Rawlins and South - [2008] FamCA 1085

FAMILY COURT OF AUSTRALIA

RAWLINS & SOUTH

[2008] FamCA 1085

FAMILY LAW – CHILDREN – Interim parenting – history of shared care under interim orders made by Federal Magistrates Court - Department of Child Safety invited to intervene – substantiated risk of emotional harm to both children from intractable conflict between parents – risk of physical harm to one child from father – 7 year old with suicidal ideation – relief necessary for children – supervision of father’s time pending final hearing – allegation by father of sexual abuse of children by mother’s partner – unsubstantiated by Department investigation – preponderance of evidence against any abuse by partner but pending final hearing mother required to be available and in the vicinity when in the company of her partner

Family Law Act 1975 (Cth)

Goode v Goode [2006] FamCA 346; (2006) FLC 93-286
Cowling and Cowling (1998) FLC 92-801
M and M (1998) 166 CLR 69; (1988) FLC 91-979

APPLICANT:

Mr Rawlins

RESPONDENT:

Ms South

FILE NUMBER:

CSC

1041

2007

DATE DELIVERED:

10 December 2008

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Moore J

HEARING DATE:

8 & 9 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Benson

SOLICITOR FOR THE APPLICANT:

Cope Family Law

COUNSEL FOR THE RESPONDENT:

Mr McPherson

SOLICITOR FOR THE RESPONDENT:

Lehmann Featherstone

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Willis

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

O’Reilly Stevens Bovey Lawyers

ORDERS

The Order of the Federal Magistrates Court of 16 January 2008 is discharged.
The children J born … January 2001 and B born … January 2004 are to live with their mother.
The children are to spend supervised time with the father as follows at the Supervision Centre conducted by Relationships Australia, or other agreed supervised venue, provided that time is made available by the Centre upon the successful completion of intake procedures:
(i)each Saturday for up to 3 hours
(ii)on either Christmas Eve, Christmas Day or Boxing Day for up to 3 hours
(iii)each of the children’s birthdays for up to 3 hours.
Each parent is to pay one half of all costs associated with the children’s attendance at the Supervision Centre and each will do all acts and things to ensure the children’s earliest enrolment at the Supervision Centre.
Each parent is to do all acts and things including paying in equally any costs of the children’s enrolment or attendance at the Supervision Centre including the cost of a report from the Supervision Centre.
The father is restrained from spending any time with the children other than as set out in these Orders.
The mother is to facilitate any telephone communication between J and the father as and when requested by J.
The father is to have telephone communication with B twice a week on each Tuesday and Thursday at 6pm, with the father to initiate the call.
Each parent is to do all acts and things to ensure that J attends upon a privately funded child psychiatrist as a matter of urgency, noting the child’s suicidal plans and ideations as referred to the in the documents produce on subpoena from the Cairns Youth and Mental Health Service dated 17 September 2008, and the parties are to request the child psychiatrist to prepare a report in relation to the child’s current mental health together with any recommendations for his future treatment or any other recommendation considered in the best of interests of J.
Each parent is to provide to the child psychiatrist an authority to enable the child psychiatrist to communicate with the Independent Children’s Lawyer and to provide a copy of any reports of J’s attendance to the Independent Children’s Lawyer.
Each parent is to pay in equal shares all costs associated with J’s attendance upon the child psychiatrist and for the cost of a report from the child psychiatrist.
If the child psychiatrist recommends any therapeutic or clinical counselling the parents are to implement that recommendation and share equally the costs involved.
The Independent Children’s Lawyer is at liberty to provide a copy of the Family Report and documents produce to the Court on subpoena to the child psychiatrist appointed to assess J and also to any other psychiatrist or counsellor recommended by the child psychiatrist.
Each parent is restrained and an injunction is granted preventing each from
(i)discussing with the children any issue referred to in the affidavits, the Family Report or contents of documents produced on subpoena; and
(ii)denigrating the other to or in the presence of the children and each is to remove the children from the presence of any other person denigrating the other parent.
The mother is to ensure that the children are not left in the care of Mr D without her being available in the home when Mr D is present or her being in the general vicinity when the children are in the company of Mr D.
The Independent Children’s Lawyer make such arrangements as he considers appropriate to have the children informed of the change to the arrangements these orders will bring about.
The Independent Children’s Lawyer is at liberty to provide a copy of the Orders and Reasons for Judgment to the Department of Child Safety.
The parties are given liberty to apply on notice to the other and to the Court as to the implementation of these orders.

