POLLOCK & BREEN-POLLOCK

[2014] FamCA 171

FAMILY COURT OF AUSTRALIA

POLLOCK & BREEN-POLLOCK [2014] FamCA 171

FAMILY LAW - CHILDREN – Interim parenting – Allegations of sexual abuse – Various contested matters to be dealt with at final hearing – Parties agree to trial interim orders – Some weight placed upon untested evidence of Chapter 15 expert – What time the children are to spend with the father on a trial basis

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

Goode & Goode [2006] FamCA 1346

APPLICANT: Mr Pollock

RESPONDENT: Ms Breen-Pollock

INDEPENDENT CHILDREN’S LAWYER: Ms Eldershaw

FILE NUMBER: PAC 3852 of 2013

DATE DELIVERED: 18 February 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 18 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cairns

SOLICITOR FOR THE APPLICANT: Platinum Lawyers

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT:	Broun Abrahams Burreket
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Eldershaw
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW

Orders

(1) By consent and pending further order, orders 1, 3, 4, 5 to 11 of the document titled “Mother’s Proposed Amended Minute of Order” be made as follows:

1.      That the children, [C] born on … 2007 and [K] born … 2008 (“the children”) shall live with the mother.

2.      [Not made].

3.That the time spent with the children pursuant to order 3 below shall occur in the presence of either of the paternal grandparents or the father’s sister, [Ms B], and overnight time shall occur at the home of the paternal grandparents.

4.      That the mother shall do all things to obtain a referral and make any appointment to attend upon [Ms D], Clinical Psychologist and shall continue to attend upon her as directed and required for the duration of these orders.

5.The Independent Children’s Lawyer shall be authorised to provide a copy of the Single Expert Report prepared by Dr [E] to [Ms D]

6.That the proceedings be adjourned for further mention at a date convenient to the Court in approximately August 2014.

7.That neither party will:

(a)Physically chastise or punish the children by locking them in a room.

(b)Permit any other person to physically chastise the children.

(c)Drink to excess and in this event will remove the children from any environment in which adults have consumed alcohol to excess.

(d)Provide alcohol to the children or permit any other person to do so.

8.(a)     That the parties will ensure the children will each be showered separately (not bathed) when in that party’s care.

(b)That the father will ensure the paternal grandmother or paternal aunt undertake the showering of the children when the children are in his care.

9.That for the purposes of changeover:

(a)The first three occasions will occur by the mother delivering the children to and collecting the children from the home of [Ms B].

(b)Thereafter, changeovers shall occur as follows:

(i)the mother will deliver the children to the father’s home at the commencement of the children’s time with the father; and

(ii)the father will deliver the children to the mother at McDonalds at [Suburb F] at the conclusion of his time.

10.That the paternal grandmother and the paternal grandfather each provide the following Undertakings to the Court:

(a)That I will be present during the time that [K] and [C] spend time with the father or to ensure that the other paternal grandparent is present.

(b)That I will ensure that [K] and [C] spend their overnight time with the father in my home.

(c)That I will ensure that [K] and [C] have their own bedroom shared together at my home with appropriate furniture and bedding that is separate to the bedroom occupied by the father.

(d)That I will not allow any discussion between [K], [C] and the father or any other person including myself, or in the presence or hearing of the children, of the abuse allegations made against the father, or any other matter raised in the family law proceedings between the parents.

(e)That I will inform the Independent Children’s Lawyer, the parties’ legal representatives and the Court if any concerns or issues arise during the children’s time with the father, such as the father not following directions or there being a concern about the children’s welfare with him.

(f)That I will shower each of the children separately as and when required when the children are in the care of the father.

11.The paternal aunt provides the following Undertakings to the Court whenever the children spend time with the father:

(a)That I will be present during the time that [K] and [C] spend time with the father.

(b)That I will not allow any discussion between [K], [C] and the father or any other person including myself, or in the presence or hearing of the children, of the abuse allegations made against the father, or any other matter raised in the family law proceedings between the parents.

(c)That I will inform the Independent Children’s Lawyer, the parties’ legal representatives and the Court if any concerns or issues arise during the children’s time with the father, such as the father not following directions or there being a concern about the children’s welfare with him.

