Parran and Mayfield

[2013] FamCA 992

FAMILY COURT OF AUSTRALIA

PARRAN & MAYFIELD [2013] FamCA 992

FAMILY LAW – CHILDREN – Where the mother sought orders that she have sole parental responsibility for the children, that the child live with her and spend no time and not communicate with the father – Where the father sought orders that the children live with him, that he have sole parental responsibility for the children and that they spend no time with the mother for a period of three months, thereafter spending time supervised time with the mother for a further three months and after that resume spending time with the mother unsupervised – Where the proceedings between the parties has a long history in this Court – Where the mother has a history of suspending the children’s time with the father – Where allegations of child sexual abuse allegedly perpetrated by the father had been ventilated in previous proceedings in this Court – Consideration of s 60CC factors – Consideration of the meaning of “unacceptable risk” – Where it was clear to the court that the mother still believes that the father poses an unacceptable risk of sexual abuse to the children – Relevant evidence examined – Where the court found, to the requisite standard, that the father did not sexually or physically abuse the children – Where the court is satisfied that unsupervised time in the father’s care would not expose either child to an unacceptable risk of physical and/or sexual abuse – Whether the children would benefit from a meaningful relationship with both of their parents – Where there are very serious doubts as to the mother’s capacity to facilitate a relationship between the children and the father – Where there are equally serious concerns as to whether the children could tolerate a change in primary residence from the mother to the father – Where there is no certainty that the children would make a successful transition to the primary care of the father – Where orders are made in terms of the scheme proposed by the independent children’s lawyer.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth) s 140

M & M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368
N & S (1996) FLC 92-665

W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Ms Parran

RESPONDENT: Mr Mayfield

INDEPENDENT CHILDREN’S LAWYER: Mr O’Dowd

FILE NUMBER: PAC 6002 of 2007

DATE DELIVERED: 16 October 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Stevenson J

HEARING DATE: 17,18,19 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Shearman

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Tockar

SOLICITOR FOR THE RESPONDENT: Adams & Partners Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Ward

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Sydney

Orders

1. That all existing orders in relation to the children

   X born on … 2000 and

   Y born on … 2002

   (“the children”) are discharged.

2. That the mother have sole parental responsibility for the children save that the father is at liberty to contact their schools so as to receive reports and annual photographs.

3. That the children live with the mother.

4. That the children spend no time with the father.

5. That the father and the Independent Children’s Lawyer (“the ICL”) are at liberty to provide a copy of these orders to the principal from time to time of the children’s schools.

6. That the mother keep the father advised in writing at all times of the names and addresses of the current schools of the children.

7. That the court requests that the Manager of Child Dispute Services arrange with the ICL a conference with a Family Consultant for the purposes of explanation of these orders to the children.

8. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

9. That all material produced on subpoena be returned.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Parran & Mayfield 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 SYDNEY

FILE NUMBER: PAC 6002  of 2007

Ms Paran

Applicant

And

Mr Mayfield

Respondent

REASONS FOR JUDGMENT

the proceedings

1. These proceedings concern parenting arrangements for the two children of Ms Parran (“the mother”) and Mr Mayfield (“the father”), being:

   X born in 2000 (13)  and

   Y born in 2002 (11).

   The mother and the father have been locked in conflict and litigation throughout most of their children’s lives.

2. In December 2005 the parties engaged in a five day trial before Coleman J, who delivered ex-tempore reasons and made orders on 23 December 2005.  In summary, his Honour ordered that the children live with the mother and spend time with the father each alternate weekend from Friday afternoon until Monday morning and for half of all school holidays.  Since these orders the mother has made further allegations of physical, emotional and sexual abuse of the children by the father; she has unilaterally suspended their time with the father and he has filed and prosecuted contravention applications.

3. By an Amended Initiating Application filed on 3 April 2013, the mother sought orders that she have sole parental responsibility and that the children live with her.  She also sought orders that the children spend no time and have no communication with the father. 

4. At the end of the trial the Independent Children’s Lawyer (“the ICL”) offered two alternative proposals.  One such Minute proposed orders that the children live with the father and spend no time with the mother for four months.  Thereafter, they would spend time with the mother at a contact centre or in the presence of a professional supervisor on two occasions each of two hours per year.  The alternative proposal of the ICL was that the children live with the mother and spend no time with the father.    

5. Having become aware of these proposals, the mother submitted an alternate Minute of Order to address the possibility that the children live with the father.  In that event, she sought orders that, after four months, they spend time with her each alternate weekend from Friday afternoon until Monday morning and for half of all school holidays.  These orders would be on condition that she commence therapy, as recommended by the single expert Dr W, within seven days of the delivery of judgment.

6. By a Response filed on 3 September 2012 the father sought orders that he have sole parental responsibility and that the children live with him.  They would spend no time with the mother for three months and thereafter for three months under supervision.  After that period of six months, the children would spend time with the mother each alternate weekend from Friday afternoon until Monday morning; for half of all school holidays and on special occasions.

7. As noted the ICL submitted two alternate Minutes of Orders and, in final submissions, his counsel outlined the perceived advantages and disadvantages of each outcome.  In either scenario, the party with whom the children live would have sole parental responsibility, subject to a right in the other to contact and attend the children’s school so as to receive reports and annual photographs.  In the event that the children live with the mother, they would spend no time with the father.  In the event that the children live with the father, they would spend no time with the mother for four months and thereafter for two supervised visits per annum.

Background

1. The mother was born in 1961 and is currently aged 51 years.  The father was born on in 1965 and is presently 48 years of age.  The parties met and commenced a relationship, which evidently was volatile and unstable, in 1998.  They began to live together in February 2000 and first separated in August 2000, when X was aged four months. 

2. The father filed an Application for parenting orders in September 2000 but the parties reconciled before the first return date on 13 November 2000.  The parties began to live together again on 17 March 2001.

3. The parties’ second separation occurred on 19 March 2002, when the mother moved to Perth with X without the father’s consent.  On 14 August 2002 the parties recommenced cohabitation in Sydney.  Their daughter Y was born less than two weeks later in August 2002.

4. The parties separated finally on 21 January 2003, when the children X and Y were aged two years nine months and five months respectively.  On 22 January 2003 the father filed an Application for parenting orders in the Local Court.  In April 2003 interim orders were made by consent, which provided that the child X spend time with the father each alternate weekend from Friday afternoon until 6:00pm on Tuesday.  The child Y spent time with the father for two hours each alternate Saturday and every Tuesday.

5. On 19 March 2003 the father consented to an apprehended violence order for the protection of the mother for a period of twelve months.  He maintained that he consented to this order on the basis of legal advice.

