Rivas and Stephen
[2014] FCCA 2144
•22 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIVAS & STEPHEN | [2014] FCCA 2144 |
| Catchwords: FAMILY LAW – Final arrangements for child aged seven – child born following the parties’ separation – child has always lived with mother – child shares residence with half sibling aged five years – welfare authorities have determined that the mother has subjected child to emotional abuse by fabricating allegation of sexual abuse against father and denigrating father to child – father seeks change of residence – abuse – serious psychological harm – exposure to family violence – assessing potential impact of change of residence for child – separation of siblings – assessing insight into responsibilities of being a parent – best interests. |
| Legislation: Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 64B, 65C, 65DAA, 65DAC, 65DAE Evidence Act1995, s.140 |
| B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 Bartel & Schmucker (No.3) [2012] FamCA 1094 N & S and the Separate Representative (1996) FLC 92-655 M & M (1988) FLC 91-979 W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892 Fox v Percy (2003) 214 CLR 118 Briginshaw v Briginshaw (1938) 60CLR 336 Godfrey v Saunders (2008) FLR 287 JG & BG (1994) 18 Fam LR 255 |
| Applicant: | MR RIVAS |
| Respondent: | MS STEPHEN |
| File Number: | ADC 45 of 2010 |
| Judgment of: | Judge Brown |
| Hearing dates: | 18 & 19 March, 14, 15 & 16 May, 30 June 2014 |
| Date of Last Submission: | 4 August 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 22 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Childs |
| Solicitors for the Applicant: | Gallagher & Co |
| Counsel for the Respondent: | Ms Read |
| Solicitors for the Respondent: | The Family Law Project |
| Counsel for the Independent Children’s Lawyer: | Ms duBarry |
| Solicitors for the Independent Children’s Lawyer: | Southern Vales Legal |
ORDERS
The parties have equal shared parental responsibility for the child X born (omitted) 2007.
The said child live with each of the parties as follows:
(a)With the father during school terms from 4pm Friday until 4pm Sunday extending to 4pm Monday in the event of a public holiday or pupil free day) each alternate weekend; and
(b)With the mother during school terms at all other times.
The said child spend time with each of the parties as follows:
(a)during school term holidays on an equal shared basis, with handovers to take place on the middle Saturday of the said holiday, with the father to have the first period and the mother to have the second period, unless the parties agree otherwise;
(b)during the Christmas holiday period on an equal shared week about basis (save and except for the Christmas Eve/Day/ Proclamation Day period as provided for below in para.4) with each ability to have the ability to nominate a two week block period in which to take the child for a holiday provided that such period does not conflict with the provisions of para.4 and provided that at least two months notice is given to the other parent of their intention to take such time; and
(c)for special occasions such as the child’s birthday, Father’s Day and Mother’s Day and other family celebrations at times to be agreed between the parties.
The child spend time with each party for the Christmas period as follows:
(a)with the father from 3pm Christmas Eve until 3pm Christmas Day in 2014 and each alternate year thereafter;
(b)with the mother from 3pm Christmas Day until 3pm Proclamation Day in 2014 and each alternate year thereafter;
(c)with the father from 3pm Christmas Day until 3pm Proclamation Day in 2015 and each alternate year thereafter; and
(d)with the mother from 3pm Christmas Day until 3pm Proclamation Day in 2015 and each alternate year thereafter.
Handovers which do not take place at the child’s school take place at the (omitted) Railway Station.
The child communicate with the father by telephone on one occasion each week, with the father to initiate such communication and provided that such time is at a reasonable hour and for a reasonable period of time.
The mother is restrained from :
(a)discussing the allegations of sexual abuse raised in these proceedings with the child or encouraging or allowing any other person to do so;
(b)telling the child Mr Rivas is not her biological father, or allowing or encouraging any other person to tell the child Mr Rivas is not her biological father; and
(c)taking the child to any medical health professional whether for physical health issues or psychological health issues without first informing the father of her intention to do so and providing full contact details of the medical health professional and an authority for him to contact same directly, SAVE AND EXCEPT in the case of emergency (in which case she is to inform the father of all details as soon as reasonably practicable) or in the case of minor childhood ailments ( in which case she is to inform the father as soon as reasonably practicable either by text message or via the communication book);
The mother is restrained and an injunction issue restraining her from disparaging or rebuking or otherwise denigrating Mr Rivas to X or permitting any other person to do so.
The mother forthwith provide an authority to the father to enable him and Ms S to contact directly Dr C, and the child’s General Practitioner.
The parents to follow all such reasonable recommendations as to treatment for X’s umbilical hernia.
Each party notify the other of any illness, accident or hospitalisation of the child while in that party’s care as soon as reasonably practicable.
The father is at liberty to contact the child’s school to enquire about any matter relating to her education and welfare generally, and is to receive copies of all school notices, reports and the like and is at liberty to attend all events to which parents are normally invited.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Rivas & Stephen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 45 of 2010
| MR RIVAS |
Applicant
And
| MS STEPHEN |
Respondent
REASONS FOR JUDGMENT
Introduction
X is around seven years old. X has lived with her mother, Ms Stephen, since she was born on (omitted) 2007. These reasons for judgment are directed towards determining what should be the final parenting arrangements for X.
X’s father is Mr Rivas. Essentially, it is Mr Rivas’ position that Ms Stephen is a poor parent, who is incapable of ensuring that X has a proper and loving relationship with her father. He asserts that Ms Stephen has manipulated X, so that she has made untrue disclosures, to the relevant authorities in South Australia,[1] that he has sexually abused her.
[1] These authorities are the Department for Education and Child Development (Families SA); South Australian Police; and The Child Protection Service.
These allegations have been discounted by the authorities, following a lengthy process overseen by the Police and Families SA, which took place at the Child Protection Service “the CPS” which is located at the (omitted) Medical Centre.
Rather, the CPS has been found that the allegations originated with Ms Stephen herself and not with X and the manipulation of X, by Ms Stephen, to report them, to the various case workers concerned in the investigation, represents severe emotional abuse of the child.
In these circumstances, it is the father’s position that X’s interests will be best served if she lives predominantly with him, where it is more likely to be assured she will have a positive relationship with both her parents and will be protected from exposure to such emotional abuse in future, particularly the possible undermining of her otherwise loving relationship with him.
At present, X and her mother live in (omitted), in the southern suburbs of Adelaide, with X’s little brother, Y, born (omitted) 2008. Ms Stephen has lived in (omitted) for the past few years.
Mr Rivas lives at (omitted) in the (omitted), with his grandmother, Ms S and has done so since 2008. It is approximately 93 kilometres from (omitted) to the Adelaide CBD and then a further 36 kilometres on to (omitted).
As a consequence of this significant distance, whatever is the outcome of the case, there will remain significant logistical difficulties arising from X spending time with one of her parents.
X and Y have different fathers. Y’s father is Mr L. Ms Stephen and Mr L began to live together, in late 2007, at Ms Stephen’s home, in (omitted), when X was a baby. In these circumstances, it is Ms Stephen’s case that Mr L is a significant figure in X’s life and is very much a parental figure for her. There is no doubt that the two children have grown up together.
There is some controversy about the status of the relationship between Mr L and Ms Stephen now. Mr L remains an active presence in both X and Y’s lives. It is Mr L’s evidence that he has moved in with his mother, who lives close by, also in (omitted). As a consequence he continues to see X and Y daily, as he assists Ms Stephen extensively in parenting both children.
Ms Stephen no-longer asserts, as part of her formal case to the court, that Mr Rivas has sexually abused X, although this has not always been her position. To the contrary, as recently as the time she prepared her affidavit for the case (March of 2014), Ms Stephen maintained the view that some form of untoward behaviour had occurred been X and her father and therefore the conclusion to the official investigation was flawed.
Ms Stephen now asserts that she must have misunderstood something, which X told her about her father’s appropriate application of a prescribed ointment to her vaginal area. She has allegedly reached this view because on a weekend shortly before the trial was due to commence, X made a similar comment, which Ms Stephen was apparently readily able to connect to a thrush cream, which she had supplied to Ms S, for application to X’s vaginal area.
