Ryeburn and Ryeburn (No. 2)
[2010] FamCA 882
•1 October 2010
FAMILY COURT OF AUSTRALIA
| RYEBURN & RYEBURN (NO. 2) | [2010] FamCA 882 |
| FAMILY LAW – CHILDREN – ALLEGATIONS OF ABUSE – Assertion of unacceptable risk – Consideration of the background of extensive departmental intervention and lengthy litigation history – Discussion of the need in the children’s best interests to bring an end to the litigation – Mother asserts that the father, paternal uncle and the children’s half-sister have interfered with the parties’ son – Alleged interference by the half-sister is said to have occurred at a contact centre – Consideration of the difficulties in clearly setting out the disclosures and allegations – Consideration of the best interests of the children |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA, 65D, 65DAA, 65DAC, 69ZX, 69ZN 69ZW Evidence Act 1995 (Cth) s 144(2) |
| Cotton v Cotton [1983] FLC 91-331 Godfrey v Sanders [2007] FamCA 102 Goode v Goode [2006] FLC 93-286 In the Marriage of Jurss (1975) 1 Fam LR 11,203 M v M (1988) 166 CLR 69 Marsden and Winch (No. 3) [2007] FamCA 1364 McCall & Clark (2009) FLC 93-405 McCoy v Wessex (2007) 38 Fam LR 513 N and S and the Separate Representative (1996) FLC 92-655 Napier v Hepburn (2006) 36 Fam LR 395 Neil v Nott (1994) 68 ALJR 509 Partington & Cade (No 2) (2010) 42 Fam LR 401 Potter & Potter (2007) 37 Fam LR 208 |
| APPLICANT: | Mr Ryeburn |
| RESPONDENT: | Ms Ryeburn |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Grant, Grant & Associates |
| FILE NUMBER: | BRC | 11060 | of | 2007 |
| DATE DELIVERED: | 1 October 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 24-25 August 2010 |
REPRESENTATION
| APPLICANT: | Appeared in person |
| RESPONDENT: | Appeared in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Mr George |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Grant & Associates |
Orders
IT IS ORDERED THAT
Parental Responsibility
The mother of the children J born … June 2002 and H born … March 2005 (“the children”) shall have sole responsibility in respect of each of them.
Live With
The said children shall live with their mother.
Facilitation of Information About the Children
The appointment of the Independent Children’s Lawyer (“ICL”) shall cease 12 months from the date of this Order.
Pursuant to the provisions of s 121(9)(g) of the Family Law Act 1975 (Cth) (“the Act”), the ICL is hereby authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment of Murphy J pertaining thereto, to:
(a)the Director-General of the Department of Communities (Child Safety Services) and any person within that Department as she might authorise or any officer of that Department who is charged with the responsibility for undertaking any investigation in respect of either of the said parents and/or the said children;
(b)the Director-General or other such equivalent officer of the Department with equivalent or similar responsibilities to the Department of Communities (Child Safety Services) in Queensland in any such State or Territory in which the mother and children shall reside and any person within any such Department as he or she might authorise or any officer of any such Department who is charged with the responsibility for undertaking any investigation in respect of either of the said parents and/or the said children;
(c)the Principal or Director as the case may be of any school, pre-school or kindergarten which the children might attend;
(d)any treating medical practitioner for the children or any psychiatrist, psychologist, counsellor or therapist which the children might attend.
The mother and father shall, within 7 days of the date of this order, each provide to the other and to the ICL an address effective for communication with each by the other, and effective for written communications by the father with the children.
Each party shall advise the other in writing of any change in the addresses provided in accordance with paragraph 5 of these Orders , within 7 days of its occurrence, and, in the event that, in accordance paragraph 3 of these Orders the ICL shall remain appointed, also to the ICL.
The mother shall notify the father in writing of the name and address of each and every school, pre-school or kindergarten at which either or both of the children are enrolled within 7 days of their enrolment, and in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall, in addition, similarly give written notification to the ICL.
The mother shall within seven days of any appointment with same, notify the father, and in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall, in addition, similarly give written notification to the ICL, of the name and address of each and every:
(a)medical practitioner upon whom the children or either of them attend; and
(b)psychiatrist, psychologist, counsellor or therapist upon whom the children might attend.
In the event that the ICL shall be discharged in accordance with paragraph 3 of these Orders, but only in that event, the father shall be at liberty to publish an account of these proceedings to the persons named in paragraph 4 of these Orders but not otherwise.
A copy of s 121 of the Act shall be attached to these orders and any copy thereof.
Save as otherwise provided in these Orders and where it is necessary for either party to provide or publish a copy of these orders for any proper purpose, each of the mother and father be restrained and an injunction issue restraining each of them from publishing any account of these proceedings or any part of these proceedings.
Each of the parties shall be restrained and an injunction shall issue restraining each and both of them from discussing – either orally or by reference in writing – any aspect of these proceedings with either of the children and from permitting the children to remain in the vicinity of any other persons discussing any aspect of these proceedings.
The mother shall do all such things, sign all such documents and pay all such reasonable fees as might be applicable so as to authorise any person referred to in paragraphs 4 (c) and (d) of these Orders to provide to the father, and in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall, in addition, similarly provide to the ICL:
(a)All such information as he might reasonably require in respect of the children;
(b)At her expense school photos on any such occasion upon which same are arranged by the school;
(c)At her expense, copies of any awards, certificates of participation and the like in respect of any sporting or extra-curricular activity in which the children are engaged;
(d)At her expense, copies of each and every school report, assessment, or notification received from the school in respect of the children’s behaviour, progress or the like.
The mother shall, within 7 days of the occurrence of same, advise the father, and, in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall advise, in addition, the ICL of:
(a)any medical emergency, serious injury or the diagnosis of any serious medical condition or ailment suffered by the children;
(b)any notification of any kind made by her, or made by any other person with her knowledge, to the Queensland Department of Communities (Child Safety Services) or any person or body having similar responsibilities in any other State or Territory.
Orders for Time and Communication
Save as is otherwise agreed in writing between the mother and the father, the children shall spend no face to face time with the father, nor communicate with him except in accordance with the succeeding paragraphs of these orders:
(a)The father shall be at liberty to send all such written communications and/or gifts to the children as he might choose to the addresses provided to him in accordance with paragraphs 5 and 6 of these orders, but not otherwise.
(b)For a period of 12 months from the date of these orders:
i.the father shall send a copy of any such written communication forwarded by him and a description of any gift to the ICL;
ii.the mother shall forward a copy of any reply by the children to any such communication to the ICL.
(c)The mother shall facilitate the sending of any and all communications initiated by the children with their father to the addresses provided by him in accordance with paragraphs 5 and 6, but not otherwise.
Miscellaneous
All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.
All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations which 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 to adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Ryeburn & Ryeburn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC11060/2007
| MR RYEBURN |
Applicant
And
| MS RYEBURN |
Respondent
REASONS FOR JUDGMENT
The parents of J born in June 2002 (8) and H born in March 2005 (5) seek parenting orders from this Court.
In ex tempore reasons delivered on 26 February 2010 I set out the lengthy litigation history (and even lengthier history of Departmental intervention) involving these parents and children. An understanding of this history is important to the ultimate decision here.
I consider it appropriate to explain that history by incorporating those earlier reasons into these reasons (see s 69ZX(3)) as follows:
This case is, unfortunately, by no means the only case which presents to this court in circumstances where any fair-minded Judge, or indeed, any fair-minded person, would come to the conclusion that children, in this case aged seven and five, are highly likely to be doomed, irrespective of what parenting orders are made by a court between their parents.
As but some examples of why that statement is justified in this case; these parties have been litigating now for about 10 years. This case has been in this court’s system for five years, commencing its life on 15 June 2005. Thus, this case has been in this court for the whole of [H’s] life, and for the vast majority of [J’s] life.
Quite what these parents thought they could achieve for their children by litigating in this court for five years, is utterly beyond me.
As further examples of the sort of considerations relevant to the further determination of this case, the Independent Children’s Lawyer, Mr Grant, indicates that no less than five family reports have been prepared by Ms [B]. Two psychiatric reports have been prepared by a psychiatrist. The matter has come on for trial, and gone away, on at least three occasions. The time and public expense devoted to this case is, on any view of it, extraordinary.
The father has two older children who were, at some stage, part of the family constellation with the mother. They are in the care of the Department of Child Safety.
The Department has had a very extensive history with this family, and Mr Grant tells me that, pursuant to his independent obligations to the children as an independent children’s lawyer, under the Family Law Act 1975 (Cth), he has made continual representations to the Department with respect to the potential for them to intervene in this family by the use of State orders under the Child Protection Act1999 (Qld).
Thus far, the Department, who, it seems, have undertaken significant work with the mother, have failed to take any such action with respect to the children.
I do not mean, in saying that, to suggest a criticism of the Department. It is well known that the legislation in Queensland can conveniently be described as “crisis legislation”, and the range of armoury available to the Department and the State courts, in circumstances where a conclusion is reached that neither parent of a child are likely to provide the most basic of adequate nurture and support for a child, are limited.
Indeed, the net result of such an application might, in many cases, be a child going into foster care. The considerations relevant to that circumstance, and the emotional and psychological ramifications of that, have been the subject of much deliberation recently, firstly, in respect of the tragic treatment of Aboriginal children; and secondly, in respect of children removed from their families in the United Kingdom and brought to Australia and also with respect to other, non-indigenous, families in this country as well.
I am inclined to think that far too much time has been spent on this matter, and far too many public resources allocated to it.
I am at a loss to understand what remedies available under the Family Law Act 1975 (Cth) might assist these children in their future development.
Nevertheless, it seems to me that I am confronted with a difficulty: two parties have, as is their democratic right, invoked the jurisdiction of this court. There is no challenge to them having done so. Having validly invoked the jurisdiction of this court, it seems to me that this court is bound to hear and determine the dispute, the parameters of which are outlined by the respective contentions and counter-contentions of the parties.
That said, what is now plain, from Division 12A of the Act, is that the parliament is, firstly, acutely aware of the potential for there to be significant detriment to children, arising solely by reason of litigation about them.
With that in mind, the parliament has set forth, in that Division of the Act, a number of specific principles, included in which are mandatory directions to the court to guide its decisions.
Among those is, for example, a mandatory requirement for this court to give effect to a principle that, in determining the manner in which proceedings properly invoked in this court involving children, are to be determined, the court is to “consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”.
