Robinson and Shannon
[2015] FamCA 1124
•16 December 2015
FAMILY COURT OF AUSTRALIA
| ROBINSON & SHANNON | [2015] FamCA 1124 |
| FAMILY LAW – CHILDREN – sole parental responsibility – the mother to spend supervised time – the mother to comply with medical treatment – where the mother is an unacceptable risk to the children – where the risk may be ameliorated with supervision – where the mother suffers from a delusional disorder. |
| Family Law Act 1975 (Cth) ss 4 4AB 60B 60CA 60CC 61DA 65DAA 65DAC Evidence Act 1999 (Cth) s 140 |
| Banks & Banks [2015] FamCAFC 36 B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr Robinson |
| RESPONDENT: | Ms Shannon |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Purcell |
| FILE NUMBER: | TVC | 853 | of | 2010 |
| DATE DELIVERED: | 16 December 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 30 November 2015 and 1 December 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hibble |
| SOLICITORS FOR THE APPLICANT: | Dillon Bowers Lawyers |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr Pennell |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Purcell Taylor Lawyers |
Orders
All previous parenting orders are discharged.
Mr Robinson (“the father”) have sole responsibility in relation to the major long term issues relating to M born … 2004 and B born … 2007 (“the children”).
In the exercise of his parental responsibility, the father shall:
(a)Notify Ms Shannon (“the mother”) in writing (either by letter or email only) in advance of any long term decisions that need to be made;
(b)Consider any views expressed by the mother concerning such decisions but without being bound by such views.
Notwithstanding Orders 2 and 3 hereof:
(a)The father shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with him; and
(b)The mother shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with her.
The children live with the father.
Subject to the time being supervised as provided in order 10 hereof, the children spend time with the mother at all reasonable times as agreed between the parties and failing agreement:
(a)Each Wednesday from 3:30pm to 7.30pm;
(b)From 3:30 Friday until 7:30 Sunday each alternate weekend.
If the children are with the father, then subject to the time being supervised as provided in order 10 hereof, the mother spend time with the children on the following occasions:
(a)On Mother’s Day from 9:00am until 7:30pm;
(b)On the mother’s birthday if on a school day from 3:30pm until 7:30pm, and if a non-school day from 9:00am until 5:00pm.
(c)On the children’s birthdays if on a school day for at least two (2) hours and failing agreement between 3:30pm until 5:30pm, and if a non-school day for at least four (4) hours and failing agreement from 12:00pm until 4:00pm.
If the children are with the mother, then the father spend time with the children on the following occasions:
(a)On Father’s Day from 9:00am until 7:30pm;
(b)On the father’s birthday if on a school day from 3:30pm until 7:30pm, and if a non-school day from 9:00am until 5:00pm.
(c)On the children’s birthdays if on a school day for at least two (2) hours and failing agreement between 3:30pm until 5:30pm, and if a non-school day for at least four (4) hours and failing agreement from 12:00pm until 4:00pm.
In relation to the period Christmas Eve to Boxing Day each year, the following apply:
(a)Subject to the time being supervised as provided in order 10 hereof, the children spend time with the mother from 2:00pm Christmas Eve to 2:00pm Christmas Day in odd numbered years and from 2:00pm Boxing Day in even numbered years;
(b)Subject to the time being supervised as provided in order 10 hereof, the children spend time with the father from 2:00pm Christmas Eve to 2:00pm Christmas Day in even numbered years and from 2:00pm Christmas Day to 2:00pm Boxing Day in odd numbered years.
The mother’s time with the children shall be supervised at all times by either:
(a)Mr S Shannon (“the maternal grandfather”) or other supervisor agreed between the parties, provided that such supervisor (other than a Contact Centre) has first given an Undertaking in terms similar to that already signed by the maternal grandfather; or
(b)The D Contact Centre, in which event, the time that the mother spends with the children shall be the maximum amount which that centre can facilitate from time to time.
The mother shall be entitled to telephone the children on Monday following the father’s weekend between 7:00pm and 8:00pm with the father to supervise the telephone calls by placing the phone on speaker phone. The mother shall also be entitled to communicate with the children by email, with the father being permitted to monitor all email communication.
If the children express a wish to speak with the other parent, the parent who the children are with will facilitate the children having telephone communication with the other parent, provided however that the father shall supervise any call to the mother in accordance to paragraph 11 of these orders.
Unless agreed otherwise, changeovers occur with the father to be responsible for delivering the children to the maternal grandfather’s home at the commencement of each visit and the maternal grandfather will be responsible for returning the children to the father’s home at the conclusion of each visit provided that the mother shall not accompany the children upon their return to the father’s residence. The mother will not be present at changeover at the beginning or the end of any visit.
The mother and father shall keep each other informed of their contact telephone number and addresses and will advise the other within forty-eight (48) hours when there is a change to such details.
If either parent intends to take the children out of the D Town locality (not including F Town) for a period of in excess of forty-eight (48) hours, then they are to provide in writing to the other parent a contact address, contact telephone numbers and details of where the children will be travelling to and if the children are flying, then flight itineraries for the children’s flights.
Neither parent shall consume alcohol in excess of the legal driving limit whilst the children are in the care.
Neither parent shall consume nor be under the influence of illicit drugs whilst the children are in their care.
Each parent be restrained and an injunction issue restraining each parent from denigrating the other parent or their partners to/or in the presence or hearing of the children and both parents use their best endeavours to ensure that no other person denigrates the mother or the father or their respective partners to or in the presence of the children.
The mother be restrained and an injunction issue restraining her from subjecting the children to any allegations of sexual abuse relating to their father or other abuse directed to them by their father or any undue questioning about what happens when the children are in their father’s care and further that the mother at no time remove the children’s clothes in order to examine their genital areas or remove and retain their clothing for any related purpose.
