OLIVIER & OLIVIER
[2020] FamCA 639
•4 August 2020
FAMILY COURT OF AUSTRALIA
| OLIVIER & OLIVIER | [2020] FamCA 639 |
| FAMILY LAW – CHILD ABUSE – allegations of sexual abuse and risk of sexual abuse against Father and paternal grandfather – speculative basis for asserting abuse – consistency with sexual abuse does not necessarily equate to being indicative or suggestive of sexual abuse – direct evidence to the contrary in the form of a denial – no cross-examination to suggest the Father has sexually abused– allegations of family violence – episodic violence between the parents – coercion and control – evidence must be sufficient to allow a characterisation of coercion or control – allegations that the Mother is mentally unwell – evidence does not support finding that Mother has a mental health issue – Father maintains view Mother is mentally unwell – effects of maintenance of belief on parenting capacity – whether pursuit of belief is coercive, controlling or abusive – credibility – shared parental responsibility – potential harm to children arising from parental conflict – equal time arrangement would call for high levels of cooperation – children live with Mother – Mother has exercised the greater role in the care of the children – living with Mother will involve lesser change in arrangements for children – views – substantial and significant time – therapeutic support |
| Family Law Act 1975 (Cth) ss 4AB(1), 4AB(2), 60B, 60CA, 60CC, 60CC(2)(b), 60CC(2A), 65DAA |
| Johnson & Page [2007] FamCA 1235 Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7 |
| APPLICANT: | Mr Olivier |
| RESPONDENT: | Ms Olivier |
| INDEPENDENT CHILDREN’S LAWYER: | Mrs McGregor |
| FILE NUMBER: | CAC | 1245 | of | 2017 |
| DATE DELIVERED: | 4 August 2020 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 28 April – 5 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Haughton |
| SOLICITOR FOR THE APPLICANT: | Stanfords Solicitors & Mediators |
| SOLICITOR FOR THE RESPONDENT: | Evans Family Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid |
Orders
That all previous parenting orders made by the Court are discharged.
The parties shall have equally shared parental responsibility E, born … 2017, F, born … 2010, and G, born … 2014 ("the children").
In the exercise of their equally shared parental responsibility, the parents are to, within a period of 28 days from the making of these orders, discuss whether the children should be engaged in therapy including, but not limited to, play therapy as recommended by the Report writer.
Should the children be engaged in such therapy, then the parents may provide to the therapist a copy of this judgment.
The parents shall immediately do all acts and things necessary to facilitate the children attending a protective behaviours program such as AA Services or CC Services.
The children shall live with the Mother.
The children shall spend time with the Father as agreed by the parties in writing and, failing agreement, during school term time for each alternate weekend from before school or 9 am Friday until before school or 9 am Wednesday, commencing on the first weekend of each term.
The children shall spend school holiday with the Father as agreed by the parties in writing and, failing agreement, shall spend the school holidays with the parents as follows:
(a) with the Father for the first half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an even-numbered year;
(b)with the Mother for the second half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an even-numbered year;
(c) with the Mother for the first half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an odd-numbered year;
(d)with the Father for the second half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period where the holiday commences in an odd numbered year;
For the purpose of Order 8, the first half of the school holiday period shall be taken to commence after school on the last day of school term time and end at midday on the middle Saturday of the holiday period.
For the purpose of Order 8, the second half of the school holiday period shall be taken to commence at midday on the middle Saturday of the holiday period and end at the recommencement of school the following term.
In the event that Father's Day falls on a weekend that the children are otherwise spending time with the Mother, the Mother's time shall be suspended, and the children shall spend time with the Father from 9 am until 7 pm on Father's Day; and
In the event that Mother's Day falls on a weekend that the children are otherwise spending time with the Father, unless otherwise agreed in writing, the Father's time shall be suspended and the children shall spend time with the Mother from 9 am until 7 pm on Mother's Day.
Changeover
Unless otherwise agreed in writing:
(a) Changeover shall occur at the children's school by the parent delivering the children to school at the conclusion of their time and the other parent collecting the children from school at the commencement of their time; and
(b)In the event that the children are not in attendance at school, changeover shall occur at the McDonalds, E Town, HH Street.
Telephone Communication
That the parents shall each have reasonable electronic communication with the children at times that the children are otherwise spending time with the other parent and shall facilitate the children communicating with the other parent at the request of the children.
That each parent shall ensure the children's privacy when speaking with the other parent.
Miscellaneous
That each party shall inform and keep the other informed of their current residential address and telephone number and in the event of any change to the address or telephone number, shall update the other party within forty-eight (48) hours of such a change occurring.
That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that the children are not exposed to a third party making critical comments about the other party in the presence or hearing of the children.
That in the case of a medical emergency where the child requires urgent medical attention or hospitalisation, the parent with care of the child at that time shall notify the other party as soon as reasonably practicable and not more than four (4) hours after the first point of contact with said medical practitioner.
That each parent will promptly provide an authority to any school that the children are enrolled at, authorising the release of information to the other parent, including but not limited to, school reports, school photograph order forms, invitation and flyers to school events and that each parent is at liberty to attend events involving the children at school.
That each parent will promptly provide to any medical practitioner treating any of the children an authority authorising the release of information to the other parent regarding the children’s medical treatment.
Discharge of ICL
That the ICL is discharged 3 weeks from the date of these orders so that the ICL may, in her discretion, explain the effect of the orders to the children.
Should the ICL request that the parents make the children available for this purpose then the parents are to comply with such request.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Olivier & Olivier has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1245 of 2017
| Mr Olivier |
Applicant
And
| Ms Olivier |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to this matter are Mr Olivier, the Applicant Father and Ms Olivier, the Respondent Mother. The parties commenced living together in December 2005 and separated on a final basis in either November 2016 or July 2017. However, in large part the parties co-resided until April 2020, shortly before the trial.
There are three children of the relationship, E born in 2007 (currently aged 13), F born in 2010 (currently aged nine), and G born in 2014 (currently aged six).
These current proceedings concern the parental responsibility and living arrangements of the children.
The parties’ cases are strongly polarised. Each asserts that the other presents a risk of harm towards the children. In general terms, the Mother says that the Father presents an unacceptable risk of harm of sexual abuse towards the children, and that he is also a risk to the children because he maintains, against the evidence, a view that the Mother is mentally unwell. She asserts that he is coercive, controlling and has been physically violent toward her. She also says that the paternal grandfather presents a risk of sexual abuse of the children.