Mr Grant submits, and it is with respect, plainly correct, that the proceedings thus far, in their ghastly entirety, have had, and are continuing to have, a dramatically negative impact upon the children.
In that regard, he advises, from the bar table (as to which, see generally Division 12A) that Mr [G], who is a counsellor practising outside of Brisbane, has been seeing [J], and that Mr [G] has indicated to the independent children’s lawyer that the continuation of these proceedings are likely to be significantly detrimental to him.
It is, in any event, self-evident that, when parties whose family constellation has already resulted in two of the children being removed from their care and being placed with the care (however described) of the Chief Executive of the Department of Child Safety; and five family reports; that these proceedings having a dramatically negative effect on the children.
The comments made by a very experienced psychiatrist Dr [V] in one of his reports also point clearly to that conclusion.
Further mandatory principles guiding the conduct of these proceedings are contained in the succeeding subsections of section 69ZN include the mandatory requirement that “the court is to actively direct, control and manage the conduct of the proceedings.”
In addition, the court is mandatorily required to ensure that proceedings are to be conducted in a way that will safeguard, relevantly, the child concerned, against child abuse.
The expression, “systems abuse” is frequently used in this court to describe the emotional abuse which occurs to children, when a multiplicity of interventions occur in their lives that, in summary, are likely to have a detrimental effect on their psychological or emotional wellbeing.
It is plain that further court proceedings here run that risk.
Next, relevantly, the court is mandatorily required to ensure that proceedings are “conducted without undue delay, and with as little formality and legal technicality and form, as possible”.
It seems to me arguable that the mandatory principles to be applied by a court, the general tenor of Part VII of the Act, and in particular, Division 12A, gives legislative licence to this court to determining that, despite the proper invocation of its jurisdiction, the court should, nevertheless, refuse to entertain a parenting application or response on behalf of parents, when regard is had to each and all of the matters earlier referred to.
I confess that, in the circumstances of this case, I am sorely tempted to make that finding, and to put an end to these proceedings for the sake of the children.
However, against that, must be balanced the consideration earlier specifically referred to, namely, the obligations upon a court once its jurisdiction is properly invoked. Secondly, apart from the ridiculous [amount of the] damaging and continuous allegations and counter-allegations made by the parties against each other, there is currently before the court, I’m told, an application by the mother to, in effect, “relocate” to a place significantly geographically remote from Queensland.
That raises a number of separate and discrete issues, bearing in mind, of course, that, although cases such as that are described as “relocation cases”, they are but a specific instance of a parenting case.
Because it seems to me that this issue is discrete, and the ramifications of it for the co-parenting arrangement (such that the arrangement in this case might euphemistically be so described) I consider that this court should entertain the application brought by the mother, and the cross-application brought by the father.
However, I am not prepared to allow either further public resources to be used for these issues - which have now been trammelled for many, many years, for no discernable benefit to the children - to be reagitated.
Accordingly, by reference to the principles set forth in section 69ZN of the Act, I propose to place significant limitations upon the nature and extent of the proposed hearing.
I impose each and all of those limitations by reference to the obligations contained in the section just referred to, but also because of the human consideration that democratic systems, including the legal system, should never be used as a means by which children can be harmed.
The proceedings will be managed to a trial before me.
The trial will last no longer than two days. The evidence in the trial shall be confined to evidence from the family reporter Ms [B]; the psychiatrist Dr [V]; the counsellor Mr [G] (whose prospective evidence I will make specific reference to in a moment).
The evidence of the parties will be confined to an affidavit which sets out their proposals for the “living with and time spent with” arrangements of each of them, and their reasons for seeking those orders, the latter, comprising not greater than three typed pages.
I have already referred to the fact that Ms [B] has previously prepared five reports. I am acutely aware of the significant impost on public funds, that further reporting might require. Nevertheless, it seems to me that the court, and therefore, the children, would potentially benefit from a further report from Ms [B], that addresses specifically, the issues of relocation, and the impact that is likely to have (whether beneficial or detrimental) for the children if the children are to continue to live with their mother; whether it is in the best interests of the children for them to live with their father in that event; and whether, despite the observable, warm relationship between the father and the children, there are, nevertheless, considerations directly relevant to the best interests of the children, that might impact upon the time that they spend with their father, or if they are to live with their father, with their mother.
I will require each of the parties to do all that is necessary, and sign all documents that are necessary to request of Mr [G], via the agency of the independent children’s lawyer, a report from Mr [G] as to his counselling with [J], subject to this restriction: that nothing that Mr [G] tells the court via the process of any such report, shall, in any way, breach any confidence given to him by [J], and in the event that Mr [G] certifies in writing to the independent children’s lawyer that the provision of any report jeopardises the confidence of [J], or any past or future counselling or treatment of [J], then no such report shall be required of him.
The father in these proceedings is currently incarcerated. The father indicates that he anticipates being released from prison [in] March 2010. Mr Grant informs the court from the bar table that the solicitors representing the father in respect of his current criminal proceedings, indicate that a plea of guilty has been entered on his behalf to the charges he faces, and that they confidently anticipate the father will, indeed, be released next week, on the basis that his sentence will be one of imprisonment, but by reason of the time already served by him, he will be immediately released.
Accordingly, I will adjourn this matter to the Magellan Registrar, at a date and time to be advised, in order that the matter might be further managed toward a trial in accordance with the orders earlier made.
As will be clear from that outline, this matter presents for trial based on the orders there made with six reports of Ms B, two reports from Dr V and one report by Mr G. The parties have each filed an affidavit setting out the orders sought and the basis for contending that such orders should be made. The reports from the experts, and particularly Ms B, set out comprehensively the factual background and assertions and counter-assertions made by each of the parties.
The mother makes serious allegations of abuse or neglect occurring, she says, whilst the children were in the father’s care. The mother asserts that J has been sexually interfered with by his half sister. (This alleged abuse, it is noted, is said to have occurred at a contact centre). The mother also asserts abuse of J by his father and paternal uncle and that he has been exposed to inappropriate sexual behaviour by the father.
The mother also asserts that the father has made various threats to kill the children and herself and has voiced threats (again, it is to be noted, while at the contact centre) prevailing upon J to say that the father has done nothing to him.
Ultimately, the mother asserts that the distress caused to J in having to see his father is causing severe physical and emotional distress, manifested in J’s behaviours.
The father denies any sexual wrongdoing and asserts that the mother is involving the children in a campaign to exclude him from the children’s lives, causing them significant emotional harm.
The serious conflict that has engulfed these parties for the entirety of H’s young life, and the majority of J’s, has lead to serious concerns for the children’s emotional well-being. J, in particular, has displayed very concerning behaviours.
The children have been involved in an enormous number of interventions throughout the history of this matter. J’s counselling psychologist, Mr G, deposes that “I do not think, frankly that any further assessment is at all warranted and would even offer the suggestion that too much of this has already occurred”.
As I earlier intimated, I have grave doubts that any order by this court will serve to allow these children to grow into healthy, functioning adults; I think it highly likely that the ceaseless and remorseless conflict between the parents and the plethora of allegations and counter-allegations will continue and will besiege these children until they are truly old enough and sufficiently mature enough to make their own decisions.
The potential for psychological and emotional harm being caused to these children now, and into the future, is extremely high and likely to be present irrespective of any parenting order that might be made.
Background and Chronology
The mother and father commenced a relationship in approximately 2000 and separated in 2004.
The father was married previously to a Ms Y from 1996 to 1997. The father has four children from this previous relationship; two adult step children (twins, N and M, aged approximately 22) and two younger children (A and R aged approximately 14 and 13).
Both A and R are subject to Child Protection Orders granting long term guardianship to the Chief Executive of the Department of Communities.
It emerged in cross-examination of the expert witnesses during the trial that the breakdown of the father’s first marriage was marred by issues of conflict and hostility and the Department’s involvement with the older two children.
The father deposed that, in about 1998, allegations were made that he had interfered with his step-children. On the father’s evidence following departmental investigations and a conclusion that the allegations were unsubstantiated in February 2001, orders were made for the step-children to live with the father. In 2003, orders were made that all four children from the father’s previous relationship were to reside with the mother and father in these proceedings.
In late 2003 all five children (the four children from the father’s previous relationship and J) were removed from the parents’ care. J was returned a few days later; the older children were placed in care. R was returned in mid 2004, but, in August 2004, both J and R were again removed by the Department.
J was returned to the mother’s care in February 2005 (the parties now having separated and the mother being pregnant with H). At this time the father was spending supervised time with J at a contact centre. On 15 June 2005 the father filed an Initiating Application in this Court.
Ms B records in her second report filed 6 February 2007 that, in 2006, the parties attempted reconciliation and from August to October 2006 the father spent time with the children while at the mother’s house. The father submitted that he would not classify this period as a ‘reconciliation’, but rather it was a time when the mother assisted him following back surgery. The father stated that the parties did not reside together at this time but he did see the children almost every day at the mother’s residence. The father submitted that at no time during this period, was he alone with the children, the mother always being present.
At the time of the interviews for this second report (January 2007) attempts at reconciliation had failed and the mother sought to relocate interstate with no requirement for the children to ever see the father.
Ms B observed in the report closest to those events:
The mother’s reaction to the failure of her attempts at reconciliation with the father is extreme. There is no case in my opinion for her to be able to move wherever she likes and for the father to never again spend time with his children… To request such an order demonstrates the mother’s lack of insight into the needs of the children and their attachment to their father.
On 8 March 2007 orders were made for J and H to spend supervised time with the father and on 18 May 2007 such orders were varied so that the time with the father commenced and ended with supervised time at a contact centre and permitted a few hours of unsupervised time in the middle.
On 20 July 2007 the parties reached Final Consent Orders including orders for shared parental responsibility and for the father to spend time with the children on alternate weekends and for half the school holidays. Changeovers were to occur at the contact centre but there were no requirements for supervision of the time itself.
In August 2007, within weeks of that consent order having been made, the mother unilaterally relocated with the children, firstly away from the local area and finally to Tasmania. The mother states that she relocated after the father made, what she says were, threats on her life.
The father sought a recovery order and the mother and children were ordered, on 25 March 2008, to return to South East Queensland within a month. The mother filed an Appeal against those orders and sought a stay pending the hearing of the appeal. The mother’s application for a stay was dismissed on 24 April 2008 but the recovery order was varied to require return to Queensland by 18 May 2008.