In these circumstances, she asserts that she was being appropriately protective of X, when she quite properly alerted Families SA and the Police about what X had told her. She denies that she has ever manipulated X or encouraged her, in any way, to report false allegations about her father to these authorities.
Rather, it is her position that she made a mistake, which arose because she was concerned about what X told her, which sounded convincing, at the time, to her worried ears. Now she realises her mistake, she has publically apologised to Mr Rivas for the hurt she has caused him.
Mr Rivas believes that Ms Stephen has only changed her position because she has been caught out in her lies about him regarding sexual abuse and her resulting manipulation of X. He asserts that she has concocted the more recent conversation with X, about the vaginal cream, only in order to explain her dramatic change of stance in the case.
From his perspective, the only realistic explanation for this change of stance is one of the tactics. Essentially Ms Stephen has realised that the maintenance of allegation of sexual abuse, against Mr Rivas, was not going to assist her in securing her preferred outcome from the court.
Rather, to the contrary, such a course was likely to be extremely deleterious to her position. In these circumstances, she had to explain away the earlier disclosures and her apparent belief in them, when she knew, all the time, the allegations were not true.
Accordingly, the underpinning of Mr Rivas’ case is that Ms Stephen is a disingenuous and highly manipulative person, who lacks parental insight and who is not to be trusted. As such, it would be naïve for the court to regard her apology as being sincere.
Ms Stephen is vehemently opposed to X going to live predominantly with her father, as she believes this would be fundamentally against X’s best interests, as it would result in her separation from her half-sibling Y and the significant disruption of her relationship with her (Ms Stephen) who has been her undisputed primary carer since the time of her birth.
As a consequence, Ms Stephen seeks orders from the court, which would see X continuing to live predominantly with her and spending regular time with her father and paternal great grandmother on weekends and during school holidays.
In addition to his concerns regarding the emotional abuse of X, Mr Rivas asserts that there are other significant issues regarding Ms Stephen’s parenting of X. He is concerned that X does attend school as regularly as she should. He is also concerned that Mr L suffers from an impaired level of psychiatric health.
Mr Rivas and Ms Stephen are not the only parties to the proceedings. As a consequence of the serious allegations regarding sexual abuse and emotional abuse of X, on 6 August 2013, it was ordered that she be independently represented in the case.
The Independent Children’s Lawyer, charged with representing X, is Linda Gross, an experienced family lawyer. Ms Gross has briefed a barrister, Ms duBarry to appear in the case. The law requires Ms Gross and Ms duBarry to formulate a position, based on the evidence available to them, which they think will be in X’s best interests.[2]
[2] See Family Law Act 1975 at section 68LA
One of the major pieces of evidence, available to the parties in this case, is a family report prepared by Ms K, a psychologist, on 28 November 2013. Ms K was concerned about many aspects of X’s presentation to her. These included her development and presentation, which Ms K considered to be more like a four year old than a six year old and perhaps might be attributable to her living in an emotionally confusing environment.
Of even more concern to Ms K was the fact that X disclosed to her an incidence of sexual abuse, similar to the earlier disclosure said to have been made to Ms Stephen. Ms K was dubious about the provenance of the disclosure, particularly as the case workers at Families SA had discredited it. Of the incident, Ms K wrote as follows:
“It is of great concern that Ms Stephen still appears to be subjecting X to emotional abuse by coaching her to report certain things in her interview e.g. the sexual abuse allegations. X blurted this out at the very beginning of the interview, which is consistent with what other children do when they have been coached to say things to the report writer. It is significant that she clearly did not remember all of what she was supposed to say and that she showed no signs of distress when she made her statements.”[3]
[3] See Family Report dated 28 November 2013 at paragraph 47
Overall, Ms K’s opinion was that the parties’ parental relationship, in its current form, had not worked well for X, up to this stage. She considered that X had a warm and comfortable relationship with both her father and great grandmother. In these circumstances, in her report, Ms K was in favour of X’s principle place of residence being changed from her mother’s home to that of Mr Rivas.
The evidence in the case took eight days to complete. Ms duBarry had the opportunity to question all the parties concerned. In addition, she has had time, during the preparation of lengthy written submission, to consider this evidence and her obligations to both the court and X arising under the Family Law Act 1975.
It is, I think, an accurate summary of Ms duBarry’s view of the evidence in the case, that it raises many concerns regarding Ms Stephen’s credibility and level of parental insight. She assesses the evidence, presented by Ms Stephen, in explanation of her about face in regard to the serious allegations made about Mr Rivas to be not credible and an attempt to salvage her case.
In these circumstances, Ms duBarry asks the court to find that X has not been subject to any form of sexual abuse, at the hand of her father. She also endorses Ms K’s assessment of Mr Rivas as a loving and caring father to X.
However, Ms duBarry falls short of submitting to the court, on X’s behalf, that the child’s best interests will be served by a fundamental change in her living and other parenting arrangements. She submitted that the evidence available unequivocally indicated that Ms Stephen had been X’s primary carer since her birth.
In these circumstances, Ms duBarry was concerned that separation of X from her mother would occasion X significant distress. Ms duBarry was also concerned at the prospect of X living in a different residence to Y and having to start at a new school in (omitted).
As this introduction demonstrates, this is a difficult and complex case, which raises many issues. Whatever is the case’s ultimate outcome, it is unlikely to be free of potential problems for X. In my assessment, both Mr Rivas and Ms Stephen are vulnerable individuals, who each face many challenges in effectively parenting X.
These reasons for judgement are directed to resolving this complex factual and emotional situation. X is not to be awarded, like a prize, to the more deserving parent. In determining where X should live in future, her best interests are the paramount or most important consideration in the case.
The issues
At this point, it is useful to summarise the more important issues arising in the case, the resolution of which will form the major component of these reasons for judgement.
These issues can be summarised as follows:
·what is the basis of the allegation of sexual abuse of X, by Mr Rivas, which originated in late January of 2013;
·is there any substance to these allegations and, in particular, does Mr Rivas represent any risk or threat to X, which it would be unacceptable for the court to countenance;
·did Ms Stephen mistakenly over-react to innocuous statements made by X and therefore properly involve Families SA and the Police in investigating what X had said to her;
·in the alternative, did Ms Stephen act out of malice or for some other ulterior motive in either the precipitation or calculated misconstrual of the complaint from X, in the first place, or did she deliberately, with the assistance of Mr L, concoct the whole issue;
·thereafter, did Mr B coach or in some way coerce X to maintain an account of inappropriate sexual abuse to the authorities, which she (Ms Stephen) knew to be untrue;
·if Ms Stephen did implant the idea of sexual abuse, into X’s mind, so that she (X) would recount it to the authorities, what are the potential psychological consequences of this for X herself;
·what were the circumstances surrounding X purported recounting of some form of sexual abuse to Ms K, in the family report process, which occurred in November of 2013, some months after the CPS had found the allegations of sexual abuse of X to be unsubstantiated and had advised Ms Stephen to this effect;
·if Ms Stephen did assist in the manufacture of untrue allegations of sexual abuse against Mr Rivas, what does this indicate about her level of insight into the responsibilities of being a parent;
·does this behaviour constitute abuse for the purposes of the Family Law Act 1975;
·can the court take any comfort from Ms Stephen’s recent apology to Mr Rivas and her apparent acknowledgement that she was mistaken about what she asserts X did actually say to her, which she continues to maintain she misconstrued;
·who of the parties is more capable of ensuring that X has an appropriate level of relationship with each of her parents ;
·who of the parties is better equipped to parent X, particularly in terms of her educational and emotional needs;
·what are the potential consequences, for X, of a significant change in her parental circumstances, particularly to being separated from her mother and Y;
·what is the nature of the relationship between Mr L and Ms Stephen and what are the implications of this relationship for X;
·what is the nature of X’s relationship with her paternal great grandmother, Ms S;
·what is the best way to manage the distance between (omitted) and (omitted) to ensure that X spends regular time with the parent with whom she is not predominantly living;
·what is the capacity of the parties to communicate with one another likely to be in future and accordingly what is their capacity to share parental responsibility for X.
The legal principles applicable
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[4]
[4] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[5] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[6]
[5] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[6] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Parental responsibility
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[7]
[7] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
In this case, Mr Rivas seeks an order that he should have sole parental responsibility for X, as a corollary of the child living predominantly with him. It is his position that the presumption is rebutted because Ms Stephen has subjected X to abuse. Ms Stephen proposes the parties have equal shared parental responsibility for X. Ms duBarry concurs with the mother in this regard.