On a six monthly basis, the mother provide to the father confirmation from her general medical practitioner that she is complying with her treatment, including attending regular medical reviews and taking prescribed medication.
The father and the children attend Centacare for parenting support and counselling and referral of the children to CASPAS for education and support.
The mother will not communicate with the children by their mobile phone/s at any time without the father’s prior written consent.
The mother have liberty to apply, no earlier than 12 months from the date of these orders, to seek:
(a)That the requirement for supervision of her time with the children be removed or varied; and/or
(b)That her time with the children be increased.
The mother have leave to publish:
(a)Any or all of the Family Reports prepared in these proceedings; and
(b)The reasons for these orders, published on 16 December 2015;
to her mental health therapists from time to time.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Robinson & Shannon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC853/2010
| Mr Robinson |
Applicant
And
| Ms Shannon |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
As ultimately formulated, Mr Robinson (“the father”) sought orders that M (born in 2004 and hence presently 11 years of age) and B (born in 2007 and hence presently 8 years of age) (collectively “the children”) live with him, and that he have sole parental responsibility for them. He further proposed that Ms Shannon (“the mother”) would spend regular supervised time with the children, and in the event that Mr S Shannon (“the maternal grandfather”) was prepared to supervise the mother’s time, that it extend to overnights. Otherwise he proposed that the mother’s time be supervised at a Contact Centre. He justified these orders on the basis that the mother presents an unacceptable risk of harm to the children if she were to spend unsupervised time with them, based upon her suffering from paranoid delusional disorder.
For her part the mother sought orders that she and the father have equal shared parental responsibility for the children, who would live with her and spend five nights each fortnight with the father, together with one half of all school holidays.
The Independent Children's Lawyer supported the orders sought by the father.
BACKGROUND FACTS
The father
The father was born in D Town in 1979, and hence is presently 36 years of age. He left school half way through year 10 and commenced an apprenticeship as a carpenter. After four years in that trade, he then worked for five years in the building industry before moving on to working with machinery. His skills enabled him to profitably renovate houses for a profit. He was about 24 years of age when he met the mother in 2002 and commenced a de facto relationship with her.
The mother
The mother was born in D Town on 6 May 1982 and hence is presently 33 years of age. Her parents separated when she was relatively young, and although it appears as though initially she and her siblings lived in Darwin with her mother, she told Dr R, a psychiatrist who examined her for the purposes of these proceedings, “mum sent us to dad’s for a holiday and never came back.” The maternal grandmother in fact then moved to Country G, and later Canberra; the mother and her siblings remained with the maternal grandfather in D Town. Dr R said that the mother “appeared to still feel a great sense of misgiving about having been abandoned by her mother.” As it transpired, the mother did not spend any time with the maternal grandmother between grade 6 and grade 9, and then did not see her again until grade 12.
The mother completed her schooling to year 12 in D Town and then undertook tertiary study and obtained a Batchelor degree.
She was about 20 years of age when she met the father and commenced a relationship with him in 2002.
The relationship
Initially the parties’ relationship was experienced by both of them as “good.” During the course of the relationship, which concluded in late 2010, the parties renovated and developed a number of houses together. M was born in 2004, followed by B in 2007. The mother identified that the relationship commenced to founder after the birth of B. She says that the father commenced to gamble with her money, and became violent towards her. I will consider the allegations of violence in due course. The mother also became suspicious, and later believed, that the father was having sexual affairs with a friend of hers, and his sister-in-law.
In 2009 the parties moved from D Town to Adelaide, and purchased six acres of land with the intention of developing a home on it. However it seems as though the father found it difficult to obtain work in Adelaide, and there was consequent financial stress in the household. He says that there were a lot of arguments and fighting about money. The father concedes that during those arguments he would become angry and abusive, and from time to time push the mother, although he denies that he ever hit her. Ultimately in late 2010, the mother accompanied her brother (who had come to visit them in Adelaide) back to D Town, taking the children with her. The parties agree that that effected separation between them, and was the conclusion of their de facto relationship.
Post-separation
Because of the uncompleted renovation on the property in Adelaide, the father could not immediately follow the mother to D Town. Ultimately he did so in March 2011, however by then the mother had moved to F Town, which is an island suburb of D Town.
The father accepts that during the early stages of separation, particularly when he was in Adelaide, he behaved badly towards the mother and wrote a number of abusive text messages or emails. He concedes that at the time he was regularly smoking marijuana, and abusing alcohol. Now is an appropriate place to record that in his evidence, the father made a number of concessions against interest, and appeared to have insight and remorse as to his poor conduct in the past. This, together with what I assess to be his general candour, leads me to generally accept his evidence. On the other hand, in light of the mother’s diagnosed paranoid delusional disorder, in controversial matters, there is a serious question mark hanging over the reliability of her recall. Where her evidence is in conflict with the father’s, I generally prefer the father’s.
After he returned to D Town, the father commenced to spend gradually increasing time with the children. On 6 August 2010 a Registrar made consent orders concluding the parties’ property issues. At about the same time they came to an agreement in relation to the extent to which the mother would claim child support from the father, but the father says that the mother later resiled from that agreement. It also appears as though the father became upset that the mother had quickly formed a relationship with another man, and he himself had some difficulties with a subsequent relationship proving difficult.
Further, it seems that in about 2011 (although a precise time is difficult to pin point on the evidence) the mother began to believe that the father had, when M was very young, digitally penetrated her vagina whilst showering with her. She says that she recalled that she had confronted the father in relation to this at the time, but he denied it. She also says that she recalled that she had observed the father with his hands in the vicinity of the girls’ groins or upper thighs on occasion during the relationship. For his part the father denies ever having sexually interfered with either of the children.
Whether in consequence of these recollections, or something else, it appears as though around late 2011, the mother became upset with the father and ceased his contact with the children for somewhere between 10 and 15 months.
