PARSONS & CHOU
[2016] FamCA 3
•14 January 2016
FAMILY COURT OF AUSTRALIA
| PARSONS & CHOU | [2016] FamCA 3 |
| FAMILY LAW – CHILDREN – Interim parenting – Application by the father to change interim parenting arrangements – Allegations of sexual harm in the mother’s household – Father retained the children – Best interests of the child – Not satisfied that there is an unacceptable risk of harm in the mother’s care – Children to return to the mother and time with the father suspended until further hearing in relation to interim arrangements. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC |
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Mr Parsons |
| RESPONDENT: | Ms Chou |
| INDEPENDENT CHILDREN’S LAWYER: | Watts McCray Lawyers |
| FILE NUMBER: | PAC | 4424 | of | 2013 |
| DATE DELIVERED: | 14 January 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 11 December 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Breeze |
| SOLICITOR FOR THE APPLICANT: | Blanchfield Nicholls Partners |
| COUNSEL FOR THE RESPONDENT: |
| SOLICITOR FOR THE RESPONDENT: | Rafton Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Watts McCray Lawyers |
Orders
The father is to return the children to an agent of the mother, (Sandra Shore of X Staying Home Leaving Violence Service at Z Police Station at 6.30pm tonight, 11 December 2015.
The orders with respect to the time the children live with or spend with the father made 11 April 2014 are suspended until 14 January 2016.
The matter is adjourned to 14 January 2016 at 10.00am for further hearing in relation to the interim arrangements for the children
The mother is to attend upon Mr L and make the children available to Mr L in compliance with orders for the preparation of an updated family report including making the children available to Mr L for observation of their interaction with their father should Mr L require it.
Each of the parties is to participate in any further assessment by Mr L as may be directed by him.
The legal representatives have liberty to copy Exhibit “1” in today’s proceedings being the USB.
Liberty is granted to the Independent Children’s Lawyer to restore the matter to the list in any circumstances that he regards as appropriate.
In respect of the application for specific time at Christmas, the application is refused and the reasons will form part of my reasons for the other orders.
In the event that the father wishes to provide Christmas gifts to the children, he may do so by arranging for them to be delivered to the mother’s solicitor’s office by Friday 18 December 2015.
The matter is adjourned to a date to be advised for delivery of reserved Judgment.
Notation
If there is any form of interim report or any information that Mr L is able to provide that may assist the court in the interim hearing the Independent Children’s Lawyer will seek to provide such information to the Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parsons & Chou 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 PARRAMATTA |
FILE NUMBER: PAC 4424 of 2013
| Mr Parsons |
Applicant
And
| Ms Chou |
Respondent
REASONS FOR JUDGMENT
Introduction
On 11 December 2015, I made short-term interim orders in an Application in a Case brought by the respondent father in parenting proceedings concerning the parties’ two children. I indicated that I would publish my reasons for those orders at a later date. These are those Reasons.
Background
The father’s Application in a Case relates to parenting proceedings with respect to the parties two children: B, who is three and a half, and C, who is almost two.
The mother, who is Chinese and raised in China, and the father, who grew up in Sydney, met in 2008 and were married in 2009.
The eldest child B was born in 2012.
The mother says that the relationship between the parties began to deteriorate from about March 2013, though the father appears to date this deterioration from May 2013. Both parties allege violence against each other from about this time and the father alleges that the mother was physically abusive towards the child B.
The parents separated in June or July 2013 when the mother moved out of the family home with B. At the time the mother was about three months pregnant with the parties’ second child. The mother stayed in two different refugees and then moved to private accommodation.
On 13 September 2013 a Local Court made an interim Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother against the father.
In early October 2013, B began living with the father. There is significant dispute between the parties about the circumstances in which this parenting arrangement commenced. As I understand it, the father contends that the parties agreed that the child would live with him, while the mother says that she only agreed for that to occur for a couple of nights and that the father withheld the child from her without her consent.
On 15 October 2013, the mother commenced proceedings in the Federal Circuit Court and sought a recovery order for B.
Interim orders were made by consent on 25 October 2013 that B live with the father and spend time with the mother two nights per week. The mother alleges that there was a violent incident while the father was driving her home following this court event which she reported to police.