Clearly, if the parties have equal shared parental responsibility for X, it would be impracticable for her to live with each of her parents for equal periods of time or for substantial and significant periods, given the distance between their respective homes.
In addition, there may be other factors, arising from a consideration of section 65DAA(5), which renders both such outcomes logistically unfeasible. In this context, it is interesting to note that Ms K gave evidence that she would have recommended an equal time regime, if the parties had lived closer to one another.
The court has authority conferred upon, through the provisions of Part VII of the Family Law Act 1975, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned. This is done through the mechanism of a parenting order.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons, who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. In this case, both Mr Rivas and Ms Stephen are applying for various parenting orders in respect of X, including how decisions should be made in respect of her.
In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons.
Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.
In this case, I have no doubt that both Mr Rivas and Ms Stephen are deeply interested in every aspect of X’s care, welfare and development. In this context, it is a significant thing to confer parental responsibility for the child on one parent in priority over the other.
Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order.
The difficulty arising in this case is that, due to the conflict between them, which the outcome of this case has the potential to entrench, the parties are likely to experience extreme difficulty in exercising parental responsibility for X jointly. Certainly, up to this point, the evidence bears out Ms K’s assessment that the current regime of decision making for X has not served her well.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
In Bartel & Schmucker (No.3) Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [8]
[8] See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]
As will become clear, as these reasons for judgement unfold, the parties relationship with one another has been fraught with all manner of difficulties. Considerations of this type are relevant, in my view, to issues to do with the conferral of parental responsibility.
Legal considerations relating to issues of abuse
As I have already indicated, pursuant to the provisions of section 60CC(2A), the court is required to give greater weight, in its determination of a child’s best interests, to issues arising under the primary consideration relating to the protection of children from abuse, neglect or family violence. The recent changes to the Family Law Act 1975 are significant ones. The key amendments are designed to “prioritise the safety of children in parenting matters”.[9]
[9] See Supplementary Explanatory Memorandum (Senate) Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The concept of neglect is not specifically defined in the Act. In my view, its meaning must be gleaned from an examination of the principles and objects underpinning Part VII of the Act, which deals with how a court is to shape arrangements, for the care of children, to ensure that their best interests are served.
Accordingly, in my view, neglect of a child arises when that child does not receive adequate and proper parenting because a parent fails to fulfil his or her responsibilities concerning the care, welfare and development of any child concerned.
Clearly, X will not achieve her full potential, either as a child or as an adult, if she is robbed of the opportunity to attend school regularly. She will not be able to read and write adequately. She will not be able to do arithmetic. If she is a socially and academically isolated child, she may not be able to regulate her behaviour appropriately. Such deficits may blight her subsequent adult life.
For self-apparent reasons, a failed education is not conducive to an adult having a successful later life. These are important matters to my mind. It is my view that the duty to ensure a child attends school properly and has a regular education is one of the most fundamental responsibilities of being a parent.
The father’s case is that the mother has been neglectful of X in respect of her alleged failure to ensure that she attends school regularly and punctually. It is the import of his case that this amounts to neglect within the terms envisaged by the Act. In addition, Ms S has alleged that X is not always presented in a clean and hygienic state.
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act 1975. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
In respect of the issue of sexual abuse, the emphasis, in the definition, is on the sexual exploitation of children. The definition speaks of the use of a child as a sexual object. It was the clear implications of Ms Stephen’s original position that she asserted that Mr Rivas had utilised X as such a sexual object.
In my view, the legislative focus is on the evils implicit in an individual obtaining some form of sexual gratification from interacting with a child. Necessarily, the definition excludes innocent or affectionate interactions between a person and a child or interactions relating to health or hygienic concerns for the child.
Until recently, one aspect of the case concerned whether Mr Rivas had subjected X to some form of sexual abuse. This allegation has been extensively investigated by the CPS and found unsubstantiated. It is also the case that Ms Stephen has indicated to the court that she now accepts that what X allegedly said to her was innocent in its content.
Nonetheless, any case involving an aspect relating to the sexual abuse of a child must be closely examined by the court. This is because the potential detriment to a child, of being subjected to sexual abuse, represents:
“…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, in both the short and long term, can be devastating.”[10]
[10] Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at paragraph 94
In all the complex circumstances of this case, it is not sufficient for the court to make a finding about whether sexual abuse of X did or did not occur. As previously indicated, it is Mr Rivas’ case that Ms Stephen has subjected X to abuse, as envisaged by the Act, because she has suffered serious psychological harm as a consequence of being compelled, in some way, by Ms Stephen, to parrot untrue allegations, to those in authority, concerning her father, whom she loves. It is his case that this is abuse as defined by section 4(1)(c) of the Act.
Having set out the importance the court needs to give to allegations of sexual abuse, in order to safe guard the best interests of the child concerned, it is now appropriate to outline the difficulties, which often confront the court in such cases, when issues arise concerning sexual abuse, particularly in the context of the court having to unpack or interpret what a child is said to have reported, most commonly to a parent, who is not likely to be completely objective or dispassionate about the disclosure in question and later to other professional investigators.
Frequently, as here, the allegations concern children of pre-school or primary school age, whose cognitive facilities are not fully formed and so the child concerned is unable to give a clear and coherent account of what has happened, certainly not when compared to an older child or adult, placed in the same situation, when reporting a crime. In addition, very often, the only witnesses to such incidents are the alleged victim and the alleged perpetrator and there is little or no corroborative evidence to support the allegations in question.
In other cases, again as here, issues arise regarding the nature of disclosures said to have been made by pre-linguistic children. Again, invariably, the only witnesses to the disclosures, said to have been made, are the child concerned, whose vocabulary and comprehension is rudimentary and the person reporting them, who may lack objectivity or indeed the skill to interpret what was said by the child. For obvious reasons, the child is not in position to report that his or her parent has misinterpreted what has been said or has put words into his or her mouth.
In addition, it may be the case that the person to whom disclosures are made, because of some form of antipathy for the person implicated in the alleged disclosures, has a propensity to seize on anything potentially damaging to that person and either wilfully or negligently cause the allegation to be further promulgated.
In such a context, the child may be unskilfully and repeatedly questioned about what was said, perhaps in an atmosphere bordering on the hysterical. Such behaviour can only muddy the recollections of everyone concerned, including the child, as to what was first said and in what context. Such a situation is likely to make it difficult for any professional investigators subsequently engaged, who are liable to become involved with the child only a significant period of time later.
In these circumstances, it may be a fine line between a wilful manipulation of a child, by his or her parental interlocutor, and an unhealthy preoccupation or obsession with untoward behaviour, by that parent, into which a child is unwittingly enlisted.
Clearly, a child of five or six years of age, as with X, is not in a position to say definitively to a person such a CPS investigator or Ms K words to the effect of “I have been manipulated by mum (or dad)…what I am saying is untrue…I was told to say it to you by mum (or dad)”.
Necessarily, it must be a case of expert interpretation of what the child has said and the context in which it is said. It is likely to be difficult to provide empirical standards for such an exercise. However, it is likely to be fundamental, so far as the welfare of the child concerned, that such an exercise be undertaken.
In her evidence to me, Ms K indicated why it was potentially so detrimental for X to be subject to a situation where she was manipulated to say things that were not true, in the context of allegations of sexual misbehaviour against her.
Such a scenario might undermine her otherwise appropriate relationship with her father and cause her to think that her dad did do naughty things to her because this was what her mum said; it might also cause her to question her relationships with other males, which might be detrimental to her in maturity; finally it might cause her to doubt herself and lead to low self-esteem, with very serious consequences for her long term psychological health.
Accordingly, in Ms K’s estimation, this potential form of abuse must be regarded as being extremely serious, in terms of X’s long term well-being, of equal moment to allegations of actual sexual abuse.
However as a consequence of all the factors outlined above, it may be impossible, for a court, to determine definitively whether any abuse, either in the sense of direct sexual abuse or some more nebulous form of psychological abuse, has occurred to the child concerned or indeed to ascertain precisely what the child said about the incident complained of and, more particularly, what he or she meant and understood by what was said.
