit B, the second Family Report prepared by Mr P, dated 17 March 2015;
c)Exhibit M1, certain records produced by Heads Up/Headspace Counselling;
d)Exhibit M2, the Minute of Orders proposed by Ms Hayley;
e)Exhibit M3, portions of three medication boxes comprising two with a prescription notification attached and one without (being a patent medication purchased across the counter and being “strong pain relief extra” tablets). This Exhibit was admitted over the objection of Counsel for Mr O'Neill as other Exhibits made clear that prescriptions for the drugs identified had, in fact, been issued to Ms Hayley;
f)Exhibit F1 certain material produced by Victoria Police;
g)Exhibit F2, certain material produced by the Department of Human Services and as tagged;
h)Exhibit F3, certain material produced by the children’s school;
i)Exhibit F4, notices of absence with respect to the children and their school attendance;
j)Exhibit F5, further material produced from Victoria Police;
k)Exhibit F6, further material produced from (omitted) Public School;
l)Exhibit F7, urinalysis results and counselling notes with respect to the mother and from her general practitioner.
Discussion of evidence
There are a number of areas of significant dispute between these parents and which I will specifically address. Before doing so, however, I note that the Case Outline document filed by Counsel for each of the parties has incorporated an extensive chronology of events. The chronologies that are provided are somewhat partisan. That is not a criticism, merely an observation that it is so.
On the basis that Counsel for each party has provided an extensive chronology which summarises the evidence, at least from the perspective of each parent, I propose to incorporate each. Firstly that of the Applicant set out hereunder and thereafter that of the Respondent, also set out hereunder.
DATE EVENT Ref (omitted) 2008 Birth of the Respondent Mother
F¶2 (omitted) 1970 Birth of the Applicant Father
F¶3 (omitted) 1989 Birth of A, child of the mother from a previous relationship with Mr N.
A has not seen his father since he was a baby.
F¶6
F¶66
(omitted) 1997 Birth of B, child of the mother from a previous relationship with Mr M.
B had not seen his father since he was 3 years of age until he turned 16.
F¶6
F¶76
(omitted) 2004 Birth of Z, child of the father from a previous relationship with Ms S (who is now deceased).
F¶7 About April 2006 The father discovers he is the father of Z.
F¶85 2006 Parties commence cohabitation
F¶4 2006 Z comes into the father’s care.
F¶86 2006
The mother takes 2 tablets of ‘endone’ following which she passes out and cannot be roused.
F¶56 2006 The mother slaps and hits B (then aged 9) who had arrived home late from school.
F¶95 2007
The mother receives a letter from the solicitor for B’s father, Mr M, seeking time with B.
F¶77 (omitted) 2008 Birth of X, child of the parties
Birth of Y, child of the parties.The mother’s attitude to Z changes becoming less caring.
F¶5
F¶87,88
2012
Whilst the parties are at a club, the mother berates and intimidates a young female attendant causing her to cry and resulting in the mother being banned.
F¶93 March 2012
Parties separate.
The mother returns to live in her Housing Commission house. The father assists her to clean it up.
From now until about April 2013, the boys live with the mother but spend time with the father every weekend from Friday afternoon, generally to Saturday morning or Sunday afternoon.
F¶4
F¶113, 114
March 2012 The father takes employment out on the (omitted) so he could clear the $12,000 debt left following the separation.
F¶165 March 2012 The mother calls the father for assistance asserting she needed assistance in an altercation with her neighbours. Upon arrival the father could smell alcohol and ‘pot’ about the mother. The father observed the mother to act in an aggressive and provocative manner towards the neighbours.
F¶99 July 2012 The father receives treatment for depression.
F¶209 September 2012 The father observes A to wipe blood from his mouth and nose who said “She gave it to me because I didn’t do what she wanted me to do”.
F¶94 24 December 2012
The father asks if he and Z can stay the night to be with the twins on Christmas morning. The mother refuses but agrees to Z staying. About 45 minutes later the mother calls the father to collect Z. On the father’s arrival, the mother is rude, intemperate and degrading about and in front of Z (then aged 8) saying things like:
· “Z is a little cunt”.
· “All he does is fight with his little brothers”.
· “I don’t want to see him again”.
· “I am not your mother”.
· “Fuck off and go with your father.”
· “I don’t want anything to do with you”.
F¶91 Early 2013 The mother tells the father about an altercation she had with a neighbour which resulted in police involvement and court action.
F¶100 February 2013 The mother reported that someone had damaged her car with paint.
F¶108 February or March 2013 The mother reports further disagreements with her neighbours which, she asserted, had scared the children.
F¶106 March 2013 The mother asserts that 2 men tried to break into her caravan and burn it down. The next day the father installed a surveillance camera at the mother’s home.
F¶109, 110 9 March 2013
The father buys a new fridge for the mother and delivers it. Whilst the father is delivering the fridge, the mother becomes involved in an argument with a neighbour. The father decides to remove the children from the altercation. Later that night the father receives an irrational text from the mother.
F¶103, 104.
Annx AMarch 2013 The father learns the mother is in a new relationship.
F¶120 March 2013 The mother makes it more difficult for the father to spend time with the children.
F¶122 Early April 2013 The mother says to the father “I am going to move to Melbourne with the boys.”
F¶123 27 April 2013 The mother unilaterally ceases providing the children to spend time with the father.
F¶122 30 April 2013 The father sends 2 texts to the mother asking to see the boys for his birthday. The mother refuses.
F¶124, 125 Early May 2013 The mother intimates in text messages that the father can see the children when certain property disputes are resolved as she desires.
F¶126
Annx CMay 2013 The father’s brother sends the father messages posted by the mother on Facebook. The father makes reports to the authorities.
F¶111
Annx B11 May 2013 The mother argues with the father in front of the children and then says to them “You won’t see your father again”. X starts to cry.
F¶128 11 June 2013 The father files an Initiating Application. Seeks (in essence)
1. Equal shared parental responsibility;
2. The children live with him.
3. The children spend time with the mother as agreed, but failing agreement
a. alternate weekends from Friday 5pm to Sunday 5pm
b. one night each week from 4 to 7pm
4. A restraint upon the mother taking prescribed drugs in excess of dosage.
5. A restraint upon the mother taking prohibited drugs.
13 June 2013 The father completes the Parenting after Separation course.
F¶212
Annx H2 July 2013 The father completes the Turning into Kids course.
