REDFORD & REDFORD

[2017] FamCA 114

FAMILY COURT OF AUSTRALIA

REDFORD & REDFORD [2017] FamCA 114

FAMILY LAW – INTERLOCUTORY – Unacceptable risk of harm –Where the father seeks reversal of the children’s residence due to the risk of their physical and sexual harm while in the mother’s care – Where there is a lengthy history of complaints made by the father, all of which were found to be unreliable – Where there is no evidentiary basis to find the mother poses an unacceptable risk of harm to the children – Where the father’s conduct calls into question his judgment and insight – Ordered the children live with the mother

FAMILY LAW – INTERLOCUTORY – Parental responsibility – Where the parties accepted a previous order for equal shared parental responsibility – Where the parties cannot consult courteously over matters of importance to the children – Ordered the mother have sole parental responsibility

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC

Banks & Banks (2015) FamCA 36
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Redford

RESPONDENT: Mr Redford

INDEPENDENT CHILDREN’S LAWYER: Sharon Moore Solicitor

FILE NUMBER: NCC 2484 of 2013

DATE DELIVERED: 17 February 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 17 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT:	Mr Wallace, Ramsland Laidler Solicitor
COUNSEL FOR THE RESPONDENT:	Mr Duane

SOLICITOR FOR THE RESPONDENT: NLS Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Wooi as agent for Sharon
Moore Solicitor

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1. Orders 1.2 to 1.24 inclusive made on 16 June 2016 are suspended.

2. The mother shall have sole parental responsibility for the following children (“the children”):

   a.B, born … 2016 2006;

   b.C, born … 2010; and

c.D, born … 2011.

1. The children shall live with the mother.

1. Each party shall take all reasonable steps to ensure that the children spend supervised time with the father for two hours each alternate weekend commencing not before Saturday, 25 February 2017.

1. For the purpose of implementation of the preceding order:

a.The supervisor of the time spent by the children with the father shall be staff at Relationships Australia, F Contact Centre, Newcastle, or such other person or entity agreed upon between the parties and Independent Children’s Lawyer (“the supervisor”);

b.Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;

c.The time spent by the children with the father each alternate weekend shall commence at the time designated by the supervisor;

d.The venue at which the time is to be spent by the children with the father each alternate weekend shall be designated by the supervisor;

e.The parties shall pay in equal shares any costs due to the supervisor;

f.The mother shall cause the delivery of the children to, and the collection of the children from, the supervisor at the commencement and conclusion of the time spent by the children with the father;

g.The mother and father shall comply with all reasonable requests and directions of the supervisor; and

h.Leave is granted to the parties and the Independent Children’s Lawyer to provide a copy of these orders to the supervisor.

1. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

   a.The mother’s residence; and

   b.Any school or pre-school attended by the children.

2. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

1. The mother shall authorise and request the principal of any school or pre-school attended by the children to provide to the father, at his expense, copies of all school reports and school photograph order forms relating to the children.

2. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

3. Otherwise:

   a.The application for interim relief set out within the Initiating Application filed on 18 January 2017 is dismissed;

   b.The application for interim relief set out within the Amended Response filed on 3 February 2017 is dismissed; and

   c.Any and all other outstanding applications for interim relief are dismissed.

Order amended pursuant to Rule 17.02 of the Family Law Rules 2004

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Redford & Redford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2484 of 2013

Ms Redford

Applicant

And

Mr Redford

Respondent

And

Independent Children’s Lawyer

Ex Tempore

REASONS FOR JUDGMENT

1. On 16 June 2016, final parenting orders were made in respect of the three children of the applicant mother and respondent father. Those children are now aged ten, six and five years respectively. The orders provided for the parties to have equal shared parental responsibility for the children, for the children to live with the mother, and for the children to occasionally spend time with the father. Importantly, the orders were made with the parties’ consent and were not appealed.  

2. The orders only provided for the children’s interaction with the father to be intermittent because he then lived in rural NSW and the mother lived with the children in the Newcastle region. It seems the father recently moved to the Newcastle region, but he refuses to disclose his current address. He and his partner refused to tell the police on two occasions in January 2017 and he has failed to tell the Court since this litigation started. In his affidavit, he professes his address to be care of his solicitor’s office. 