However, given the structure of Part VII of the Family Law Act 1975, particularly its emphasis on protecting children from the consequences of any form of abuse, the court cannot disregard such allegations or disregard their seriousness because of evidentiary difficulties, which arise as a consequence of the court trying to establish the truth or otherwise of the allegations concerned and the circumstances in which they arose.
In addition, in some cases, allegations of sexual abuse (and subsequent allegations that some manipulation of a child has occurred in order to secure some form of damaging disclosure) occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion or, as in this case, because of a lack of any previous parental relationship.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
As Fogarty J said in N&S and the Separate Representative:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[11]
[11]See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at paragraph 95
All these factors are potentially present in the current case before the court. One of the central evidentiary issues is whether Ms Stephen has deliberately fabricated allegations concerning Mr Rivas and manipulated X to advance her aims or whether, on the other hand, she has misconstrued something X has said to her and in a state of emotional labiality has convinced herself of the truth of her misconception.
The leading authority, in respect of the issue of sexual abuse involving children, is the High Court decision of M & M.[12] In this case the High Court confirmed that in any matter involving allegations of abuse, the only duty of the court is 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.” As a result of this emphasis, the court does not have an obligation or duty to “resolve in a definitive way the disputed allegation of sexual abuse.”
[12] See M & M (1988) FLC 91-979
The court must bear in mind that proceedings, in respect of care arrangements for children pursuant to the Family Law Act 1975, are not strictly disputes between the parties involved because the primary enquiry is into the result which will best serve the interests of the children concerned. Nor, where there are allegations of sexual abuse, are they criminal proceedings.
In M & M, the High Court formulated the test, which has been referred to as the “unacceptable risk test” as a standard to achieve a balance between the risk of detriment to a child from sexual abuse and the possibility of benefit to the child from parental access. The High Court said as follows:
“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.”[13]
[13] See M & M (supra) at page 77,081
In W and W [Abuse allegations: unacceptable risk][14] the Full Court summarised a number of authorities dealing with abuse allegations. In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[15]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often by required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[14] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[15] See N & S and the Separate Representative (supra) at page 82,713-82,714
With these considerations in mind, I will now turn to the evidence, available in the case, in more detail. The central issue in the case remains what is the outcome likely to be in X’s best interests, including how she may be best protected from being subjected to abuse within the statutory definition provided.
The evidence
In these reasons for judgement, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[16] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[17]
[16] See Evidence Act1995 (Cth) at section 140
[17] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
In addition, I bear in mind section 140(2) of the Evidence Act, which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
These criteria reflect the well-known comments of Dixon J, in the case of Briginshaw v Briginshaw[18] as follows:
“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.”
[18] Briginshaw v Briginshaw (1938) 60CLR 336 at 362
I acknowledge that it is a very serious matter for one parent (or indeed an expert charged with investigating a particular family dynamic) to make an allegation that the other parent concerned has deliberately manipulated a child of tender years to make a disclosure of sexual abuse, which he or she knows to be false, against that first parent.
Few issues precipitate such strong emotional reactions, in the individuals concerned and the community generally, as do allegations of child abuse. If credence is attached to such allegations, the ramifications are likely to be significant for the individual concerned.
Perpetrators of such abuse are likely to be reviled by or ostracised from the community in which they live. Inevitably their relationship with their child or children will be affected by the stigma associated with such allegations. If the matter is formally investigated, there is the possibility of criminal charge and conviction.
Accordingly, the possibility that a person would knowingly fabricate such an allegation is a matter of the upmost gravity, given the potentially deleterious consequences for the person falsely accused. In theoretical terms, the fact that a person would utilise a child, in order to possibly damage another individual, in such a serious way, must be regarded as a heinous action.
In this context, I bear in mind the Briginshaw strictures. Mr Rivas invites the court to make a finding that Ms Stephen maliciously fabricated allegations of sexual misconduct, involving X, against him and in so doing enlisted X as her agent.
From his perspective, such an action can only be designed to subvert his loving relationship with his daughter and to do him personally the maximum amount of harm. In these circumstances, he would submit that the only proper way to characterise Ms Stephen’s actions is that they are wicked.
On the other hand, Ms Stephen asserts that she made an innocent mistake, for which she has personally apologised to Mr Rivas. It is her case that she only wanted to do what was best for X and did not mean to inflict harm on Mr Rivas personally. This is the central evidentiary issue in the case. It is one involving high stakes for both Mr Rivas and Ms Stephen.
In my estimation, Mr Rivas is a vulnerable person. He struck me as being something of a loner. Mr Rivas has had limited educational opportunities and has problems reading and writing. He does not have an assertive personality. He cannot be regarded as a worldly or sophisticated person. He has had few, if any, intimate relationships, since his brief involvement with Ms Stephen. He gave his evidence in a quiet and deliberate manner.
The overall impression I have of Mr Rivas is of a guileless person, who loves X deeply. He did not appear to hold any strong recriminations, one way or the other, against Ms Stephen. Rather, he just seemed worn out by what he regarded as her unstable and melodramatic lifestyle and her contrary and difficult attitude towards him. I found him to be an intrinsically honest person. As such I accept his evidence as truthful.
In contrast, Ms Stephen is a worldly person, accustomed to dealing with those in authority. Superficially, Ms Stephen appears articulate and assured. She is certainly more forceful than is Mr Rivas. I also consider her to be more calculating than he is. She, too, is a person of some vulnerability, as a consequence of a dislocated and quite possibly an abusive childhood and current financial disadvantage.
Regrettably, it is my view, that Ms Stephen, perhaps in large part due to her disadvantaged childhood, is a person with a propensity to manipulate situations and events to secure what she perceives to be her own advantage, at the time. In so doing, in my assessment, she does not always adhere to the strict truth. She is also likely to act impulsively, without any consideration of the consequences of her behaviour. In the overall context of this case, I did not believe significant components of her evidence.
However, I acknowledge that any case, involving issues of possible sexual abuse of a child, inevitably create strong feelings and are liable to blur the judgement of those involved in them. At the time of the alleged disclosures, X was five years of age. Ms K reports that she is not a verbally sophisticated child for her age.
It is also patently the case that Mr Rivas and Ms Stephen do not know each other very well at all. The only thing they really have in common is X. Accordingly, they have little capacity to discuss things, relevant to X, calmly and respectfully. Clearly this state of affairs provides fertile ground for innate seeds of suspicion and mistrust to incubate and multiply.
It is one thing to have a hysterical over-reaction to an innocent but ambiguous statement made by an inarticulate child, quite another to knowingly manipulate a child to disclose something sinister to persons in authority. In my view, there are also likely to be graduations, in the malignity of conduct, in between these extremes.
It may ultimately prove impossible to determine precisely what, if anything, X said to her mother and Mr L and what each of them thought she meant by it, both at the time and afterwards. It is also possible that the motivations of both Ms Stephen and Mr L have changed over time, as the circumstances have changed.
In addition, it may prove difficult, if not impossible, to determine what degree of conscious influence Ms Stephen has exerted over X. In her repeated responses to what the child has said to her, Ms Stephen may have unwittingly primed the child, in some way. Where influence begins and ends, in what a child says to anyone, is necessarily imprecise.
Inevitably, over the period from the time the disclosures were made, until the involvement of the professional investigators, the well will have become well and truly muddied, particularly given the heightened emotions the situation is likely to have precipitated.
Although I have found Ms Stephen to be lacking in credibility at times, in my assessment, she is unlikely to be capable of planning a deception of the highest degree of sophistication and maintaining it over time. In my view, she is more likely to seize on things opportunistically, without any great degree of thought for the long term consequences of her behaviour.
She is also likely to be mistrustful of those in authority and so be reluctant to admit she is wrong or has over-reacted, particularly if such conduct does not suit her long term agenda. In such circumstances, she is likely to stubbornly stick to her guns and hope to bluff things out.
Clearly, in determining these complicated issues, which have such important implications for X, much will turn on the court’s assessment of the professionalism and objectivity of the CPS investigation. This was overseen by Ms M, a senior social worker at Families SA and by Mr R, a psychologist at the CPS.
