RUSSELL & WEST

[2014] FamCA 489

FAMILY COURT OF AUSTRALIA

RUSSELL & WEST [2014] FamCA 489

FAMILY LAW – CHILDREN – Parenting orders – consent notwithstanding abuse allegations. Cautious approach taken by the Court.

Family Law Act 1975 (Cth)

APPLICANT: Mr Russell

RESPONDENT: Ms West

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 4352 of 2008

DATE DELIVERED: 4 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 4 July 2014

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregors

Orders

1. That the orders made on 20 May 2012 are varied so that:

   (a)The changeover of the children should take place on Christmas Day in each year at 5.00pm;

   (b)That each party alternate New Year’s Eve commencing at 5.00pm on 31 December commencing with the mother having the children on New Year’s Eve in 2014;

   (c)That all school holidays commence at 9.00am on the Monday in the first week of the holidays;

   (d)That Father’s Day and Mother’s Day commence on the evening before that particular day at 5.00pm;

   (e)That each party share equally the travelling during the holiday period.

2. That the parties attend upon Dr C for the purposes of the continuation of counselling and each cooperates with Dr C accordingly.  Each be at liberty to attend but only as may be required by Dr C.  Each party agrees that Dr C should be instructed to keep the other informed of the progress of the counselling.

3. That BY CONSENT there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

4. That the solicitor for the Independent Children’s Lawyer engross the minutes and deliver them by electronic transmission to my Associate within 7 days.

5. That the Independent Children’s Lawyer attend upon the children on Monday 14 July 2014 in the presence of Dr C and all such other times as may be practicable for the purposes of explaining the orders and the intentions of the parties about the orders.

6. That each party is restrained by injunction from speaking to the children about the outcome of these proceedings until such time as the Independent Children’s Lawyer has discussed the orders with the children.

7. That the Independent Children’s Lawyer is discharged from the proceedings after 14 July 2014 or as may otherwise be determined according to the conversation with Dr C.

8. That all applications are otherwise dismissed.

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

AND THE COURT NOTES:

A.That the Court has declined to make any orders in relation to birthdays of the parties or the children but they are encouraged to make arrangements.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & West 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 MELBOURNE

FILE NUMBER: DGC 4352 of 2008

Mr Russell

Applicant

And

Ms West

Respondent

REASONS FOR JUDGMENT

1. On the second day of a two day parenting trial, the parents Mr Russell (“the father”) and Ms West (“the mother”) reached a compromise. It would be fair to say that it was an uneasy compromise. These reasons record why the Court has made the orders.

2. It is trite to say that in any proceedings where the Court is required to make a determination as to what parenting orders should be made, the test which is applied is the best interests of the child. That interest is the paramount interest. The power to make the order lies in s 65D of the Family Law Act 1975 (Cth) (“the Act”) which, relevantly here, provides that the Court may make such order as it considers proper.

3. Section 69ZM provides that exercising the powers generally, that is, not just in relation to the conduct of the proceedings, the Court must give effect to a number of principles. Those include considering the needs of the child but also that the proceedings are conducted in a way that will promote cooperative and child-focused parenting by the parties. The Court may exercise its power in relation to the conduct of the proceedings of its own initiative.

4. Section 69ZQ provides that the general duties of the Court include asking each party whether that person considers the child who is the subject of the proceedings has been or is at risk of being subjected to, exposed to, abuse, neglect or family violence. That occurred in this case for the reasons that follow. My expressed concern led to some discussions between the parties assisted by counsel for the Independent Children’s Lawyer and that resulted in what was said to be an agreement.

5. Where parents reach agreement about their children and the Court is asked to make orders with their consent, the various provisions about presumptions and the sharing of time may be considered but the Court is not required to do so. That makes sense because the parents have worked out their structure with which they and their children have to live. That provision makes clear however that the best interest provision in s 60CA remains unaffected.

6. The combination of s 69ZQ and S 60CA means that even where parents consent to arrangements, the Court should be vigilant about the nature of the orders being sought.

7. The father and the mother lived together but have long separated. They have two children together, T aged almost 13 and J aged 10.  The parents have been litigating since 2008.

8. It is not necessary for my purposes to extensively describe the background and the 13 appearances that the parties have had at court. The details which follow will suffice to explain the Court’s concern.

