Olivier & Olivier (No 2)

[2018] FamCA 306

FAMILY COURT OF AUSTRALIA

OLIVIER & OLIVIER (NO 2) [2018] FamCA 306

FAMILY LAW – CHILDREN – Parental responsibility – whether either parent constitutes a risk of harm – assessment of risk on an interim basis –whether father poses sexual or psychological risk – whether mother poses risk due to mental illness – where equal shared parental responsibility providing a protective function

Family Law Act 1975 (Cth) ss 60CC, 61DA

Marvel & Marvel (2010) 240 FLR 367

APPLICANT: Mr Olivier

RESPONDENT: Ms Olivier

INDEPENDENT CHILDREN’S LAWYER: Ms S Hiles

FILE NUMBER: CAC 1245 of 2017

DATE DELIVERED: 3 May 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 1 May 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Ms M Davis

SOLICITOR FOR THE RESPONDENT: Women’s Legal Centre

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid, ACT

Orders

1. The order of Judge Tonkin made on 28 September 2017 (Order 2) providing that the children live with the father is discharged.

2. The order of Judge Tonkin made on 28 September 2017 (Order 3) providing that the father have sole parental responsibility for the children is discharged.

3. The father, Mr Olivier, and the mother, Ms Olivier, will have equal shared parental responsibility for the children, E, born … 2007, F, born … 2012 and G, born … 2014.

4. The children will live with each parent as agreed, but on the failure to agree or the cessation of agreement the children will live with the mother. 

5. In the event that the children are living with the mother pursuant to Order 4 above, the children will spend time with the father each second weekend from 8.45am on Friday to 8.45am on Monday commencing upon the first Friday after the parties cease to share the same house.

6. In the event that the children are living with the mother pursuant to Order 4 above, then, unless otherwise agreed, the children shall spend the first half of each school holiday period with the father commencing from 10am on the first day following the end of the school term and ending at 10am on the Sunday closest to the mid-point of the school holiday period.

7. The mother will notify the father and the Independent Children’s Lawyer forthwith upon changing her current psychiatric medication.

8. The orders otherwise sought by the parties on an interim basis are refused.

9. The matter is transferred to the Registrar’s List pending further application or the listing of the matter for trial directions.

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

1. This judgment is concerning E, who is eleven years old, F, who is seven years old, and G, who is almost four years old.  The proceedings follow a previous interim determination made by Judge Tonkin that provided that the children would live with the father and have supervised time with their mother following her admission to a psychiatric ward.  The bulk of those orders have been discharged, in large part by consent, but also on the basis that the parties were not acting in accordance with the orders any longer. That is, they were co-residing, sharing care of the children, and working on their relationship, although they could not be said to be reconciled. 

2. The application before me was made in the context of the release of the Single Expert report by Dr C.  That application was adjourned to give the parties an opportunity to present cases regarding the interim orders that they seek pending a final hearing; in particular, in the context that they might not continue to share the same residence.  That sharing of residence, at least according to the mother, is in part because of her concerns to protect the children from her fear that they might be sexually abused by the father.

3. In the circumstances the mother is seeking shared care while the parents continue to co-reside, however, if they no longer co-reside, she seeks that the children primarily live with her and only have supervised time with their father.  The basis that she puts forward in support of this is her assertion that the children are at risk of sexual abuse, particularly from the father, but also said to be from the grandfather. 

4. The father is seeking to share the care of the children with the mother while they continue to co-reside, but, should they live separately, says they should live with him each weekend and with the mother during each week.  He accepts that the mother, as she is currently medicated and in his experience of living with her, does not at present pose a risk to the children. 

5. The Independent Children's Lawyer (“ICL”), the mother and the father are all seeking various therapeutic orders, including orders regarding the psychiatric or psychological treatment of the parties.  A number of these orders are of dubious jurisdiction and it might be observed that there is insufficient evidence to make the orders in any event.

6. Turning to consider the orders about who the children should live with. Firstly dealing with the presumption in favour of equal shared parental responsibility, here we have a case involving highly complex issues even on an interim basis. That means that the presumption should not be applied pursuant to s 61DA of the Family Law Act1975 (Cth). Those complex issues include the question of the risk that the father might pose sexually or psychologically and a risk, although conceded by the father not to be currently present, that the mother might pose because of instability in her mental health.