In general terms, the Father says that the Mother presents a risk of harm to the children because she pursues sexual abuse allegations against him that are without any adequate basis. He attributed this to the Mother’s mental health, as he says that it is easier to accept that she pursues such allegations because she is mentally unwell as opposed to being the product of a genuine and rational belief, or the product of malice.
These issues are difficult to disentangle.
An unusual feature of the case is that, while the parties maintained that each poses a risk to the children, for almost all of the litigation process, until six weeks prior to the trial they co-resided. The allegations, and the unusual features of the case, call for the Court to be alive to the possibility that one party was exercising coercion or control over the other through the litigation process and through the particular dynamics of their relationship.
Family violence was raised as a central issue to the case. Each of the parties points to the other as controlling, and as using physical force against them.
The Mother attributed, in part, the choice to co-reside as her acting to protect the children against the Father’s sexual risk. Similarly, the Father attributed, in part, the decision to co-reside as protecting the children against issues arising in relation to the Mother’s mental health, in particular her pursuit of claims that he sexually abuses the children.
As is perhaps illustrated by the duration of their co-residence post separation, under what can only be expected to be fraught circumstances, the parties were each determined and unyielding in their competing positions as to how to protect the children.
What the parties sought
The Mother sought sole parental responsibility and that the children live with the Mother.
The Mother sought that the children attend a protective behaviours program and a counsellor, psychologist or mental health provider. The Mother sought that the Father complete a ‘Taking Responsibility’ program, obtain a psychiatric assessment and that he be prohibited from spending time with the children until the above steps have occurred regarding the children and the Father respectively. In the event that the Father was diagnosed with a mental condition by the psychiatrist the Father was to undertake treatment.
Once the above steps are complete the Mother sought that the Father spend time with the children from 9 am to 4 pm Saturday and 9 am to 4 pm Sunday in each alternate weekend until G turns 8 years, then from 9 am Saturday to 4 pm Sunday in each alternate weekend until G turns 9 years, and thereafter from afterschool Friday to 4 pm Sunday in each alternate weekend. The Mother sought provisions for special occasions, changeover locations, the provision of current contact details, communication regarding medical emergencies and for telephone communication with the Father each Thursday evening.
The Mother sought a restraint on the Father bringing the children into contact with the paternal grandfather without the written consent of the Mother. The Mother sought restraints on the Father staying with the children at the Farm or sleeping in the same bed or tent as the children.
The Father sought that the parties have equal shared parental responsibility and that the children live with the Father. The Father sought that the children spend time with the Mother each alternate weekend from before school or 9 am Friday until before school or 9 am Monday, or as agreed in writing, and sought provisions for special occasions. The Father sought provisions for reasonable telephone communication, updated contact details, provisions prohibiting the parties from making derogatory remarks and ensuring that each party inform the other party of any medical emergency.
The Independent Children’s Lawyer (the ICL) supported an arrangement in line with the current Interim Orders, adopting recommendations from the Family Report writer. That would result in shared parental responsibility, the children living primarily with the Mother and having alternate weekends with the Father, as well as school holiday time. The ICL recommended therapy for the parties and children to mitigate the exposure of the children to the parties’ opinions of each other.
Material relied upon
The Mother relied upon the following:
a)Affidavit of Ms Olivier filed 21 April 2020;
b)Affidavit of Ms H filed 21 April 2020;
c)Affidavit of Ms J filed 21 April 2020;
d)Affidavit of Dr K filed 22 April 2020; and
e)Case summary document.
The Father relied upon the following:
a)Amended Initiating Application filed on 21 April 2020;
b)Notice of Risk filed 14 July 2017;
c)Affidavit of Mr Olivier filed 21 April 2020;
d)Affidavit of Mr L filed 21 April 2020; and
e)Case summary document.
The parties also relied upon the Family Report of Ms M filed 21 April 2020 and Expert’s Report of Dr C filed 18 April 2018.
General approach
The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of the child. That is to be determined on consideration of the matters set out at s 60CC of the Act, as understood in the light of the objects and principles set out in s 60B and following the reasoning process set out at s 65DAA.
The objects and principles contained at s 60B provide that:
(1)The objects of this Part are to ensure that the best interests of children are met by:
a.ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b.protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c.ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d.ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a.children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b.children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c.parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d.parents should agree about the future parenting of their children; and
e.children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It may be readily recognised that the objects and principles do not all necessarily point in the same direction.
In the light of the objects and principles, in order to determine what is in a child’s best interests, the Court is required to consider the two primary considerations and the additional considerations, to the extent that they arise in a case, as set out at s 60CC. In Phillips & Hansford, Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”.[1] Rather, their Honours said that “only those that are in issue in the proceedings require detailed consideration”.[2]
[1]Phillips & Hansford [2019] FamCAFC 165, [43].
[2] Ibid.
Consideration of risk of harm forms one of the two primary considerations at s 60CC(2)(b). The consideration is of:
The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) directs the Court, in determining the best interests of a child, as follows:
In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
Of all of the considerations that bear upon a child’s best interests, the statute recognises the relative importance of the protection of children from such harm, and gives emphasis to this as a consideration.
Issues of the consideration of risk arise on the making of assertions or allegations.
The general approach in dealing with allegations is that set out by the Full Court in Sahrawi & Hadrami[3] where at [39] Ryan and Aldridge JJ stated as follows:
It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.
[3]Sahrawi & Hadrami [2018] FamCAFC 170
This reflects the approach generally applied in litigation,[4] but is subject, in cases involving assessing whether a child is at unacceptable risk of harm, to the approach taken by the High Court in the seminal case of M v M[5] where it was said:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression… the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.
(Emphasis added)
[4] See Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7
[5]M v M (1988) 166 CLR 69, p.76
Noting that the objective of the judicial process is to make orders that best promote and protect the interests of the child, the High Court went on to observe at page 75 that:
The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII …the court is enjoined to “regard the welfare of the child as the paramount consideration”. … The consequence is that the ultimate and paramount issue to be decided in proceedings for the custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.
The consequence of this was said by the Court [21] to justify a deviation from the usual approach in litigation:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child…the Family Court’s wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
This approach was further explained by the Full Court in Johnson & Page, adopting N and S and the Separate Representative at page 82,713[6]:
… 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.