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

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC1041 of 2007

MR RAWLINS

Applicant

And

MS SOUTH

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Proceedings

This was to be the final hearing of parenting proceedings related to the care of the parties’ two children: J (7) born in January 2001 and B (4) born in January 2004.
The proceedings began in the Federal Magistrates court on the application of the father in December 2007. In the meantime there has been an interim hearing, the appointment of an Independent Children’s Lawyer, transfer to this Court, the parents have subsequently filed their affidavit evidence and that of their witnesses, a Family Report became available in June following interviews conducted in April, and documents have been brought to Court by subpoena. However, events during September and the subsequent involvement of the Department of Child Safety [DoCS] have given rise to serious concerns about the well being and safety of these children, more particularly J, requiring urgent steps to provide support and assistance to J and further information to be gathered before a final decision can be made about the children’s arrangements into the longer term future.
The final hearing was due to commence yesterday but counsel for all parties had the matter listed for mention late the previous afternoon to raise these issues and advise that all agreed the final hearing could not proceed. On learning of the concerns and the involvement of DoCS I made orders requesting the Department’s intervention in the proceedings and that was communicated to the Department forthwith. Ms N, the child protection officer with day to day responsibility for the matter, appeared yesterday morning and advised that the Department had concluded their investigation, although the findings had not been formally noted in their files, and that the request for intervention was presently under consideration in Brisbane. In the meantime, all counsel agreed, and I accepted, the matter would proceed on an interim basis based upon the material filed as well as oral evidence to be given by Ms N about the Department’s involvement, investigation and findings. The Court was advised later in the day the Department would not be intervening.

Orders sought

The interim orders sought by the ICL are set out below:
1.The Order of the Federal Magistrates Court of 16 January 2008 be discharged.
2.[J] born […] January 2001 and [B] born […] January 2004 (“the children”) live with the mother.
3.The children spend supervised time with the father each Saturday for up to 3 hours at Supervision Centre conducted by Relationships Australia (“the Supervision Centre”).
4.Each of the parents shall each pay one half of all costs associated with the children’s attendance at the Supervision Centre and each will forthwith do all acts and things to ensure the children’s earliest enrolment at the Supervision Centre.
5.Each of the parents forthwith do all acts and things including paying in equal shares any associated costs of the children’s attendance or enrolment at the Supervision Centre including the cost of a report from the Supervision Centre.
6.Each of the parents shall do all acts and things to ensure that [J] attends upon a privately funded child psychiatrist as a matter of urgency noting the child’s suicidal plans and ideations as referred to the in the subpoeaned material from Cairns Youth and Mental Health Service dated 17 September 2008. The parties will request the child psychiatrist to prepare a report in relation to the child’s current mental health together with any recommendations for [J’s] future treatment or any other recommendation considered in the best of interests of [J].
7.Each of the parents will provide to the appointed Child Psychiatrist an authority to enable the Child Psychiatrist to communicate with the Independent Children’s Lawyer and to provide a copy of any reports or progress of [J’s] attendance, to the Independent Children Lawyer.
8.Each of the parties shall pay in equal shares all costs associated with [J’s] attendance upon the child psychiatrist and for the cost of a report from the child psychiatrist.
9.In the event that the child psychiatrist recommends any therapeutic or clinical counselling the parties will follow such recommendations and each the parties will share equally any and all costs involved.
10.The mother will facilitate any telephone communication between [J] and the father, as and when requested by [J].
11.The father will have telephone communication with [B] twice a week on each Tuesday and Thursday at 6pm, with the father to initiate the call.
12.Each of the parties has liberty to apply.
13.Each of the parties are restrained and an injunction will issue preventing the mother or father from speaking to the children (or allowing any other person to speak with the children other than experts appointed in this litigation and treating medical professionals and counsellors) about any issue or specific events arising during the course of this litigation, including but not limited to issues canvassed in the affidavit material of each party, the Family Report and evidence presented in supboeaned material.
14.The Independent Children’s Lawyer is granted leave to provide a copy of the Family Report and subpoenaed material to the Child Psychiatrist appointed to assess [J] and any other counsellor recommended by the Child Psychiatrist.
15.Each of the parties shall be restrained and an injunction issue preventing either party from denigrating the other to or in the presence of the children and will remove the children from the presence of any other person denigrating the other party.
16.The father is restrained from spending any time with the children other than as set out in these Orders.
17.A further Family Report be prepared upon the release of the report of the privately funded Child Psychiatrist.
The mother supports the making of those orders save for some relatively minor changes to orders 13 [related to the children being told of the change in arrangements] and she volunteered through her counsel that she would agree to contact between the children and their father on Christmas Day and their birthdays. The father, on the other hand, seeks interim orders in the same terms as those found in his amended application for final orders filed earlier this week on 8 December. They are quite lengthy; suffice to summarise his application:
·    equal shared parental responsibility
·    the children to live in a shared care arrangement week about in school terms, school holidays to be shared equally and time on special occasions spent with each parent
·    changeovers would be regulated according to whether they are on a school day or not and parental behaviour on those occasions regulated by order
·    communication with the children by telephone
·    there is a large suite of proposals about travel arrangements, both domestic and international; notification of contact details; restraints of many kinds; mediation and counselling at Centacare to discuss the children’s needs and common standards in both households including a range of matters to be discussed before any further litigation; the children to be enrolled in protective behaviours course; prohibition on overnight contact with Mr D on him caring for the children alone; and regulation of communication between the parents.