6. In August/September 2003 the mother unilaterally suspended the children’s time with the father.  On 22 September 2003 he filed a Contravention Application which was adjourned to the return date of on 10 October 2003.  The children’s time with the father resumed after a trial notice issued and a Family Report was ordered on 6 November 2003.

7. On 17 February 2004 and 12 March 2004 the mother again unilaterally suspended the children’s time with the father.  The children resumed spending time with the father on 28 March 2004, after he filed an Application in a Case.

8. On 21 May 2004 the mother said to the father “you are not the children’s father”.  On 3 August 2004 the father received a parentage testing report, which established his paternity of the children.

9. On 5 October 2004 the mother obtained an ex parte recovery order.  She alleged that the father retained Y after a period of time beyond that prescribed by the interim orders then in force.  The father claimed that the parties agreed that Y would spend additional time with him.

10. On 15 November 2004 an order was made which provided that the children resume spending time with the father.  After the first visit on 20 November 2004, the mother alleged that Y complained that the father “smacked” her head.

11. In December 2004 overnight stays with the father were introduced for Y.  Interim orders provided that both children spend time with father each alternate weekend from Friday afternoon until Sunday evening.

12. The mother alleged that Y began to make complaints to her of inappropriate sexual behaviour on the part of the father after the introduction of overnight time.  Following these complaints, interim orders were made which provided for the children to spend time with the father only at C Contact Centre. 

13. The Magellan Report (exhibit 6) recorded 17 notifications to the Department of Family and Community Services in relation to the children between 29 August 2002 and 11 November 2005.  These complaints included nine allegations of physical and sexual abuse by the father, none of which was found to be substantiated by investigating officers.

14. I was invited by all parties to read the judgment of Coleman J dated 23 December 2005.  His Honour commented as follows on the mother’s allegations of sexual abuse of the children by the father: 

    12.  So far as the issue of sexual abuse and/or unacceptable risk is concerned, so unreliable was the evidence of the mother revealed to be, that objectively the only way the Court could make the findings sought on her behalf in that regard would be if the evidence of the father was revealed as being utterly unbelievable.  Despite the shortcomings in the father’s evidence, the Court is not persuaded that his evidence deserves being so regarded.  His denials in relation to alleged sexual abuse and/or unacceptable risk with respect to each of the children are entitled to be accepted notwithstanding that the Court regards as disingenuous most of his evidence in relation to his finances, his arrangements for the children, his past history of paying or not paying child support at an appropriate level and a number of incidents involving alleged domestic violence…

    …

    76.  Dr [W] then referred to the question of the allegations of sexual abuse or neglect.  He referred to the mother’s allegations.  He noted “none of these allegations appear to have independent validation”, an observation that was undoubtedly factually accurate and remains to be so.  Dr [W] importantly noted, having quite properly suggested that the issues of fact in relation to the allegations were issues for the Court, that from all the material he had seen in presentation, that the mother did have a genuine fear of [the father] and, as his oral evidence makes clear and is referred to in his report, that she has a genuine belief in the allegations that she has recounted in these proceedings.

15. On 23 December 2005 Coleman J ordered that the children live with the mother and spend time with the father each alternate weekend from Friday afternoon until Monday morning; for half of all school holidays and on special occasions.  The children spent time with the father in accordance with these orders until 28 September 2007. 

16. On that date the father attended the children’s school to collect them for holiday time in accordance with the orders of 23 December 2005.  Having found that the children were not at school, the father was contacted by police officers.  They informed him that the children were out of Sydney with the mother.  On 19 October 2007, 2 November 2007, 30 November 2007 and 14 December 2007 the father attended the school and was informed that X was absent that day.  Accordingly, he was unable to collect the children for time in accordance with the orders of 23 December 2005.

17. On 30 October 2007 the father filed a Contravention Application.  The mother contended that she “prevented the children from spending time with the father as [I] had concerns for their safety.”  She alleged that X said to her:  “Daddy hit me.  I got hit in the head” and “Daddy held my head under water.  If I tell the police what Daddy does, he will drown me”.  The mother also alleged that Y said to her “Daddy has been rubbing my wee wee” and “Daddy plays doctors sometimes.  All he does is tickle my wee wee”.  On 18 November 2008 the Federal Magistrates Court (as it then was) found that the mother contravened the orders of 23 December 2005 without reasonable excuse on seven occasions in September, October, November and December 2007.

18. Between 15 June 2005 and 20 April 2008 the Department of Family and Community Services received twenty reports of physical, sexual and emotional abuse of the children by the father.  None of these complaints proceeded to secondary assessment. 

19. Between 21 December 2007 and 18 November 2008 the father attended the school to collect the children in accordance with the orders of 23 December 2005, to find that they were absent on that day on several occasions.  The children spent time with the father in accordance with the December 2005 orders between 18 November 2008 and 10 June 2011.  During that period the Department of Family and Community Services received three notifications in relation to the children, one of which was a complaint of physical/sexual abuse on 1 June 2011.  None of these complaints were found to be substantiated by investigating officers.

20. On 10 October 2011 the father filed a Contravention Application.  On 5 December 2011 the Federal Magistrates Court (as it then was) found that, on 10 June 2011, the mother contravened the orders of 23 December 2005 without reasonable excuse.  The court also ordered that the mother be restrained from causing the children to leave school early on days when the father was due to collect them.  These orders provided further that the mother supply a medical certificate in the event that a child was absent from school on a day when he or she was due to be collected by the father.

21. On 10 June 2011 the mother refused to allow the father to collect the children, on the basis that they were to attend her daughter’s wedding on that day.  The mother provided the father with approximately ninety minutes’ notice by text message that she would not make the children available in accordance with the existing orders.

22. On 5 December 2011 interim orders were made which provided, inter alia, that the children spend time with the father each alternate weekend and for half of all school holidays as from 9 December 2011.  The children spent time with the father in accordance with these orders until May 2012.  On 11 May 2012 the father was served with an interim apprehended violence order for the protection of X.

23. On 13 April 2012 the mother and X attended the local Police Station and made statements to the effect that the father hit him on the head on 3 April 2012.  The application for an apprehended violence order for the protection of X was withdrawn by police on 20 November 2012.

24. The father was unable to collect the children on the weekends of 11, 12 and 13 May 2012 and 25, 26 and 27 May 2012.  On 11 May 2012 the children were absent from school, with the mother providing no medical certificate.  The child Y was absent from school on 25 May 2012 and, similarly, the mother provided no medical certificate.

25. On 1 June 2012 the mother filed an Application for orders that she have sole parental responsibility and that the children live with her.  She also sought an order that she “facilitate any wish expressed by the children, or either or them, to communicate or spend time with the father”. 