[6]Johnson & Page [2007] FamCA 1235, [66]
Further in Johnson & Page the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, adopting M and M at [76]-[77]:[7]
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.
(Emphasis added)
[7] Ibid.
In N & S Fogarty J observed (as approved in Johnson & Page) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.[8]
[8]N and S and the Separate Representative (1996) FLC 92-655 (‘N & S’) (Fogarty J).
The question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities. In Johnson & Page the Full Court approved the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:[9]
4 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.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 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.
[9] Johnson & Page [2007] FamCA 1235, [68] quoting the Honourable John Fogarty AM ‘Unacceptable risk – A Return to basics’.
In N & S, consistently with the article quoted above, Fogarty J explained:[10]
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.
[10]N and S (1996) FLC 92-655 (Fogarty J).
That is, it is the overarching conclusion of unacceptable risk that is to be established on the balance of probabilities.
The approach to assessing such a risk in the absence of positive findings of abuse was addressed further in N & S[11], again as confirmed by Johnson & Page[12], adopting and expanding upon comments made by the New Zealand Court of Appeal:
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“….
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.
[11]N & S (1996) FLC 92-655 (Fogarty J).
[12]Johnson & Page (2007) FamCA 1235.
Also significant within these parties’ cases is the pursuit of mutual claims of family violence. While some of these claims related to physical acts, each also claimed that the other had exercised control, or attempted to exercise control, or to coerce. Such conduct, if made out, is significant to the second of the primary considerations, being the need to protect a child from harm occasioned by exposure to abuse, neglect or family violence. As noted above, this is the consideration to be given greater weight amongst the other considerations.
The forms that such coercion or control was alleged to have taken varied. In considering whether, or to what extent a party engaged in family violence, it is necessary to consider the breadth of its definition within the Act.
Family violence is defined by s 4AB(1) as follows:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Although there is reference to behaviour that is “violent” or “threatening,” the categories of behaviour are open, as indicated by the inclusion of the general “or other behaviour.” The essential aspect of the definition is the effect of the behaviour, being that it is behaviour that is controlling, coercive or engenders fear.
At s 4AB(2) the Act provides an inclusive set of examples of family violence. Chief Justice Bryant in Saska & Radavich [2016] FamCAFC 179, described the examples as giving context to the definition contained at s 4AB(1).
Section 4AB(2) is in the following terms:
Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
As noted above, the essential characteristics of the behaviour are that it control, coerces or causes fear.
Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something. 2. to compel by forcible action
Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1.To exercise restraint or direction over; dominate; command
The phrase “coerces or controls” is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command. The examples given at s 4AB(2) illustrate the potential modes of force, domination or command as incorporating both physical and non-physical means. For example, control through the unreasonable withholding of financial support constitutes a non-physical means of domination of another.
It should be noted that the definition contained at s 4AB does not encompass all occasions where one family member causes another to act other than in accordance with his or her inclinations. The nature of interactions within a family often involves the various members of the family preferring the interests of other members of the family ahead of their own.
However, where this is the result of the exercise of power, by force or domination or command, that is, it is the product of coercion or control, it then constitutes family violence and falls within the definition at s 4AB.
It should be accepted that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control. However, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour is ambiguous and may bear an innocuous explanation, be sufficient to allow a characterisation of coercion or control.
By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person. The mere fact of disagreement or criticism does not automatically equate to family violence.
In this case, the claims as to controlling or coercive conduct are broad ranging and will require consideration in the context of the parties’ relationship.
The other primary consideration concerns the benefits to the child of meaningful relationship with each parent. The focus is on the benefits, rather than merely the presence of meaningful relationship. The benefits necessarily include a consideration of a number of the additional considerations, such as the nature of the relationship between the child and the parent, the child’s characteristics, the parenting capacity of the parent and the child’s views. It is a consideration also affected by the other primary consideration, as exposure of a child to risk of harm with a parent equates to a diminution of the benefits that child might receive from relationship with that parent.
Finally, it should be recognised that, as with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
It is from this legal framework that the factual matters raised by the parties fall to be considered.
The parties’ cases
At the commencement of the hearing the parties were asked to identify the factual findings that they sought in pursuit of their cases. These are set out further below.
The parties filed their trial material simultaneously. At the commencement of the hearing the parties were advised that where factual findings were pursued it would be necessary to raise such matters with the witnesses, it being insufficient and unfair where there was simultaneous filing to leave factual matters unaddressed with the relevant witnesses then seek factual findings.
Accordingly, while the affidavit material, in some cases chaotically, spanned a wide range of factual matters, those that were firstly identified by the parties and then secondly pursued by the parties at hearing were far narrower.
Each of the parents sought factual findings related to the sexual abuse issue, either in relation to establishing (on the part of the Mother) risk posed by the Father and paternal grandfather or, (on the part of the Father) an absence of risk of such abuse, but a risk of the children being exposed to unreasonable concerns held by the Mother as to sexual abuse risk.
In pursuing a case based on unacceptable risk, the Mother concedes that, on the basis of the matters that she has identified above, it is unlikely that the Court could arrive at a finding that sexual abuse has occurred. She, however, asserts that there is no evidence that sexual abuse has not occurred. She asserts that the Court could not be satisfied that sexual abuse has not occurred. She says, by inference drawn from the suite of matters that she has identified, that it should be determined that there is an unacceptable risk of sexual abuse. In further support of this position the Mother, in closing submissions, also relied on third parties, such as child welfare agencies, failing to conclude that there has been no abuse.
In assessing the Mother’s case in relation to unacceptable risk, it should be recognised that at no time was either evidence led of a child asserting sexual abuse, of an adult observing sexual abuse, nor was it suggested to the Father in cross-examination that he had sexually interfered with the children.
The only direct evidence on the subject came from the Father’s, and his father’s denials that they have ever behaved sexually toward the children. The Father’s denial, and his father’s denial both form direct evidence that sexual abuse has not occurred, contrary to the Mother’s submission that there was no evidence of no abuse taking place.
As noted in the introduction, the central, but not sole aspect of the Father’s case is that the Mother presents a risk to the children, or presents a deficiency in parenting capacity, by virtue of her pursuit of a sexual abuse risk case, whether her pursuit of such is as a result of concoction, genuine belief or delusion.