Approach

The submissions from counsel to support the making of interim orders were very brief but something should be said here about the approach that governs the decision. First, Part VII of the Act sets out the Court’s obligations and that makes no distinction between interim and final decisions. Collapsing it to its bare essentials, the legislative path in making parenting orders is this:
·    the best interests of the child are the paramount consideration [s 60CA];
·    spanning and guiding the process are stated objects [ensuring children have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests; protecting children from exposure to physical or psychological harm; ensuring they receive adequate and proper parenting to help them achieve their potential; and ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s 60B(1)] and the underlying principles, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents; a right to spend time on a regular basis and communicate regularly with both parents and significant others; a right to enjoy their culture; and that parents jointly share parental duties and responsibilities and should agree about future parenting [s 60B(2)];
·    in light of that, best interests are determined through evaluating ‘primary considerations’ and ‘additional considerations’ [s 60CC (2)(3)] which are elaborated in other sub-sections [s 60CC(3)(4)];
·    there is a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility [s 61DA(1)] which is about decision making, not time, although the application of the presumption has time implications;
·    the presumption does not apply where there are reasonable grounds to believe a parent has engaged in child abuse or family violence [s 61DA(2)] and it may be rebutted if the evidence establishes equal shared parental responsibility would not be in the best interests of the child [s 61DA(4)]; in making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s61DA(3);
·    where the presumption does not apply the outcome is determined by evaluating the primary and additional considerations having regard to the stated objects and underlying principles;
·    if it applies, there is an obligation to consider whether it would be in the child’s best interests to spend equal time with each parent and whether that would be ‘reasonably practicable’; if it is, make that order [s 65DAA(1)];
·    if not, there is an obligation to consider whether it would be in the child’s best interests to spend ‘substantial and significant’ time with each parent and whether that would be ‘reasonably practicable’ [s 65DAA(2)]; ‘substantial and significant time’ requires that the child spend days that fall on weekends and holidays and those that do not and also allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and also allows the child to be involved in occasions and events of special significance to the parent [s65DAA(3)];
·    what is ‘reasonably practicable’ requires consideration of the distance between the parents’ residences, their capacity to implement an equal time arrangement, their capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind, the impact such an arrangement would have on the child and such other matters the court considers relevant [s65DAA(5)];
While these provisions apply whenever parenting orders are made, interim decisions only govern the child’s position until the final hearing when longer term rights and responsibilities are determined. Case law over many years has developed guidance for the application of the relevant provisions in interim proceedings, more recently since the introduction of the 2006 amendments in Goode v Goode [2006] FamCA1346; (2006) FLC 93-286 which reworked some of the principles set out in the earlier decision of Cowling and Cowling (1998) FLC 92-801 to adjust for those amendments. More particularly, it was again recognised that an interim hearing is an abridged process where the scope of the enquiry is curtailed, the Court is limited in its ability to make findings of fact, and it should not be drawn into issues of fact related to the merits of the substantive case where findings are not possible. Rather, it looks to the less contentious matters and will have regard to earlier care arrangements, current circumstances and future proposals. Nonetheless, the Full Court said the 2006 amendments reflects a legislative intent in favour of the substantial involvement of both parents in children’s lives, both as to parental responsibility and time, subject to the need to protect children from harm by reason of abuse and violence and provided the arrangement is in their best interests and reasonably practicable. As they went on to say in paragraph 72, this means where there is a status quo or well settled environment instead of simply preserving it, unless there are protective or other significant best interest concerns, the Court must follow the structure of the Act and consider accepting where applicable equal or significant involvement by both parents in the child’s care arrangements. The stability inherent in a well settled environment may be the ultimate result, particularly where there is no ability to test controversial evidence, but that would recommend itself after a consideration of the relevant s 60CC matters.
In paragraph 78 of Goode the Full Court discussed the application of s 61DA (3) and when an order for equal shared parental responsibility might not be made. Their Honours relied on the combined effect of a reading of the revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs for the suggestion that s 61DA(3) ‘provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult.’
Finally, in paragraph 82 Goode sets out a summary of the steps to be taken in interim proceedings:
a)identifying the competing proposals of the parties;
b)identifying the issues in dispute in the interim hearing;
c)identifying any agreed or uncontested relevant facts;
d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