In consequence, on 13 May 2013, the father commenced these proceedings in the Federal Circuit Court, and on 2 July 2013 Judge Coker made interim orders pursuant to which the father would spend alternate weekends with the children. On 2 September 2013, his Honour increased the father’s time to two of every three weekends, and transferred the proceedings to this court in view of allegations which the mother by then had made that the father had digitally penetrated M during the course of the relationship. On 16 September 2013 the matter was designated Magellan.
On 21 November 2013 a Family Report by Ms T was made available to the parties. It appears to have been the first occasion in which issues surrounding the mother’s mental functioning were raised. In part that is likely because the mother’s allegations against the father had by then developed a bizarre aspect to them. For instance, at paragraph 40 of that report, it is recorded that the mother told Ms T of “repressed” memories which dated back to 2006 or 2007. She believed they were repressed because the paternal grandmother had drugged her to supress them. The memories repressed – but by then recovered – included that the mother had been required by the father and his brother to perform oral sex on her sister-in-law.
Unsurprisingly, Ms T recommended that the mother undergo a psychiatric assessment, which was undertaken by Dr R in February of 2014. Dr R’s report is dated 7 April 2014 and concluded that the mother has a paranoid delusional disorder. He recommended that the mother undertake psychiatric treatment through a specialised mental health service, and that the care of the children transfer to the father, with the mother only having supervised time with the children. Whilst he expressly adverted to his concern about the father’s use of marijuana if he were to become the primary carer, he said he “would not take the extreme position regarding this issue” which I infer to mean that he did not regard it as disqualifying, given the mother’s mental health issues.
The father did not bring an application for orders in accordance with Dr R’s recommendations, but chose to await the recommendations of a further Family Report. That report is dated 21 July 2014, and was again undertaken by Ms T. She recommended that the care of the children transfer to the father and the mother commence supervised time with the children, and undertake the specialist intervention recommended by Dr R.
On 22 July, for reasons which are impossible to discern, the mother’s then solicitor wrote to the father’s solicitors, forthwith suspending the father from spending any time with the children under the then prevailing orders. It may have been in response to the Family Report; I simply do not know.
On 24 July 2014 the mother’s then solicitor explained to her the likely consequences of the recommendations of Dr R and Ms T. The mother became extremely agitated. She started yelling, and rejected all attempts to get her to calm down. Alarmingly, she said that if the court took the children off her she would leave, but refused to tell her solicitor where she would go.
The mother became even more agitated. In consequence her solicitor did two things. The first was to call police. The second was to telephone the father’s solicitor to arrange for the father to come to the office and collect the children, as the solicitor had formed the view that the mother was so angry that she presented a danger to them, particularly given her threat to “leave”. The police (and it seems, officers of the Department of Communities, Child Safety and Disability Services, who had also by then attended) supported the solicitor’s opinion and proposed course of action.
The father attended the mother’s solicitor’s office. When the mother realised he was there, and that the children were to be taken from her and given to him, she became incensed. She drove away in her car, and shortly afterwards collided with a power pole with such force that it was knocked to the ground. The photograph of the mother’s car (on the front of the following day’s newspaper) was in evidence. The vehicle is plainly severely damaged; the story accompanying the photograph says that the mother had to be cut from her car.
Police attending the scene of the accident apparently believed that the mother had intentionally tried to take her own life, and in consequence placed her under an emergency examination order. In her presenting interview, the mother “wholeheartedly denied” that she had attempted to take her own life, but said that the accident occurred because whilst driving angrily, she realised that she had forgotten to give Departmental officers her daughter’s medication, and was searching for them in the passenger seat whilst driving, which caused the car to veer off the road and hit the pole. That appears to have been accepted by the psychiatrist who assessed her, as the Queensland Government Mental Health Services discharge summary says that the psychiatrist and the treating team did not think that the mother was attempting to kill herself when she crashed her car.
Notwithstanding that, the mother chose to voluntarily continue as a psychiatric inpatient, and was discharged on 12 August 2014.
In the meantime, on 24 July, in consequence of the mother’s conduct, the father had brought an urgent ex parte application seeking that the children live with him, and on that day Kent J made orders discharging all previous parenting orders, and giving the father sole parental responsibility for the children, who would live with him. The orders then made were intended to only be of short duration, but for reasons which are unnecessary to detail, in fact the father’s application ultimately came on for hearing before me on 8 September 2014. On that occasion consent interim orders were made permitting the mother to have supervised time with the children, with supervision to be effected either by Relationships Australia, or by the maternal grandfather. It was further agreed that those orders would prevail for at least six months. As it transpired, those orders remained the current orders at the time when the trial commenced before me on 30 November 2015.
THE ISSUES
During the course of the trial I identified that the following appeared to be the issues which the litigation gave rise to, in the sense that their determination is likely to inform the parenting orders which are in the best interests of these children:
1.What is the nature of the relationship between the children and:
(a)The mother;
(b)The father.
2.What, if any, risk of harm to the children is posed by:
(a)The mother;
(b)The father.
3.Would the children benefit from a meaningful relationship with the mother, and if so, how might it best be facilitated.
4.Would the children benefit from a meaningful relationship with the father, and if so, how might it best be facilitated.
5.Would the mother facilitate a meaningful relationship between the father and the children.
6.Would the father facilitate a meaningful relationship between the mother and the children.
7.Would the parties’ communication support equal shared parental responsibility.
Once I have considered the relevant statutory provisions and legal principles, I will consider those issues in advance of a traverse of any residual relevant s 60CC considerations, and then go on to consider the appropriate parenting orders in this case.
LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1] In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
[1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
“Abuse, in relation to a child, 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.”
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
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 a particular case fall, and explain adequately their findings in this regard.
