PARCH & RILE

[2015] FamCA 128

FAMILY COURT OF AUSTRALIA

PARCH & RILE [2015] FamCA 128

FAMILY LAW – CHILDREN – Final orders – Where there are untested allegations of sexual abuse – Where the age and maturity of the children means that the Court should give their views significant weight – Where the parents elect not to proceed with a trial and the evidence will remain untested – Where the Independent Children’s Lawyer does not agree to orders being made by consent as proposed by the parents – Where the Court is satisfied that the orders proposed by the parents are in the best interests of the children in the circumstances of the case.

Family Law Act 1975 (Cth)

APPLICANT: Mr Parch

RESPONDENT: Ms Rile

INDEPENDENT CHILDREN’S LAWYER: Susi O’Reilly

FILE NUMBER: BRC 2474 of 2008

DATE DELIVERED: 10 February 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 10 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Evans Lawyers

COUNSEL FOR THE RESPONDENT: Ms Lyons

SOLICITOR FOR THE RESPONDENT: Journey Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Slade-Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: MTM Lawyers

Orders

IT IS ORDERED:

1. That except as otherwise ordered, the Mother shall have sole parental            responsibility for the major long term issues of the children: 

a.    B born … 1999; and

b.    C born … 2003.

1. That except as otherwise stated, the Mother is to have sole parental responsibility      for the major long-term issues of the children but that she keep the Father      informed at all times of any decision made in the children’s best interests in      respect of long-term issues.

2. That the children live with the Mother.

1. That the children spend time with the Father at all times as may be agreed       between the parties and at all times the children request.

2. That the Father is able to send any gifts or letters to the children via the           Mother’s post office box.

3. That the Mother is to facilitate the provision of those gifts or letters to the      children.

1. Neither parent shall denigrate the other parent, or that parent’s friends or family, in the presence of the children and shall use their best endeavours to ensure that no other person denigrates the other parent, or that parent’s friends or family, in the presence or hearing of the children.

1. The parents shall refrain from and are hereby restrained from discussing with the children any issue touching upon the dispute between the parents whether it be in relation to property or children’s issues.

IT IS FURTHER ORDERED:

1. Upon the expiration of the appeal period, if no appeal has been filed, the

   Independent Children’s Lawyer be discharged.

1. All outstanding applications be dismissed and removed from the pending cases   list.

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parch & Rile has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2474 of 2008

Mr Parch

Applicant

And

Ms Rile

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings under Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the children B born in 1999, who is currently 16 years of age; and C born in 2003, who is currently 11 years of age. The parties to the proceedings are the applicant Mr Parch, whom I shall refer to as the father (“the father”); and the children’s mother Ms Rile as the respondent, whom I shall refer to as the mother (“the mother”); and the Independent Children’s Lawyer (“ICL”) appointed pursuant to s 68L of the Act to independently represent the children’s interests in these proceedings.

2. Part VII of the Act, in ss 60A to 70Q, provides the statutory framework in which the Court exercises its power to make parenting orders. Most of the amendments made to Part VII, which took effect on 7 June 2012, do not apply to these proceedings given their institution prior to the operative date of the amendments. The following discussion or reference to Part VII is in the form in which it applies to the present proceedings.

3. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved and the principles which underlie those objects.

4. Section 60CA of the Act requires that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

5. Section 60CC of the Act identifies the primary considerations and the additional considerations the Court must consider in determining what is in a child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).

6. Section 65D of the Act provides the source of the Court’s power to make a parenting order as defined. This section expressly provides that this power is subject to s 61DA of the Act and that section requires the Court to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child. That presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.

7. The father is 41 years of age having been born in 1973, and the mother is 38 years of age having been born in 1976.  The parties commenced a relationship in 1995 and separated on a final basis, certainly by 2008, although I note that at one stage it was the mother’s contention that separation occurred prior to that, being sometime in 2005.  The subject children are the only children of the relationship. 

8. The proceedings have something of a convoluted history, and whilst I will not deal with the whole of that history, I will make reference to some parts of it. 