There is in this case the issue of risk of harm to the children, to be discussed shortly, and that in turn raises protection issues. Much has been said of risk of harm in cases over the years but the High Court’s decision in M and M (1988) 166 CLR 69; (1988) FLC 91-979 remains the core decision. Although it discusses provisions of the Act since repealed and replaced by others and the facts in M and M related to risk of harm from sexual abuse, it remains apposite and it applies equally to risk of harm from other forms of abuse of children. Some relevant passages follow:
‘…….The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A v A (1976) VR 298 at p 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC 91-830 at pp 76,240-76,242; (1987) 11 Fam LR 765 at pp 770 and 771 respectively), ‘a real possibility’ (B and B [ Access] (1986) FLC 91-758 at p 75,545), a ‘real risk’ (Leveque v Leveque (1983) 54 BCLR 164 at p 167), and an ‘unacceptable risk’ (In Re G (a minor) (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’

History

A bare outline of the apparent facts follows, but it can be taken that almost everything about historical events is in contention, as is the evidence related to the whole panoply of considerations tied to the evaluation of children’s best interests. This includes mutual accusations of the other being fully responsible for the dysfunction that marked their relationship and for the unabated acrimony since their separation that has rendered them entirely unable to constructively communicate about anything concerning their children, while the personality defects and malicious motivations of the other are cited to suggest they are unsuited to the task of parenting to the level sought through Court orders. As they have jockeyed for supremacy, apparently determined to prevail come what may, sight seems to have been lost of the impact on their children and the implications for their childhood and chance for a healthy, rounded development. One only need mention the incontrovertible evidence of their 7 year old son wishing he were dead and acting out his suicidal ideation by sitting in the middle of the road hoping a car would run over him to appreciate the despair that has been delivered.
The parents began living together in 1999. The mother has a son from a previous relationship: L (11) born in May 1997. L lived with his mother and the father Mr Rawlins when they were together and he saw his own father, Mr W, regularly by agreement between his parents. That is still the arrangement. L was initially included by Mr Rawlins in the orders he sought but it is accepted now that L will see him according to his wishes. They separated in May 2006 although they continued to share the same residence for some months. They established separate residences in the Cairns region where they remain living and J attends school there.
The mother began a relationship with Mr D – there is dispute about whether that was before or after the separation – and he has three sons who are aged 17, 14 and 12. The eldest lives with him and the two younger children live between him and their mother week about. He lives in Cairns.
Arrangements proceeded with the children moving between their parents’ throughout 2007. Those arrangements facilitated the father’s shift work and meant the children were with him most weekends. But Mr D’s presence in the mother’s household introduced an element that became the focus of allegations of abuse towards the children. In particular, during 2007 there were three notifications to DoCS alleging harm of the children by Mr D. In January it was alleged he was using excessive physical discipline, but the Department noted no significant child protection concerns, no injuries and no child protection history. In April there was a notification alleging sexual conduct towards J. Mr D, J said when interviewed by authorities, had flicked him on the bare bottom and told him to hurry up, it was tap not a smack, and he felt safe at both parents’ homes. Mr D was also interviewed and denied any inappropriate touching but explained he had flicked him to get him to hurry up. The father was advised later in April that no further action would be taken and the complaint recorded as unsubstantiated. Then in November there was a notification that B [then less than 4 years of age] had been observed playing with his penis and had replied in the affirmative when the notifier asked ‘does [Mr D] play with your willy’. It is reported he was also observed sticking out his bottom in the shower and rubbing it onto his brother. There was a further investigation which resulted in the complaint being unsubstantiated. The records suggest B’s disclosure of detail was inconsistent, the father had previously misinterpreted discipline as sexual, and both parents were assessed as able to provide protection for the children. Police records indicate the information provided by B would not support criminal proceedings. The records do note the children being at risk of emotional harm by reason of their exposure to the conflict between their parents but it did not meet the Department’s threshold.
On 5 December 2007 the father instituted these proceedings seeking interim and final parenting orders which included restraint on the children having any contact unsupervised with Mr D. Those proceedings followed a dispute about the children when the father refused to return them to their mother according to the informal arrangement. On 14 December the mother gave an undertaking sought by the father before he would return the children to her care. She undertook not to allow the children J or B to be left unsupervised in the care of Mr D. In doing so the undertaking recorded a number of notations underscoring the basis on which she gave it [see annexure to her affidavit].
On 16 January 2008 the learned Federal Magistrate made orders after a contested interim hearing providing for the children’s care to be shared between the parents around the father’s work roster, the upshot being that they were to spend about 3 nights a week with their father and the remainder of their time with their mother but to include one weekend a month with her. Provision was also made for equal shared parental responsibility, the parents not to allow others to discipline the children, not to discuss the proceedings with the children, not to denigrate the other parent and the mother was ordered to ensure Mr D ‘is not to remain overnight at any residence where the children may be staying and the mother is to ensure that the children are not left unsupervised with Mr [D] at any time.’ It was at this point that an Independent Children’s Lawyer was appointed and the matter transferred to this Court.
