Phelan & Phelan
[2022] FedCFamC1F 94
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Phelan & Phelan [2022] FedCFamC1F 94
File number(s): NCC 1548 of 2020 Judgment of: CLEARY J Date of judgment: 4 March 2022 Catchwords: FAMILY LAW – PARENTING – Where there are competing applications for parenting orders for two children aged eight and five – Where the mother moved with the children without notice to the father to live in Victoria – Where interim orders were made for the mother to return to NSW – Where the mother made allegations of historical acts of family violence perpetrated by the father against her – Where the mother obtained an Apprehended Domestic Violence Order during the marriage – Where the father denied any and all allegations of physical violence – Where the Court cannot make findings that the allegations of assaults and abuse of the mother by the father have occurred on the assertion of the mother alone – Where the mother alleges that she saw the father sexually assault the children on more than one occasion – Where the mother did not raise complaint with the father or any third party through the marriage – Where the elder child was repeatedly interviewed by authorities and an unqualified person – Where the father denied any and all allegations of sexual misconduct – Where by date of trial the mother alleged that she no longer regarded the father’s acts as sexual abuse – Where the children have meaningful, loving, warm and affectionate relationships with each parent – Where a change of residence for the children would require some adjustment – Where the mother agreed for the father to have sole parental responsibility in respect of medical and psychological treatment for the children – Ordered that the father have sole parental responsibility and residence with the mother to spend defined time with the children. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 180 Date of hearing: 9-11 February 2022 Place: Newcastle Counsel for the Applicant: Mr Willoughby Solicitor for the Applicant: Hannaway Lawyers Counsel for the Respondent: Mr Allen Solicitor for the Respondent: Women’s Legal Service NSW Counsel for the Independent Children’s Lawyer: Mr Boyd Solicitor for the Independent Children’s Lawyer: Sharon Moore Solicitor ORDERS
NCC 1548 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PHELAN
Applicant
AND: MS PHELAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
4 MARCH 2022
THE COURT ORDERS THAT:
1.That all prior parenting orders made in relation to X “X” born 2013 and Y “Y” born 2016, together known as “the children” are discharged.
Parental responsibility
2.That the father have sole and exclusive parental responsibility for long term decisions about the welfare of the children including, but not limited to, medical treatment/ specialist advice and education.
3.Prior to making a long term decision the father shall:
(a)Advise the mother of the issue to be decided and the decision he is contemplating;
(b)Invite the mother to express any views she may have within a defined period;
(c)Consider the views of the mother if provided in a timely way;
(d)Advise the mother of the decision he has taken.
4.In the event that the father decides to have X independently re-assessed with regard to Autism Spectrum Disorder the father shall:
(a)Advise the mother of the agency appointed by him to conduct the assessment;
(b)Advise the nominated agency of the contact details he has for the mother;
(c)Request the nominated agency to include the mother in the assessment and to keep her advised of outcomes.
5.In the event that the father decides to have the children assessed by a paediatrician in respect of their overall health, the father shall:
(a)Obtain a referral to a paediatrician;
(b)Advise the mother of the name of the paediatrician to whom the children have been referred;
(c)Advise the paediatrician of the contact details for the mother;
(d)Request the paediatrician to seek relevant information from the mother about:
(i)Food intolerances thought to have been suffered by the children;
(ii)Sleep apnoea said to be suffered by Y;
(iii)The name and contact details of any dietitian, ENT specialist, or any other medical practitioners involved in diagnosis and recommendations for management of the children’s health.
6.In the event that the father decides to engage a psychologist to provide therapeutic services for the children the father shall:
(a)Provide contact details for the mother to the psychologist;
(b)Request that the therapist invite the mother to engage in that therapy for the children if the mother wishes to do so.
7.The mother shall forthwith deliver the children’s passports to her solicitor for delivery to the father, or provide the passports to the father directly if she prefers, and the father shall thereafter retain the passports; subject to any agreement in writing between the parties as to overseas travel by the mother with the children or further order of the Court.
Residence
8.That the children shall live with the father commencing Friday 4 March 2022.
9.That the father is restrained from establishing a residence for the children outside the area of D Town without the prior written consent of the mother or further order of the Court.
Time and Communication
10.That the mother shall spend time with the children unless otherwise agreed by the parents in writing as follows:
10.1During Term One 2022, commencing on 11 March 2022, on each alternate weekend from after school Friday [or 3.00 pm if not a school day] until 4.00 pm on Sunday;
10.2And thereafter, commencing in Term Two 2022 from after school Friday [or 3.00 pm if not a school day] until before school Monday;
10.3The changeover place shall be at school, in accordance with these orders, and at other times as agreed, but in default of agreement E Street McDonald’s, D Town;
10.4During the school holidays following Terms 1, 2 and 3 of each year, from 9.00 am on the middle Sunday until 9.00 am on the following Sunday, commencing in the holiday following Term 2, 2022;
10.5During the Christmas school holiday periods in each year, from 12.00 pm on 14 January until 12.00 pm on 28 January;
10.6During school holiday spend time periods, the children shall communicate with the parent with whom they are not spending time, at a frequency of once per week;
10.7In even numbered years, from 2.00 pm on Christmas Day until 2.00 pm on 29 December;
10.8In odd numbered years, from 2.00 pm on 23 December or otherwise from the conclusion of the last day of school until 2.00 pm on Christmas Day;
10.9If the children are with the mother pursuant to these orders, then on the children’s and the father’s birthdays, the children shall spend time with the father from after school until 6.00 pm if on a school day, and from 12.00 pm until 6.00 pm if on a non-school day;
10.10If the children are with the father pursuant to these orders, then on the children’s and the mother’s birthdays, the children shall spend time with the mother from after school until 6.00 pm if on a school day, and from 12.00 pm until 6.00 pm if on a non-school day;
10.11The children shall be with the father on the Father’s Day weekend from 6.00 pm on the Saturday until the commencement of school on the following Monday, and with the mother on the Mother’s Day weekend from 6.00 pm on the Saturday until the commencement of school on the following Monday.