Fortnightly supervised contact between the father and children commenced on 17 May 2008 at the T Contact Centre. This form of contact persisted until 13 July 2009 when the centre withdrew services after ongoing concerns about the parents’ behaviour at and around the centre. Issues surrounding the contact centre will be discussed further below.
Since the end of July 2009, J and H have only seen the father in interviews with Ms B. In oral evidence the father deposed to the fact that he has never experienced any time alone with H outside of a contact centre or observational interview session.
The events surrounding the most recent interview session with Ms B – May 2010 – raises significant issues and concerns about the children’s well-being and the necessity to bring the ongoing turmoil surrounding this litigation to an end. This incident will be considered in detail below.
The circumstances of A and R’s removal from the father’s care remains unclear. In response to a direct question from the mother about why the children were removed in April 2009, the father deposed that it was as a result of “difficulties at home” and because “[R’s] behaviour was out of control”.
The father deposed that both he and the mother signed a document granting parental control for A and R to the Chief Executive of the Department of Communities. The father deposed that he did this as he:
… felt that it would be in the children’s best interests if they wished to behave in the manner they were behaving to let them go, because [he] knew eventually that they would be coming home. So [he] gave them the liberty and the freedom that the law says that they have.
The father’s explanation of this issue seemed, at best, disingenuous; I thought he was being deliberately evasive. In any event, I consider that he was, in effect, blaming a child for the drastic step of departmental removal.
The Magellan Report prepared by the Department of Communities (Child Safety Services) pursuant to s 69ZW of Family Law Act 1975 (Cth) (“the Act”) and dated 19 August 2010 records that A has recently placed herself in the father’s care.
The Department records that they do not support this placement. In oral evidence the father confirmed that A is currently living with him and has been for a number of months. The father deposed that R is in a specialist care situation and he has not had any contact with her for some time but is hopeful that she will return to live with him and A in the future.
An extract of an affidavit sworn by a Ms JS, said to be a departmental officer, became Exhibit M1. This extract sets out details of incidents between the father and his children, A and R, as they are recorded in various departmental records.
The father denied the truth of the allegations contained within that document. What is clear from the extract is that, at the least, the Department has had a very lengthy involvement with A and R and investigated innumerable notifications.
The father’s criminal history from February 1996 until March 2008 became Exhibit ICL4 and includes charges of assault occasioning bodily harm in November 2004. These charges flowed from an incident of violence perpetrated by the father against his step-daughter N when she was then aged approximately 14.
From September 2009 until April 2010 the father was incarcerated for offences stemming from threats to harm staff of the Department of Communities and threats to cause damage to departmental buildings. The father deposed that gaol time was served following his plea of guilty to the charges and being refused bail. The father deposed that upon the matter coming on in the District Court he was released as a result of time he had already served.
Mother's proposal
The orders sought by the mother are set out in the Response to an Application for Final Orders filed on 26 June 2008 in these terms:
1. That all previous Order be discharged.
2.That Mother have sole parental responsibility for the children, [J] born […] June 2002 and [H] born […] March 2005.
3.That the Mother be at liberty to relocate the residence of the children to a location within Australia.
4.That the mother shall comply with all such written contact between the children and the Father as is ordered by this Honourable Court.
5.That the Mother shall comply with any direction of this Honourable Court to pursue therapeutic treatment for the child, [J].
6.That the Father’s Amended Application filed 10 June 2008, together with all pending Applications, be dismissed.
The mother wishes to relocate to Tasmania with the children stating that such a move would allow the “release [of] past memories which are causing current emotional harm”.
The mother proposes that she have sole parental responsibility for the children for major long-term issues (as defined in the Act) and “non-major” long-term issues. The mother proposes that the father spend no face to face time with the children but be permitted to communicate with them in writing.
As will emerge, I consider it extremely unlikely that, in the postulated circumstances, any communication in writing would occur. The mother’s proposal would, for all practical purposes, remove the father from these young children’s lives.
Father's proposal
In the Amended Application for Final Orders filed 10 June 2008 the father seeks orders that the children live with him and spend time with the mother as ordered by the Court.
In his affidavit filed 4 August 2010, the father proposes that the children “reside equally” with the parents “in all matters”. The father deposes in that affidavit that he seeks equal sharing of both the duration of time and parental responsibility.
In submissions, his position became more confused. In response to a direct question from me about what orders – in practical terms of number of days, changeovers etcetera – he sought, the father said, firstly:
Given the fact that I have been deprived of having a relationship for such a long time because of allegations, now considered to have been false and fraudulent, that maybe the children should have a relationship with me and their sister for a period of time every Friday Saturday and Sunday and then after a period of time when make up time is done or what happens usually when contraventions are done that we sit down and work something out maybe every second weekend from Friday and Monday and half of all school holidays...I would be prepared to travel…to pick them up.
As can be seen, orders in those terms do not create an ‘equal sharing’ of time between the father and mother. The father said, ultimately, that he seeks orders that the children live with the mother and spend time with him on alternate weekends and for half school holidays.
The background and chronology already set out will make it clear that the father’s submission that, after some make up time is completed, the parties “sit down and work something out” could be described as a quite extraordinary example of the triumph of hope over expectation. It also, though, exemplifies starkly, the father’s apparent inability to grasp the extent of conflict and inability to co-operate experienced by these parties.
I accept that this statement was made ‘off the cuff’, in response to a question from me, but the reality for these parents is that no such negotiated outcome has been, nor appears likely to ever be, even close to a practical reality. As will emerge, it is also a strong pointer to the father’s naïveté in addressing the problem inherent in the co-parenting arrangement for which he ultimately contends.
Position of the Independent Children’s Lawyer
At the conclusion of the hearing, the Independent Children’s Lawyer (ICL) submitted that the children ought remain living with the mother and have no face to face time with the father. The ICL submitted that the father should be permitted to communicate with the children by mail, with limitations about the frequency, and be kept informed of the children’s school progress by receiving school reports and photographs.
It was said that the history and extent of conflict and distress caused by past attempts for the parents to communicate on any issue, meant that parental responsibility could not be shared; that the presumption is rebutted in this matter either in the best interests of the children (or s 61DA(4)), or is rendered inapplicable by reason of the father having engaged in family violence (s 61DA (4)). As a matter of practical reality, it is said, “sole parental responsibility” must be held by the parent with whom the children live (on the ICL’s proposal, the mother).
The ICL contended that, while this proposal was made reluctantly, it achieved the ‘least detrimental alternative’ for these children. The ICL noted that the Court’s task in parenting matters is to conduct a positive enquiry into the best interests of the children but concluded that, in this matter, the reality of the task confronting the Court is to shape orders that will lead to the children suffering least harm.
Central Issues
The evaluation and opinion in Ms B’s most recent report, filed 11 August 2010 provide a useful overview of the dilemma presented by this matter:
6.2.11 There is a view that once the father is completely shut out of the children’s lives, the mother will relax and the children will have a chance to get on with the developmental tasks of childhood unhindered. If I could be sure this was the case, I would have little hesitation in recommending that the children continue to live with their mother, relocate to Tasmania and spend no time in the presence of or communicating with their father. My concern is, however, that once the mother has not only sole care but sole parental responsibility of the children in an area inaccessible by the father then the beliefs she will encourage the children to hold about their father will be unhindered by any court proceedings and will be maintained totally untrammelled.
…
6.2.13 So I am left with suggesting that the children should be protected from the ongoing dispute between their parents by living with one parent and having no contact in person with the other parent. The mother is, in my opinion, the safest option at the moment, although her capacity to meet the children’s ongoing emotional needs is a matter of some concern.
…
6.2.15 I believe that, if possible, a finding in relation to the alleged sexual abuse of [J] by the father should be made by the Court, to effectively “clear the air” in relation to this issue and, if the father is found to have not abused [J], to pave the way for re-establishment of relationships between the children and their father at some stage in the future should the children so desire.
6.2.16 I am of the view that if the Court is of the view that the father did not sexually abuse [J], then the children deserve the opportunity to retain a thread of contact with their father, even if this is confined to written communication in order to remove the pressure which ongoing contact in person creates for them. Both children still have quite a few years to go before they are likely to reach out to their father directly if this is what they want. A mechanism should ideally be put in place to allow them to contact their father directly after they have reached an appropriate level of maturity.
The views expressed by Ms B in the concluding part of para 6.2.11 might be seen to be issues of fact – or, perhaps, prediction based on the predicted assumed facts. Nevertheless, they accord with my view that this is precisely what the mother will do.
The oral evidence of Mr G, a psychologist attended by J (with the mother present for at least some sessions), provided a similarly useful digest of the central concerns in this matter.
Mr G compared the potential harms that present themselves for these children; persisting with the situation that has occurred in the recent past with attempts to have supervised time, allowing the mother to relocate with the children and have sole parental responsibility, removing the children from the mother’s primary care and ordering they live with the father. Each of these situations raises significant concerns for these children.
Mr G deposed that, in his opinion, it is crucial for the emotional and psychological development of these children, to bring an end to the circumstances that have surrounded them for the past 5 years. He thinks that a continuation of supervised time at a contact centre will, in all likelihood, provide such stress, and distress, that any potential benefit will be greatly outweighed. Again, I agree.
Mr G noted that, to end the situation that has persisted in recent times, will, in his opinion, require the removal of one parent from the children’s lives.
In considering the alternatives of removal of either the mother or father from the children’s lives, Mr G deposed that he was:
inclined to think that the harm of removing the children from the mother would outweigh the harm that has already been done by restricting him from having contact with his father.
Mr G deposed that in his opinion the best hope for the children – J in particular – would be a situation that sees an end to the machinations that have surrounded them in recent times and the provision of a chance to settle and break the patterns of the recent past.
Mr G deposed that the mother’s proposal, seeking to relocate, may provide the chance to create stability in a different community. However, in oral evidence, Mr G went on to say, in words, given independently of Ms B but which have a striking similarity to her views:
… we can but just imagine this, I cannot be definitive that would be able to happen. The other alternative is that they find someone else, that there is someone else that bobs up and they become problematic and the subject of allegations and away we go again.
But of the three harms; the continuation of what has been happening needs to stop, the second one of taking him away from his mum and placing him with his dad…that would disrupt him in a way that could be quite longstanding and quite difficult and I don’t know how capable [the father] would be of managing that and the third one, the harm of him being cut off from his father and allowed to stay somewhere else, there is at least some hope that maybe there would be some sort of a chance to break out of the pattern and cycle that has been the case in return times and therefore that might provide some stability.