The Father identified a number of factual findings he pursues in support of his case. They are as follows:
i)That the Wife alleges that the Father was sexually abused by his father;
ii)That in 2010, the Mother alleged that the Father had sexually abused one of the children, and maintained a belief that he had done so, even though he had not. This belief was without evidence suggestive of sexual abuse and was reliant on the observation of nappy rash;
iii)The children have been exposed to the Mother’s belief of sexual abuse, and her family’s belief of such;
iv)That the Mother has falsely asserted that the Father assaulted her on 2 July 2017, and deliberately self-inflicted injuries in support of her claim of assault;
v)That the Mother made false reports about the history surrounding an injury to F’s anus in June 2017, and pursued a complaint of sexual abuse, despite knowing that it was not true;
vi)That the Mother has admittedly smacked the children out of stress;
vii)The Mother has falsely alleged that the Father has been controlling and physically abusive;
viii)The Mother has assaulted the Father;
ix)The Mother struck herself in the head with a rock;
x)That there is no proper basis for the Mother to think that the Father has sexually abused the children, and that she knows the allegation to be false;
xi)The Mother insisted that the Father live with her, as an aspect of her being controlling;
xii)That Ms N (a psychologist engaged by the parties) was not engaging in family therapy, that the Father thought it was couple’s counselling, that the Wife thought that it was an opportunity to work out if he had a mental health issue, and so that the Mother’s insistence that the Father live with her was not the product of genuine concern for the children, but rather was an attempt to gain further evidence; and
xiii)The Mother has changed evidence to make it appear that the Father has abused the children.
At the commencement of proceedings, counsel for the Father indicated that the Mother's mental health remained an issue in the Father's case pending cross-examination. She conceded that, on the state of the evidence at commencement of the trial and without cross-examination, there was insufficient evidence to indicate that the Mother's mental health posed a risk in respect of the children.
This indication was in the context that evidence from both the Single Expert and the Mother’s treating psychiatrist supports the conclusion that the Mother does not suffer from a mental health issue. Ultimately, the Mother’s treating psychiatrist was not required for cross-examination, leaving such conclusions unchallenged.
The Father, however, indicated that he is still of the belief that the Mother suffers from significant mental health issues that bear upon her capacity to care for the children. He explained his rationale as being that he found it easier to accept that the Mother suffers from a mental health issue, rather than that she genuinely and rationally believes, or maliciously says that he could be capable of harming their children.
The Mother’s case is set out in her case outline document. She pursues a case based on unacceptable risk of harm, primarily as a consequence of sexual risk, posed by the Father and his father. In support of that case the Mother pursues the following fact findings:
a)In relation to F’s behaviour/presentation in 2016-17:
i)He suffered from night terrors, including as to being poked by a stick, and bedwetting concurrent with these;
ii)Having a sore anus and injury to his anus;
iii)F speaking of having a big fat penis and speaking of putting things up his “butt crack”;
b)That previously, in 2012 and otherwise, F has suffered an injury to his anus in the form of a red ring around his anus;
c)From 2016-17 G has been “self-soothing”;
d)That G said something about a wolf and her genitals;
e)The Father having a history of, and largely failing to moderate:
i)Sleeping with the children, including in their beds, including with himself naked;
ii)Permitting the children to touch him and cling to him in a manner that is not appropriate (including as late as March 2020);
iii)Being in a child’s room with the door shut;
iv)Putting his hands under the children’s blankets;
f)Conversations with the Father about paedophilia at [58, 129, 131] of the Mother’s affidavit.
The Mother also pursues a case that the paternal grandfather poses an unacceptable risk of harm (to which the Father will expose them, as he rejects the Mother’s concerns despite her raising them for ten years) by virtue of inappropriate sexual conduct with the children constituted by:
a)Holding the children into his crotch in a hug;
b)Dangling children upside down such that the children’s faces are pressed into or in front of his crotch;
c)Permitting the children to touch or caress him;
d)Not releasing the children but holding them in his grasp, that is when they are sitting on or touching him;
e)An incident where he played with the children with his belt.
The Mother also pursues findings as to family violence.
The Mother seeks findings that the Father has been both physically violent and has otherwise engaged in coercive or controlling behaviour. In relation to the physical incidents, she identifies an incident of 2 July 2017 in which she sustained injury, and otherwise the matters set out at [258-287] of her affidavit where she identifies incidents wherein she alleges that she was pushed or shoved or thrown by the Father.
In relation to coercive and controlling behaviour, the Mother alleges that this was systemic throughout the relationship and effected in part the nature of the accommodation and environment in which they lived, the lack of access to medical, other resources, and psychological support, including the Father opposing psychological intervention in 2016 for the children. She also cites two examples of coercive or controlling threats, being threats to remove the Mother's telephone and also to remove her computer during the preparation of the matter for trial.
Further, again in relation to coercive or controlling behaviour, the Mother alleges habitual references by the Father to her mental health, to her being delusional and to his use of her mental health diagnosis in refusing to vacate the property and in making threats to remove the children from her care.
Additionally, in terms of risk, the Mother alleges that the Father may have mental health deficiencies that he has failed to address and that he has also failed to provide evidence about. She asserts that he is on notice that there are mental health issues which he has not attended to, which may pose a risk to children.
The ICL did not add to this list of risk issues.
An examination of the above issues indicates that the key (although not the only) s 60CC considerations that are engaged in this case are the primary considerations, together with issues as to parenting capacity, and exposure to family violence.
Given the breadth of the Mother’s factual allegations, and the degree to which the Father’s factual contentions are responsive to the Mother’s, it is convenient to deal with the Mother’s allegations first.
Injuries to F’s anus and F’s behaviour
The Mother relied, in support of her claims regarding sexual abuse risk, on F’s behaviour and presentation in 2016/2017. She sought factual findings that previously, in 2012 and otherwise, F has suffered an injury to his anus in the form of a red ring around his anus.
The Mother alleges that in the beginning of 2012, she noticed that F had a red ring around his anus and she did not understand what had caused this.[13]
[13] Mother’s affidavit filed 21 April 2020, paragraph 58a.
On the third occasion that the Mother observed this mark, she says that she asked the Father if he knew what had caused the marks. She states that she was concerned that in the absence of a medical explanation (i.e. nappy rash or constipation) that the Father may have sexually abused F. The Father allegedly responded in words to the effect that “If I had assaulted F like that, he would be bleeding”.[14] The content of the conversation that led to such a remark was never identified by the Mother.