The court was fortunate that both Mr R and Ms M were able to give evidence in the case. On any view, the CPS report compiled was a comprehensive and detailed document. I found both Mr R and Ms M to be conscientious and objective investigators, whose expertise cannot be questioned.
Both Mr R and Ms M formed a negative view of Mr L because of what they regarded as his bizarre comments made to them during the course of their investigation. Both were concerned that Mr L might be psychiatrically compromised.
Mr L is an important factor in Ms Stephen’s case. She asserts that he has been integral to her parenting of both X and Y. In these circumstances, the court’s assessment of his personality and level of insight is likely to be crucial.
Mr L is not an orthodox person, in either his views or interests. He is an autodidact, with an interest in the arcane, including such things as chakras – bodily energy points in the Hindu tradition – and the enigma codes – Nazi cyphers used during World War 2. He is a qualified (occupation omitted) but has not worked for a number of years. He has taught himself skills in (omitted); and (omitted).
Mr L indicated that he was currently unable to work because he suffers from agoraphobia and has a need to get away from people. He also deposed that he been assaulted many times to the head. He sees a psychologist, from time to time, who has apparently diagnosed a PTSD, but Mr L is not in favour of taking anxiety medication for himself.
I must be careful not allow Mr L’s unusual interests to prejudice me against his evidence as a whole. I am concerned that Mr R may have unwittingly allowed himself to have been distracted by such things as Mr L’s claim to have solved the enigma codes and his unusual presentation.
Mr L explained that he solved the enigma codes with a computer program, which he had devised. Given modern advances in computing, this did not seem to me to be fanciful. In his evidence before me, Mr L seemed to be orientated appropriately, in time and space, and answered questions asked of him appropriately.
However, some of his answers did cause me concern. Most particularly his view that he no-longer considered Mr Rivas to be a paedophile because he (Mr Rivas) now appeared to be genuine and had started to look him (Mr L) in the eye and to hold himself differently at handovers of X, which had apparently not been the case following the alleged disclosures, when Mr L had considered him not to look genuine. He also said that Ms Stephen had been quite accepting of his assessment in this regard.
In this context, Mr L said he would be surprised to learn that Ms Stephen had maintained her belief in the allegation of sexual abuse concerning X, in her trial affidavit, because he thought that he and Ms Stephen had come to another view about the abuse allegations.
Mr L is closely aligned with Ms Stephen and her interests in the outcome of these proceedings. He is concerned at the possibility of Y and X growing up in separate households. I accept that he has a close relationship with both X and Y and wishes to continue to spend as much time as possible with both children.
In these circumstances, it seems to me to be likely that he has under-reported the significance of incidence of a number of domestic disagreements, between him and Ms Stephen, to which he concedes police were summoned by a neighbour to their home. In addition, it is my assessment that Mr Rivas is likely to be the more accurate witness in respect of an incident of violence which occurred between Mr L and Ms Stephen in 2009.
In the past, Mr L has not been well-disposed to Ms S, describing her as a greedy little granny, as a consequence of his perception that she was encouraging Mr Rivas’ application to the court so that she could have more time with X, at the expense of X’s relationship with her mother.
Mr L has filed only one affidavit in the proceedings. Mr L indicated that he was willing to provide a further affidavit, in support of Ms Stephen, if the case proceeded to trial, no such affidavit was forthcoming. In his affidavit, Mr L provides no evidence whatsoever regarding the disclosures X is alleged to have made, although there is no doubt that that he was present, on Ms Stephen’s case, when the disclosures occurred.
It seems more likely than not that Mr L and Ms Stephen have discussed the evidence, which each will give in these proceedings, to ensure it is consistent. In these circumstances, I believe I need to approach Mr L’s evidence cautiously, particularly in terms of what he has said about X’s disclosures during the course of his oral evidence.
Mr L’s evidence is that he and Ms Stephen have been separated since early 2011, although he comes to her home each day from early in the morning, until late at night, sometimes sleeping over on a couch in the living room. In my view, this is unusual conduct for a separated couple.
He denied that social security considerations had anything to do with the arrangement, which he deposed was designed to ensure the children concerned could still have a decent relationship with their father. I am somewhat dubious about this assertion and much of Mr L’s evidence generally.
Ms S is a formidable and conservative person of the old school. She is seventy-five years of age, but still engaged in part-time work, as a (omitted), by the (employer omitted) – she visits (omitted) persons in custody at the (omitted) Police Station. Previously, she worked for the (employer omitted), as a (omitted).
Ms S is a decent and responsible person, whom I assess to be a reliable historian. As such, I accept her evidence. She explained that Mr Rivas was profoundly deaf in one ear and had short term memory problems. She attributed these difficulties to the fact that Mr Rivas’ mother had contracted German measles, whilst pregnant with him.
Mr Rivas is fortunate to have the support of Ms S, to whom he respectfully refers as grandma. She assists him with remembering appointments but does not otherwise help him in managing his money and other financial affairs. Ms S indicated that Mr Rivas can read but not fluently.
Ms S shares few points of common reference with Ms Stephen, a person of whom she most certainly does not approve, regarding her as disingenuous and slovenly. In her evidence, she frankly said that she did not like Ms Stephen.
Ms S has methodically documented what she perceives to be Ms Stephen’s shortcomings, as a parent, in a diary which she maintained since August of 2010 and in photographs, which she has taken of X.
The diary is a useful document, but is likely to be highly selective in its contents. Ms S is not likely to record any positive interactions between her and Ms Stephen. Ms S views Ms Stephen through a prism of hostility. Nor is the diary a verbatim account of everything said between the mother and Ms S, as a comparison of the diary with what Ms S said to Families SA, in respect of the first sexual abuse disclosure, reveals.
It is difficult, if not impossible, for me to discern anything of great moment from the two photographs of X, which Ms S has provided the court.[19] They are presented in a “before” and “after” format, with the photographs taken in the same place in Ms S’s kitchen.
[19] See annexure C to Ms S’s affidavit filed 24 February 2014
In the first, X appears waif like, with a tee shirt slipping off her shoulder and her hair in disarray. She appears downcast. In the second, her hair is neatly contained in two pigtails and restrained by a princess band. She is beaming broadly.
Ms S deposed that X was not troubled by the process of being photographed, as it was done in a matter of fact way, without explanation. The impression however, witting or unwittingly created, is of a child transformed from Dickensian street urchin to Disney Princess.
The clothes X is wearing in each photo appear acceptable. I cannot, obviously, glean their state of cleanliness from a photograph. Whether the disarray of X’s hair in the former has been achieved in pursuit of fashion, I cannot say. I suspect hairstyles for little girls is likely to be one further, albeit minor, point of demarcation for Ms Stephen and Ms S.
Ms S disbelieves the sincerity of Ms Stephen’s public apology to her grandson, arising from the now withdrawn allegations of sexual abuse of X. She indicated that she was pleased Ms Stephen had apologised for what she had done but dismissed the apology with the expression “words are cheap”.
Ms S has no doubt that Ms Stephen concocted the allegation of sexual abuse, which she regarded as an action of evil. In this context, Ms S was of the view that Ms Stephen was never likely to change. In my assessment, Ms S is a very significant figure in X’s life. She, however, epitomises the gulf between the paternal and maternal aspects of X’s family.
Ms S concedes that for X to come into the care of her father would be a very significant change for the child. She categorises X as an adaptable and happy child, whom she believes would adjust satisfactorily.
After these preliminary comments, made in respect of each of the major witnesses in the case, it is now appropriate to turn to the evidence available in more detail.
Background
Mr Rivas was born on (omitted) 1985. His childhood was a difficult one, as his mother led a peripatetic lifestyle and had problems with alcohol. He did know his natural father for many years. He himself left school early in year 9. His grandparents were stabilising factors in his early life. His grandfather died in 2004.
Mr Rivas acknowledges having had his own problems with alcohol, when he was younger. However, he now rarely drinks. As indicated earlier, Ms S is a very positive influence in Mr Rivas’ life. He has never had regular employment, but does occasional odd jobs, whenever possible.
Ms Stephen was born in (country omitted) on (omitted) 1987. She was brought up by her father and step mother, whom she originally was led to believe was her natural mother. The family migrated to Australia, when Ms Stephen was a teenager. At this stage, Ms Stephen learnt the true status of her step mother.