3. On 24 December 2016, the children passed into the father’s care under the orders and he refused to return them.

4. On 18 January 2017, the mother commenced these proceedings and sought interim relief by way of a recovery order, though the children were returned to her care on or about 31 January 2017, via police intervention at the children’s schools. 

5. The father filed his Response on 3 February 2017, in which he also sought interim relief. He wants the children’s residence reversed on an interim basis and orders made for the children to visit the mother at a contact centre under professional supervision once each fortnight. The father’s case is that the children are at unacceptable risk of both physical and sexual abuse in the mother’s home, which she refutes.

6. The mother now abandons her application for a recovery order, but seeks an interim order to ensure the children only visit the father under professional supervision at a contact centre. Her case is that the father is either deliberately or inadvertently inducing the children to make false allegations against her and her current partner, just as occurred in the past.

7. The Independent Children’s Lawyer supported the mother’s application.

Evidence

1. The mother relied upon her affidavit filed on 3 February 2017. 

2. The father relied upon his affidavit filed on 3 February 2017. 

3. Both parties tendered a number of exhibits from documents produced on subpoena.

Parenting Law

1. Orders in respect of children are made under Part VII of the Family Law Act (“the Act”), where the meaning of a “parenting order” is defined (s 64B).

2. When invited 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 (s 60B) in determining the nature of the parenting orders which ought be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).

4. The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA), though that presumption may be displaced. In the event an order is made allocating equal shared parental responsibility for the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or, alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Procedural considerations

1. The procedure for conducting an interim hearing has been authoritatively established by the Full Court.  In Goode & Goode (2006) FLC 93-286, the Full Court said:

   The procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.  The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

2. Although the Court is ordinarily unable to make factual findings in the face of conflicting evidence, the Court must remain alive to controversy, the ultimate resolution of which at final trial may have a significant bearing upon the orders determined to promote a child’s best interests. Serious allegations cannot be ignored at interlocutory events simply because they have been put in issue. 

3. In Banks & Banks (2015) FamCA 36 at [47]-[50], the Full Court noted that, in interlocutory hearings, only limited consideration needs be given to the factors prescribed by s 60CC of the Act, particularly where few of those factors may be germane to the outcome of the interim dispute. Interim hearings should be confined to only those issues which, in the best interests of the child, require determination prior to a proper consideration at final trial. Not every aspect of s 60CC need be discussed in that process.

Section 60CC(2)(a)

1. No submission by either party or the Independent Children’s Lawyer was directed to the benefit the children might experience through maintaining their meaningful relationships with the parties. 

2. Given that, only eight months ago, orders were made with the parties’ consent providing for them to each play a significant role in the lives of the three children, there is an implicit concession each of the three children enjoy meaningful relationships with both parents from which they do, and should continue to, derive benefit.

Section 60CC(2)(b)

1. Some history contextualises the father’s current allegations concerning the safety of the children in the mother’s home. 

2. Allegations of sexual and physical abuse of the children were a salient feature of the litigation concluded between the parties in June 2016. 

3. In November 2014, the father alleged the middle child (C) told him he had been touched, which the father inferred to mean in a sexualised way. As a consequence, the father withheld all of the children from the mother for several weeks. The matter was reported and, when C was interviewed by staff of the NSW Department of Family and Community Services (“the Department”), it is reported C said “nothing specific”.

4. In September 2015, the father alleged C told him he was touched by men and, when pressed as to whom, he proffered the name “Mr E”. The father reported the disclosure to the Department, alleging the abuse occurred at the mother’s home. C was again interviewed by JIRT officers within days and “no harm was substantiated”. 

5. The eldest child (B) and C were both interviewed by JIRT staff in February 2016 in relation to more complaints made by the father.  

6. In April 2016, the father caused C to be medically tested for the presence in his body of the genital herpes virus and the test result was negative. Plainly enough, the father would not have submitted the child to that test unless he entertained a real suspicion the child had, in some way, been sexually molested.

7. In April 2016, JIRT staff concluded that all preceding reports of sexual abuse were not substantiated. The father knew that to be the case, and he also knew the JIRT staff believed the children were not sexually abused at all and that he (or others) had fabricated the allegations. 