The mother also alleges that the father verbally threatened and intimidated her in the precincts of the Local Court when the ADVO application was mentioned on 26 November 2013.
On 23 December 2013, the mother gave birth to the second child, a girl who she named C. The father refers to this child as “Y”.
In February 2014, the father began spending time with the child C for two and half hours, two times per week pursuant to orders made on 6 February. The orders also provided for B to live with each of the parties on a “two night about” basis, that is, two consecutive nights with each parent with changeover to the other parent occurring on the third day. Orders were also made for the preparation of a Family Report by Mr L.
From around this time the mother alleges that on many occasions the children were returned to her from the father with unexplained bruises to their bodies.
The father makes similar complaints about the children after they spent time with their mother on a regular and ongoing basis from the time of separation. The father also alleges that B complained on a number of occasions that the mother had hit him or his sister. In May 2015 the father presented C to the Children’s Hospital. The father also makes general complaints that the children have been physically and emotionally neglected by the mother.
The complaints each parent makes about the other parent’s care of the children has at all times been a central issue in contest between the parties and cannot be resolved on an interim basis.
On 11 April 2014, the parenting orders were changed such that B was to live with the parents on a fortnightly rotating basis of three or four days in each parents’ care with between four and seven changeovers per fortnight. The father was to spend time with C three times per week for three hours on each occasion. The mother says that even though these orders were made by consent, she did not feel that they were appropriate as the regime was very disruptive to both children and she was required regularly to undertake extensive travel by public transport with two small children.
On 13 April 2015, the proceedings were transferred from the Federal Circuit Court to the Family Court and on 15 April 2015 directions were made in relation to a final hearing in the matter which was to commence on 17 August 2015.
The trial did not proceed to be heard in August 2015. On 18 August the father sought a change in the then current interim parenting arrangements with the effect that the children were to live with him and spend two periods of five hours with the mother each week. The father was not in a position to pursue this application at the time though it appeared to be suggested that he may be in a position to do so within a matter of days. The Court made an order that the father was to file an Application in a Case if he sought to change the current interim parenting arrangements for the children. No such Application in a Case was filed.
The current interim parenting arrangements continued in accordance with the orders until 27 October 2015. On that day, B was to spend time with his father until 8 pm when he was due to be returned to the mother’s care. On that day C also spent time with her father from 5 pm to 8 pm. The mother attended the police station where the changeover was to occur just prior to 8 pm but neither the father nor paternal grandmother was present to effect the changeover. At 8:15 pm the mother sent a text message to the paternal grandmother asking about the children’s whereabouts. The paternal grandmother sent a text message in reply to the mother, in which she wrote “[B] made disclosures regarding inappropriate sexual behaviour at your residence. Am unable to return the children tonight. My legal rep will contact you tomorrow”. The paternal grandmother and mother also had a telephone conversation at about 8.40 pm concerning the children’s whereabouts. As the mother was at a police station at the time for changeover, she advised police of the situation and requested that they attend the father’s premises to do a welfare check on the children.
The mother had not seen or had any communication with the children from this date until the date of the interim hearing, a period of six weeks.
The following day, 28 October 2015, the mother attended the offices of her legal representatives and told them of the events of the past two days. The mother’s solicitor made contact with the father and informed him that it appeared that he had contravened the orders without reasonable excuse and asked him to make contact with them for the return of the children to the mother’s care within 24 hours. The following day, legal practitioners who had recently been re-engaged by the father, wrote to the mother’s lawyer informing her that on Sunday night, 25 October 2015, B made disclosures to the father which caused him to believe that B had been sexually abused in the mother’s household. The details of the disclosure were set out in the letter. The father’s lawyer also advised that the father had taken the child to the Children’s Hospital on Monday morning, 26 October, and that similar disclosures were made to the doctor who examined the child. The father’s lawyer went on to advise that on Tuesday 27 October 2015 the father noticed bruising to “[Y’s]” inner thighs, and that this observation made him concerned about that this child may also potentially have been sexually abused. He took the child to the Children’s Hospital and she was admitted overnight. The father’s lawyer also put the mother’s lawyer on notice that “pending further notice [the father] will not be making the children available to [the mother] given the above circumstances”.