The central issues confronting the Court include:
a)whether the father poses a risk to the children in respect of direct abuse concerns or inappropriate supervision;
b)whether the mother presents an unacceptable risk of emotional harm to the children by her involvement of the children in the concerns about sexual abuse and risk posed by the father;
c)the ability of the parties to protect the children from the adult conflict and negative consequences flowing therefrom;
d) the benefit, or otherwise, to the children in having a relationship with each parent.
The mother effectively seeks findings that the father has sexually interfered with J, exposed J to inappropriate interference at the hands of his paternal uncle, and continues to pose an unacceptable risk of either abuse or psychological and emotional harm by way of threats and intimidation.
If the mother is correct in all that she contends, the behaviour of the father is reprehensible and extreme and it would be difficult to see how any benefit could be gained for these children from any relationship with their father.
If the father is correct in all that he contends, then the mother has consciously and deliberately led a campaign to exclude the father’s input to, and influence in, these children lives and has done so by making heinous false allegations against him. Further, the mother has inculcated and encouraged the children to believe that their father has perpetrated serious abuse upon them and is a person to be feared.
Between these extremes lies the unattractive eventuality, urged upon the Court by the ICL, of finding either that abuse has not occurred or that the father does not present an unacceptable risk of harm, yet nevertheless making orders that would see the mother parenting these children geographically remote from the father in circumstances where, if past history is any guide at all, any time or communication between the father and children will be practically impossible.
Parties: Presentation in the Current Case
Each of the father and the mother represented themselves. I am cognisant that self-representation creates certain difficulties and disadvantages. I note that any such disadvantage is perhaps mitigated in this matter by the fact that both parties appear for themselves. I am, however, well aware of the difficulties this creates for each and have that in mind when assessing the evidence and submissions of both the mother and father. (See eg Neil v Nott (1994) 68 ALJR 509 at 510).
In his Atkin Lecture in 2002 entitled The Misnomer of Family Law Mr Justice Wilson (UK) made the following observations:
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes effects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.”
I consider that the parties’ self-representation provided the sort of insight that Mr Justice Wilson there refers to.
Both parties were respectful of the process, each creating very few situations requiring interjection from me to maintain civility and propriety. Each party cross-examined the expert witnesses in this matter. The mother required the father for cross-examination; the father did not seek to cross-examine the mother.
I was not particularly assisted by any of that process, save to allow observation of each. Much of the mother’s cross-examination, in particular, was comment or argument rather than questions designed to elicit fact. In large part the mother continued with a form of questioning that involved recitation of information from a variety of documents and the making of statements from herself.
The mother’s cross-examination of each witness, and the father, was thick with references and cross-reference to subpoenaed documents produced throughout the life of this matter. The mother took witnesses through a miscellany of incidents going back to the late 1990’s.
The mother’s final written submissions (marked as Exhibit A for identification purposes) have been carefully read. They, too, refer to a miscellany of issues focussing on the older children from the father’s previous relationship that are not currently before the court.
Mr George counsel for the ICL submitted that the father’s cross-examination revealed a lack of respect for the people involved in this matter and the serious issues being considered. Specifically the ICL pointed, as an example of this disrespect, to the father’s references to Mr G as ‘mate’ and by his first name.
I am not satisfied that any such conclusion should be drawn.
Each of the father and mother were singularly unimpressive witnesses. I was particularly unimpressed by the mother. Whether as a result of the personality issues identified by Dr V or as a result of actions more calculating (and, thus, sinister), I consider her account of incidents as highly likely to be unreliable, inaccurate and to be permeated by the belief that the end (removing the children from their father’s life) is justified by the means (discussing the proceedings and adult issues with young children; inculcating the notion that their father is a danger to them and presenting a wholly negative view of the father to the children). In this, as will emerge, she is assisted by “friends” who join with her in a campaign against the father.
The father is also unimpressive as a witness – and as a father. As to the latter little more needs to be said other than that he was sentenced and jailed for an assault on his then 14-year-old daughter and that each of two younger children are the subject of orders under State legislation imposed upon application of the Department.
He asserts an epiphany during his incarceration, the catalyst for which, I gather is a religious “conversion”. His earlier life is marked by chaos, conflict and violent behaviour. I accept, at face value, his sincerity in attempting to effect change in his life; I am, unfortunately sceptical about his underlying capacities to maintain those asserted changes. He presents as naïve in the extreme about the necessary pre-requisites for consistent parenting and the stability so necessary for it.
Principles: Issues and Considerations
The interplay of the Act’s two Primary Considerations is central to a determination of orders which best meet the best interests of these two young children.
I am conscious that, whilst those two Primary Considerations, have primary importance, they must also be seen in the context of all other Considerations enumerated in s 60CC relevant to the particular circumstances of these two children. (See, in that respect, eg, Warnick & Thackray JJ in Marsden & Winch (No. 3) [2007] FamCA 1364 at par 77).
Primary Considerations
The undefined expression “meaningful relationship” has been considered in a number of recent decisions. (See McCall & Clark (2009) FLC 93-405, but noting also the earlier comments of Kay J in Godfrey v Sanders [2007] FamCA 102 at par 36).
There is no doubt that the Act gives primacy to the benefit of children having such a relationship with each of their parents. That primacy is consistent with the Act’s Objects and Principles: children have a right to know and be cared for by both their parents and to spend time on a regular basis with both parents and others significant to their care, welfare and development. In making parenting orders under Part VII the best interests of the children are to be met by, among other things, ensuring they have the benefit of both of their parents having a “meaningful involvement” in their lives “to the maximum extent” consistent with their best interests.
In this case, however, as in so many cases that proceed to final hearing in this court, the Primary Consideration of the children having a meaningful relationship with both parents presents as conflicting directly and powerfully with the other Primary Consideration, which predominates the need to protect children from specified harm.
I agree with Mr G that it is important that findings be made about the respective allegations of abuse.
The Nature of Unacceptable Risk
In cases where allegations of abusive behaviour involving children, or potentially involving children, are made, an assessment of any risks associated with the parenting orders contended for, and, ultimately, those which might attend orders made by the court, must play a central role. “Unacceptable risk” is the measure (sometimes said to be a test) which, in this jurisdiction, has been used to assess parenting orders which might be impacted by potential harm to a child. (See M v M (1988) 166 CLR 69).
It is important to record part of what the High Court said in M v M (at 76):
“Viewed in this setting, the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”
Unacceptable Risk: Nature, Extent and Relationship with Orders
In McCoy v Wessex (2007) 38 Fam LR 513, Brown J refers to a number of decisions where the place of “unacceptable risk” is considered. In particular, her Honour refers to the decision of the Full Court in N and S and the Separate Representative (1996) FLC 92-655. There, Fogarty J said (at 82,713-4:
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 to explain adequately their findings in this regard.
In her Honour’s reasons in McCoy, Brown J also refers to the judgment of Warnick J in Napier v Hepburn (2006) 36 Fam LR 395, (subsequently cited with approval by the Full Court in Potter & Potter (2007) 37 Fam LR 208 and Partington & Cade (No 2) (2010) 42 Fam LR 401). Warnick J says this:
[114] I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial Judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can eliminate paths by which a family (or court making decisions for a family) might subsequently explore options for change”.
The reference by Warnick J to the process leading to the result is, in my respectful view, extremely important. Frequently, (I would respectfully venture, too frequently) “risk” is referred to as an all-embracing term, a “general” finding of which can (purportedly) be seen to have some form of “ipso facto consequences” for the orders made. Yet, “risk” is, without more, but a convenient description; orders must, surely, address its constituent components which must, axiomatically, vary according to the circumstances of each case.
In that respect, it is both interesting and instructive to refer to what has been said about this issue first by the Honourable John Fogarty AM, and, secondly, by an English author, (the latter qualified as both a psychiatrist and a barrister).
The latter said:
Risk assessment in any situation involves, in essence, the asking of the following questions:
(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?
(B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
Mr Fogarty, writing in the Australian Journal of Family Law said this (20 AJFL 249 at 254-5):
…the reality is that all courts deal with issues of “risk” and degrees of risk (however described) in various situations and that concept is increasingly used in legislation.
…
Risk involves two components; the degree of “likelihood” of the happening of an event, and the possible consequences (good or bad) if it does [cases and citations omitted]. Individuals in their assessment of some risks may focus more on one than the other of these components.
But at some point it usually becomes necessary for that person to make a judgment of the risk and whether it can/should be taken. Where the risk relates to a third person to whom one owes a responsibility, it is likely in the nature of things that the estimate will be conservative.
Risks are relative and usually involve trade-offs. Crossing the road with oncoming traffic to catch the last connection to the airport involves the risk of being hit by a car or the risk of missing the plane. Very much a balancing exercise of facts, experience and intuition, but essentially which risk carries the greater detriment (usually the car).
Then there is the common experience of a mother watching her child cross a road to go to school. The risk is seen as greater (although it may not be) because the consequences may be death or injury to the child and because the responsibilities of the mother will be seen by her as greater than for herself or another adult….
At times the courts and the legislature have attempted to give an indication of the content or quality of the risk – otherwise “risk” may mean any risk, however small or unlikely. Hence the use of adjectives such as “serious”, “grave”, “real”, “appreciable” and “unacceptable”. [paragraphing added to the original for ease of reference]
I respectfully agree, as I also do with Mr Fogarty’s statement that:
“… unacceptable risk in the High Court’s formulation [in M v M (1988) 166 CLR 69] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is “acceptable” when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of “benefit to the child”. It is, as I suggested earlier, calibrated to its use in individual cases. It is unrelated to the exoneration or otherwise of the alleged abuser; it is all about the bests interests of the child and protection from risk”. (at 261)
The High Court said in M v M, above, “the resolution of an allegation of sexual abuse against a person is subservient and ancillary to the court’s determination of what is in the best interests of the child” and, on any view, the subsequent substantial amendments to the Act reinforce that position.
Best Interests: The Risk of Sexual Harm
“Disclosures”
Against the background of years of allegations and counter-allegations, a litigation history extending back to 2005, and departmental intervention extending over a decade across six children and two family constellations, it is extraordinarily difficult to identify each and every discrete allegation and “disclosure” or allegation of alleged risk of harm that has been made.