The children moved between the two residences according to the orders without the parents communicating directly but there is apparently a good deal of correspondence exchanged between solicitors about one thing or another. The affidavits reveal accusation about each making and implementing decisions about the children without consulting the other, disputes about the time, threats of police involvement, disputes over the children’s activities and B’s attendance at kindergarten to name but a few. Through it all the children are reported by each parent to have made various statements which obviously align with the viewpoint of that parent. Things were developing in a troubling way for J. It is alleged his father requested that he and L see the school counsellor early in 2007 and the mother was not told of it. That was short lived. Later in the year the mother spoke to the school principal and explained what had happened, at least from her perspective, over the Easter holidays and requested they attend art therapy classes, especially J, and the counsellor monitor J to see how he was coping. Towards the end of the year the mother says J told her about having feelings of hurting himself and she spoke to the guidance officer at the school who recommended a community health counsellor who saw J on a number of occasions. She says that stopped when the father complained about it. In the meantime, of course, over the course of 2007 there were the interviews of the children by authorities following their intervention in response to three separate notifications of abuse.
Throughout this year, 2008, according to his mother, J had been complaining of feeling sick in the tummy and not wanting to go to school. She again approached the school about J seeing the guidance officer and on this occasion, when approached, the father signed the necessary paperwork for this to happen. J saw her during semester 2 and is said to have liked her.
In mid-September there were developments centred around J’s visit to his father’s. It is alleged the father hit him causing bruises to his body. On his return to this mother’s J is said to have sat in the middle of the road waiting for a car to run over him and his mother says he told her he was going to slash his wrists. The mother saw the bruising but she did not report it although she took a photograph of it apparently – she says it was not ‘significant bruising’ and given J’s emotional state of mind she did not want to have him put through more interviews. Instead, she spoke to the school guidance officer about it. The guidance officer saw J who ‘appeared traumatised and not his normal self’ and took two steps: as a mandatory notifier she informed DoCS and she referred J to the Child and Youth Mental Health Service. After the notification to DoCS the police were informed and they interviewed J the following day. He made disclosures consistent with the information given on the notification; namely, he was fighting with his brother and his father got angry with him and hit him with an open hand to the bottom and grabbed his arm while smacking him, resulting in bruising to his arm and hip/buttock. He was seen at the Health Service on 17 September, the reason for referral being recorded as ‘school refusal/psychosomatic complaints/suicidal ideation’. He was said to have bruising on his back and upper arm as a result of his father hitting him, he was said to have engaged in high risk behaviour [sitting on the road hoping to be hit by a car] and to have said to others he wishes he were dead.
Ms N’s evidence takes up the Department’s response including interviews with all three children - J, B and L – on 19 September and a further interview with J on 24 September along with conversations had with both parents. Their investigations resulted in a finding of risk of physical harm to J by his father and risk of emotional harm to both children by both parents by reason of their exposure to their intractable and high-conflict dispute about parenting. J’s interview [typescript of notes became exhibit 3] disclosed that his father got angry with him after a dispute with his brother, he grabbed his arm and hit him on the bottom or back bruising him; the smack was ‘pretty bad’; his father sent him to his room and would not give him lunch; and on the scale of 1 – 10 about feeling safe he rated his father 3, his mother 5 or 9 and school 10.
J’s later interview on 24 September occurred after another visit to his father’s. Before the visit it had been agreed between J and the child safety officer that he would go but be able to call his mother if he felt he wanted to go home; however, this seems not to have been communicated to the father and J had to negotiate this with his father himself. Amongst other things, J related in that interview being scared of his father, that his father ‘sort of interviewed me, he got his book out, a big book it looked like yours, he asked me questions and I had to answer him I can’t remember what . about lots of things I went back to what I was doing, I don’t like the question, because he’s not a real child safety person…..’, he and his father had returned to his father’s home in the dark on bikes and he was scared and wanted to return to his mother’s, he was scared of his father hurting him, scared of the dogs they might bite and scared when it is really dark. As it happens he did return to his mother. In that interview he also identified his father having hit L with implements before the separation and this is consistent with what L said in his interview. The mother is also identified as having hit the children with a wooden spoon.
From the time of these events in late September until the mother swore and filed her affidavit on 30 October there is no reference to any further incident between J and his father.