9. On 17 March 2008 the father commenced proceedings by way of an Initiating Application filed in the then Federal Magistrates Court which culminated in final parenting orders by consent being made on 5 September 2008.  In summary, those 2008 orders provided for, inter alia, the parents to have equal shared parental responsibility for the children; for the children to live with the mother with her being permitted to relocate with them to the Suburb D/Suburb E area; and for the children to spend time with the father for half school holiday periods and for two consecutive weekends per school term in the Suburb E area, upon the father giving the mother 21 days notice.

10. There was also a specific order that upon the undertaking of the father’s solicitor not to disclose to the father the address of the mother and the children, the mother shall notify the father’s solicitor of her residential address within seven days.  A notation appears on those orders that the father’s consent in relation to the mother’s relocation with the children is conditional upon the mother’s compliance with those orders. 

11. It would seem there was limited compliance with the 2008 consent orders.  The last occasion the father spent time with the children was in July 2010, during the school holidays.  In June 2010 the father had made a formal request of the mother to spend time with the children during the first half of the July 2010 school holiday period.  The mother alleges that the father had threatened on several occasions to kidnap the children, and on that basis she arranged for her own parents to supervise the children’s visit with the father.  The maternal grandparents took the children to the home of the paternal grandparents, where the father was also residing, situated on a rural property in Suburb F in Region G.

12. On the mother’s version, the father repeatedly tried to separate the children from the maternal grandparents by requesting that the children go with the father to see the house he was renovating on the property.  Eventually, the maternal grandparents left the Suburb F property with the children.  After this visit, the mother contends that the children repeatedly expressed the view that they did not wish to see or communicate with the father.  Further, because of her fears that the father may abscond with the children, the mother would only agree to facilitate time between the children and the father if it was supervised, which the father refused.  Thus it is that the father has not seen the children since July 2010.

13. On 2 March 2012, the father re-instituted proceedings by way of his Initiating Application filed in the then Federal Magistrates Court.  The father sought orders for the mother to return the children to him and thereafter for the parents to have equal shared parental responsibility and for the children to live with the mother and spend time with the father as agreed in writing between the parents or by order of the Court. The mother filed her Response to the father’s Initiating Application on 11 September 2012, which Response was later amended on 17 March 2014 following the release of a family report I will shortly refer to.

14. On 1 March 2013, Federal Magistrate Purdon-Sully, as her Honour then was, transferred the proceedings to this Court and delivered short ex tempore reasons for the transfer.  Therein her Honour accords that at one of the previous mentions of the matter, she had been informed that serious allegations had been made in relation to the mother’s previous partner sexually abusing the younger child C; further, in the event the ICL then informed her Honour that B had also made allegations of sexual abuse by the father which the police were then in the process of investigating.  In light of these serious allegations, her Honour found that the proceedings should be transferred to this Court with consideration for inclusion in the Magellan list and requested that the first return date should not be before September 2013 to allow the police some six months to conclude their investigations in respect of B. 

15. It appears that police investigation subsequently concluded in or around August 2013.  It is not suggested that charges were laid against the father.  Shortly thereafter on 18 September 2013, the mother filed a Form 4 Notice of Child Abuse, Family Violence, or Risk of Family Violence alleging, inter alia, that the children are at risk in the father’s care as they would be exposed to the father’s marijuana use excessive alcohol consumption, and that the children have historically been left unsupervised in the father’s care.  Further, the mother alleged that the father had perpetrated acts of family violence against her and reference in the notice is made to her threatening he would kidnap the children.

16. Protection order proceedings also took place in the Magistrates Court historically.  Most recently it seems that on 26 March 2014 the father did not appear in those proceedings and a protection order was made on a final basis, naming both children as persons protected by the order.  That order remains in force up to and including 26 March 2016.

17. The issues surrounding these trial proceedings, in summary, centred upon the mother’s allegations that the children were at an unacceptable risk of harm in the unsupervised care or time with the father.  Specifically, the mother has made allegations that the father has neglected the children and sexually abused B.  There are also issues raised by the mother surrounding the alleged production by the father and use of marijuana and excessive consumption of alcohol. 