[14] Mother’s affidavit filed 21 April 2020, paragraph 58a.
In cross-examination, the Father said that F presented with nappy rash. The Father denied saying any words to the effect of ‘If I assaulted F, he would be bleeding’. The Father also denied saying words to the effect of “you are not classed as paedophile unless you actually penetrate a child's genitals”. The Father did say that around the time of the ‘red ring’ incident in 2012, the parties had a discussion in which he said words to the effect that he did not know a lot about sexual abuse and if the Mother was wondering what the marks of sexual abuse were like, she should ask a GP about it.[15]
[15] Cross-examination of Father, 29 April 2020 10:23-10:26am.
In an email from the Mother to her friends and family in November 2016, the Mother stated (in relation to this event) that when she went to change F's nappy there was a red ring around his anus that did not look like anything she had seen. She goes on to say that her ‘first fear’ was that Father had interfered with F and that she felt desperately in shock and did not know where to turn or who to ask. She further explained that because of the bad relationships that she had had with the general practitioners in town, she felt vulnerable asking them.[16]
[16] Exhibit F1 “Ms O” p.4.
In cross-examination of the Mother, however, when questioned about why she did not get a medical examination, the Mother added that the Father was ‘not keen’ on doctors, and that she wanted to believe that it did not occur.
The matter then, apparently, was left to lie with the Mother taking no action and making no further enquiry about the matter until 2016.
Accepting that on either party’s account there was redness or rash, the evidence does not go so far as to demonstrate that such is indicative, or even, at least, suggestive of a sexual interference with F.
In the context of the contested evidence, I am also not satisfied that the Father said what was alleged. However, even if he had, it has not been established that this was suggestive of sexual abuse.
A few days prior to the Mother’s email ‘Ms O’ of 9 November 2016, the Father had sent an email to their family and friends on 5 November 2016.
In this email, he advised that the Mother was in the P Hospital, outlined a history of his concerns relating to the Mother’s mental health and the events surrounding her hospitalisation.
At [95-100] of her affidavit the Mother describes the children attending the farm with the Father from 9 – 11 June 2017, with the Father returning with the children on the Sunday and staying with them in Canberra until the Tuesday. She says that he returned again on the Wednesday evening, leaving the Thursday morning. She says that F had not been eating and seemed upset all week. She further says that on the Friday he complained of having a sore bottom, which she observed to be extremely red and sore.
The Mother took F to P Hospital on 16 June (the Friday following the children’s return) where he was examined, with a red brown ring being observed around his anus, and asked to return the following day for further examination. The Mother said that the paediatrician said that it was concerning and that it may take a while for F to talk about what had happened.
To the hospital, the Mother reported that F had been complaining of a sore bottom since Tuesday, being a time immediately after F’s return from the Father’s sole care.[17] This conflicted with the Mother’s affidavit where she said that she was only aware of the sore bottom from Friday afternoon. In the CYPS intake form provided in the tender bundle and dated 29 June 2017 the Mother is reported as saying that on 16 June F had complained of his bottom hurting and that it hurt to sit down.[18] The Mother is reported as saying that her son had first noticed a cut from his bottom to his penis on 12 June when he got up from sleeping in the lounge room with his Father but that he had not told her until 16 June. The Mother was not asked about the CYPS notes in cross-examination.
[17] CARHU Medical Report, p. 113 Mother’s affidavit filed 21 April 2020, Annexure J.
[18] Tender bundle p.18.
The hospital records annexed at page 114 of the Mother’s affidavit record F’s attendance at P Hospital on both 17 and 18 June 2017, with examinations of his anus occurring on both days, on the second of the days with a colposcope. It was on the second of the days that an abrasion was observed near F’s anus.
The paediatrician described the findings as “non-specific.”
The Family Report writer observed that the inspection of F’s anus was a matter that would be distressing for him.
The variability in the Mother’s accounts (to the hospital and in her affidavit) of the circumstances of her becoming aware of the redness point to caution being appropriate as to her reliability in reporting phenomena that she marks out as indicative of abuse.
It was suggested to the Mother that she had concocted this version in an attempt to implicate the Father, which she denied. It has not been established that the variability in the Mother’s account was the product of a deliberate concoction.
Absent evidence that supports a conclusion that such a mark is suggestive of abuse, it should not be concluded either that the Father has abused F on this occasion, nor that, as a result of this presentation, the Father presents a risk.
When asked whether she would continue to have the children examined every time there is any form of injury to them, she said that yes, she was obligated to as a mother.[19] The Mother said that she had considered the impact of F having to bare his bottom and be examined two days in a row, but said that she did it because she cares for him.[20] The Mother denied abusing the children by having them unnecessarily examined.[21] The Mother said that G has had nappy rash many other times where the Mother did not take her to a doctor.[22] The Mother denied being overly focused on having the Father charged with sexual abuse, but said that she had concerns.[23]
[19] Cross-examination of Mother, 1 May 2020.
[20] Cross-examination of Mother, 1 May 2020.
[21] Cross-examination of Mother, 1 May 2020.
[22] Cross-examination of Mother, 1 May 2020.
[23] Cross-examination of Mother, 1 May 2020.
The Mother further alleged that in the week following the two examinations, F had severe emotional problems. She said[24] that he appeared to be having a hallucination where he said “the branches are poking me-please make them stop.”
[24] Mother’s affidavit filed 21 April 2020, paragraph 102.
Although the lawyer for the Mother used the term “night terrors” this was not a concept embraced by the Mother in her evidence, in relation to the stories told by F that she identified as problematic. She asserted that F was awake when he told the stories.
There is nothing about this aspect F’s conduct here that is suggestive of abuse by the Father. If, in fact, it were to be thought that this was a product of trauma, it ought to be noted that F had been subjected to an intimate examination shortly before that the Reporter characterised as productive of distress.
The Mother alleged that F also had “disturbing play about a ‘big fat penis’ and things going into bottoms with his siblings.” More specifically she alleged that on 25 June 2017 F said to E “Do you know where I love to go? Up your bum crack…and I put danglis metis (a penis) up there and it is disgusting.” She alleged that F said to G “I pulled your vulva in two halves.”
The Mother raised issues about F playing with a mandarin in an obscene manner. The Father accepted that the children did play with mandarins, sticking their thumbs into the mandarins before peeling them, commenting on how swollen their thumbs had become. The Father said that he was not present for the specific instances referred to by the Mother.