Family Report

Of course it is recognised that the interviews were conducted in April and there have been significant developments since then, there is now material the reporter did not have access to, and in any event none of her conclusions or opinions have been tested. Even so, note can be taken of how she saw things at the earlier time.
·    In his interview J spoke of it being ‘hard to have two houses’, it being ‘confusing and stuff’, that ‘dad is trying to take us away from Mum’ and ‘Dad says they are never going to take us’. Asked about a wish for the future, J said ‘Mum and Dad to be together, for them not to fight and for them not to break up again’. B was reluctant to discuss his family, not surprisingly given his age.
·    The reporter concluded the children interacted well with each other and with each adult. The parents were able to offer appropriate attention, warmth and responsiveness and the boys’ behaviour indicated a developmentally appropriate connection to both parents. The children showed no overt preference for either parent and were at ease with both parents. They were also comfortable with Mr D.
·    In her evaluation discussion she identified the risk of sexual harm from Mr D but, quite appropriately, expressed no conclusion in her discussion. She also said the ‘risk of emotional alignment and conflict over loyalty to each parent is high while both parents maintain their positions regarding safety’ which she elaborated in paragraphs 107 – 109. She referred to the necessity for the parents to ‘gain a shared understanding and agreement of issues involved in maintaining family safety’ – such as ‘appropriate physical boundaries including affection and discipline, co-bathing, family nudity, co-sleeping, family sexuality, access to sexual material, how sexual education is delivered and by whom and supervision of the children’ – and ‘if this is not able to be agreed she suggested a full psychiatric and psychological evaluation of both parents to ascertain the factors that may be impinging on their ability to put their children’s needs first.’ Once safety guidelines are agreed, she recommended the parents agree to ensuring visitors to their home act in accordance with the agreed behaviours. She noted the children experiencing confusion about the ‘physical arrangements of housing’, that both L and J had indicated finding the shift between residences confusing and they did not perceive themselves as having a stable home base.
·    After further discussion, she recommended sharing of parental responsibility, the children living with both parents as per the interim orders, and if Mr D is found not to be a risk to the children he be able to visit the mother’s home for overnight visits no more than one night per week, the parents participate in monthly mediation, they attend a parenting after separation course, and the children attend protective behaviours courses.