7. Relying on the case of Marvel,[1] complexity may call for the non-application of the presumption in interim proceedings.  The currently entangled issues mean that that is so here.  However, the non-application of the presumption does not equate to no order being made for equal shared parental responsibility, merely to the matter not being initially governed by the presumption, and to be determined overall on an application of the s 60CC considerations. 

   [1]Marvel & Marvel (2010) 240 FLR 367.

8. In examining the s 60CC factors for the interim determination, the key matters concern risk as identified by the father, without him conceding that such risks exist.  Those three categories of risk are, firstly, a risk on the part of the father and the paternal grandfather that they might constitute a risk of sexual abuse to the children.  Secondly, a lack of parenting skills and potential for psychological harm imposed by the father.  Thirdly, harm flowing from the mother's mental health issues.  Of these identified risks, currently, as far as the father is concerned, the mother is not a risk while on her current medication.  However, the ICL did not articulate a position regarding the mother's mental health and risk flowing from that as non-contentious.  The ICL articulated a position that no contingent order should be made should the parties cease to co-reside, as there would be a need to assess the circumstances on that occurring, and the result may be reliant upon therapeutic actions taken by each in the meantime. 

9. It cannot be said to be uncontentious in any of the three risks.  Even absent the ICL’s position it could not be ruled at this stage that the mother's mental health is a neutral matter on the limited material before me.  Counsel for the mother, correctly in my view, in assessing the factors present in this case, characterised them as a potential risk of harm balance.  That is, risk of harm is the dominant consideration.  While the mother's orders seek a restriction in the time between the children and the father, and a restriction to it being supervised, it should not be thought in the short term that that would deprive the children of relationship with their father.  In considering the key factual contests in the matter it is important to bear in mind what was said in Marvel, relevantly:

   [120] The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions  (see Goode at paragraph 82(d)).  In this case, we agree with the written submissions made by the former counsel for the ICL and the oral submissions of counsel for the ICL at the hearing of the appeal that two findings of the trial Judge were inappropriate.

   it goes on:

   [122] In SS & AH [omitting citations] Justices Boland and Thackray discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings.  Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. 

10. These concerns expressed by the Full Court echo the father’s concerns about the controversial opinions expressed by Dr C.  That is, they need to be approached with some circumspection but with the knowledge that it is necessary to weigh the probabilities of competing claims and the likely impact on the children.

11. Turning then to the evidence, the mother in her material has told the Court very little in her affidavit regarding the risks requiring interim protection.  She has identified an issue that she faces in her current situation related to the risk that she expresses, that is, that she presently feels as though she is trapped in living with the father, although it is not expressed in exactly those terms, because of her fears regarding a risk of sexual abuse of the children.  This matter is rendered more complex because she is currently seeking to restore a functional marriage.  Aside from her adoption of Dr C's report, her affidavit material gives little insight into why she holds fears for the safety of the children with the father.  In the current context she advances her position as being protective of the children because she and the father are co-residing and so she is present, yet her affidavit material is suggestive that that is not the case.  That is, she is not present at all times with the children and the Dr C material confirms that there is unsupervised time between the father and children, so it is not as though the co-residence provides constant supervision.  If the risk was thought to be cogent then the co-residing only gives an illusion of protection. 

12. The father in his case advances Exhibits F1 and F2, which involve the welfare agency and assessments on their part based largely on unidentified reporters but concluding that in each instance the sexual abuse claims raised by the mother have not been substantiated.  Exhibit F1 unfortunately is not weight-bearing.  I cannot tell the source or the extent of the material, nor the rationale, nor even the import of what is meant by “not substantiated”.  The Court cannot simply abrogate its assessment of these matters to third parties and if using an opinion regarding risk cannot use an opaque conclusion as a matter that can bear weight.  Exhibit F2 was a reference to the school but lacks a breadth of, or even an identification of, the considerations relied upon in the expression of that opinion to allow it to play a role.  That is, the interim issues on risk fall largely to be considered primarily on the basis of Dr C's report.  The parties focused on the use of her report in the interim proceedings and it should be noted that that report should be approached with some caution.  The father says it is replete with error and identifies Dr C’s second hand use of information to support their being an allegation against the paternal grandfather that he is a sex abuse risk.  It should be approached cautiously because it is untested and these are interim proceedings but should be approached on the basis that it can be used to weigh the different potential risks in that context. 