In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [25] the Court said as follows:
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
NATURE OF RELATIONSHIP BETWEEN CHILDREN AND MOTHER
Plainly the mother deeply and dearly loves the children. That love is reciprocated. However in the Family Report of 21 July 2014 the children did make some observations critical of the mother.[4] For instance, M said “I usually get upset when [the mother] says mean things about dad.” Later she said “sometimes I turn my ears off when I don’t want to listen or hear” to what the mother was saying to her. She also said “mum has like a bit of a little temper problem. She yells and throws things” and later gave some instances of that.
[4] Although initially only a redacted version of the Family Report was made available to the parties, which did not disclose the children’s observations, during the course of the trial an un-redacted version was published to them.
However notwithstanding those matters, there is an abundance of evidence that the children nonetheless miss their mother, and have no real understanding as to why it is that they are living with their father, and only seeing their mother for limited periods of time. Indeed even the father in his Family Report interviews appeared to acknowledge that the children still do love and miss their mother.
The mother relied upon an affidavit filed by her father, who has, since April of this year, been the only supervisor of her time with the children. He says that he overhears the children tell their mother that they want to spend more time with her and that they miss her. He opined that M is particularly missing her mother. He was not challenged in these respects and I accept his evidence.
I am therefore satisfied that the children have a meaningful, loving relationship with their mother, and that relationship is very important to them.
RELATIONSHIP BETWEEN CHILDREN AND FATHER
The children have been living with their father since 24 July 2014. On 22 October 2015, the writer of the third Family Report, Ms H, observed the children with their father. She said that the father “interacted with the children on a low key but authoritative manner…”
In his trial affidavit filed 10 November 2015, the father says that after the children came to live with him, they settled in very quickly. However he noticed that after supervised visits with the mother began in September 2014, M’s behaviour changed a little, in that she would sometimes draw away from him. Otherwise it appears as though whilst he does have strict rules in his house, he is enjoying an excellent relationship with both girls. He has been assisted in their care by his sister-in-law, Ms I, and his mother, Ms Robinson. Both of them filed affidavits in these proceedings, and neither of them were required for cross-examination. Ms I said at [16] “.. I have been impressed by [the father’s] level of dedication to [the children]. He is an excellent father and is always doing something with the girls, taking them out on weekends…” The paternal grandmother in her affidavit said that she now sees the children nearly every day, in consequence of her attending their home to organise them in the mornings, as the father leaves early for work. She says that the father is “doing a wonderful job of bringing up the girls. He is strict with them but the girls are happy and clearly love him dearly.”
In their Family Report interviews in October 2015, at [70] Ms H recorded that “[M] described a happy and loving home life with her father …” and B described home life as “its pretty cool at dad’s house…”
In her oral evidence before me, Ms H said that she was of the view that the relationship between the father and the children was a loving one, and that both girls were very fond of, and loved their father.
I accept that evidence and am satisfied that opinion is correct.
RISK OF HARM POSED BY MOTHER
Overview
The father contends that the mother poses both a risk of physical and emotional harm to the children. He is supported in that view both by the Independent Children's Lawyer, the Family Report writers and Dr R. I will consider each risk separately, but initially I will discuss the mother’s mental health issues.
Mother’s mental health issues
Ms T first alluded to the prospect of the mother suffering mental health issues in her Family Report of 21 November 2013. Dr R later diagnosed the mother in April 2014 as suffering a paranoid delusional disorder. Seemingly unaware of that diagnosis, it was independently also the diagnosis of the medical team who assessed the mother after her motor vehicle accident in July 2014, and that remained the diagnosis of Dr J, the consultant psychiatrist who had treated the mother, in her most recent report of 9 March 2015.
However in her evidence, the mother denied that she believed she was suffering from any such condition, although she acknowledged that the psychiatrists have so diagnosed her. She said that although she had been advised that it would be in her best interests to say that she accepted that she suffered from the condition, she could not do so, because “I know what I saw…”
The genesis of the mother’s allegations in relation to the father is a little difficult to pin down with precision. However from the report of Dr J of 9 March 2015, it appears as though the mother’s memory of the father digitally penetrating M when she was two years of age “only began to return in 2011” ie, post-separation. Moreover her explanation as to why she believes it occurred is difficult to understand. She told Dr R that the reason she was sure it occurred, was that the father had “locked himself and [M] in the room and wouldn’t let me in.” Dr R went on to say that it was the fact that the father locked the door that made her believe that he did sexually abuse and penetrate her. However confusingly, she went on to tell him “he locked me out. It was a long time. I know what I saw.”
It also appears as though many, if not all, of the mother’s other allegations are in the nature of recent recollections of past events. For instance her belief that the father’s family forced her to engage in group sex with other family members seems to have been a memory of the mother which she first recalled perhaps years after the alleged event, which she explains on the basis that the paternal grandmother had drugged her so as she would forget the experience. She told Dr R that this had “removed her memories for six years.”
In a similar vein, albeit not directed to the father, is her deferred belief that another man had sexually abused M, by ejaculating over her. It appears as though this belief was initially rejected by her, but ultimately, by a process which is unclear, and on evidence which is difficult to discern, accepted by her as fact.
Dr R opined that the mother’s thoughts “were irrational, illogical and on challenging them appeared fixed.” As late as 9 March 2015, her treating psychiatrist opined that “unfortunately [the mother] still does not believe that her beliefs that your client sexually abused her children are untrue and illogical.” Later she said “unfortunately, although there has been some improvement in insight, she continues to have delusions around past events. She is still suffering from a delusional disorder and still requires further treatment for same… Her paranoid delusional disorder continues and she has not recovered from this.”
There is little room to doubt that indeed the mother does suffer from a paranoid delusional disorder, and particularly that she suffers delusions that in the past the father has sexually abused that children, and that another man has sexually abused M. She further believes that the father and his family sexually abused her in bizarre circumstances, which are patently false. However the mother retains a fixed, inflexible and unshakable conviction that indeed these events occurred, because she has a memory of them. She does not appear to have any insight that that memory is a delusion.