A good example of how “disclosures” have been “muddied” in this case is provided by the fact that the mother was a deponent in the father’s case in past proceedings focussing on allegations of abuse suffered by the older children. Both parties made statements from the bar table about alleged perjury, retractions of support and alterations of evidence in relation to these earlier proceedings. The father now asserts that he has weekly breakfasts with his first wife who was “the complainant” in those previous proceedings. At one stage, the father voiced an objection to answering any questions about her, asserting a desire to protect or insulate her from any further allegations by the mother.
A and R’s situation has been (and is) the subject of considerable departmental involvement. However, A has recently placed herself with the father – on the father’s evidence resulting from A rejecting negative stories being told to her by the mother and deciding to reconnect with the father.
At the commencement of proceedings in this Court in 2005 the mother made a series of allegations of domestic violence and, in the first interviews with Ms B, she voiced a desire that the children have “no contact ever” with the father.
In July 2007 the mother signed Final Consent Orders, apparently (and, on her case) in good faith. The parties had undertaken interviews with Ms B on 25 June 2007 where the mother voiced a desire to relocate with the children and allow some block holiday time with the father. The mother unilaterally relocated interstate with the children less than a month after signing the Final Consent Orders.
Further to this complexity, statements made that might be referred to as ‘disclosures’ are attended by behaviour and other indicia that make sober analysis extremely difficult. A particularly striking example is given in the Magellan Report which records that, in interview, J “appeared confused about what was real and what he had been told had happened to him”. J said he could not remember the father abusing him but “he knows it happened because his mother told him” and “his mother always tells the truth”.
The Magellan report also records J as “laugh[ing] and say[ing] things like “it’s funny because dad has to go to court and hear about all the things I have said about him and he will get in trouble”.
Ms B’s report filed 27 March 2008 records (it might be thought, similarly) that:
[J] quite clearly said he didn’t remember “the things that Dad did” to him but said, “They are in the papers”. He said that his mother could show him when he is in grade one as “I will be able to read them”.” … “He said he hadn’t been missing his father, “Cos he did naughty things”. He would only remember them properly “when Mum reads them in the paper”. She was “going to read them” to him. “But you can’t tell Dad this”.
As best as can be determined, the following ‘disclosures’ are relied upon by the mother:
· December 2007; J disclosed to the mother that “Uncle [E] [the father’s brother] touched my doodle”. This ‘disclosure’ by J seems to refer to an overnight stay with the father in July or August 2007. Ms B records in her report filed 27 March 2008 that the mother provided details of J stating to her that the father had asked him to masturbate him and that the father showed him what to do. The mother stated that J disclosed that this had happened in front of R and a friend of the father.
· February 2008; Dr V’s report filed 21 November 2008 refers to the mother informing him that “On 28 February 2008 while she was in the bathroom with J “he ([J]) had told me he had been in the shower with his father” and “he was asked by his father to lick his doodle”. There is no record of when this alleged behaviour is said to have occurred.
· September 2008; J disclosed to the mother that whilst at the contact centre he was digitally penetrated by his half-sister R (then aged 11) while in the toilet. The mother asserts that J stated to her that R chased him and put her finger in and out of his bottom. The mother states that J said he was calling for help but nobody came to his aid.
· March 2009; J disclosed to the mother that, while at the contact centre, the father whispered to him that he would “pull my doodle hard again” if he did not tell interviewers that nothing happened and “mummy made it up”.
· May and June 2009; J disclosed to the mother that, while at the contact centre, the father whispered to him that he was going to kill him.
· August 2010; The Magellan Report prepared by the Department of Communities includes details that “[H] was quite difficult to interview and would often make random disclosures about sexual abuse, however she was unable to maintain focus and departmental workers could not obtain consistent information from her.” The report goes on to note that “The information provided from [H] was quite graphic, for example, she spoke about someone putting their hands up her vagina and blood coming out…[H] was laughing when she made these disclosures.”
The assertion of physical abuse against the father and uncle is said to arise from an alleged incident occurring in mid 2007 and the alleged incident involving R is said to have occurred in September 2008.
There have been no further allegations of physical abuse against the father since this alleged incident in 2007. The alleged ‘disclosures’ since September 2008 include details of threats of violence but no actual physical or sexual abuse.
While cross-examining, the mother recited further details of the alleged ‘disclosure’ relating to the uncle and father “touching [J’s] doodle” including that “it really hurt” and the father “pulled [his] doodle hard”.
The record of H’s alleged disclosure in the Magellan Report is the first reference to any disclosure of a sexual nature by H. The date of this interview is not revealed in the Magellan report.
The mother said that H has not made any disclosures to her and she cannot explain this reference from the Magellan report. In her written submissions the mother refers to the Child Safety Officers who conducted the interviews as being “directly out of University” and the fact that “[H] would have been smart enough, to pick up…that they were asking some sort of questions regarding bottoms, bums etc”. Precisely what the mother intended to portray by these references is unclear. What the mother stated with clarity is that she does not assert that H has made any concerning disclosures to her.
Ms B’s most recent report includes a ‘disclosure’ by H about the father having a “little real gun” that he takes with him to the contact centre and that the father “tried to kill us with his gun” and said “I’m going to kill you”. This is the first record of H voicing a threat allegedly made by the father. Again, the mother made no reference during the trial to H making any such disclosure; disclosures of alleged death threats were all said to come from J.
An assessment of “disclosures” made by a child is, of course, difficult; frequently the veracity of what is said (assuming it is reported accurately and without attendant misinterpretation or the like) can only be attested by the child and the alleged perpetrator. Here, though, some very specific allegations are made in circumstances where other evidence is available through which their veracity might be tested.
That important issue will be addressed below. First, it is necessary to look at other evidence said to support or contradict, the occurrence of repugnant behaviour.
Medical Evidence
The evidence reveals that the mother took J to the Hospital following his ‘disclosure’ that R had interfered with him at the contact centre.
The mother’s affidavit filed 2 August 2010 states that “20/9/08 R B Hospital report as shown on camera scan indicated internal abrasions to [J] symptomatic of digital penetration. [J] disclosed that his step-sister [R] had done this two days prior.”
Dr V’s report filed 21 November 2008 makes reference to a ‘letter to [the ICL] from the mother’s lawyers”. Dr V records, having had reference to the letter, that:
The child was taken to [R] Hospital as [the mother] happened to be in the area. [J] is alleged to have made disclosures to a Triage Nurse at the Hospital…It seems that [J] was examined physically. The mother was told by the treating doctor that there was no damage observable externally. The following morning [J] again complained of a sore bottom…He did this on three different occasions the week thereafter. [J] was later interviewed by Police. The child later attended the Royal Children’s Hospital for further physical examination and camera scan.
The precise detail of how many days elapsed between the alleged interference and the child being taken to hospital for the “internal scan” remains (at the contact centre) unclear. It appears that the external examination occurred on, or very close, to the day of the alleged interference and the internal examination occurred a few days after.
Whatever the timing of these medical examinations, the evidence reveals that the resultant opinions and reports – if any – were not raised with, or provided to, the contact centre staff. This is significant. A young child had been exposed to police interview and medical examinations without any even cursory enquiry as to the potential veracity of the statements. This, too, will be considered further below.
Alleged Behavioural Indicia
The mother asserts that the stress and anxiety that J suffers as a result of having to see the father is manifesting itself in adverse physical reactions. The best, and most concerning, example of this is the incident surrounding the latest interviews with Ms B.
On 21 May 2010 the family attended the Court precinct to allow Ms B to complete a final updated family report in this matter. It is to be noted that Ms B is not a family consultant attached to the Court, but a decision was made, in light of past concerns over safety and management of these parties, that the venue and security provided by the Commonwealth Court building was required for these sessions.
In her report filed 11 August 2010 Ms B records that there was “considerable disruption” prior to the sessions as a result of the mother informing security that the father had threatened to “blow everybody up and blow the building up”.
Ms B also records that the mother brought several “support people” to the Court and one such support person, “caused some difficulties by coming out of the secure dispute resolution section… looking around until he was seen by the [father] and then making a fuss about security…”. The mother’s support people were asked to leave the building and wait for the mother somewhere outside.
Ms B’s observation of the session records that J did not engage with the father and “fidgeted and occasionally looked away, but hardly said anything. Although not engaging with the father, [J] didn’t move away even though there were plenty of spaces within the good sized room…”. Ms B records that J “remained curled up in a chair” for the time the father was in the room.
Ms B includes the following evaluation of J’s limited interaction with the father:
Although [J] stated that he was worried about his father and what he might do, he did not appear distressed to the point where he needed to remove himself from his father’s presence and he was calm when talking to me after his father left. He was with me for at least half an hour after the observation session with his father and appeared relatively relaxed at all times during the interview.
The mother’s affidavit filed 2 August 2010 contains a very different picture indeed. It details a very different reaction by J, asserted to have been brought on by having seen his father. This reaction is said to have occurred some time after the mother and children left the interview process. (I note that, as a result, it was not observable by Ms B.)
The mother’s description of J’s anxiety and stress at having seen the father stands in stark contrast to the assessment of Ms B just recorded and is, of itself, profoundly troubling. The mother deposes:
32. [After the session was completed] We took the CityCat to Southbank. [J] sat down and was very distressed and began making strange noises, drooling, became incoherent, eyes rolling back in his head and could not walk or talk.
33. First aid officer/security attended.
34. [J] was not responding. Security guard called an ambulance…
35. [J] taken to ... hospital.
36. Doctor assessed him then psychologist report done. Constantly monitored for several hours until back to normal.
37. [J] disclosed shock of seeing his father made him curl up into a ball during observation and not talk to him, which he also says caused this later reaction.
Ms B records that, among the documents she referred to in completing her most recent report, was the Queensland Ambulance Service Report dated 21 May 2010. Ms B notes that this reports includes the following:
[J] came face to face with his father who openly threatened to “kill him” and that [J] was reported to have become distraught and non compliant to instructions but the Ambulance officer observed him to appear normal albeit responding with a nod or shake of the head but no words. The report also notes that “in the comfort of the ambulance [J] relaxed and was even able to laugh…however still nil verbal and forcing saliva to run from [his] mouth.