Restraints
11.The parties are restrained from criticising or making derogatory statements about one another in the presence or hearing of the children or permitting the children to remain in the presence of any third party who is doing so.
12.That the mother is restrained from permitting the children to spend time or communicate with Ms F for any reason.
13.Pursuant to Section 68B of the Family Law Act 1975 (Cth) the mother is restrained, without the prior written consent of the father, from presenting the children, or either of them, to any medical practitioner and to any therapeutic provider other than in the event of an emergency.
14.Each party shall notify the other party as soon as possible if a child becomes ill and has to see a doctor or other health professional, or is admitted to hospital and each shall provide relevant medical practitioners with all consents necessary for the other party to be present and discuss the child’s medical condition and treatment with that medical practitioner.
15.The parents shall keep each other informed of their telephone numbers, residential addresses and e-mail addresses, and shall notify each other within 24 hours of any change.
16.Each party is at liberty to attend the said children’s school for the purpose of any function or activity to which parents are invited.
17.In the event that either of the children makes a disclosure to the mother which the mother considers ought to be reported to a child welfare authority and/or to police the mother shall notify the father of the content and circumstances of the disclosure, and consider his response before making the report.
18.The father may provide a copy of these reasons to the principal of the children’s schools only if he considers it is necessary and in the best interests of the children to do so.
19.The father may provide a copy of these orders and reasons together with the expert report of Dr G dated 25 June 2021, to any psychologist engaged by the father to provide therapeutic services to the children.
20.The father may provide a copy of these orders and reasons to police in NSW and Victoria if it becomes necessary to do so.
Independent Childrens Lawyer (“ICL”)
21.The ICL shall provide a copy of these orders to the principal of H School.
22.That the ICL, together with the Child Court Expert if available, at a time mutually convenient to each of them and the father, shall explain these orders to the children and answer any relevant questions which the children or either of them may have.
Orders to be provided to Secretary DCJ
23.That a Senior Judicial Registrar shall provide a copy of these orders and reasons to:
(a)Secretary of Department of Communities and Justice NSW;
(b)Department of Families Fairness and Housing Victoria.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Phelan & Phelan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CLEARY J
INTRODUCTION
These are competing applications for parenting orders by the parents of two children, X and Y, aged eight and five years respectively, at date of trial.
The children currently live with the mother and spend five nights per fortnight with the father in accordance with current operative interim orders.
THE PARTIES
The Applicant Father
The father is aged 40 years. He lives in the parties’ former matrimonial home in D Town.
The father is an allied health professional. He reduced his work to four days per week after the first child was born and has continued in that arrangement.
The father has a partner of about 12 months standing. They do not live together but anticipate doing so. The father has introduced his partner to the children and they are said to enjoy her company.
The household of the father presently consists of himself and, for five days per fortnight, the two children.
The Respondent Mother
The mother is aged 38 years. She has lived in a rented three bedroom detached house in D Town since returning to NSW in December 2020 after a period of living in C Town Victoria with the children for about seven months post separation.
The mother is a qualified educator although she no longer works in that occupation. The mother has been self-employed as a consultant since approximately 2015. She is considering a return to education and or consulting now that the younger child has started school.
The mother has a partner of about twelve months standing whom the children have met and are comfortable with.
The household of the mother consists of herself and, for nine days per fortnight, the two children.
THE TRIAL
The trial had been allocated three days commencing 9 February 2021.
The parties were represented by solicitor and counsel.
The Independent Children’s Lawyer (“ICL”) had briefed counsel.
The trial concluded within the allocated time.
THE APPLICATIONS
The Applicant Father
The father proposes that he have sole parental responsibility for the children and that they live with him.[1] That position has not changed since his initial application in 2020.
[1] Further Amended Initiating Application of the father filed 14/11/2021.
Orders for time and communication with the mother were proposed in the alternative:
(1)If the Court finds that the mother poses a risk of unacceptable harm to the children either, no time with the mother, or supervised time only.
OR
(2)If the Court finds that the mother does not pose such a risk then substantial time [alternate three night weekends, one midweek night per fortnight, half school holidays, special times];
(3)Specific issues around communication and restraints on conduct.
During the course of the trial, after the cross-examination of the mother, the father changed his position with respect to time and communication for the children with the mother. He proposed in a Minute of Order[2] supervised time:
·Until the end of 2022, on both days of one weekend per calendar month for six hours each day;
·Thereafter as agreed between the parties with the father to have absolute discretion over when and if supervision would be dispensed with in future;
·At such other and or additional times, if any, including weekends and holiday periods as are agreed between the parties in writing.
OR
·If the Court did not consider that supervision was necessary then alternate weekends and school holiday time in terms substantially similar to his Amended Application.
[2] Exhibit 22.
The Court infers from this shift in position three things:
(i)That the father no longer held the view that there should be no time and communication at all for the children with the mother;
(ii)That the father by then held the view that unsupervised time would put the children at risk of emotional and psychological harm;
(iii)That the Court may not consider supervision to be necessary.