Best interests

I come now to the considerations set out in s 60CC, at least so far as they have some relevance here. The observations are, of necessity, tentative and inconclusive but suggest themselves on the probabilities given what has been presented at this stage.
(a)At aged 7 and 4 neither child is of an age and appears not to be of a stage of development where any weight could be placed on any views they might express about their future living arrangements. In any event, there is no evidence to that effect which could be acted upon. However, what J has expressed recently is not so much views about his arrangements but fears and feelings of being safe/unsafe which are entirely appropriate to be taken into account and I do so.
(b)What the relationship will reveal about the nature of the relationship J and B have with each parent and others significant to their lives remains to be seen. The indications from the April interviews and the reporter’s assessments are that they have a sibling relationship in the usual range and it can be taken they have a close relationship with L. They have established relationships with both parents, each of whom has been involved in their care without interruption for all of their lives. The calibrations of closeness and what they derive from those separate relationships will no doubt be the subject of evidence at the final hearing, but for now it can be said that J’s relationship with his father must surely be seen as having been undermined by his father’s conduct in September. The indication is that J has a good relationship with Mr D with whom he feels safe and trusts.
(c)As for the parents’ attitude to their parental responsibilities and their capacity to meet the needs of the children including their emotional needs, little need be added to what has already been said. No one coming to this case could fail to be concerned at the situation of these children and the apparent inability of their parents to protect them from the emotional harm already identified. There may well be seen to be degrees of responsibility attaching to that on later examination but for now it will suffice to say there are serious shortcomings in the ability of both parents to meet the children’s emotional needs. There are also concerns about the father’s ability to keep J safe from physical harm. In saying so, I acknowledge the submission by the father’s counsel to the effect that since the events of September there has been no evidence implicating the father in any wrongdoing or either child in any incident worthy to be the subject of evidence. But that does not alter the fact of what occurred, whether that is based on J’s statements or the observations of authorities or the father’s concession, and those matters do give rise to serious concern about J’s vulnerability in his care.
(d)The ICL is proposing a significant change to the current arrangements. Both children all their young lives have had time in the care of each of their parents and the change from seeing their father for virtually half of each week to limited time in a supervised setting – and there is no certainty that will be available – would represent a vast shift, not only by reason of the reduction of time but also in the way in which the limited time could be spent together. There is very likely to be an impact on the children and what that will be only the future could say for sure. On the other hand, relief would not be out of the question given the environment around them and J’s view of the current regime at an earlier time of being ‘confusing’.
(e)The father’s proposal on the other hand is for the children to spend more time with him than they do under the interim orders although it is not established how that will be achieved in a practical way given the need to accommodate his shift work rosters to date.
(f)Apart from that practical consideration, there may be practical difficulties in implementing the ICL’s proposal in that there has been no intake procedure yet and there is no evidence of the availability of the Supervision Centre at all or for the time envisaged.
It remains to mention the primary considerations. The first is the benefit to the child of having a meaningful relationship with both parents. What this means need not be discussed here. Suffice to say both these children would benefit from having a meaningful relationship with each of their parents although the degree of benefit the children derive is likely to be commensurate to the ability of the parent to meet their many needs. It is acknowledged that the proposal of the ICL, adopted by the mother, would curtail at least in the interim period the opportunity for the children to sustain and further their relationship with their father both as to the time available and the setting; conversely, they would spend virtually all of their time with their mother.
The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This is one of the key considerations in this decision. They do need to be protected from harm of exposure to emotional abuse from the acrimonious dispute between their parents. J needs to be protected from harm of physical abuse by his father.

Presumption of parental responsibility

As noted earlier the presumption of equal shared parental responsibility applies when making an interim order unless the Court considers it would not be appropriate in the circumstances. The evidence all points to the one conclusion; namely, it would not be appropriate. These parents have not demonstrated any ability to communicate about matters related to their children in the two plus years they have been separated and nothing indicates any change is coming over the horizon.

Time

That being so, there is no flow on obligation to consider equal time or substantial and significant time; however, the father’s application is for interim orders for equal time and therefore it requires some discussion. While such an arrangement would be ‘reasonably practicable’ because of the proximity of the parents’ residences, in my assessment it can be dismissed as inconsistent with the children’s interests overall. Moving between their parents’ houses as they have has not brought anything resembling stability to the children as far as the evidence shows at this stage; to the contrary, there has been ongoing conflict about all manner of things. True it is an argument is put for the father that increasing the time to a week about would mean fewer changeovers and give the children more time in each household before they have to move again. However, I cannot see their interests served by increasing J’s time with his father in the circumstances recounted earlier. Certainly those events occurred in September and there is nothing said of difficulties beyond that. Nonetheless, this is a 7 year old child who was in obvious distress, who described an assault causing bruising at the hands of his father, and who spoke of being scared and being fearful of his father. He is also a child, whatever the source of his distress, who was expressing at that time suicidal ideas and talking of harming himself. That cloud is highly unlikely to lift from him in such a relatively short space of time of its own accord, and nor is there anything to indicate a turnaround in the father’s parenting conduct in the weeks since. I simply could not see J’s interests served by increasing time with his father.
No one asks for it, but one option is to maintain the existing interim orders until the final hearing. However, that can be rejected for the same reasons; it is not a situation delivering stability for the children and does not give due regard for the events of September.
In my opinion the proposal of the ICL is to be preferred. There is sufficient to be satisfied on the state of the evidence as it exists that J has been assaulted by his father, J has expressed fear of his father, being scared of him, and not feeling safe with him, he also expressed a fear of his father taking him away or not returning him to his mother [there is some ground for his perception of that from the events preceding the institution of court proceedings], he has been extremely troubled, and he is a child in need of protection. He needs protection from the emotional harm of exposure to the relentless acrimony between the parents, from carrying between households the criticisms he believes will find a fertile ear [see interview with DoCS], and from being exposed to the conflict about his and his brother’s arrangements. Protection is necessary also for his younger brother who, admittedly, has not exhibited the same signs of high distress as J and nor has he been assaulted, but that is not to say he is necessarily immune to the environment or he is somehow able to be cocooned away from it. Both children need protection from it. J needs protection also from a repetition of the events of September; he needs to feel safe in his father’s care, to feel he will be returned to his mother’s or can return to his mother’s; and to trust his father will respect his feelings. There is nothing to indicate the kind of shift necessary from the father who, as best can be ascertained from his case, remains focussed on the mother as the source of all difficulties.
So while the risk of harm has been identified as coming from both parents, as between the parents the mother does not present the sort of risk the father does. Putting the children in the mother’s care and significantly reducing the contact with their father, and then only in a supervised setting, is designed to give the children some respite from the environment in which they find themselves, to give them time to settle to a stable routine which their mother can offer at least in the shorter term, and to allow J to receive whatever assistance he requires from health professionals without the questioning and enquiry he has had to endure in the past. Of course supervised contact is not ideal and nor could it be sustained in the longer term. But while it has its drawbacks and will represent for the children a lesser opportunity for time with their father and the development of their relationship with him over the coming months, it is necessary, in my assessment, to their well being overall.
The father’s counsel argued against this outcome and said all that could be said to support his case. I have acknowledged already the submission that there is nothing in the evidence to suggest any concerns for J since September - although I do not accept such serious concerns can be put aside by reason of that observation. I acknowledge that both parents have been assessed as responsible for creating a risk of emotional harm for the children – that is accepted. I acknowledge that the interview by authorities drew statements identifying both parents as hitting the children with implements as a form of discipline – although it has to be said that the mother’s conduct is not described in the same vein as the father’s. I also acknowledge that there is nothing about B being in fear of his father. The submission is that for him to be ‘removed’ and see his father on Saturday – assuming the Centre is available – would be confusing and distressing for him and, moreover, there is evidence the children enjoy the father’s company. Yet while this is acknowledged, I do not have confidence on the evidence at this stage that the father’s angry and abusive behaviour exhibited to one of his sons recently has been addressed appropriately and in any event I do not think it appropriate to separate the children in this interim period by demonstrably setting J aside from his brother and treating them differently. I also acknowledge the submission that the mother had not sought to restrict the time the children spend with the father by reason of the abuse. Yet while this is obviously the case, why she did not act is a matter of speculation and, conceivably, dynamics might suggest that is more complicated than the submission allows. Finally, I have already acknowledged that there is no evidence the Supervision Centre is available or available in the times proposed in the Minute of Orders proposed. However, that can be cured by liberty to apply if developments require.