On 9 November 2015, the father filed an Application in a Case seeking that on an interim basis he have sole parental responsibility for the children, that they live with him and that they spend time with the mother on a supervised basis at a contact centre for two hours a fortnight. In her Response, the mother sought that she have sole parental responsibility for the children, that they live with her and that they spend time with the father each alternate weekend for a period of three hours to be supervised by a person agreed between the parties or at a contact centre.
On about 10 November 2015, the mother received a letter from Centrelink which stated that as the children were no longer in her care, Centrelink intended to cut off her parenting payments.
The Application
It is the father’s case that the children are at an unacceptable risk of harm in the care of the mother and on this basis it is in the best interests of the children to live with him and spend the limited supervised time he envisages in his orders with the mother. He contends that the risk of harm arises from the disclosures made by B which cause him to believe that B has been sexually interfered with in the mother’s home and his observations of bruises on C which he contends also give rise to concerns about sexual abuse. He also maintains his general long-stated concerns about the mother’s neglect of the children.
It is the mother’s case that, even taking the father’s case at its highest, no unacceptable risk of harm in the mother’s household arises from the disclosures said to have been made by B and the father’s observations of C. She also contends that the orders she proposes that the children live with her and spend limited supervised time with the father are in the best interests of the children.
The matter was listed for a period of two hours in which it was envisaged affidavits were to be read, submissions be heard and judgment be delivered. However, on the hearing date the matter could not proceed as a number of documents had just been produced on subpoena which needed to be accessed and considered by the parties. Further, there was one particular aspect of evidence which was not referred to in the father’s affidavit which became apparent from documents produced on subpoena. With leave the Independent Children’s Lawyer (ICL) cross-examined the father about this matter, being an audio-recording of a disclosure of abuse made by B, and the recording (which was 10 minutes long) was required to be played twice and considered by the parties. Further, an updated report by the expert was in the process of being prepared and was not available. As a result, I was not in a position to consider anything more than an interim arrangement for a matter of weeks until mid-January, being the first available date on which appropriate time could be allocated to a proper consideration of the interim application.
In the course of the proceedings other alternative care arrangements for the short-term arose for consideration including that the current arrangement continue (proposed by the ICL) or that the father’s time with the children be suspended, which was raised by the Court.
There is very little uncontested evidence in relation to the respective parents’ positions which form the basis of their orders sought by them other than the matters referred to under the heading of “background”. However, while interim applications are generally determined on the undisputed facts, the Court may, and in some cases must, have some regard to the matters in dispute.
The contested facts
In SS & AH[1], their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[1] [2010] FamCAFC 13.
In George & George[2] the Full Court cited Deiter & Deiter[3] in confirming that the mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it.
[2] [2013] FamCAFC 182.
[3] [2011] FamCAFC 82.
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The seriousness of the claims the father makes is such that if the events did occur, an unacceptable risk of harm in the mother’s household would arise. However, when considering the likelihood of the children having been sexually abused in the mother’s household, a finding relies almost exclusively upon disclosures said to have been made to the father by B on the evening of 25 October 2015 and then later to other people.
The disclosures made by the child B
The father says that the first disclosure was made at a time he and the child were watching “Charlie and the Chocolate Factory” on the television which included a scene of a whole family in the same bed. The father says that the child commented on the scene saying words to the effect of “bed is full of people” and the following then occurred:
I asked [B]:
“Do you sleep in mummy’s bed?”
[B] replied:
“Yes”
[B] then said to me words to the effect of:
“[Q] touches us wee wee”
I said to [B] “who is us?”
[B] responded:
“[Q] touches my wee wee. [Y] touches [Q’s] wee wee. [Q] touches Mummy’s wee wee. Me and [Y] and mummy and [Q] all sleep together in mummy’s bed at mummy’s house”.
The father’s goes on to say that he was shocked when heard the child say these things and he telephoned his mother. He says that the child then had a conversation as follows:
[B] said to his grandmother “[Q] touch my wee wee”.
The grandmother said to [B] “who is [Q]?”
[B] did not answer.
The grandmother said to [B] “What does [Q] do?”
[B] said to the grandmother “[Q] touch us wee wee”.