26. On 18 June 2012 the Department of Family and Community Services received a notification of physical abuse of one or both of the children, which did not proceed to secondary assessment.  The Magellan report dated 26 October 2012 summarised the history of notifications and their outcomes as follows:

    There have been 43 reports received by the Department of Family and Community Services since 29 August 2002 to date.  Twenty of the reports are classified as “non-risk of harm reports” that did not require any investigation.  The remaining 23 reports were classified as “risk of serious harm reports”.  According to community services records, two investigations were carried out pertaining to the risk of harm reports received on 29 August 2002 and 19 July 2005.  Both investigations resulted in the matter being unsubstantiated.

    The Magellan report indicated clearly that none of the 43 notifications was found to be substantiated and many did not proceed to secondary assessment.

27. On 14 September 2012 interim orders were made by consent, which provided that the children spend time with the father each Saturday between 10:00am and 4:00pm under the supervision of members of the paternal family.  The orders provided that the mother deliver the children to a supervisor in the car park of a McDonalds restaurant and that she collect them at the same place at the conclusion of these periods of time.  The mother drove the children to McDonald’s car park but, on every occasion, they remained in her vehicle.  She then drove away with the children and they did not spend time with the father.

The Evidence and Witnesses

1. The applicant mother relied on her affidavit sworn on 12 June 2013.  She said, and I accept, that she had very limited time with her solicitor to prepare her affidavit due to problems and delays with Legal Aid funding.  The mother gave oral evidence by way of cross-examination.

2. The respondent father relied on the following affidavits:

   1.Mr Mayfield (the father) sworn on 6 June 2013

   2.Mrs M (the paternal grandmother) sworn on 12 June 2013

   3.Ms K M (paternal aunt) sworn on 12 June 2013

   4.Ms A M (paternal aunt) sworn on 12 June 2013

   5.Ms J (father’s former partner) sworn on 12 September 2012.

   The father, Ms J, Mrs M and Ms A M gave oral evidence by way of cross-examination.

1. I had the benefit of the following reports:

   1.Regulation 7 Welfare Officers Reports prepared by Dr V dated 28 June 2004 and 14 March 2005

   2.Report by Ms F, a supervisor, dated 23 August 2005

   3.Single expert reports prepared by Dr W, psychiatrist, dated 12 October 2005 and 20 February 2013

   4.Magellan report dated 26 October 2012.

   Dr W was cross-examined by counsel for all parties.  I found his written and oral evidence to be of considerable assistance.

Approach To These Proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. 

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”. 

5. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   [8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …

6. A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):

   …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 consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…

   and at page 75:

   …the ultimate and paramount issue to be decided in proceedings for 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 fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

7. In M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:

   In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:

   ‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

8. The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:

   140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)    the nature of the cause of action or defence; and

   (b)    the nature of the subject matter of the proceeding; and

   (c)    the gravity of the matters alleged.

9. The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):

   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 assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

10. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:

    In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.  We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

11. The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S (1996) FLC 92-665:

    In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time have the allegations been made?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them? What expert evidence has been provided?  Are there satisfactory explanations of the allegations apart from sexual abuse?  What are the likely future effects on the child? 

    I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.

The Allegations that the Father Sexually Abused the Children

1. At the commencement of the trial counsel for the mother said words to the effect:

   The mother does not advance a sexual abuse case.  Physical abuse is her case.

   That contention, however, sat most uncomfortably with statements made by the mother during her cross-examination.  She said, for example:

   “In 2012 I still regarded him as a paedophile.  It just can’t be substantiated.”

   “I reject any suggestion that he was only washing her.”

   “I think paedophilia runs in his family.”

   “[sexual abuse] is part of why I want the children to have nothing to do with him.”

   “My case is that [Y] was sexually abused and that the father is an unacceptable risk of sexual abuse but I seek no finding.”

   “The father sexually abused [X] when he was three and I say the father is an unacceptable risk of sexual abuse to [X] but I seek no finding.”

   “After I read the judgment I did not for a moment stop to think that there was no sexual abuse, that the father is no unacceptable risk of sexual abuse.”

2. In her affidavit the mother deposed:

   50.      [Y] also made disclosures to me in approximately August 2007.  At this time she began wetting her pants when she had been toilet trained for several years.

   …

   52.      [Y] made disclosures to me and said words to me to the effect of “Daddy has been rubbing my wee wee.  [Ms N] (being the father’s girlfriend at the time) had to put cream on it.

   …

   54.      [Y] also said to me “Daddy plays doctors sometimes.  All he does is tickle my wee wee.”

   …

   56.      I was advised by police to again see the paediatrician Dr [L] and [Y] said to Dr [L] words to the effect of “Daddy puts his fingers in my wee hole” and Dr [L] made a report to DOCS.

3. During her cross-examination the mother said:

   I confirm that there are no new allegations of sexual abuse since 2008.

   She said also:

   When I stopped contact between September 2007 and August 2008 I was relying on new allegations, not the pre-judgment 2005 allegations.

4. In her oral evidence the mother said:

   “I got advice about how to deal with sexually abused children from some advocate places” and

   “I have engaged with the advocate places on the basis that I believe sexual abuse has occurred” and

   “I have dealt with Dymphna House, Bravehearts, the National Child Protection Alliance, a community health centre, [Mr F] and [Ms B].” 

   Mr F and Ms B are counsellors whom the mother has engaged for X and Y respectively.

5. This evidence in my view leaves little or no room for doubt that the mother believes that the father sexually abused the children both before and after the judgment of December 2005.  It is abundantly clear that she believes that the father poses an unacceptable risk of sexual abuse to the children.  In these circumstances, I will examine the relevant evidence and make findings as to sexual abuse of the children by the father and unacceptable risk thereof.

6. In his report of 28 February 2013 Dr W wrote (at page 44):

   I also note that [Y] declared unprompted to me and in rather an indignant way that her father had been sexually abusing her and that the last time this occurred was the last time she had seen him.  She was not prepared to provide any details.  There was no evident distress, embarrassment or self-consciousness, and this comment came up right at the end of my second interview with her, when I had indicated that we were about to finish.  Indeed I felt that there was no indication from what she said or the way she said it that it was genuine.  I was quite concerned that she made the statement at all, and I felt that it was consistent with the process of falsification outlined previously.

7. During the course of his oral evidence Dr W was asked by counsel for the Independent Children’s Lawyer (“the ICL”) to comment on the following propositions:

   The mother believes that the father sexually abused both children and continues to pose an unacceptable risk but seeks no finding due to insufficient evidence. The father is an unacceptable risk of physical abuse to the children.

   Dr W replied:

   Yes these beliefs permeate her whole approach to the children’s relationship with the father.  An overvalued idea takes hold after a relationship which leaves someone in the mother’s position intensely distrustful and believing that the other person is capable of just about anything.  They build up a worse and worse belief system about them – that can happen relatively quickly. 