As noted later in the judgment, the Family Consultant noted that F’s comments were concerning, displaying atypical knowledge for a child his age, and raising a caution regarding vulnerability to abuse.
However, the particular context of these comments by F was not disclosed by the Mother. The nature of the play with the siblings was not disclosed apart from these extracts. No explanation was obtained from F as to why he might have been behaving in this manner, or where he had obtained such ‘knowledge’ from. The Mother says that she reported to CYPS on or about 30 June 2017 and DoCS on 2 July 2017 that F was interviewed but disclosed nothing.[25]
[25] Mother’s affidavit filed 21 April 2020, paragraph 104.
There is no basis to attribute this knowledge, or F making these comments, or playing in this way, as arising from contact with the Father, or to conclude that such knowledge was the product of abuse by the Father.
It has not been established that these matters are suggestive either of sexual abuse or of the Father being in some manner responsible for the conduct.
G self-soothing
In support of her claim of sexual risk, the Mother sought the factual finding that from 2016-17 G has been “self-soothing”.
The Mother said that she had observed G touching her own genital region. No link was established between either this behaviour and the Father, or this behaviour as an indicator of abuse.
G’s reference to a wolf
In support of her claims that the Father represented a sexual abuse risk, the Mother sought a factual finding that there was an incident where G spoke of a wolf and her genitals.
On 11 September 2017, the Mother says that G said that a wolf had caused her to have a mark in the area of her vagina. It is a matter that was investigated by the NSW police, as the Mother attended upon them on that day with G to make a report.
During the trial, it emerged that the immediate context of the attendance upon the NSW police was the attendance of the Mother upon the AFP with G previously on 5 September 2017,[26] at which time the Mother reported that G, suffering from a red mark on her vagina, had reported to her that the mark had been caused by a panther. This matter emerged by virtue of a late answer to a subpoena (during the trial) by the AFP producing documents in relation to the above attendance. Nowhere in the Mother’s affidavit material, nor in her reports to the Single Expert or the Family Report writer or to the NSW police the following week did an account of this attendance or its circumstances appear. The circumstances of that first attendance upon the AFP are as follows.
[26] AFP records at Exhibit F6.
On 5 September 2017, the Mother attended on the AFP with G, in relation to a red mark at the entrance to G’s vagina, observed by the Mother the previous day following G’s return from spending time with the Father.
On observing the red mark, the Mother reported asking G if it was an “owie” (ie something that hurt), to which G had responded that “the panther did it”, and made a clawing action with her hand. The Mother alleged to the AFP that G had said that the panther was with daddy, but that the panther had caused it.
At the time, the order made by Judge Tonkin on 1 August 2017 provided that:
The mother’s sister Ms J [sic] will be in substantial attendance with the mother at the Suburb Q property when the children are in her care and is to file an undertaking with the Court acknowledging her requirements of being in substantial attendance within 7 days.
Ms J did not record the panther account in her affidavit material.
The Mother had also said to the police that she had seen, in the previous week, a red mark and blister in G’s vagina, that she thought was a UTI. She said that the general practitioner had subsequently excluded a UTI as the cause. She accepted that the general practitioner must have had some contact with G’s genital region in this process.
The Mother also alleged to the AFP that G had been sleeping in the Father’s bed (although it was not made clear when this referred to, and it was not suggested to the Father that he had been sharing a bed with G at this time). When asked why the Mother thought that it was a sexual assault upon G, the Mother explained to the AFP that although she knew that it sounded “odd”, her concern emanated from the Father’s care of his grandmother, and that the Father had told her that his grandmother suffered from urinary tract infections and would try to strangle him. The Mother explained that she was concerned that the Father had mental illnesses. She was concerned that the children were copying things from the Father. She noted that F had made comments about being a panther, and has said of the Mother’s sister that he wanted to eat her privates.
None of these matters emerged from the Mother’s material in the trial.
There is no apparent rational link between the basis the Mother proposed to the AFP and a risk posed by the Father. Even if G made the comments as attributed to her, any link between her presentation, her comments and sexual abuse is highly speculative.
The Mother was questioned as to whether she had attempted to conceal this report regarding the panther from the Court. The Mother denied this. However, the Mother having made no reference to this incident (which had failed to result in action by the AFP) in any court documents, to any report writer, or to the NSW police the following week when she made the wolf report, supports the conclusion that the Mother withheld this information. Again, it calls for caution to be exercised as to the Mother’s reliability in recounting phenomena potentially related to abuse.
As noted above, on 11 September 2017, the Mother attended with G on the NSW police. She explained that she attended on the NSW police rather than the AFP on this occasion as the AFP referred her to NSW on the basis that any offence would have taken place in NSW.
As a result of her attendance on the NSW police[27] the Mother attended at P Hospital for G to be examined. This attendance conflicted with the restriction put into place by the Federal Circuit Court. The Mother explained that she thought that she had to take G to the hospital as she had been directed to by a police officer, who she says told her that his direction to attend hospital outranked a court order to the contrary.[28]
[27] NSW FaCS contact record at Exhibit M2
[28] Exhibit M2
The FaCS notes of the report (exhibited by the Mother at Exhibit M2) record the Mother as saying that following G’s return from four days with the Father, G had refused to have her nappy changed, had severe nappy rash and said that a “wolf had licked me there” while indicating her vagina. She was also reported to have said to the Mother that it might be an otter making a home in her bottom. She is reported to have said that he (the wolf) put his skin in me, and the wolf put “his skin in me”, again pointing to her vagina. She is reported to have said that “his skin felt like blood. It felt ouchy and blood feels like ouchy.” She reported that G told her that “wolf was there. Daddy came and picked me up and I was crying.”
Even leaving aside the Father’s confidence in the Mother, and taking into account the likelihood of the Mother having ongoing concerns, it may be observed that there have been no new allegations pursued since 2017. Further, although there has been exposure of the children to the consequences of the Mother’s beliefs (e.g. in being taken to the police and medical assessment), the children appear to remain unaware of what the Mother’s concern is.
Despite the strength of the Mother’s concerns, the children do not know what they are, or why she has an issue with the Father. Where the Mother has held such strong and enduring views, she has exhibited both the capacity and will to shield the children from direct exposure to such.
This acts as a significant protection for the children.