13. The first finding made in respect of risk in Dr C’s report was the risk assessment at [268] and following.  There Dr C made a reference to a test called the FSNA, but acknowledged that it was used in a manner beyond its original formulation; it is unclear the significance of that.  The factors that she consequently identified for risk on the part of the father, even if accepted, do not go as far as establishing a risk requiring immediate protection, that is, dealing with the report on a conservative basis and without rejecting the factors put forward by Dr C at this part of her report.  It is important to note that counsel for the mother did not suggest that there was a single factor leading to the requirement for the orders sought by the mother, but rather an accretion of factors.  It was in that context that she made the concession that the report did not bear out an unacceptable risk of sexual abuse.  That was a fair concession put forward as Dr C’s report does not rise so far as to describe an unacceptable risk of sexual abuse.  But counsel also pointed to matters that were raised by Dr C in addressing the Terms of Reference and the identification of issues regarding risk at [266] and [267] of the report.  On the question of a sexual abuse risk Dr C relied upon odd behaviours and a reference to a red sore anus and anal fissure.  She concluded that none of these instances in and of themselves constitute acts of sexual abuse, although they may indicate sexual abuse is occurring.  She goes on to offer the opinion that the mother, even if there is no sexual abuse, has valid reasons to be concerned for her children's well-being.  At highest this is speculative as to the possibility of sexual abuse, but even absent that sexual abuse risk, is grounded in the personal and relational difficulties that she expects the children experience in respect of their father.  She also pointed to an apparent trauma of the children which she says is sourced in the dysfunctional relationship between parents and alleges is related to the abusive, manipulative and controlling behaviour of the father, which I note is itself a controversial finding made by Dr C. 

14. Dr C continues at page 71 to say she cannot be sure about the risk of sexual harm, which in context appears to be whether or not there in fact is a risk at all which explains counsel’s position as to unacceptable risk.  However, she says that there is a risk of psychological harm and points to deficiencies on the part of the father.  A conservative approach at the interim hearing stage does not allow the rejection of such a view on an interim basis, that is, there remains an open possibility that there is manipulation and coercion with little insight.  I was further taken at page 71 of Dr C’s report to the following entry at the second full dot point on that page.  I note before referring to it that the question being addressed by Dr C was posed on the basis that abuse had occurred, but did not relate to the likelihood of the occurrence of abuse.  In relation to that particular matter and the question of interim time, Dr C noted that if there had been abuse it could be destabilising and traumatic for the children to spend time with their father, but she noted that there did not appear to be clear evidence on this, based on the time that the children are currently spending with the father. Even if abuse had occurred there was no appearance of time with the father being destabilising or traumatic. 

15. The further risk issue related to the mother and her mental health.  Dr C did not consider that the mother posed a risk in relation to her mental health. Although generally it is a non-contentious matter that there are some risks posed by the mother’s mental health, there is no material suggestive that there is an immediate risk in respect of her mental health.  On balancing or weighing the risks on a circumspect and conservative basis, and being unable to make findings of fact on controversial matters, there is too fragile a basis to suggest that either parent, at present, presents a risk of physical or sexual harm to the children, such as would be sufficient to warrant supervision for that purpose.  That is, of course, reinforced by the father's position in relation to the mother's mental health.  That is, he is content, even if they are not living together, for the mother to have substantial and significant time with the children. 

16. That leaves outstanding the risk of psychological harm posed either by the father or by the dysfunctional relationship between the mother and the father.  Those matters do not presently warrant supervision.  Such a conclusion leaves the mother in a position where she has an apparent belief in a risk of harm for the children that requires supervision and in those circumstances is reluctant perhaps to cease the co-location that she believes gives some supervision.  Yet it is apparent that in the current circumstances supervision is not being provided, despite living in the same house.  An assessment of the risks means that this is not a case that calls for supervision. Supervision is neither called for on the risks as put forward nor is it consistent with the current conduct of the parties.