It will be appreciated that there is a consistent erotic component to the mother’s delusions. Whilst it is unnecessary to consider why that might be, I do note that, somewhat curiously, in the discharge summary from the relevant community mental health service which was appended to the mother’s affidavit, the mother is reported as having said that “she was sexually abused by her uncle when she was five years old – family did not believe her.” However in evidence before me, the mother emphatically denied either that she had told the relevant psychiatrist of such an event, or that it had in fact ever occurred. Why that would then appear in the mother’s history is very unclear.
Physical risk
The consequences and effects of the mother’s paranoid delusional disorder are somewhat difficult to determine and predict. However a constant theme in the evidence is her steadfast belief that the father has sexually abused the children and herself. Whether arising from that belief or otherwise, she is also very angry at the father and his family. From time to time she sends him hostile and aggressive text messages. She continues to prosecute her claims that the father presents a risk of harm to the children with some vigour. As recently as September of this year, she filed an application for a protection order in which, amongst other things, she asserted that the children were being harmed in the father’s care and “are receiving a lot of physical and verbal abuse, and that their general safety is not being looked after.” On 23 October 2015, that application was dismissed by the D Town Magistrates Court, although the mother kept arguing with the Magistrate for some time before ultimately storming out of court. However between 11:30am and 9:48pm on that day, the father received approximately 70 text messages from the mother, some of them lengthy, and some indicating that he had missed telephone calls from the mother. Plainly she remained furious with the father.
Indeed her anger at the father was obvious during her cross-examination of him before me. This has now been a long lived theme of the mother’s behaviour. For instance in the course of interviews for the first Family Report, the mother (she says unexpectedly) was in the presence of the father and thereafter according to the Family Report “presented as aggressive and yelling obscene language regarding [the father] and the Report writer. This was witnessed by the children.” In similar vein were the children’s reports to the Family Report writer during the course of interviews for the second Family Report, in which they disclosed that the mother would become angry and say mean things about the father, and break things that the father and maternal grandfather had bought for the children.
At paragraphs [64] to [71] of the second Family Report under the heading “The impact of [the mother] mental health on parenting” Ms T analysed the way in which the mother’s mental health is likely to play out in a practical way. I summarise her analysis as follows:
·The mother is likely to continue to confabulate stories and recite them inconsistently. Those inconsistencies are likely to be noticed by the children, and trigger argument and frustration (at [66]);
·The children wishing to spend time with their father will be in direct opposition of the mother’s wishes, in consequence of which she is likely to eventually experience the children themselves as a threat (at [66]);
·The fact that many of the mother’s delusional beliefs have erotic content may have, or be likely to, lead to the children being exposed to conversation about adult issues which are not age appropriate (at [67]);
·Her paranoid delusional beliefs make it easy for the mother to justify cutting off those who she believes are victimising her from the children’s lives, including family members and the father (at [68]);
·Challenging or enquiring about delusional beliefs triggers greater development of the delusion, which if engaging with the children, could be overwhelming for them (at [69]);
·Even benign or low-stress situations can be perceived as significant sources of threat and provoke disproportionate angry responses, which may cause the children to try to placate her to avoid the triggering of anger. Thus for instance the children have been forbidden from speaking with family members, because of the mother’s beliefs in relation to them (at [70]);
·Children who live full time with a parent who has an untreated mental illness, of which severe distortion of reality is a symptom, have an increased risk of developing mood and conduct disorders and maintaining educational achievement. In consequence, those children in turn have greater difficulty with behavioural self-control, and are more likely to use physical aggression or anger to express a range of emotions or to solve social problems (at [71]).[5]
[5] This is particularly troubling because in recent times B has demonstrated angry behaviour at school.
I accept that evidence, which was unchallenged.
Earlier in that report Ms T had noted (at [61]) that M had developed a pattern of coping with the mother by “cutting off” from her in response to anger or difficult communication, so as to not feel frightened by the situation. She said “if sustained over a long time, this can become a pattern of turning off feelings which causes more serious problems with emotional coping later in life.” She opined that “.. [M] appears to currently be more impacted than [B] by [the mother’s] mental health difficulty.” Whether that would remain her view, given B’s recent misbehaviour at school, is unclear.
In the third Family Report Ms H also attempted to delineate the sorts of consequences of the mother’s mental health issues. She noted:
·There is a real prospect that the mother may still be including the children in her delusional beliefs, as M had recently reported to the father that her mother had recently told her that he had abused her when she was very young (at [96]);
·The mother still believes that the children are unsafe and unhappy in the father’s care, which causes her to misinterpret what the children tell her about their time with him (at [97] and [98]);
·In the future, because of her strong views that the children should not be living with the father, “she will become easily angered by small incidents and she will have difficulty containing her verbal aggression towards [the father] and his family” (at [101]);
·The mother’s delusional beliefs may cause her to withhold the children from the father in order to protect them, or to socially isolate the children including, for instance, keeping them home from school or relocating them (at [104]).
In her oral evidence Ms H was pressed as to how this might translate into any physical harm of the children. She thought that if the children were to provoke the mother to anger, there was some prospect that she might resort to physical discipline of them, for instance smacking them. Otherwise she did not specifically advert to a likely route by which the mother’s mental health issues would translate into physical harm to the children.
However it seems to me that it is the mother’s anger which is the key to understanding the risk of harm. That was most pointedly demonstrated by her terrible collision on 24 July last year. The mother concedes that she was angry at the time, and yet she drove. In her anger, she allowed herself to become distracted from the task of driving by looking for medication on the passenger seat. She was plainly then travelling at considerable speed, as it is difficult to see how else she could have firstly, caused such damage to her car, and secondly, caused the damage to the power pole. Since then, her extreme anger may have passed, but it continues to flare on occasion, including at the court proceedings in October of this year, and indeed, it was evident in the course of the trial before me.