The grandmother said to [B] “Who is us?”
[B] did not answer.
[B] said to the grandmother “[Q] touch my wee wee, [Q] touch [Y] wee wee, [Q] touch mummy wee wee, [Y] touch [Q] wee wee”.
The grandmother said to [B] “when does [Q] touch your wee and [Y’s] wee wee and mummy’s wee wee”?
[B] said to the grandmother “[Q] touch my wee wee in bed”.
The grandmother said to [B] “Where do you sleep at mummy’s house”?
[B] said “me and [Y]and mummy and [Q] sleep in same bed”.
The father says that on the following day, 26 October 2015, he took B to the Children’s Hospital and the child was examined by a doctor but was not admitted. The father says “during the examination, [B] made similar disclosures to Dr [G] as the ones he made to me and my mother the night before”. He says that he was advised by the doctor that she would notify DOCS (sic) and advised him to make a notification as well.
The discharge summary in respect of this admission which is attached to the father’s affidavit does not include any reference to the child having made a disclosure to the doctor. The doctor’s notes on examination reveal nothing remarkable. There is a note which includes “not for CPU [child protection unit] involvement at this stage”.
The following day, 27 October 2015, at 5pm the younger child C was collected by the paternal grandmother at O Police Station, which is the current changeover location. Neither the grandmother nor father informed the mother or police of any concerns about abuse or disclosures made by B prior to or at the time of the handover of C.
The father says that at about 6:45pm that night when he was changing C’s nappy, he observed bruising on her inner thighs at the top of her legs which caused him to be extremely alarmed especially in light of disclosures that had been recently made by B. Police records indicate that it was reported that the paternal grandmother had seen the bruising and became concerned. The father and paternal grandmother took the child to the Children’s Hospital, arriving there at about 8 pm which is the same time both children were due to be returned to the mother’s care at O Police Station. While they were waiting to be seen at the hospital, the text message interchange and phone conversations between the mother and paternal grandmother referred to in paragraph 20 of these Reasons occurred.
The child C was ultimately seen by a doctor and admitted in the early hours of the morning. The father claims that the doctor said to him words to the effect of “[C] needs to be admitted to the hospital as an in-patient as the location of the bruising is suspicious”. The child was at this stage asleep and the paternal grandmother remained at the hospital with her overnight while the father returned to his home with B.
Upon arrival at home, the father found a card from Police under the door [apparently as a result of the mother’s request to carry out a welfare check on the children]. The following day, 28 October 2015, the father claims that C was examined by [a doctor attached to] the Child Protection Unit “to ascertain whether or not there had been any penetration.” He also said “tests disclosed that this had not occurred”. The discharge summary from the hospital makes a number of references which indicate “for further details, please contact Child Protection Unit [CPU]” but does not refer to tests having been carried out. The summary includes the following notations:
- left inner thigh: blue discolouration, flat 25mm longest x 14mm widest (oval shape)
- right inner thigh: very subtle blue discolouration more linear, longest 18mm x widest 5mm.
The notes indicate that the child was seen by “CPU” and was discharged home on the advice of CPU.
The father says that at 4:43 pm on 28 October 2015, the paternal grandmother sent the mother a message advising her that the child had been admitted to hospital, examined by the CPU and discharged into the father’s care and that his solicitors will be in contact. The copy of that message annexed to the father’s affidavit, indicates that it was sent at 8:27 pm.
The father says that later that afternoon [28 October 2015] the police again attended his home at the request of the mother to carry out a welfare check. The father apparently did not report his concerns about any alleged sexual assault to the police. The following day the father’s legal representatives sent the letter to the mother’s lawyers setting out his concerns and the basis upon which he intended to withhold the children from the mother.
On 11 November 2015, the police made arrangements for B to be interviewed by the Joint Investigation and Response Team (JIRT), a specialist child abuse team made up of officers from police and Department of Family and Community Services. Although this is not referred to in the father’s affidavit, B made no disclosure to JIRT and according to police records did not speak at all when interviewed.
The child B was again interviewed on 16 November 2015 and although the father does not mention this in his affidavit, no further investigation is being pursued by JIRT.