9. After separation, the children resided for a time with their father because of what was said to have been the intervention of the Department of Human Services.

10. A little later, that changed when sexual abuse allegations were made by the mother against the father. Orders followed which included supervision. There was extensive involvement of the state police and the Department of Human Services but the children also spoke to a number of professionals including Dr A, a child and adolescent psychiatrist and Ms D, a child forensic psychologist.

11. I record for these reasons that no determination has ever been made by a court in relation to any of those allegations nor has any allegation been “substantiated” by the welfare authorities.

12. There was clearly a dispute between the parties about a family violence order and a five year restriction was made against the father by a magistrate but on appeal, that was reduced to 6 months. In the father’s words, that was done because the issue of the dispute between the parents was before this Court in the “Magellan List”.

13. The matter came before the Court in May 2012. Both parents were represented by solicitor and counsel and the children’s interests were represented by an Independent Children’s Lawyer.

14. It is sufficient for these reasons to refer to a document prepared by the mother’s lawyers and filed at the Court immediately before the final hearing began in May 2012. It indicated that the mother sought sole parental responsibility for both children and that they live with her and spend time with their father.  The contact time proposed by the mother for the father with T was one night of each fortnight but she sought that it be under supervision. The mother proposed to call 9 witnesses.

15. In the outline of case document, the mother asserted (and therefore the Court was entitled to presume she would attempt to prove) that the father had sexually abused T. In that same document, the mother asserted that the father had not “demonstrated appropriate responsibility towards parenthood” and she again repeated the sexual abuse allegation. She therefore maintained that the father’s time with T should be supervised. It is also sufficient for my purposes to indicate that the father denied the allegations.

16. On 23 May 2012, when represented by counsel, the parties sought that the Court make consent orders.  Final orders were sought for J but interim orders for T. The time now proposed for T was not to be supervised and it exceeded the limited time earlier proposed by the mother. The time for J was alternate weekends, one night in the other week and half of all school holidays. It will thus be seen that the focus of the parties’ attention was on T.

17. What is significant can be seen from a series of notations to those orders. I stress again, these were drawn by the parties. This was said:

    The mother abandons the allegations that the father has abused the children.

18. The circumstances under which that decision was made remain unknown. The mother subsequently made clear that she had not “abandoned” the allegations at all and to this day, believes that her daughter was assaulted.

19. On 23 May 2012 and based upon the statements of the parties’ counsel, the orders were made. There was an uneasy peace.

20. The mother’s real position came to light when, in an application by the father for costs, she made clear that she believed the allegations were true. Her cross-examination of the father on that occasion was also indicative of her views but she was not expansive.

21. The orders were attended thereafter with some problems. On one occasion, the two children ran away late at night from the father’s home. The father accused the mother of orchestrating that and the mother denied it saying that she would never have put the children at any such sort of risk bearing in mind that, late at night, they had gone to her by public transport.  

22. The two unrepresented litigants struggled with concepts of cross-examination (leaving aside their own lack of ability to communicate with one another) and other suggestions were put by the mother to the father that the relationship between T and he was not sound. He denied that.

23. Over the ensuing two years from May 2012, the parties have had little, if any, communication.  Each has settled into a new relationship (and in the case of the mother, had another child) and the children moved back and forth. T has been regularly attending counselling of a therapy nature with Dr C. That was a confidential arrangement and involved the father with the expressed hope that the relationship would improve between he and T.  That expressed position makes it apparent that even though T was attending, the relationship was not controversy-free. That has to be seen in the context of the time that he was spending with T over the two year period. In the father’s words in cross-examination, there had been a “massive” improvement in T’s relationship with him but there was still a way to go. “Massive” is an easy term to use and it might be correct if one was coming off a very low base. In cross-examination before me, the father agreed there was no physical affection shown to him by T and whilst he thought that might have something to do with males, he conceded that T was affectionate towards her maternal grandfather. Thus, I turn to what this case was about when it began in July 2014.

24. As will be seen, in May 2012, interim orders were made for the time between T and her father.  The proceedings before me brought that to a head.

25. The affidavit relied upon by the father set out a history of the background and there could be no doubt that what he was saying was that inappropriate allegations of sexual abuse had been made against him but also inappropriate and untrue allegations of physical violence had been made against him by the mother in relation to herself.  He then set out all of the things that he did with T and one could get little impression of any problem.  To the extent that he conceded that T had a problem, he lay all of that blame at the mother’s feet.