F¶212
Annx H3 July 2013 MENTION – Henderson J
ORDERS (in essence)
1. The parties to attend a child dispute conference in (omitted) on 5 August 2013
2. The matter is listed for mention on 28 August 2013 at 9:30am in Albury.
3. The mother to file and serve a Response and affidavit by 19 August 2013.
4. Interim Orders in Exhibit “1”.
Exhibit “1” (in essence)
1. The children spend time with the father on 3 out of 4 weekends each month;
2. Changeovers at the paternal grandparents home.
3. The mother be restrained from removing the children’s residence beyond 30km from (omitted) post office.
4. Each party restrained from transporting the children by vehicle without an approved fitted restraint.
5. Each party restrained, whilst caring for the children, from consuming alcohol to excess or being under the influence of illicit drugs or misusing prescription medication.
6. Each party to submit to urinalysis in specific circumstances.
F¶129 7 July 2013 The father starts a ‘communication book’ and gives it to the mother. The mother does not make any entries in it.
F¶160 14 July 2013 The father starts a ‘communication book’ and gives it to the mother. The mother does not make any entries in it.
F¶160 21 July 2013 The father starts a ‘communication book’ and gives it to the mother. The mother does not make any entries in it.
F¶160 August 2013 The father and Z happen upon the mother and the twins whilst shopping. In the presence of the children, the mother shouts at the father in an abusive and vulgar manner.
F¶135 August 2013 The father tries to engage the mother in a discussion as to the boys’ schooling. The mother threatens she is moving to (omitted) before, after 2 weeks, agreeing to the boys attending (omitted) Primary School
F¶161 2 August 2013 The father undergoes a Urine Drug Screen which detects no confirmed positives.
F¶211
Annx G22 August 2013 The mother files a Response to Initiating Application. Seeks (in essence)
1. Equal shared parental responsibility
2. The children live with her.
3. The children spend time with the father:
a. alternate weekends from Friday 5pm to Sunday 5pm
b. half school ‘term’ holidays.
c. specific arrangements for the Christmas school holiday period.
d. Times on specifically nominated days and festivals.
4. Arrangements for handover.
5. Arrangements for telephone communication.
6. Obligations to inform and consult on specific matters.
28 August 2013 MENTION – Harman J
ORDERS (in essence)
1. Parties to attend a Parenting Orders Program (s.13C).
2. Preparation of a Family Report (s.62G)
3. Orders and directions associated with the Family Report.
4. The matter is listed for mention on 24 February 2014 at 10:30am in Albury.
5. Liberty to restore the matter to the list with respect to compliance with these Orders.
F¶130 September 2013 The father observes the mother to be driving a vehicle which was unregistered and un-roadworthy.
F¶132 2 September 2013 The mother proposes changes to the handover arrangements. The father does not agree.
F¶157 Late 2013 The father speaks with Z's Vice Principal as to Z progress. The father is referred to the ‘Heads Up’ program.
F¶167 November 2013 The father is contacted by ‘Heads Up’ and told the first available appointment is February 2014.
F¶168 25 November 2013 B moves out of the mother’s home.
F¶96 2 December 2013 The mother phones the father. The father observes the mother’s speech to be slurred.
F¶133 2 December 2013 The mother advises the father that she slept in and missed taking the boys to the school orientation.
F¶136 4 December 2013 Email from the mother’s solicitor to the effect the mother proposed relocating to the (omitted) area.
F¶137 12 December 2013
Interviews conducted by the Family Consultant with the parties and the children.
13 December 2013 The father’s solicitors write to the mother’s solicitors seeking time between the boys and the father (and Z) on Christmas Day. The mother refuses, saying she would be in (omitted).
F¶139 25 December 2013 The father drives past the mother’s home and observes her car parked outside (and hence not in (omitted)).
F¶140 25 December 2013 The mother sends a text to the father at 9:06PM offering the father time with the boys if he gave her the fishing equipment.
F¶141 31 December 2013 The father contacts the mother to advise her the dog had arrived at his house. The mother arrives to collect the dog and, in front of Z, speaks to the father in an abusive and vulgar manner. The father forms the view the mother is affected by alcohol.
F¶143 7 January 2014 Report by Mr P, Family Consultant. Recommends that the children spend equal time with each parent over a fortnight, with the time being in blocks of 5 nights and 2 nights and to include a weekend for each parent.
Rpt¶36 10 January 2014 The mother delivers the children to the paternal grandfather’s home at 4:15pm. The mother is abusive to the paternal grandfather and accuses him of killing his first wife. The mother then forces herself past the paternal grandfather jolting his shoulder (which was in a sling following surgery) causing him pain. The mother removes the children.
The father arrives at his father’s home to collect the children. The children are not there having been removed by the mother. The father contacts the mother who accuses his father of manhandling her.
F¶158
PGF¶1013 January 2014 MENTION in Chambers – Dunkley J
ORDERS in essence
1. Release of the Report by Family Consultant Mr P dated 7 January 2014.
2. NOTATION as to the nature of the report as only one part of the evidence.
3. NOTATION as to s.121.
16 January 2014 The father agrees to a short-term variation of changeover arrangements.
F¶159 17 January 2014 The father wakes with tingling in his left arm. He attended (omitted) hospital as a precautionary measure where it is determined there was no concern of a heart condition.
F¶210 17 January 2014 The father arrives to collect the children from the mother. The mother yells at the father in an abusive manner whilst he is trying to put the children into his car.
F¶144 19 January 2014 The father returns the boys to the mother who, in their presence, says “You should have died in hospital. It will be bad luck if your dog gets baited.”
F¶145 20 January 2014 The father undergoes a Urine Drug Screen which detects no confirmed positives.
F¶211
Annx GFebruary 2014 The father attends the first appointment at Heads Up with Z.
F¶169 February 2014 Z arrives home from his first day of school and announces that the twins are at his school. The mother had not advised the father of this.
F¶162 17 February 2014 The father arrives at the mother’s home to collect the boys. The mother refuses to provide the children.