Although the father does not mention this in his affidavit, police records reveal that on 16 November after the second interview, the father contacted police and informed them he had an audio recording said to contain the same disclosures that B allegedly made on 25 October 2015. The father electronically sent that recording to police at their request. No further action was taken by police as a result of listening to the recording.
The mother says that on 24 November 2015, she received a phone call from a police officer at JIRT who informed her that B did not say anything of concern to JIRT during the interview and that they had concluded their investigation.
The incident that caused the father to withhold the children from the mother and which is in the main, the basis for his concern about the risk of harm in the mother’s care, is based almost entirely upon the alleged disclosures made by B. In my view the small bruise and subtle discolouration observed on C is equivocal and there is no medical evidence to suggest that it is related to any concerns of abuse.
The evidence concerning the disclosure said to have been made by B must therefore be carefully scrutinized. This is not to suggest that credit findings in relation to the parties can be made at this stage but that the evidence of those disclosures must be carefully considered. The child’s disclosure was initially made to the father, then according to his affidavit, repeated in very similar terms to the paternal grandmother and also repeated on the audio tape. The father also claims it was repeated to the doctor who examined the child.
In the disclosure said to have been made by the child to the father and paternal grandmother, the child refers to a person by the name of “Q” who is alleged to have touched each of the children’s “wee wee”. There is nothing in either disclosure that indicates the gender of the person “Q” and when B was presented to the hospital on 26 October 2015, the discharge summary indicates that the father did not know whether “Q” was male or female. However, police records indicate [it was reported that] “[B] has disclosed that a female adult in his mother’s home has “touched him on his wee wee”.” It is not clear how this conclusion was made.
Although the letter from the father’s solicitor of 29 October 2015 asserts that the child had made similar disclosures to the doctor at the hospital and the father also asserts this in his affidavit, there is no record of such a disclosure having been made. I am of the view that had the child made this complaint to the examining doctor in these circumstances, it would be expected to be recorded in the discharge summary.
The audio recording is also a critical item of evidence. Although the parties were not cross examined on their affidavits, the Independent Children’s Lawyer cross examined the father about the circumstances in which he made the recording of B’s complaints and that recording was tendered and played in court. The father said under cross examination that he was so concerned about the child’s disclosure on 25 October 2015, that he immediately made a recording of a conversation with the child following that disclosure and prior to telephoning his mother. He said that although this recording was available to him from that time, he did not provide it to police prior to either of the occasions on which B was interviewed by an officer from JIRT.
The recording made by the father, apparently of a conversation between himself and B, lasts for approximately 10 minutes. In that recording, the father is speaking most of the time, asking questions of the child. Some of the child’s responses can be heard and others are indistinct. In my view the father is generally highly suggestive and leading, questions and cross-examines the child about his answers and on many occasions asks long and complicated questions. The child is heard on occasions to repeat the father’s words but is often silent. At one point the father says “you need to say something”. It is particularly significant that it is the father who first introduces the name “Q” in the conversation. It is also of significance that at one point the child is heard to say “daddy touched [Q] wee wee”. At this point the father introduces the idea of “daddy from mama’s house” and then proceeds to ask further closed and leading questions about this “daddy from mama’s house”.
I am of the view that the recording which the father relies upon as being virtually contemporaneous with the original disclosure of its nature is highly unreliable.
The father is leading and cross-examining the child, and the child who is only three years old appears to respond to his suggestions. Critically, the father introduces the name “Q” and when the child nominates “Daddy” as having been involved in the “wee wee touching” the father suggests another person, “daddy at mama’s house” in an apparent diversion from the fact that the child named “Daddy” as being involved.
Even accepting the father’s evidence at face value or at its highest, his evidence concerning the recording is problematic. The father said that he recorded the conversation on his mobile phone and then transferred it to a USB and deleted the recording on his phone because the memory card was full. He said that he did not think it would be a good idea to retain the recording. He also said that although his phone had the capacity to make a video recording he did not record the interview via video but had “no idea” why he did not do this. He said that he did not initially provide the recording to police because he hoped that B would make these disclosures himself and did not refer to the recording in his affidavit because when B did not speak at the interview he thought the recording was irrelevant.