18. The father’s central allegation and issue is that the children’s alignment with their mother and their expressed desires not to see him is the product of the mother’s influence.  He maintains denials of any untoward conduct towards either of the children or that they are at any risk in his care.  As already noted, the children last spent time or communicated with the father in July 2010. 

19. Against that background it was in November 2013 that the parents and children participated in interviews with the family report writer, Mr H, for the purpose of a family report.  A copy of Mr H’s report dated 30 January 2014 is attached to his affidavit filed by the ICL on 4 February 2014. 

20. Commencing at paragraph 106 of that report under the heading “Conclusion and Opinion”, the family report writer expresses the following opinions:  first, that any plan for the children to spend time with the father is unlikely to be successful;  second, that B has very strong views regarding the father and in light of her age it would be difficult to have her act in a manner contrary to those views;  third, Mr H could not recommend separating the children so that C could spend time with the father, as it would cause her significant emotional distress given the strong views of her mother and sister;  next, that the mother is highly unlikely to change her view that the father sexually abused B and that he “is a paedophile”;  next, that as long as the mother holds such negative views of the father, it would be impossible for her to facilitate any relationship between the children and the father;  next, that it is unlikely B will be able to reformulate her views and understanding of the father;  and, finally, that no form of therapeutic counselling for the children would be successful or helpful for them to move closer to being able to spend time with their father and that as long as they live with the mother they will continue to align with her thoughts and feelings of the father.

21. At paragraph 109 of that report, Mr H expressed the opinion that if it is to be accepted that it will not be possible to set in place an arrangement whereby the children might spend time with the father while they live with the mother, the question of whether they might benefit from living with their father needed to be considered.  Mr H there repeats his opinion that the mother will not give up her thoughts, feelings and beliefs regarding the father, that if the children were to live for the predominant amount of time with the father, any time spent with their mother would offer them a great challenge, that is, for the time they spend living with their father to somehow remain a positive experience for them, they would have to shift their beliefs and related behaviours away from those of their mother’s. 

22. Mr H opined that when the children spend time with the mother, it is very likely that she will either deliberately or otherwise influence the children against the father and, in doing so, would undermine their relationship with him.  Mr H noted further that a move from the children’s current home and community would impose a great impost upon them.  He noted they would have to change schools and give up all their social and related links.  Finally, Mr H expressed the opinion that he did not believe it would be possible to impose such a change upon B, given her age and his understanding of B’s views, including her views as to her father.  Finally, Mr H recommended against any consideration of separating the children. 

23. Following the release of that report the mother filed an Amended Response to final orders on 17 March 2014.  Pursuant to that Response, the mother sought final orders providing, inter alia, for the mother to have sole parental responsibility for the children and for the children to live with her and spend no time with the father unless they expressed the desire to so do.  Further, the mother sought orders for the children and the parties, where requested, to undergo counselling with a counsellor recommended by the ICL at such times as recommended by the counsellor.

24. In terms of time with the father, the mother sought orders that the children recommence their time and communication with the father as agreed between the parents and upon the recommendation of the counsellor dependent upon the expressed wishes of the children to spend time and/or communicate with the father. 

25. In addition, the mother sought an order that the ICL inform the children’s counsellor of the father’s desire to spend time and communicate with the children; for the counsellor to then advise the ICL if the children agreed to receive any communication from or spend time with the father; with the ICL to then, cause such communication to be forwarded to the children care of the mother who shall ensure that communication is passed on to the children.

26. On 11 December 2014, the matter came before me for a pre-trial mention.  On that occasion, there was discussion of consent orders being circulated between the parties and there was mention of an updated family report being obtained to look specifically into the effect of those consent orders.  However, in the event, the parties did not attend scheduled interviews on 14 and 15 January 2014 and thus an updated report has not been obtained. 

27. The ICL indicated at the pre-trial mention, as was indicated today, that she had concerns regarding the proposed consent orders insofar as the children had not spent any time with the father since 2010 and against the background of a history of non-compliance with the 2008 consent orders.

28. It should be noted in passing that the mother’s affidavit filed on 18 August 2014 contains records from the New South Wales Department of Community Services.  On 30 October 2012, there is an assessment record where it is stated that:

    It is considered more likely that [sic] not that [B] has been sexually harmed by her father, [Mr Parch].