F¶160 24 February 2014 MENTION – Harman J
ORDERS in essence
1. NOTED the matter is not resolved and requires hearing of estimated 2 days.
2. Matter adjourned to 13 March 2014 at 11am by video-link between Albury and Parramatta.
F¶131 25 February 2014 The mother undergoes a Urine Drug Screen which detects confirmed positives of the following:
· Benzodiazepines
· Cannabinoids
F¶206
Annx F27 February 2014 The mother is abusive to the father regarding the children’s clothes. The father asks if the children can play soccer (which Z plays). The mother refuses, saying “They can only play AFL”.
F¶148 2 March 2014 The father again asks if the children can play soccer. The mother refuses.
F¶149 6 March 2014 B tells the father that his friend, J, and J’s mother are applying for an AVO against the mother.
F¶150 7 March 2014 The father arrives to collect the boys. The mother says “What are you doing here. Do you want them for 4 weeks in the months?”
F¶151 13 March 2014 MENTION – Harman J
1. Matter listed for final hearing on 27 & 28 August 2014 at Wagga Wagga
2. Parties who require the report writer for cross-examination to give written notice within 21 days.
3. Applicant to file and serve all Affidavit material by close of business on 27 June 2014.
4. Respondent to file and serve all Affidavit material by close of business on 25 July 2014.
5. Leave to the Applicant to file an affidavit in reply by 7 August 2014.
6. Noted the Applicant proposes calling evidence from himself and one other.
7. Noted the Respondent proposes calling evidence from herself and one other.
8. Each party to file a Case Outline by 15 August 2014.
9. Further subpoena material to be filed and served requiring production not less than 21 days prior to the allocated hearing date.
10. The father to provide to the mother a telephone number for the purpose of communicating information with respect to the children’s welfare.
11. Within 7 days the mother to contact an appropriate agency to ensure she has complied with the Orders of 28 August 2013 requiring her to complete the parenting orders program prior to the hearing dates.
F¶131 23 March 2014 The father receives a text from the mother who says she will be checking Z does not eat the twins’ food.
F¶175 24 March 2014 The father receives a text from the mother who accuses Z of eating the twins’ food and of using rude language about the mother.
F¶176 28 March 2014 The father arrives to collect the boys. The mother yells out “I have 15 minutes before they go with you.”
F¶182 4 April 2014 The father receives texts from the mother to the effect:
· she might be “…movin to (omitted)”.
· The boys wouldn’t be returning to the school.
F¶179 20 April 2014 Following the children being at the father’s home, the mother sends texts to the father suggesting the boys had been playing at his home with their pants off. The mother said she had contacted the police and DOCS.
The father discussed the issues with the boys’ school.
F¶183 Late April 2014 Z reports that the mother came to the school and called him a mongrel and chased him at the school.
The mother advises the father he will not be having the children that weekend.
F¶184,
18525 April 2014 The father attended the mother’s home to collect the boys. The mother refuses to hand them over and threatens to call the police. X comes out and tells the father “Mum says we are not going with you”.
F¶186 1 May 2014 By agreement with the mother, the father phones the mother’s home to speak with the boys. The mother has the phone on speaker and says “Ask dad about whether the police have come around”.
F¶188 1 May 2014 The mother sends the father a text regarding investigations by “Soca and the police…”
F¶189 2 May 2014 The father attends the mother’s home to collect the boys. The mother does not provide the boys.
F¶190 9 May 2014 The father attends the mother’s home to collect the boys. The mother does not provide the boys. The police arrive who advise the father the mother made a complaint but after investigation, no action would be taken.
F¶191 13 May 2014
MENTION Upon the Court’s own motion in chambers
Harman JORDERS in essence
1. Discharge Orders 1, 2, 3, 4, 5 & 9 made 13 March 2014
2. Final hearing dates changed to 25 & 26 September 2014.
3. Parties who require the report writer for cross-examination to give written notice within 21 days.
4. Applicant to file and serve all Affidavit material by close of business on 24 July 2014.
5. Respondent to file and serve all Affidavit material by close of business on 14 August 2014.
6. Leave to the Applicant to file an affidavit in reply by 4 September 2014.
7. Each party to file a Case Outline by 18 September 2014
F¶131 20 May 2014 The father calls the boys however the mother keeps the phone on speaker making the conversation awkward.
F¶193 22 May 2014 Following correspondence between the parties’ solicitors, the father signs an undertaking to the effect he will ensure an adult is supervising at all times the boys spend with Z.
F¶195
Annx D & E26 May 2014 The mother undergoes a Urine Drug Screen which detects confirmed positives of the following:
· Amphet-type subs
· Benzodiazepines
F¶206
Annx F27 May 2014 The father undergoes a Urine Drug Screen which detects no confirmed positives.
F¶211
Annx G1 June 2014 The mother sends texts making ongoing accusations regarding Z.
F¶196 8 June 2014 The mother suggests the boys had red wax in their underwear.
F¶199 1 August 2014 The father undergoes a Urine Drug Screen which detects no confirmed positives.
F¶211
Annx G20 August 2014 The mother undergoes a urinalysis drug screen which detects confirmed positives of the following:
· Amphet-type subs
· Benzodiazepines
25 September 2014
HEARING – Harman J 29 October 2014 Mother undergoes drug screen which detects confirmed positives of the following:
· Benzodiazepines
· Cannabinoids
11 December 2014 Mother undergoes drug screen which detects confirmed positives of the following:
· Benzodiazepines
· Cannabinoids
9 January 2015 Mother seeks to remove the boys from (omitted) Primary School and enrol them in (omitted) Primary School.
29 January 2015 Police attendance at mother's home.
23 April 2015 Mother undergoes drug screen which detects confirmed positives of the following:
Mother undergoes drug screen which detects confirmed positives of the following:· Opiates
· Benzodiazepines
· Cannabinoids
DATE EVENT REFERENCE (omitted) 1967 Mother born FR – para 19 (omitted) 1970 Father born FR – para 8 1987 Mother commences relationship with Mr N FR – para 20 (omitted) 1989 A born (mother’s child from relationship with Mr N) FR – para 20 1990 Mother and Mr N separate FR – para 20 1994 Mother commences relationship with Mr M FR – para 21 (omitted) 1995 C born (mother’s child with Mr M) FR – para 21 October 1995 C dies from Neisseria Meningitis FR – para 21 Mid 1996 Mother and Mr M separate FR – para 21 (omitted) 1997 B born (mothers child with Mr M) FR – para 21 (omitted) 2004 Z born (father’s child with Ms S (now deceased)) F Aff – para 7 2006 Parties commence a relationship M Aff – para 4 2006 Mother slaps B
- Father says this is because B is late home
- Mother says this is because B is calling the father names
F Aff – para 95
M Aff – para 50April 2006 Father discovers he is Z’s father F Aff – para 85 2007 Parties commenced living together M Aff – para 13 2007 Z came into father’s care M Aff – para 13 (omitted) 2008 X and Y born M Aff – para 5 (omitted) 2008 Twins in hospital
Mother coming and going from hospitalM Aff – para 19 June 2008 – March 2012 Father working during the day, starting early but was home at night
Mother is primary carer of all children, including Z
Father would rarely spend time with the children
M Aff – para 17-18
M Aff – para 22
M Aff – para 23
2012 Incident at the (omitted) M Aff – para 48
F Aff – para 93March 2012 Parties separate
Parties have an argument and father says, “Why don’t you just move home”M Aff – para 24 March 2012 Incident at mother’s home involving neighbour Ms D M Aff – para 58-59
F Aff – para 99March 2012 – March 2013 Parents able to organise father’s time with the children between themselves M Aff – para 25 31 July 2012 Mother drives father to Emergency Department of (omitted) Hospital. Father admitted for Mental Health Assessment after he takes overdose of Temazepan and 1 dozen beers
Father refused offer of (omitted) admission, he was not cooperative with assessor, but was referred to counselling and was to follow up with the mental health teamM Aff – para 80-82
F Aff – para 209
(omitted) Health Subpoena material20 August 2012 Incident between mother and Ms N (neighbour) in which Ms N pushes the mother over her railing injuring her back. M Aff – para 56
Vic Police Subpoena material5 September 2012 Mother obtains Interim Intervention Order against Ms D (13/9/12 – 13/09/12) Vic Police Subpoena Material 13 September 2012 Mother obtains Final Intervention Order against Ms D (13/9/12 – 12/09/13) Vic Police Subpoena Material 24 December 2012 Z at mother’s home spending time with X and Y. Differing version of events.
- Mother indicates that Z was very badly behaved
- Father indicates that mother swearing and calling Z names
M Aff – para 51
F Aff – para 91
March 2013 Parents have disagreement regarding personal property matters March 2013 Someone tries to set fire to the mother’s caravan M Aff – para 57
F Aff – para 10910 March 2013 Father provides statement to Police about incidents that are alleged to have occurred on 16 February, 17 February, 18 February and 9 March F Aff – Annexure A 25 March 2013 Incident in which mother’s neighbour Ms D yells at mother in front of the Police. Police arrest Ms D Vic Police Subpoena material
M Aff – para 5427 April 2013 The mother unilaterally ceases the father’s time with the children M Aff – para 31
F Aff – para 12230 April 2013 Notification to DHS Victoria re kids exposure to ongoing neighbourhood conflict Subpoena from DHS 10-13 May 2013 Text messages between the parents F Aff – Annexure C 11 June 2013 Father files an Initiating Application seeking
· ESPR
· Children live with him
· Children spend alternate weekends with mother from Friday to Sunday and one night each week from 4 to 7 pm
· Restraining mother from taking prescribed drugs to excess of dosage
· Restraining mother from taking illicit substances
Initiating Application filed 11 June 2013 13 June 2013 Father completes parenting after separation course through Gateway Health F aff – para 212
Annexure H2 July 2013 Father completes Tuning Into Kids course through Gateway Health F Aff – para 212
Annexure H3 July 2013 First return date in Federal Circuit Court, Albury. Interim orders made by consent:
· Children live with mother
· Children spend time with father 3 weekends out of 4
· Changeover at paternal grandparents
· Restriction on mother and children’s relocation to 30km from (omitted) Post Office
· CDC on 5 August 2013
· Adjourn to 28 August 2013
Orders dated 3 July 2013 2 August 2013 Father undergoes random drug screen test
Unconfirmed positives for:· Benzodiazapines
· Opiates
M Aff – Annexure E (page 31)
F Aff – Annexure G
5 August 2013 Parties attend Child Dispute Conference. Memo indicates:
· M appears to have provided the children’s primary care
· Father indicates children at risk of being exposed to family violence or neighbourhood disputes when in mother’s care
· Mother withheld children from father between April 2013 and July 2013
· Father now spending structured regular time with children
· Referral to Parenting Orders Program
· Family Report (or Expert Report)
CDC Memo dated 5 August 2013 6 August 2013 Mother finds personal property on her front lawn M Aff – para 30 22 August 2013 Mother files Response to Initiating Application, seeking:
· ESPR
· Children live with her
· Children spend alternate weekends with father from Friday to Sunday
· School holiday and special days
Response filed 22 August 2013 28 August 2013 Matter heard in Federal Circuit Court at Albury. Interim Orders made:
· Attend Parenting Orders Program
· Family Report to be prepared
· Adjourn to 24 February 2014
Orders dated 28 August 2013 12 December 2013 Interviews conducted for the Family Report Family Report dated 7 January 2014 7 January 2014 Family Report completed. Recommendations:
· Equal time with each parents, in a 5/2 arrangement which would include a weekend for each parent
Family Report dated 7 January 2014 10 January 2014 Incident at Paternal Grandfather’s (PGF) house
- Mother says that PGF tells her to “Get out of my fucking house” and that he pushes her twice
- PGF says that Mother accused PGF of killing his wife, that mother pushes past PGF in hallway, and that mother was yelling abuse at PGF
Reported to Police
M Aff – para 35
PGF Aff – para 10-12
10 January 2014 Parties commence changeover at their respective homes M Aff – para 35 13 January 2014 Orders in Chambers:
· Releasing the Family Report
Orders dated 13 January 2013 17 January 2014 Father wakes with tingling to his arm. He attends (omitted) Hospital as a precautionary measure F Aff – para 210 20 January 2014 Father undergoes random drug screen test – Negative M Aff – Annexure E (page 33)
F Aff – Annexure G24 February 2014 Matter heard in Federal Circuit Court, Albury. Interim Orders made:
· Adjourn to 13 March 2014 via telephone for callover
Orders dated 24 February 2014 25 February 2014 Mother undergoes random drug screen test, detected:
· Benzodiazepines
· Cannabinoids
M Aff – Annexure D (page 26)
F Aff – Annexure F
26 February 2014 Father attends Heads Up for initial assessment for Z. Subpoena from (omitted) Medical – Heads Up 11 March 2014 Referral letter from (omitted) Medical Centre
· Z has had a traumatic childhood and history of conduct disorders
Subpoena from (omitted) Medical – Heads Up
13 March 2014 Matter heard in Federal Circuit Court, Parramatta by telephone. Interim Orders made:
· Matter to be listed for Final Hearing on 27 and 28 August 2014 at Wagga
· Trial directions made for the Final Hearing
Orders dated 13 March 2014 26 March 2014 Mother obtains extension to her IVO against Ms D (26/3/14 – 26/3/15) Vic Police Subpoena material April 2014 Mother receives approval through Department of Housing to move to (omitted). Mother asks father’s permission. Father refuses. M Aff – para 66 April 2014 Mother sees Z at school.
