PREECE & MULDER

[2010] FamCA 657

FAMILY COURT OF AUSTRALIA

PREECE & MULDER [2010] FamCA 657

FAMILY LAW – CHILDREN – With whom a child lives – What interim parenting orders should be imposed – Mother seeks that the children live with her and that she be permitted to enrol one of the children at a different school – Mother alleges that one of the children is at risk of physical and sexual abuse whilst in the father’s care – Father denies the allegations – Allegations are either unfounded or remain unresolved at interim stage – Children live with the mother and spend time with the father each alternate weekend and each alternate Sunday – Mother permitted to enrol child at a different school

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Preece

RESPONDENT: Mr Mulder

FILE NUMBER: NCC 1334 of 2010

DATE DELIVERED: 9 July 2010

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Austin

HEARING DATE: 8 & 9 July 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms Melville

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. Orders 3 to 14 inclusive made on 13 December 2007 are suspended.

2. The children C and T, born … September 1997, shall live with the mother.

3. Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   3.1During the present school holidays:

   a.         On Sunday 11 July 2010 from 12:00 noon until 5:00 pm; and

   b.From 5:00 pm on Friday 16 July 2010 until 5:00 pm on Sunday 18 July 2010.

   3.2During school terms:

   a.Each alternate weekend from 5:00 pm Friday to 5:00 pm Sunday, commencing on Friday 30 July 2010.

   b.Each alternate Sunday from 12:00 noon until 5:00 pm, commencing on Sunday 25 July 2010.

   3.3During school holidays at the end of Terms 1, 2 and 3 for the first week of each school holiday period.

   3.4During Christmas school holidays:

   a.         For the first week of those school holidays;

   b.        From 2:00 pm Christmas Day until 5:00 pm on 29 December; and

   c.         For the last week of those school holidays.

4. For the purposes of implementation of Order 3 hereof, the school holiday periods are deemed to commence on the first day following the last day of school term, and the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school.

5. For the purposes of implementing the time spent by the children with the father, the mother shall cause the delivery of the children at the commencement of the time to be spent with the father to the father’s home, and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.

6. The mother is at liberty to take all necessary steps on behalf of herself and the father to enrol the child T at the S High School, conditional upon the mother meeting the school fees associated with T’s enrolment at S High School as and when they fall due.

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

8. Any and all outstanding interim applications are dismissed.

9. The matter is referred back to the Docket Registrar.

NOTATIONS

A.The parties attended a Child Dispute Conference on 8 July 2010 and failed to resolve any issues in dispute between them.

B.The parties are scheduled to attend upon a Family Consultant in August 2010 for the purposes of production of a Children & Parents Issues Assessment.

C.These parenting orders are not inconsistent with the Interim Apprehended Violence Order made by the Local Court of New South Wales against the father on 6 May 2010.

IT IS NOTED that publication of this judgment under the pseudonym Preece & Mulder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1334  of 2010

MS PREECE

Applicant

And

MR MULDER

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. Regrettably, the applicant mother and the respondent father are again litigating parenting orders in respect of their twin children, C and T, both born in September 1997.

2. Parenting orders were last made in December 2007 providing for the parties to have equal shared parental responsibility for the children, and for the children to live for equal time with the parties on an alternating week-about basis.

3. The applicant mother has now filed an Initiating Application, an Application in a Case and a Form 4 Notice of Child Abuse, by which she seeks to change the parenting orders.

Evidence and proposals

1. The mother’s Application in a Case is the Application currently under consideration.  By that Application the mother seeks simply that the children live with her and that she be permitted to enrol T at a different school.  Axiomatically, she is seeking that the children spend no time with the father, and that they not communicate with him.

2. The basis of the mother’s grievance is really twofold.  Firstly, she asserts that T has become promiscuous with adolescent boys, for which she blames the father, and secondly, she alleges that the father has physically assaulted T because of that promiscuity, and threatened to do so again.