Ms Stephen’s adolescence and early adulthood were difficult, marked by self-harm, substance abuse and a turbulent relationship with her father and step mother, whom she asserts mistreated her, when she was a child.
It seems that Ms Stephen’s parents have had limited involvement with X, as Ms Stephen has been estranged from them from time to time. When she does see them, there is a high potential for conflict to arise between them. For obvious reasons, Ms Stephen remains resentful at her perception of having been deceived by her father and stepmother, Mr B and Ms C and what she believes has been their abusive parenting of her.
The difficult relationship between Ms C and the mother is relevant to these proceedings for two significant reasons. Firstly, Ms M believes that the mother recklessly exposed X to a spiteful verbal confrontation between her and Ms C, which occurred on 16 April 2013, when Ms Stephen visited Ms C’s home with X, knowing that the overwhelming probability was that there would be an altercation between the two women. X witnessed the altercation, which caused her distress and to wet her pants.
Secondly, it is asserted by Ms M that, approximately a fortnight prior to the notification of sexual abuse being received by Families SA, Mr Rivas arranged with Ms C for X to spend time with her, at the (omitted) Zoo, clandestinely from the mother, knowing that she (Ms Stephen) would not agree to such a visit.
It is asserted, both by Mr Rivas and Families SA, that the mother’s perception that her wishes, in respect of X interacting with her maternal step mother, had been thus flouted by Mr Rivas, providing the motivation for the vindictive and false allegation of child abuse to be made against him.
The relationship between Mr Rivas and Ms Stephen was an extremely brief one, lasting about a month. At the time they met, both were living in (omitted), where Mr Rivas was living with his mother at the time. She has since moved to Darwin.
Ms Stephen lived with Mr Rivas and his mother because she had no other accommodation. Mr Rivas asserts that Ms Stephen was using intravenous drugs at the time. Mr Rivas asserts that he disapproved of this behaviour and asked Ms Stephen to leave. The parties separated several months prior to X’s birth. X’s paternity was confirmed through scientific testing.
Ms Stephen organised this parentage testing. She was required to do so as a condition of her on-going receipt of social security payments. It is an essential prerequisite of such payments that a parent pursue child support from the other parent concerned.
Accordingly, Mr Rivas and Ms Stephen have no experience of having lived together or of parenting X cooperatively. Their relationship has historically been a poor and mistrustful one. For the first twelve months of X’s life, Mr Rivas saw X irregularly and for brief periods. At the end of 2008 and throughout 2009, with the support and encouragement of his grandmother, he began to try to see X more regularly.
At the end of 2007, when X was a few months old, Ms Stephen met Mr L. Y was born on (omitted) 2008. There is a gap of just over thirteen months between X and Y. It is Ms Stephen’s evidence, which appears to be uncontroversial, that Mr L was significantly involved in parenting X from the time she was two and a half months of age.
From time to time, Mr Rivas spent overnight periods, in the home shared by Ms Stephen and Mr L in (omitted), and they in turn, on at least one occasion, spend time at Ms S’s home in (omitted).
All agree that these were, at times, tense arrangements. Mr Rivas is critical of the fact that Mr L and Ms Stephen regularly consumed marijuana, when he stayed over with them. To say that Ms S disapproves of Ms Stephen and Mr L would be an understatement. As a consequence, the arrangements between the parties broke down.
This situation led Mr Rivas, in early 2010, to begin proceedings, in this court, in order to formalise arrangements for him to spend time with X on a regular basis. At this stage, he conceded that he had not seen her since September of 2009.
However prior to this time, Mr Rivas asserts that he had spent time, with X, on an approximate fortnightly basis, invariably with the help of Ms S, who assisted with his transport to (omitted). Against this background, Mr Rivas sought to spend alternate weekends with X.
Both Mr Rivas and Ms Stephen are financially disadvantaged. Mr Rivas suffers from dyslexia. As a consequence, he has struggled to find full-time employment. Ms Stephen has had limited experience in the workplace. Both are reliant on social security. Neither has had personal access to a motor vehicle.
On 25 February 2010, the court made orders for X to spend supervised time with Mr Rivas at a children’s contact centre in (omitted). The rationale for this arrangement being that it was likely to be prudent to proceed in a gradual and cautious way and for the nature of the visits between father and child to be formally documented.
The process of supervised visits ended in June of 2010 and it was apparent from the reporting process that X was comfortable in her father’s presence. On that basis, orders were made for X to spend time with her father, for gradually increasing periods, starting with four hours on each Sunday.
The logistics of handovers were problematic. Mr Rivas relied on Ms S for transport in her car. Ms Stephen was reliant on the train. Ultimately, it was agreed that X would be exchanged at the (omitted) Railway Station. This was closer to (omitted) but enabled Ms S to drive down the (omitted) from (omitted). It was an uneasy compromise.
On 10 February 2012, after a difficult and tortuous process, final orders were made in respect of arrangements for X’s parenting by Mr Rivas and Ms Stephen. This process was facilitated through a sequence of family dispute conferences. The parties agreed that they would share equally parenting responsibility for X, who would continue to live with her mother and Y.
It was further agreed that, once X commenced school, she would spend time with her father, on alternate weekends, from Friday until 3:00pm the following Sunday, or Monday, if it was a public holiday. It was also agreed that X would spend regular periods of time, with her father, during school holidays, of up to a week in length.
It is the position of Mr Rivas and Ms S that these arrangements were continually frustrated by Ms Stephen, who was invariably late at handovers and difficult to deal with. In addition, they were often concerned at X’s physical appearance and emotional presentation, when she did come into Mr Rivas care.
In these circumstances, Mr Rivas and Ms S reached the conclusion that there were significant deficits in Ms Stephen’s parenting capacity and further that there was something significantly remiss in the relationship between Mr L and Ms Stephen and indeed with other of her partners, including a person by the name of Mr C.
However, although Ms S documented her concerns, neither she nor Mr Rivas were minded to challenge formally the parenting status quo, so far as X was concerned. I suspect they considered that there was little prospect of the parenting orders being changed, given the previous history of X’s care.
Notwithstanding the ostensible agreement between the parties which led to the consent orders of 10 February 2012, and apparently positive statements made about the father throughout the process of court ordered family dispute conferences, which preceded the orders, it is now Mr Rivas’ position that Ms Stephen was never committed to X having a proper level of relationship with him.
In support of this position, he points to a message posted on his facebook page, which was ostensibly sent by Ms Stephen on 13 February 2011.[20] The posting followed a weekend visit with X which had been cancelled. The message is cruel and abusive in tone and predicts that X will come to hate Mr Rivas “soon enough” at which stage there will be “nothing a judge can do when she refuses to see you ha ha ha ha ha.”
[20] See Exhibit E
Ms Stephen discerns the message and asserts that it was maliciously sent by Mr C, who had “hacked” her site. This is consistent with apologetic messages sent to Mr Rivas soon after and the absence of any similar messages in the period since. In these circumstances, on balance, I accept the mother’s explanation.
However, I would be naïve to think there were any great stores of affection or respect between the paternal and maternal aspects of X’s family.
To the contrary, the parties fervently mistrust one another. As such, every exchange of X had the potential to breakdown into acrimony. This situation obviously not helped by the considerable logistical difficulties of handover and the different parenting ethos in each of the two households concerned.
On any view, there is a huge gulf, not only in age but also in experience and values between Ms S on the one hand and Ms Stephen on the other. Where the former is likely to be icy in her disdain, the other is likely to be fiery in her rancour. Ms S records that on 20 August 2012 Ms Stephen abused her on the telephone, concluding the call with this statement:
“You know what, you’ll be dead soon and you won’t see X grow up. I’ll make sure she knows what a mean and nasty person you are.”
Ms Stephen denies the thrust of the conversation. She asserts that the worst thing she has ever said to Ms S is “fuck off”. I do not believe that. In my assessment the conversation recorded by Ms S is likely to be more indicative of Ms Stephen’s impulsive and, at times, vindictive mindset towards Ms S, particularly in the context of these difficult and controversial proceedings.
In her evidence, Ms Stephen indicated a belief that she, Mr Rivas and Ms S could “heal” and escape the “mind frame” in which they were all stuck. I am concerned that this is empty rhetoric on her part.