- Mother says nothing happened
- Father says Z says mother came to school and called him a mongrel and chased him at school
M Aff – para 102
F Aff – para 18419/20 April 2014 Incident takes place at fathers home regarding Z, D, X and Y.
Mother sends father text messages regarding thisM Aff – para 37-38
F Aff – para 183Week commencing 21 April 2014 Mother contacts SOCAU (Sexual Offences and Child Abuse Unit of (omitted) Police) and DHS Intake regarding the incident
Mother sends father a text message stating he’s not having the children that weekend
M Aff – para 39
M Aff – para 40
25 April 2014 Father attends mother’s home. Mother tells him to go away and if he doesn’t she will call the Police. Further:
- Father says X comes to door and says, “Mum says we are not going with you.”
- Mother says Y goes to door and says to dad, “Bye dad.” Father asks if they are going with him and Y says, “No, not after what happened last weekend.”
F Aff – para 183
M Aff – para 41
1 May 2014 Letter from Department of Human Services (Child Protection Services) M Aff – Annexure F (page 39)
F Aff – Annexure D1 May 2014 Father telephones to speak with the boys F Aff – para 188 1 May 2014 Mother sends father a text message regarding the investigations with SOCAU and DHS F Aff – para 189 2 May 2014 Father attends mother’s home to collect the boys. Father leaves without the boys F Aff – para 190 6 May 2014 Mother attends and completes Children Caught in Conflict through the Parenting Orders Program at (omitted) Family Care M Aff – Annexure G (page 41) 9 May 2014 Father attends mother’s home to collect the boys. Police called and father leaves without the boys F Aff – para 191 13 May 2014 Matter heard in Chambers in Federal Circuit Court, Parramatta. Interim Orders made:
· Discharge previous hearing dates
· Matter to be listed for Final Hearing on 27 and 28 August 2014 at Wagga
· Trial directions made for the Final Hearing
Orders dated 13 May 2014 23 May 2014 Letter sent by Mother’s Solicitor to Father’s Solicitor regarding incident of alleged sexual impropriety M Aff – Annexure A (page 19 & 20)
F Aff – Annexure D23 May 2014 Undertaking provided by the father M Aff – Annexure C (page 24)
F Aff – Annexure E26 May 2014 Father attends upon Heads Up counsellor. Father says that he is very concerned about Z lying Subpoena from (omitted) Medical – Heads Up 26 May 2014 Mother undergoes random drug screen test, detected:
· Benzodiazepines
· Amphet-type substance
(Phentermine detected)
M Aff – Annexure D (page 27)
F Aff – Annexure F
27 May 2014 Mother completes Building Better Bridges Program through the Parenting Orders Program at (omitted) Family Care M Aff – Annexure G (page 42) 27 May 2014 Father undergoes random drug screen test – Negative M Aff – Annexure E (page 35)
F Aff – Annexure G30 May 2014 Father recommences spending time with the boys M Aff – para 44 2 June 2014 Both father and Z attends upon Heads Up Counsellor. Father indicates that he finds it challenging to soften his responses and comments Subpoena from (omitted) Medical – Heads Up 8 June 2014 Mother sends father a text message regarding red wax in the boys’ underwear
Father sends mother text message backM Aff – para 45
F Aff – para 19816 June 2014 Both father and Z attends upon Heads Up Counsellor. Father is concerned that Z is not listening Subpoena from (omitted) Medical – Heads Up 30 June 2014 Z attends upon Heads Up Counsellor. Z is dropped off by his grandfather who is looking after him. Z reported that the twins were coming and staying and he identified some positives, but overall thoughts tend to be negative. Z is still worried about the father yelling. Subpoena from (omitted) Medical – Heads Up 7 July 2014 Z attends upon Heads Up Counsellor. Z is dropped off by his grandmother who is looking after him during the school holidays. Grandmother reports that the family is quite firm with Z but his father means well and cares for him a lot. Z tends towards embellishing the truth and is quite resistant to correction although will sometimes acknowledge he is not being entirely truthful Subpoena from (omitted) Medical – Heads Up 20 July 2014 Children disclose to mother that Z tried to poke their bottom with his finger. M Aff – para 46 21 July 2014 Incident at the children’s school between X and Z. Mother speaks with Principal regarding this incident M Aff – para 99 22 July 2014 Legal Aid FDR occurred M Aff – para 47 22 July 2014 Z attends upon Heads Up Counsellor. This is his final sessions. Z is unwilling to discuss incident regarding the mother abusing him at school and he brushed it off. He was asked if he had a magic wand, what would he wish for. First thing he says is, “No yelling from dad.” Subpoena from (omitted) Medical – Heads Up 29 July 2014 Father attends upon Heads Up Counsellor. Father says that he remains concerned about some of the bullying at school and has been considering moving Z to another school but has not yet spoken to him about this. Father says that Z is argumentative with teacher and has ongoing issues with bringing homework home. Subpoena from (omitted) Medical – Heads Up August 2014 X travels in the father’s work truck M Aff – para 95 1 August 2014 Father undergoes random drug screen test – Negative M Aff – Annexure E (page 37)
F Aff – Annexure G14 August 2014 Letter from Ms M at NECAMHS
· Presented for initial assessment on 26 February 2014
· Attended 15 sessions
· Z displayed high levels of stress, emotional distress, behavioural difficulties and difficulties getting along with others
· Minor improvements but scores remain high
· Biggest improvement is in emotional distress
· Father finds psycho education and cognitive behavioural interventions a challenge and difficult
· Z continues to be quite negative in his perspectives
· 3 more sessions possible but little likelihood of further improvements being made
Subpoena from (omitted) Medical – Heads Up 20 August 2014 Mother undergoes random drug screen test, detected:
· Benzodiazepines
· Amphet-type substance
(Phentermine detected)
M Aff – Annexure D (page 27) 25 September 2014 Matter listed for Final Hearing in Federal Circuit Court, Albury. Orders made:
· Matter marked not reached
· List for hearing 23 and 24 July 2015
· Updated Family Report to be prepared
Orders dated 25 September 2014 8 January 2015 Mother’s solicitor sends father’s solicitor a letter regarding changing the children’s school 29 January 2015 Police attend Mother’s home in response to an anonymous call 23 July 2015 Matter listed for Final Hearing in Federal Circuit Court, Albury
I do not propose to discuss the totality of evidence in detail. Suffice to say that the contents of each of the documents before the Court (comprising the Affidavits of the parties, the Family Reports and the various Exhibits enumerated above) is considered and the totality of the evidence is relied upon in making findings of fact and in arriving at a conclusion to these proceedings.