There is therefore every reason to think that the mother will continue to suffer extremely angry responses to triggers from time to time. Both the father’s sister-in-law and mother gave evidence as to the mother’s angry behaviours in the past, and they were demonstrated even in the proceedings before me, when on one occasion the mother angrily stormed out of court. If the mother’s anger in the past has caused her to allow herself to become distracted whilst driving to the point of being involved in a serious collision, one does not need much imagination to think of other scenarios which could also arise, when the mother becomes so angry that she may imperil her safety, or the safety of those that are with her.
I assess the prospect of the mother becoming extremely angry when an appropriate trigger occurs, as inevitable. Further, I am satisfied that there are likely to be physical manifestations of that anger, for instance driving without appropriate attention. She may also resort to physical discipline if it is one of the children who has triggered her anger. The prospect and magnitude of any resultant harm is of course very difficult to predict. On the one hand it could be catastrophic: for instance if the children had been in the mother’s car on 24 July, they could have been fatally injured. On the other hand, the harm could be slight. However I am nonetheless satisfied that the risk of harm is real and substantial, particularly given the inevitability that the mother will again become angry, and physically react in consequence to that anger.
Emotional harm
I have already detailed Ms T’s evidence as to how the children are likely to be affected by the mother’s paranoid delusional disorder, including modifying their own behaviours so as to not trigger outbursts, or beginning to accept the truthfulness of what are in fact delusions, and the like. In assessing the magnitude of the risk of such harm to the children, there is one central and incontrovertible fact, and that is that the mother, despite psychiatric intervention for more than 12 months, still refuses to countenance the prospect that her beliefs are in fact delusional. Although she may have, given the age of the children, retreated from her belief that the father still is a risk of sexually harming them, there is some evidence which points the other way. For instance the mother claimed that it was “inappropriate” for the father to give or receive shoulder massages to the children, as she thought it was grooming behaviour. She likewise took great exception to the father – in response to a dare from M – putting on her trainer bra. She refused to see that as a form of innocent, silly fun, between a father and a daughter.
Moreover the fervour of her conviction that the father has in the past sexually abused M and B, and has sexually abused her, inevitably means that she will be extremely vigilant in relation to the children. She certainly has been in the past: she admitted to regularly inspecting the girls’ genitals and nipples when they returned from the father’s care, although she asserts that she did so in an unobtrusive way. Further, it is plain that she has regularly interrogated the children, both when they come into her care, and during telephone conversations with them when they are in the father’s care, as to events going on at the father’s house.
Even if her fears in relation to sexual abuse have somewhat abated, as is demonstrated most recently by her October domestic violence order application, she has begun to focus upon other alleged risks and harms to the children in the father’s care. She still plainly believes that the children are at risk in the father’s care, and need protection from him.
There is every reason to think that the mother will continue to suffer the adverse effects of her paranoid delusional disorder, and in consequence, the prospect that the children will be emotionally harmed thereby is substantial. The magnitude of that harm could be considerable, including the children developing mood and conduct disorders, or using physical aggression to solve social problems. Given that B has recently begun to manifest the latter, the risk is very real.
I am satisfied that the mother currently presents an unacceptable risk of emotional harm to the children, unless the circumstances in which the children experience her are controlled so as adequately mitigate that risk.
In so concluding I do not overlook the contrary opinions of her therapeutic psychologist, Dr K, as contained in correspondence from her dated 27 October 2015 annexed to the mother’s affidavit, and the report of Dr L, also annexed to that affidavit. However I reject their opinions that the mother does not pose any risk to her children[6] for two reasons. The first is that they have not had the benefit of reviewing the wealth of material before me, and have only been acting on, in effect, the mother’s own versions of events. The second is that neither of them was able to be cross-examined, in consequence of their opinions only being annexed to the mother’s own affidavit.
[6]Accepting that it is not altogether clear from her report if Dr L holds that opinion.
Evaluation
There is a real and substantial risk of physical harm of some kind being suffered by the children in consequence of the mother’s psychiatric condition, and there is a greater risk of emotional harm to the children arising from that condition as well. Taken conjunctively, I am well satisfied that the mother presents an unacceptable risk of harm to the children, unless her time with the children is in an environment which sufficiently mitigates it. I will discuss the means for mitigation in due course.
RISK OF HARM FROM FATHER
Overview
The mother claims that the father presents a risk of harm to the children both sexual and physical. That said, the orders which she sought did not seek to impose any supervision upon the father’s time, and hence inferentially the risk which she said the father poses was not contended as unacceptable. Rather it appears as though she sought to argue that the risks associated with the father made her the preferable residence parent.
Sexual harm
As I have observed, the mother appeared to retreat somewhat from her argument that the father poses a current risk of sexual harm to the children, but she nonetheless continued to agitate matters which would, if associated with some sinister sexual motive, lead to such a conclusion.
However the foundation for all of the mother’s concerns in relation to the father’s risk of sexual harm is her fervent belief that in the past the father has sexually abused the girls and herself. I have already noted that this belief seems to be in the nature of a recovered memory of the mother, first remembered by her post-separation in 2011. I have also adverted to the strange logic by which the mother comes to believe that the father digitally penetrated M. Further it is incontrovertible that the mother suffers from paranoid delusional disorder. I am more than satisfied that the mother’s beliefs in relation to the father having sexually abused the children are a product of that paranoid delusional disorder. Not merely am I not persuaded that the father has sexually abused either of the children, I am satisfied on the balance of probabilities that he has not done so.
Moreover I am satisfied that there is no sinister aspect to the later matters relied upon by the mother, for instance the father receiving shoulder massages from the girls, or him playfully, in response to a dare from M, wearing her trainer bra. There is nothing sinister to those whatsoever.
Whilst I accept that in the event that either of the children were to be sexually abused from the father, there would likely be profound emotional damage effected upon them, I am satisfied that the prospect of the father so abusing them is approaching zero. He does not pose a risk of harm to the children in that respect, and certainly not an unacceptable one.