The Respondent Mother
From 21 December 2021 the mother proposed that the parents have equal shared parental responsibility and that the children live week about with each parent.[3]
[3] Amended Response of the mother filed 21/12/2021.
Other than a two week block of time during Christmas holidays and some special times the week about arrangement to apply all year.
There was also extensive provision for communication between parents and by children with parents and other specific issues.
This proposal was a very significant shift away from the position which the mother had held from June 2020 until December 2021. That previous proposal had been that the mother have sole parental responsibility and that the children live with her in C Town.[4]
[4] Response of the mother filed 28/06/2020.
Time and communication for the children with the father was in the alternative:
·If children found to be at risk of serious harm in the father’s care then the father travel to Victoria four times per year for supervised contact in a centre. Telephone communication as directed by the mother;
OR
·If the father was found not to represent a risk of serious harm to the children then four days of each Victorian school holiday period and half school holidays after Y turned five.
The shift in the position of the mother was much more than an adjustment of orders sought. It was, at least on the face of it, an acknowledgement that the children were not at risk of harm in any way in the care of the father. It was also an expression of confidence that the parents could work together as equal decision makers in the best interests of the children.
Superficially the ambit of the dispute between the parties had greatly reduced.
The evidence of the mother in her affidavit and in the witness box contained contradictions which did not entirely support such a conclusion.
The Independent Children’s Lawyer
At the commencement of trial the ICL expressed the view that the children should move to live with the father and that he should have sole parental responsibility for them. There was no settled view on time and communication.
After the evidence and prior to submissions the ICL tendered a proposed Minute of Orders.[5]
[5] Exhibit 21.
The ICL proposed:
·That the father have sole parental responsibility with a structure for consultation with the mother prior to the father making final decisions;
·That the children live with the father;
·That the children spend time with the mother during school terms on two night alternate weekends and for four hours each Wednesday afternoon;
·Half school holidays and other special occasions;
·A restraint on the father leaving the area of D Town without consent of the mother;
·Liberty for the mother to engage with the children’s school and school activities;
·Restraints on parental conduct;
·A restraint on the children having any contact with Ms F;
·A method for the father being made aware of the content of any disclosure to a child welfare authority before it is made by the mother.
HISTORY OF RELEVANT EVENTS
In 2008 the parties, then aged in their mid-twenties, met in the United Kingdom while both were on a two-year working holiday and soon after began living together.
In November 2009 they returned to Australia together, at first living in C Town Victoria with the maternal great-grandmother, later moving to Melbourne.
In 2012 the parties married.
In 2013 the first subject child X was born.
In June 2014 the parties moved from Melbourne to D Town NSW where they bought a house together. It became apparent during the trial that the mother has harboured regret over agreeing to leave Victoria where most of her family of origin live.
In November 2015 the paternal grandparents retired and moved to live in D Town.
In 2016 the younger child Y was born. The father took four weeks off work. The paternal grandmother was able to provide assistance with both children.
By November 2018 the parties were exchanging texts of complaint with each other. The father indicating that the “parties may need to separate”. The mother did not agree, she suggested that they could be kinder to each other.
Throughout 2019 the mother was working in her business and regularly travelling to regional areas, with the children being cared for by the father, assisted by the paternal grandmother.
On 10 March 2019 the father advised the mother that he wished to separate from her and wanted her to move out of the house.
The ADVO – April 2019
In April 2019 the parties and children had a holiday in C Town. The mother discussed problems in her marriage with friends. She went further and applied for a provisional Apprehended Domestic Violence Order (“ADVO”) in K Town NSW. The mother was named as the protected person and the father as the defendant.
The mother told the father about the ADVO by telephone when he was waiting in Sydney for his connecting flight home to D Town. The father was surprised and shocked. He moved out of the family home to stay with his parents. The father denied any wrongdoing.
The mother apologised and explained that she had been “talked into it” by a family friend who was a police officer in Victoria. She made an attempt to have the ADVO revoked but it remained in force.
On 8 May 2019, apparently believing that the ADVO had been a mistake or error of judgment of the mother’s with no great significance, the father consented to an ADVO for 12 months on a without admissions basis. He thereafter lived for six weeks between his parents’ home and the former matrimonial home with the mother and the children. He then moved back into the former matrimonial home to live.
Separation of the parties – 4 February 2020
On 4 February 2020 an argument ensued between the parties in the presence of the paternal grandparents. The mother contacted the police who attended the former matrimonial home. No charges were laid. The father left the former matrimonial home with his parents. The relationship ended.
Following separation the children lived with the mother and spent time with the father on Thursdays and each alternate weekend which included overnight time on Saturday.
On 20 February 2020 the mother told her psychologist Ms L that she felt safe and that she was providing contact between the children and the father. She expressed no concern for the children’s safety at that time.
From 17 March 2020 the mother stopped face to face contact between the father and the children.
On 12 April 2020 the mother stopped all forms of communication between the father and the children. She alleged that the father had threatened to kill himself, the mother and the children. The father denies making any such threat.
On 22 April 2020 the mother attended J Family Services. A worker from that organisation contacted police to report a breach of the ADVO [of 1 May 2019]. It is unclear whether the report included information that the parties had resumed living together within six weeks of the order being made. The police reported that the mother was seeking assistance to take out an ADVO to restrict the father’s access to the children.[6] Significantly, when asked for the reason to restrict access to the children, the mother “could not specify one, except that her solicitor had suggested it.” The mother told of a statement said to have been made by the father at separation in February 2020, “If I can’t have the kids, you can’t either”.
[6] Exhibit 9.