(2) By consent, the parties are not to discuss with the children or allow discussion in the presence or hearing of the children of the abuse allegations made against the father or any other matter raised in the Family Law proceedings between the parties.

(3)    The children shall spend time with their father as follows:

(a)From the first weekend following the making of these orders and each week thereafter for a period of six weeks each Saturday from 8.00am to 8.00pm; and

(b)From the weekend immediately following the conclusion of the period referred to in order 3(a) and each alternate weekend thereafter from after school Friday until 4.00pm Sunday.

(4) Leave is granted to the Independent Children’s Lawyer to relist the matter if any issues arise.

Orders made in Chambers

(5) The proceedings be adjourned for further mention at 10.00am on 25 August 2014.

Notation in Chambers:

(6) The undertakings by the paternal grandparents and paternal aunt will be given by written undertakings being forwarded to the legal representatives of the father, and returned duly executed to my Associate and placed on the Court file.

(7)Amendments were made to the undertakings required by the paternal aunt to reflect that whilst she may supervise the children’s time with the father, overnight time will not occur at her home.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pollock & Breen-Pollock 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 3852 of 2013

Mr Pollock

Applicant

And

Ms Breen-Pollock

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction & Background

1.This matter concerns C, who is six and a half, and K, who is five, (“the children”).  The children’s parents were married in July 2006 and finally separated in August 2013 and are not yet divorced.  The separation occurred as against a background of some marital difficulties and the particular precipitating event appears to be allegations made by the mother that the father had sexually interfered with one of the children.  That allegation was broadly that the father had applied nappy cream to the child’s genitals in circumstances that were uncalled for and therefore amounted to inappropriate sexual conduct. 

2.As I understand it, the mother’s concerns and allegations in relation to sexual harm were added to over subsequent weeks or months, in that it appears she recalled events that she says had previously occurred and to which she subsequently attached significance.  Reports were made to and investigated by various agencies including the Department of Family and Community Services and the Joint Investigation Response Team (“JIRT”).  An Apprehended Violence Order was also applied for and variations applied for.  The mother and the children lived at one point in a refuge. 

3.Various people were involved from time to time as they had been informed about the allegations.  The allegations were not found to be substantiated by any of those agencies but, of course, that is not determinative of that issue for the purposes of the Court when it comes time to finally making an assessment about the sexual abuse issue. 

4.At all times that form of impropriety and conduct has been denied by the father who, as I understand it, has been quite distressed by the making of the allegations. 

5.Although there have been some other allegations, I have to say that they certainly are of a much less serious kind revolving around inappropriate discipline or possibly assault of the children by the father and also of the mother.

6.It remains that the central issue in this case is the mother’s accusation that both children have been sexually interfered with by the father.  In addition to those matters, there are not that many uncontested facts in this matter, but there certainly are some other relevant uncontested matters.  They include that the father appears to have been actively involved, when he was in a relationship with the mother, in the day-to-day parenting and care of the children.  It also seems to be beyond dispute that for a period after the separation there was some time during which the father did not see the children at all and, in fact, for a short time their whereabouts were unknown to him. 

7.Further, all of the time that the children have spent with their father since the parties’ separation has been supervised.  The time has been supervised by an agency to which the mother agreed, and that time has been spent in public places, essentially the children going on outings with their father to museums, the zoo and the like. 

8.There has been, it appears, some form of restrictions on, what you might call, the natural or normal behaviour that the father may ordinarily engage with his children.  It seems that also, although the mother did consent to the agency being involved, she has expressed some dissatisfaction with some aspects of that supervised time.

9.There is also no dispute that the children have now not seen their father for around about a month, and also that the entire family, including the grandparents, were interviewed by Dr E, a Child Psychiatrist, in December 2013 and that his report was released in the last week or so.  There is also no dispute that Dr E – and I certainly will not go through the whole of his report but some of the matters seem to be beyond contention - finds no evidence of any clinically significant emotional or behavioural disorder in either of the children. 

10.The doctor describes the relationship between the children and each of their parents of a high quality and uses words such as “positive, close, warm and stable” with reference to each of the parents.  He also reports on a “warm comfortable relationship between the children and their paternal grandparents”.  He identifies no deficits in parenting in the usual sense, and in fact describes the children as being “extremely well cared for”, though he does express some concerns, or rather he expresses the view that the willingness of the mother to accept the children being in the father’s care without herself disrupting that remains to be untested. 