   Yes the concerns are genuinely held.  The agencies and counsellors can reinforce and contribute to it.  Some counsellors can ask leading questions and then things can really snowball.

8. The mother’s own evidence was that there have been no new allegations of sexual abuse of either child since 2008.  The children spent unsupervised time with the father for two and a half years between 18 November 2008 and 10 June 2011.  The mother gave no evidence of fresh complaints of sexual abuse at the hands of the father by either child during that period.

9. The single complaint to the Department of Family and Community Services relating to “physical/sexual abuse” during this period was summarised in the Magellan Report as follows:

   On 1 June 2011, Community Services received a risk of harm report stating that the reporter had been informed that the fathers 2 older children were physically and sexually abused by him, and the two younger children ([X] and [Y]) are also being physically and sexually abused for the last 10 years.  It is being alleged that the father is sexually assaulting [Y], and held [X’s] head under water telling him not to tell anyone.  The report also state that there was domestic violence between the parents when they were together.  The information was assessed as not requiring further assessment.

   It is impossible to identify any fresh complaint of sexual abuse in this material.  On its face, this complaint appears to be a regurgitation of prior allegations.

10. The father strongly denied that he sexually abused either child.  I perceived his denials to be heartfelt, persuasive and offered with great sincerity.

11. As noted, Dr W was concerned that Y made a statement to him about sexual abuse by the father “at all” and at a time when she knew that he was about to bring the interview to a close.  It is clear that Dr W considered that there was no validity to this statement on the part of Y. 

12. For all of these reasons, I find to the requisite standard that the father did not sexually abuse either of the children.  I find that unsupervised time with the father would not expose either child to an unacceptable risk of sexual abuse.

The Allegations that the Father Physically Abused the Children

1. In his 2005 judgment Coleman J made the following findings and offered these observations as to the mother’s allegations of physical abuse of the children:

   33.      There were further claims or disclosures by the mother, or allegations perhaps is a more accurate way of describing them, of physical abuse of the children in late 2004 and claims by the mother of observing [X] with a neighbour’s child, …, in inappropriate sexual play.  As will be seen, whilst the Court, consistent with authority and its statutory charge under the legislation, regards these allegations seriously and has listened to a lot of evidence and read a lot of evidence in relation to them, as noted earlier, the evidence in this case is such that only by elevating suspicion to the status of proof could any of the allegations of the mother against the father be found to be established or, to the extent that there might be scope for not finding those allegations established but nevertheless finding an unacceptable risk, there is similarly no adequate evidentiary foundation for such conclusion.

   …

   40.      Without wishing to be, as it were, less serious about the issue than a Court should be, when one looks at the totality of the mother’s evidence in relation to the allegations of abuse, whilst, as noted previously, on no forensic process known to the law could positive findings be made on the evidence before this Court, it could be suggested that the ineptitude, the inconsistencies and ineffectiveness of the way in which the mother raised the complaints and then pursued them is one of the strongest reasons for concluding, as the Court has, that although misguided and without objective foundation, the mother believes what she has been claiming and has not fabricated her evidence.  Put simply, it is difficult to imagine how, if a party wished to fabricate allegations, that party could have made a less successful job of it than the mother has in this case.  Those observations may seem perverse but if one reflects upon what has been said and has regard to the evidence in this case, it is indeed difficult to see how, had the mother consciously determined that she was going to manufacture serious allegations and pursue them in order to seek to have the father’s relationship with the children terminated, she would not have gone about it in a far more effective way.

1. As noted, in her oral evidence the mother said that there “are no new allegations of physical abuse other than [Y] breaking her toe” since 2008.  Nonetheless, in her affidavit the mother regurgitated allegations of physical abuse of the children by the father prior to the 2005 judgment.  She referred to an alleged incident, when the father “slapped [X] across his head” when the child was aged about 20 months.  She recounted also an incident in which the father allegedly “slapped [X] across the head” in a hospital shortly after the birth of Y in 2002.  The mother further referred to an alleged incident in January 2003 when the father “again smacked [X] in his head.  He did this by slapping [X] across the head with an open hand”.

2. On 13 March 2010 Y attended the emergency department of a Hospital, suffering from a fractured fourth toe on her right foot.  The hospital notes recorded that the injury occurred “after playing with her brother”.  The children told Dr W that a child of the father’s girlfriend caused the injury during play.  The mother gave no explanation of the path of reasoning which led her to conclude that Y’s broken toe was a result of physical abuse by the father.

3. In her affidavit the mother made the following fresh allegations of physical abuse of the children by the father: 

   70.I put [X] on the telephone who spoke with the Police officer and I hear [X] say to the Police Officer words to the effect of “Mum’s good.  I’m sick of Dad.  He hits me in the head all the time.

   …

   76.In May 2012 [Y] said to me words to the effect of:

   [Y]:“Dad made me eat my porridge.  I threw up and he made me clean up my own vomit.”

   Me:“Why didn’t you say you weren’t hungry?”

   [Y]:“Because I had said no once before and Dad pulled out a knife and threatened me and said “I’ll cut off your ##cking head” and “I hate going.  I’m scared of him.”

   ...

   83.In November 2011, [X] said to me “I spoke to Dad.  I don’t want to go” and “Dad promised not to hit me or call you names anymore” and “I don’t want to go at Christmas.”

   ...

   89:On 18 September 2012 the Independent Children’s Lawyer telephoned the children to explain the interim orders to the children.  Mr O’Dowd spoke to the children.  The phone was not on speaker.  I head [X] say words to the effect of “That is very bad because while I was on holidays at Christmas last year dad smacked me in the head and made me stand under a tree for half an hour.

   …

   108:[The paternal grandmother] said “Hello [Y] hello [X] how are you?”  Both children replied “good”.  [The paternal grandmother] said “So you don’t want to come that’s sad your dad is missing you and he loves you very much especially you [X] your dad has loved you all his life your dad is a good father” [X] replied words to the effect of “Sorry he has threatened to kill us and you have never done anything in the past.”  [X] said to [R] “You know what he is like [R]”.  [R] did not respond.  [Y] said words to the effect of “He is going to kill us.”  I observed [the grandmother] laugh and say “He’s going to kill us”.  [The paternal grandmother] then walked away.

   …

   112:I asked the children to get out of the car.  [X] got out of the car and walk up to [the paternal grandfather] and … sitting at the table and said “I am not going to see dad because he hits me in the head you saw him do it at Christmas and you didn’t do anything to stop him.”  [X] then said to [Ms J] “I don’t know if you have seen him hit me in the head but he has”.  [The paternal grandmother] said “No your father would not do that he loves you.”