26. The mother’s affidavit which she prepared, was little different.  The uneasy peace was palpable.

27. In anticipation of the forthcoming final hearing, I made an order that a further family report be undertaken but it was not to be commenced until after the parties had filed their trial affidavit material.  I adopted that practice as I normally do, because I wanted to be abundantly clear just what allegations were still extant.

28. The same family consultant who had previously conducted a family report was again allocated by her supervisor and in June 2014, armed with the parties’ affidavit material, she conducted interviews.  It is sufficient that I deal with Ms H’s evidence in some detail. 

29. Of the father, Ms H noted that he attended accompanied by T and J and was well prepared.  She described him as “increasingly weary” by the protracted proceedings and she noted that the mother’s “abandonment” of the allegations was “bitter sweet”.  It was his view that significant and unnecessary emotional trauma had been inflicted on both children.  He was described by Ms H as having been traumatised because of the allegations which reflected not only on his personal integrity but also his professional credibility given that he was employed in the education field by profession.

30. Ms H was well aware of the allegations by the father that it was his view that the mother was orchestrating the thwarting of his positive relationship with the children.

31. When she spoke to the mother, Ms H noted the change of family structure and the impact of the proceedings on all concerned.  She noted the mother as indicating that it needed to come to an end because it was not good for the children but she also said that the mother’s view was that the voices of the children needed to be heard.  Surprisingly, the mother told Ms H that the parties should have been able to sort the matter out at mediation.  That statement was repeated in Court but I consider it unrealistic given the nature of the allegations but the continued belief in them.

32. It was Ms H’s view that the mother presented (presumably about what I have just said) as disingenuous.  Ms H noted the mother’s concerns about peripheral issues such as clothing and lack of supervision.

33. In relation to the suggestion of the abandonment of the allegations, Ms H noted that the mother explained that the 2012 hearing had been particularly difficult, having taken several hours and that she did not recall making any such statement.  She advised Ms H that she had not seen the notation in the draft orders to which she felt “pressured to agree”.  None of this evidence was tested.  The cross-examination of the mother before me ceased as a result of the matters to which I shall turn.  It is important that I note that the mother was never tested about Ms H’s views that she was disingenuous or indeed, about the statement that she did not recall the notation.  I have great difficulty with the statement about her lack of knowledge because she was represented by counsel.  There can be little doubt that the Court was told in May 2012 of the obvious conflict between the statements in the affidavits and the ultimate resolution.

34. Be that as it may, the mother told Ms H that she had not resiled from her position that T had been abused and she believed her daughter.  Importantly, Ms H said that the mother was not able to clarify her view regarding the risk, if any, to T whilst in the father’s care.  One thing was abundantly clear however, the mother said that T was not happy about having time with her father.  When the expert attempted to explore the explanation for all of that, the mother simply said that she told T that that was what the judge had decided and there was nothing she could do about it.  On any view, that was not true.  The 2012 determination was made by the parties at a time when they were both represented by counsel.  Even if the mother felt pressured and did not see the notation, it does not explain why the orders were made and indeed have since been carried out. 

35. The family consultant also interviewed the parties’ respective partners.  The father’s partner described the relationship between J and his father as being very positive but in relation to T, it was her view that the relationship between T and the mother was still enmeshed.

36. The therapeutic counselling psychologist to whom I have referred earlier, Dr C, spoke to the family consultant.  Dr C thought that T was doing “remarkably well in counselling sessions”.  She said T was willing to engage in the process.  Dr C said that whilst trust continued to be an issue for T, she was slowly becoming increasingly willing to raise issues with her father and participate in discussions with him which were obviously facilitated.

37. When T was interviewed by the family consultant, she had attended with the father.  T became subdued and avoided eye contact referring to her past experience as a very hard time for her.  She then repeated allegations previously made of physical and emotional abuse by her father and said:

    It is like I am living in the past because I keep remembering stuff...when I experience memories of what he did, it is hard to breathe.  I have pains in my chest or my stomach…I feel like throwing up or crying.  I get angry and emotional at myself.