Given the mother’s evidence that the child was unable to speak and the ambulance report that J remained ‘nil verbal’ while being transported to the hospital, the report that “[J] had come face to face with his father” and the father “had openly threatened to kill him” must have been provided to the ambulance officers by somebody other than J. Ms B records no reference to a threat, of any variety, being made by the father to the children while in observation on 21 May 2010. In written submissions the mother notes that she has not made any allegation of such a disclosure being made on 21 May 2010 but that the ambulance officer misinterpreted her words that the father had threatened to kill J “last year”. I do not believe her.
This evidence of J’s concerning physical reactions early this year also stands in stark opposition to the evaluations of the father-child observations made in the earlier reports of Ms B.
Ms B’s report filed 29 July 2008 was completed on the basis of telephone interviews only and as such contains no observations of father-child interaction. In the report filed 27 March 2008, Ms B recorded J’s reaction to seeing his father as follows:
As soon as the father came into the room [J] voluntarily kissed his father and went straight into his arms. He looked very happy.
…
The father asked about school and [J] seemed very comfortable on his lap as they talked. He had his hands up on the father’s shoulders and was affectionately rubbing his shoulders.
…
[J] kept asking when [R] was coming and the father said he was just trying to “have some time with my boy.”…([J] was relaxed with his father – more than in his individual interview, when he was intent on telling him he didn’t want his mother to know this or father to know that.)
…
The father asked [J] if he could have a cuddle and a kiss and the child obliged very willingly – as did [H]. …
The report filed 26 July 2007 is based on observational sessions that occurred prior to the parties finalising the consent orders earlier referred to. Ms B notes in her report that she perused the proposed consent orders prior to completing the written report. She records the following observations of the children and father:
6.1.6 The three children [J, H and R] seem very relaxed with each other and with the father. Attachments were clear between all concerned and these observations did not leave me feeling any concerns about the father’s relationships with [J] and [H].
…
10.2.3 The children are now attached to both parents and there seems to be no impediment to the arrangements which are proposed in the draft Consent Orders.
Ms B’s second report filed 6 February 2007 includes the following observation: “10.2.4 The children are attached to both parents and particularly delighted in the time they were observed to spend time with the father this year in my rooms”.
The first report in this matter filed 16 December 2005 observes “7.1.1 …[J] also appeared securely attached to his father and was certainly glad to see him. There was absolutely no indication that he was fearful of him according to my observations”.
Two important matters will be observed. First, the first identified “disclosure” occurred shortly after the positive reports in July 2007 of the interaction between the children and their father and the opinion that there was “no impediment” to the proposal for the father spending time with the children. So, too, those disclosures occurred only after the mother had unilaterally moved to Tasmania.
In Ms B’s final report she includes an evaluation of J’s behaviours based on her observations and information supplied from the many agencies involved in this matter. Ms B concludes:
6.2.1 … [J’s] “anxiety/panic attacks” tend to occur when he is resisting separation from his mother, considering the prospect of seeing the father or has seen his father. The one common denominator for [J’s] attacks appears to be the presence of his mother. Independent professional observers (namely, school staff, contact centre staff, ambulance officers, hospital staff and myself) have picked up that [J’s] behaviour when apparently demonstrating distress or anxiety is at times inconsistent with his affect and it has been suggested by some that he has a tendency to dramatise and to play on his mother’s own anxiety. …It is possible, in my view, that [J] has learnt to gain his mother’s attention by providing her with certain types of information and behaving in certain dysfunctional ways…
Implicit in that opinion but not stated is, also, the important fact, that the “anxiety/panic attacks” do not occur when in the presence of the father and when the mother is absent.
Opportunity and Other Attendant Detail
Ms L, director of the T Contact Centre, swore an affidavit and was cross-examined. I consider Ms L’s evidence to be entirely truthful and cogent. She was an impressive witness who struck me as a person concerned to predominate the care of children in her charge and who brought a mind set of sensible pragmatism to the difficult task of managing a contact centre.
Ms L noted the lengthy involvement that this family has had with her centre. Her affidavit and oral evidence focussed, understandably, on the period from May 2008 until the centre withdrew their services in July 2009.
I consider her evidence to be extremely important in this case.
The withdrawal of the contact centre’s services for this family occurred after a scheduled contact session on 11 July 2009. The centre expressed concerns about the disruptive behaviour of both parents at the session on that day and more generally.
The notes of the contact session on 11 July 2009 are annexed to the affidavit of Ms L and include the following:
· the mother expressing fear and apprehension at the presence of the father’s brother near the centre;
· the mother advising staff that J would not get out of the car;
· the father becoming aggravated that J was not present and demanding that staff find out if he would be coming in;
· staff observing the mother and her friend: “to be forcibly dragging [J] up the front steps of the building. [J] was very distressed, he was screaming that he did not want to attend and he was kicking and hitting the mother and [her friend] in an attempt to free himself…[the mother] wanted staff to be a witness to her intentions (saying words to the effect; ‘You need to see that I am trying to make him go’)”;
· the mother’s friend making derogatory remarks about the father in the hearing of J;
· the father asking H to go outside and bring J in for the session, after staff advised him this was inappropriate;
· the father calling out from the building to J;
· concerns about arranging for the mother to return and collect H after the father abruptly left the centre, leading to distress being displayed by H;
· the police being contacted to supervise the collection of H by the mother.
This session was the catalyst for the withdrawal of the contact centre’s services but Ms L noted that there were some ongoing concerns about the way that the parents behaved at and around the centre and the disruption and upset this caused the children and other users of the service.
Quite apart from my own assessment of Ms L, there was no real challenge to the veracity of her evidence. I consider her as providing objective and accurate observations of the centre’s dealings with this family. I accept her evidence without reservation.
The mother’s evidence that she and a friend were (literally) physically dragging J to the building “because orders said we had to get him to contact” would make any decent, loving parent despair. That the mother made this statement as a justification for the disgusting display recorded in the centre notes says much about the mother’s parenting capacity and the responsibilities of parenthood which she exhibits.
The father’s behaviour in calling out to J, attempting to use H as a go-between to get J to the session and, finally, abruptly leaving, seemingly oblivious to H’s needs, equally casts a dark shadow over his parental capacity, insight into children’s needs and his responsibilities as a parent.
Ms L’s evidence in relation to the alleged sexual interference of J by R, while at the Centre, is of particular significance in this matter.
Ms L deposed the mother did not at any time inform Centre staff of any such issue or raise any concerns about the alleged sexual interference. Ms L deposed in her affidavit that “staff became aware of the allegation from [the father].” I note that, on the mother’s evidence, she had the results of an internal examination that is said to indicate “internal abrasions… symptomatic of digital penetration”, yet, the mother at no time alerted the Centre to this information or sought to clarify how any such alleged injury might be explained by anything that occurred at the Centre.
Ms L deposed in oral evidence that, upon being advised of this allegation by the father, she had discussions with the two supervisors assigned to the session and a third supervisor who was available and present for the session due to a cancellation by another family. Ms L deposes in her affidavit filed 27 July 2010 that “[d]ue to the highly vigilant nature of the visit we were able to confirm that at no time were [R] and [J] alone [with the father]”.
In oral evidence Ms L deposed that the centre policy surrounding toileting is that a supervisor is in the vicinity of the toilet whenever a child is in there. If the child requires assistance the supervisor is inside the toilet area with them, if the child can toilet on their own then the supervisor stands beside the closed door.
Ms L deposed that reference to the session notes and discussion with the attendant supervisors revealed that there were no concerns raised, or indicated, at any time during the visits involving R that anything untoward had occurred, at any time, by anyone.
As already observed, in August 2007 when the mother relocated to Tasmania, there were no alleged ‘disclosures’ of a sexual nature by the children. The history of departmental intervention for the older children existed, the mother presented a history of domestic violence but at this time – on the mother’s own evidence – there was yet no disclosure of sexual impropriety. The first ‘disclosure’ of such a nature is said by the mother to have occurred on 25 December 2007 – some four to five months after the children had spent any time with the father following the relocation by the mother, on her evidence due to an alleged threat to her life by the father.
Father’s Other Children / Earlier Allegations
The mother contended that the history of departmental intervention surrounding the older children and the father’s convictions for violence, including against his step-daughter, N, were evidence that he posed an unacceptable risk to H and J.
The mother submitted that the Court should be especially concerned given that H and J are younger than N was at the time of the father’s assault and ought therefore be provided even greater protection.
I am not satisfied that evidence of prior instances of violence by the father ought be used as support for a positive finding of abuse alleged to have occurred some years later directed towards other children.
This is not to suggest that the father’s assault against his step-daughter is anything other than utterly reprehensible behaviour worthy of the severest censure. And, indeed, the evidence of this violent behaviour is highly relevant to the statutory considerations, both Primary and Additional. But, I decline to use it as a form of what might be called “propensity evidence” on the issue of whether abuse occurred.
Findings of Sexual Abuse / Unacceptable Harm
Consideration of the evidence in this matter supports the following findings.
Put simply, I am not prepared to accept the mother’s account of what has been said to her by the children that might amount to a “disclosure”. As is apparent from what I have said, I am profoundly troubled by the chronology of the sexual allegations and deeply suspicious that, if the children said anything at all as reported by the mother, it was not said without significant input by, or interaction with, the mother.
I am not prepared to make the (extremely serious) finding that the mother has actively coached the children into saying these things. The unsatisfactory and compromised state of the evidence as to what was said by whom, to whom, and when, illuminates a finding of coaching or concoction no more than it illuminates a finding of a clear disclosure indicative of abuse.
Equally, I am not prepared to rely upon the evidence of the mother as to what the children are alleged to have said. On a “best case” for her, I consider that her attitudes, beliefs, personality issues, and an overwhelming desire to achieve the end of removing the children from the father, completely discolours her evidence in that respect.
Unlike some cases of this type, there is cogent evidence against which an alleged “disclosure” can be measured. As has been seen, the mother maintained at trial that H was abused at the contact centre and that the father had made a threat to “pull [J’s] doodle hard again” if he did not tell the interviewers that nothing happened and that “mummy made it up”. The mother asserts a clear disclosure by J that his half sister R had digitally penetrated him while at the contact centre. The asserted “disclosure” is said to be accompanied by attendant detail (where and how it happened) which it is (implicitly) asserted by the mother adds to its veracity.
I am not prepared to find that J did not say such things to his mother. I do, however, find that the occasion or occasions upon which that was said (or something like it was said) involved the sort of input from the mother to which I have earlier referred and that it is highly likely that the mother has not reported what was said accurately. As I have said, I do not accept her evidence generally and do not accept it in this specific respect.