If there is to be a change in living arrangements for X, I doubt Ms Stephen would accept such a change with equanimity, either in the short or long term. To the contrary, she would fight it with every weapon at her disposal, both legitimate and illegitimate. This state of affairs must have implications for X’s emotional well-being, particularly if the court accedes to the father’s proposal.
The uneasy arrangement between Mr Rivas and Ms Stephen, in respect of X, came to an abrupt and dramatic end in January of 2013, when Ms Stephen notified police and the child abuse line that X had disclosed to her that Mr Rivas had been touching her in an inappropriate and sexualised way.
This allegation of significant abuse led to the involvement of Families SA, the organisation charged with the statutory responsibility for the protection of children in South Australia, becoming involved with the family.
Ultimately, the CPS in conjunction with the South Australian police conducted a formal forensic investigation of the allegations, which involved the interview of X herself; each of her parents; as well as Ms S and Mr L.
e) The practical difficulties and expense of the child spending time and communicating with each of her parents
The parties live a considerable distance apart and are likely to remain so. Neither party owns their own vehicle. Mr Rivas relies on Ms S’s vehicle and has only recently been re-licensed. The mother hopes to be gain a licence shortly and has been historically reliant on public transport to get to and from handovers. Mr L can drive but he and Ms Stephen can only borrow motor vehicles and if they do obtain one, it is likely to be in a poor state of repair.
The parties share a similar level of financial disadvantage. Accordingly, in the medium term, it appears unlikely that there will be any significant amelioration in the difficult logistical circumstances arising from the need for X to see each of her parents regularly.
I have no ready answers to these issues. Moving the handover point, for X, from the Adelaide railway station to (omitted), appeals to my sense of fairness. This would be a far easier location for Mr Rivas, particularly when returning X.
However, at the present time, I cannot see that Ms Stephen would be able to commit herself to getting there regularly and reliably. Again, I fear that changing the longstanding arrangements would be a recipe for ongoing instability, in a family which has always been far from stable.
Mr Rivas and Ms S have been trenchant in their criticisms of Ms Stephen regarding her frequent lateness at handover. In this regard, I accept that she and Mr L faced practical difficulties in getting (omitted) to Adelaide, by means of public transport, particularly on Sundays.
In addition, the more recent evidence indicates that they have been more reliable and punctual in their attendances at the Adelaide railway station. It also seems to be the case that the practice of Mr Rivas collecting X from her school has been a success.
f) The capacity of the parties to provide for the child’s emotional and educational needs
X’s attendance at and punctuality for school have been appalling, during the first two years of her primary education. If X is consistently late to school, she is likely to be embarrassed by her lateness in the presence of her classmates. She will feel that she is an oddity in a social context.
In addition, she will miss out on the opportunity to interact with her peers, before school. This may lead her to becoming socially isolated, which in turn may make her reluctant to go to school, compounding the problem. It is in this way that the seeds of persistent truancy are sown with disastrous consequence for the child who does become a truant.
If X misses whole days of school, she will not progress academically. She will not acquire essential life skills in numeracy and literacy, the lack of which may blight her whole life. The evidence indicates that she is already a child with some significant level of educational difficulties. X needs more rather than less school in these circumstances.
The issues arising from an inspection of the school role, for (omitted) Primary School, as it relates to X, and the evidence of Ms Stephen, indicate that there is something at present seriously amiss in Ms Stephen’s home. It is not acceptable for Ms Stephen to sheet home X’s lateness for school on her inability to organise Y better or because the children should not bolt their breakfast.
Mr Rivas and Ms S are likely to be far better organised, so far as getting X to school is concerned, if she comes to live predominantly with them. Ms S runs a tight domestic ship. (omitted) Primary School is a short walk away. I accept Mr Rivas’ evidence that he will be available to escort X to and from school and, as such, X’s attendance will be regular.
Mr Rivas gave evidence as to his domestic capacities. I accept he can provide for X in many of these areas, including cooking her meals. He remains, however, dependent upon Ms S in many ways, not the least of which is accommodation. If X comes to live with Mr Rivas, Ms S is integral to his plans in this regard.
Ms S is a person in her mid-seventies. She is in good health, which I hope remains the position for many years. However, for obvious reasons, it cannot be guaranteed that she will remain as a support for Mr Rivas for the indefinite future.
Mr Rivas aspires to be involved in every aspect of X’s education. However, he resides under a significant level of educational disability of his own. As such, he may find it difficult to assist X with some aspects of her education. He will however introduce X to other interesting aspects of the world, particularly natural history.
Issues relating to X’s emotional security loom large in these proceedings. X needs to feel secure to express her love for her father and great grandmother, wherever she is living. As I have found, there are significant issues surrounding Ms Stephen’s willingness to support X’s relationship with her father and her insight into its importance for X, notwithstanding her recent statements to the court.
However, on the other hand, it is likely to be destabilising for X, in an emotional sense, to move from living with her mother and Y. How she will cope with this is unknown. As with many aspects of this case, there is no easy or obvious answer to this issue.
On balance, notwithstanding his own educational disadvantage, Mr Rivas is likely to be better placed, at this stage, to support X’s educational and intellectual needs, given the level of disorganisation, which I have found characterises Ms Stephen’s home.
In addition, for reasons which I have discussed at length, I have significant concerns regarding Ms Stephen’s capacity to provide for X’s emotional needs and distinguish those needs from her own needs and desires. The most obvious example of this is when she took X to the confrontation with her step-mother and the subsequent use of X in an attempt to penalise Mr Rivas for allowing X to spend time with Ms C.
g) The child’s maturity, sex, lifestyle and background
The parties have similar backgrounds in the sense that both are financially and educationally disadvantaged. I have attempted to closely consider issues arising from the parties’ respective levels of disadvantage, so far as they pertain to X’s best interests, in these reasons for judgment. Neither party should be penalised because of their level of disadvantage per se.
Ms S’s home is likely to be better resourced financially than is Ms Stephen’s home. This is because Ms S has some modest income and is likely to be a better financial manager. However the distinction is not likely to be extreme. There are likely to be financial pressures, from time to time, in both households.
In my view, there is not likely to be a great gulf, in experience for X, in material terms, between her mother and her father’s household. In addition, in my view there are no other characteristics pertaining to X, arising from her sex, age and background which are otherwise relevant in this case.
h) Aboriginality
This is not a relevant consideration in this case.
i) The attitude that each parent has demonstrated to the responsibilities of being a parent
In general terms, I accept that both Ms Stephen and Mr Rivas aspire to being good parents for X. However, up to this stage, Mr Rivas has been largely untested in respect of any discharge of the responsibility to parent X, on a day to day basis. For historical reasons, these responsibilities have fallen on Ms Stephen’s shoulders.
For reasons already enumerated, I am satisfied that Ms Stephen has been found wanting, in a number of significant areas, so far as her discharge of parental responsibility for X is concerned. In particular she has been found lacking in the discharge of her responsibility to ensure that X attends school regularly.
In addition, she has been found wanting in one of the most fundamental areas of parental obligation – that is the requirement to support and facilitate a close and loving relationship between the child concerned and the other of her parents.
The difficulty, in this case, is that Mr Rivas remains untested in these areas, particularly on a day to day basis. He does however have the support of Ms S, who is a well organised and experienced person. As such, she represents a valuable resource, for Mr Rivas, in his parenting of X.
j) Family violence
k) Any family violence order
As far as I know, there are no family violence orders relevant in these proceedings. The unstable nature of the relationship between Ms Stephen and Mr L and its propensity to become violent is a major source of concern in this case.
I accept that Ms Stephen and Mr L do not have an orthodox relationship with one another. It seems to be the case that although still significantly involved with one another, their intimate relationship is waning. In my view, there is no authoritative evidence to support a finding that Mr L suffers from a mental illness. He is, however, an unusual person.
In my view there have been many pressures in Ms Stephen’s life, not the least of which are a significant level of financial disadvantage and her tempestuous and troubled past. These are factors which are likely to exacerbate rather than diminish the prospect of her having a labile personal life.