3. In support of her Application in a Case filed on 26 May 2010, the mother relies upon:

   a)The Form 4 Notice of Child Abuse filed on 26 May 2010.

   b)Her affidavit filed on 26 May 2010.

   c)Exhibit M1, which comprises documents produced on subpoena by the Newcastle Sexual Assault Service.  In particular, that exhibit contains three marked tabs referring to various parts of notes which were produced following counselling undertaken by T with a counsellor at that Service.

   d)Exhibit M2, which is a series of documents produced on subpoena by the New South Wales Department of Human Services, which documents comprise a record compiled by the Department on 28 April 2010, and transcripts of two interviews conducted with the two children by departmental officers on 15 April 2010.

   e)Exhibit M3, which is a letter and annexure dated 30 June 2010 sent by S High School to the mother.

4. The father opposes the orders sought by the mother and indicates his resistance to the mother’s proposal by the contents of his Response to an Application in a Case, filed on 7 July 2010.  In support of that Response the father relies upon his affidavit filed on 23 June 2010.  Broadly speaking, it is the father’s position that the orders last made in December 2007 continue to prevail.

Background facts

1. The parties began their family law litigation with one another in early 2004.  Parenting orders were made concerning the two children with the consent of the parties on 20 July 2004. 

2. Further litigation was commenced by the mother in October 2005.  That litigation was contested until final parenting orders were made on 13 December 2007.  There were numerous interim disputes along the way.

3. Notwithstanding two previous sets of final parenting orders, the mother has now commenced litigation for a third time.

4. There was no negotiation, mediation or counselling between the parties prior to the commencement of this round of litigation. The mother filed an affidavit on 26 May 2010 explaining her failure to comply with s 60I of the Family Law Act 1975 (“the Act”) by reliance upon the provisions of s 60J of the Act. Her affidavit simply says “I allege that there has been abuse of the child/children by one of the parties to the proceedings”. The affidavit annexes a synopsis of allegations by reference to the contents of her affidavit and the Form 4 Notice of Child Abuse, filed contemporaneously on 26 May 2010.

5. Upon close scrutiny of the mother’s allegations, a number of things become clear:

   a)There is no allegation that the father has sexually abused either child or that he poses a risk in that regard.

   b)The promiscuity of T has developed whilst she has been living under a regime of spending equal time in each household.

   c)None of T’s sexual activity with other adolescents has occurred in the father’s household.

   d)The father is just as disturbed about T’s promiscuity as the mother, evident from his anger over the situation, about which anger the mother is also aggrieved.

   e)The allegation that the father physically assaulted T is denied by the father.

   f)The mother’s proposed remedy for the problem is for both children to cease all interaction with the father and for T to change schools. As I have already indicated, the father wishes the existing circumstances to continue.

6. Having provided context to the dispute, it is necessary to turn to the itemised allegations of “abuse” made against the father by the mother in the Form 4 Notice of Child Abuse, which are elaborated in her affidavit.

Allegations of abuse made by the mother

1. The mother’s first allegation of abuse is that the father allowed male employees to reside in his house with the children, and she refers to paragraph nine of her affidavit.

2. The mother also has an adult male living or spending time in her household, who is her partner, so there is little difference. 

3. In any event, the father acknowledges that the children are uneasy about male employees in his house and he has now ceased the practice of allowing them to stay after the children expressed their dissatisfaction with that situation.

4. That worry cannot logically be the basis for the urgent application now brought by the mother.

5. The mother’s second allegation of abuse is that the father allowed the children to be out in the evening without adult supervision when they were 11 years old, for which she relies upon paragraph 13 of her affidavit.

6. This is a reference to the child T being dropped at a local ice skating rink at 7:00 pm to attend a session.  She was allegedly unsupervised by an adult but, so I impute, were most of the other children attending a familiar local venue.  The mother says the incident occurred in 2008, so it has not been an urgent concern of hers.

7. In any event, the father says that T attended the rink on that occasion with a friend, and the mother of the friend was allegedly also present.

8. The mother’s third allegation of abuse is that the father allowed T to be on social networking internet sites, on which images were posted of T in a bikini and that sexually explicit messages were posted on the site, all of which occurred whilst T was staying with the father.  The mother relies upon the contents of paragraph 22 of her affidavit in that regard.

9. The mother is concerned about T using a well-known internet networking site called MySpace.  She alleges that T posted a photograph of herself on the site in which she is depicted wearing a bikini.  The father lets her use that site but the mother does not.

10. Although the mother alleges use of “sexually explicit messages” on the MySpace site, there is no evidence of it other than the mother asserting that in March 2010 an adolescent boy proposed sexual activity to T, which T declined.