Dealing with what the mother says was said by the child, about behaviour which occurred at the contact centre, I make a specific finding that the behaviour contained in the child’s statements did not occur.
It seems to me that the standard of proof necessary to make such a finding falls toward what I will conveniently describe as the stricter end of the Briginshaw scale. I make the finding based on my profound concerns about the mother’s evidence and her reliability as a reporter of what the child has said and because I accept the evidence of the father that no such behaviour of any sort occurred.
As I have made plain, this father’s evidence alone would not, in the usual course, lead me to that conclusion. However, in this respect, it is wholly corroborated by the evidence of Ms L which I have no hesitation in completely accepting. Not only does Ms L have no interest in the proceedings which might impact on her evidence, but I consider her evidence to be truthful and consistent with common sense. I also consider her evidence accords with common experience of the methods and “rules” applied by contact centres when allegations of the type in this case are made (s 144(2) Evidence Act 1995 (Cth)).
Ms L’s evidence was that, in effect, she could not see how what is said to have occurred could possibly have occurred. That applies equally to the allegation of digital penetration and to the assertion of the whispered threat to kill.
The evidence of Ms L also contains a graphic example of the manner in which the mother distorts facts to suit her own purpose, or the pre-conceived notion of the father she seeks to perpetuate. She asserted that the contact centre notes reveal the father leaving the children alone. They do not. They reveal a conversation between the father and the workers pointing out the need for vigilance about the movements of the children, including not leaving them alone.
The ‘disclosures’ made by J and H to persons other than the mother have involved statements indicative of the children being confused about whether the details they are providing come from their own experience or elsewhere. The concerns expressed by the Department and Ms B are, in my view, well justified.
It might seem incongruous that the mother holds to a belief that abuse occurred to J at the hands of R (a child of the father’s then aged 11) at the contact centre despite a solid, reliable account that it could not realistically have occurred, yet she apparently dismisses (or finds an “innocent explanation” for) statements by H that are, of themselves, incongruous. It will be recalled that H gave a graphic account to departmental officers of someone “putting their hands up her vagina and blood coming out”.
But, of course, the mother must be aware that the father has not seen H outside of the contact centre environment. She must also be aware that if an incident occurred to a child of H’s age whereby blood issued from her vagina, it could not possibly have escaped the attention of the contact centre. The mother knows that no such event has occurred.
Given that context, the mother said she struggled to explain that to herself, but ultimately concluded it was explicable, perhaps, by H seeing the mother on the toilet whilst menstruating.
Interestingly, the mother does not appear able to give any explanation as to how it might be that H would often “make random disclosures” of sexual abuse to departmental workers when, it seems, no allegation is made that H has in fact been abused.
That a young child would make random disclosures of sexual abuse is, of course, troubling of itself. It is, perhaps, even more troubling in the context of this case where the mother asserts sexual abuse of J at the hands of the father but an expert, Ms B, reports this troubled young boy as saying that he didn’t remember “the things that Dad did” but that “they are in the papers”. I observe that, at the time when J said this, he was not yet six.
I consider it highly likely that the topic of sexual abuse and, specifically the possibility of, and possible specifics of, the father sexually abusing the children is discussed with such frequency by the mother with the children and/or in their presence that it has become part of the children’s psychological lives. I refer again to the passages from Ms B’s reports and the oral evidence of Mr G earlier quoted.
In my judgment, there is no credible evidence from which it is possible to conclude reasonably that the children or either of them has been sexually abused by the father.
There is no credible evidence from which it is possible to conclude reasonably that the children are at an unacceptable risk of sexual harm at the hands of the father.
It should be observed that the mother’s allegations of sexual abuse extend beyond the father to his brother (who, it is noted, is not a party to these proceedings). The allegations against him (to the extent that the particulars of same can be discerned at all given the context earlier described) suffer, in my view, from all of the deficiencies earlier identified with respect to allegations against the father.
In my judgment, there is no credible evidence from which it is possible to conclude reasonably that the children or either of them has been sexually abused by their paternal uncle.
There is no credible evidence from which it is possible to conclude reasonably that the children are at an unacceptable risk of sexual harm at the hands of their paternal uncle.
Other Harm
Even if the father’s behaviour is confined to that which he has admitted, the evidence reveals serious anti-social violent behaviour on his part. He has perpetrated violent acts against his step-daughter when she was 14 years old, threatened violence to Department of Communities (Child Safety) staff and behaved in a very aggressive (and criminal) manner whilst at the Department’s building.
The father was charged and convicted for each of those incidents and was incarcerated for a period of some months.
It is clear on the evidence that the father has in the past displayed serious aggressive tendencies. He plainly has had a limited ability to control and regulate his angry outbursts.
While I acknowledge the father’s expressed commitment to changing his past behaviours, I note that the changes he says he has undergone have arisen, on his own evidence, since his release from incarceration in March/April 2010. (and, inferentially, whilst imprisoned). The father is to be commended for whatever efforts he makes to address these issues.
I am, however, acutely cognisant of Dr V’s evidence that the father’s essential personality issues are likely to be resistant to counselling. So, too, an entire adult life is said to have undergone a metamorphosis in the space of a few months. It is to be hoped that this is so and remains the case, but it is a flimsy evidentiary basis upon which to base optimism in that respect.
There are several references in the expert material to the mother’s inability or unwillingness to protect the children from the issues of adult conflict. The report of Ms B filed 11 August 2010 notes of the mother that:
Whatever the true situation with regard to the allegations of child abuse against the father, the children (especially [J]) are not being assisted to develop normally by remaining at the centre of the conflict…the mother has clearly not sought to protect the children from any of this.
Dr V’s psychiatric opinion is that neither the mother nor father suffers from a diagnosable mental health condition, but that both the parents present with significant concerns as to personality. In Dr V’s initial report filed 9 May 2006, his diagnostic evaluation includes:
With respect to [the mother], it seems that there are significant issues with respect to dependence and it also seems that there are avoidant issues. …With respect to [the father], what stands out are the narcissistic traits and a poorly developed sense of identity and of self …It is probable that the issues of personality are of an extent as to constitute disorder but further information is required to clarify this.
Later in that same report Dr V concludes:
[In respect of the father] there is however, the serious “disorder of personality” of a mixed type…The most significant issue in the personality disorder is “narcissism”….I do not believe that the psychopathological issues in [the father] are of an extent that should make him ineligible to be a contact parent…
In Dr V’s second report filed 21 November 2008 he concludes:
Although neither of the parties can be said to suffer from any mental illness as such, both have very significant vulnerabilities in personality to the extent of constituting disorder of personality.
…
With respect to the father, the additional information suggests that he as significant problems with affect regulation and he can be impulsive and threatening with his behaviour…While he paints himself as a victim of circumstances, he is unable to appreciate his own role in bringing about the adverse circumstance he has found himself in in the past and indeed currently.
With respect to the mother, what stands out from the most recent information is the marked dependency but also impulsiveness…
In oral evidence Dr V said:
From my interviews with both of [the parties] as well as … reading the material, I think the personality issues in the father are such that psychotherapy, conventional psychotherapy is unlikely to be successful. That doesn’t mean he cannot learn new ways of being a parent, but the basic personality structure isn’t going to change. He may mature with time as personalities do, but the essential core problem will still be there.
And I would go so far as to say… that the same probably applies to [the mother], that the personality issues are ingrained to an extent that psychotherapy isn’t going to change it.
At the conclusion of Dr V’s cross-examination he said that in relation to the mother “perhaps I have underestimated the extent of the personality issues”.
I consider the father’s past behaviour towards a 14-year-old child to be reprehensible and to be sadly indicative of his personality flaws and incapacities as a parent.
If, as I think is likely, the father reverts to his underlying personality traits (as assessed by Dr V, whose evidence I accept), I consider the children are likely to be at an unacceptable risk of physical harm in the future by reason of the father’s inability to contain his impulsive anger and aggression. I consider it likely that this will be a particular challenge as each of the children near puberty and normal adolescent behaviour manifests itself.
There are, though, as earlier referred to, degrees of risk. I consider the risk unacceptable if the children were to live with him. I do not consider it so if face to face time occurred on a regular basis. However, other issues intrude upon that matter.
I consider that the behaviour of the mother in involving the children in adult conflict and issues (a good example of which is provided by my acceptance of the evidence of Ms B quoted earlier in these reasons) and, specifically, in inculcating in the children a false belief that their father (and uncle) have each sexually abused them, is reprehensible and constitutes emotional abuse of them. A crucial aspect of appropriate parenting is the nurturing of children in such a manner so as to allow their own individual relationships to develop with each parent.
Best Interests: Discussion and Findings
Findings have already been made about unacceptable risk in respect of the potential for sexual, physical or emotional abuse. Each is obviously relevant to the Primary Consideration directed to prevention from harm.
Long before the concept of “meaningful relationship” was incorporated into the Act, Nygh J said, in Cotton v Cotton [1983] FLC 91-331 at 78,252:
One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated …
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child - it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.
Here, I consider that the children living with, or spending any substantial time with, either parent can be said to involve the prospect of harm (albeit of differing types). I think it likely that if the children were to live with either parent, the process of facilitating time, and the practicalities of facilitating time, are, given the respective personalities of the parents, likely to be fraught with enormous amounts of stress and confusion for the children.
In that respect the poignant and profoundly troubling evidence of the mother dragging J into the contact centre, and his reaction (as his mother alleges it) to having seen his father, are stark examples of one side of that equation.
Despite the soothing words and protestations of the father that he is a changed man with a desire to communicate meaningfully to effect a relationship between the children and the mother should they live with him, I remain profoundly sceptical that this attitude would survive more than a short time post-orders.
The children are yet 8 and 5. I would be disinclined to place any real weight on the “views” of children of this age in the best of circumstances. The thought that these profoundly troubled children could provide any views in which the court could repose confidence needs only to be stated to be rejected.
It will be clear from what I have earlier said that I consider that the capacity of each of these parents to properly and adequately provide for these children those things necessary for their healthy psychological and emotional development to be profoundly impaired (albeit, again, in differing ways). There is no realistic probability that this will improve. As I said at the outset of these reasons, I hold profound concerns for these children whatever be their future living and co-parenting arrangements.
Similarly, I consider that neither parent exhibits sufficient maturity to properly nurture these children; a situation I sadly anticipate will get worse as each child approaches, and endures, adolescence. Each parent is significantly lacking in demonstrating the responsibilities of parenthood.