The police inferred that the mother had seen this statement as a threat. The father had had regular contact since separation without any harm to the children. Police concluded that there were no grounds for an application for another ADVO or an extension of the existing ADVO and declined to apply.
In the Court’s view this interview had been an opportunity for the mother to raise allegations of the misconduct included in her affidavits in these proceedings. She was at that time supported by a caseworker, there was a current ADVO in place, and the police asked the mother for information.
Either the mother did not have any genuine complaint to make, or for a reason which is unclear on the evidence, she did have one, but chose not to speak.
First allegation of sexual misconduct by father
Five days later on 27 April 2020 the mother rang the hotline operated by the Department of Communities and Justice (“DCJ”) and alleged sexual misconduct by the father for the first time.
On 30 April 2020 the mother attended D Town Police Station and reported sexual abuse of the children.
On 1 May 2020 the mother made her application to vary the ADVO. It was a private application by her, not by police, returnable on 20 May 2020.
First interview of X – 6 May 2020
On 6 May 2020 X was interviewed by D Town Child Abuse Squad. The investigation was closed after an interview with X which contained confident statements by the child of safety and happiness and no complaints.
The mother told police after the interview had concluded and the investigation closed that she believed X had not been truthful. She wanted to see the interview. That request was declined. The mother was not reassured by the interview and did not step back.
Soon after the mother travelled with the children to Victoria. They lived in a Refuge, then moved into accommodation provided to the mother as a victim of domestic violence.
The mother gave evidence during this trial, that she had not intended to stay in Victoria, it had always been a planned holiday but she had been held back by Covid-19 travel restrictions. That assertion is inconsistent with the mother’s position, which she maintained until two months prior to trial, that she would live in Victoria with the children.
Initiating Application by father
On 15 May 2020 the father commenced these proceedings in what was then known as the Federal Circuit Court [FCC].
On 28 June 2020 the mother filed her Response and a Notice of Risk which raised allegations of sexual, verbal, physical and emotional abuse of the children and herself by the father.
On 30 June 2020 the application was promptly transferred to the Family Court of Australia for consideration of inclusion in the Magellan Protocol due to allegations raised by the mother of sexual abuse by the father of X.
Second interview of X – 30 July 2020
On 30 July 2020 Ms F set up a Zoom interview with X in Victoria.
Ms F is an occupational therapist .She had been involved with X and both parents since 2017. She was a contributor in the assessment, years prior, of X as being on the Autism Spectrum.
There is no suggestion of Ms F having any training or knowledge of interviewing children in the context of possible sexual assault.
Ms F told the child that the police had come to her house in D Town because her father had hurt her mother and also that she, Ms F, knew that maybe her father had done things to her and her brother that was “not ok”.
X whispered complaints about her father into the telephone.
Ms F then told the child that the police were going to talk to her about her Daddy.
Ms F asked the child if she could tell the police what X had just told Ms F. The child said no. Ms F offered to tell the police on X’s behalf and the child agreed.
Third interview of X – 3 August 2020
On 3 August 2020 Ms F set up another Zoom interview with X. She asked X to confirm that she wanted Ms F to tell the police what X had said last time. She pressed for more information about things that might have happened to her and to Y. The child was non-committal and asked for her mother to come back into the room.
Fourth interview of X – 23 September 2020
On 23 September 2020 X was again interviewed about possible sexual assault of her by the father, this time by a SOCIT team in Victoria. The Child Court Expert (“CCE”) viewed the interview and noted, “X began her interview stating that she was there to tell the police about the bad things that the father had done to her, without any prompting or questioning by the police officer”.[7] She arrived with a piece of paper on which she had written “all the bad things Daddy had done to her”.
[7] Family Report dated 25/06/2021, para 282.
The change in X which occurred over the five months since her first interview in NSW must be attributable to X being encouraged to think about bad things her father might have done and to report them. Only the mother or an associate of the mother could have provided that encouragement. Ms F certainly appears to have played a direct role in this way.
The Court can easily conclude that the actions of Ms F thoroughly contaminated the police interview which followed and at least partly explain why X arrived with a written list of complaints about her father for police.
In her oral evidence the mother said she had not known that Ms F would question the child in this way. The Court is not in a position to make a finding about that. There is however no explanation for why the two Zoom interviews with X were facilitated by the mother. There is at least a possibility that the mother told Ms F about X’s first interview without disclosures, and hoped Ms F would step in to help.
The mother stated that she had made a formal complaint about Ms F when she found out about the questioning. There was a call for the complaint. The documents produced were a copy of an online complaint to HPCA [Health Professional Councils Authority].[8]
[8] Exhibit 12.
The document had been forwarded on 13 March 2021 to the mother by a person [Ms M] who worked for the Centre Against Violence [CAV]. Ms M had filled in the form on behalf of the mother, complaining on behalf of X, that Ms F had questioned X about suspected sexual abuse allegations. The complaint was undated and there was no evidence of receipt or response by the authority.
The Court cannot infer anything from the complaint document about the mother’s knowledge of, or attitude to, Ms F’s actions.
Orders – 2 October 2020
On 2 October 2020 procedural and other orders were made:
·Imposing restraints on the parents taking any long term decision about the children without the written consent of the other; discussing the proceedings with the children; and on the mother from questioning the children.
A date for an interim hearing was allocated.
The Court noted on the orders that the mother had arranged therapeutic counselling for the children in Victoria and did not wish to tell the father the name of the therapist.
Consent Orders – 13 November 2020
On 13 November 2020 the interim hearing was deferred for a short period. Interim orders were made by consent for:
·The parents to have equal shared responsibility for the children;
·The mother to re-establish a residence for the children in the D Town area with the timing [of return] to be defined;
·The father shall spend time with the children unsupervised at times to be defined.