4. Dr W reported on his interview with X inter alia as follows (at page 25):

   “I asked him why the visits had stopped earlier this year.  He said that they had stopped when he ([X]) got an AVO after he went to the police.  If I understood him correctly, they kept going for a while after he went to the police because the AVO had not “gone on” yet.  I asked him what had led to him going to the police.  He said that the weekend before, which had been his birthday, he had an assignment due the following week.  He said that he has not told his father about it on Friday but his father found out about it on Saturday and he got angry at [X] and smacked him around the head and forced him to do the assignment.  He said that he did it about five times before his father was satisfied with it.  He said on the fifth occasion his father did a bit of it as well.  From what he described it sounded as if his father had amended the text a bit.

   I asked him what he meant by being hit by his father.  He said that he was in the living room watching TV and his father ordered him to do the assignment and smacked him around the head.  At this point he indicated that he thought his father might have found out about the assignment because his mother had sent a letter about it or he had told his father. 

   I asked him to explain what he meant by a smack around the head.  He said that his father smacks the back of his head and from what he described it sounded like his father using an open hand.  I asked him if he could rate the painfulness of this particular incident on a scale from 0 to 10, 10 being the highest.  He said it was about a 7 or an 8 out of 10.

   He indicated that, (over the years), his father has hit him on a number of occasions and he has kicked him a few times as well.  He said for instance that at Christmas (?2011) [Y] had accidentally kicked him in the head.  If I understood him correctly he was in a hammock at the time.  He said that he kicked her back and his father hit him in the head and made him stand under a tree.  He said that his father’s family, by which he meant his grandparents and his aunties, had seen it and they did not (intervene), so that is why he does not want to go (spend time with his father) supervised by his aunties.”

5. Dr W further reported the following comments by X (at page 26):

   I asked him about the counsellor that he had been seeing up until the end of 2011.  He said that he had been seeing a counsellor called [Mr F] until the court stopped it.  I asked him why he had seen [Mr F] in the first place.  He said he saw him because he was trying to cope with problems with his father.  He thought he had first seen [Mr F] about halfway through Year 5 and he last saw him at the end of Year 6 (2011), about every two weeks.  I asked him to explain what he meant by problems with his father.  He said he meant by that the weekends with his father and staying up late.  He particularly mentioned when his father threatened to kill him.  Before he could explain he went on to say that in 2008 he tried to kill himself because he was sick of what his father was doing.  He said that his father had said that he could kill him  if he wanted to or if [X] told anybody about hitting him and [Y] in the head.  I confirmed that he meant that [Y] had been hit in the head as well and he indicated that this was the case but not as often as he had been hit in the head.   He went on to express in quite adamant terms that he does not want to see his father every again.”

6. Dr W reported on his interview with Y inter alia as follows (at page 33):

   As she had been so unenthusiastic about her father and his family, I asked her if she could tell me about some good times she had had there.  She said this was hard to think of.  The only fun time she has is when she is on her own or playing with [X].  I pressed her a bit on this and she said that she does not have any fun with her father.  She said that he forced her to eat porridge and she spewed it up and he threatened to cut her head off with a knife.  If I understood her correctly, [X] and her grandparents were not there at the time.  I asked her what she meant by her father threatening to cut off her head with a knife and she said that he pulled out a kitchen knife.  I asked her to describe it.  She described a serrated steak knife of the usual dimensions.  She indicated this had been a separate incident to when she had vomited up the porridge.  She told me that this particular incident occurred when she and her father had been eating their dinner and he had finished his and she had had enough.  She said he took the knife out and waved it around and made the threat.  She said he was shouting and yelling.  He indicated that in the face of this, she finished off her meal.  I tried to ascertain when this had happened.  She thought it was a year or two ago but she was not sure.

7. I digress to note that the mother insisted that her friend Mrs D be present throughout the children’s interviews by Dr W.  In her oral evidence the mother conceded “the support person Ms [D] accepted that the father physically and sexually abused the children.  The children know she is my friend.  The children needed her to be present for support.” I wondered whether Ms D’s presence influenced the children to make comments to Dr W which reflected the mother’s position in relation to the father.

8. In his report of 28 February 2013 Dr W made these observations as to the mother’s recent allegations of physical abuse of the children by the father (at page 44):

   The detailed record of facts (sic) notifications seems to be quite illuminating.  Certain allegations dating back over a decade are still being raised, yet the accounts of the original incidents (for instance two instances of [X] being slapped around the head) seem to indicate the mother conceding very shortly afterwards that she was not actually particularly concerned about them and that they were just a tap.  In addition some people who have notified on her behalf (excluding authorities such as the police) appear also not to have been regarded generally as being concerned.  The notifications up until about the middle of 2005 were also considered by His Honour at the hearing and it appears to me that his review of the evidence and the examination of the parties left him believing that the mother could not be relied on to give a truthful account and that she was basically exaggerating.

   The more recent events at their worst seem to amount only to inappropriate corporal punishment or harassment, and there does not appear to be any independent corroboration of these incidents as far as I can see.  This raises on one hand the possibility that what the children allege is correct and that the father is an overbearing  and authoritarian person who does not shrink from using corporal punishment, or at the other end of the spectrum that the father’s parenting behaviour is unremarkable and that by a process of interrogation and reiteration, the mother has managed to alienate the children from their father by creating serious concerns out of incidental matters.

9. On 13 April 2012 X made a statement to an officer at the local Police Station.  Omitting formal parts, this statement read as follows: 

   5.When we go to dad’s place he usually takes me to my soccer games or baseball games.  My sister and I play the Sony PlayStation together as well.  When we go to dads he is normally angry but when there are other people around he acts all nice.  When he is angry he doesn’t seem happy.  He swears a lot and there are a couple of words I haven’t heard of before.  I don’t want to say what dad says because it is rude.  When dad is speaking to someone on the phone he will yell out to me, “Shut up or I’ll hit you.”  Dad has hit me sometimes as well.  Pretty much every time I have been to dads he has hit me.  He usually hits me with an open hand in the back of the head.  I don’t know why dad hits me but he just gets really angry and does it.

   6.My birthday is on the … of March.  On the weekend I stayed at dads before this, which was the … of March, dad hit me in the back of the head.  I think it was around lunch time.  He hits me just above my ears where my hair is.  He doesn’t really say anything when he hits me.  It hurts when dad hits me and it normally hurts for a couple of days.  I don’t think I have had any bruises on the back of my head.  When dad hit me this time we were at his home, I think in the lounge room.  I think [Y] saw dad hit me on this day.  Dad said, “Go to your room.”  I then went to my bedroom.  When I went to my room I cried because it hurt and played my Nintendo DS.  At the end of the weekend [Y] and I went home and I told mum that dad had hit me.