I have little doubt that, not only will the mother not seek to facilitate or encourage a “close and continuing relationship” between the children and the father, she will most likely seek to completely destroy it.
I consider the father is sincere in his expressed intention to facilitate a relationship between the children and their mother, but his underlying personality, the personality of the mother and what I consider to be the very high likelihood that the mother would not rest until the children were, via one means or another, back in her care, all point against that being a practical likelihood.
There can be little doubt that the mother would not accept an order of the court placing the children in the care of the father. The graphic incident following time spent with the father and Ms B is, in my view testament to my unshakeable view about that. It is to be noted that, in that incident, the child was able to manifest physical symptoms – superficially very serious – that accorded with the mother’s description of his anxiety, but which, to the trained eye of the ambulance officers, were nothing of the sort. If this is what occurs after a session with Ms B, one is only left to wonder what might manifest in the child if this court was to make an order removing the child from the mother.
It will be obvious, then, that I consider the prospect of such a change for the children as likely to effect significant upset for them (and, probably, J in particular) which such upset might well manifest itself in somatic symptoms. I agree with the assessment of Mr G that to remove the children – especially J – from the mother’s predominant care would likely cause him significant distress that would outweigh any potential benefit.
These parents have no current capacity to engage in any form of adult conversation or interaction with respect to their children (or generally). There is no current possibility (let alone likelihood) that they can, or will, consult about any matter affecting the children’s short or long-term welfare. I consider that there is no realistic prospect of that situation changing in the short or medium term.
The evidence of the difficulties at the contact centre reveal that these parents have been incapable of implementing changeovers and facilitating time even in a situation of strict supervision and control.
All the evidence in this matter points to a need to protect, and remove, the children from the conflict and hostility that has surrounded them for so many years. These young children need, borrowing the words of J’s counsellor Mr G, ‘the chance to break the recent patterns and establish a settled routine’.
I agree with the evidence of Mr G that it is critical that the situation that has persisted in recent times must cease to allow these children the chance to develop and flourish. A regime that requires numerous changeovers and chances of interaction between these parents will likely see a continuation of chaos and distress in the children’s lives.
I am cognisant of the need to consider orders that will be least likely to lead to further proceedings (s 60CC(3)(l)). I also have a duty to consider the needs of these children and the impact of the proceedings on them (s 69ZN(3)).
I consider it is crucial for these children to be provided the best possible opportunity to create and experience stability in their living arrangements. Both J and H are young and in the early years of school. A regime that requires numerous changeovers and chances of interaction between these parents will likely see a continuation of chaos and distress in the children’s lives.
Further, the father has an unstable track record as a parent, to say the least. His parenting capacities are untested or, perhaps more to the point, his asserted changed personality is untested under the stresses and strains of parenting. The nature of the relationship between the children of his earlier relationship is problematical and precarious. It is not a household redolent of consistency and stability.
That may not be his “fault”; but orders that have as their focus the best interests of children are designed to neither punish nor reward; rather they are reflective of what should occur if the children’s interests and needs are predominated over the interests and needs of parents. That remains true even in cases such as the present where an order that children should live with one parent rather than the other does not give the court cause for optimism about the children’s long-term prospects.
For so long as the Act has been in existence, the constant emphasis of the cases is that parenting proceedings have at their heart a positive enquiry “designed to promote the interests of the child, not to demote the claims of either parent” (In the Marriage of Jurss (1975) 1 Fam LR 11,203 at 11,206).
I would not describe the mother as a good parent; indeed, I consider she has been emotionally abusive to these children and, in that respect at least, she could not be described as even an adequate or “good enough” parent.
But, nor would I describe the father as a good parent. I am firmly of the view that he does not present an unacceptable risk of sexual abuse to the children. Equally, though, independent of that important issue, if his past behaviours are a predictor of his future parenting behaviours and capacities more generally (of which I consider there is a risk), I think he, too, could not be described as an adequate or “good enough” parent.
Principles and Findings relating to parental responsibility
I propose to make orders in respect of the co-parenting arrangement for two young children. I must, therefore, apply the presumption that it is in their best interests for their parents to have equal shared parental responsibility for them.
However, the presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2)) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted (s 61DA(4)).
The findings earlier made and the circumstances earlier described make it plain that the presumption is rendered inapplicable by reason of there being reasonable grounds to believe that a parent has engaged in abuse or family violence.
Further, an in any event, it is clear that the best interests of these children require the presumption to be rebutted; consultation of the type required by the Act (s 65DAC) of those who share parental responsibility cannot be seen as remotely likely, to any degree, in this case. An attempt by these particular parents to exercise parental responsibility equally or jointly is highly likely to provoke further conflict and stress for these children – something antithetical to their best interests.
I find that the presumption is both rendered inapplicable (s 61DA(2)) and rebutted in the children’s best interests (s 61DA(4)).
Although s 65DAA is inapplicable, I should add for the sake of completeness (as should be plain from the reasons outlined above) that I do not consider that an order for the children to spend equal time, or substantial and significant time, is in these particular children’s best interests.
The issue of the best interests of these children is then, to use the expression used by the Full Court in Goode v Goode [2006] FLC 93-286 “at large”.
Findings as to Live With and Time
It seems to me clear that the mother will do nothing to promote a relationship between the children and their father and is highly likely to undermine it. This is reprehensible. But, it is also, in my view, a reality.
Equally, if time is ordered to take place with any regularity, I consider it reprehensible that the mother would – via means both subtle and otherwise – seek to actively undermine the orders and bring pressure to bear – both subtle and otherwise – on the children. Yet, I am very confident that this is what she will do. Again I refer to the stark and profoundly disturbing evidence of J’s behaviour after the interview with Ms B referred to earlier.
A finding that the father was a “good enough” parent who presented little or no risk to the children and with whom they had a close and bonded relationship would likely persuade me that I should risk either a placement with the father or risk orders for regular time.
But, I cannot persuade myself of either premise. So, too, and equally importantly, I cannot persuade myself that orders for time would do otherwise than expose these children to pressure, conflict, likely future litigation and, as a result, little or no peace, much less a measure of the stability which they so clearly need.
Ultimately, I consider that “live with” orders should be decided in this wholly unsatisfactory case by predominating the need to avoid a change in day to day care for the children and to avoid the risk of the very significant risk of distress (and potential for on-going conflict) that removal from his mother’s care is likely to engender.
A combination of all of the relevant considerations leads me to the conclusion that the children should live with the mother and that no orders for time with the father that should impinge on her doing so in Tasmania as she apparently desires.
I cannot see how placing the children in the father’s care is in their best interests. He hardly knows them. They hardly know him. His day to day parenting capacity has been, in the past, very significantly, left wanting. The current family situation in his house is confused and contrary to a position advocated by a State welfare agency.
In the event that the mother lives in Tasmania with the children, there exists the, at least theoretical, possibility of orders for time with the father either there or in Queensland.
I cannot see that there is any realistic prospect that these orders would be carried out. I refer again to the appalling evidence of the mother dragging J up the stairs of the contact centre. I do not want this boy put through that – or anything like that. I see situations such as that, together with the prolongation of the ceaseless conflict between these parties, as very likely if orders for time are made.
Ultimately, and with great sadness and reluctance, I am of the view that the course of action which is most likely to promote such stability as these children are going to have, to maximise the prospects of peace in their young lives and to maximise the potential for there being an end to the conflict is if there is no order for face to face time made between the father and the children.
I will nevertheless order that there be time as might be agreed between the parents in writing. It is an order made in the faint hope that time might allow maturity and intelligence to emerge; it is not an order made in expectation of that occurring. Yet, the children should know that the court, at least, flagged to their parents that agreed time should be considered.
I consider it appropriate, and in the children’s interests, to leave the door open for the father to communicate with them, albeit in a restricted manner. That, hopefully, will allow for the possibility of the children reaching their own conclusions about a relationship with their father over time. At a future time when the children are sufficiently mature to do so, they can, one hopes, begin to establish a relationship with the father on their own terms.
I have reached this latter conclusion notwithstanding a careful consideration of the potential instability that written communication could introduce to the children’s lives by way of the mother’s alleged anxieties and apprehensions about the father. I consider that the importance and benefit of maintaining the connection to the father – for the children to pursue later in life should they choose - outweighs any such potential instability.
Further, while conscious of that matter, I am not prepared to abandon all hope that the children might, despite the matters currently impacting upon them, find a way to their father as they grow and mature and begin – one hopes – to think and decide for themselves.
That can occur only if some provision is made in the orders – to the extent that orders can achieve it – to facilitate a flow of, at the least, information to the father and to facilitate, on his part, appropriate communications by him with them. Doing so, it might be observed is consistent with the Act’s Objects and Principles, even if, as here, these children’s particular circumstances and best interests require the curtailment of time or other means of communication.
My reservations about the parties’ respective parenting capacities will be manifest from what I have said earlier in these reasons. My reservations about the mother doing anything that might facilitate, let alone encourage, communication by the children with their father will also be manifest. Orders can only do so much; at some time, “good enough” parenting and appropriate adult behaviour must take shape.
But, such work as orders can do should generally be at least tried. I propose to make orders designed to facilitate written communication and the provision of information about the children to the father. But, I will also direct the ICL’s appointment to remain for a period of 12 months to provide at least some oversight of the implementation of the orders. I will also order that the parties keep each other informed of a postal address at which they can receive written communications. I highlight that this address need not be, the residential address of the parties.
Other Orders
The ICL sought an order that allows the publication of these orders and reasons to the Director-General of the Department of Communities (Child Safety).
It will be apparent that I am very trouble by the extraordinary history of interventions and Departmental involvement that has occurred and the allegations and counter-allegations that underpin it. The children’s emotional health demands that it should cease. I propose to put in place orders for publication so that those who are involved, or potentially might be involved, with the children will have a picture of what has passed for them. I do so particularly in light of the mother’s proposed move to Tasmania.
Equally, I am concerned that material in these proceedings might be used by one party or the other in yet more allegations or counter-allegations. Again, orders can only do so much. However, I have determined to annex to these Orders, a copy of s 121 of the Act. The inappropriateness of involving young children in adult conflict has already been made clear in these reasons as it was during the hearing. I propose to issue injunctions restraining that behaviour in the future.
I order accordingly.
I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on (1 October 2010).
Associate:
Date: 1 October 2010
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