The mother consenting to these orders is of real significance. She was asserting by her consent that in her view the parties could cooperate together as parents making decisions, that the children should restore their relationship with the father and that the father did not represent risk of harm to them.
Orders of 19 November 2020 (amended 20 November 2020)
Orders were made and reasons given by the Court defining substantial and significant time for the children with the father, and for communication. There were restraints on conduct and on allowing the children to be brought in contact with Ms F.
On 5 December 2020 the mother and the children returned to live in D Town and the children’s contact with the father resumed.
On 20 December 2020 the mother’s private application for an ADVO in NSW was withdrawn and dismissed.
On 24 December 2020 Victorian Police applied for an Intervention Order on behalf of the mother against the father.
Early in 2021 each parent formed a new relationship with their current partners.
On 8 February 2021 the Victorian Intervention Order was withdrawn with consent of police.
On 25 February 2021 this matter was declassified from the Magellan Protocol.
On 2 July 2021 the parties were divorced.
THE ISSUES
Parental responsibility
Should the parents share parental responsibility?
At the outset of the trial the mother conceded through her counsel that the father should have sole parental responsibility for decisions about the health and medical treatment of the children. In that context the mother specifically agreed that there should be an independent assessment of X in respect of Autism Spectrum Disorder.
It is to the credit of the mother to have made that concession.
There had been issues in dispute involving the health and treatment of the children which can now be readily addressed:
·Whether the children suffer from food intolerances which require a modified diet and in the case of Y sleep apnoea as the mother alleges?
·Was the assessment of X as being on the Autism Spectrum sufficiently independent for the outcome to be reliable?
Family violence
Has the mother been assaulted by the father physically and sexually as she alleges?
The mother alleges, and the father comprehensively denies, that between 2013 and 2019 the father raped her on five separate occasions. The mother made a complaint to police in Victoria. During cross-examination the mother said she had not withdrawn the complaint but did not intend to proceed with it.
The mother gave evidence[9] that she felt uncomfortable being physically close to the father after her return to D Town. Her next sentence was “I have undertaken trauma therapy through my psychologist to help overcome this and now I feel safe from physical violence from Mr Phelan”.
[9] Affidavit of the mother filed 21/12/2021, para 24.
If the father was a violent offender, who had abused the mother it is difficult to see how therapy could make the mother feel safe. This must logically be about perception and re-interpretation of events.
Have the children been exposed to family violence including sexually abusive conduct of the father as alleged by the mother?
The mother alleged that she saw the father sexually assault the children on more than one occasion. For example, she told of an incident where she watched the father rub his erect penis against the nappy of the younger child for three minutes. She did nothing at the time and made no report to anyone subsequently.
The incredulity in the voice of counsel for the father was discernible as he said “You watched that for three minutes?” It is an improbable set of circumstances.
During cross-examination the mother said that as a result of therapy she had come to see these events through “a different lens” and no longer regarded them as sexual abuse. That is consistent with the mother’s current position that the children are not at risk with the father, but raises the spectre of ambivalence and future ambiguity of perception.
Have the children been harmed by the conduct of the mother removing them to Victoria without notice, having the elder child repeatedly interviewed by authorities and also interviewed by a person without qualifications to do so?
The children felt the loss of their father in 2020. On reunion Y ran to the father and jumped into his arms, X took his hand and was content to get into his car.
It is difficult to know the impact of the children’s experiences. X told the CCE that she did not see her father for part of the previous year [2020]. When asked why, she said “Because we went on holiday”. The CCE observed X to look uncomfortable at that point “and her enthusiasm for answering questions diminished significantly.”[10] She stated she could not remember a lot of what had happened.
[10] Family Report dated 25/06/2021, para 250.
The mother reported that Y needed counselling and cried at the prospect of separation from her. The expert did not perceive the need for intervention for Y, including therapy, at the time of interview.[11]
[11] Family Report dated 25/06/2021, para 272.
How the children spent their time in Victoria, what was said to them and asked of them is fully known only by the mother. The ways in which they have been impacted will likely emerge over time .
EVIDENCE
The documents relied on were as follows:
The Applicant Father – Mr Phelan
(a)Further Amended Initiating Application filed 14/11/2021;
(b)Notice of Risk filed 15/05/2020;
(c)Affidavit of father filed 25/01/2022;
(d)Affidavit of Ms B Phelan, the paternal grandmother, filed 21/12/2021;
(e)Notice to Admit Facts filed 25/01/2022;
The Respondent Mother – Ms Phelan
(f)Further Amended Response to Initiating Application filed 21/12/2021;
(g)Affidavit of the mother filed 21/12/2021;
(h)Notice Disputing a Fact or Document filed 8/02/2022 in response to Notice to Admit Facts filed;
Reports
(i)Family Report by Dr G dated 25/06/2021;
(j)Magellan Report dated 22/09/2020.
THE LAW
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
(a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b)Children are protected from physical and psychological harm;
(c)Children receive adequate and proper parenting to help them achieve their full potential; and
(d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.
Parental Responsibility
Do the parties have the capacity and willingness to share parental responsibility equally?
The parties have the ability to share parental responsibility but not the capacity to do so.
The father does not trust the mother. This mistrust arises in part from the mother having retrospectively alleged that he had sexually assaulted her, raped her, forced her to watch a sexual act involving himself and another adult, and been the perpetrator of sexual abuse of the children and of family violence although no complaint had been raised with him or any third party throughout the marriage. The mother removed the children without notice and lived with them in Victoria resistant to the father having contact with them for nine months in 2020.