Exposure to family violence is potentially very detrimental for children. For this reason, the protection of children from exposure to it is emphasised in the Family Law Act. However family violence is not necessarily a homogenous concept. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[36]
[36] See JG & BG (1994) 18 Fam LR 255 at 261
Not all incidents of family violence will be necessarily damaging for a child. In this context, many of Mr Rivas’ concerns have come indirectly from X. As such, at this juncture, the evidence that X has been exposed to family violence is imprecise and much of it is historical. I do regard this evidence as important and it remains one of the factors in the mix so far as the ultimate outcome of the case is concerned. However, I do not regard the evidence as being decisive in this regard.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
Whatever is the outcome in this case, it is hard to rule out the possibility of further litigation between the parties and resultant instability for X. As I have previously indicated, if X goes to live with her father, I consider it highly improbable that Ms Stephen would meekly accept such an outcome. This is not a good harbinger for the avoidance of future litigation.
In addition, one of my major concerns in this case is the untested nature of Mr Rivas parenting of X, on any protracted basis and the uncertainty of how X will react to a significant change in her circumstances.
Finally, although Ms Stephen has lived at the same address for many years, her personal life is not one which can be described as inherently stable. She is likely to be a person beset by all manner of personal crises from time to time. Again these situations are likely to be conducive to more rather than less conflict between the parties and so increase the prospects of further litigation.
Although it is imprudent to attempt to predict the future, I consider leaving things, so far as X is concerned, as they are, is the outcome least likely to lead to more litigation between the parties. Again, however, this is not a decisive factor in the outcome of the case. Rather, it is another factor in the overall mix.
Presumption of equal shared parental responsibility
Mr Rivas asserts that the nature of the parties’ current parental relationship is so conflicted that it is impossible for them to share parental responsibility for X. His case is predicated on the basis that he should have sole parental responsibility and X should live with him.
I am unsure of what is position would be if the court’s view is that X should remain living mainly with her mother. I assume that he would not wish to be excluded from the decision making process, so far as X is concerned. Certainly, I anticipate he would want to be involved in the making of decisions relating to X’s education and any significant medical issue.
The mother and independent children’s lawyer urge the court to make an order that would see the parties sharing parental responsibility for X equally. Whatever is the outcome of this case, it seems obvious that both Ms Stephen and Mr Rivas will remain vitally interested in every aspect of X’s care and development. This is because they both love X.
As such, this is not a case where either party can be described as being disinterested in X’s care, welfare and development. In these circumstances, in my view, it is a significant thing to deprive a parent of parental responsibility for a much loved child. I accept that both Mr Rivas and Ms Stephen aspire to having an ongoing parental role for X.
I would hope that one further characteristic which both Mr Rivas and Ms Stephen share is a hope that X will have a happy childhood and reach her full potential. In Bartel & Schmucker (No 3)[37] Cronin J said of the concept of parental responsibility that it:
“… is a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.”
[37] Bartel & Schmucker (No 3) [2012] FamCA 1094 at [21]
Given the parties’ likely common aspirations for X, in my view, it would be a significant thing to confer parental responsibility for her on one parent, notwithstanding the significant communication difficulties between the parties and their lack of a shared history of parenting X together.
In these circumstances, I have come to the conclusion that the presumption of equal shared parental responsibility should be applied in this case. I do not think that it is rebutted by considerations of abuse or family violence.
However, not the least for practical reasons, it is not possible for an order to be made for the child to live with each of her parents for equal periods of time. Rather, a very difficult decision must be made as to whether the significant concerns which have arisen regarding Ms Stephen’s parenting of X, up to this stage, justify a change in X’s living arrangements, notwithstanding the uncertainty which surrounds such a change, which I have earlier characterised as a leap into the dark.
Conclusions
This is not an easy case for me to decide. I have very grave concerns about many aspects of Ms Stephen’s parenting of X. The most significant concerns, which I have, relate to X’s perennial absences from school and her attempted manipulation of X to cause catastrophic harm to Mr Rivas, X’s father. That Ms Stephen would use X, in such a way, demonstrates a flawed level of insight into what it is to be a competent and emotionally capable parent.
It is not a pleasant task to have to make so many findings regarding Ms Stephen’s failings as a parent and a person. I have found her to be, at various times, disingenuous and manipulative. I regard her apology to Mr Rivas, following her attempt to destroy his character and his relationship with X, to be insincere and contrived. On at least two significant occasions, I have found that she has put her personal need for retribution over Mr Rivas and her step-mother, above X’s emotional needs.
On the other hand, I have found Mr Rivas to be a decent and unassuming person, who has withstood the slings and arrows flung at him with patience and good grace. He clearly loves X to bits. As such, he has much to offer her, not the least of which is unconditional love, without any strings attached.
Similarly Ms S is a decent person of the old school. She has stood by her grandson and supported his relationship, with X, in difficult circumstances. However, the case is not to be approached on the basis that X is to be awarded, like a prize, to reward the more deserving party – Mr Rivas and Ms S nice; Ms Stephen and Mr L not so nice.
Rather how X’s best interests will be served requires a careful synthesis of many factors. Notwithstanding my trenchant criticisms of Ms Stephen, the fact remains that X has lived with her since her birth and in the early years of her life she had extremely limited interactions with her father. In addition, hitherto X has always lived with her little brother Y and shared the same experiences with him.
In these circumstances, it seems self-apparent that to change X’s living arrangements, in the manner envisaged by Mr Rivas, could only be described as a dramatic and life-altering change. If such a change is to occur, in my view, it should only happen in response to a situation which provides no alternative because the risk to the child of remaining in the existing situation is so extreme.
I am not satisfied that the risk, in this case, has reached that level of extremity, although it has come very, very close to it. I am also apprehensive that abruptly changing X’s living arrangements, given the historically conflicted circumstances of the parties, has the potential to inaugurate a further and perhaps more protracted period of conflict and instability in X’s life, with serious consequences for her.
The parental relationship between the parties is fraught for all manner of reasons, not the least of which are the circumstances surrounding X’s conception and what happened afterwards. In my view, in such circumstances, it behoves the court to take a cautious approach before it embarks upon any wholesale and dramatic changes in a child’s life.
Many risks remain and many question marks arise in respect of Ms Stephen’s parenting of X. I accept however that she loves X very much indeed. She needs to do better, particularly to ensure X has a proper level of education. Ms Stephen is many things, but she is not a fool. I consider that she has learnt a salutary lesson from the Families SA investigation and these subsequent proceedings. As a consequence, I assess that the prospects of X being used in future, so overtly, as a means of doing harm to Mr Rivas are remote.
The risk that Ms Stephen will continue to disparage Mr Rivas and undermine his relationship with X in more covert and subtle ways remains. The fact is however that, for the remainder of her childhood, X will have to move between two households which mistrust each other. Her psychological situation, for a variety of reasons, is far from optimal.
In all these circumstances, I do not consider that the risk to X currently of suffering further emotional abuse, through the agency of her mother, is so extreme as to justify a potentially risky change in arrangements for her care. To the contrary, I fear that to change her living arrangements precipitately might be a catalyst for a greater level of emotional instability for X.
The independent children’s lawyer’s final written submission to the court contains the following statement:
“Notwithstanding her appalling lack of judgement with respect to managing the allegations of abuse made against Mr Rivas, and her inability it seems to get X to school on time regularly, a change of primary care to the father is not supported by the independent children’s lawyer.”
I share those sentiments. Ms Stephen has displayed an appalling lack of judgement from time to time, but I fear that a precipitate change of arrangements, for X, in response to that lack of judgement, is likely to have uncertain and unpredictable consequences for X, which I am unwilling to risk at this stage.
In my view, X has a need for emotional stability, which has historically been provided for her, more in her mother’s than her father’s household. In these circumstances, I have come to the conclusion that the orders proposed by the independent children’s lawyer, at this stage, are more likely, on balance, to provide for X’s best interests than the significant change proposed by Mr Rivas.
For the reasons already provided, I do not propose to change the alternate place of X’s exchange between the parties, away from the (omitted) Railway Station. I will make the injunction proposed by Ms duBarry to underline to Ms Stephen that it is unacceptable for her to undermine X’s relationship with her father.
I will make an additional injunction restraining her from disparaging or rebuking or otherwise denigrating Mr Rivas to X or permitting any other person to do so.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and eighty (580) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 22 September 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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