Form of orders

Turning to the form of orders proposed, I have made some relatively minor changes but adopted the thrust of what has been proposed about what has been discussed so far. I have included provision for Christmas Day or the days either side of it and the children’s birthdays should the Centre be available.
There remains the question of the children’s contact with Mr D in the interim. Counsel for the ICL submits the order prohibiting unsupervised contact should be dismissed along with the other orders of 16 January 2008. This is based on the evidence of the children’s relationship with him as observed by the reporter and the children’s statements about feeling safe with him when interviewed by the authorities more recently. For example, J has said things such as ‘dad thinks mum’s boyfriend is bad but he’s not’ and ‘we try to tell him he’s not’, he insisted ‘[Mr D] is safe’, and that ‘[Mr D] is not a bad person and that most of the stuff Dad says is not true’. The mother in her affidavit talks of the difficulty the restriction places on the family.
I set out at some length earlier the approach from a legal perspective that would govern consideration of the issue at the final hearing. Certainly on present indications, the evidence is weighted heavily towards there being a finding of no unacceptable risk of harm from Mr D although, of course, no finding to that affect can be made here. However, it seems to me that in the dynamics of this dispute there is some advantage to these children in the issue not getting further oxygen by some means - though I have to say it is not immediately apparent to me how that would occur – by lifting the restriction imposed in January 2008 wholly. But I do assess it as appropriate to redraft the arrangement so that their mother is given the responsibility for oversighting their day to day arrangements when Mr D is present. As long as she is in the house or in the general vicinity when the children are around Mr D or when he is present in the home, including spending overnight there, that would be a satisfactory arrangement. When a finding cannot be made I do not think it prudent, despite what the children say of feeling safe with him, to lift the restriction on Mr D caring for the children on his own without their mother being in the general vicinity. It should only be a matter of months before the hearing can conclude and this issue can be determined more fully then.
Finally, I think it appropriate that the children be informed by some means of the significant change in the arrangements these interim orders will bring about. Given the many interviews with many different people these children have been exposed to in the course of this litigation and notifications to DoCS and other authorities I am reluctant to have them spoken to again, but on balance I think it better they hear of it in some neutral setting. It can be expected this will be done sensitively if this is left to the Independent Children’s Lawyer to arrange in consultation with whomever he considers appropriately placed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

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