I will address five specific areas of significance which arise from the evidence. In doing so, I will refer to portions of the parties’ evidence and that which is tendered. I do not propose, by referring only to portions of the evidence, to be other than illustrative in an address of the evidence. As indicated, the totality of evidence is taken into account in arriving at any conclusion and in making any finding.
Allegations of sexual abuse or other behaviour by Z
The most significant allegations which Ms Hayley seeks to advance in her case are allegations with respect to Z. Of these the most significant are allegations which might be suggested to fall within the descriptor of “sexual abuse”. The material led by Ms Hayley in that regard is set out at paragraphs 37 to 46 of her Affidavit sworn or affirmed 18 September 2014. That portion of Ms Hayley's Affidavit commences with a complaint that the children, X and Y, spend three weekends out of four with their father. It then goes on to relate the following:
On 19 and 20 April 2014, the twins were at Mr O’Neill’s house [the father]. Their cousin D was there as was Z. On Sunday, 20 April 2014, I was told by both X and Y that Z pulled Y’s pants down and was playing with his penis. I’m also told that Y and X were told to dance around the room with his pants pulled down. Y also said that Z pulled his willy and wax came out the end of it. Z told the boys that, “If you tell dad, you’ll get in big trouble”. The boys told me that this happened when Mr O’Neill went to the supermarket and left the boys in the care of Z.
The following paragraph (paragraph 38) purports to relate to a text conversation between Ms Hayley and Mr O'Neill. Mr O'Neill would not seem to significantly cavil with the contents of the suggested text conversation. Ms Hayley deposes that the conversation was in the following terms:
Ms Hayley: Did Z have music playing in this room today?
Mr O'Neill: In the lounge room.
Ms Hayley: Can you tell me why the boys pants were off, including D’s pants as well. And where were u when this was happening?
Mr O'Neill: I was in the lounge room so how could that happen?
Ms Hayley: X just told me it was in your room, pants were off.
Mr O'Neill: He didn’t go to my room.
Ms Hayley: And Y says it was in Z’s room. What the hell is going on and there both tellin me it was Z’s idea. How bout [about] you ask D about his pants being off.
Mr O'Neill: I just have and said it didn’t happen and Z too. I asked them separate as well.
Ms Hayley: I have informed Ms J and I have informed the Police and my solicitor and DOCS will be informed first thing Tuesday morning.
Why it is suggested that a report would be made on the following Tuesday, rather than same day (Sunday) or next day (Monday) is entirely unclear.
Ms Hayley then suggests that she spoke with a Ms P at the Sexual Offences and Child Abuse (SOCAU) Unit of Victorian Police stationed at (omitted).
It is suggested by Ms Hayley that further text messages were sent by her to Mr O'Neill making clear to him that the children would not be made available to him. On 25 April 2014 the father attended at the mother’s home to collect the children as Ms Hayley complains “…despite my text message”.
It is suggested by Mr Hayley that on that occasion the following occurred:
I agree that I did yell out to Mr O’Neill and said, “Go away, you’re not having the boys”. I then said “Leave or I will call the police”. Y went to the door and said. “Bye dad”. Mr O’Neill asked whether they were going with him, and Y said, “No, not after what happened last weekend”.
The balance of Ms Hayley’s allegation suggests that the issue was ultimately resolved by a written undertaking being provided by Mr O'Neill under cover of a letter from his attorneys, 23 May 2014, and which provided:
Without admission as to the need I give an Undertaking to the Court that I will ensure that when X and Y spend time with me I will ensure that Z (sic) Z is supervised at all times by an adult when he is in the presence of X and/or Y.
Ms Hayley also complains that on an unspecified date in June 2014 (the father’s time with the children having recommenced 30 May 2014) following the provision of the above undertaking that:
I noticed that Y had red wax on his underpants after a camping weekend with Mr O’Neill. The boys said to me that it was birthday candle wax. I thought that it was strange as it was on their underpants and not on their shorts or trousers. I sent a text message to Mr O’Neill about this. Mr O’Neill sent a text message back saying “Good luck with that we were out camping”.
Ms Hayley finally complains:
On 20 July 2014, the boys told me that Z (sic) had tried to poke them their (sic) bottom with his finger. The boys spoke with Y about this and Y said that “dad didn’t believe me”.
It would seem that the parties attended Family Dispute Resolution on 22 July 2014. The allegations would appear to have been discussed at Family Dispute Resolution. Ms Hayley does not indicate a date though attendance at mediation is referred to, impermissibly so to some extent, in material that is introduced into evidence through the above Exhibits.
The response to Ms Hayley’s allegations is contained at paragraphs 183 to 200 of Mr O'Neill’s material. Mr O'Neill commences by reciting a text communication between he and Ms Hayley not dissimilar to that recited above. Mr O'Neill then suggests that he went to the school to discuss the allegations with the Principal as well as Z’s behaviour towards the twins at school.