8. In June 2016, the prior proceedings were concluded between the parties, with consent orders made to the effect I have already outlined. Importantly, at that time, the Court recorded the following notation, at the parties’ request:

   Pursuant to Rule 10.15A of the Family Law Rules, the parties and the Independent Children’s Lawyer mutually submit that allegations of child sexual abuse, physical abuse and family violence have been made in the proceedings by the parents but the parents now resile from any suggestion that any of the children are at risk of harm through subjection or exposure to such abuse or family violence in the future.

9. The orders made in June 2016 only operated successfully until the father again withheld the children from the mother in December 2016. 

10. In these proceedings, the father asserts his reliance upon the truth and accuracy of statements made to him by the children as the basis for his conclusion and belief the children are abused, both sexually and physically, by the mother and/or her partner.

11. Obviously enough, the reliability of statements made by young children has to be evaluated cautiously and, in this case, that is particularly so for numerous reasons.

12. First, there is a lengthy history of complaints made by the father and the children about the mother, which have been found to be unreliable. 

13. Secondly, the children are still only very young and immature, so the truth and accuracy of their statements should not be assumed.

14. Thirdly, by the father’s own admission, the children are prone to be unreliable because, as he deposed in relation to B and the youngest child (D):

    [B] and [D] both have Down syndrome … [B] has an intellectual disability, severe speech delay, sensory issues (sounds and lights), motor planning problems, ligament laxity, which means she needs speech therapy, occupational therapy and physiotherapy … [D] has a global development delay, severe speech delay, sensory issues (tactile), some ligament laxity, and she requires speech therapy, occupational therapy and some physiotherapy.

15. Fourthly, the parents are in deep conflict. The children are most probably aware of it and are attuned to the advantage of making adverse reports about one parent to the other. The father seems positively eager to receive them. 

16. Fifthly, the father and/or his partner approached the police on 7 January 2017, after having withheld the children from the mother, and presented the police with a number of audio-visual recordings made by them of the children. It seems clear the children must therefore know they are expected to report something when interrogated and recorded.

17. Sixthly, the current allegations of sexual and physical abuse were rejected by JIRT staff on or about 12 January 2017, following further investigation. There is now no ongoing investigation and, when the parties appeared recently before the Registrar, it was expressly noted:

    The solicitor for the Respondent informed the Court that the children have been spoken to informally by NSW Police following the recent disclosures but that there is no current JIRT investigation … the solicitor for the Applicant informed the Court that the Applicant has not been contacted by JIRT, NSW Police or the Department of Family and Community Services in relation to the recent disclosures.

18. The mother also deposed that her current partner has not been contacted by police or staff of the Department as part of any investigation.

19. Tendered in evidence was a record produced by NSW Police on subpoena, relating to a report made to them on 13 December 2016 (Exhibit F1). In summary, the record reveals an unidentified person reported to the police that the three children may be at risk of harm in the mother’s care. The unidentified reporter informed the police of his/her belief that the mother, her current partner, and the partner’s friend acted as accomplices to intoxicate the children with a drug and then sexually abuse them. It was also reported the mother’s partner took C “out the back” and raped him. One wonders how the unidentified reporter could have known of such things. 

20. The allegation of C’s “rape” most likely meant the penetration of his anus by the mother’s partner’s erect penis. Given C is barely six years of age, one might also wonder whether such a brutal incursion into his body could have caused him bodily injury. No evidence of physiological injury to his anus was placed before the Court, even though the evidence would probably be available to the father if it existed, given the children have been in his care since 24 December 2016.

21. The father also deposed to being told by B that the mother hit her in the mouth, which caused one of her teeth to dislodge. He alleged C overheard the disclosure and corroborated B. While one would not necessarily expect the father to adduce evidence from a dentist, it would have been logical for him to give evidence confirming the loss of B’s tooth, but he did not do so. His failure to adduce any evidence about whether, in fact, B lost a tooth is a glaring omission in his evidence.

22. Despite the litany of allegations of physical abuse, not a skerrick of evidence was placed before the Court to verify the sufferance of any physical injury of any sort by any of the children at any time. 