38. The family consultant pressed as hard as she felt appropriate and T indicated that it would be her choice never to see her dad again.  Having said that, the family consultant noted that T had become resigned to the fact that she would continue to spend time with her father notwithstanding she saw that as unfair.  Her complaint about the fairness related to the fact that she felt she had no choice.  The family consultant opined that because of the statements made, even though it appeared “somewhat contradictory”, the mother’s position was clear.  The family consultant thought that T should spend up to five nights each fortnight in her father’s care but that the Court would need to make a finding in relation to the allegations of abuse and determine whether the father posed a future risk to the children.  When the discussion occurred about that last statement, the father said it was the same sentence as used in the previous report as if the phrase had come off a precedent or word processor.  I am not prepared to conclude that a family consultant would be so lax.  I consider the statement was an expression of concern and one that the Court ought not lightly dismiss.

39. Having regard to T’s age, that future risk may not necessarily be one of a sexual nature but rather of a psychological nature for T.

40. The warning signals were clear.  T has not resiled from her allegations.  She is certainly working through issues with her father.  There is an improvement in the relationship between father and daughter but it is not complete.

41. The father’s position was simple.  He did not believe that the mother would stop attempting to thwart his relationship and his view was that the time between he and T should be regulated and increased so that he could build on his relationship and the mother would have less time to thwart it.

42. The irony of this case is that the parties were not very far apart in terms of time but there was a huge gulf between them in respect of the underlying problems.  The mother’s position was that T should only spend five nights per fortnight in a block with the father and the father’s view was that it should be seven. 

43. I began these reasons by indicating that a compromise was reached.  The parties reached that with the assistance of an Independent Children’s Lawyer and her counsel.  There was considerable discussion when the proceedings stopped about whether or not the matter should be adjourned to allow a thorough examination of all of the allegations that had been made over a number of years which would have included bringing in the Department of Human Services, psychiatrist Dr A and various police officers who had interviewed T.  I indicated very clearly that I was very unhappy with the state of the evidence even though the parties technically were only asking for a modest adjustment one way or the other in terms of time.  The underlying problem in this case has never been resolved. 

1. Late in the afternoon of the second day and after several hours of negotiations, the parties did present a compromised position.

2. I indicated to the parties that I would not be prepared to make consent orders for the reasons earlier articulated about the responsibilities of the Court only to have the orders thwarted or indeed further litigation. 

3. Each party told me that they wanted the orders made.  Each agreed to an injunction that they would not speak to any of the children until a week from now when the issue would be raised with the children about how the parents had compromised.  That issue will be between the Independent Children’s Lawyer and Dr C.  Each party agreed to the injunction on the basis that it would give the children an opportunity to hear that the Independent Children’s Lawyer heard both parties say that they want these orders made notwithstanding the unresolved allegations.  The Independent Children’s Lawyer was present in the court when each indicated that they would then tell the children that notwithstanding what has happened in the past, each is supportive of the other having the relationship dictated by the orders.

4. I questioned the mother about whether she wanted the orders made bearing in mind all of the discussion that had taken place in the previous 48 hours.  There can be no doubt she equivocated.  She hedged around a positive answer ultimately agreeing that she wanted the orders made and that she was not agreeing to them under any pressure.  I made it very clear that if the position was otherwise, the proceedings would continue and I would indeed investigate the very allegations that were being made.  Both parties indicated they did not want that to happen.

5. Accordingly, I have made the orders in this case on the basis that the mother assures me as does the father, each will tell the children that the parents together want the children to enjoy a positive relationship with the other.

6. The mother’s unequivocal position was that she appreciated that whatever has gone on in the past, she will have to face T and tell her that even though all of those things have been said and done, she wanted the order made.  That is extremely important in this case because as I reported above, the mother told the family consultant in June that the previous orders in 2012 had been made under pressure and that T had been told that the judge had decided the case.  There can be no misunderstanding in this case.  Whatever happened in the past, both parties have assured the Court that there is now no risk to either child in the care of either parent.

7. The last two years has seen counselling with Dr C to the exclusion of the mother.  Both parties have agreed that the mother should participate and be told by Dr C exactly what is happening.  I shall leave that to Dr C to sort out but as far as the Court is concerned, the mother should very much be a part of that process having regard to the matters that I have just set out.

8. In this case, the Court can do no more.  In my view, these orders are in the best interests of these children.

I certify that the preceding Fifty One (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 July 2014.

Associate: 

Date:  8 July 2014