   7.Since the … of March  I have been back to Dad’s place twice and he has not hit me since.  The last time I saw my dad was on the 2^nd of April 2012 when he dropped me at [U] High School at about 8:30 to 8:45 in the morning.

   8.When I go to my dad’s house I feel scared and worried because I’m scared that he will hit me and I’m also scared that he will hit my sister [Y].

10. The children were in the care of the mother during the Easter school holidays for several days before X made his police statement.  Pursuant to interim orders made on 5 December 2011, the children should have spent time with the father for the first half of all school holidays in 2012.  The mother, however, took the children to the Central Coast during the first week of the Easter holidays.  The father made a report to police when he was unable to collect the children.

11. The mother claimed that she mistakenly believed that the children were to spend the second half of the Easter 2012 school holidays with the father, as that had been the pattern pursuant to the 2005 orders.  It seems that the children spent time with the father in accordance with the orders of 5 December 2011 during the Christmas school holidays in that year.  I have difficulty in understanding why the mother apparently made the correct arrangements during that period yet made a mistake in respect of the very next school holidays.  The father’s own evidence was that the mother made the children available to him between 15 and 24 April 2012, which perhaps indicates that she did make a genuine mistake.

12. The fact is, therefore, that X had been in the mother’s care for approximately seven days before he made his police statement.  The mother knew that the children should have been with the father after both he and a police officer contacted her.  I wondered what influence the mother exerted on X before he made his statement in such circumstances.  In any event, it appears that the police took no action other than to interview the father.

13. The father denied that he “ever hit [X] on the back of his head with an open hand”. Dr W reported (at page 20): 

    Although denying smacking [X] around the head, he said that he did kick him once basically reflexively after he had kicked [Y] extremely hard.  He did not feel that his kick had been hard and he said he was wearing thongs at the time.  He said this incident occurred outside McDonalds and he did not know why [X] had kicked [Y] in the first place.  While denying clips or other blows to [X’s] head, he said that he may have ruffled his hair a times.

    He said that his normal form of chastisement with [X] used to be time-outs, but now he is older, he talks to him and explains the consequences of his actions, gets [X] to put himself in the other person’s shoes and also asks him to consider how other persons see him for what he has done.  He also said he would still use Time-Out if necessary.  He said he has based this approach on a pamphlet which he had obtained from the children’s school called Restorative Action.

14. In his oral evidence the father said words to the effect:

    I have ruffled [X’s] hair on occasions but not of any significance.  I ruffle the top of his head, the crown, not as a disciplinary measure, not really when he has done something wrong, just to reassure him he is okay and everything is all right.

15. There was no independent evidence to corroborate the mother’s allegations of physical abuse of the children by the father.  Neither the police nor the Department of Family and Community Services took any action in response to her complaints.  The father’s denials of physical abuse were convincing and expressed in strong terms.  I share the concerns expressed by Dr W as to the validity of the mother’s allegations.  For these reasons I find, to the requisite standard, that the father did not physically abuse either child.

The Primary Considerations

1. I have found that the father did not sexually or physically abuse the children.  I am satisfied and find that unsupervised time in his care would not expose either child to an unacceptable risk of physical and/or sexual abuse.  Accordingly there is no need to protect the children from physical or psychological harm due to exposure from abuse, neglect or family violence while in the care of the father. 

2. The mother made a number of allegations of violence perpetrated against her by the father during the parties’ cohabitation.  These allegations are now of some considerable antiquity, as the parties separated almost eleven years ago.  These allegations attracted little attention during the present trial.

3. There was some indication that the mother is capable of directing aggressive, offensive behaviour toward the father.  He told Dr W that the mother called him a paedophile in the children’s presence once.  He said also that the mother screamed at him “you fucking paedophile, have you put your dick in someone’s mouth lately” at the children’s school.  The mother admitted both to Dr W and in her oral evidence that she has called the father a paedophile in public. 

4. In terms of the primary considerations, it seems to me that the real and significant issue is whether the children would benefit from a meaningful relationship with both of their parents.  As appears below, there are very serious doubts as to the mother’s capacity to facilitate a relationship between the children and the father.  There are equally serious concerns as to whether the children could tolerate a change in primary residence from the mother to the father.  That step seemed ultimately to be the only potential means by which they could enjoy a meaningful relationship with each parent.

Additional Considerations

1. Both children expressed to Dr W a clear view that they wish to have no contact with the father.  The strength of their views was such that he elected not to observe the children with the father.  Dr W explained his reasons for this decision as follows (at page 22):

   I decided not to observe the children with the father.  Both children had expressed very negative views about him and I was concerned that the observations were going to be extremely difficult to interpret and also that there may be significant resistance by the children which may be distressing to them and may jeopardise putting into effect some orders the Court may make…

2. Dr W was of the opinion that the children’s stated views should not carry significant weight, despite their ages and level of maturity.  He opined that (at page 40:

   the history of this matter over the past ten years indicates that they may have been under a great deal of pressure from their mother, who seems particularly receptive to what may well have been quite trivial complaints in the first instance and since then. 

   Dr W considered that (at page 40):

   the repeated reports of the same allegations by the mother over a lengthy period …and her pattern of withholding the children from school around the time of visits suggests that this matter has dominated the children’s lives and almost certainly affected their views.

3. In his report and oral evidence Dr W expressed the opinion that X has an anxious, insecure attachment to the mother.  In his oral evidence he elaborated on his opinion as to the nature of this relationship in his oral evidence as follows:

   He is more dependent on the mother and feels overwhelmed by being torn both ways.  He is not as intellectually capable and temperamentally not as resilient.  [X] has an insecure attachment to the mother, it is typically very intense but his behaviour shows a lot of anxiety and worry and he evokes that from the mother.  To some extent they are almost emotionally inseparable and that is a hard relationship for a child to grow beyond, it discourages a child to grow independence.

1. Dr W assessed that Y has a secure attachment to the mother.  He was of the view that she has a capacity for independent thought and is “more resilient” than X.

2. Dr W assessed that both children have a loving relationship with the mother.  He observed that they related to her “warmly, politely and respectfully” and opined that “in many respects the mother is very caring and supportive…”

3. Dr W considered that “it is very difficult to gauge the nature of the relationship between the children and the father presently”.  He noted that both children made numerous complaints about the father, although Y displayed “no congruent mood”. 

4. It seems that there has been a significant deterioration in the quality of Y’s relationship with the father since 2009.  On 24 September 2009 she told her teacher that she felt very upset about the relationship between her parents.  She said that she felt “stuck in the middle” and that she “was constantly asked to keep secrets from the other parent”.  On 25 September 2009 Y spoke to a school counsellor.  The counselling notes stated:

   liked going to fa as he has pets.  Would rather live with fa (pets).  Likes mo and fa equally – would like them to be together.  Doesn’t like having to keep secrets.