It must be the case that the mother either does not trust the father or has behaved consistently with being mistrustful. Her trial affidavit repeated allegations of sexual assaults on her by the father between 2013 and 2019 and sexualised behaviour by the father towards the children.[12] As an explanation of her radical change in proposal the mother said:[13]
[85.]I reported these events to the police who then referred us to the JIRT Joint Response Team of DCJ and Community Health because I was legitimately concerned for the safety and welfare of my children.
[86.]I stand by these reports. However, I accept that the reports have been investigated by the police and that neither DCJ or the Police decided to take any further action. I accept that this was the outcome.
[87.]I do not have any current concerns for the children’s safety when they are in [Mr Phelan]’s care.
[12] Affidavit of the mother filed 21/12/2021, para 79.
[13] Affidavit of the mother filed 21/12/2021, paras 85-87.
The Court accepts that the mother has come to terms with the outcome of police and welfare investigations into her complaints raised about the children but the words, “I stand by these reports”, strongly implies that the mother is unconvinced by the outcome. The mother has the right to hold that view but the implications for the parental relationship are mistrust and watchfulness.
In April 2021 the mother commented to her psychologist, four months after consenting to unsupervised time, “Overwhelming. So upset to have to send the kids to a pedophile (sic) rapist”.[14]
[14] Exhibit 11, page 21.
In those circumstances the Court considers that the father should have sole parental responsibility with a mechanism for consultation with the mother. Such an arrangement does not require trust or consensus but enables both perspectives on the needs of the children.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The observations of the CCE[15] confirm that both children have meaningful, loving, warm and affectionate relationships with each parent.
[15] Family Report dated 25/06/2021, paras 273-281.
The CCE had no worries or concerns about the children’s interactions with the parents, paternal grandparents or maternal family members.
The warm, trusting, bond between the children and both parents has significance in two ways. First, the confronting allegations made by the mother since separation about the father’s treatment of the children are inconsistent with the emotionally stable and happy children on display in the report interviews.
Second, and even more important, is in the best interest of the children to sustain those bonds if that can be safely achieved.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
The mother’s past decision making without reference to the father disrupted the children’s family relationships, and education and exposed X to four enquiries into the possibility of sexual assault by her father.
The second and third interviews were conducted by Ms F. From mid-2019 the mother began confiding in Ms F that she [the mother] was “starting to understand that the father’s behaviours in the home were consistent with domestic violence”.
In January 2020 the mother disclosed “an abusive relationship with the father” to Y’s paediatrician Dr N.
On 3 February 2020 the mother told Ms F that the parents had separated, were taking turns looking after the children and that “the father was threatening to have her declared as an unfit mother”.
On 16 March 2020 the mother reported to Dr N “that the father had been violent, there was a police order against him and he had moved out”. Characterising yelling as violence, all three of those assertions by the mother were factual. This is however an example of the mother not telling the whole story in context.
The evidence before me is that the parties had been arguing loudly and often before separation, there had been an ADVO in operation for 11 months but for all but the first few weeks the parties had been living together in the home and after a final argument, which led to accidental injury, the father chose to leave the home and remain away.
The mother had created by her statement a picture of immediate danger and contemporary police action to procure a protective order for her. That was not the case.
It may be that the mother was making these statements to Dr N to encourage her to act on the mother’s behalf or simply to create a record of reports for the future.
In her interview with the CCE the mother reported concerns to her of “the father bending the boundaries with respect to sexual abuse”.[16]
[16] Family Report dated 25/06/2021, para 168.
She reported that the father would touch other children on the bottom and do tricks with his penis in front of the children and the mother, which included standing up, wobbling his penis from side to side. The mother agreed that no-one would be able to corroborate his behaviour as no-one else other than the mother and the children had been exposed to this behaviour. As a result of the father reportedly bending sexual boundaries, the mother is seeking for the children to have education regarding protective behaviours.
The mother had not reported this bending of sexual boundaries to police or community services prior to separation. That was her choice to make. The Court infers that whatever the father was doing his behaviour was not concerning to the mother as a risk of harm to the children which called for intervention.
Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Both children, then aged seven and four years, expressed a view to the CCE that they wanted things to stay the way they were (in mid-2021). This could be a reference to seeing both parents regularly in a nine day/five day fortnightly pattern, being back in D Town, seeing friends and paternal family. In any event both parents propose change to the current arrangements for the children.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
Counsel for the ICL submitted that the children would benefit from maintaining relationships with maternal family in Victoria. Although there was no evidence from any maternal family member, both the maternal grandmother and maternal great-grandmother participated in interviews for the Family Report and revealed longstanding love and commitment for the subject children and the mother.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The change of residence to living mostly with the father will be an adjustment for the children to make. The reduction of time with the mother will affect them, but in combination with holiday time, will enable them to maintain the relationship.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Both parents are intelligent, well educated, hardworking people. Each is capable of meeting the needs of the children.
The Court concludes that the overwhelming desire of the mother go home to Victoria and to keep the children there away from the father, was a misguided or disturbed course of action which did not meet the children’s needs for emotional and psychological stability. X in particular was put under pressure to meet the mother’s need to prove wrongdoing by the father. That the mother was guided by the advice of third parties is neither a complete explanation nor an exoneration of the mother.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
X is an eight year old girl who has been assessed as being on the Autism Spectrum. The father has been doubtful about the validity of that assessment and his doubt has been amplified by information from X’s teachers. A re-assessment should bring certainty to the issue.