The father indicates that he also attended the school as, “I was also concerned about Ms Hayley’s behaviour towards Z at the school”.
This would appear to be on the basis of a complaint that had been made by Z in late April that Ms Hayley had attended at the school and that Z then said to his father, “When she saw me she called out to me to come over to her. She then called me a mongrel? … Ms Hayley (sic) chased me at school today”.
Mr O'Neill confirms that he attended at the mother’s home to collect the children on 25 April 2014 and that he was told to leave or the Police would be called. It is suggested that X came to the front of the home and said to his father, “Mum said we are not going with you”.
It is to be recalled that Ms Hayley had suggested that Y had spoken with the father, rather than X, and that Y had said something far more sinister to his father regarding the basis upon which he would not attend than X is suggested to have said.
Between the text messages of 20 April 2014 and the resumption of time, 30 May 2014, Mr O'Neill did not spend time with the children, save for brief periods at the children’s school. Mr O'Neill was also unsuccessful in speaking with the children by telephone or in obtaining any positive response from the mother to requests to spend time with the children. That is, save and except for one occasion when Mr O'Neill suggests that he was successful in speaking with the children (20 May 2014) and at which time, “Ms Hayley kept the phone on hands free which made it very difficult to hear, we chatted for a while and then I hung up”.
Mr O'Neill was also unsuccessful in this period in obtaining any positive response from Ms Hayley to requests to spend time with the children.
Mr O'Neill deposes to receiving a text message from the mother on 8 June 2014 to the following effect, “Would you like to tell me the story behind the red wax on one of the boys’ pairs of jocks????”
The father suggests that he was then contacted 10 days later by a friend, Ms C, who suggested to him:
Ms Hayley rang last night at 11 o’clock. She was going on about us having a birthday cake at my place and the boys having red wax in their undies. She said the boys were getting their pants pulled down and she was informing DOCs and wanted to know what was going on.
Mr O'Neill goes on to indicate that a party had not occurred (as alleged by Ms Hayley) but rather that the boys had been camping with him over the June long weekend, (together with a variety of other people including a friend of Mr O'Neill’s, Mr T, Mr T’s daughter, Ms C and Ms C’s son, L and various other people including the person, Ms C, with whom the conversation had occurred).
Mr O'Neill also deposes that a birthday party had occurred for the boys at the home of his parents the weekend before the boys’ birthdays. The father denies that any cake that had been present on any occasion had red candles.
The mother has not tendered or sought to tender any record from the Police corroborating the suggested conversation between herself and Ms P.
Documents produced by the Department of Human Services Victoria would suggest that such a conversation occurred. That arises from a record created by the Department, 5 August 2014, referring to a phone conversation between an employee of the Department of Human Services and Ms P.
That record states of Ms P:
Ms P stated that she has spoken to the mother who raised some concerns a while ago. Ms P just wanted to inform Child Protection of the information. The mother has stopped access in the past however the father is now allowed to have contact with the children as he has fought for this through Family Law Court (sic). There has been some incidents with Y (sic) where he has stated that he has had a “rude party” and that Z (sic) has pulled on Y’s (sic) willie. The mother also informed Ms P that one of the children has waz (sic) on the inside of his jocks on the bum cheek area and when the mother questioned the father he stated that they have been camping. The mother didn’t speak to the boys about the wax. It is also reported that Z (sic) tries to stick his finger up their (Y and X’s) bum and that Z (sic) smacks them on the bum at school. The mother has told her solicitor about the incidents and the solicitor has told the mother to report to SOCIT. The matter will be back in the FLC in September 2014.
The Department of Human Services records comprising Exhibit F2 commence with a report to the Department 22 April 2014 (being the Tuesday following the children’s time with their father). It commences as follows:
The current report for X and Y raises concerns in relation to sexual abuse perpetrated by 9 year old step sibling Z. Reporter has advised that X and Y have made disclosures that Z asked them to take their pants off. Y stated to his mother that brother X had licked his bum because Z and D (Z’s cousin) had been talking about it. Further concerns that Y stated that Z had been playing with his (Y’s) penis and that “wax came out of my willy”. It is alleged that this has occurred whilst at access with Father on the weekend.
Step sibling Z resides with father full time. SOCIT have been advised of the report, however will not be taking further action as Z (sic) is under the age of 10. Reporter advised that Mother wants to cease pending accesses with Father and will be seeking legal advice to do this. There have been 4 previous reports to child protection for this family, all of which were received in 2013. The protective concerns were in relation to concerns for the children whilst in the care of Mother. Concerns have been in relation to allegations of Mother’s substance abuse and exposing children to chaotic lifestyle …All previous reports occurred in 2013 and were closed at intake phase.
The record then indicates that SOCIT would not be investigating the matter. The following is then reported in relation to a conversation with the Principal of the children’s school:
Follow up occurred with Principal at (omitted) Primary School who advised that the boys are in their first year at school and are quite a handful, but are generally settling into the school OK. They can be physical and violent towards other children at times, but no major concerns in relation to their social interactions. There are no concerns in relation to the children’s attendance [that is certainly something which has changed since this report]. Ms J advised that she has had contact with both Mother and Father and that it is quite clear that there is a great deal of disharmony between the two. Ms J is also aware that there is a family law court case coming up in August and that there is a lot of “mud slinging” going on between the parents.
The file was then closed following consultation between the Department of Human Services staff members and on the basis that:
Although it is concerning that the children have made disclosures of sexual abuse by the step-sibling; Mother is acting protectively and taking all reasonable steps to ensure their safety. Child protection intervention not required. Case recommended for closure.
Following the provision of the undertaking referred to above, time between Mr O'Neill and the boys resumed. No Application was made to this or any other Court by Ms Hayley seeking variation or discharge of the interim parenting Orders or for any other Order (such as an Intervention Order). Ms Hayley sought the reassurance of the father’s undertaking that he would ensure the twins were supervised by an adult and nothing else.
The father was not cross-examined with respect to the above allegations. On that basis I am satisfied that there is no challenge whatsoever to the father’s version of events and I accept his version. That would include that which he had related to the mother by text message that:
a)He was present at all times (notwithstanding the mother’s allegation that the boys had indicated that he was absent and at the supermarket);
b)He had spoken to both Z and D about the allegations;
c)The children did not enter the rooms that they are suggested by the mother to have entered and where events are alleged to have occurred; and
d)The father, present with the boys at all times, had observed nothing out of the ordinary and certainly nothing untoward and as alleged.