11.The issue of the likely effect of changes upon the children is important because it has only been supervised time with the father for periods of up to four hours, (which has been described as “reasonably satisfactory”).  It is noted that the children have not seen their grandparents and have expressed a strong wish to see them.  The doctor also considered the impact of the children not seeing their father and in that regard is considering the children not seeing their father at all.  He describes that that would be very adverse, as more importantly, they are clearly very attached to him and showed a great deal of affection and enthusiasm.  They see the father as extremely important and would be distressed and grief-stricken and troubled if they were unable to maintain their relationship with him. 

12.The doctor referred to a similarly strong wish to maintain the relationship with the paternal grandparents.  Although recommending a trial situation, which is what is being agreed to in both parents agreeing to some sort of interim orders, the doctor does not address in any detail considerations of whether the level of time with the father as proposed by the mother and the Independent Children’s Lawyer, as opposed to that which is proposed by the father, is in their best interests.

13.The doctor does not really assess that, though he says – and really this is directed to the ultimate finding:

If the Court determines the allegations are unfounded and that the mother is willing and able to facilitate their continuing relationship with the father it would be in the best interests of both children to maintain this relationship.

14.Further, the doctor says:

It may, however, be less anxiety-provoking for the initial contact, as stated previously, to be a joint one with the father and the grandparents.

15.So what is being sought here today is a determination about the appropriate interim orders given that the parties have very sensibly accepted the recommendation of Dr E that there be some sort of trial of interim orders.

Orders sought

16.Essentially, the difference between the parties is that both envisage there being two increasing regimes or periods of time with the father.  The father is seeking that it starts as overnight as soon as possible, being a 24 hour period, whereas the mother proposes a six hour period on a single day.  Each of them propose such contact be for a period of six weeks.

17.Thereafter, the mother proposes an overnight every second weekend, whereas the father proposes three overnights, basically, from Friday afternoon after school to Monday morning every second weekend. 

18.The parties have agreed to everything else, including orders in relation to the mother attending upon a clinical psychologist again, as recommended by the Chapter 15 expert, that the first period of time be supervised by either the paternal grandparents or the paternal aunt, and that the second period of time including overnight time occur at the home of the paternal grandparents.

19.The parties have also reached agreement on a number of other orders, including that there be no physical punishment and orders in relation to issues such as showering and the like.  There are also orders about changeover, ensuring that there is limited contact, and there are also undertakings to be given by the paternal grandparents. 

20.So the issue to be determined is which of the proposed orders, or possibly what alternative order, is the order that is in the best interests of the children.

The Law to be Applied & Discussion

21.The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].  In applying the law to the uncontested facts, to which I have referred, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

[1] [2006] FamCA 1346

22.Of course, in deciding whether to make a particular order in relation to a child under section 60CA, the Court must regard the best interests of the child as the paramount consideration.

23.Ordinarily the first issue that arises is one of parental responsibility, but neither of the parents seek a particular order in this regard.  Of course, unless the Court makes an order changing the statutory conferral of joint parental responsibility, section 61C provides that each of the parents of the child has parental responsibility for the child which, in these circumstances, will continue as neither is asking for any other particular order. 

24.So far as the only real issue in dispute is concerned, and that is the issue over the time the children are to spend with their father, the Court, of course, has to have regard to the best interest considerations set out in 60CC.  Whilst the primary consideration of the need to protect the children “from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” looms as the central issue in this case, no determination has been or can be made at an interim stage.  However, the other primary consideration, and that is the benefit to the child of having a meaningful relationship with both of their parents, is of great significance here.

25.Both orders propose for time with the father to occur in what appears to be a much more natural environment for the children.  They do not have to be out in some public place having an outing.  They can be at home and in their paternal grandparents’ home, which is obviously a place that they feel very comfortable given their relationship with them.  The mother’s proposal is to start with the six hours only.  That would appear to be one that covers only one meal period, whereas the father’s proposal is for overnight time to commence with a 24 hour period. 

26.It appears to me that maybe something in between the proposed orders in terms of promoting the benefit of the children having a meaningful relationship with both of the parents may be the most appropriate.  Certainly an order that provides for a significant period of time together, which involves enough time to do some activities - have some meals, share the ordinary sorts of things that parents share with their children - would be in the children’s best interests.