X is apparently a strong willed child. The mother has at times acceded to X’s wishes especially on the subject of getting out of the car and going into school. In the past the mother has simply taken her home again although that has become less frequent.
In his updating Proof of Evidence[17] the father referred to an incident on 15 December 2021. He took the children for a walk to look at Christmas lights. X was not ready to go home and when she was taken home over objection said to the father “you can’t force me to come home” and “let me go or I’ll call the police”. Later that night she apologised to her father.
[17] Exhibit 3.
Y, younger and less involved in reports to police has been less impacted by events although he cried and asked not to leave his father on the first few periods of time spent after return to NSW.
If the child is an Aboriginal child or a Torres Strait Islander child
The father is Aboriginal by descent but has chosen not to take up that identity. The children do not identify as Aboriginal and may be unaware of that ancestry.
Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
An examination of the mother’s allegations of violence and her conduct in relation to the obtaining and use of protective orders is informative for the reasons which follow.
The Court concludes that the mother does not go about things in a direct and forthright manner. Rather, she proceeds by telling a friend or someone in authority what she is concerned about and relying on them to assist her or represent her in taking further steps. Objectively her conduct is manipulative but is consistent with the oral evidence she gave about not wanting people to be angry with her “so many people to keep happy because of their different agendas”.
In her trial affidavit the mother submits that the father was “violent and controlling in our relationship”.[18] She alleges in detail the father very often yelling at her up close, swearing at her and insulting her.[19] The father concedes yelling. His Notice of Risk filed 15 May 2020 defines relevant family violence as “adults yelling at each other”.
[18] Affidavit of the mother filed 21/12/2021, para 55.
[19] Affidavit of the mother filed 21/12/2021, paras 56-57.
Further, the mother alleged and the father denied that the father was controlling of her, directing what she and the children should wear and requiring her to “obtain his permission to go anywhere.”[20] This control was said to extend as from 2014 to directing the mother not to use her telephone at home or in the presence of the father. The mother alleged she was not permitted to access joint funds other than for groceries.
[20] Affidavit of the mother filed 21/12/2021, para 58.
I note that both parties were in paid employment: the father throughout the relationship; the mother for various periods of time. The mother had access to her own income as a teacher and later as a self-employed lactation consultant.
With respect to physical violence the mother alleged and the father denied that during the marriage the father hit and punched her, attempted to strangle her, pushed her down the stairs, threatened her with a fishing knife and kicked her. She stated that “sometimes the children were present”. The father is alleged to have kicked the mother in the back on the night of the parties’ wedding in March 2012.
Prior to the wedding, in May 2011, the mother alleges that the parties attended a music festival in City O with a named friend. The mother submits that the father “threatened me and was verbally abusive towards me. He locked [the friend] and I out of the house we were staying in”. The mother alleged that the father threw a glass bottle, hitting her on the head, leaving a bruise on her temple.[21] The friend was alleged to have been present during this incident.
[21] Affidavit of the mother filed 21/12/2021, para 64.
This person was not a witness in the mother’s case. There was no medical evidence of the injury. Police were not involved. Unusually, a Notice to Admit Facts was relied on by the father to which the mother responded. In respect of this incident and others, the mother responded to the assertion that there was no complaint to police and being because she was “embarrassed, afraid and ashamed”. That may be a truthful statement of the mother’s feelings about the relationship. The father has denied each allegation in detail. The mother asserts that abusive events did occur including sexual assault of her. There is no evidence of third parties such as police, doctors, hospitals, friends, family members or concerned third parties.
In the face of denial by the father the Court cannot find that assaults and abuse have occurred on the assertion of the mother alone.
The mother describes an incident when the elder child X was about two years old. This must refer to 2015/2016. The mother alleges that after she had taken X out of the bath, the father punched her [the mother] in the back causing her to fall sideways on to one knee and to cry. She alleges that both paternal grandparents were present and “saw what happened”. The paternal grandmother is reported to having said to the mother, “It was an accident, it won’t happen again” and “He didn’t mean it”.[22]
[22] Affidavit of the mother filed 21/12/2021, para 65.
The paternal grandmother provided an affidavit at trial and was cross-examined. She has known the mother since the parties began their relationship in 2009. It is uncontroversial that she has, at least since November 2015 when the paternal grandparents retired to D Town, very often cared for one or both children, at the request of the mother. Such an arrangement speaks of mutual trust and confidence.
When the parties attended counselling during their marriage, on two occasions the children stayed with the paternal grandparents for the weekend. The paternal grandparents assisted the father in September and October 2020 when the father had the care of the children when the mother was working overseas for two or three weeks and at other times for swimming lessons as an example.
In her affidavit [23] the paternal grandmother denied witnessing the father “behaving physically, violent or sexually indecent to the children or any other person”. In the witness box the paternal grandmother was asked if she was surprised by the history of family violence alleged by the mother. She responded “very, very surprised, very, very disappointed”.
[23] Affidavit of the paternal grandmother filed 21/12/2021, paras 20-21.
The Court accepts the evidence of the paternal grandmother that despite those feelings she would be civil to the mother in future “for my grandchildren, their welfare is my priority.”
Two things arise from the evidence of the paternal grandmother. First, for her to have seen the father punch the mother in the back causing her to fall while holding X is not, the Court concludes, something the paternal grandmother would overlook. The second relates to the mother applying for an ADVO on 22 April 2019. It is uncontroversial that the mother telephoned the paternal grandmother, having made that application, to say that she was sorry and she did not realise the implications of what she had done by obtaining the ADVO. The mother explained, in the same terms as she did to the father, that her friend in K Town had arranged for the mother to speak to another friend who was a police officer in Victoria and that this person “convinced her to take out an ADVO in case things escalated in future.”