In my view, an inference may arise on the father’s evidence alone that the recording may have been made by the father after the child failed to disclose anything at the two JIRT interviews. Police records record that “at the conclusion of the [second JIRT] interview, it was explained to [the father] that due to the lack of evidence, there may not have been anything that happened. It was also explained that investigators would speak with the mother of the children in an attempt to establish the identity of “Q”. With the lack of disclosure, it appeared that [the father] was disappointed that his son did not disclose any abuse at his mother’s residence”.
There is also no evidence to support the father’s claim that the child repeated the disclosure to the examining doctor at the hospital.
It is the mother’s case that she does not know or associate with any person called Q. She denies that she sleeps with the children, and says that C sleeps in a cot in her room and B sleeps in a bed in his own room.
The father’s case that the mother does have an associate called Q, depends to a very large extent upon the disclosures said to have been made by the child to the father and the paternal grandmother on 25 October 2015, that a person named Q in the maternal home has touched each of the children on the genitals in the course of them sleeping together in the mother’s bed at her home. For the reasons given, I have significant concerns about the alleged disclosure made by the child about the actions of the person, Q. The child did not disclose any untoward action by Q to police during either interview and in the conversation between the father and B recorded by him it is the father who introduces the person named Q, to the child.
The mother denies knowing any person called Q. The father says that the mother’s denial should not be accepted as documents produced on subpoena by the Benevolent Society (an agency involved in providing the Brighter Futures program to the mother and children) refer to such a person. On 21 November 2014, when a child and family practitioner from the Benevolent Society attended the mother’s home it is recorded that “[C] presented well and was being looked after [the mother’s] friend [Q Q] while [the mother] dropped off [B] to child care”.
The apparent inconsistency between the mother having a friend noted as Q Q and her denial 12 months later knowing a person by the name Q will undoubtedly be explored under cross examination. At this stage I cannot, of course, make any credit findings.
In these circumstances, having regard to my findings concerning the tape recording, the failure of the child to make any disclosure to JIRT concerning the allegation and the absence of any other evidence relating to alleged sexual harm, I cannot be satisfied on the evidence before me that there is an unacceptable risk of harm to the children in the mother’s household.
The law
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].
[4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
In making a parenting order the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
In Dieter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. As indicated at the outset, the interim orders are to operate for a matter of four weeks until mid-January when appropriate time has been allocated for a more complete hearing of the matter.
Goode (supra) sets a framework for the conduct of interim proceedings. The Court must first identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested relevant facts. For the reasons previously given the Court must also make some assessment of the disputed matters concerning allegations of alleged risk of harm.
In this interim application, each of the parents seeks sole parental responsibility for the children, which is also the order with respect to parental responsibility that they are seeking on a final basis. Under the current interim orders, the parents equally share parental responsibility for the children. In other words in this interim application, the parents are seeking to change parental responsibility orders in accordance with the positions that each of them are taking in the final hearing which is listed to commence in two months.
In my view it is inappropriate to make a determination that either of the parents hold sole parental responsibility for the children on a short term interim basis as there are many matters to be determined which are central to the children’s best interests which cannot be determined in a hearing of this nature.
So far as other orders sought by the parties are concerned with respect to the children’s living arrangements, the Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.
Section 60CC considerations – What order is in the best interests of the children?
Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3). The primary considerations, which are contained in subsection (2), are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).
Although the expression “meaningful relationship” is not defined in the Act, the Full Court has confirmed that such a relationship is one that is “substantial” of “importance”.[5] Of the four possible parenting arrangements being considered by the court (the father’s proposal, the mother’s proposal, the ICL’s proposal that the current interim orders continue and the possibility of the children’s time with the father being suspended on an interim basis) only the current arrangement would provide for the children having a meaningful relationship with each of the parents for the interim.
[5]McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright (2007) Fam LR 518.
However, the authorities make it clear that this consideration does not mean that a child will always receive a positive benefit from having a significant relationship with each of the child’s parents. As the Full Court said in McCall & Clark (supra) at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Having regard to the role that each of the parties has played in the children’s lives to date, I am of the view that the children would benefit from having a meaningful relationship with each of their parents. This consideration is not however determinative and does not of itself require a court to craft orders ensuring that the children enjoy a meaningful relationship with each of the parents, as all of the relevant best interest considerations must be considered.