Similarly, despite the Father’s concerns about the Mother’s mental health, and despite the Father being tempted to expose the children to his views on the Mother in this respect, again the children remain unaware of his views on the Mother.
In the context of such a difficult polarised dispute between the parties, this too constitutes a significant protection of the children.
Each party made allegations of family violence against the other, each having been physically violent to the other. That physical violence was episodic. While the parties remained living together, they were both more vulnerable to either inflicting or having such instances inflicted upon them than now that they live apart. It is not a continuing risk of significance whilst the parties are not in a relationship. The corresponding risk to the children of being exposed to such is also negligible now that the relationship appears at an end.
Although cases of coercion and control were mounted by each of the parties, neither established such coercion and control, nor an unacceptable ongoing risk of the children being exposed to such.
One issue that remains is that the children risk being exposed to conflict between the parties. It may be taken that this has abated now that they are not all living together. However, heed should be taken of the Reporter’s concerns that the conflict between the parties meant that an equal time arrangement is not appropriate because of its demands for cooperation.
It should be noted that until shortly before the trial, the children lived with both parents together, although historically the Mother provided the greater amount of care for the children. Each of the parents were assessed as having positive relationships with each parent, with E and F expressing that they wanted equal time with each parent. Absent the risk issues, the Reporter held no particular view as to who the children should predominantly live with, as each child loves each parent, and each parent loves each child. Any difference in capacity to care for the children appears to be marginal.
The cessation of the co-living arrangement shortly before the trial meant a considerable change for the children. On either parties’ case, they face further change, although the ICL advocated (dependent upon findings as to risk) a continuation of much the same arrangement as is in place now.
The ICL submitted that an approach ought to be taken to spread the risks facing the children by means of the orders to be made. By this, she indicated that orders should be made for both parental responsibility and time with each parent so as to reduce the potentially adverse influence that could be brought to bear in undermining the other parent (should the parents’ self-restraint fail).
In considering this in relation to parental responsibility, it should be observed that for all their difficulties, the differences in relation to longer term issues for the children appear so far to have been narrow. The most contentious area relates to the provision of medical and psychological assistance for the children.
Although the Father was criticised as being opposed to such interventions for the children, I note his willingness for the Mother to take G to the GP when there was a suspected urinary tract infection. I further note that the conflict in relation to psychological involvement with the children related to his legitimate concern that the Mother sought this in consequence to her suspicion and pursuit of sexual abuse allegations against the Father.
It may be taken that an equal sharing of parental responsibility carries with it the strong prospect of conflict in relation to medical examination of, or psychological intervention with the children. However, such potential conflict carries with it a useful brake on the children’s exposure to such which justifies such an order as being, despite the conflict, in the children’s best interests as protective of them.
Although the presumption in favour of equally shared responsibility does not apply by virtue of the episodic violence between the parties, the children’s best interests call for such an order to be made.
This calls for a consideration of equal time. This was not sought be either party, and was specifically recommended against by the Reporter, with good reason.
While sharing of parental responsibility calls for cooperation in relation to long term issues, equal time calls for a high degree of cooperation between the parents or else the children will be exposed to conflict that is not in their interests to navigate.
Although the parents co-resided, and cooperated in this manner for an extended period, it was productive of conflict that spilled into physical conflict. It should be anticipated that equal time provides a fertile field for conflict and should be avoided.
This then calls for the consideration of substantial and significant time.
Although the Mother sought orders for therapeutic intervention before the Father has unsupervised time, such an approach is unjustified and deprives or at least minimises the children of the benefits of meaningful relationship with him for no apparent benefit.
The Father sought orders that the children primarily live with him, with the Mother having each second weekend. This was predicated on findings as to malice and risk that I have not made.
Orders should be made for substantial and significant time, particularly given the Reporter’s assessment of the relationships with the children. This is also consistent with the Reporter’s recommendation that if there is no finding as to unacceptable risk that there be a 9-5 split across the fortnight.
In this case there is a relatively even balance between the two parents. Three considerations tip the balance in favour of the children living primarily with the Mother.
The first is that the Mother has exercised the greater role in the care of the children to date, speaking to her capacity where it is not undermined by the making of sexual abuse allegations.
The second is that (in this context) this will involve a lesser change in arrangements for children who have already had a series of changes thrust upon them. Since April, they have lived primarily with the Mother and while this is of limited weight, it avoids the children facing another immediate and significant change.
The third, again of minor weight is that it is reflective of G’s preference. This is a matter of low weight given G’s age and likely change to that preference in the future. However in this relatively evenly balanced case matters of low weight are sufficient to tip the balance.
An order will be made for a 9-5 split across fortnights during school.
Provision will also be made for school holiday and special occasion time.
Given the conclusion I have reached in relation to the paternal grandfather, no restraint will be made on the time that the children spend with him. It will be a matter for the Father.
Further, in accordance with the recommendations of the Reporter, the parents will be required to enrol the children into a protective behaviours course, and will be required to discuss facilitating the children engaging in therapy.
I certify that the preceding four hundred and six (406) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 4 August 2020.
Associate:
Date: 4 August 2020
Annexure A
Per Mother
Interim Orders Pending Judgment
1.That Order 3 and Orders 5 and 6 of the Orders of 3 May 2018 of The Family Court be suspended pending the delivery of Judgement in this matter.
2.That the mother have sole parental responsibility for the children.
3.That the father spend time with the children as determined by the Honourable Court.
Final Orders
Parental Responsibility
4.The mother have sole parental responsibility for the children E born in 2007, F born in 2010 and G born in 2014.
Live with
5.That the child live with the mother.
Protective Programs & Therapeutic Intervention
6.That the mother do all acts and things to forthwith facilitate the children attending the following:
a. A protective behaviours program such as AA Services or CC Services; and
b. For the children to be engaged with a counsellor/psychologist/mental health provider and for the children to be seen by that provider for such times and such duration as is considered necessary and appropriate by the provider.
7.For the purposes of Oder 3(b) that the mother be permitted to provide the counsellor/psychologist/mental health provider with a copy of the following:
a. Any final Orders made by the Court;
b. A Copy of the Part 15 Expert’s report of Dr Y;
c. A copy of the Family Report of Ms M dated 20 April 2020; and
d. A Copy of the Affidavit and psychiatric report of Dr K.