11. The mother herself uses a well known internet networking site called Facebook.  It is common place.  It is unremarkable that the children, or either of them, use such internet sites, as many children do.  No blame is attributable to the father for some unknown adolescent sending unpalatable messages to T.  I do not accept the mother’s suggestion that such facts demonstrate that the father is responsible for some form of abuse of T.

12. The father alleges that he permits T limited time on MySpace as a reward for good behaviour and that the computer in his home, upon which T would access those sites, is situated in his dining room and is generally under his supervision.

13. The mother’s fourth, fifth, seventh and tenth allegations can be taken together.  In respect of those allegations, she relies upon paragraphs 25, 30, 31 and 43 of her affidavit.

14. The mother alleges that T’s promiscuity has led her to several sexual encounters with adolescent boys.  There is little positive evidence that these events actually occurred, but both parents seem to accept that they did.

15. In December 2009, T was shown some pornography by adolescent boys in the household of the G family.  Although that occurred apparently in a week while the children were living with the father, the Gs are just as much friends of the mother, and the mother did not object to T visiting the G household, at least at that point in time.  Once visiting that household, T is self-evidently out of the direct control of both the mother and the father.

16. In early 2010, the children both stayed overnight in the G household.  Again, such an event is unexceptional, even if it was then contrary to the wishes of the mother.  T apparently slept on a lounge next to an adolescent boy.  T later told the mother that during the evening two boys had digitally penetrated her vagina.  That such a thing happened is extremely concerning, but it is also concerning that the mother attributes blame for the incident to the father.  How was he to know?  How was he to control it?  The mother had at the time raised an objection to the children spending time in the G household, but that had been in the context of T having been shown pornography in December 2009 by an adolescent boy. Neither she nor the father had any basis to then suspect that the sexual encounter, of which the mother now complains, was able to occur beyond parental supervision in the G household. The mother had had the G children in her household before, and both she and the father were entitled to assume that their children would be properly supervised in the G household, just as they properly supervised other children visiting their own households.

17. In March 2010 it was drawn to the parties’ attention that T had allegedly performed fellatio on an adolescent boy when she had snuck out of the father’s home late one night with a girlfriend.  The only criticism that can be levelled at the father is that he was insufficiently vigilant to prevent T from sneaking out of his household. But with a teenager determined to do that, it is expecting much of a parent to be resolutely on guard so as to ensure that such an escape could not occur. 

18. The father’s parental vigilance may not be as high as that of the mother’s, but that criticism alone falls far short of a proper basis for alleging that the father has abused his children, or either of them.

19. The mother’s eighth allegation of abuse is that while in the father’s care the child T was permitted to be out at 12.00 midnight with boys, for which she relies upon the contents of paragraph 36 of her affidavit.

20. I repeat the comments I have just made.  The father did not consent to the child being in the company of adolescents at midnight in their local residential area.  T surreptitiously departed the father’s household late one evening in March 2010 in the company of a girlfriend that had been staying over with her.

21. The father learned of the girls’ disappearance that night when he checked on them, and he then went looking for them.  He was just as concerned at those developments as the mother now is.

22. Short of imprisoning T, it is difficult to see what more the father could do.  The mother makes no suggestions, other than criticising him and saying that the children should not see him anymore.  I do not accept that that is a rational response to the problem that presents.

23. The mother’s sixth, ninth, eleventh and twelfth allegations can be taken together.  In respect of those allegations, she relies upon paragraphs 30, 37, 59 and 66 of her affidavit.

24. The mother alleges that the father has actually physically assaulted T on two occasions and threatened to do so again.  The allegations of assault relate to the father’s knowledge of T’s promiscuity.  It is asserted that his displeasure with the situation has manifested itself in anger and violence.  The father admits the anger, but he denies the violence.

25. The mother’s allegations are wholly dependent upon reports to her by others, including the children.  She has no independent knowledge.

26. The mother alleges that when the father learned of T sleeping next to a boy on a lounge in the G household the father took T into a bedroom alone, hit her on the head three times and then punched a wall.  She was told that by C, who could not herself have seen the incident.  In an interview with departmental officers on 15 April 2010 T confirmed the incident, albeit not in identical terms.  Her version is much less colourful than the mother’s allegation.  The father denies hitting T.  He admits to slamming a cupboard door in anger during his discussion with her.