The second primary consideration to which the court must give greater weight is particularly significant in this matter, as each of the parents contend that the children are at risk of physical harm from being subjected to abuse and/or neglect in each other parents home. There are also allegations that the children have been exposed to family violence.
As previously indicated, each of the parents draws conclusions about alleged abuse in the other parents home from the presence of bruises or marks observed on the children an also on complaints said to have been made by the elder child B. Each parent denies allegations made by the other.
For the reasons previously given, I have real concerns about the likelihood of the children having been recently sexually harmed in the mother’s household as contended by the father. In my view, given the unreliability of the complaint made by B having regard to his age and circumstances of extreme conflict between his parents and in the absence of any other reliable evidence, I am not satisfied that there is an unacceptable risk of harm in the mother’s household.
In my view, greater concerns arise about risk to the children’s emotional wellbeing from the father withholding the children from their mother on the basis of matters which are highly disputed between the parties. As previously indicated, it is the mother’s position that the circumstances in which B came to originally live with his father in September or October 2013 are not agreed. It is the mother’s position that the father withheld the child who was 18 months old from her at this time. The mother says that she did not see B for two and half weeks following this incident and this did not occur until she commenced proceedings.
In August 2015 when the final hearing did not proceed, the father sought a change in the then current interim parenting arrangements to reduce the children’s time with their mother, which was unsuccessful. The orders made by the Court on that day included an order that the father was to file an Application in a Case if he seeks to change the current interim parenting arrangements for the children.
Only two months later, rather than file an Application in a Case as ordered, the father simply retained the children. He did not file an Application in a Case until almost two weeks later and retained the children contrary to the interim orders in the meantime. The day after the father filed his Application in a Case, the mother was advised by Centrelink that that agency was aware the children were no longer in her care. It appears that the father advised Centrelink of the children’s circumstances prior to filing this application for a change in orders. As a result of the father’s actions the children spent no time with their mother and did not communicate with her for six weeks.
I am also of the view that, particularly having regard to the nature of the relationship between C and her mother (who has been her primary carer throughout her life) and having regard to B’s age, there is a real risk of psychological harm to the children if the father simply withholds them from the mother again as he has done recently. In my view having regard to the undisputed facts alone concerning the retention of the children there is a real risk that he may do so again in the future.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case. I will refer to those which are relevant in this case.
Views expressed by the children
Given that the children are only aged three and a half and two years old respectively they have not expressed any views in relation to the application.
The nature of the relationship of the children with each of their parents, and other significant persons
Having regard to the role that each of the parents have played in the children’s lives, the children have important relationships with both the mother and the father, although there are strengths and weaknesses in each relationship.
In the Family Report dated 2 April 2015, which is untested, the family consultant observed that the child B had an attachment relationship with both parents, although he had a “rather more secure attachment relationship with his father”. The family consultant further noted that while he had “some concerns about the quality of [C’s] attachment relationship with the mother there is little doubt that she is nevertheless primarily attached to her mother and would mourn her prolonged absence.” It was evident to the family consultant that C’s attachment to her father “is still embryonic”.
The family consultant described the sibling relationship as “troubling” and in particular noted that B “did not appear to have any empathy for or affection for his sister and was on occasions quite spiteful towards her”. He expressed the view that this would not be normal for a child of his age.
Extent to which each parent has taken, or failed to take, the opportunity to participate in decision making, to spend time with or to communicate with the child
Both parents have taken the opportunity to spend time with the children. Pursuant to orders, the mother and father have shared parental responsibility, although each parent has at times acted unilaterally in relation to the children, including the present circumstances.
Extent to which each parent has fulfilled or failed to fulfil their obligations to maintain the child
This is not matter of significance in this interim application.
Likely effect of any change in the child’s circumstances, including the likely effect of separation from either parent, or other child, or other person with whom the child has lived
This is a complex and weighty consideration in this matter. Prolonged separation or a restriction on contact between the mother and the children is likely to be distressing for the children. In particular, the family consultant opined that in the short to medium term at least, separation from the mother “would be likely to cause [C] anxiety and distress.” He similarly opined that a prolonged separation of B from the father with whom he has an important and established relationship is likely to cause distress.