29. And that:

    [B] is safe in the care and protection of her mother.

30. The harm type is identified as being sexual abuse with the information being obtained from B personally through a JIRT interview on 28 September 2012.  It is noted:

    No legal action taken by Community Services as the matter is already before the Family Law Court in Brisbane.  Next Court date is 7 December 2012.

31. I am informed from the bar table that there are subpoenaed documents from the Queensland Police Service which may indicate a different conclusion so far as the subject allegations are concerned. 

32. The fact of this matter though is that the parents have reached consent orders and the father, in fact, filed a Notice of Discontinuance of his application on 13 January this year.  Whilst that notice was expressed to discontinue his Initiating Application of 17 March 2008 which, in fact, was finalised through the making of the 2008 consent orders, I was informed by Ms Simpson on behalf of the father that what was intended was the filing of a Notice of Discontinuance of his current application filed on 2 March 2012. 

33. The result is that neither parent pursues a trial of the issues to which I have referred;  that is, the father has reached the position that, against the background of these proceedings being on foot he says since 2008 and, no doubt, having regard to the contents of the family report to which I have referred, the reality of the position confronting the father is that he has not seen the children now for almost five years and he accepts the reality of the age and level of development B has reached and, no doubt, the influence she might have in relation to her younger sister.

34. The dilemma for the ICL is obvious in circumstances where the proposed orders provide for the children to spend time with the father at all times as may be agreed between the parties and at all times the children request.  Against the background to which I have referred, it seems unlikely in the extreme that the mother will come to the view that the children should spend time with the father and it is unlikely that, unless she does, that the children will request to spend time or communicate with him.

1. I am satisfied, given the nature of the relationship between the parents, that it is necessary for an order to be made for the mother with whom they live to have sole parental responsibility for them.  I am satisfied it is in the children’s best interests that that order be made which displaces the presumption earlier referred to.

2. In the context of untested allegations on either side, that is, the serious allegations the mother makes or advances against the father and the allegations the father advances against the mother concerning, effectively, alienation of the children by the mother’s conduct; it is impossible for the Court to conclude in the usual way, absent any capacity to make findings, as to the respective considerations under s 60CC that I have referred to.

3. What can be concluded from the family report that I have referred to (albeit that it too is untested by any cross-examination), is that the position has been reached in this case that a harsh reality confronts the parents and, more specifically, the children.  I need not repeat that that reality includes the feature that they have not seen or communicated with their father for almost five years and they have now reached an age and level of development where their views, irrespective of the findings that might be made on the allegations referred to, would necessarily be given significant weight by the Court in concluding any parenting orders.

4. The ICL does not consent to the orders agreed to by the parents but nor does the ICL propose different or other orders beyond a proposed order that certain documents in the proceedings be provided to the New South Wales Department of Communities.  In particular, the ICL sought that the Court make an order that the report of Mr H, the family report writer I have referred to, and a Queensland Police Service report of the 24^th of October 2013 be provided to the New South Wales Department of Community Services which, it seems, will have ongoing involvement, potentially, with respect to these children.

5. In circumstances where the competing allegations are untested before this Court and the Court cannot make findings or determinations because the parents elect not to proceed with the trial, it seems to me that an order by this Court for documents from the proceedings to be provided to anyone carry the implicit risk that they will be perceived as being provided with the imprimatur of the Court; in the sense of the Court confirming the contents of the documents as truthful or accurate.  I therefore am not inclined to make the order sought by the ICL in that respect.

6. I am otherwise satisfied that orders ought be made as agreed to by the parents and signed by them and now before me.  I am satisfied that these orders are in the best interests of the children in the unfortunate circumstances of this case.  By that I mean that in circumstances where the competing cases are not to be tested and the Court cannot reach conclusions on the underlying issues, the reality that confronts the Court, as it did the parents, is the reality of the children’s stated positions as recorded by Mr H and the opinions he has expressed that I have referred to.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 February 2015.

Associate: 

Date:  10 February 2015