27. The mother alleges that when the father learned of T sneaking out late at night with her friend, he traced them to a local home where T and her friend were in the company of some boys outside.  The boys ran away.  It is alleged that the father deliberately hit T and that she suffered a blackened eye as a consequence.  There is no doubt that T suffered a blackened eye.  There are photographs in evidence to prove it.  But the father says that his blow to T’s face was accidental.  He alleges that he was trying to grab her on the shoulder to prevent her running away down the road and that the contact with her face was inadvertent.

28. When the mother learned of the incident the police were involved.  The father was charged with an offence of assault. He is defending the charge.  Obviously, there was no assault if his physical contact with T’s face was accidental. The act of grabbing her to take her home in the circumstances described could not of itself be an assault.

29. It may well be that the father did in fact assault T by deliberately hitting her face, but presently that is a contested fact and I am unable to make a finding of fact about it. The evidence has not been tested.

30. An application was also taken by the police against the father for an Apprehended Violence Order in favour of T.  An Interim Apprehended Violence Order was made on 6 May 2010 by the NSW Local Court.  In the absence of evidence to the contrary, and in view of the contested criminal charge which is as yet unresolved, I impute that the Apprehended Violence Order remains only an interim order at this stage.

31. As for the allegations that the father has threatened to the mother that he will assault T again if circumstances justify it, in his mind, the father simply denies the conversation alleged by the mother.

32. It will be evident from the facts recited that the allegations of actual and potential physical abuse of T by the father are contentious.  The nature of interim hearings is such that findings of fact over contentious matters cannot be made. The Court is required to proceed on the basis of evidence that is uncontentious and upon inferences which fairly arise.

33. At this point, I am able to infer only that the mother and father are both understandably concerned about T’s promiscuity, but that the father has reacted to it with a more volatile attitude than the mother. 

34. There is a duplicity about the mother’s allegations.  On the one hand she asserts that the father has done too little to prevent T’s promiscuity, and on the other, she is aggrieved that he has overreacted to her promiscuity when he has learned of it.  However, the evidence adduced by the mother, uncontradicted by evidence from the father, is that both children are probably a little apprehensive of the father by reason of his present anger at the situation.

1. The allegations made by the mother in the Form 4 Notice of Child Abuse do not lead me to conclude that any interim change is warranted to the parenting orders.  But that is not to say that there is no evidence to warrant any change at all on any basis.  I will turn to other evidence shortly, following recitation of the applicable law.

Summary of Parenting Law

1. Orders in respect of children are regulated under Part VII of the Act.

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects in determining the nature of the parenting orders which ought properly be made.

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration. The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the children.

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child. That parental responsibility pertains to the major long-term issues concerning the child, being matters such as education, religion, culture, health, name, and living arrangements.

5. However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or children, or engaged in family violence, and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.  In interim hearings, the Court is not obliged to apply the presumption if the circumstances are such that it is not appropriate to do so.

6. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents.

7. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

8. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

9. Having acknowledged the applicable law, I turn to the provisions of s 60CC of the Act, which dictate findings about the children’s best interests.

Best Interests of the Children

1. Both children have a meaningful relationship with each parent.  They have lived with the parents for equal time under existing orders for over two years.

2. The issue of alleged child abuse has already been addressed earlier in these reasons.

3. The children are now nearly 13 years of age.  They are at an age and level of maturity where their views are highly influential.

4. Although there is no evidence of it, the parties acknowledge that the children are currently living with the mother and not spending time with the father.  There is no evidence at all about how long that situation has prevailed, although I infer that it has been since the Interim Apprehended Violence Order was made on 6 May 2010.

5. The mother adduces evidence that C expresses a view that she wishes to spend her time predominately in the mother’s household because she finds it more conducive to her academic pursuits at the selective high school she attends separately from her sister.  There is no other reason advanced for her preference of the mother’s household over the father’s household.  However, the mother concedes in her affidavit that she knows that C wants to see the father on weekends and stay with the mother during the week.  The mother says that C said that to the father in her presence.

6. I conclude on the evidence that C may wish to change the equal time arrangement and spend more time with the mother whilst still seeing the father.  The mother concedes in her affidavit that C has told her that she misses seeing the father.