Physical harm
The mother has a litany of complaints in relation to the father’s alleged lack of care of the children. Central to them was an allegation that the father had failed to properly care for the children on an occasion that he took them fishing in the M River. It appears as though they got a lot of sandfly bites. Further, the mother claims that B is physically abusive to M, and has something of a protection racket going with her, in which she requires M to pay her money in exchange for not so tormenting her. I am not satisfied that there is some fault of the father’s in any of that, even if it be true. It is acknowledged that B has always been the bossier of the two children, and the more assertive of them.
I am not persuaded that the father presents a risk of physical harm to the children based upon these, or the other incidents which the mother relies upon. I am more than satisfied on the evidence, particularly of the father’s sister-in-law and mother, and the opinion of Ms H, that the father is an adequate, and indeed a good, carer of these children in all respects.
Evaluation
I am not satisfied that the father poses a risk of harm to these children if they remain in his care.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH MOTHER
There is no dispute that the children would indeed benefit from a meaningful relationship with their mother. They love her and miss her. Moreover, it appears as though whilst the children were in her care, she was able to properly attend to their physical and emotional needs.
Further, there is no reason to doubt that the means by which the children would best obtain the benefit from the meaningful relationship with their mother, is by spending regular face to face time with her, and for her to be as involved in their lives as the circumstances permit. However the difficulty with this case is ensuring that the meaningful relationship, and the benefits that flow from it, are experienced in a way that does not unduly expose the children to a risk of harm.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH FATHER
I have rejected the mother’s assertion that the father poses some risk of physical or sexual harm to the children. Further, the children plainly have a loving relationship with the father, which love is reciprocated. The father actively engages with the children in a variety of activities, such as camping and fishing. He is supported in his care of them by his family. He has much to offer these children. I am satisfied that the children would significantly benefit from a meaningful relationship with the father, and that it would be best facilitated by them spending regular face to face time with him, and for him to be involved in all areas of their lives.
WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP
Unfortunately the answer to this question must be a resounding no. Perhaps apart from the period when the father initially returned from Adelaide, the mother has always been begrudging of the father’s relationship with the children, no doubt because she perceives him as a threat to the children. Indeed as late as 22 July 2014 the mother instructed her solicitors to write to the father’s solicitors, suspending him from spending any further time with the children.
Unfortunately the mother’s paranoid delusional disorder means that she perceives the father as a threat to her and the children, and that causes her to seek to either wholly stop, or substantially curtail, the children having any form of relationship with him. That has been strongly demonstrated by the mother’s past proposals to relocate to Brisbane or Perth, in which locations plainly the father would be virtually removed from the children’s day to day lives.
WOULD FATHER FACILITATE MEANINGFUL RELATIONSHIP
I have little doubt that the father is beleaguered by the mother’s unremitting campaign against him. It must be very difficult for him to deal with the, on occasions, nigh ceaseless tirade of furious text messages which he receives from her, as recently as October 2015. However it is plain that the father is prepared to endure that, because he identifies that the children do indeed need, and will benefit from, a relationship with their mother. He showed great insight in the course of the third Family Report interviews when he told Ms H “it must have had an effect on [the children], being pulled away from their mum. They hide that sort of stuff. I wanted 50:50. I never wanted this.”
Moreover the father has not insisted upon strict Contact Centre supervision of the mother, but has been prepared to consent to the somewhat less formal supervision by the maternal grandfather.
I am satisfied that the father recognises the benefits to the children in having a meaningful relationship with their mother, and notwithstanding the considerable personal toll which doing so takes upon him, will nonetheless facilitate it.
WOULD COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY
Again the answer to this question is a resounding no. The parties cannot have a civil conversation or text communication. The mother’s anger invariably intrudes, no doubt because she perceives the father as a threat both to her and the children. Ms H described the parties’ communication as “strained and difficult” and that she did not believe it could support equal shared parental responsibility. I accept that evidence, and particularly find that the parties’ communication is simply too poor, and fraught with conflict, to even contemplate equal shared parental responsibility.
SECTION 60CC FACTORS
It will be appreciated that in discussing the issues, I have already addressed both primary considerations, and many of the additional considerations. However the following further observations are pertinent.
The children are too young, and not sufficiently advertent to the issues in this case, that their wishes should be given much weight. For what it is worth, the children appear to have both a desire to live the father, but to spend additional time with the mother.
The children appear to have an excellent relationship both with the maternal grandfather and the paternal grandmother, and the father’s family more broadly. There is no evidence of the children having a close relationship with any of the mother’s broader family.
The mother appears to have taken umbrage at the father’s recent suggestion that, given her recently having commenced full time employment, she should pay child support.
It is reasonable to infer that, given the dramatic change in the children’s living arrangements in July 2014, any further substantial change in their circumstances would be destabilising for them.
The mother’s mental illness inevitably means that her capacity to provide for the emotional needs of these children is diminished.
The father concedes that during arguments towards the end of the relationship, he would push the mother. The mother says that he was far more violent and would hit her, and on one occasion pulled her hair whilst driving erratically. I am not persuaded that there was family violence beyond pushing, but plainly that nonetheless comprises family violence.
There have been family violence orders that have been applied from time to time, without admission by the father, and hence there is nothing by way of relevant inference that can be drawn from them in those circumstances.
These proceedings have been on foot for a considerable length of time, bearing in mind that it is a Magellan matter. It is therefore highly desirable to conclude them in a way which minimises the prospect of further litigation, if at all possible.
PARENTAL RESPONSIBILITY
Given the father’s admission of pushing the mother on occasion during arguments, there is a reasonable basis to believe that there was family violence, and hence the presumption does not apply. In any event the parties’ communication is so poor that it could not support equal shared parental responsibility. The reality is that parental responsibility for long term decision making in relation to the children must go to the party who has the primary residence of the children.