The parents have an uncooperative and distrustful relationship. The current arrangement of B spending two to five days with each parent, with between four and seven changeovers each fortnight, and C spending three periods of three hours per week with the father is, in my view, problematic. Regular changeovers, at child-unfriendly hours such as 8 pm and occurring at a police station and extensive travel via public transport is also not, in my view, child-focussed. A change in these arrangements is likely to give respite to the children. It is to be observed that the family consultant’s recommendations in his second report of April 2015 are for B to live primarily with one parent and spend substantial and significant time with the other parent for a block period each fortnight. So far as C is concerned he recommends further time on two occasions each week with the parent with whom she does not live. Although it is not clear why he makes differing recommendations with respect to each of the children and this matter will clearly to be explored at the final hearing, there appears to be recognition that it would be in best interests of the children for the number of changeovers per week to be reduced.
It is to be remembered that at this stage I am only dealing with a short-term interim arrangement, complicated by the opening hours of the Court during the holiday period. A period of restoration to the mother (who has not spent time with the children for six weeks) for a short period without spending time with the father is supported by the ICL as a second option.
Practical difficulty and expense of a child spending time with and communicating with a parent
The mother understandably says that she experiences considerable difficulty in travelling with very young children by public transport in order to implement the current changeover arrangements. Each of the parents proposes that the other parent’s time with the children be supervised, which will involve some expense though the paternal grandmother has indicated that she is prepared to fund this arrangement.
Capacity of each parent and other persons to provide for the child’s needs, including emotional and intellectual needs
This is the central issue in these proceedings. There are serious concerns raised by each of the parents and the family consultant about the mother and father’s capacity to provide for the children’s safety and emotional needs. The father makes serious allegations generally about the care provided by the mother and her parental capacity, particular in relation to physical and/or emotional neglect in her care.
The family consultant also expresses some significant concerns about the mother’s capacity but indicates that “much will depend on the Court’s evaluation of the credibility of each of the parents”. The Court has not been able to make any assessments about credibility. It is therefore not possible in a limited application of this kind to make findings in relation to parental capacity.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Similarly, I am not able to findings at this stage in relation to each of the parents’ attitude to the children. However, I have some concerns for the reasons given earlier in relation to the father’s attitude towards his responsibility as a parent arising from the way this application came before the Court and his unilateral withholding of the children from their mother for a period of six weeks.
Family violence
Each of the parents makes allegations of family violence perpetrated by the other parent to which the children have been exposed. There is also unclear evidence concerning the current status of Apprehended Violence Orders.
Whether it is preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
On this short-term interim basis when, as I have indicated, I will be in a position to give more attention to the interim application in the new year, this is a matter of significance. Of particular concern is the unilateral action taken by the father on the basis of complaints that have at all times been central in this case and which to his knowledge require determination at a final and fully contested hearing. In my view there is a real risk that if the status quo were to continue the father may unilaterally retain the children again. There is also some risk that as a result of the father’s action the mother may also act in a similar manner.
During the hearing the father sought an order that the children spend time with him overnight over Christmas. For the reasons discussed, in my view there is a real risk that the father may retain the children, a situation which would exacerbated by the closure of the Court during this period.
Any other fact or circumstance
The introduction of spending time with one of the parents in a supervised setting for a short period of time in my view is likely to introduce confusion in the minds of the children and another change in their lives.
Conclusion
These Reasons relate to the short term suspension of the children’s time with the father in circumstances where I am not satisfied that there is an unacceptable risk of harm to the children in their mother’s care and where the father was not in my view justified in withholding the children from their mother for a period of six weeks. In light of his earlier attempted application to significantly reduce the children’s time with their mother which was not pursued as directed and his delay in bringing an Application in a Case (which significantly appears to have occurred after he notified Centrelink that the children were in his care) raise real risks that he may remove the children from their mother’s care again if he believes that it is justified notwithstanding Court orders. The children are currently enduring a complicated parenting regime which has some features which are not child-focussed in circumstances where the parties are in significant conflict. A suspension of orders in these circumstances until more complete consideration of the interim application is in the best interests of the children.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 14 January 2016.
Legal Associate:
Date: 14 January 2016
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