5. Dr V, a Regulation 8 welfare officer, predicted the evolution of the children’s current situation in her report of 28 June 2004.  She wrote:

   Their (the parents) differing perceptions have a resulted a deep level of mistrust and channelling of energy into defending their particular positions.  This matter has the potential to escalate into deeply hostile dynamics that involve the children being used as pawns in the relationship conflict.

6. Dr W referred to this assessment in his oral evidence.  He said that he would not use the word “pawns” because the mother has a genuine belief that the father has abused the children and that “it is well intentioned but misguided on her part”.  He agreed essentially that Dr V correctly predicted that the situation between the parents would escalate and that the children will be placed in an extremely difficult position.

7. Dr W assessed that the children “can now probably be regarded as alienated from their father”.  This situation has evolved as foreseen by Dr V nine years ago and in circumstances which Dr W described as “a high degree of mistrust by [the mother] in which she has embroiled the children and which has been shaping their views about their father for many years…”.

8. As noted above, the children expressed negative views to Dr W about their grandparents and other paternal relatives.  The accounts of attempted changeovers in the affidavits of Mrs M, Miss K M and Miss A M revealed that the children refused to interact with them and exit the mother’s car on those occasions.  In my assessment, it is highly likely that the mother has influenced the children in their antipathy toward the paternal family.

9. The father has been tenacious in his attempts to maintain a relationship with the children for the past decade.  At times the mother’s attempts to thwart the children’s relationship with him reached a point where she kept them out of school on days when the father was due to collect them in accordance with the orders of 23 December 2005.  On 15 October 2007 X’s principal wrote to the mother and expressed concern that he was partially or wholly absent without satisfactory explanation for ten days in term 3 of that year.

10. In her oral evidence the mother conceded that staff at the children’s school were so concerned about the children’s attendance in 2009 that they arranged a meeting with her.  She conceded also that there were “occasions where [Y] wanted to go to school but [X’s] anxiety kept her at home”.

11. Having perused certain documents produced on subpoena, Dr W reported on X’s school absences as follows: 

    ·“Kindergarten – 27 days

    ·Year 1 – 32 days

    ·Year 2 – 44 days

    ·Year 3 – 40 days

    ·Year 4 – 37 days

    ·Year 5 – 27 days

    ·Year 6 – 15 days

    ·Year 7 – 7 days (from high school report below”

    He reported on Y’s school absences as follows: 

    ·“Kindergarten 2008 Semester 1 (missing)

    ·Kindergarten 2008 Semester 2-17 absences

    ·Year 1 2009 Semester 1 – 19 absences

    ·Year 1 2009 Semester 2 – 13 absences

    ·Year 2 2010 Semester 1 – 19 absences

    ·Year 2 2010 Semester 2 – 4 absences

    ·Year 3 2011 Semester 1 – 1 absence

    ·Year 3 2011 Semester 2 – 6 absences

    ·Year 4 2012 Semester 1 – 3 absences

    ·Year 4 2012 Semester 2 – 6 absences”

    Obviously, it is most concerning that the mother took it upon herself to interrupt the children’s education in her attempts to thwart their relationship with the father.

12. Dr W expressed serious concerns as to the likely effect on the children of a change of primary residence.  In his report he opined:

    [The father’s] application now is that the children live with him and that a short term moratorium is imposed on their time with their mother until they have settled in.  It is very difficult to be certain how the children would cope with this.  If the court is satisfied that despite the children’s allegations, they actually have had a reasonable quality relationship with their father up until early 2012 then they may fit into a change of household surprisingly well.  [X] is a more dependent child, and dependent on his mother, however this dependency may transfer quite well to his father.  [Y] is a more resilient and robust child.  However given their age and what appears to be an increasing fixity in their views about their father which has been uncorrected by spending time with him, in my view the time is fast approaching when a change of residence would not be successful.  If [Y] found the change of residence particularly difficult, I think she would probably cope with it reasonably well, whereas I think [X] would be more likely to show significant emotional disturbance associated with depression and perhaps thoughts of self-harm.

13. In his oral evidence Dr W said:

    The transition would be a very challenging situation and just about impossible if they were older.  [X] is so close to his mum and so caught up in [her beliefs] that he would go over to his father in a state of fear.  The father would need to recognise his frame of mind and manage it sensitively.  This could go on for weeks and perhaps longer and this challenging period can test the patience of just about anyone.  The challenging period would certainly last for days and probably, maybe weeks.  The building of trust could take months, particularly in [X’s] case.  [Y] is more likely to be defiant, she is capable of very definite opinions and she is likely to test the father more than [X].  In 2009 I think [X] became quite depressed and anxious.  This [may re-occur] and at this age he may well try to self-harm as the worst case scenario of the transition.

14. Dr W speculated further:

    [X] may be just biding his time until he can get back to his mum’s home.  If they voted with their feet, it could just undo the orders.  It tends to happen from school.  My guess is that they are sufficiently resourceful to find their way back.  If they do it two or three times and there are recovery orders, everyone gets very upset and it just turns into a monumental fight and just further damages the children.  These situations resolve within a few weeks.  I think it could still be possible at these children’s ages.

15. Dr W was reluctant to choose between an outcome where the children continue to live with the mother and spend no time with the father or a change of primary residence.  He said:

    I do not want to express a preference but the most immediate question mark is the transition to the father, whereas the mother’s proposal is not rocking the boat.  The court needs to be satisfied that the father will be able to manage ie the patience issue is a big one, that he can set aside whatever he thinks about the mother and focus on the children in a sensitive way.  It will be a lonely task for the father and the court would need to be satisfied that he could engage with supports, for example, a child psychologist and that he has a supportive family.  The children will not fit in instantly.

16. The father’s capacity to deal with the stress and challenges of the initial weeks after a change of residence is unknown, as was properly submitted by counsel for the ICL.  In my view two past incidents give rise to concern as to the father’s level of patience, which Dr W regarded as a crucial ingredient in a successful change in primary residence. 

17. In this regard, as to the father’s “reflexive” kicking of X I have concerns.  It may well be that he reacted to X kicking Y but it seems to me to be reasonable to observe that the father could have handled the situation more appropriately. In my view, any repetition of this kind of behaviour on the part of the father in the initial stages of a change in primary residence would be likely to have catastrophic consequences for X.

18. I am also concerned about the implications of the incident when Y vomited after the father required her to eat porridge against her wishes.  In his oral evidence the father said that X told him that Y deliberately spat out her food, so he required her to “clean it up”.  He said that, after the incident, “we went to netball and did [normal] things”. 