WITH WHOM SHOULD THE CHILDREN LIVE
The following factors tell in favour of the father’s proposal, or against the mother’s proposal:
·The children have a good and loving relationship with the father;
·The mother is presently an unacceptable risk of harm to the children, comprising physical and emotional harm, if she was to spend unsupervised time with them;
·It would likely optimise the benefits which the children will obtain from a meaningful relationship with their father;
·As between the two parents, the father is more likely to facilitate a meaningful relationship between the children and the mother, than vice versa;
·The children have now been living with the father since July 2014 and to again change their living arrangements is likely to be disruptive for them.
On the other hand the following points tell in favour of the mother’s proposal, or contrary to the father’s:
·The children enjoy a good and loving relationship with their mother;
·It would likely be the best arrangement to facilitate a continuation of that meaningful relationship.
Weighing those factors in the balance clearly tells in favour of the children continuing to reside with their father, and I will so order.
TIME AND COMMUNICATION WITH THE MOTHER
Since there will not be an order for equal shared parental responsibility, I am not strictly obliged to consider whether or not there should be equal shared care of the children. However, in considering whether equal, or significant and substantial, time with the mother was in the children’s best interests and reasonably practical, given that I am satisfied that the mother presents an unacceptable of harm to the children, I would need to be persuaded that supervision, or some equivalent mitigatory measures, would be available for the mother’s time. Plainly a Contact Centre could not possibly facilitate those sorts of lengthy periods, and the only realistic option would be the maternal grandfather. However there was no evidence from him that he would be prepared to, in effect, give up his retirement, to become a supervisor of the mother for the entirety of as much as seven days (even accepting that the children would be at school for a considerable period of that time). Similar observations follow in relation to a consideration of substantial and significant time. I am not satisfied that such an arrangement is reasonably practicable.
The proposal contended for by both the father and the Independent Children's Lawyer would see the mother’s time with the children increased to overnight time from 3:30pm on Friday until 7:30pm Sunday each alternate weekend, together with a mid-week period of 3:30pm until 7:30pm. However that is all dependent upon the maternal grandfather being willing and available to undertake the supervision of that time. In that respect he has indicated in his affidavit that he does wish to enjoy his retirement, including travelling around Australia in a campervan. Therefore whilst for some periods of time he is likely to be available to facilitate the increased time which the father and the Independent Children's Lawyer propose, that is not necessarily a permanent arrangement.
I should say that I am satisfied that the maternal grandfather is indeed a competent supervisor, notwithstanding some slender criticism made of him by the father. He did not strike me as a parent blind to his daughter’s issues. Rather he seemed to me to be a sensible, concerned and loving parent and grandparent, well aware of the need to try and protect his grandchildren from the risks posed by the mother’s mental health issues. I am satisfied that he has appropriate vigilance in supervising the mother, and the mother is well aware that his priority is the welfare of his grandchildren.
I am therefore satisfied that, assuming the maternal grandfather is willing and available to undertake the supervision, the time proposed by the father and the Independent Children's Lawyer will enable the children to enjoy the benefits of a meaningful relationship with their mother, whilst at that same time adequately protecting them from the risk which she poses to them.
That then brings into focus what should occur in the event that the maternal grandfather is not available, and a suitable alternative person cannot be agreed. The only option available on the evidence is to use a Contact Centre. Apparently the Contact Centre withdrew its services given the availability of the maternal grandfather’s supervision, but no doubt would be prepared to reinstate those services in the event that he is not available or willing. Unfortunately, the time which such a service can offer is limited to approximately two hours per fortnight. I have little doubt that such time is unlikely to be sufficient for the children to obtain an optimal benefit from their meaningful relationship with their mother, but it will at least permit it to continue, concededly at a sub-optimal level. That is unfortunate, but the need to protect the children from emotional and physical harm outweighs the other considerations.
I am therefore satisfied that the arrangements proposed by the father and the Independent Children's Lawyer are in the children’s best interests, and will so order.
I am mindful that the requirement of supervision under those orders is potentially open-ended in duration. The Full Court in Slater & Light (2013) 48 FamLR 573 and Moose & Moose (2008) FLC 93-375 has said that it is desirable, if such orders are made, that the parties subject to supervision should be able to seek a review of that requirement, without the need to demonstrate a sufficient change in circumstances to satisfy the so-called rule in Rice & Asplund. Here, if the mother were to experience an improvement in her mental functioning, such that the risk she poses to the children became an acceptable one, it would be arguable that that was a sufficient change in circumstances to justify re-litigation. However to obviate any argument in relation to that point, in my view there should be liberty to apply to the mother to review the requirement of supervision of her time with the children. I am satisfied that an appropriate period of time when that liberty to apply could be activated is no earlier than one year from the date of my orders. True it is that this raises the significant prospect of further litigation, but it is justified if the mother’s health does indeed improve.
I am further satisfied that the mother should have leave to publish the Family Reports and these reasons to her treating therapists, so that they may have an appreciation of the risks which the court has identified she poses to the children.
As to communication, I am satisfied that the mother is likely to continue to want to interrogate the children about events in the father’s home, because she is obsessed with the idea that the father poses a threat to them. It is therefore appropriate that her telephone communication with the children be monitored by the father.
I am otherwise satisfied that the communication regime proposed by the father and the Independent Children's Lawyer is appropriate and will so order.
OTHER ORDERS
The father seeks a range of other incidental orders, such as injunctions restraining the parties from consuming alcohol in excess of the legal driving limit, or consuming or being under the influence of illicit drugs, while the children are in their care. I am satisfied that such orders are in the children’s best interests, and will make them.
CONCLUSION
For those reasons there will be orders substantially as contended for by the father and the Independent Children's Lawyer, as set out at the commencement of these reasons.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 16 December 2015
Associate:
Date: 16 December 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Appeal
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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