Psychiatric Assessment
8.That the father forthwith do the following:
a. Enrol in and complete the “Taking Responsibility” program offered by Relationships Australia; and
b. Obtain a psychiatric assessment, including any psychometric testing as is recommended or required, by a suitably qualified psychiatrist, specialising in adult mental health as is agreed between the parties in writing.
9.For the purposes of Order 5(b) that the father be permitted to provide the nominated psychiatrist with a copy of the following and/or the psychiatrist will be permitted to make contact with:
a. Any final Orders made by the Court;
b. A Copy of the Part 15 Expert’s report of Dr Y;
c. A copy of the Family Report of Ms M dated 20 April 2020; and
d. Contact details of psychologist, Ms N.
Father’s Time with the Children
10.That the father spend no time with the children until the following has occurred:
a. The children have attended upon the protective behaviours program in accordance with Order 3(a); and
b. Have seen their treating mental health provider at least twice in accordance with Order 3(b); and
c. The father has completed the Taking Responsibility program in accordance with Order 5(a); and
d. Undertaken the psychiatric assessment in accordance with Order 5(b).
11.Upon the release of the psychiatric assessment pursuant to Order 5(b) the father will forthwith provide a copy of that report to the mother and the following will occur:
a. In the event that the father is diagnosed with a mental health issue/condition, he will forthwith engage in therapeutic treatment for that condition and follow all reasonable directions of his treating psychiatrist, including compliance with taking prescription medication; or
b. In the event that the father is not diagnosed with a mental health issue/condition the father will commence spending time with the children in accordance with these Orders.
12.Subject to these Orders, the father will spend time with the children as follows:
a. From 9am to 4pm Saturday and 9am to 4pm Sunday in each alternate weekend until G attains the age of 8 years of age; and thereafter
b. From 9am Saturday to 4pm Sunday in each alternate weekend until G attains the age of 9 years of age; and thereafter
c. From afterschool Friday to 4pm Sunday in each alternate weekend.
13.Unless otherwise agreed between the parties the children will spend special days with father as follows:
a. With the Father on Father’s Day from 9am to 4pm;
b. On the Father’s birthday as follows:
i. On a non-school day from 9am that day to 4pm; and
ii. On a school day from afterschool to 7pm.
14.In the event that the following days fall on a time that children are in the care of their father, the father’s time will be suspended and the children will be with their mother as follows:
a. With the Mother on Mother’s Day from 10:00am to 6pm;
b. On the Mother’s birthdays as follows:
i. On a non-school day from 9am that day to 4pm; and
ii. On a school day from afterschool to 7pm.
Change Overs
15.For the purposes of these Orders, unless as otherwise agreed:
a. On a non-school day the parties will collect and deliver the child to the McDonalds, E Town, HH Street;
b. On a school day, changeovers shall occur at RR School, Canberra.
Communication
16.The father is able to communicate with the children by telephone or other electronic means each Thursday between the hours of 6.30pm and 7.00pm with the father to initiate those calls.
17.Both parties will provide to the other a current contact telephone number, email and skype (or other electronic contact address) to facilitate the children being able to communicate with each party, and both parties will advise the other of any change in those details as soon as practicable.
18.Both parents will ensure that they communicate with the other parent in relation to the child’s health, medical emergencies and wellbeing and to notify the other parent of any injuries or hospitalisation suffered by the children as soon as practicable.
Restraints
19.The father is restrained from bringing the children into contact with the paternal grandfather Mr L for any purpose, unless with the written consent of the mother.
20.That the father be restrained from the following:
a. Having the children stay overnight at the farm, DD Street, FF Town, NSW and GG Street, FF Town, NSW;
b. Being in the same bed or sleeping in the same bed, or in the same bedroom of any of the children;
c. Sleeping in the same tent as the children;
d. Permitting the children to sleep in the same bed with their siblings or other persons.
Authorities
21.Each parent will forthwith provide an authority to any school that the children are enrolled, authorising the release of information to the other parent, including but not limited to, school reports, school photograph order forms, invitation and flyers to school events and that each parent is at liberty to attend events involving the children at school.
22.That each parent will forthwith provide an authority to each of the children’s treating medical practitioners authorising the release of information to the other parent regarding the children’s medical treatment.
Per Father
Parental Responsibility: -
1.That the parties shall have Equal Shared Parental Responsibility for the children E born in 2017. F born in 2010 and G born in 2014 ("the children").
Live With: -
2.That the children shall live with the Father.
Spend Time With: -
3.That the children shall spend time with the Mother as agreed by the parties in writing and in failing agreement: -
(a) Each alternate weekend from before school or 9am Friday until before school or 9am Monday.
4.That in addition to the time that the children shall spend with the Mother at Order 3 (a) the children shall spend additional time with the Mother on days of special significance as agreed in writing and failing agreement: -
(a) With the Father for the first half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period in even numbered years.
(b) With the Mother for the second half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period in even numbered years.
(c) With the Mother for the first half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period in odd numbered years.
(d) With the Father for the second half of the Term 1, Term 2, Term 3 and Term 4 ACT School Holiday period in odd numbered years.
(e) In the event that Mother's Day falls on a weekend that the child are otherwise spending time with the Father, the Father's time shall be suspended, and the child shall spend time with the Mother from 9am until 7pm on Mother's Day.
(f) In the event that Father's Day falls on a weekend that the child are otherwise spending time with the Mother, the Mother's time shall be suspended, and the child shall spend time with the Father from 9am until 7pm on Father's Day.
Changeover: -
5.That for the purpose of changeover, changeover shall occur at the child's school by the parent delivering the child to school at the conclusion of their time and the other parent collecting the child from school at the commencement of their time.
6.That in the event that the children are not in attendance at school changeover shall occur at the Mother's home at the commencement and the conclusion of the Father's time.
Telephone Communication: -
7.That the parents shall each have reasonable telephone communication with the children at times that the child is otherwise spending time with the other parent and shall facilitate the child communicating with the other parent at the request of the child.
8.That each parent shall ensure the child's privacy when speaking with the other parent.
Miscellaneous: -
9.That each party shall inform and keep the other informed of their current residential address and telephone number and in the event of any change to the same shall update the other party within forty-eight (48) hours of such a change occurring.
10.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.
11.That in the case of a medical emergency where the child requires urgent medical attention or hospitalisation the parent with care of the child at that time shall notify the other party as soon as reasonably practicable and not more than four (4) hours after the first point of contact with said medical practitioner.
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