17. That leaves the risk most potentially extant as being the children being exposed to the relationship problems between the parents and psychological harm from deficiencies alleged in relation to the father.  It is those matters that should shape the orders if the parties cease to reside under the one roof. 

18. Turning back to the question firstly then of parental responsibility.  The complaints made in relation to parental responsibility, which until recently has been allocated to the father, are that he has not allowed F to access psychiatric support or psychological support.  The mother says it is necessary and relies upon Dr C; the father believes it is not necessary.  She further asserted that the father would not allow the children access to a general practitioner, although it is unclear on what basis this is asserted as the father, before the Court, expressed no opposition to the children attending upon a general practitioner. 

19. There is also conflict between the parties about G and her attending pre-kindergarten, although it is quite unclear what or who holds the right answer to this.  The examples cited are not such as to push a conclusion one way or the other about whether one parent can exercise parental responsibilities to the benefit of the children more effectively.  It is premature to embrace Dr C's opinions which call for therapeutic or counselling intervention regarding F.  To go to that stage there would need to be a background provided to the Court as to who and on what basis these therapist will be seeing F, the nature of the relationship between any such therapist would need to be made explicit to the Court, namely because of the background of the sexual abuse allegations that the mother makes and how her belief in respect of sexual abuse may affect F in the context of seeking therapeutic support.  It is also notable that the parties are currently working on their relationship, they co-reside, although they have grave difficulties and although Dr C alleges coercion and manipulation, despite those allegations of coercion and manipulation, the parties appear before me to be free to express divergences in their litigation.  Clearly these matters all lead to problems in the exercise of parental responsibility together, which is what an order for equal shared parental responsibility will require.  But in this case, with its complexities, the exercise of parental responsibility by one parent is neither needed as yet, nor in the children's best interests, as an inability to make unilateral decisions in this case provides a protective function.  If it becomes necessary to resolve important issues in relation to decision-making for long-term matters for the children and the parties are unable to do it, it will necessarily result in an application before the Court founded on evidence to justify a particular course of action.  That is, whether a particular therapist should be appointed for a particular child and the particular Terms of Reference for that or particular educational requirements.  Perhaps counterintuitively the difficulties in this case call for an order for equal shared parental responsibility. 

1. At present the parties have equal time while they are co-residing.  But by the positions that they articulate to the Court it can be seen that equal time is not accepted by them to be in the children's best interests.  So much seems to be conceded by the father in his orders sought which seek a four / three split.  Given the psychological risks which may be present in this case it is correct that there should not be an order for equal time, but that the children should live predominantly with their mother if the parents are not co-residing.  This is in order to counter the possible, but as yet undetermined, risk of psychological harm.  At present it cannot be determined if there is in fact a risk but the Court should act conservatively as to protect against that potential, but should still provide substantial and significant time with the father. 

2. I pause to turn to the question of the paternal grandfather and note that the matters raised by Dr C do not amount to an unacceptable risk of harm of sexual abuse being posed by the grandfather and propose to make no orders in respect of him.  I will, however, adopt the alternate weekends, as suggested by Dr C with some amendment.  It is appropriate that there be a substantial and significant time order made so that the father has substantial and significant time with the children from Friday to Monday each second weekend, and also for half of school holidays. 

3. While it was somewhat attractive to defer the decision to the eventuality of a non-co-residence between the parents, it is appropriate that the parties not have to return in that event or deal with the uncertainty as to what might happen if they cease to co-reside.  Co-residence, if attempted by the parties, should not be under the force of uncertainty as to what might happen if it ceases.  As to the therapeutic orders, there is insufficient evidence for them, and perhaps jurisdiction for some of them, to make such orders at present.  In any event, many of the steps were agreed by the parties and their agreement means that there is no requirement for orders to be made.

4. One particular matter does arise, and that is the father's risk position as contingent on the mother remaining on her current medication.  This appears to be a reasonable position and reasonably speak to potential risks.  He and the ICL should be told if there is a change in that medication regime so that the Court can deal with what may be an evolving position.  

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 3 May 2018.

Associate:

Date:  10 May 2018