Ms Hayley has not sought to provide further evidence or corroboration with respect to the allegations in the form of:
a)Evidence of further or more detailed conversation as is suggested to have occurred between she and the boys. The only portion of the evidence that is suggested to be a direct quote of the boys is the suggestion that Z had told them “if you tell dad, you will get in big trouble”;
b)An attempt to reconcile the inconsistencies in the reports made to the Department of Human Services and her evidence on oath per her Affidavit. The versions of events are somewhat different;
c)Evidence of any report by Ms Hayley to any person save her lawyer. The record from the Department of Human Services refers to “the mother” in a fashion suggestive that the report may have been made by a third party. Whilst Ms Hayley asserts she spoke with a Police Officer, Ms P, the Departmental note is the only reference to her doing so and then only to “have it noted”. Ms Hayley’s text messages to Mr O'Neill (i.e. “I have informed Ms J” suggests previous communication had occurred between Ms Hayley and Ms P);
d)Contemporaneous reports made by Ms Hayley to any of the above three agencies. Ms Hayley has introduced no such evidence;
e)An explanation for her significant delay (two days in the context of the allegations and on the basis that Ms Hayley suggested that she was significantly concerned and dismayed by the allegations, is a long time);
f)Any attendance by the twins instigated by Ms Hayley for any medical intervention. That is not to suggest that failing to seek such examination is fatal to the allegations, far from it. It is simply a means of investigation that Ms Hayley has not pursued;
g)Ms Hayley has not sought to introduce any record from that produced on subpoena by the children’s school to corroborate her allegation that she had raised her concerns with the school. Ms Hayley was clear in her allegation that she had spoken with the Principal and the children’s class teacher. No such records are produced.
The only evidence which is suggested to exist regarding the children’s “disclosures” regarding “sexual abuse” are the children’s suggested statements to their mother on 20 April 2014. The children have not repeated such statements to any other person or, for that matter, to their mother since 20 April 2014.
Representations of the children, even in unparticularised form, are admissible as an exception to the hearsay rule. Section 69ZV(2) of the Family Law Act 1975 provides:
Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
Section 69ZV(3) provides (in similar terms to section 69ZT(2) of the Act) that:
The Court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
Ms Hayley, when challenged with respect to the children’s failure to repeat the allegation to anyone else responded, “I told them not to talk about it”. It was then put to Ms Hayley that the children had not made any disclosure to their school teacher and the mother responded, “They have”. When asked where the evidence of that disclosure was, Ms Hayley responded, “I told the principal and their teacher”. As indicated above, no such records had been tendered. The school file is available having been produced on subpoena.
With respect to the issue of “unacceptable risk” I incorporate herein paragraphs 454-459 of my earlier decision 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] HCA 34; (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] VicRp 24; (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] Fam CA 892; (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] FamCA 1316; (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”
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
Again, I am conscious that a significant limb of Ms Hayley’s case is that she is available seven days a week to care for the children and including during the school week, and thus, should be preferred over Mr O'Neill, who is not available to take the children to and from school each and every day.
Mr O'Neill does have entirely appropriate arrangements in place through family members to assist him in uplifting the children if he cannot do so himself on each occasion. The reality that a parent is available does not, in my mind, dictate or determine anything. All it presents is an opportunity and if the Court is satisfied that it is in the child’s best interests that it be so, then there is the practical availability of that parent. The fact that the mother is practically available has not been of great assistance in ensuring that these children attend school each and every day of school attendance or that when they do not attend that there is proper explanation provided to the school.
The mother’s availability has not assisted the children in addressing their behaviour problems. There are nearly 100 notifications for errant behaviour in the space of 12 months between the children. The mother has not sought to address any of those difficulties in a positive fashion. On the occasions that she has been aware of them, accepting that she may not have been advised of all of them, she has berated staff, blamed other students, blamed teachers and engaged in behaviour in front of the children towards those persons which would send the clear message to these children that their behaviour is acceptable and condoned.
In those circumstances, I am satisfied that it would be preferable for time arrangements to instead conclude on Sunday as the father seeks, (and as the mother had proposed were the children in her care). Whilst the father does not include provision for school holiday time within his plea for relief I am satisfied that it should occur. That will allow and facilitate these children’s engagement in each parent’s household at times when they are not engaged in school.
It will also allow, on the mother’s case, the availability of travel to visit her father in the (omitted) area, although as indicated, that travel has been available to the mother since separation. She has not availed herself of those opportunities for reasons best known to her. One suspects possibly so that she can “cry poor” and assert herself yet again as a victim of both the proceedings and the father’s restraint upon her.
The Orders that I thus propose to make will provide for the children to live with their father and to spend time with their mother each alternate weekend and for a period in the intervening week on a non-overnight basis.
I propose to make Orders for one half of each short school holiday period, together with periods approximating one half of the Christmas school holiday period and in blocks of one week and two weeks respectively, such that the children would have a period from the break-up of school until Christmas Day with one parent and from Christmas Day for a similar period as occurred from the break-up of school until Christmas Day with the other parent and thereafter, a two week block with their mother before returning to their father and moving between the first and second part of those holidays.
In relation to the balance of Orders that are sought, particularly in the Minute proposed by the mother, I am satisfied that Orders can and should be made which allows and facilitates both parents obtaining information directly from the children’s school, each keeping the other advised of significant illness, injury or specialist medical appointments for the children or if they are hospitalised and thus able to visit them.
Telephone communication between the parents should be able to occur regularly, and I propose to make an Order for time to occur at the instigation of either parent on a daily basis. However, that is not to suggest that the Order is intended to impose a specific obligation upon these parents to be in any particular place to receive a call. Calls can be made to and from mobile phones and it is not the purpose or intention of this Order that if, for whatever reason, and on occasion, (although one would hope not for any extended period or with regularity), the phone is not answered that it would not lead to contravention proceedings. That is not the purpose and the intent of the Order I will make.
I am satisfied, for the reasons above, that Orders as follows are appropriate (see Orders).
I certify that the preceding three hundred and eighty-seven (387) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 21 August 2015
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