7. The mother gives no evidence about the expressed views of T, but the father does.  The father gives evidence of T expressing a wish to stay with him.  I bear in mind that T’s views may be skewed by her perception that she has more freedom in the father’s household.  Presently, curtailment of her freedom is advisable.

8. Nonetheless, the father’s evidence is corroborated.  T told departmental officers in an interview conducted with her on 15 April 2010 that she still wants to see both parents, and still wants to stay at the father’s home.

9. The father is concerned that the mother is trying to align the children against him.  That may or may not be true, but the mother’s proposal that the children spend no time with the father in the face of the available evidence seems quite extreme.

10. If the parents’ households are only a couple of kilometres apart, as has been suggested, there are no difficulties encountered in implementing parenting orders.

11. I am satisfied that each party has a proper parenting capacity.

12. I have already addressed the existence of a family violence order.  Its terms are not inconsistent with the orders I intend to make.

13. The Apprehended Violence Order made on 6 May 2010 provides as follows:

    1 (a) The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

    1(b)The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

    1(c)The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.

    6. The defendant must not approach, contact or telephone the protected person(s) by any means whatsoever except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varied, suspended or discharged under section 68R of the Family Law Act 1975.

14. The “defendant” is of course the father. 

15. The “protected person” is T.  T has a domestic relationship with both her twin C and her mother, so they too are protected persons.

16. Paragraph 6 of the Apprehended Violence Order prohibits interaction between the children and the father, other than as authorised by a parenting order.  The existing parenting orders made in December 2007 do authorise such interaction, but the existing parenting orders have not been observed by the mother.

17. In my view, it is important that the children still see plenty of the father. Their best interests will be promoted by spending time with him. The parenting orders I am about to make will set out how that will occur. However, by reason of the provisions of the Act, it is necessary for me to make plain that contravention of the Apprehended Violence Order will be dealt with by a prosecution in the Local Court. Contravention of parenting orders will be dealt with under the Family Law Act in this Court.

18. It is plain that T’s promiscuity has caused a problem for her at her present school.  She is the subject of teasing and bullying.  The Deputy Principal has written to the parents about the situation.  The mother proposes that the child be removed from the school and enrolled with a Catholic high school.  She is prepared to meet the fees alone.  The father proposes that T maintain her enrolment at her present school although, as has been pointed out by the learned solicitor for the mother, in his affidavit the father observes “I did not object to the idea of the Catholic school and made it clear [to the mother] that I would prefer the Catholic high school at [O] as it was closer”.  In submissions the father conceded that the Catholic high school at O is really no closer to the parties’ homes than the Catholic high school proposed by the mother.

19. T has been attending counselling over the issue.  Her self esteem seems at a reasonable level, but it is capable of improvement.  She acknowledges that through recent events there has been a negative affect on her academic performance.  There is no evidence at all about whether T wants to stay at her present school or transfer to another.  The absence of that evidence is particularly troubling.  I have no idea at all as to whether or not she will be emotionally disturbed by dislocation from peer relationships.

20. The parties both want a determination of the school issue on the scantest of evidence.  It must be decided because the parties are deadlocked, despite exercise of their co-existent parental responsibility in respect of the issue. 

Conclusion

1. The legislation first requires me to have regard to the issue of parental responsibility.  In light of the evidence already addressed, I am inclined not to apply the presumption of equal shared parental responsibility.  The reason for that determination is the as yet unresolved allegations of physical abuse levelled by the mother at the father.  If those allegations are substantiated at a final hearing, in all probability the presumption of equal shared parental responsibility will not apply.  In those circumstances, I do not apply the presumption at an interim stage.  As a consequence, I am not obliged to consider the alternatives of the children spending equal time in each household, or alternatively, substantial and significant time in the non-residential household.

2. As I have already indicated, in my view it is particularly important that the children continue their personal relationship with the father.  I intend to make orders that will ensure that that result will be achieved.

3. On the available evidence, I am persuaded that T’s school enrolment should be transferred as the mother wishes, but I harbour considerable misgivings that such a potentially important issue is to be decided on such scant evidence.

4. For the reasons I have addressed, I consider the orders that I am about to announce are made in the best interests of the children. 

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate: 

Date:  9 July 2010