The paternal grandmother described the mother as tearful on the telephone as she said she would try and withdraw the ADVO. At the time of that call the father was living with his parents. Subsequently the father returned to the family home, he says at the request of the mother.
The paternal grandmother stated her understanding that the parties had reconciled when the father returned to the family home.
In her trial affidavit the mother describes it this way, “Mr Phelan moved into his parents’ place for 6 weeks. He then moved back into the family home and excluded me from the home and the children as often as possible. He frequently took the children away from the home without me.”[24]
[24] Affidavit of the mother filed 21/12/2021, para 91.
The events around the ADVO do not sit comfortably with the mother being a victim of family violence. Her evidence is that after the friendly advice of the police officer from C Town she attended K Town police station on 22 April 2019 “to report Mr Phelan’s violence”.[25] She asserts that “… police applied for an ADVO against Mr Phelan for my protection, despite my asking them not to”. [Court’s emphasis]
[25] Affidavit of the mother filed 21/12/2021, para 89.
This had been an opportunity for the mother to report alleged violence and leave the relationship if she wished to do so. A final ADVO was made by consent and without admissions on 8 May 2019 in D Town Local Court for one year. After six weeks the father had moved back into the home, if that had been against the mother’s wishes she could have reported the undoubted breach of the order to police at any time.
It seems probable that the father returned home on the basis that the ADVO was an unintended consequence of a misunderstanding as the mother had asserted to him and to his parents. It is improbable that he would return to the home in the certain knowledge that the mother did not want him there and would likely report the matter to police. Either the mother was deceptive when she gave the explanation she did about the ADVO or she was truthful but came to see a way to use the existence of the ADVO to cover her position when the parties came to separation on 4 February 2020.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
There is some risk that the mother will question the children about the father and events in his household and again draw conclusions about abuse. That is the risk that the supervision proposed by the father would obviate.
Limited supervised time with the mother has a real risk of causing emotional distress and the risk of emotional harm and psychological disturbance.
On balance, the possibility that the father may have to apply to the Court again in the first eventuality is outweighed by the inevitable harm of the second.
SUMMARY
An order is made for the father to have sole parental responsibility. The mother had conceded responsibility for medical and health decision making to the father. The parties presently agree that the children remain in their current school. The father is restrained from changing the area of residence without the consent of the mother. These are the main long term issues for the children.
With respect to any change of school, secondary education and in all other long term issues the father is to invite the mother to express her views and consider those views before coming to final decisions. There is no obligation for the father to explain or justify his decision, only to advise the mother of the decision taken.
The children shall move to live with the father and spend alternate weekends, half school holidays and other special times with the mother. To restrict and reduce their relationship with their mother would be punitive for the children. Damaging as it was for the mother to cut them off from the father for nine months, the children readily reconnected with him after reunion although X comes out with “I’ll call the police” when she feels annoyed with the father.
Their confidence in both parents would likely be severely shaken by moving to short periods of supervised time only. If that was the only way to ensure their safety and protect them from future exposure to emotional and psychological harm then the Court would take that course.
The Court is persuaded by the compliance by the mother with the interim orders that such an extreme measure is not now required.
Likewise, week about time would not deliver a strong sense of certainty about where their home is and that it is alright for them to be with their father. The father has reassured the children not questioned them, he has not denigrated the mother. He has complied with the interim orders. The best interests of the children are met by spending the majority of their time living with the father.
The mother might continue to report the children as victims of past family violence and sexual abuse by the father. The mother has no present intention to do so but the future is uncertain. The mother asserts that she has been diagnosed with anxiety. There was no affidavit from a current treating practitioner as to the mental health or goal of therapy for the mother or the role which anxiety may or may not have played in events over the past three years..
The mother has been reckless in her decision making, at least since she obtained a “precautionary” ADVO in April 2019. Her persistence in having X interviewed with a belief that complaints of sexual abuse/misconduct would eventually be forthcoming, has been harmful for the child.
However the mother has been compliant with current orders, for time spent, for more than a year. Both children enjoy close, loving, relationships with each parent and have settled back well into their school community. School reports are positive. There will no longer be any risk of the children being unreasonably subjected to medical interventions if that is what has occurred in the past.
There is no provision for mid-week contact. The children are moving from nine nights per fortnight with the mother, to two moving to three nights in one block on each alternate weekend. The children need to adjust to the father being their main carer. He has a firmer, more consistent approach to parenting. Mid-week contact for a few hours is likely to be unsettling.
There is no specific provision for telephone calls other than weekly during the Christmas school holidays. The children, especially Y, have felt uncertain about what they can say to the father on the telephone. In X’s case, telephone calls to her mother have left her unsettled and full of emotion about who she should be living with “we should do week about, we should do this all year, not just in holidays.”[26] In the event that the parents do not agree about telephone calls, none will take place.
[26] Exhibit 3, para 24.
The mother has experienced difficulty in getting the children, especially X, to school in the morning. The father has not. From the commencement of Term 2 the mother will be returning the children to school on Monday morning. In the event that the mother regularly gets the children to school on alternate Mondays, on time and without drama, it may be that the father at some future time proposes occasional mid-week time. That will be a matter for his discretion and the parties’ agreement if exercised.
There are restraints on conduct, uncontroversial specific issues and leave for the father to provide these orders and reasons to authorities in defined contexts.
Orders are made accordingly.
I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 4 March 2022
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