27.In relation to the additional considerations, I do not take into account views expressed by the children.  They have not been really clearly articulated, except to say that they want to be with both of their parents.  However, their ages are considered.

28.As far as the nature of the relationship of the children with each of their parents and other significant persons, I simply refer to the evidence of Dr E in respect of his opinion as to the high quality and importance of that relationship (and certainly that he saw nothing untoward) and the important recommendations he makes about promoting that relationship, and also the significance of the grandparents relationship.  But both of the proposed orders certainly would provide for that relationship to be promoted.

29.I will consider some of the other factors that are important.  In my view, the obvious one is the likely effect of the change in children’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 not a proposal to change the living arrangements, but certainly the issue of a slow transition, being cautious.  Matters of that kind have had great significance in the submissions made by both the Independent Children’s Lawyer and the mother, and certainly there seems to be agreement and it would be having a close regard to the likely effect of change for the children to have a lot more time with their father, that it be gradually introduced, that it be supervised initially and then in the grandparents’ home and also that the undertakings be given.

30.Certainly, there is nothing in particular in Dr E’s report that urges that it needs to be particularly slow or particularly gradual, except for the issue that the Independent Children’s Lawyer, in particular, relied upon and that is, in effect, not pushing the mother so that the regime is more than she can cope with emotionally, so that it does not end up being undermined.  There are a couple of things to say about that.  First of all, the mother seems to recognise that she will benefit from some psychological support and she is agreeing to that, and secondly it is something that is untested and, of course, the Court does exercise a great deal of caution. 

31.But, of course, the real question is what the children can cope with and they certainly need, in my view, some more time with their father and more normal time in a natural environment doing the ordinary sorts of things that they previously would have done with their father to promote that relationship.

32.Issues such as practical difficulty do not arise.

33.In respect of the issue of the capacity of the parents to provide for the children’s needs, there were submissions made by the mother to suggest that the parents have got a way to go.  I do not think that this is a case where there are particular parenting deficits or problems at all and, in my view, the issue of physical discipline is really a minor one in this matter.  The central concern, and that is the matter of the sexual interference, is not a matter that, in my view, falls in that category of there being a way to go.  The issues, of course, is that both parents have been responsible and the very fact that they have reached an agreement that there should be interim orders further promotes that in my view. 

34.The issue of family violence, in its broad definition, is obviously something that cannot be explored at this stage because those issues are matters in dispute.

35.Coming to the decision about what is in the best interests, the central concern from the mother’s point of view really is more something from the children’s point of view, being the effect of a flow-on if the mother emotionally cannot cope with the orders, and is something that has been particularly pressed by the Independent Children’s Lawyer.  I do have regard to that.  As against that, I particularly have regard to the uncontested fact that this father was actively involved in the care of these children and the mother having accepted that it is in the children’s best interests for them to have more time with their father and that it should ultimately be unsupervised and ultimately include overnight time. It seems that this issue is a matter of degree which involves a close balancing of the factors that I have referred to, paying particular weight to the nature of the relationship with the parents and the benefit of the meaningful relationship with both parents, and especially the father in this matter, also the grandparent’s relationship, and also the likely effect of the change in the children’s circumstances which, on all of the evidence, it will be good for these children to spend more time with their father. 

36.The orders which, in my view, best meet the children’s needs will be firstly orders that for six weeks allow for day time only with the father, not including an overnight stay, but it will be for a period of 12 hours from 8.00 am to 8.00 pm, and that the second regime will be for two nights every second weekend, which will begin after school on a Friday until 4.00 pm on a Sunday.  That will allow the father to be involved in some of the children’s daily activities, including perhaps maybe some after-school activities or some of those normal sorts of things on a Friday afternoon.  That is not to say that the children will be picked up from school because I think the orders about handover that had already been agreed to would be the most appropriate in these children’s interest, especially considering their age.  To have a full day at school and then to be picked up and then to have two nights away from their mother, in my view, would not be in their best interests.  The children will be able to come home and then to have the changeover as envisaged in the orders, as agreed to.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 18 February 2014.

Legal Associate:        

Date:    25 March 2014