19. This evidence of the father suggested to me that he perceived little or no distress on Y’s part during and after this incident.  In my view, it would be surprising if Y dealt with this incident with such aplomb.  It seems to me that the father could have dealt more sensitively with Y’s refusal to finish her food.

20. In his oral evidence Dr W said: 

    I am not sure if the father is sensitive enough.  He has certainly tried very hard over a number of years.  On my limited time with him he is a doer who responds to practical problems very well.  I am not sure about his capacity to intuit what the children are feeling and respond emotionally.”

21. Dr W commented on the likely consequences of a situation in which the father became impatient with X but not to the point where he lost his temper.  He opined:  “[X] would probably withdraw and it may precipitate running away.”  Dr W considered that, if the father lost his temper, “[The children] would probably run away and [X] would feel pretty hopeless and he may also do something impulsive like trying to harm himself”.

22. Dr W opined that Y might decide for herself to re-establish contact with her father and paternal family when she reaches the age of 15 or 16 years.  He was of the view that she has the capacity to take this step independently of the views of the mother.  He did not offer the same prediction in relation to X, whom he regarded as a more emotionally vulnerable and dependent child.

23. Certain evidence given orally by the mother left no room for doubt that she will never voluntarily countenance the children having a relationship with the father and the paternal family.  She said: 

    “I have in the past used language like “fucking paedophile…”

    “now I say the children should not see him even if they wish to…”

    “I think it is in their best interests that they not see him until they are adults even if they want to…”

    “I no longer seek orders that the father send presents to the children” “it is already their opinion that the father, his family, their whole paternal side [are bad people]…”.

24. In the opinion of Dr W, the mother’s belief system in relation to the father is unlikely to change over the next three to four years.  He said that the position for the children is now beyond the point where it is feasible that they stay with the mother and she undertakes therapy, with a view to creating for them a situation in which they are free to enjoy a loving, positive relationship with each parent. 

25. In his oral evidence the father acknowledged that certain of his actions in the recent past are likely to have heightened the mother’s anxiety about the children’s relationship with him.  Counsel for the ICL took him to a three page letter dated 1 February 2012 (father’s annexures pp119ff) which he wrote to the mother.  It is certainly the case that this letter was written in a polite tone and raised legitimate complaints in regard to the children’s time with the father.  He agreed that “at the time I did not think the mother would interpret my letters as an attempt to control but looking back I can see that”.  He was then taken to a letter dated 17 February 2012 which, again, was polite in tone.  This letter informed the mother that he had enrolled Y in netball and intended to register X with a soccer team.  He agreed with counsel for the ICL that “now I can see that my decision to enrol the children in weekend sport was provocative”. 

26. In his affidavit the father recounted that he attended Y’s school in late 2012, as he became aware that she was to receive a prize.  The paternal grandmother attended this event with the father.  In his oral evidence the father agreed with counsel for the ICL that “I can see that the mother would be likely to interpret my presence at school as provocative”.  He added: “I thought that if there was any indication at all of a flare up, we would walk away”.

27. The father said that he would arrange counselling for the children, if there is a change of primary residence, and I accept it without reservation that he would do so expeditiously.  Dr W was of the view that the father would need support from his family and I accept that they would do all things possible to assist him and the children.  I have real doubts, however, that the children would be receptive to assistance from the grandparents and other paternal relatives.

The Presumption of Equal Shared Parental Responsibility

1. Neither party nor the ICL made a proposal for equal shared parental responsibility.  It seems to me to be abundantly clear that the party with whom the children reside primarily should have sole parental responsibility.  These parents, by their own admission, have no ability to communicate and they labour under a highly conflictual, mutually distrustful relationship.  It seems to me that there is simply no way that they could discuss issues constructively and make reasonable decisions concerning their children.

2. It follows that I am not required to consider whether it would be in the children’s best interests, and reasonable practicable, that they spend equal or substantial and significant time with each parent.  I am at liberty to proceed to determine what parenting orders are in the children's best interests.

Conclusion

1. This matter is extremely troubling and neither outcome will create immediate comfort and security for these children.  Ultimately, the mother’s proposal offers a continuation of their alienation from the father and estrangement from the paternal family.  The father’s proposal offers short-term emotional trauma and for the children and no more than the possibility of an ongoing relationship with each parent.  There is no certainty at all that the children would make a successful transition to the primary care of the father.

2. For reasons which I have indicated I have concerns that the father lacks sufficient sensitivity and patience to deal successfully with the inevitable turmoil and trauma of the initial stages of a change in primary residence.  I have no doubt that he would do his utmost to assist the children through this traumatic time but, as Dr W said, this task would be a serious challenge for any parent.  I am confident that the paternal family would provide all possible assistance to the father but I doubt that the children would be receptive to their input.  Their rejection of grandparents and paternal aunts at attempted changeovers illustrates the children’s current mindset in that regard.

3. I am deeply concerned at the prospect that the children will run away from the father and return to the mother.  As Dr W said, there is practically nothing to prevent them from returning to the mother from school.  It is likely that they would be traumatised by the execution of one or a series of recovery orders, involving police officers forcibly returning them to the father against their will.  There is a real prospect that their already-damaged relationship with the father would be further undermined in such circumstances.  I am profoundly concerned at the prospect that X may engage in self-harming behaviour, in the event that there is a change in primary residence.

4. It seemed to me that the only real hope for the future which emerged from all of the evidence was the opinion of Dr W that Y may seek out the father and paternal family when she is fifteen or sixteen years of age.  She is now eleven years old and, in my view, it is likely that she will develop curiosity about the paternal side of her family concurrently with growing maturity and independence from the mother.  It can only be hoped that X will follow her lead in due course.

5. In summary, I consider that the risks to the children’s emotional well-being and X’s physical safety are too great to effectively gamble on a change in primary residence.  There is insufficient reason for confidence that such a step would prove successful to justify putting the children at such risk.

6. The conclusion which I have reached should in no way be interpreted as an endorsement of the mother’s behaviour.  On the contrary, she has created an untenable situation for the children in terms of their relationship with the father and paternal family.  Experience demonstrates that, in the fullness of time, the children most likely will realise that her actions have deprived them of their father, grandparents, aunts, uncles and cousins and they will visit the consequences on her.

7. For these reasons, I will make orders in terms of the scheme proposed by the ICL in the hope that the children in due course reject the mother’s influence and seek out the paternal side of their family.  I cannot see any way, at this time, for the children to move between the two households so as to spend time with the father.  At this point, too great a level of damage has been inflicted on the father/child relationships to permit any such outcome.

8. I was provided with no submissions in relation to the application of the ICL for an order that the father pay $880 on account of the fees of Dr W.  The ICL may pursue that matter through the usual processes if he chooses to do so.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on October 2013

Associate:     

Date:              16 October 2013