23. Although the father’s counsel urged cautious and earnest consideration of the heinous allegation made by the unidentified reporter to police in December 2016, it seems a most preposterous and fantastic assertion that the mother, her partner, and another adult male would be complicit in the deviant sexual abuse of all the three children after stupefying them with a drug. Presumably the investigating JIRT officers were aware of that allegation, reported to police in mid-December 2016, when they concluded their investigation in mid-January 2017, rejecting all allegations of physical and sexual abuse. 

24. As the Independent Children’s Lawyer correctly submitted, there is no evidentiary basis to reasonably conclude the mother poses any unacceptable risk of harm to the children.

25. Lest the father holds to his subjective belief in the risk, he can take comfort from the submission correctly made by the Independent Children’s Lawyer that the children will remain amenable to independent surveillance in their daily lives. Each of them attends school or pre-school and their teachers will be able to observe whether or not they appear to have been abused or neglected. One of the few things upon which the parties agree is the children are subject to vigilant and regular medical assessments. Their regular attendances upon doctors and other therapists is another layer of protection.

Section 60CC(3)

1. The manner in which the father has conducted himself, both generally and in relation to this litigation in the past month, is such as to call into question his judgment and insight.

2. I am satisfied, for the reasons submitted by both the mother and the Independent Children’s Lawyer, that the children are liable to suffer emotional harm if they continue to spend unsupervised time with him in the manner provided by the orders made in June 2016. He withheld them from their primary carer (the mother) for about a month in circumstances that were plainly unjustified, he caused or acquiesced to their subjection to audio-visual interview about events within the mother’s household, and they have been presented by him to police, the Department and JIRT to be interrogated repeatedly about allegations concerning the mother and her partner.

3. The repetition of conduct of that sort could not possibly serve the children’s best interests. I am satisfied, as a consequence, that the only way to guard against the prospect of their psychological harm due to their subjection to that constant pressure and interrogation is to impose supervision upon their visits with the father. 

4. An injunction is made, so as to prevent the father subverting the order for supervised visits, restraining him from seeking to see the children at either their school, pre-school, or the mother’s home.

Conclusions

1. I return at this point to the issue of parental responsibility. As I have already indicated, when the orders were last made in June 2016, the parties willingly accepted an order for equal shared parental responsibility. I impute they have not been able to exercise it sensibly. The father did not consult with the mother when he decided to unilaterally withhold the children from her from 24 December 2016. It is clear he now spends some part of his time in and around Newcastle because he caused the children to attend school or pre-school in Newcastle on the first day of the new academic year. The mother was only able to recover the children that afternoon.

2. The father declined to inform the Court, the mother, and the police of his current residential address. His failure to inform the mother of his new address, as she correctly pointed out, represents a breach of Order 1.21 made on 16 June 2016. In expectation he might have returned to a former residential address in the Newcastle area, in mid-January 2017, the mother travelled past his old address but could not see any car belonging to him or his current partner.  Consequently, she did not know then, and still does not know now, where he lives. The father’s unwillingness to share that information with the mother speaks volumes about his unwillingness to courteously consult with her over matters of importance to the children and his unwillingness to genuinely try and reach consensus about any conflict that may arise. They are the minimum requirements for the parties’ exercise of shared parental responsibility (s 65DAC).

3. In those circumstances, I am satisfied s 61DA(3) of the Act should apply. It would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to apply. Given the children will continue to live with the mother, it would be absurd not to invest her with exclusive parental responsibility for the children, and so orders will be made to that effect.

4. Since no order is made for equal shared parental responsibility, s 65DAA is not engaged and the Court is not obliged to consider either an “equal time” arrangement or, alternatively, an arrangement where the children spend substantial and significant time with the father.

5. For reasons I have already given, at least as an interim measure, I am satisfied it is appropriate to impose supervision on the future interaction between the children and the father. It is an order about which he cannot be heard to reasonably complain because, in the Response he filed little more than a week ago, he proposed that the children should only spend supervised time with the mother at the F Contact Centre on one occasion each fortnight. That is precisely the order I have made in reverse.

6. Fortnightly visits will enable the children to retain their meaningful relationships with him until final trial. I infer that to be so because the father would not have made such a proposal in respect of the children’s interaction with the mother unless he believed it would be similarly so in respect of the children and the mother. 

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 February 2017.

Associate: 

Date:  2 March 2017